The object of the Act of 2005 is to provide more effective protection to helpless and shelterless victims and to ensure the rights of women guaranteed under the Constitution. Thus, in a given case, woman who is victim of domestic violence occurring within the family in respect of which the complaint is made before the competent Court, it is necessary for the Magistrate, before whom the complaint is made, to pass an expeditious order at the interim stage u/s. 23 of the Act as the Magistrate may feel just and proper. The object is to provide protection to the woman/complainant speedily under the Act. Section 29 of the Act do provide remedy of appeal within 30 days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent as the case may be. However, as observed by this Court in the Abhijit Bhikaseth Auti's case (cited supra), such appeal will not be maintainable against purely procedural orders which do not decide or
determine the rights and liabilities of the parties. Even assuming that the interim order passed u/s. 23 for interim relief is appealable u/s. 29 of the Act, it is specifically observed by this Court that the appellate Court will interfere with it only if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or if it is found that the trial Court has ignored settled position of law regulating grant or refusal of interim relief.
Bombay High Court
Smt. Sheetal W/O. Hitesh Thawkar vs Hitesh S/O. Vijay Thawkar on 28 June, 2011
Bench: A.P. Bhangale
1. Rule. Rule made returnable forthwith. Heard Mr.A.A.Sonak, Adv. for the applicant and Mr.Masood Shareef, Adv. for respondent nos. 1 and 2.
2. By this application under Section 482 of the Code of Criminal Procedure, the applicant has prayed for quashing and setting aside the order dated 3rd September, 2010 passed in Criminal Appeal No.177 of 2010 by the learned Additional Sessions Judge-7, Nagpur with consequential prayer to restore the order dt.18.6.2010 passed below Exh.16 in Criminal Application No.541 of 2010 by 20th Joint Civil Judge (Jr.Dn.) and J.M.F.C.Nagpur. It appears that the present applicant had filed proceedings against her husband and mother-in-law under Section 12 r/w. Sections 17, 18 and 19 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Act of 2005"). Along with the main application, the applicant had also moved another application for grant of interim relief with averments that the applicant along with her husband (respondent no.1) got married on 5th December, 2008 at Nagpur. The applicant had a son by name Sujal who was born on 23.10.2004 at Nagpur and who is residing with her. She had resided in the shared household premises at Plot 3
No.170, Chakradhar Nagar, Old Subhedar Lay-out, Nagpur along with her husband which, according to the applicant, is a two storeyed house (ground plus two) consisting of eleven rooms; four rooms on the ground floor, six rooms on the first floor and one room on the second floor. It is contended that the respondents had locked the entire building on 5.4.2010 and committed the act of domestic violence and deprived the applicant of shared household.
3. According to the applicant, respondent no.1 had ill-treated her on the pretext of demand for money from her to purchase a four wheeler. Earlier, the applicant resided with her husband at Mhalgi Nagar, but after death of her father-in-law she resided at Chakradhar Nagar. There were matrimonial disputes between the applicant and her husband. Ultimately, the applicant had also lodged report to police regarding ill-treatment given to her by her husband. The applicant had informed Police Station, Sakkardhara that she had been deprived of residence at the house of her husband and in-laws as they had locked the building where the applicant resided along with her husband. Under these circumstances, the applicant had moved the application u/s.12 r/w. Sections 17, 18 and 19 of the Act of 2005 in the Court of J.M.F.C. Corporation Court No.1 at Nagpur with a prayer to restrain her husband and mother-in-law from dispossessing her or disturbing her possession from the shared household i.e. second floor of the building situated on plot no.170 at Chakradhar Nagar, Old Subhedar Lay- 4
out, Nagpur.
4. During pendency of the afore-said application, the applicant moved for grant of interim relief on 13.4.2010 with a prayer to restore possession of the shared household to the applicant considering her future as well as future of her son and to avoid their starvation. The said application was contested by respondent no.1 (husband of the applicant) on the ground that the claim of the applicant is false and she had suppressed the fact of pendency of proceedings for divorce against her in the Family Court, Nagpur. According to respondent no.1-husband, the applicant was served at the address - plot no.33, Flat No.101 Sahakar Apartment, Mhalgi Nagar, Ring road, near Besa Power House, Nagpur. It is also contended that respondent no.1 is paying rent for the said premises occupied by the applicant. The interim relief was opposed tooth and nail by respondent no.1. The learned J.M.F.C. Nagpur who heard the application (Exh.16) for grant of interim relief by an order dt. 18.6.2010 directed the respondents herein to restore possession of the shared household i.e. on second floor plot no.170, Chakradhar Nagar, Old Subhedar layout, Nagpur till final disposal of the main application.
