Delhi High Court
Sara Carrierre Dubey vs Ashish Dubey on 10 November, 2020
Equivalent citations: AIRONLINE 2020 DEL 1516
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 19th OCTOBER, 2020
Decided on: 10th NOVEMBER, 2020
+ CRL.M.C. 574/2020, CRL.M.A. 2364/2020, CRL.M.A.
2365/2020, CRL.M.A. 4751/2020, CRL.M.A. 7150/2020, AND
CRL.M.A.No.13177/2020
SARA CARRIERRE DUBEY ..... Petitioner
Through: Ms.Priya Hingorani, Sr Advocate
with Dr.Aman Hingorani and
Mr.Himanshu Yadav, Advocates.
versus
ASHISH DUBEY ..... Respondent
Through: Mr.Tanmaya Mehta, and
Ms.Vandna Kejriwal, Advocates.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J. (Through Video Conferencing)
1. The petition challenges an order dated 13.01.2020 passed in
Criminal Appeal No.232/2019 by the learned Additional Session's Court,
Saket, New Delhi.
2. The petitioner and respondent were married on 07.06.2006. Two
children were born from their wedlock, a daughter in the year 2009 and a
son in the year 2011. The property in dispute is 299, Asiad Village
Games Complex, New Delhi, jointly purchased in the year 2008. Both the
parties are co-owners of the said property to an extent of 50% share each.
3. Allegations and counter-allegations are made by either parties.
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SHARMA
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4. The petitioner alleges a) the respondent is in extra marital affair
with one Ms.Ruchika Dua, a blatant cause for matrimonial
dispute/domestic violence; b) the petitioner herein made her first
complaint dated 24.05.2017 at PS Hauz Khas alleging infidelity of
respondent and fear for her life. She has attached MLC of Jai Prakash
Narayan Apex Hospital dated 24.05.2017 showing a soft tissue injury to
her allegedly caused by her husband/respondent herein; c) subsequently a
complaint under Section 12 read with Sections 17 to 23 of The Protection
of Women from Domestic Violence Act 2005 (herein after referred to as
"DV Act") was filed before the learned Magistrate, Saket Court, Delhi;
and d) On 06.06.2019 the learned Magistrate while noting several
allegations in its order dated 24.04.2019, appointed a Protection Officer
who files a report dated 21.05.2019 noting, interalia, alleged repetition
of acts of violence upon the petitioner and her children. Such incidents
are detailed in paras 4 to 8 of an early hearing application which was
disposed of vide order dated 06.06.2019 wherein the learned Magistrate
notes:-
―15. It may be prudent to note that immediately after cameras were
installed in the house on the 17th morning, the complaints filed
thereafter refer to alleged thefts from the car and not from the
house." The respondent has alleged that the complainant has been
harassing him and has unnecessarily dragged their children in the
court case(s) and the complaints made by the complainant are all
false. It is pleaded on behalf of the respondent that some more time
be granted to the respondent to file his reply and put forth his
defense to the main petition under Section 12 of the D.V. Act. The
respondent is residing together with the complainant and the
children in the same shared household. The complainant has already
filed an application under Section 31 of the D.V. Act for alleged
breach of the interim protection orders dated 24.04.2019 and
27.04.2019, which is already listed for pre-summoning evidence. The
interim protection order had already been passed by the court in
favour of the complainant and despite which she has alleged that the
respondent continued to harass her. What appears from the record
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is that the complainant is not at all feeling secure in the same
house with the respondent, who is allegedly continuing to be
violent and abusive. It, seems that if the respondent is permitted to
continue to reside in the same shared household, his presence may
instill fear in the minds of the children, who are of impressionable
age. It can be traumatic for the children to live in fear of their father
and for the complainant to be constantly on her toes for a lookout
against any possible future alleged misbehavior by the respondent.
The school of the children is closed for summer vacations, which
would certainly mean more time for them to spend at home. At this
stage, there appears to be an apparent animosity' between the
parties and it would be best for ah the parties to be given time to
cool their minds and think clearly the best course of action for their
children, who are caught amidst the litigation squabbles of the '
parties. No prejudice would he caused to the respondent, if he is
directed to reside at some other place for the time being. Therefore,
in the interest of the young children and for complainant's sense of
safety for herself and her children, till the next date of hearing the
respondent is directed to remove himself from shared household.
