the evidence on record it becomes clear that the complainant wife
can certainly be considered as a family member of the present
petitioner who are brother in law and sister in law of the
complainant. Therefore, relationship would not come to an end only
because of death of her husband and, therefore, she may be
considered as an aggrieved person with reference to relationship.
However, to become entitled to any relief under the Act, what is
material is living together in shared house hold with reference to
marriage or relationship with joint family. Therefore, when
evidence is to the effect that wife was residing with her husband
separately from the present petitioners, then it cannot be said that
wife is residing together in shared household, so as to attract the
provisions of Domestic Violence Act. The basic ingredients of the
Act is domestic relationship and domestic violence. Thereby, there
must be a cogent and reliable evidence that on the date of accruing
of cause of action i.e. the date when domestic violence has taken
place the complainant and accused must be found to be living
together in a shared household. Thereby, if wife or aggrieved
person is living separately from in-laws for long time, then though
their relationship as in-laws i.e. either father-in-law, mother-in-law,
brother-in-law or sister-in-law may not change, but their domestic
relationship certainly changes since they are not living together in
shared household.
8.4 Similarly, though definition of “domestic violence” provided
under Section 3 is very wide in nature, it may be applicable only
and only when “domestic relationship” is proved and not because of
natural relationship between complainant and accused. As already
recorded herein above, in the present case, the fact is some what
different, in as much as, it is undisputed fact that the complainant
is residing separately from her in laws with her husband
immediately after marriage and thereby when she was not living
together in a shared household with present petitioner though they
are her in laws, present petitioners cannot be termed as
respondent with reference to domestic relationship though there is
relationship of in-laws. The definition of respondent as per Section
2(f) makes it clear that the person must be having “domestic
relationship” with aggrieved person and that proviso is permitting
to file complaint against relative of the husband and thereby
though complaint can be filed against in-laws, in my opinion it can
be filed only when they are living together in a shared household
where cause of action arises and not in all other cases when
aggrieved person is not residing with her in-laws when cause of
action arise.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 271 of 2016
JITENDRABHAI BHIKHABHAI BAMBHANIYA &
V
STATE OF GUJARAT & 1...
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 18/10/2016
1. Rule. Learned advocate Mr. Kuldeep D. Vaidya waives service
of notice of rule on behalf of respondent No.2. Learned APP wavies
service of notice of rule on behalf of respondent No.1.
2. Heard learned advocate Mr. Harshad K. Patel for the
petitioner and learned advocate Mr. Kuldeep D. Vaidya for the
respondent No.2 and learned APP Mr. K. P. Raval for the
respondent State.
3. Petitioner herein is original accused whereas respondent
No.2 is original complainant. Petitioners have challenged the
judgment and order dated 18.02.2016 in Criminal Appeal No. 56 of
2015 passed by the learned 3rd Additional Sessions Judge of
Bhavnagar whereby judgment and order dated 05.08.2015 in
Criminal Misc. Application No.580 of 2013 has been quashed and
set aside and thereby several reliefs have been granted in favour of
respondent No.2 viz. (1) directions to the petitioners to allow the
respondent No.2 to stay in the house where she was residing with
her husband and children and restraining them to disturb her
residence in such house. (2) petitioners are also directed to hand
over one of the shops, details of which is disclosed in the the
impugned judgment to the respondent wife, where her husband
was carrying out his business and to transfer it in the name of
respondent and her children as successor of her husband. (3) it is
further directed to the police inspector of Mahuva Police station to
extend all bandobast to execute such order. However, it is made
clear that civil rights of the parties would not be disturbed because
of such directions.
