Mahesh Chandra Sharma, J.
1. This revision petition has been filed by the petitioners Harit Dheer, Ashok Dheer and Smt. Usha Dheer against the order dated 25.2.2013 of Sessions Judge Jaipur City Jaipur in Criminal Appeal No. 764 of 2012 dismissing the appeal filed against the interim order dated 1.8.2012 of Judicial Magistrate (Class-1) No. 18 Jaipur City in criminal Complaint No. 14/2011 filed under Section 12 of Protection of Women under Domestic Violence Act, 2005 whereby direction was made not to alienate, transfer or sale the property till disposal of the complaint.
2. Brief facts giving rise to this revision petition are that the complainant non-petitioner No. 1 Smt. Sugandha filed an application under Section 12 of the protection of Women from Domestic Violence Act, 2005 (short the Act of 2005) before the Trial Court mentioning therein that she was married to the petitioner No. 1 on 19.4.2009 as per Hindu Customs at Jaipur. It was stated in the complaint that after some time of marriage respondent started behaving cruelly both physically and mentally, with her and demanding dowry asking her to bring from her father. This was duly replied by the respondents and all the allegations leveled against them were denied. The Non-petitioner No. 1 during pendency of the complaint moved an application dated 27.7.2012 stating that in the Criminal Case she has prayed for alternative accommodation and requested that she may be allowed to reside in the shared household at the address mentioned in the case i.e. 307 Gurunanakpura, Vijay Path, Adarh Nagar, Jaipur as her 'Stridhan' is also present in that house, it was also stated that she has come to know that the respondents are going to sell the property and want to run away and if they will do so she will not get the relief sought in the case and this causes injustice to her. A prayer was made that application may be allowed and the respondents be restrained from alienating or disposing of the shared household and further requested that the SDM Stamp Jaipur be directed not to do the registry till the disposal of the criminal case. The Court below allowed the application and vide order dated 1.8.2012 was passed in favour of the complainant directing the petitioners that till the disposal of the Criminal Case pending under Section 12 of the Act of 2005 they will not alienate or dispose of the common shared household i.e. 307 Gurunanankpura, Vijay Path, Adarsh Nagar, Jaipur. Against the order dated 1.8.2012 the petitioner filed appeal under Section 29 of the Act of 2005 but the same was rejected by the Appellate Court by the order dated 25.2.2013. Against this order of the Appellate Court, the petitioner have filed the revision petition praying that both the order of the Court below be set aside.
3. The learned Counsel for the petitioner submitted that the Courts below have committed grave error in deciding the application restraining the petitioners from alienating or disposing of the shared household without considering that under Section 17(1) a shared household only mean the house belonging to her husband, in which they had resided in past than only one can claim for right to residence. It was further argued that the Courts below did not consider the preliminary objections which were taken by the petitioner to the effect that in the application complainant has not mentioned that under which provision of Act of 2005 it has been moved, and there is no provision in the Act under which such an application can be filed. The learned Counsel for the petitioners has placed reliance on S.R. Batra and Anr v. Taruna Batra (2007) 3 SCC 169. the order of the Judicial Magistrate and the order of the Appellate Court suffer from infirmities so as to call for interference in the revisional jurisdiction of this Court.
4. The learned Counsel for the non-petitioner opposed the arguments of the petitioner and submitted that the orders passed by the Judicial Magistrate and Appellate Court are just and proper and there is no illegality in the orders.
5. I have heard the leaned Counsel for the parties and perused the judgment passed by the Appellate Court and the Judicial Magistrate. Before proceeding further it would be necessary to have a look at the relevant provisions of Section 19(l)(d) of the Act of 2005 which reads as under:
19.(1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-
(a) restraining the respondents from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared house hold;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of Magistrate;
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under Clause (b) shall be passed against any person who is a woman."
From the above, it is clear that while dealing with the complaint under Section 12 of the Act of 2005 the Trial Court is competent to pass orders restraining the respondent from alienating or disposing of the shared household or encumbering the same.
Now I may look into the orders passed by the Trial Court and the Appellate Court in this regard.
The trial Court in the order dated 1.8.2012 held as under:
“LANGUAGE” The Appellate Court in its order dated 25.2.2013 held as under:
“LANGUAGE” The order passed by the Appellate Court and the Judicial Magistrate as perfectly legal and not contrary to law. The Appellate Court and the Judicial Magistrate have not committed any illegality in passing the orders.