Accordingly, the present application is disposed of.‖
e) It is alleged despite the order dated 06.06.2019 of the learned MM,
the respondent refused to vacate the subject premises and rather on
07.06.2019 had filed CRL.A.232/2019 under Section 29 of DV Act
wherein the learned Additional Session's Judge granted an ex-parte stay
against the order dated 06.06.2019 of the learned Magistrate.
f) On 07.06.2020 allegedly the respondent became furious and gave
beatings to the petitioner. She was taken to Jai Prakash Narayan Apex
Trauma Centre by the police and her MLC revealed yet again a soft tissue
injury. As the pain persisted she went to Max Hospital, Saket where she
got stitches. The photographs of the petitioner bleeding is annexed at
page no.134 and medical documents of Max Hospital are at page no.141
of the paper book. The appeal was ultimately decided on 13.01.2020. The
relevant portion of the impugned order dated 13.01.2020 is as under:
―14. On the very first date i.e. 07.06.2019, execution of order dated
06.06.2019 passed by Ld. MM was stayed. Since then, number of
applications were filed on behalf of the respondent in this regard for
vacating the stay before this court and Vacation Judge. The Hon'ble
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High Court however in the connected matters referred the dispute to
the mediation centre on various occasions. Number of hearings were
given to the parties. Even children were directed by the Hon'ble
High Court to be produced before the Hon'ble Division Bench.
Despite repeated efforts, no settlement could be arrived at between
parties. Thereafter, arguments were heard on the present petition on
various dates. It is indeed clear that there is animosity between
parties due to which, children were caught amidst the litigation
squabbles of the parents. The relationship has gone so; sour that the
wife is not feeling secure in the same house with the husband. They
are not cooling down despite repeated efforts of settlement made by
various courts. The allegations and counter allegations required to
be finally decided on after trial. The children were not produced in
this court despite oral directions for the same during the entire
period of pendency of this appeal. The safety and security of the
children is of utmost importance. It is a marriage of 13 years. It has
come up on record, previously, there were no complaints of any
violent behaviour against the appellant/husband.
18. In the facts and circumstances of the case, appellant is hereby
directed to provide an alternative accommodation to respondent/wife
and her children in the same locality which shall be similar to the
shared household with similar facilities at the earliest preferably
within one week from the date of order and also to continue paying
Rs. 50,000/- per month towards the expenses alongwith all expenses
towards children as already undertaken by him till further orders.
The impugned order passed by Ld. MM accordingly stands modified
to the same extent. In case however any dispute arises in the course
of providing alternative accommodation, both parties will be at
liberty to approach the Ld. Trial Court which shall pass appropriate
order after considering the facts and circumstances.‖
g) It is alleged as the respondent refused to remove himself, the
petitioner, left with no choice, moved in a hotel, but since respondent did
not pay hotel expenses she then moved at her friend's place with her two
children and is presently staying there at her friend's mercy.
h) It is the submission of the learned counsel for the petitioner that
wrong facts and admissions are being noted in the impugned order. The
learned Additional Session's Judge had directed the petitioner to choose
from alternative accommodation but whereas she never shifted on her
own from her house and it was only because of the circumstances so
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created by the respondent she had to leave with children as was left with
no other choice.
i) The reference is also made to various emails of Ms.Ruchika Dua;
hotel bills of Taj Mahal Hotel New Delhi where the respondent allegedly
stayed with Ms.Ruchika Dua from 16.10.2015 to 20.10.2015; hotel bills
of Sarovar Portico New Delhi where he stayed from 18.08.2018 to
28.08.2018 with Ms.Ruchika Dua; the air tickets he had purchased for his
alleged girlfriend to Dubai.
j) Some of the Whatsapp messages allegedly sent to petitioner by
Ms.Ruchika Dua are as under:
―if you have given two kids to the respondent then she also had got
pregnant twice and had abort, xxxx and if you want take some
classes how he likes to be treated in bed? xxxx Do u want me to
share some pictures or videos which are worth seeing‖
It is alleged even on 04.07.2020 and 11.07.2020 when petitioner
had visited her matrimonial home to take her belongings she saw
Ms.Ruchika Dua staying in her bedroom. She clicked photographs of
Ms.Ruchika in her shared household from a mobile during her visit.
k) It is thus argued in the grab of impugned order the respondent is
enjoying in the subject house with his girlfriend and whereas the
petitioner/wife alongwith her children is paddling between hotels and her
friend's house(s) seeking their help. The maintenance orders though were
referred, but are not relevant for the issues involved.
5.(i) The respondent on the other hand has alleged the shared household
was purchased in the year 2008, though in the joint names but the entire
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payment was made by respondent, admittedly, from the bank account of
the petitioner, for tax purposes.
