Criminal Writ Petition No.3013 of 2018

14th August, 2018.

Petitioner Counsel: Mr. ROHIT DHIKALE
Respondent Counsel: Mr. A.R. PATIL, Mr. BURHAN BUKHARI i/b. FAUZIA BUKHARI

Cases Cited:
Madhusudan Bhardwaj Vs. Mamta, Bhardwaj [Para 7,11]
Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr., 2011(5) ALL MR 951 (S.C.)=(2011) 9 SCC 541 [Para 9,11]
Ishpal Singh Kahai Vs. Mrs. Ramanjeet Kahai, 2011(3) ALL MR 353=2011(3) Mh.L.J. 849 [Para 9]
Roma Rajesh Tiwari Vs. Rajesh Dinanath Tiwari, 2018(7) ALL MR 467=W.P. No.10696/2017, Dt.12.12.2017 [Para 9]

JUDGMENT

JUDGMENT :- The petitioner has taken exception to order dated 14th June, 2018, passed by the Additional Sessions Judge-2, Vasai in PWDVA Appeal No.18 of 2018.

2. Respondent No.2 is the wife of petitioner. They were married on 27th October, 1992, as per Muslim Rites and ceremonies at Fatehpur Shekhawati, Rajasthan. Out of the said wedlock, three children were begotten. Due to differences between the parties, respondent no.2 filed complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "The DV Act", for short).

3. According to the petitioner, after the marriage, the petitioner and respondent no.2 were residing on the ground floor of Kazi House. Thereafter, respondent no.2 started filing complaints with local police station alleging that the petitioner is harassing her. Various complaints were registered with the said police station. Respondent no.2 also arrayed the other family members in the application under the DV Act. Petitioner filed application before the trial Court seeking permission to stay on the ground floor of Kazi House where he used to stay along with respondent no.2. Trial Court allowed the said application by order dated 23rd November, 2015. By virtue of the said order, the petitioner was allowed to stay in the half portion of the house in the eastern side along with his son. He was also directed to execute bond of Rs.15,000/-, for his good conduct.

4. Respondent no.2 preferred Appeal before the Sessions Court, which was allowed and the application preferred by the petitioner before the trial Court was rejected. The impugned order dated 23rd November, 2015, below Exhibit-29 was set aside and the parties were directed to proceed further expeditiously.

5. While allowing the application preferred by the petitioner, the trial Court had observed that both the parties have filed complaints against each other and offences are registered under the Penal Code. The petitioner is residing at the subject premises along with his son and respondent no.2 is residing therein with two children, separately. The petitioner prayed that half portion occupied by his wife and two children be allowed to be used and occupied by the petitioner and his son. Learned Magistrate observed that the petitioner has been restrained from causing harassment to respondent no.2 and he contended that he do not have any house to stay along with his son. Petitioner had paid an amount of Rs.30,000/-, till date towards maintenance amount. The premises stands in the name of father of the petitioner wherein petitioner and respondent no.2 were permitted to reside. The Court proceeded to conclude that looking into the scenario and considering the fact that the petitioner has no alternate accommodation, he can be permitted to occupy half portion of the premises which is used and occupied by respondent no.2. She was directed to allow half portion of the premises used by her to be occupied by the petitioner and son. It was further stated that till the next date of hearing, both the parties shall not indulge in any objectionable incident or objectionable act and in in the event, any such act is committed by the parties, action will be initiated against such person. The Sessions Court, however, set aside the order of the learned Magistrate primarily on the ground that petitioner and respondent no.2 have been residing separately since long. Respondent no.2 resides at the ground floor while her in laws and the petitioner are residing on the upper floor of the building. All of sudden, the petitioner moved an application for allowing such relief of residence with an intended harassment. The Court also noted that sufficient accommodation is available to the petitioner and he is not entitled for relief as prayed. It was also observed that the trial Court has not disclosed any specific statutory provisions while passing such order. The Court made reference to Sections 19 and 23 of the DV Act and observed that there is no scope under the provision of the said Act for preferring such an application. For the said reasons, the Appeal was allowed by setting aside the order of the trial Court.