4. Such Criminal Misc. Application No. 580 of 2013 was
preferred by respondent under the provisions of Protection of
Women from Domestic Violence Act, 2005 and more particularly
reliefs were claimed under Sections 17, 18, 19, 20, 22 and 23 of the
Act. While rejecting such application, the trial Court has
considered that respondent is residing separately since long and
that she is earning her livlihood by doing tailoring work and,
therefore, she is not entitled to get maintenance. It seems that the
trial Court has instead of proceeding summarily in such matter,
tried to deal with each issue by considering detailed evidence. But,
when parties are proceeding summarily probably there may be lack
of particular evidence to prove civil right of the parties. Though
such civil rights can never be considered as a restriction or hurdle
in getting reliefs claimed under the act, the trial Court has rejected
the complaint on several counts.
5. However, appellate Court has re-appreciated the evidence
and legal issues and, thereby, the appellate Court has came to the
conclusion that respondent wife is entitled to reside in the
matrimonial house and quashed the order by allowing the
application as per the impugned order.
6. At present, it is contended by the learned advocate for the
petitioners that there cannot be such order under provisions of
Domestic Violence Act in absence of any domestic violence
committed by any of the petitioners, in as much as, petitioners and
respondents were residing separately right from the beginning. It
is also contended that respondent has filed such application as if
she is claiming partition of the joint property, which is not
permissible in the proceedings under the Domestic Violence Act
and, therefore, the trial Court has rightly rejected the complaint. It
is further contended that the property in question where
respondent is residing is not self acquired property of the husband
of the respondent but it is joint property, so also the shop under
reference was also purchased jointly from income of the HUF. It is
also contended that when respondent is already in possession of
one of the HUF property, where she is staying and hence there is
no ground to grant any relief as prayed for and granted by
impugned order. It is also contended that so far as shop is
concerned, practically it is in the joint name of respondent and her
husband and, therefore, there cannot be an order under the
Domestic Violence Act.
7. It is undisputed fact that respondent is at present widow, i.e.
her husband Pravinbhai has expired and present petitioner No.1 is
brother in law of the respondent and whereas petitioner Nos.2 and
3 are sister in law of the respondent. It is also undisputed fact that
the marriage of the petitioner was solemnized on 07.02.2007 i.e.
before six years of such litigation and in between couple has two
children namely Krunal and Hasti who were born on 04.09.2010
and 20.07.2012 respectively. It is also undisputed fact that couple
and their family have joint property and out of such joint property,
they were doing business jointly for their livlihood. It is also
undisputed fact that application for several reliefs under the Act
has been preferred in 2013 i.e. in the same year when husband of
the respondent has expired.
7.1 In view of above typical facts and circumstances on record
we have to ascertain that whether respondent No.2 – widow is
entitled to any relief as claimed by her and refused by the
Magistrate or not. Whereas it also needs to be ascertained that
whether respondent is entitled to relief granted in her favour by
the impugned judgment or not. For the purpose, reference to the
legal provisions is very much material.
8. Since, the application for the respondent – wife is under
Section 17, 18, 19, 20, 21, 23 of the Act basic requirement and
provisions of such sections needs to be recollected herein.
8.1 Section 17 of the Act hes been asserted for claiming right of
residence respondent No.2. It would be appropriate to recollect the
provisions of Section 2(A) of the Act, which lays down a definition
of "aggrieved person". The “aggrieved person” means any woman
who is, or has been, in a domestic relationship with the respondent
and who alleges to have been subjected to any act of domestic
violence by the respondent. whereas the terms “respondent” is
defined under Section 2(q) which provides that "respondent" means
any adult who is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved person has
sought any relief under this Act. Therefore, what is required is
“domestic relationship” between the parties and the provision is
such that there is no restrictions for claiming such relief even by
the widow. The only condition in both the cases is that aggrieved
person must have been subjected to any act of domestic violence at
any point of time when they lived together in a shared household,
when they are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are members of
a family living together as a joint family. Whereas “domestic
violence” is defined in Section 2(g) that it would be as provided in
Section 3 and Section 3 of the Act provides an exhaustive definition
of the term “domestic violence” which includes harms or injures or
endangers the health, safety, life, limb or well-being, whether
mental or physical, of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse, verbal and
emotional abuse and economic abuse, which includes deprivation of
all or any economic or financial resources to which the aggrieved
person is entitled under any law or custom whether payable under
an order of a court or otherwise or which the aggrieved person
requires out of necessity including, but not limited to, household
necessities for the aggrieved person and her children, if any,
stridhan, property, jointly or separately owned by the aggrieved
person, payment of rental related to the shared household and
maintenance. The economic abuse also includes, disposal of
household effects, any alienation of assets whether movable or
immovable, valuables, shares, securities, bonds and the like or
other property in which the aggrieved person has an interest or is
entitled to use by virtue of the domestic relationship or which may
be reasonably required by the aggrieved person or her children or
her stridhan or any other property jointly or separately held by the
aggrieved person. The economic abuse even includes prohibition or
restriction to continued access to resources or facilities which the
aggrieved person is entitled to use or enjoy by virtue of the
domestic relationship including access to the shared household.