(ii) It is argued between the years 2013 to 2019 there was never any
complaint by the complainant/petitioner. He rather referred to various
emails exchanged between the parties where the petitioner herself is seen
to be apologetic and promising to mend her ways. However, it is
admitted the dispute started in the year 2016-17 when the petitioner
started suspecting his alleged affair and started collecting evidence to put
up a case of domestic violence. It is alleged on 24.05.2017 for the first
time she made a complaint but thereafter they all went to France, USA
etc (photographs annexed) to enjoy holidays.
iii) The respondent also referred to various emails exchanged between
the parties till January, 2019 with no whisper of any alleged violence
committed by respondent and rather had purchased two properties in
favour of the petitioner, including a flat, fetching rental income for
petitioner.
iv) It is argued on 27.04.2019 the learned Magistrate, had denied relief
of removal of respondent from the house at that stage and gave an
opportunity to respondent to putforth his defence, but the petitioner from
14.05.2019 to 18.05.2019 went on filing complaints against the
respondent alleging kidnapping her children; inclined to kill her; took her
laptop to delete the alleged emails; stolen her passport/Rs.50,000/- stolen
from her car etc to make her case strong, however, without any allegation
of physical violence and/or abuse. On 21.05.2019 the protection officer
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also filed a report and it did not contain any observation of violence,
physical or otherwise, allegedly committed by the respondent.
v) It is argued on 27.05.2019 the petitioner filed an application for
early hearing and though its short reply was filed by the respondent, but
without there being any reply to the main application under Section 23
DV Act or the main petition, the learned Magistrate had passed the order
dated 06.06.2019 directing removal of the respondent from the
matrimonial house, despite an earlier order dated 27.04.2019 giving
respondent an opportunity to putforth his defence prior to a residence
order.
vi) It is alleged the order dated 06.06.2019 was passed unexpectedly
on an application for early hearing; without there being any prayer of
such kind and without taking any replies on record and was in complete
derogation of his own observation, the learned MM in her earlier order
dated 27.04.2019, and such order was rather bad in law per Adalat
Prasad vs. Roop Lal Jindal & Others (2004) 7 SCC 338, as it amount
to review.
vii) The respondent then preferred CRL.A.232/2019 on 07.06.2019
and the order dated 06.06.2019 of learned Magistrate was stayed exparte.
In the evening at about 9 PM, the petitioner created a chaos in the house
in the presence of a lady constable and even had threatened and pushed
the respondent, thereby injuring herself. Both were taken to hospital
where the MLC of respondent also revealed soft tissue injury and
abrasion on his forehead. Thereafter the petitioner on her own had left the
shared house with her children in the wake of an adverse order dated
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07.06.2019 passed by the learned ASJ and went to Max Hospital to create
further record.
viii) Reference was also made to W.P.(CRL.)1757/2019 for custody of
his children.
ix) It is alleged the proposal(s) for alternative accommodation were
submitted on 24.06.2019 before the learned Session's Court where the
counsel for the petitioner sought time to consider the same but later the
petitioner refused and the learned ASJ rather noted the submissions qua
her voluntarily leaving the house and shifting in a guest house/hotel and
passed the impugned order.
x) It is argued vide impugned order dated 13.01.2020, the learned
ASJ had set aside the order dated 06.06.2019 of the learned Magistrate
and had directed the respondent to provide an alternative accommodation
to petitioner and her children in the same vicinity, similar to the shared
household and with similar facilities. It is argued the respondent had
identified ten of such properties in South Delhi itself, but deliberately
declined by the petitioner.
6. Thus a bare perusal of above, show both the parties are in severe
dispute(s) and had refused to buzz an inch. The petitioner prays for
restoration of order dated 06.06.2019 of the learned Magistrate and to set
aside the impugned order dated 13.01.2020 passed by learned Session's
Court and whereas the respondent claims dismissal of this petition.
7. Admittedly, the Protection of Women from Domestic Violence Act,
2005 was enacted to protect women from domestic violence. The
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definition of "domestic violence" is broad and includes not only physical
but also other forms of violence such as emotional, verbal, sexual and
economic abuse. An application regarding domestic violence can be
presented to the Magistrate by an aggrieved person and while disposing
of such application the learned Magistrate may take into consideration
any domestic incident report from the protection officer and may also
issue a residence order or an order of payment/compensation or damages,
without prejudice to the rights of such person to institute suit for
compensation of damages for the injuries caused by the Act of domestic
violence.