5. The respondent/husband who was aggrieved by the interim order preferred Criminal Appeal No.177 of 2010 before the Court of Sessions at Nagpur u/s. 29 of the Act of 2005. The learned Additional 5
Sessions Judge, Nagpur quashed and set aside the order below Exh.16 passed by the learned trial Magistrate entertaining appeal u/s. 29 of the Act of 2005 mainly on the ground that the summons of the divorce proceedings in the Family Court were served at Sahakar Apartment, Nagpur upon the applicant. The learned Additional Sessions Judge also considered the affidavit of one Sachin Kakde who claims to be residing at second floor, plot no.170, Chakradhar Nagar, Old Subedhar Layout, Nagpur as a tenant since 9.7.2009. The learned Appellate Judge considering the definition of shared household disbelieved the contentions of the applicant that she was residing with her husband on the second floor of the building in Chakradhar Nagar. The learned Additional Sessions Judge observed that the applicant and her husband resided last at Sahakar Apartment and not in a building at Chakradhar Nagar. He also considered that the divorce proceedings are pending in the Family Court between the applicant and her husband. Hence, the learned Additional Sessions Judge quashed and set aside the order passed below Exh.16 by the learned trial Magistrate.
6. On behalf of the applicant reference is made to the ruling in the case of Nandkishor Damodhar Vinchurkar .vs. Kavita Nandkishor Vinchurkar and Ors. reported in 2009-EQ (BOM)-0-1116. This Court had considered the object of passing order at the interim stage and observed that, if, on the basis of record before the Court, the Court is in a position to 6
arrive at a just and proper conclusion, it will be open for the Court to do so and to decide the matter accordingly. The Court need not waste time in awaiting report of the Protection Officer or Service provider or to pass interim order in the proceedings initiated u/s. 12 of the Act.
7. By order dt. 10th June, 2011 when the matter was part heard, I had specifically made a querry to the learned Counsel appearing for the respondent as to how the interim order passed u/s. 23 of the Act is appelable u/s. 29 of the Act. The learned Advocate made a reference to the ruling in the case of Abhijit Bhikaseth Auti .vs. State of Maharashtra and anr. reported in 2009 Cri.L.J. 889. In para 25 of the said ruling, this Court had recorded the conclusions as under :
25. Thus, the conclusions which can be summarized are as under :
( i ) An appeal will lie under Section 29 of the said Act against the final order passed by the learned Magistrate under sub-section (1) of Section 12 of the said Act;
(ii) Under sub-section (2) of Section 23 of the said Act, the learned Magistrate is empowered to grant an ex-parte ad-interim relief in terms of Sections 18 to 22 of the said Act. The power under sub-section (1) is of granting interim relief in terms of Sections 18 to 22 of the said Act. Before granting an interim relief under sub- section (1), an opportunity of being heard is required to 7
be granted to the respondent.
(iii) An appeal will also lie against orders passed under sub-section (1) and sub-section (2) of the Section 23 of the said Act which are passed by the learned Magistrate. However, while dealing with an appeal against the order passed under Section 23 of the said Act, the Appellate Court will usually not interfere with the exercise of discretion by the learned Magistrate. The appellate Court will interfere only if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or if it is found that the Court has ignored settled principles of law regulating grant or refusal of interim relief. "
8. It appears that the orders passed under sub-section (1) or (2) of Section 23 of the Act are appealable. However, it is observed that the Appellate Court will usually not interfere with exercise of discretion by the learned Magistrate. The Appellate Court will interfere only if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or it is found that the Court had ignored settled provisions of law regulating grant or refusal of interim relief.
9. The learned Advocate for the respondent also made a reference to the case of S.R.Batra and another vs. Smt. Taruna Batra reported in AIR 2007 SC 1118 in which definition of the term 'shared household' was considered by the Apex Court. It is observed by the Apex 8
Court that " the definition of the term 'shared household' in Section 2 (5) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society." It is also observed that " wife is entitled to claim right to residence in a shared household and shared household would only be a house belonging to or taken on rent by the husband or the house which belongs to joint family of which the husband is a member."