The explanation (II) to Section 3 of the Act clarifies that for the
purpose of determining whether any act, omission, commission or
conduct of the respondent constitutes "domestic violence" under
this section, the overall facts and circumstances of the case shall be
taken into consideration.
8.2 Therefore, what is material to be appreciated in this case are,
the definitions of “aggrieved person” and “domestic relationship”
so also “domestic violence”, when complaint is filed by widow
against her in laws. The domestic relationship as defined under the
Act means a relationship between two persons who live or have, at
any point of time, lived together in a shared household, when they
are related by consanguinity, marriage, or through a relationship in
the nature of marriage, adoption or are family members living
together as a joint family. Therefore, the definition is wide enough
and includes family members living together as a joint family.
Whereas, aggrieved person means any woman who is, or has been,
in a domestic relationship with the respondent and who alleges to
have been subjected to any act of domestic violence by the
respondent. The aspect of domestic violence is well explained in
above lines and hence reproduction is avoided.
8.3 In background of above settled legal position, if we peruse
the evidence on record it becomes clear that the complainant wife
can certainly be considered as a family member of the present
petitioner who are brother in law and sister in law of the
complainant. Therefore, relationship would not come to an end only
because of death of her husband and, therefore, she may be
considered as an aggrieved person with reference to relationship.
However, to become entitled to any relief under the Act, what is
material is living together in shared house hold with reference to
marriage or relationship with joint family. Therefore, when
evidence is to the effect that wife was residing with her husband
separately from the present petitioners, then it cannot be said that
wife is residing together in shared household, so as to attract the
provisions of Domestic Violence Act. The basic ingredients of the
Act is domestic relationship and domestic violence. Thereby, there
must be a cogent and reliable evidence that on the date of accruing
of cause of action i.e. the date when domestic violence has taken
place the complainant and accused must be found to be living
together in a shared household. Thereby, if wife or aggrieved
person is living separately from in-laws for long time, then though
their relationship as in-laws i.e. either father-in-law, mother-in-law,
brother-in-law or sister-in-law may not change, but their domestic
relationship certainly changes since they are not living together in
shared household.
8.4 Similarly, though definition of “domestic violence” provided
under Section 3 is very wide in nature, it may be applicable only
and only when “domestic relationship” is proved and not because of
natural relationship between complainant and accused. As already
recorded herein above, in the present case, the fact is some what
different, in as much as, it is undisputed fact that the complainant
is residing separately from her in laws with her husband
immediately after marriage and thereby when she was not living
together in a shared household with present petitioner though they
are her in laws, present petitioners cannot be termed as
respondent with reference to domestic relationship though there is
relationship of in-laws. The definition of respondent as per Section
2(f) makes it clear that the person must be having “domestic
relationship” with aggrieved person and that proviso is permitting
to file complaint against relative of the husband and thereby
though complaint can be filed against in-laws, in my opinion it can
be filed only when they are living together in a shared household
where cause of action arises and not in all other cases when
aggrieved person is not residing with her in-laws when cause of
action arise.
