Delhi District Court
Heera vs Shashi Kant (Husband) on 28 January, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 116/2021(RBT 19/2022)
IN THE MATTER OF:
Heera
W/o Sh. Shashi Kant
D/o Sh. Ramdayal
R/o H.No. D-621. JJ Colony
Tigri, Ambedkar Nagar, Sector 1,
New Delhi - 110062
........Appellant
Versus
1. Shashi Kant (Husband)
S/o Sh. Bishan Singh
R/o H.No. K-II/63, Madangir,
Near Central Market,
New Delhi - 110062
2. Bimla Devi (Mother in law)
W/o Sh. Bishan Singh
R/o H.No. K-II/63, Madangir,
Near Central Market,
New Delhi - 110062
CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 1 / 12
Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.01.28
16:53:18
+0530
3. Mohini @ Gudiya (Sister in law)
D/o Sh. Bishan Singh
R/o H. No. K-II/63, Madangir,
Near Central Market,
New Delhi - 110062
........Respondents
Instituted on : 25.11.2021
Reserved on : 19.01.2023
Pronounced on : 28.01.2023
JUDGMENT
1. Vide this judgment, I shall dispose of present appeal U/s 29 of Protection of Women from Domestic Violence Act 2005 (hereinafter referred to as Act only) preferred by Ms. Heera against the order dated 26.10.2021 passed by Ld. MM Mahila Court-01, South District whereby an application U/s 19 of the Act was dismissed.
2. Briefly stated the facts as per record are as under:-
The appellant herein had filed an application U/s 12 of Protection of Women From Domestic Violence Act 2005 against the respondent namely Shashi Kant (husband), Bimla Devi (mother in law) and Mohini@Gudia (sister in law) alleging physical, verbal, emotional and economic abuse having been committed by them. Said application was filed on 12.10.2017 and vide summoning order dated 25.10.2017, the CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 2 / 12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.28 16:53:34 +0530 respondents were summoned by Ld. Magistrate for next date i.e., 05.12.2017. During the pendency of proceedings, an application U/s 19 of the Act was moved on behalf of appellant seeking right of residence.
Same was dismissed after hearing arguments by Ld. Magistrate vide order dated 07.02.2020. Another application to the same effect was moved later on which got dismissed vide impugned order dated 26.10.2021. Appellant is assailing the legality of said order.
3. It has been argued by Ld. Counsel for the appellant that Ld. Trial Court has fell in error by dismissing her application thereby ignoring the mandate of Hon'ble Apex Court in Satish Chandra Ahuja Vs. Sneha Ahuja Civil Appeal No. 2483/2020. It was also argued that the respondent no.1 has himself admitted in a false complaint filed against the appellant on 02.09.2015 that she was residing at the house bearing No. K-II/63, Madangir Central Market, New Delhi. Further, merely because the appellant was getting house rent allowance from her department/employer cannot be a ground to deny her the right of residence in her matrimonial home from where she was forcibly ousted. He has prayed that said order be set aside and she be allowed to reside in her matrimonial home.
4. Per contra, it has been argued by Ld. Counsel for the respondents that filing of this appeal is abuse of process of law. It was argued that earlier also an application U/s 19 of the Act was preferred by the appellant before Ld. Magistrate which was dismissed on 07.02.2020. Thereafter, another application seeking same relief was filed before Ld. CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 3 / 12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.28 16:53:54 +0530 Magistrate without there being any change in circumstance whatsoever. Further, the judgment of Hon'ble Apex Court Satish Chandra Ahuja Vs. Sneha Ahuja Civil Appeal No. 2483/2020 is of no help to the case of appellant as she has never resided at K-II/63, Madangir Central Market, New Delhi which is in the name of respondent no.2 Smt. Bimla Devi. It was argued that appellant has resided with respondent no.1 at his Govt. Quarter only and she is claiming residence rights in property bearing no. K-II/63, Madangir Central Market, New Delhi to further harass them. He has prayed that the appeal may be dismissed.
5. I have considered the submissions from both the sides. I have also gone through the record. The appellant is claiming right to reside in the house bearing no. K-II/63, Madangir Central Market, New Delhi on the ground that same is her matrimonial home whereas respondents are contending that she has never resided at that property and that she was living separately with respondent no.1 at his Govt. Quarter.
6. Admittedly, an application U/s 12 of the Act was filed by appellant herein against the respondents on 12.10.2017. In the memo of parties, her address was mentioned as House No. D-621, J J Colony, Tigri, Ambedkar Nagar, Sector-1, New Delhi-62. In the said application, it was mentioned by the appellant that after her marriage with respondent no.1, she was taken to her matrimonial home at K- II/63, Madangir Central Market, New Delhi. It was also mentioned that she was taken by respondent no.1 to Pushp Vihar address on 07.02.2015. Also, it has been mentioned in the later part of the CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 4 / 12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.28 16:54:20 +0530 application in paragraph 'H' that on 14.07.2017, when she alongwith her daughter reached her matrimonial home at Pushp Vihar, New Delhi, she saw that respondent no.1 was standing outside the house. In paragraph 'I' it has been mentioned that she alongwith her daughter were residing with her parents since 14.07.2017.