8. Such an order need to be passed by the learned Magistrate if he is
satisfied the application prima facie disclose the respondent is
committing or has committed an act of domestic violence or there is
likelihood of such violence and he may grant an ex-parte orders against
the respondent on the basis of an affidavit of aggrieved person.
9. The learned Magistrate, if satisfied, that domestic violence has
taken place he can pass residence orders restraining the respondent from
dispossessing the aggrieved person or in any manner disturbing her
peaceful household; direct the respondent to remove himself from the
shared household; or directing the respondent to secure same level of
alternative accommodation for the aggrieved person as enjoyed by her or
to pay rent for the same, if the circumstances so required. However,
no order shall be made against women under Section 19(1)(b). The
learned Magistrate may impose additional conditions and may pass any
other order to protect the safety of an aggrieved person or her child.
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10. The relevant sections of the DV Act are as below :
―2. Definitions.--In this Act, unless the context otherwise requires,--
(g) ―domestic violence‖ has the same meaning as assigned to it in
section 3;
(p) ―residence order‖ means an order granted in terms of sub-section (1)
of section 19;
(s) ―shared household‖ means 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 either 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.
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) -(d) xxxxxxx
19. Residence orders.--(1) While disposing of an application under sub-
section (1) of section12, the Magistrate may, on being satisfied that
domestic violence has taken place, pass a residence order--
(a) restraining the respondent from dispossessing or in any other manner
disturbing the possession of the aggrieved person from the shared
household, whether or not the respondent has a legal or equitable interest
in the shared household;
(b) directing the respondent to remove himself from the shared household;
(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 off the shared
household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate; or
(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.
23. Power to grant interim and ex parte orders.--
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(1) In any proceeding before him under this Act, the Magistrate may pass
such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses
that the respondent is committing, or has committed an act of domestic
violence or that there is a likelihood that the respondent may commit an
act of domestic violence, he may grant an ex parte order on the basis of
the affidavit in such form, as may be prescribed, of the aggrieved person
under section18, section 19, section 20, section 21 or, as the case may be,
section 22 against the respondent.‖
11. To invoke the jurisdiction of this Act the petitioner/wife must
prima facie disclose the husband/respondent has committed or is
committing or there is likelihood of committing domestic violence. What
Section 19 and 23 requires to pass is an interim order, upon satisfaction
of the learned Magistrate, where the application prima facie discloses the
respondent having committed or is committing the acts of domestic
violence or there is likelihood he may commit any act of domestic
violence.
12. The learned Magistrate though on 27.04.2019 had directed the
defence of the respondent may be placed before him to pass a residence
order, but it is also not denied that an opportunity to file replies was
given for 06.05.2019 but the respondent failed to avail such opportunity.
It was only then an application for early hearing was moved. Even in her
application for early hearing, the petitioner had alleged repeated acts of
domestic violence against her and sought an early hearing. It was only
then the learned MM after taking reply to application went on to hear
arguments and finding contents of application sufficient, formed a prima
facie opinion order dated 06.06.2019 under Section 19 (1) (b) of the DV
Act was passed by the learned Magistrate.
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13. Nevertheless here we are more concerned with the impugned order
under Section 19 (1) (f) passed by the learned Session's Court in appeal.
14. The question raised by the learned counsel for the respondent is
once the Court has exercised its power under Section 19(1)(f) and if the
order is a reasoned one, then can such an order be set aside under Section
482 Cr.P.C. simply because the High Court believes there could be some
other possibility. It is argued it can only be set aside if it is perverse.
15. The learned counsel for the respondent in support of his argument
under Section 19(1)(f) has referred to Shumita Didi Sandhu vs. Sanjay
Singh Sandhu and Ors. (2010) 174 DLT 79 (DB) wherein the Court held:
―55. We must emphasize once again that the right of residence which a
wife undoubtedly has does not mean the right to reside in a particular
property. It may, of course, mean the right to reside in a commensurate
property. But it can certainly not translate into a right to re$ide in a
particular property. In order to illustrate this proposition, we may take an
example of a house being allotted to a high functionary, say a Minister in
the Central Cabinet and who resides in the same house along with his
wife, son and daughter-in-law. It is obvious that since the daughter-in-law
and son reside in the said house, which otherwise is a Government
accommodation allotted to the father-in-law, the same could be regarded
as the house where the son and daughter-in-law live in matrimony. Can
the daughter-in-law claim that she has a right to live in that particular
property irrespective of the fact that the father in law subsequently is no
longer a Minister and the property reverts entirely to the Government?
