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2019 DIGILAW 325 (ORI)

Purna Chandra Mishra v. Pritilata Panda

2019-04-15

D.DASH

body2019
JUDGMENT : D. DASH, J 1. The petitioner by filing this revision has assailed the judgment dated 03.01.2017 passed by the learned Sessions Judge, Puri, in Crl.Appeal No. 31 of 2016 confirming the order dated 22.09.2016 passed by the learned S.D.J.M., Puri in 1 C.C. Case No. 87 of 2016 in the matter of an application under section 23 of Protection of Women from Domestic Violence Act, 2005 (for short, called 'the PWDV Act') granting interim maintenance of Rs. 8,000/- to the opposite parties for being paid by these petitioners by the 7th day of each succeeding month as per the English Calendar with effect from the date of initiation of the proceeding i.e. from 19.02.2016, 2. The facts of the case necessary for the purpose of the present proceeding are as under:- The opposite party No. 1 is the daughter-in-law of the petitioners and her husband, who was the only son of the petitioners and has passed away on 5.8.2010 after suffering from Cirrhosis of Liver. The opposite party No. 2 is the minor daughter (son's daughter of the petitioners). The case of the opposite party No. 1 is that after the death of her husband while continuing to stay with the parent-in-laws as before in that house, she was tortured and subjected to mental and physical cruelty by the petitioners. In order to protect the family prestige, she however went on tolerating the same for some time and ultimately a situation came when the petitioners did not provide her with food, medicines etc. It is alleged that on 01.03.2011, she was driven out of from the house. Thus it is stated that she with her minor daughter being the victims of said domestic violence subjected by the petitioners have been aggrieved and are compelled to stay separately. It is her case that the petitioner No. 1 has a four storied building on a prime location of Puri on Swargadwar Road, having eight shop rooms on the ground floor and Seven rooms on the first floor as also second floor each and two rooms in the third floor. They have a hotel running in the said building. Having narrated all those, it is further said that the petitioner No. 1 is having quite handsome monthly income of around Rs. 2.00 lakhs in all. The opposite parties claimed monetary relief of Rs. 30,000/- per month. They have a hotel running in the said building. Having narrated all those, it is further said that the petitioner No. 1 is having quite handsome monthly income of around Rs. 2.00 lakhs in all. The opposite parties claimed monetary relief of Rs. 30,000/- per month. During pendency of the said proceeding, by filing an application 23 of the PWDV Act, the opposite parties have claimed interim maintenance. 3. The petitioners in their show-cause while traversing the allegations levelled against them have flatly denied to be carrying any liability in the matter of grant of monetary relief to the opposite parties as claimed. It is stated that the opposite party No. 1 is working as an Anganwadi Worker and getting remuneration, when these petitioners have no source of income. They claimed that the son of the petitioners (husband of opposite party No. 1 and father of opposite party No. 2) was looking after the business and has squandered away the properties and assets including the business capital. It is said that for his treatment for the disease of Cirrhosis of Liver, the business unit has been sold for repayment of the dues of money as also the loan taken from the Bank. 4. The trial court analysing the evidence on record in the background of the case of the parties has held as under:- "I am of the considered view that the aggrieved person is entitled to interim maintenance as per the share of her husband in the family and further held that so far as the quantum of maintenance-is concerned the aggrieved person has submitted that the respondent No. 1 is getting house rent from shops, lodging, hotel and mobile towers to the tune of Rs. 2,00,000/- per month besides Rs. 30,000/- annually from landed properties of village as such she prayed to grant Rs. 30,000/- per month towards expenses of food, clothes, medicines, education and basic necessity besides alternative accommodation. On the other hand the respondents contended that the aggrieved person is working as an Anganwadi Worker at Anganwadi Centre, Swargadwar, Puri and also getting salary. He also submitted the copy of the registered sale deed in respect of Hotel Sea Bird on 08.04.2009 and submitted that the mother-in-law and father-in-law being old and ailing has no source of income as such prayed that the respondents are unable to make payment of the maintenance. He also submitted the copy of the registered sale deed in respect of Hotel Sea Bird on 08.04.2009 and submitted that the mother-in-law and father-in-law being old and ailing has no source of income as such prayed that the respondents are unable to make payment of the maintenance. However, on perusal of case records and the materials available therein it has already been held that the aggrieved person is entitled to maintenance and unless the interim maintenance is provided to the aggrieved person and her child put her to vagrancy." 5. Having so said, interim maintenance of Rs. 8,000/- per, month has been awarded in favour of the opposite parties to be paid by the petitioners. 6. The petitioners having carried the appeal, the appellate court on evaluation of evidence at its label has held the following:- "9. The Court has found that the Respondents have sufficient means, but they are no providing anything for maintenance of the aggrieved person though she has right over the same joint family properties. It further appears from the record that the aggrieved person has filed a suit claiming 1/4th share in the joint family property which' is pending for adjudication and materials so available on record prima facie make out a case that the aggrieved persons have share in the joint family properties. Since Respondents have debarred them from getting any share from the suit properties, therefore it amounts to "economic abuse" as defined under the Act. Therefore, the aggrieved persons can seek for maintenance from the Respondents under the D.V. Act. Section 23(2) empowers Court/Magistrate to grant interim maintenance. The learned court below has considered the materials available on record and found that the aggrieved persons are to get interim maintenance and accordingly passed the impugned order. 