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2023 DIGILAW 286 (HP)

Hoshiar Singh v. Sarla Devi

2023-05-19

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. Petitioners have invoked inherent powers of this Court under Section 482 of the Code of Criminal Procedure and have prayed for setting-aside of the judgment of learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., Camp at Dehra, District Kangra, H.P., passed on 07.06.2022 in Criminal R.B.T. Appeal No. 15-G/X/21/18, titled Hoshiar Singh and other Vs. Sarla Devi. 2. Respondent herein is the wife of petitioner No.1. Their marriage was solemnised in the year 1991. Out of the wedlock of petitioner No. 1 and respondent, they have four children (three daughters and one son). Admittedly, the relations between respondent and petitioner No.1 have remained estranged since long. Respondent and children have been awarded maintenance under Section 125 of Cr.P.C. and petitioner No. 1 has been held liable to maintain them. 3. The instant proceedings have arisen on invocation of provisions of Protection of Women from Domestic Violence Act, 2005 (for short ‘D.V. Act’). Besides referring to various incidents of domestic violence, respondent also claimed that even after her strained relations with petitioners, she was in occupation of a room in the house of petitioner No. 1 and her stridhan as well as other articles were lying therein. She alleged that in her absence petitioner had locked the room by taking out the articles belonging to respondent. Respondent, thus, prayed for a residence order. 4. Petitioners contested the claim of respondent and in counter accused her of perpetrating matrimonial wrongs. It was alleged that respondent never stayed in the house of petitioner. She was residing at Village Nangal-Chowk in the house of her parents alongwith children. The children were being educated at Village Nangal-Chowk itself. Petitioner No. 1 had no house of his own. There was one ancestral house and in addition father of petitioner No. 1 had constructed another house. The father of petitioner No. 1 had bequeathed his entire estate in favour of his wife, petitioner No. 2 and therefore, the house belonged to petitioner No. 2. It was also alleged that on number of occasions, respondent alongwith her daughters had visited the old aged petitioner No. 2 and had given her beatings besides abusing and accusing her. 5. The father of petitioner No. 1 had bequeathed his entire estate in favour of his wife, petitioner No. 2 and therefore, the house belonged to petitioner No. 2. It was also alleged that on number of occasions, respondent alongwith her daughters had visited the old aged petitioner No. 2 and had given her beatings besides abusing and accusing her. 5. Learned Trial Court vide order dated 13.9.2017 allowed the complaint of respondent under Section 12 of the Domestic Violence Act, 2005 and passed the following orders:- (a) That respondent is prohibited from committing any act of domestic violence; (b) aiding or abetting in the commission of acts of domestic violence; (c) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal oral or written or electronic or telephonic contact; (d) alienating any asset, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of this Court. The respondent is further directed to provide two rooms alongwith kitchen and bathroom in his house to the petitioner and her children. Accordingly point No. 1 is answered partly in affirmative and point No. 2 is answered in negative.” 6. Aggrieved against the order passed by learned Trial Court, petitioners filed an appeal before Appellate Court under Section 29 of the Domestic Violence Act, 2005. Learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., vide judgment dated 07.06.2022 dismissed the appeal of the petitioners and order passed by learned Trial Court has been upheld. 7. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 8. Mr. K.D. Sood, learned Senior Counsel, appearing for petitioners contended that respondent has disentitled herself from claiming a right of residence in the house of petitioners on account of being guilty of matrimonial wrongs. The findings recorded by learned Courts’ below have also been assailed to be perverse. On the other hand, Mr. Kulwant Singh Gill, learned counsel for the respondent has supported the impugned judgment on the ground that both the Courts below have arrived at a justified conclusion on the basis of material on record. 9. The findings recorded by learned Courts’ below have also been assailed to be perverse. On the other hand, Mr. Kulwant Singh Gill, learned counsel for the respondent has supported the impugned judgment on the ground that both the Courts below have arrived at a justified conclusion on the basis of material on record. 9. In exercise of jurisdiction under Section 482 of Cr.P.C., this Court will not venture into re-examination or re-weighing the evidence. The interference can only be shown when a case of extreme illegality or perversity is made out resulting in abuse of process of the Court or preventing the ends of justice. Petitioners have not been able to point out any such illegality or perversity in the impugned orders. Both the Courts have based their findings on the material on record. The conclusions drawn by them are not such, which normally would not be the possible conclusions in the given facts of the case. I have found the conclusions drawn by Courts below to be inconformity with the material on record. Thus, no interference is required by this Court in exercise of its inherent powers. 10. The proposition that a woman is entitled to residence order even without strictly proving acts of domestic violence has been settled. In Prabha Tyagi Vs. Kamlesh Devi, (2022) 8 SCC 90 , Hon’ble Supreme Court has held as under:- “35. The distinction between Sub-Section (1) and Sub-Section (2) of Section 17 is also to be noted. While Sub-Section (2) deals with an aggrieved person which is defined in Section 2(a) of the D.V. Act in the context of domestic violence, Sub-Section (1) of Section 17 is a right conferred on every woman in a domestic relationship irrespective of whether she is an aggrieved person or not. In other words, every woman in a domestic relationship has a right to reside in the shared household even in the absence of any act of domestic violence by the respondent. 36. It is necessary to appreciate the importance and significance of the right of every woman in a domestic relationship to reside in a shared household. In other words, every woman in a domestic relationship has a right to reside in the shared household even in the absence of any act of domestic violence by the respondent. 