Certainly not. It is only in that property in which the husband has a right,
title or interest that the wife can claim residence and that, too, if no
commensurate alternative is provided by the husband.‖
16. In Shilpa Tandon vs. Harish Chand Tandon and Another (2016)
160 DRJ 315 the Court held:
―16. Workable solutions have been found out by Courts where the
estranged daughter-in-law and her in-laws are under threat of violence
from each other.
20. Since this Court cannot force the appellant to opt for a particular
property, we take on record the statement made by learned counsel for the
first respondent that in lieu of the accommodation currently occupied by
the appellant he would pay her Rs. 30,000/- per month as rent for her to
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take on lease a one bedroom plus living room accommodation as per her
choice.
23. In the present appeal we are not to go into the allegations and counter
allegations concerning acts of cruelty or false FIRs lodged. But suffice
would it be to highlight that keeping in view the allegations made against
each other, the appellant must move out from the property which she is
occupying.‖
17. In line of the above, it is argued the respondent has offered various
alternative accommodation(s) viz. in Safadarjug Development Area,
Green Park etc. but all were ignored by the petitioner, thus she is not
entitled to subject house and / or restoration of the order dated
06.06.2019 passed by the learned Magistrate.
18. In judgments cited, admittedly, the aggrieved person/wife was
residing in a house belonging to her in laws, where she had no legal right
to stay, except for her right created under Section 2(s) and Section 19(1)
above. However, the facts of case in hand are slightly different. The
petitioner here is a co-owner of the premises in dispute. Further she has
filed sufficient record viz. emails of Ruchika Dua, though presently are
denied by the respondent on a plea Ruchika Dua is not before this Court
hence cannot comment on the same, but he did not deny he has an
acquaintance with Ruchika Dua or had booked her air tickets to Dubai or
her hotel accommodation; she being his friend. Infidelity, of course, is
denied.
19. The petitioner/wife has not only filed emails, whatsapp messages
sent by Ruchika Dua but also photographs where Ruchika Dua is seen in
shared household after the petitioner had left her matrimonial house to
stay in a hotel. If such allegations are later found true; then putting the
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petitioner and minor children at the mercy of her friends would, prima
facie, be an emotional abuse.
20. The emails, the allegations of infidelity, the whatsapp messages
being on record, there was no reason for the learned Additional Session's
Judge to set aside the order dated 06.06.2019 of the learned Magistrate,
which order, even otherwise, was only till disposal of the main
application. The inconvenience caused to a wife who left her house with
her children was more than the inconvenience caused to
respondent/husband. The respondent though alleged that after the
petitioner had left the house he has brought his ailing sister to stay with
him but we need to look and decide the application on the basis of facts
available on record on the day the order dated 06.06.2019 was passed to
find if the order of learned Magistrate was perverse to be set aside by the
learned Additional Session's Judge. The answer is emphatic no.
21. Now, if the order dated 13.01.2020 of the learned Session's Court
is not perverse, then I fail to understand how the order dated 06.06.2019
passed by the learned Magistrate under Section 19(1)(b) of the DV Act
was perverse. Admittedly, it too was also a jurisdictional exercise of
power by the learned MM under Section 19 of the DV Act and ought not
to have been set aside, unless perverse. The order dated 06.06.2019
rather noted what appears from the record is the petitioner is not at all
feeling secure in the same house with the respondent who is allegedly
continuing to be violent and abusive. Thus the learned Magistrate had
satisfied itself per Section 19(1) of the DV Act and directed the
respondent to remove himself. It cannot be denied learned Magistrate has
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a power to pass such an ex-parte interim order, once he is satisfied there
is even a likelihood of act of violence, per Section 23 (2) (supra).
22. Further, proviso to Section 19(1) cannot be ignored where it says
such an order cannot be passed against a woman.
23. Moreso Section 2(s) viz. definition of shared household,
categorizes aggrieved person viz. a) where she has a title in her
matrimonial house and b) where she is residing in the subject house as a
wife or as a member of joint family of her husband. The learned MM,
admittedly, had proceeded to pass an order under Section 19(1)(b) as the
petitioner fell within the ambit of category (a), viz has a title in the
shared property, hence, per proviso, to Section 19, could not have been
asked to remove herself from such shared household: Her case,
admittedly, stood on a better footing than that of an aggrieved person in
category (b) above.