7. Learned counsel for the petitioners submitted that the courts below have failed to consider the fact that the property which was sold is the absolute property of petitioner No. 1 and not the ancestral property. and that the husband of the opposite party No. 1 had never any share over the said property and that having been sold before the death of the husband of the opposite party No. 1, the courts below ought not to have held the petitioners liable to pay interim maintenance. and that the husband of the opposite party No. 1 had never any share over the said property and that having been sold before the death of the husband of the opposite party No. 1, the courts below ought not to have held the petitioners liable to pay interim maintenance. It was further submitted that as already Civil Suit bearing No. 80 of 2014 is running in respect of the said property wherein the nature of property would be decided for all times to come, the courts below ought to have refrained from passing the order of interim maintenance on the ground that the petitioners have their income from the said building standing on the land which is the absolute property of the petitioner No. 1 and as yet has not been declared to be ancestral in nature. In support of the submission, he has relied upon the decisions in case of "S.R. Batra and another vs. Taruna Batra (Smt.)"; (2007) 3 SCC 169 and "Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel and others"; (2008) 4 SCC 649 . 8. Learned counsel for the opposite parties submits all in favour of the order passed by the courts below. According to him, when the opposite parties are residing outside under separate mess and estate from the petitioners who are none else than the in-laws of the opposite party No. 1 and paternal grandparents of opposite party No. 2 (minor), the courts below have committed no such error in granting the interim maintenance pending final decision in the original proceeding under the PWDV Act. 9. That the petitioners on one hand and the opposite parties on the other, are residing separately is not denied by the petitioners. Admittedly, the opposite party No. 1 with her deceased-husband later on being joined by the opposite party No. 2 coming to born since her marriage has been residing together with the petitioner-in laws and that situation had continued even for some period after the death of the husband of the opposite party No. 1. 10. Both the courts below on analysis of evidence have found that the opposite parties have been subjected to domestic violence at the hands of the petitioners. Perusal of the order shows that the courts below having analysed the evidence on record have arrived at such a conclusion. 10. Both the courts below on analysis of evidence have found that the opposite parties have been subjected to domestic violence at the hands of the petitioners. Perusal of the order shows that the courts below having analysed the evidence on record have arrived at such a conclusion. On going through the available evidence oh record as discussed, nothing is noticed as indicative of the fact that some material evidence to have either been overlooked or ignored or something which do not appear in the evidence have been read into the evidence and those if would not have been so done, the outcome in the form of finding might not have been the one as has been recorded. This Court giving a careful reading to the discussed evidence finds no such perversity with the said finding warranting interference therein. The petitioners have been found from evidence to be having sufficient income from that shared household where the petitioners are also residing which being a finding of fact, this Court has not been able to search out any perversity therein. 11. In case of S.R. Batra and another (supra), the mother-in-law of the aggrieved person having taken the loan had acquired the house. The aggrieved person having shifted to her parents' residence because of dispute with her husband, she came with an information that later on she tried to enter the house of appellant No. 2 and found the main entrance gate locked and therefore she filed a suit, for mandatory injunction to enable her to enter the house. The aggrieved person with her parents forcibly broke upon the lock of the house belonging to the mother-in-law before any order could be passed by the court in seisin of the suit. The husband of the aggrieved person had already shifted to his own house before the litigation. The appellate court restrained the daughter-in-law and other from interfering with the possession of the house by the aggrieved person. The appellate court held that the aggrieved person is haying no right of residence over the properties other than property of husband and ruled that the order of temporary injunction is unsustainable. The learned Single Judge of the High Court held the aggrieved person to be entitled to continue to reside in the floor of the house. The appellate court held that the aggrieved person is haying no right of residence over the properties other than property of husband and ruled that the order of temporary injunction is unsustainable. The learned Single Judge of the High Court held the aggrieved person to be entitled to continue to reside in the floor of the house. The Hon'ble Apex Court in view of the finding of the trial court that the aggrieved person was not residing in the premises in question held that she could not claim any injunction against the mother-in-law and other from dispossessing her from the property in question. For the simple reason that she was not in a possession of the said property, the submission of the learned counsel for the aggrieved person that the shared house hold includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship and as the aggrieved person had lived in the property in question in the past, the suit property is her shared household has been repelled. It has been said:- "26. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces, etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband's relative will be shared households and the wife can well insist in living in all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd." In case of Vimlaben Ajitbhai Patel (supra), the Apex Court held that the Domestic Violence Act provides for a higher right in favour of a wife and not only she acquires a right to be maintained but also thereunder acquires a right of residence which is a higher right and as such extends to joint properties in which the husband has a share. On the factual setting of the case running down from the lifetime of the husband of the opposite party No. 1, the house where the petitioners are now residing squarely falls within the ambit of "shared household" as defined in section 2(s) of the PWDV Act. The opposite parties are now being deprived of having their stay there and they having taken separate residence in the facts and circumstances of the case, no fault is found with the courts below in passing an order directing the petitioners to pay a sum of Rs. 8,000/- per month to the opposite parties till finalisation of the original proceeding. 12. For the aforesaid discussion and reasons, the revision fails and accordingly, the same stands dismissed.