6. In pursuant to order dated 23rd November, 2015, respondent no.2 had requested the trial Court to stay the execution of the said order for sufficient period for challenging the order in the Higher Court. The said application was preferred on 23rd November, 2015, on the day when the application preferred by the petitioner was allowed. The trial Court passed order "other side to file say". The advocate representing the petitioner requested that time may be granted for filing say. Court granted time to the petitioner to file say till 26th November, 2015. The application for grant of stay preferred by respondent no.2, was rejected.

7. Learned counsel for the petitioner submitted that there was no reason to interfere in the order passed by the trial Court. The Sessions Court has erred in setting aside the order of the trial Court. It is submitted that trial Court had observed that in the event any party is involved in objectionable act, appropriate action will be initiated against them. It is submitted that the petitioner has been paying maintenance to the wife and children. After marriage, the petitioner and respondent no.2 were residing on the ground floor of Kazi House. Thereafter, the respondent no.2 filed several complaints with local police station against the petitioner. She also implicated other family members in the complaint. In the circumstances, petitioner preferred application before the Joint Judicial Magistrate First Class at Vasai, seeking permission to stay on the ground floor of Kazi House, where she used to reside along with petitioner. By virtue of order dated 23rd November, 2015, the petitioner was allowed to say in half portion of the house in the eastern side along with his son. It is submitted that as per provisions of Section 28(2) of the DV Act, the Court can lay down its own procedure for disposal of an application under Section 12 or Sub-section (2) of Section 23 of the said Act. There is nothing in the Act or the Rules which prevents Magistrate to take cognizance of the application preferred by petitioner. Hence, the application preferred by the petitioner was maintainable. It is submitted that in pursuant to order dated 23rd November, 2015, the petitioner has been occupying small portion of 150 square feet by wooden partition along with his minor son. Respondents have occupied 450 square feet area. There is no counter complaint from either side. The premises belongs to the father of the petitioner. On the first and second floor, the other family members are residing. Ground floor premises is only premises available to the petitioner. Learned advocate relied upon decision of Madhya Pradesh High Court in the case of Madhusudan Bhardwaj Vs. Mamta Bhardwaj (Supra).

8. Per contra, learned advocate for respondent no.2 submitted that the application preferred by the petitioner before the trial Court was not maintainable in law. The order dated 23rd November, 2015, was without jurisdiction. There is no provisions under the DV Act to entertain such an application. Respondent no.2 had initiated proceedings under Section 12 of the DV Act. Court had proceeded to pass order of maintenance and residence. The application preferred by the petitioner ought not to have been entertained by the trial Court. The object of DV Act is protection of women from violence inflicted by men or women. The Act is to provide for more effective provision to protect of the rights of women guaranteed under the the Constitution of India, who are victims of violence of any crimes occurring within the family and the matters connected therewith or incident thereto. It is a beneficial and welfare legislation for protecting the right of women. The act contemplates residential orders be granted in favour of the aggrieved person. The petitioner did not point out the provisions under such application was preferred and the trial Court has also not assigned any reason as to under what provisions the application is maintainable. The Sessions Court has rightly held that such an application cannot be entertained. The learned counsel pointed out several provisions of the Act and contended that law does not prescribe such an application.

9. Reliance is placed on the following decisions:

(i) Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr., (2011) 9 SCC 541 : [2011(5) ALL MR 951 (S.C.)];

(ii) Ishpal Singh Kahai Vs. Mrs.Ramanjeet Kahai, 2011(3) Mh.L.J. 849 : [2011(3) ALL MR 353];

(iii) Roma Rajesh Tiwari Vs. Rajesh Dinanath Tiwari, Writ Petition No.10696 of 2017 : [2018(7) ALL MR 467] decided on 12.12.2017

10. Respondent no.2 filed application under Section 12 of the DV Act wherein incidents of alleged violence were referred to. She also preferred application under Section 23 of the DV Act for interim relief. Learned Magistrate by order dated 12th October, 2015, granted interim relief to respondent no.2 by directing petitioner to pay interim maintenance to respondent no.2 in the sum of Rs.5,000/-, per month and also directed to pay interim maintenance to Naziya and Ahasan each per month till final disposal of main matter. It was also recorded that respondent no.2 is residing separately from opponents being legally wedded wife of opponent No.1 (Petitioner). It was further directed that opponents, their agents, representatives, servants, assignees were restrained from dispossessing, alienating, parting, creating any third party rights over flat premises ground floor, Kazi House, behind Gauriya Masjid, Koliwada, Vasai. The petitioner, therefore, preferred cryptic application on 21st November, 2015 praying that he may be allowed to stay on ground floor by making partition.