24. As the petitioner jointly own the subject property, she prima facie
had a better case for an order under Section 19(1)(b) rather than under
Section 19(1)(f) of the DV Act. The facts gets stronger per Samir
Vidyasagar Bhardawaj vs. Nandita Samir Bhardwaj 2017 (14) SCC 583
wherein a wife was a joint owner of the property and the Court held:
―8. The only issue to be addressed in this case is whether the order
directing appellant-husband to remove himself from the matrimonial
home of which he is a co-owner warrants interference.
11. The Family Court arrived at a finding that prima facie material
was available on record to accept the allegation of the respondent-wife
on domestic violence wherein the concerned Judge had exercised his
discretion under Section 19(1)(b) of the Domestic Violence Act which
provides that the Magistrate on being satisfied that domestic violence
has taken place can remove the spouse from the shared household
which in our opinion he has rightly done. Exercise of discretion by
Family Court cannot be said to be perverse warranting interference.
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The High Court while declining to interfere with the order has also
considered the factual and legal position.‖
25. Though the learned counsel for respondent argued the learned MM
in Samir's case (supra) had rather formed a prima facie opinion of
violence because of affidavits of respondent's daughters supporting their
mother, but here too the learned MM had gone through the allegations
made in early hearing application and otherwise, to form such an opinion
and thus per Section 23(2) of the Act had passed a removal order
considering likelihood of violence. Thus, on facts the order of learned
MM was not a perverse order to be set aside by the impugned order.
26. In his order dated 27.04.2019, the learned MM also inter alia
noted:-
".....Considering the photographs on record and that the parties are
residing together, the respondent for the time being is restrained from
committing any act of domestic violence upon the complainant and the
minor children till further orders. "
27. Even the impugned order dated 13.01.2020 notes:
―......it is indeed very clear that there is animosity between the parties
due to which the children were caught amidst the litigation squabbles
of the parents. The relationship has gone so sour that the wife is not
feeling secure in the same household with the husband......‖
28. Hence, the record available before the learned MM was sufficient
to form a prima facie opinion. Qua video recordings dated 06.07.2019 it
was argued that it was prepared by a cousin of respondent and he
deliberately did not cover the entire incident where the petitioner was
allegedly beaten. Admittedly, there are two MLCs (supra) of petitioner
herein dated 07.06.2019 and 24.05.2017 on record.
29. Lastly in Satish Chander Ahuja vs. Sneha Ahuja, CA
No.2483/2020 decided on 15.10.2020 the Supreme Court observed in
CRL.M.C. 574/2020 Page 16 of 18
Signature Not Verified
Digitally Signed By:KAPIL
SHARMA
Signing Date:10.11.2020 16:08
para No.32 of the judgment; the statements of objects and reasons of the
DV Act interalia:
―xxxxxxx
(iii) It provides for the rights of women to secure housing. It also
provides for the right of a woman to reside in her matrimonial home or
shared household, whether or not she has any title or rights in such
home or household. This right is secured by a residence order, which is
passed by the Magistrate.
Further, the Supreme Court observed:-
63. ......... As noted above, Act 2005 was enacted to give a higher right
in favour of woman. The Act, 2005 has been enacted to provide for
more effective protection of the rights of the woman who are victims of
violence of any kind occurring within the family. The Act has to be
interpreted in a manner to effectuate the very purpose and object of the
Act. Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an
entitlement in favour of the woman of the right of residence under the
shared household irrespective of her having any legal interest in the
same or not.‖
30. In view of the facts discussed above the impugned order is set
aside and the order dated 06.06.2019 of the learned MM is restored. The
respondent is given ten days' time from today to remove himself from the
property in dispute. Needless to say in case of any failure on the part of
the respondent, the learned MM shall proceed in accordance with law.
31. The respective right(s) in the subject property and/or disputes
interse qua harassment etc, may be raised before the appropriate forum.
The observations made above shall not influence the Courts below and
allegations/counter allegations be dealt purely on merits.
32. Both the parties are directed to appear before the learned Trial
Court/Successor Court on 26.11.2020 for further directions.
33. Petition is disposed of. Pending application(s) if any, also stands
disposed of. No orders as to cost.
CRL.M.C. 574/2020 Page 17 of 18
Signature Not Verified
Digitally Signed By:KAPIL
SHARMA
Signing Date:10.11.2020 16:08
34. Copy of this order be communicated electronically to the learned
Trial Court/Successor Court for information and compliance.
YOGESH KHANNA, J.
NOVEMBER 10, 2020 M/DU CRL.M.C. 574/2020 Page 18 of 18 Signature Not Verified Digitally Signed By:KAPIL SHARMA Signing Date:10.11.2020 16:08