Criminal Writ Petition No.79 of 2013

11th April, 2014.

Petitioner Counsel: Mr. DEVIDAS J. PANGAM
Respondent Counsel: Ms. PREMA MATKAR

Cases Cited:
S. R. Batra & Anr. Vs. Smt. Taruna Batra, 2007 ALL MR (Cri) 3589 (S.C.)=AIR 2007 SC 1118 [Para 11,23,24]
Raj Kumari Vs. Preeti Satija & Anr., I. A. No. 500/2011, CS(OS). 85/2010, Dt.13/01/2012 [Para 11,24]
Mangala Bhivaji Lad Vs. Dhondiba Rambhau Aher, 2010(4) ALL MR 716=2010 (3) Bom. L.R. 827 [Para 12,20]
D. Velusamy Vs. D. Patchaiammal, 2010 ALL SCR 2639=(2010) 10 SCC 469 : AIR 2011 SC 479 [Para 12,13,21]
Shri Y. Kunjappan Vs. Chitralekha Tarachand Anandi, 2011 ALL MR (Cri) 3212 [Para 12,19]
Madan Mohan Singh & Ors. Vs. Rajni Kant & Anr., 2010 ALL MR (Cri) 3245 (S.C.)=AIR 2010 SC 2933 [Para 12,20]
Indra Sarma Vs. V. K. V. Sarma, 2014 ALL MR (Cri) 319 (S.C.)=Cri. Appeal No.2009/2013, Dt.26/11/2013 [Para 13]
Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad, 2013 ALL MR (Cri) 1099 (S.C.)=2013 Cri. L. J. 684 [Para 13]
S. Khushbhoo Vs. Kanniammal & Anr., 2010 ALL SCR 1475=(2010) 5 SCC 600 [Para 20]
S. P. S. Balasubramanyam Vs. Suruttayan @ Andali Padayachi & Ors., AIR 1992 SC 756 [Para 20]

JUDGMENT

JUDGMENT :- Heard Mr. Pangam, learned Counsel appearing on behalf of the petitioner and Ms. Matkar, learned Counsel appearing on behalf of the respondent.

2. Rule. By consent, Rule made returnable and heard forthwith.

3. By this petition, the petitioner has taken exception to the order dated 27.02.2013 passed by the learned Assistant Sessions Judge, Panaji ("Appellate Court" for short) in Criminal Appeal No. 29 of 2012 and the judgment and order dated 16.01.2012 passed by the learned Judicial Magistrate, First Class, (B-Court), Ponda ("Trial Magistrate" for short) in Criminal Case No. 59/AOA/DVA/2011/B.

4. The petitioner is the opponent whereas the respondent is the applicant in the said Criminal Case No. 59/AOA/DVA/2011/B. The parties shall, hereinafter, be referred to as per their status in the said Criminal Case.

5. An application has been filed by the applicant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ("the Act" for short), before the Trial Magistrate for various reliefs under the Act. The said application has been registered as Criminal Case No. 59/AOA/DVA/2011/B. In the said application, the applicant also prayed for interim reliefs. The respondent filed a reply before the Trial Magistrate. The applicant filed an affidavit-in-rejoinder to which an affidavitin- sur-Rejoinder was filed by the respondent. The applicant then filed affidavit-in-sur-sur-rejoinder.

6. In this petition also the applicant has filed her affidavit-in-reply and an additional affidavit-in-reply to which the opponent has filed affidavit-in-rejoinder.

7. The applicant claims that the opponent is her husband and that their shared household is a flat bearing No. D-FOX-2, Dr. Almeida Complex, Ponda, presently occupied by her. According to the applicant, the opponent threw out her articles and assaulted her after about two months from the date of their marriage. She alleges that the opponent has not been providing money for her maintenance and for the maintenance of her two children who are staying with her. She claims that she and her children have not been provided with clothes, food, medicines etc., by the opponent. She further alleges that the opponent disposed of all her Stridhan and did not pay the bills of electricity, etc. She also claims that the opponent forced her to leave her shared household and prevented her from accessing a part of the house. She claims that the opponent demanded for dowry, after earlier demand had been satisfied and also advertised about his marriage on the internet.

