Orissa High Court
Afr vs Mrs.Swatishree Das : Opp.Party on 12 January, 2022
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT : C U T T A C K
CMP NO.445 OF 2021
In the matter of a Petition under Article 227 of the Constitution of India.
AFR
Malaya Kumar Das : Petitioner
-Versus-
Mrs.Swatishree Das : Opp.Party
For Petitioner : M/s.P.K.Lenka, P.Lenka
& D.P.Pattnaik
For Opp.Party : M/s.D.P.Dhal, Sr.Adv.,
S.Mohapatra, R.Mohanty,
M.K.Agarwal, A.Pradhan,
B.S.Dasparida & S.S.Lenka.
CORAM :
JUSTICE BISWANATH RATH
Date of hearing & Judgment :: 12.01.2022
1. This Civil Misc. Petition filed by the Father-in-law involves a
challenge to the order dated 6.8.2021 passed by the 2nd Additional District
Judge, Bhubaneswar in Civil Revision No.01/01 of 2021 under
Annexure-13 reversing the order of the Senior Civil Judge, Bhubaneswar
passed in I.A. No.2/2021 under the provision of Section 151 of C.P.C.
read with Sections 26 & 29 of the Protection of Women from Domestic
Violence Act, 2005 (in short, "the Act, 2005") at the instance of the
Daughter-in-law, the present Opposite Party under Annexure-9.
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2. Undisputed fact remains and as has been categorically admitted in
course of submission by Mr.P.K.Lenka, learned counsel for the Petitioner
that the Opposite Party remains to be the Daughter-in-law of the present
Petitioner and for there exists dissention between Wife and Husband,
both are staying away from the other. Learned counsel for the Petitioner
in his attempt to assail the impugned order at Annexure-13 challenged the
same on the following grounds :-
A. For the nature of dispute involved herein and looking to the
manner of disposal of the Interlocutory Application under Annexure-9, no
Revision under Section 115 of C.P.C. lies to the District Forum.
B. Even assuming such an Application is entertainable looking to
the definition of "shared household" (Section 2(s), learned counsel for the
Petitioner submitted that for her own pleading the Opposite Party in no
case is entitled to right to residence in the house at Bhubaneswar, as in
the maximum it should be construed to be matrimonial home may be a
house at Balasore.
C. Further on the premises that there has been pendency of some
family court disputes; one being at the instance of the Husband and the
other being at the instance of the Plaintiff, the Wife even the Civil Suit is
not entertainable.
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Advancing his submission, taking this Court to the pleadings in the
Plaint involved herein and reading through Paragraph-8 of the same,
Mr.Lenka, learned counsel for the Petitioner attempted to submit on his
dispute to the impugned action under the premises that the Plaintiff
referring therein to be in matrimonial home, the entire action appears to
be misdirected as ultimately the order involved a residence at
Bhubaneswar.
Coming to assail the entertainability of the Revision, taking this
Court to the provision of Section 115 of C.P.C., learned counsel for the
Petitioner attempted to submit that the Revision does not lie involving the
order at Annexure-9 and it is reading through the provision indicated
herein above, Mr.Lenka attempted to justify his such claim.
Referring to the disclosures of pendency of a number of family
court proceedings before the Family Court, Bhubaneswar, learned
counsel for the Petitioner also advanced his submission in resistance of
the impugned order.
3. Mr.D.P.Dhal, learned senior counsel for the Opposite Party in his
opposition while objecting to the stand of the Petitioner on all the three
grounds again referring to the provision under Section 115 of C.P.C.
submitted that it is wrong to claim that no Revision lies involving the
order at Annexure-9. Similarly referring to the averments in other
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paragraphs of the Plaint accompanying the same, Mr.Dhal, learned senior
counsel submitted that the Plaintiff has a clear case of her residence
involved herein at Bhubaneswar. So far as the submission of the learned
counsel for the Petitioner involving pendency of family court proceedings
becoming an impediment in the entertainability of the Interlocutory
Application involved in the trial court decided under Annexure-9,
Mr.Dhal, learned senior counsel submitted that all such proceedings are
aiming to different reliefs, therefore, pendency of family court
proceedings cannot come on the way in moving the Application under the
Act, 2005. In the above circumstance, Mr.Dhal, learned senior counsel
prayed for dismissal of the Civil Misc. Petition for having no merit.
4. Considering the rival contentions of the Parties, this Court from the
factual scenario finds, Civil Suit No.1911/2020 involving the Parties
involved herein involves the following relief :-
"i) Declaring the Plaintiff's right of possession, use and
occupation and free enjoyment over the suit land;
ii) To restrain the Defendant, his agent(s),
representative(s) or any person claiming through him or under
his authority permanently by way of a decree of perpetual
injunction to drive the plaintiff out of the suit house and/or
alienate the suit house or to create any third party interest over
the suit house or to change the nature and character of the suit
house in any manner;
iii) To direct the defendant not to create any
hindrances/obstacles/barriers of free stay/occupancy in the suit
house not limited to her room but all other common facility
available in or attached with the Flat No.403-A, Bishnu
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Residency, Injana, Bhubaneswar by way of mandatory
injunction;
iv) Any other relief(s) in favour of the Plaintiff and against the
Defendants as would be deemed fit and proper in the interest of
justice may be passed."
