Allahabad High Court
Smt. Smita Mishra vs State Of U.P. And 2 Others on 7 September, 2017
Equivalent citations: 2018 (2) ALJ 326, (2018) 185 ALLINDCAS 950 (ALL), (2017) 180 ALLINDCAS 951 (ALL), (2019) 1 DMC 13, (2018) 103 ALLCRIC 83, (2017) 5 ALL WC 4940, (2017) 2 MARRILJ 783, (2018) 3 ALLCRILR 845, (2017) 125 ALL LR 425, 2018 (128) ALR SOC 67 (ALL)
Bench: Tarun Agarwala, Ashok Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 29 Case :- WRIT - C No. - 40149 of 2017 Petitioner :- Smt. Smita Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Manish Dev Singh Counsel for Respondent :- C.S.C. Hon'ble Tarun Agarwala,J.
Hon'ble Ashok Kumar,J.
A partition suit was filed by the petitioner against her family being Original Suit No. 1298 of 2013. A preliminary decree was passed by the trial court by an order dated 26th August, 2014 declaring that the petitioner is entitled to 1/3rd share in the property i.e. 86A/1, Tagore Town, Allahabad. Based on this order, the petitioner moved an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to the Act) before the Additional Chief Judicial Magistrate, Allahabad contending that her brother, who is not arrayed as a party in the present writ petition, has forcibly locked one room in the property in question, and therefore in terms of the decree, the possession of this one room be given to the petitioner. The Additional Chief Judicial Magistrate by an order dated 15th July, 2016 directed the Station House Officer, Gorge Town, Allahabad to give possession to the petitioner in terms of the preliminary decree of the trial court. Since this order was not being enforced, the petitioner has filed the present writ petition praying for a writ of mandamus commanding the Station House Officer, George Town to enforce the order of the Additional Chief Judicial Magistrate dated 15th July, 2016 and give possession of that one room which is occupied and forcibly locked by her brother.
Before proceeding further, it is essential to peruse few provisions of the Act.
The Protection of Women from Domestic violence Act, 2005 was enacted to provide for more effective protection of the rights of the woman guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The Statement of Objects and Reasons provides that keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy to protect the women from being victims of domestic violence and to prevent the occurrence of the domestic violence in the Society, the Act was introduced to cover those women who are or have been in a relationship with the respondent where both parties have lived together in a shared household and are related by consanguinity, marriage, or through a relationship in the nature of marriage or adoption. In addition, relationship with family members living together as a joint family has also been included. The Act 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. The Act empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified acts.
"Aggrieved person" has been defined under Section 2(a) of the Act as under:-
"2(a) "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.
Section 2(g) of the Act defines domestic violence which has the same meaning as assigned to it in Section 3. 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."
An aggrieved person can move an application under Section 12 of the Act for obtaining orders or reliefs. For facility, the said provision is extracted hereunder:
"12. Application to Magistrate.--(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall Endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing."
Under Section 19 of the Act, the Magistrate is required to dispose of the application under Section 12 of the Act and in the event he is satisfied that domestic violence has taken place will pass a residence order in terms of Section 19(1) of the Act. For facility, Section 19 of the Act is extracted hereunder:
"19. Residence orders.--(1) While disposing of an application under sub-section (1) of section 12, 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.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to."
Having heard Sri Manish Dev Singh, the learned counsel for the petitioner and from a perusal of the provisions of the Act, it is clear that only an aggrieved person can move an application under Section 12 of the Act for protection order under Section 18 or for residence order under Section 19. Aggrieved person is a person, who is in a domestic relationship with the respondent or who has been subjected to any kind of domestic violence by the residents.
In the instant case, the petitioner is not an aggrieved person nor is subjected to any kind of domestic violence by the respondents. Further, the brother has not been made a party to the writ petition. Nothing has been indicated as to what kind of domestic violence has been subjected upon the petitioner. Further, the parameter indicated in Section 19(1) of the Act are not existing for grant of a right for residence. Thus, in our opinion, no application could have been filed by the petitioner under Section 12 of the Act as she is not an aggrieved person nor any act of domestic violence was subjected upon her.
An order under Section 19 of the Act could only be passed, if the Magistrate was satisfied that domestic violence had taken place. In the instant case no domestic violence had taken place nor anything has been indicated that the Magistrate was satisfied that any domestic violence had taken place.
We are further of the opinion that the entire proceedings initiated by the petitioner under Section 12 of the Domestic Violence Act is a clear abuse of process of the court. Such application could not be filed under this Act for enforcement of a preliminary decree. The scope of the Domestic Violence Act is totally different and can only be used where the petitioner is a victim of domestic violence and has been thrown out from her residence by other family members in which the case the provision of the said Act could be enforced and an order for residence could be passed. In the instant case, a suit for partition was filed in which a preliminary decree has been passed holding that the petitioner is entitled to 1/3rd share in the property. The share of the petitioner has not as yet been demarcated by metes and bounds for which proceedings are pending and a final decree is yet to be drawn. Consequently, 1/3rd portion of the petitioner has not as yet been identified. Possession of the premises after decree can only be given either voluntarily by the parties to the suit or on an application by any party for execution of the decree. Such possession can only be given by the executing court and not by the Judicial Magistrate while exercising powers under Section 19 of the Act.
In the light of the aforesaid, we are of the opinion that the complaint filed by the petitioner under Section 12 before the Additional Chief Judicial Magistrate being Complaint Case No.45 of 2013 is patently illegal. We find that such proceedings cannot be allowed to continue before the Additional Chief Judicial Magistrate which is an abuse of process of the court. We, accordingly, quash Complaint Case No. 45 of 2013 pending before the court of Additional Chief Judicial Magistrate as well as the order dated 15th July, 2016 passed by the Additional Chief Judicial Magistrate.
The writ petition is dismissed.
The registry is directed to send a certified copy of this order to the Additional Chief Judicial Magistrate, Allahabad for necessary information and compliance.
Order Date :- 7.9.2017
A.Kr./AKJ
[Ashok Kumar, J.] [Tarun Agarwala, J.]