8. The opponent, in short, claims as under:

The relationship of the opponent with the applicant is not of "Husband". The applicant is associated with the opponent on "living together relationship" basis. It is false that he assaulted the applicant or insulted her, etc. The opponent has duly provided proper maintenance amount, food, clothes, medicines etc. to the applicant and her two children, from time to time. The opponent never forced the applicant to leave the house where she has been living. The flat in which the applicant is presently residing is of his son by name Nandlal Shet and that the opponent is forced to stay outside the flat by the applicant and her family members. The applicant was in possession of all her ornaments when the opponent was forced to leave the flat. The applicant was causing harassment to him. There was no demand of dowry. If the applicant does not wish to continue with the relationship, it would be convenient to apply for divorce and get separated.

9. After considering the entire material on record, the learned Trial Magistrate, by order dated 16.01.2012, held that prima facie it was shown that the applicant and the opponent are in domestic relationship with each other and that the applicant has been subjected to domestic violence by the opponent. The Trial Magistrate, prima facie, held that the flat bearing no. D-Fox-2, Dr. Almeida Complex, Ponda-Goa is the shared household. The opponent has been restrained from dispossessing or in any other manner disturbing the possession of the applicant from the shared household and he has been directed to pay a sum of Rs.5,000/- per month to the applicant and a sum of Rs.1,000/- each per month to the applicant's daughter, Anjali and the son, Amit as maintenance allowance, until the disposal of the application under Section 12 of the Act. The Magistrate ordered that total amount payable by the opponent is Rs.7,000/- per month which shall be paid on or before the 5th day of the month to which it relates. The opponent has been further restrained from communicating with the applicant or her family members by sending offensive messages, until the disposal of the said application.

10. Aggrieved by the said order dated 16.01.2012 passed by the Trial Magistrate, the opponent filed Criminal Appeal No. 29 of 2012 before the learned Sessions Judge, North Goa, Panaji. By the impugned judgment and order dated 27.02.2013, the learned Appellate Court dismissed the said appeal. Being aggrieved, the opponent has challenged the order of the Trial Magistrate dated 16.1.2012 and the order dated 27.2.2013 of the Appellate Court, in the present writ petition.

11. Mr. Pangam, learned Counsel appearing on behalf of the opponent, submitted that the flat which is called as the shared household by the Trial Magistrate actually belongs to Nandlal Shet, son of the opponent. He submitted that the applicant, in her cross examination, has clearly admitted that the said flat belongs to Nandlal Shet. Relying upon the judgment of the Hon'ble Apex Court in the case of "S. R. Batra & Another Vs. Smt. Taruna Batra" (AIR 2007 SC 1118) : [2007 ALL MR (Cri) 3589 (S.C.)], and the Judgment dated 13/01/2012 of the Delhi High Court (Coram: Manmohan Singh, J) in I. A. No. 500/2011 in CS(OS) No. 85/2010 ("Raj Kumari Vs. Preeti Satija & another"), the Counsel argued that the said flat is the exclusive property of the son of the opponent by name Nandlal Shet and does not fall within the definition of 'shared household' and hence it could not have been held to be the shared household and no relief could have been granted to the applicant in respect of the said flat.