7. Domestic Incident Report dated 16.10.2017 filed before Ld. Trial Court mentions two addresses of the appellant i.e., 32/4, Pushp Vihar, Sector-1, New Delhi 17 and D-621, J J Colony, Tigri, Ambedkar Nagar, Sector-1, New Delhi-62. The address of her husband/respondent no.1 has been mentioned as K-II-63, Madangir Central Market, New Delhi.
There is a specific mention of the fact that the appellant was residing separately from respondent no.2 (her mother in law) and respondent no.3 (sister in law) at Govt. accommodation i.e., shared household alongwith respondent no.1.
8. An application U/s 19 of the Act was moved on behalf of the appellant on 05.04.2019 wherein she claimed right to residence for herself and her minor daughter in property bearing no. K-II/63, Madangir Central Market, New Delhi which she claimed to be her matrimonial home. A direction to the respondents was also sought thereby directing them not to sell the said house. As per that application, the marriage of appellant with respondent no.1 was solemnized on 15.12.2014 at Pushp Vihar, Sector -1, Delhi and that she started residing with her husband at K-II/63, Madangir Central Market, New Delhi since 16.12.2014. It was also mentioned therein that later CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 5 / 12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.28 16:54:33 +0530 on they (she alongwith respondent no.1 and her minor daughter) shifted to Quarter No.4, Block 32, Sector-1, Pushp Vihar, Delhi, however, no specific date of shifting there was mentioned. It was further stated in that application that after the death of her father in law, they again shifted back to K-II/63, Madangir Central Market, New Delhi. Here also, no specific date has been mentioned. Thereafter, it has been stated that she was forcibly ousted from said premises on 11.10.2017 and a complaint in this regard was sent to SHO, PS Saket on same day (it appears that correct date is 11.10.2018 as copy of the complaint to police in this regard bears that date). Said application was dismissed by Ld. Trial Court vide order dated 07.02.2020. Relevant portion thereof is being reproduced below for ready reference:-
" Aggrieved is working and R-1 is stated to be not residing at his parental address. Aggrieved is employed as a government servant and silent in her application regarding her entitlement to government accommodation or house rent allowance. Aggrieved is claimed by respondents to have never resided there in the house she claims to be shared household i.e., K-II/63, Madangir Central Market, New Delhi. House is stated to be in the name of respondent Bimla and no document has been filed by aggrieved to dispute this claim. Domestic violence, whether committed or not, is a matter of evidence and trial. Hence, I do not consider it proper to pass any direction to the respondent prohibiting to sell that house or further to induct aggrieved in the parental home of R-1. Application U/s 19 Act is dismissed."
9. Second application U/s 19 of the Act claiming right to residence CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 6 / 12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.28 16:54:48 +0530 was moved on behalf of appellant on 15.03.2021 wherein the contents were similar to the contents of earlier application moved on her behalf. Only differences between the two were that in the second application she has relied upon the judgment of Hon'ble Apex Court Satish Chandra Ahuja Vs. Sneha Ahuja Civil Appeal No. 2483/2020 and that she elaborated the property bearing no. K-II/63, Madangir Central Market, New Delhi claiming the same as a built up property consisting of 4-5 floors. Said application was also dismissed by Ld. Magistrate vide order dated 26.10.2021. Relevant portion thereof is reproduced below for ready reference :-
"Even if the argument of the Ld. Counsel for aggrieved is accepted, it can not be stated that the aggrieved would have a right to reside in any or all of the properties of the in-laws. It is only in the shared household that the aggrieved bears a right of residence and the same is granted only after considering the overall facts and circumstances. In the present case, the aggrieved has stated that her shared household was K-II/63, Madangir. However, the respondents have claimed that the aggrieved has never resided at the said house. Thus, there is a dispute on the shared household in the present case which can only be ascertained by leading evidence and the same is a question of a trial. Moreover, the aggrieved has stated in the Court that she receives House Rent Allowance from her department to the tune of Rs. 7992/- as per the salary slip pertaining to year 2020. During oral arguments, Ld. Counsel for respondent has stated that the aggrieved is drawing a HRA of Rs. 8900/-. Hence, at this stage, it is not considered appropriate to pass any direction regarding prohibition of respondents from the CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 7 / 12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.28 16:55:05 +0530 selling the house at K-II/63, Madangir or to induct the aggrieved in the said house. Accordingly, the application filed by the aggrieved is dismissed."
10. During arguments before this Court, Ld. Counsel for the respondents has argued that there was no change of circumstance which could have enabled the appellant to move another application U/s 19 of the Act before Ld. Trial Court whereas Ld. Counsel for the appellant argued that the judgment of Hon'ble Supreme Court in Satish Chandra Ahuja Vs. Sneha Ahuja was such a circumstance.