10. The object of the Act of 2005 is to provide more effective protection to helpless and shelterless victims and to ensure the rights of women guaranteed under the Constitution. Thus, in a given case, woman who is victim of domestic violence occurring within the family in respect of which the complaint is made before the competent Court, it is necessary for the Magistrate, before whom the complaint is made, to pass an expeditious order at the interim stage u/s. 23 of the Act as the Magistrate may feel just and proper. The object is to provide protection to the woman/complainant speedily under the Act. Section 29 of the Act do provide remedy of appeal within 30 days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent as the case may be. However, as observed by this Court in the Abhijit Bhikaseth Auti's case (cited supra), such appeal will not be maintainable against purely procedural orders which do not decide or 9
determine the rights and liabilities of the parties. Even assuming that the interim order passed u/s. 23 for interim relief is appealable u/s. 29 of the Act, it is specifically observed by this Court that the appellate Court will interfere with it only if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or if it is found that the trial Court has ignored settled position of law regulating grant or refusal of interim relief.
11. Looking into the order below Exh.16 and while bearing in mind the principles mentioned above, it does appear that the learned J.M.F.C. Nagpur had considered the interim application as also the say filed by the N.A. before the Magistrate and after hearing the learned Advocates representing the parties, the interim order was passed whereby the respondents were directed to restore the possession of the applicant in the shared household i.e. of second floor, plot no.170, Chakradhar Nagar, Old Subhedar lay-out, Nagpur till final disposal of the main application. It appears that, while the interim order was passed, it was contended before the Magistrate that the shared household is three storeyed building (ground plus two); on the ground floor, Non-applicants and sister of Non-applicant no.1 were residing; on the first floor two tenants were residing and on the second floor, no one was residing there. That being so, when it was specifically contended that the second floor was vacant, it appears that the learned Additional Sessions Judge 10
committed an error of law in considering the new evidence sought to be produced in the form of affidavit by one Sachin Kakde claiming to be tenant in respect of second floor in the building. Instead of insisting upon registered tenancy agreement or leave and license agreement, the learned Judge placed reliance on the affidavit tendered. The learned Sessions Judge appears to have concluded that Sachin Kakde is tenant of Smt. Vijaya Thaokar, although it was noted by the learned Magistrate that second floor is vacant and no one is residing there.
12. Be that as it may, the approach of the learned Sessions Judge appears contrary to what has been observed by this Court in respect of entertaining appeals from the interim orders passed u/s. 23 of the Act. It cannot be said while reading the interim order passed by the learned Magistrate that it was arbitrary, capricious, perverse or contrary to the settled principles of law regarding grant of interim relief. Therefore, the order below Exh.16 ought not to have been interfered with. Even assuming for the sake of argument that the alleged tenant is occupying second floor premises on the basis of unregistered agreement entered into between the alleged tenant and deceased father of respondent no.1, prima facie by itself it would not form any legal basis to claim legal right as a tenant. [In view of law of tenancy which is in force today vide provisions of the Maharashtra Rent Control Act.] Furthermore, merely because the divorce proceedings are pending 11
between the husband and the wife, the same cannot deprive the applicant who was allegedly subjected to domestic violence from claiming residence in the shared household in the two storeyed building consisting of about eleven rooms. It is the liability of the husband to comply with the interim order passed during pendency of the main application or to provide residence to his wife, the said order being provisional subject to the final orders that will be passed in respect of the main application under the Act. Since such interim order is provisional in character, it may be altered, modified or revoked by any reasoned order if the learned Magistrate is satisfied about the change in circumstances as contemplated u/s. 25 of the Act of 2005.
13. For all the above reasons, the application must be allowed in the interest of justice. The impugned order passed by the learned Additional Sessions Judge-7, Nagpur is set aside and the order passed by the learned J.M.F.C. [Corporation Court] No.1, Nagpur below application Exh.16 stands restored.
14. It would be open for the parties to move for necessary alteration or modification of the interim order provided that, during pendency of the main application, necessary arrangement is made to provide residence to the applicant and her son. The Criminal Application is disposed of accordingly.
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15. The learned Advocate prays for grant of stay of this order. Considering the nature of order, which is interim in nature and which may be modified or altered by the learned Magistrate upon pleading of change in circumstances, the prayer for grant of stay is rejected. JUDGE
jaiswal
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