12. My attention was invited, by the learned Counsel appearing on behalf of the opponent, to the certificate of marriage which is dated 08.09.2010. The learned Counsel showed that the certificate has been issued by one Santi Prasad Chakrabarti. He then took me to the letter dated 22.11.2011 written by Registrar General of Marriages, West Bengal, wherein it has been specifically stated that said Santi Prasad Chakrabarti retired on 15.06.2007 and the marriage certificate was issued on 08.09.2010 after retirement of the Marriage Officer, which is illegal and unauthorised. The learned Counsel therefore, urged that the statement regarding marriage of the applicant with the opponent is a falsity. He contended that the opponent has his wife living and has his son by name Nandlal Shet. Therefore, he urged that there was no marriage between the applicant and the opponent. Since the marriage of the opponent is subsisting, according to the learned Counsel, there cannot be a relationship in the nature of marriage between the opponent and the applicant. Counsel urged that even if for the time being it is presumed that the applicant is married to the opponent, then also, the parties are governed by Hindu Marriage Act and hence a Hindu woman married after coming into force of the Hindu Marriage Act, to a Hindu male having a legally wedded wife, is not a legally wedded wife and cannot claim maintenance from that Hindu male. In this regard, he relied upon the Judgment of the learned Single Judge of this Court in the case of "Mangala Bhivaji Lad Vs. Dhondiba Rambhau Aher", [(2010 (3) Bom. L.R. 827] : [2010(4) ALL MR 716]. The learned Counsel relied upon the judgment of the Hon'ble Apex Court in the case of "D. Velusamy Vs. D. Patchaiammal" (AIR 2011 SC 479) : [2010 ALL SCR 2639] and submitted that the test laid down by the Apex Court in the case supra has not at all been satisfied and there was no "live in relationship" of the opponent with the applicant. Insofar as photographs of the marriage produced by the applicant are concerned, learned Counsel submitted that such photographs cannot prove marriage. He relied upon the judgment of a learned Single Judge of this Court in the case of "Shri Y. Kunjappan Vs. Chitralekha Tarachand Anandi" (2011 ALL MR (Cri) 3212) alleging that photographs cannot be relied upon. He urged that the parties lived together hardly for about 4 to 5 months and hence the relationship was only "living together relationship". He also relied upon the judgment of the Hon'ble Apex Court in the case of "Madan Mohan Singh & Others Vs. Rajni Kant & Another" (AIR 2010 SC 2933) : [2010 ALL MR (Cri) 3245 (S.C.)]. He therefore, urged that there was no relationship of marriage between the applicant and the opponent and also there was no relationship in the nature of marriage between them and therefore the applicant is not entitled to any interim reliefs under the Act. Insofar as the children, who are admittedly not of the opponent, are concerned, he pointed out that, admittedly, both the said children of the applicant are above 18 years of age. He submitted that Section 20 of the Act prescribes for granting of monetary relief to the aggrieved person or any child of the aggrieved person. He submitted that child is defined under Section 2(b) of the Act to mean any person below the age of 18 years and includes any adopted, step or foster child. He, therefore, submitted that both the children of the applicant having completed the age of 18 years are not entitled for any monetary benefit under the Act. Learned Counsel, thus, urged that the impugned orders are perverse and arbitrary and required to be quashed and set aside.

13. On the contrary, Ms. Matkar, learned Counsel appearing on behalf of the applicant, invited my attention to the reply filed by the opponent, before the Trial Magistrate. She pointed out that the opponent has admitted "living together relationship" with the applicant. She further pointed out that the opponent has admitted the address of the said flat at Ponda to be the permanent address of the applicant and the opponent. Learned Counsel pointed out that in the reply, the opponent has spoken about Stridhan of the applicant and about necessity to take divorce etc. She further showed that insofar as the flat is concerned, in the reply, the opponent has mentioned that the same is his own flat. She further submitted that opponent has stated in the reply that presently he has been staying all alone. The learned Counsel produced before this Court a copy of the Deed of Divorce by mutual consent which reveals that such a deed has been executed between the opponent and his first wife, Mrs. Kalawati Rajendra Seth on 18.07.2007. Counsel, therefore, submitted that marriage of the opponent with his first wife is not subsisting. She also pointed out from the reply that the opponent had given an amount of Rs.97,000/- to the brother of the applicant and also deposited an amount of Rs.1,00,000/- in the account of the applicant. She showed from the same reply of the opponent that the applicant used to withdraw the money from the account of the opponent. She also pointed out that the opponent has mentioned about mangalsutra of the applicant. She submitted that all the above material statements of the opponent, made on oath, prima facie, prove that applicant is the wife of the opponent. Insofar as the marriage certificate is concerned, the learned Counsel submitted that the marriage certificate was issued on 08.09.2010 through the Marriage Officer, but, marriage was performed prior to that. She, therefore, submitted that there is nothing wrong in the marriage certificate, which is neither canceled nor declared as null and void. According to her, the applicant, in her cross examination, has admitted that the said flat belongs to Nandlal Shet because the flat was subsequently transferred in the name of Nandlal Shet. She submitted that if really the said flat belonged to Nandlal, it was for Nandlal to take appropriate action for eviction of the applicant from the said flat. Learned Counsel further submitted that once it is established prima facie that the applicant is the wife of the opponent or is having a relationship in the nature of the marriage with him, the opponent was supposed to provide her residence and if the said flat belongs to the son of the opponent, it is he who will have to make alternate arrangement of her stay. She pointed out the circumstances in which the applicant and opponent met for the first time. The learned Counsel appearing on behalf of the applicant invited my attention to the letter dated 20.07.2011 wherein the respondent has stated that he gave Rs.15,000/- to get a fake marriage certificate prepared. The learned Counsel pointed out that no where the opponent, before the Trial Magistrate and even in the present petition, has stated about his subsisting marriage but after two years, in the affidavit-in-rejoinder, he stated that he is staying with the wife of his first marriage. She contended that conditions mentioned in paragraph 31 of the judgment relied upon by the learned counsel for the opponent, reported in [(2010) 10 SCC 469] : [2010 ALL SCR 2639] covers the applicant. Counsel relied upon the Judgment dated 26/11/2013 : [2014 ALL MR (Cri) 319 (S.C.)], of the Hon'ble Supreme Court, in Criminal Appeal No. 2009 of 2013 (Indra Sarma Vs. V. K. V. Sarma). The learned counsel also relied upon the judgment of the Supreme Court in the case of "Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad", (2013 Cri. L. J. 684) : [2013 ALL MR (Cri) 1099 (S.C.)]. Learned Counsel invited my attention to Section 2(f) of the Act wherein the meaning of domestic relationship has been mentioned. She submitted that children of the applicant have been staying with her in domestic relationship and therefore they are entitled to the relief of maintenance. Counsel submitted that there is prima facie evidence to establish that the applicant has been subjected to domestic violence by the opponent. Learned Counsel therefore urged that there is no merit in the petition and the same be dismissed with costs.