In Satish Chandra Ahuja (Supra), following two questions of law were before Hon'ble Supreme Court for determination:-
(i) Whether definition of shared household U/s 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?
(ii) Whether judgment of Hon'ble Apex Court in S.R. Batra and Anr.
Vs. Taruna Batra (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law?
In S.R. Batra and Anr. Vs. Taruna Batra, respondent was married with the son of appellant and had started living with him in the house of appellant no.2 on the second floor. There was no dispute to the fact that the house belonged to appellant no.2 and her son (husband of CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 8 / 12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.28 16:55:18 +0530 respondent) had no share in that. The husband had filed a petition for divorce against the respondent and she had filed an FIR U/s 406/498A/506/34 IPC. Respondent had shifted to her parents residence due to dispute with her husband and when she tried to enter the house later on, she found the main entrance locked. Thereafter, she filed a civil suit for mandatory injunction so as to enable her to enter the house wherein she was granted temporary injunction but said order was set aside in appeal. Her Writ Petition under Article 227 of the Constitution was filed by her before Hon'ble High Court which was allowed holding that she was entitled to reside in the second floor as that was her matrimonial home. An appeal was filed for Hon'ble Supreme Court wherein it was observed as under:-
"18. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house."
11. After detailed discussion, Hon'ble Supreme Court answered the aforementioned two questions of law in Satish Chandra Ahuja (Supra), in following manner:-
"(i)The definition of shared household given in Section 2 (s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 9 / 12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.28 16:55:33 +0530 person has a share.
(ii) The judgment of this Court In S.R. Batra Vs. Taruna Batra (supra) has not correctly interpreted Section 2 (s) of Act, 2005 and the judgment does not lay down a correct law."
12. It appears that subsequent application U/s 19 was filed before Ld. Trial Court while relying upon the judgment of Satish Chandra Ahuja (Supra) because in the order dated 07.02.2020 whereby her first such application was dismissed, one of the observations of Ld. Trial Court was to the effect that the house in question was in the name of respondent Bimla and no document was filed by the appellant (aggrieved) to dispute that. In terms of earlier judgment in S.R. Batra Vs. Taruna Batra (supra), that fact alone was sufficient to deny the claim of appellant to right to reside in that property and the judgment of Satish Chandra Ahuja case by overruling the earlier judgment has removed that bar. Having said that, it is not the ratio of Satish Chandra Ahuja case that an aggrieved is entitled to reside in any property which she claims to be her matrimonial home/shared household without considering the submissions of the other party. Admittedly, there is dispute between the parties as to whether property bearing no. K-II/63, Madangir Central Market, New Delhi was shared household of the aggrieved as per Section 2(s) of the Act or not.
13. As mentioned earlier, the appellant was not residing at K-II/63, Madangir Central Market, New Delhi at the time of filing of Section 12 CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 10 / 12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.28 16:55:46 +0530 application before Ld. Trial Court (para 'I' of the application states that she alongwith her daughter was residing with her parents). Domestic Incident Report on record also does not state that she was so residing there. In contradiction to that, as per her applications U/s 19 of the Act, she was forcibly ousted from her matrimonial home at K-II/63, Madangir Central Market, New Delhi on 11.10.2018 but the application claiming right to residence was filed in April, 2019 only. It is true that in the complaint dated 02.09.2015 made by respondent no.1/ husband to SHO, PS Saket, he has admitted that he alongwith appellant had resided at his parental home for few days but that alone is not sufficient to grant interim relief to the appellant U/s 19 of the Act. Whether or not the house bearing no. K-II/63, Madangir Central Market, New Delhi can be held as "shared household" of the appellant in terms of judgment of Satish Chandra Ahuja (Supra) can be ascertained after detailed evidence is led by both the parties. This factual dispute could not have been decided by Ld. Trial Court at the interim stage when the recording of evidence was yet to begin. In this context, following observations of Hon'ble Apex Court in Satish Chandra Ahuja (Supra) are relevant:-
"83. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter- in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 11 / 12 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.28 16:55:58 +0530 haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High Court in paragraph 56 adequately balances the rights of both the parties."
14. Considering the above discussion, this Court is of the view that Ld. Trial Court has rightly held that the question of shared household of the aggrieved can be adjudicated only at the stage of passing of final order and that same cannot be ascertained at the preliminary stage. There is no illegality in the said order dated 26.10.2021 of Ld. Trial Court so as to warrant interference from this Court.
Digitally signed by Appeal is accordingly dismissed in above terms. SUNIL SUNIL GUPTA GUPTA Date:
2023.01.28 16:56:14 +0530 Announced in the open (Sunil Gupta) Court on 28th January, 2023 Additional Sessions Judge-06, South, Saket Courts, New Delhi CA No.116/2021 Heera Vs. Shashi Kant & Ors. Page No. 12 / 12