11. Respondent no.2 had filed reply before the trial Court to the Miscellaneous Application preferred by petitioner. In the reply, it was stated that the application filed by the husband is not maintainable in law as interim order is already passed in the application filed by respondent no.2 and the husband is seeking review of the said order, which is not permissible in law. It was also pointed out that in the Criminal Application No.455 of 2015, filed in the High Court, the petitioner had stated that he is staying on upper floor of Kazi House. Thus, the contentions of the petitioner that he was staying on the ground floor is incorrect. Respondent no.2 and her two children were staying on the ground floor, which comprises of small bed room, kitchen and hall. It was also pointed out that no portion can be made which would cause serious prejudice and danger to the life of respondent no.2. It was also submitted that on the first and second floor, there are four bed rooms, two halls attached with bathroom. It was also stated that the petitioner and others have physically assaulted and tortured petitioner no.2 on various occasion and she has lodged complaints to the police. She is under constant fear of life. The children were always under fear of harm being caused to them. Petitioner had abused and assaulted her on many occasions. It was also contended that the petitioner and others along with 17 people attacked respondent no.2 and her brothers and also police. Respondent no.2 and her brothers were assaulted by iron rod and bottles, which resulted in injury to her brothers. They pelted stones and bottles at the police and respondent no.2. FIR was lodged at the instance of police against the petitioner and others vide CR No.I-90 of 2015, under Sections 353 and 332 of IPC. Respondent No.2 has also lodged several complaints with the police. FIR was lodged by Respondent No.2 on 27th June, 2015, against the assailants with Vasai Police Station under Sections 376, 141, 143, 147, 149, 504, 506 and 427 of IPC. Respondent No.2 has, therefore, brought on record various incidences, which amounts to domestic violence. The application preferred by the petitioner was allowed by the learned Magistrate, although, interim order was passed by the said Court in favour of respondent no.2. The order was indeed in the nature of review and without stating the provisions under which the said order was passed. The main object of DV Act is to protect women from violence inflicted by man and woman. The petitioner could not point out any provisions under which such an application can be preferred. Except stating that the trial Court can take recourse to Section 28 of the DV Act, t he petitioner could not satisfy as to the provisions under which the application was preferred. The provisions contemplated under the DV Act does not provide any ground for preferring any such application. Learned counsel for respondent no.2 had relied upon the decision in the case of Rajeev Hitendra Pathak & Ors. [2011(5) ALL MR 951 (S.C.)] (Supra). Whereas, the advocate for the petitioner had relied upon the decision of the Madhya Pradesh High Court in the case of Madhusudan Bhardwaj & Ors. Vs. Mamta Bhardwaj (Supra). In all the decisions, Court has analysed the provisions of the DV Act and the scope and object of the said Act. The provisions of the DV Act and the principles enunciated in the aforesaid decisions, lay down that the DV Act is to provide effective protection of the rights of women and it is beneficial and welfare legislation for protecting her rights. However, the decision in the case of Rajeev Pathak [2011(5) ALL MR 951 (S.C.)] (Supra), it is observed that the Court cannot proceed with any proceedings without having jurisdiction to entertain such proceedings or application. Learned Judge also observed that the petitioner could not explain the provisions under which such an application can be entertained. Apart from that, in the factual circumstances of the present case, the relief sought by the petitioner ought not to have been granted by the trial Court, after granting interim relief to respondent no.2. The Sessions Court, has, therefore, rightly set aside the order of the trial Court. In the circumstances, petition fails and the same deserves to be dismissed. Hence, the same is, accordingly, required to be dismissed.

13. Hence, I pass the following order:

::ORDER::

(i) Criminal Writ Petition No.3013 of 2018, is dismissed.

Petition dismissed.