14. I have carefully gone through the material on record and have considered the submissions advanced by both the parties. I have also gone through the judgments relied upon the learned Counsel for the parties.

15. The interim reliefs appear to have been granted to the applicant by the Trial magistrate under Section 20 of the Act. Hence it would be advantageous to know what it says. Section 20 of the Act provides as under:

"20. Monetary reliefs - (1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to, -

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to any order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent."

16. Thus monetary reliefs, pending the main application under Section 12 of the Act can be granted to an aggrieved person or to the children of the aggrieved person. Section 2(a) of the Act lays down that "Aggrieved Person" means any women 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. Section 2(b) of the Act lays down that a "child" means any person below the age of eighteen years and includes any adopted, step or foster child. Therefore, we must know what is the meaning of domestic relationship and domestic violence. Section 2(f) of the Act defines "Domestic Relationship", to mean 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. Section 2(s) of the Act defines "shared household" to mean a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by ether of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. "Respondent" is defined in Section 2(q) of the Act to mean any adult male person 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. Section 3 of the Act defines "domestic violence" as under:-

3. Definition of domestic violence.- For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-

(a) 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; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

17. As has been rightly pointed out by the learned Counsel appearing on behalf of the applicant, the opponent in his reply on oath filed before the Trial Magistrate has specifically admitted several facts. He has stated that the applicant is associated with him on "living together relationship" basis. He has also admitted that the flat at Ponda which is presently occupied by the applicant was the last known permanent address of the opponent as well as the applicant. The opponent has specifically stated that he has been always providing money for maintenance, food, clothes, medicines etc. to the applicant and also her two children from time to time and has never forced the applicant to get out of the said shared household in which she has been living. The opponent has further stated in the reply about the Stridhan of the applicant and that the applicant was in possession of all the ornaments at the time when he was forced to leave the flat. In the reply, the opponent has spoken about depositing an amount of Rs.25,000/- in the Account of Anjali Jha, daughter of the applicant, and handing over of Rs.14,000/- in cash and handing over of gold ornaments which were worth about Rs.10,00,000/- to Rs.15,00,000/-, to the applicant. The opponent further stated in the reply that he deposited on 13.08.2010 an amount of Rs.97,000/- in the account of the brother of the applicant and an amount of Rs.1,00,000/- in the account of the applicant. He alleged that there was no demand of dowry from the opponent or his family members. The opponent has further stated in the reply that applicant on 09.05.2011 withdrew from the ATM card of the opponent of Federal Bank Ltd., S. B. Account No. 159501100013696, an amount of Rs.5,500/- and Rs.400/- which card was kept with the applicant for her convenience. In paragraph 21 of his reply, the opponent has stated that if the applicant is not ready to continue with the relationship, it would be convenient to apply for divorce and get separated. In paragraph 23 of the said reply, the opponent has stated that he had handed over to the applicant various ornaments, including mangalsutra. The above facts, as stated on oath by the opponent in his reply, prima facie, go to show that the relationship between the applicant and the respondent is of husband and wife or at least in the nature of marriage.