9. In the present case, as per the complaint itself, the cause of
action has arisen between the complainant and present petitioners
only when husband of the petitioner expired because the widow has
claimed for residential accommodation so also maintenance and
compensation from the in laws i.e. present petitioners only after
the death of her husband contending that they have taken away the
possession of the property which is owned by her husband or
wherein there is share of her husband because of succession of
their common predecessor.
10. Therefore, if we peruse an application at exhibit 1 being
Criminal Misc. Application No. 580 of 2013 by the complainant
seeking several reliefs under Sections 17, 18, 19, 20, 22 and 23 of
the Act, it becomes clear that such application is filed on
10.05.2013 wherein she has disclosed that her husband has expired
on 08.03.2013 almost before two months before filing of the
application and she has contended that when she was residing
jointly with the petitioners, her husband has succeeded several
properties in succession and she is claiming partition of such
property in present litigation. Therefore, basically the widow is
seeking portion of the ancestral properties rather than seeking
relief under Domestic Violence Act though there are allegations to
that effect. Therefore, though she may be entitled to several reliefs
of protection under the Act, practically she is not entitled to seek
portion of property disclosed by her in her application in the form
of partition. The learned advocate for the petitioner is relying upon
the decision of the Honourable Supreme Court in case of AIR 2007
SC 118 between S. R. Batra vs. Tarun Batra, wherein the
Honourable Supreme Court has observed and held that the rights
available to wife under any law can only be as against husband and
not against father in law and mother in law i.e. in laws and,
therefore, if property are held by in-laws, the wife cannot claim any
right to live in the said house under the provisions of the Act.
However, same judgment also confirms that at the most wife is
entitled to claim a right to residence in shared house hold which is
belonging to or taken on rent by the husband or which belongs to
joint family to which husband is a member but such right cannot be
claimed in exclusive property of in-laws.
11. In view of above facts and circumstances, if we peruse the
impugned orders, it becomes clear the trial Court has rightly
refused to grant any relief under the Act while rejecting the
application. The appellate Court has while allowing the appeal
partly issued several directions, some of which are without
jurisdiction viz. Para 4 of the operative order, whereby possession
of the shop is ordered to be handed over to the widow and para 5 of
the impugned order directing the Police Sub Inspector, Mahuva
Police Station to help the widow in getting back the possession. It
is also undisputed fact that parties have raised their dispute in civil
litigation being Special Civil Suit No. 139 of 2014 and, therefore,
by impugned judgment, the Sessions Court has observed that the
impugned order would not disturb the civil rights of the parties.
12. Therefore, so far as possession and ownership of shop in
question is concerned for which there is direction in para 4 of the
impugned judgment it may be subject matter of the civil dispute
that whether widow is entitled to possession of the property or not
because she is entitled to residential accommodation in shared
house hold pursuant to provisions of the Act, but the Act does not
permit the Court to decide the rights and possession of the
properties. Thereby, though direction in para 3 of the operative
order is to be confirmed, the impugned order needs to be quashed
and set aside so far direction Nos. 4 and 5 of impugned order is
concerned.
13. It is undisputed fact that there are issues regarding
ownership, possession and succession of some of the properties
which are under reference in this litigation. However, when civil
litigation is pending between the parties and when it has been held
by this judgment that such properties cannot be subject matter of
the Act, more particularly with direction to take away possession
from the in laws in favour of the widow, it would be improper to
disclose the details of all such properties and its rights of either
party, since it would unnecessarily prejudice civil Court.
14. In view of above facts, circumstances and discussion the
revision application is partly allowed. Whereby impugned order is
modified so far as direction Nos. 4 and 5 of impugned order is
concerned, which is hereby quashed and set aside. However, other
directions of the same order are hereby confirmed. Revision
application is partly allowed to the aforesaid extent. Rule is made
absolute accordingly.
(S.G.SHAH, J.)
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