36. It is necessary to appreciate the importance and significance of the right of every woman in a domestic relationship to reside in a shared household. As already noted, the expression ‘shared household’ is expansively defined in Section 2(s) of the D.V. Act but the expression contained in Section 17 namely, ‘every woman in a domestic relationship shall have the right to reside in the shared household irrespective whether she has any right, title or beneficial interest in same’, requires an expansive interpretation. In this context, Harbhajan Singh vs. Press Council of India - ( AIR 2002 SC 1351 ) could be relied upon wherein, Cross on “Statutory Interpretation” (Third Edition, 1995) has been relied upon as follows:- “Thus, an ‘ordinary meaning’ or ‘grammatical meaning’ does not imply that the Judge attributes a meaning to the words of a statute independently of their context or of the purpose of the statute, but rather that he adopts a meaning which is appropriate in relation to the immediately obvious and unresearched context and purpose in and for which they are used.” 37. While the object and purpose of the D.V. Act is to protect a woman from domestic violence, the salutary object of Sub-Section (1) of Section 17 is to confer a right on every woman in a domestic relationship to have the right to reside in a shared household. Hence, the said provision commences with a non-obstante clause. 38. For a better understanding of the said right, it would also be useful to relate it to the societal and familial context in India. 39. As already noted, a domestic relationship means a relationship between two persons who live or have at any point of time, lived together in a shared household. The relationship may be by (i) consanguinity, (ii) marriage or, (iii) through a relationship in the nature of a marriage, (iv) adoption or (v) are family members living together as a joint family. The expression ‘domestic relationship’ is a comprehensive one. The relationship may be by (i) consanguinity, (ii) marriage or, (iii) through a relationship in the nature of a marriage, (iv) adoption or (v) are family members living together as a joint family. The expression ‘domestic relationship’ is a comprehensive one. Hence, every woman in a domestic relationship in whatever manner the said relationship may be founded as stated above has a right to reside in a shared household, whether or not she has any right, title or beneficial interest in the same. Thus, a daughter, sister, wife, mother, grand-mother or great grand-mother, daughter-in-law, mother-in-law or any woman having a relationship in the nature of marriage, an adopted daughter or any member of joint family has the right to reside in a shared household. 40. Further, though, the expression ‘shared household’ is defined in the context of a household where the person aggrieved lives or has lived in a domestic relationship either singly or along with respondent, in the context of Sub-Section (1) of Section17, the said expression cannot be restricted only to a household where a person aggrieved resides or at any stage, resided in a domestic relationship. In other words, a woman in a domestic relationship who is not aggrieved, in the sense that who has not been subjected to an act of domestic violence by the respondent, has a right to reside in a shared household. Thus, a mother, daughter, sister, wife, mother-in-law and daughter-in-law or such other categories of women in a domestic relationship have the right to reside in a shared household de hors a right, title or beneficial interest in the same. 41. Therefore, the right of residence of the aforesaid categories of women and such other categories of women in a domestic relationship is guaranteed under Sub-Section (1) of Section 17 and she cannot be evicted, excluded or thrown out from such a household even in the absence of there being any form of domestic violence. By contrast, Sub-Section (2) of section 17 deals with a narrower right in as much as an aggrieved person who is inevitably a woman and who is subjected to domestic violence shall not be evicted or excluded from the shared household or any part of it by the respondent except in accordance with the procedure established by law. By contrast, Sub-Section (2) of section 17 deals with a narrower right in as much as an aggrieved person who is inevitably a woman and who is subjected to domestic violence shall not be evicted or excluded from the shared household or any part of it by the respondent except in accordance with the procedure established by law. Thus, the expression ‘right to reside in a shared household’ has to be given an expansive interpretation, in respect of the aforesaid categories of women including a mother-inlaw of a daughter-in-law and other categories of women referred to above who have the right to reside in a shared household.” 11. In light of above exposition, there was no impediment to grant the residence order in favour of the respondent even if the houses are owned by petitioner No. 2 having inherited it from her late husband. The relationship of petitioners inter se as son and mother are not in dispute. Learned Senior Counsel representing petitioners without conceding any right on behalf of the petitioners, submitted in alternative that respondent was offered residential accommodation in old ancestral house, but she had always been pressing upon for accommodation in new house. He further submitted that the impugned order also does not specify as to in which house the respondent is to be provided the accommodation as detailed in said order. 12. The order passed by learned Trial Court does not specify as to in which house, petitioners are to provide accommodation to respondent. Even otherwise, respondent cannot claim the choice of a house unless she is able to show some special reasons therefor. The interest of justice will be met if the respondent gets the residential accommodation as directed by learned Courts below, which is fit for human habitation and is otherwise not so inconvenient that by providing such accommodation, the orders passed in favour of the respondent are rendered nugatory. 13. In result, the petition fails. The judgment dated 7.6.2022 passed by learned Additional Sessions Judge-II, Kangra at Dharamshala, H.P., Camp at Dehra, District Kangra, H.P., in Criminal R.B.T. Appeal No. 15-G/X/21/18 and learned Additional Chief Judicial Magistrate, Dehra, District Kanga, H.P. in case No. 168-III/2013, are affirmed. 14. Accordingly, the petition is disposed of, so also the pending miscellaneous applications (if any).