18. Insofar as the certificate of marriage is concerned, it is true that the same is dated 08.09.2010 and is issued by one Marriage Officer by name Santi Prasad Chakrabarti. However, the letter dated 22.11.2011 sent by the Registrar General of Marriages, West Bengal, reveals that said Santi Prasad Chakrabarti, Marriage Officer, had already retired on 15.06.2007 and the said certificate was issued on 08.09.2010, which was issued after the retirement of the Marriage Officer, and therefore, illegal and not authorised. The submission of the learned Counsel appearing on behalf of the applicant that the certificate was issued on 08.09.2010 but the marriage was performed prior to that, prima facie, does not appear to be true because in the said certificate it is specifically stated that marriage was solemnized on 08.09.2010. Be that as it may, merely because the applicant cannot prove the genuineness of the marriage certificate, that would not mean prima facie that the applicant has failed to prove the marriage or the relationship in the nature of marriage. A letter dated 28.07.2011 produced on record reveals that the opponent had given Rs.15,000/- to the father of the applicant to procure the said fabricated document. Thus, prima facie, it appears that the said certificate was procured with the connivance of the opponent. There is an affidavit dated 25/10/2010 of the opponent wherein he has stated that he has married the applicant. No doubt the opponent has disputed this affidavit as having been signed or sworn by him. But as has been rightly held by the Trial magistrate, the same has to be given its face value and the question whether the said affidavit is fabricated or not can be decided upon merits after trial.

19. The photographs produced on record by the applicant show that the applicant and the opponent are in marital attire and with garlands. The judgment of the learned Single Judge of this Court in the case of "Shri Y. Kunjappan" (supra), relied upon by the learned Counsel for the opponent, is not applicable to the facts and circumstances of this case. In that case, there was an issue whether the petitioner and respondent were married in accordance with Hindu Marriage Law. The provisions of Hindu Marriage Act could be invoke only when the parties to the marriage were Hindus. The respondent no. 1 was Hindu but the petitioner was a Christian. The marriage was not performed under the Special Marriage Act. It was, thus, not a legal and valid marriage. It was in this background that the learned Single Judge held that the photographs displaying the parties garlanding each other after such garlanding, standing in the company of the relation of the petitioner and other joint photographs and even the registration of the event of marriage did not validate the marriage. In the present case, there are also various letters on record which go to throw light on the relationship of the applicant with the respondent.

20. In the case of "Mangala Bhivaji Lad', [2010(4) ALL MR 716] (supra), the appellant was not a legally wedded wife of the respondent and the question was whether a Hindu woman who is married after coming into force of the Hindu Marriage Act, 1955 to a Hindu male having a legally wedded wife had right to claim maintenance. it has been held that the expression "Hindu wife" used in Section 18 of the Hindu Adoption and Maintenance Act, means legally wedded Hindu wife and no less and the appellant not being the legally wedded wife of the respondent cannot resort to Section 18 of the Hindu Adoption and Maintenance Act to claim maintenance. In the present case reliefs are not claimed under the Hindu Adoption and Maintenance Act. Be that as it may, prima facie, the opponent has not been able to establish that his first marriage is still subsisting. In his reply, filed before the Trial Magistrate, the opponent did not state so. In that reply, on the contrary, the opponent stated that he has been leaving all alone. In the present petition also, no where, the opponent stated that his marriage with first wife is still subsisting. Only in the affidavit-in- rejoinder, for the first time, filed before this Court, the opponent alleged that his marriage with first wife still subsists. But, the learned Counsel for the applicant has produced before this Court a copy of the Deed of Divorce by mutual consent, dated 18/07/2007, which shows that the opponent and his wife Kalawati have agreed not to be known as husband and wife and shall be free from marital bondage of each other. The Judgment of the learned Single Judge of this Court in the case of "Mangala Bhivaji Lad', [2010(4) ALL MR 716](supra) is not applicable to the present case. In the case of "Madan Mohan Singh and others", [2010 ALL MR (Cri) 3245 (S.C.)] (supra), reference has been made to the case of "S. Khushbhoo Vs. Kanniammal" and another" [(2010) 5 SCC 600] : [2010 ALL SCR 1475], wherein it was held that live-in-relationship is permissible only in unmarried major persons of heterogeneous sex. Further reference is made to the case of "S. P. S. Balasubramanyam Vs. Suruttayan @ Andali Padayachi & others" (AIR 1992 SC 756), wherein it was held that when a man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act, that they live as husband and wife and the children born to them will not be illegitimate. It has been held that the Courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years. No doubt, in the present case the applicant and the opponent lived together only for a period of about 5 months. However, in view of the provisions of the Act, the reply filed by the opponent before the Trial Court, and the Deed of Divorce by mutual consent, signed by the opponent and his first wife, namely Kalawati, it can be prima facie said that there was domestic relationship between the applicant and the opponent.