The Apex Court in V.D Bhanot v. Savita Bhanot., (2012) 3 SCC 183, held in paras 12 to 17 as under:
12. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.
13. On facts it may be noticed that the couple has no children. Incidentally, the respondent wife is at present residing with her old parents, after she had to vacate the matrimonial home, which she had shared with the petitioner at Mathura, being his official residence, while in service. After more than 31 years of marriage the respondent wife having no children, is faced with the prospect of living alone at the advanced age of 63 years, without any proper shelter or protection and without any means of sustenance except for a sum of Rs. 6000 which the petitioner was directed by the Magistrate by order dated 8.12.2006, to give to the respondent each month. By a subsequent order dated 17.2.2007, the Magistrate also passed a protection-cum-residence order under sections 18 and 19 of the pwd act, protecting the rights of the respondent wife to reside in her matrimonial home in Mathura, thereafter, on the petitioner's retirement from service, the respondent was compelled to vacate the accommodation in Mathura and a direction was given by the Magistrate to the petitioner to let the respondent live on the first floor of House No. D-279, Nirman Vihar, New Delhi, and if that was not possible, to provide a sum Rs. 10,000 per month to the respondent towards rental charges for acquiring an accommodation of her choice.
14. In our view, the situation comes squarely within the ambit of Section 3 of the PWD Act, 2005 which defines "domestic violence" in wide terms, and, accordingly, no interference is called for with the impugned order of the High Court. However, considering the fact that the couple is childless and the respondent has herself expressed apprehension of her safety if she were to live alone in a rented accommodation, we are of the view that keeping in mind the object of the Act to provide effective protection of the rights of women guaranteed under the constitution, who are victims of violence of any kind occurring within the family, the order of the High Court requires to be modified.
15. We, therefore, modify the order passed by the High Court and direct that the respondent be provided with a right of residence where the petitioner is residing, by way of relief under section 19 of the pwd act, and we also pass protection orders under Section 18 thereof. As far as any monetary relief is concerned, the same has already been provided by the learned Magistrate and in terms of the said order, the respondent is receiving a sum of Rs. 6000 per month towards her expenses.
16. Accordingly, in terms of Section 19 of the PWD Act, 2005, we direct the petitioner to provide a suitable portion of his residence to the respondent for her residence, together with all necessary amenities to make such residential premises properly habitable for the respondent, within 29.2.2012. The said portion of the premises will be properly furnished according to the choice of the respondent to enable her to live in dignity in the shared household, consequently, the sum of Rs. 10,000 directed to be paid to the respondent for obtaining alternative accommodation in the even the petitioner was reluctant to live in the same house with the respondent, shall stand reduced from Rs. 10,000 to Rs. 4000, which will be paid to the respondent in addition to the sum of Rs. 6000 directed to be paid to her towards her maintenance in other words, in addition to providing the residential accommodation to the respondent, the petitioner shall also pay a total sum of Rs. 10,000 per month to the respondent towards her maintenance an day-to-day expenses.
17. In the event, if the aforesaid arrangement does not work, the parties will be at liberty to apply to this Court for further directions and orders. The special leave petition is disposed of accordingly. There shall, however, be no order as to costs. The Apex Court in S.R. Batra v. Taruna Batra, (2007) 3 SCC 169, held :
18. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt Taruna Batra cannot claim any right to live in the said house.
19. Appellant 2, the mother-in-law of Smt. Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.
20. Learned Counsel for the respondent then relied upon the Protection of Women from Domestic Violence Act, 2005. He stated that in view of the said Act respondent Smt. Taruna Batra cannot be dispossessed from the second floor of the property in question.
21. It may be noticed that the finding of the learned Senior Civil Judge that in fact Smt. Taruna Batra was not residing in the premises in question is a finding of fact which cannot be interfered with either under Article 226 or 227 of the Constitution. Hence, Smt Taruna Batra cannot claim any injunction restraining the appellants from dispossessing her from the property in question for the simple reason that she was not in possession at all of the said property and hence the question of dispossession does not arise.
From the above ruling cited by the Counsel for the petitioners it is clearly house in question belongs to mother in law of Taruna Batra and it doers belong to Amit Batra.
In the instant matter the petitioner have not denied the fact that I disputed house is not their shared property.
Thus the impugned orders do not call for any interference in the revision jurisdiction. The revision petition being devoid of merit stands rejected. As main petition has been dismissed the stay application also stands dismissed.
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