21. I have gone through the judgment of the Hon'ble Apex Court in the case of "D. Velusamy", [2010 ALL SCR 2639] (supra). The learned Appellate Court has quoted some portion of the judgment in the case supra, showing the conditions to be fulfilled for showing the relationship in the nature of the marriage. In my view, as has been rightly held by the Appellate Court, the said judgment does not come to the aid of the opponent. In view of the above, as rightly held by both the Courts below, the applicant has been able to prove prima facie that she and opponent have been in relationship of the husband and wife and if not, they are in the relationship in the nature of the marriage. Both the Courts below have rightly held that the applicant has prima facie established that they were in domestic relationship as envisaged under the Act. In the circumstances above, the applicant is certainly entitled to interim reliefs, available under Section 20 of the Act, from the opponent, pending the final disposal of the application under Section 12 of the Act.

22. In the reply filed by the opponent, he has admitted that he has business. Even otherwise the respondent is able-bodied person and it would not be difficult to spend Rs.5,000/- towards maintenance of the applicant till the final disposal of the application under Section 12 of the Act. According to him, he has provided proper maintenance amount, food, clothes, medicine, etc., to the applicant ans also to her two children from time to time. Grant of maintenance amount of Rs.5,000/- per month to the applicant, pending the final disposal of the application under section 12 of the Act is just and reasonable.

23. In the case of "S. R. Batra", [2007 ALL MR (Cri) 3589 (S.C.)] (supra), the Hon'ble Apex Court has held thus:

"As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant no. 2, mother of Amit Batra. Hence it cannot be called a 'shared household'.

No doubt, the definition of 'shared household' in Section 2(s) 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."

24. Similar view, relying upon the case of "S. R. Batra", [2007 ALL MR (Cri) 3589 (S.C.)] (supra), has been taken by the Delhi High Court in the case of "Raj Kumari" (supra).

25. Though the opponent has stated that the said flat at Ponda belongs to his son, however, no document of whatsoever nature establishing the ownership of the son over the said flat has been produced on record. It is true that the applicant in her cross examination has admitted that the said flat belonged to the son of the opponent. However, she has explained that she did so as the name plate of the son of the opponent was on the door of the said flat and subsequently, she came to know that the said flat was transferred in the name of the said son. The reply filed by the opponent, prima facie, establishes that the said flat was of the opponent himself. The evidence on record further reveals that the opponent was in occupation of the said flat in Ponda though it was registered in the name of his son, Nandlal Shet. In the reply, the opponent himself said that the said flat is the permanent address of the applicant and the opponent. The learned Appellate Court has rightly observed that the opponent had brought the applicant and her children to the said flat and he did not force her to leave the same and if the applicant should vacate the said flat, it is the son of the said opponent who will have to take recourse. Admittedly, the son of the opponent has filed a suit for eviction against the applicant and the opponent. That suit will take it own course. As has been rightly held by the appellate Court, the Trial Magistrate was justified in restraining the opponent from dispossessing or in any other manner disturbing the possession of the applicant from the said flat.

26. Insofar as the children are concerned, both of them have completed 18 years of age. Section 20 of the Act provides for granting of maintenance to the aggrieved persons and any child of the aggrieved person. As per section 2(b) "Child" means any person below the age of 18 years. Thus, the applicant cannot become entitled to maintenance, on behalf of her children, who are admittedly above 18 years of age. Therefore, prima facie, I am of the view that part of the impugned order granting maintenance of Rs.1000/- each to the children of the applicant, is not sustainable and bound to be set aside.

27. In view of the discussion supra, I hold that the part of the order insofar as grant of monetary relief of Rs.1,000/- per month, each to the children of the applicant is concerned, is liable to be quashed and set aside. However, insofar as the grant of maintenance of Rs.5,000/- per month to the applicant, till the final disposal of the application under Section 12 of the Act, is concerned, is based of the settled principle of law and no interference with the same is called for. Similarly, with regard to the relief of residence, also, no interference is called for.

28. In the result, the petition is partly allowed. The impugned order insofar as maintenance of Rs.1,000/- per month to each of the children of the applicant, is concerned, is quashed and set aside. Rest of the order regarding monetary relief to the applicant and regarding the residence, is maintained. The observations made above are only prima face in nature and the learned Trial Magistrate shall not be influenced by the same while finally disposing of the application under section 12 of the Act.

29. Rule is made absolute in the aforesaid terms. Petition stands disposed of accordingly with no order as to costs.

Ordered accordingly.