Looking to the pleadings in the Plaint, this Court from the
disclosures in Paragraphs-11 & 12 of the Plaint finds, the Opposite Party
herein being the Plaintiff has the following disclosures :-
"11. That after transfer to Bhubaneswar the Plaintiff is
staying in the said house and her husband was also staying
with her till December, 2019 however after December, 2019
the son of the Defendant started maintaining distance with the
Plaintiff without any reason and the Plaintiff discovered from
the behavior and conduct her husband and in-laws that they are
aggrieved for not getting dowry to their expectation and
chalked out a plan to sever the marital relationship with the
Plaintiff. In order to execute their such plan the son of the
Defendant pressurized the Plaintiff to leave the job and to
work like a maid in her house. The Plaintiff however tolerated
all harassment and cruelty inflicted on her with an expectation
that they may change and accept the Plaintiff as one of their
family member and goodness to prevail on passage of time but
all in vein.
12. That the husband of the Plaintiff although staying in
his sister house at Baramunda, Bhubaneswar however is not
coming to the Plaintiff for consummation of marriage for
which the Plaintiff constrained to file case in the Family Court,
Bhubaneswar vide C.P. No.663/2020 seeking a decree of
restitution of conjugal rights in her favour."
5. Before proceeding to decide the merit involved here in this Court,
looking to the maintainability of the proceeding aspect takes into account
the provision at Sections 19 & 26 of the Act, 2005, which are reflected
herein below as follows :-
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"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. 9 (2)
The Magistrate may impose any additional condition 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.
26. Relief in other suits and legal proceedings.--(1) Any
relief available under sections 18, 19, 20, 21 and 22 may also be
sought in any legal proceeding, before a civil court, family court or a
criminal court, affecting the aggrieved person and the respondent
whether such proceeding was initiated before or after the
commencement of this Act. (2) Any relief referred to in sub-section
(1) may be sought for in addition to and along with any other relief
that the aggrieved person may seek in such suit or legal proceeding
before a civil or criminal court. (3) In case any relief has been
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obtained by the aggrieved person in any proceedings other than a
proceeding under this Act, she shall be bound to inform the Magistrate
of the grant of such relief."
Now taking into account the provision at Section 19 read with
Section 26 of the Protection of Women from Domestic Violence Act,
2005, this Court finds, for the provision indicated herein gives a scope to
the disturbing wife to apply for an order for residence and involving any
suit of such issue pending. It is in this view of the matter, this Court
observes, there is no doubt on the maintainability of such Application
being decided by both the courts.
6. Coming to the challenge of the learned counsel for the Petitioner
on the maintainability of the proceeding in the Revisional Court, this
Court takes into account the provision at Section 115 of C.P.C., which
reads as follows :-
"115. Revision - 2 [(1)] The High Court may call for the record of
any case which has been decided by any Court subordinate to such High
Court and in which no appeal lies thereto, and if such subordinate Court
appears-- (a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or (c) to have acted
in the exercise of its jurisdiction illegally or with material irregularity, the
High Court may make such order in the case as it thinks fit: 3 [Provided
that the High Court shall not, under this section, vary or reverse any order
made, or any order deciding an issue, in the course of a suit or other
proceeding, except where the order, if it had been made in favour of the
party applying for revision would have finally disposed of the suit or
other proceedings.] 4 [(2) The High Court shall not, under this section,
vary or reverse any decree or order against which an appeal lies either to
the High Court or to any Court subordinate thereto. 5 [(3) A revision
shall not operate as a stay of suit or other proceeding before the Court
except where such suit or other proceeding is stayed by the High Court."
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Reading the aforesaid provision, this Court finds, a Revision can
very well be maintained against an order either taking out the suit or
taking out even a proceeding. Finally on disposal of such proceeding, for
the opinion of this Court, the Interlocutory Application involved herein
since involves a proceeding and by finality of such proceeding, it
ultimately took away such proceeding in the present scenario, there is no
difficulty in maintaining a Revision under Section 115 of C.P.C. This
Court, therefore, rejects the contentions of the learned counsel for the
Petitioner on this score.
7. Coming to the challenge to the impugned order on the aspect of the
Act providing protection in respect of "matrimonial home" and "shared
house" mean "matrimonial home", for the submission of the learned
counsel for the Petitioner, this Court keeping in view the pleading of the
Plaintiff in Paragraphs-11 & 12, as taken note herein above, in the suit
taking into account the provision of Section 2(s) of the Protection of
Women from Domestic Violence Act, 2005, finds the same reads as
follows :-
"Section 2(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 house hold 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,
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irrespective of whether the respondent or the aggrieved person has
any right, title or interest in the shared household."
Reading the aforesaid definition, this Court finds, the provision
nowhere reflects the claim of residence only on the matrimonial home, as
it also includes a shared house having interest to stay even belonging to
joint family accommodating the aggrieved person. Thus undisputedly, it
includes a shared household. Reading the definition quoted herein above
on specific claim of the Petitioner pertaining to shared household at
Bhubaneswar and the Plaintiff/ Daughter-in-law has clear pleading
through the Plaint, this Court finds, there is justified claim by the Wife
involving right to residence in the shared household, particularly at
Bhubaneswar. It is in this view of the matter, this Court finds, there is no
force in the submission of the Petitioner and further there is no infirmity
in deciding such issue in the manner by the Revisional Court.
8. Coming to challenge the impugned order on the premises of
pendency of the family court proceedings, this Court observes, the issues
in all three proceedings the suit and the family court proceedings are
completely different and clearly aiming for different orders. For the
opinion of this Court, there is no impediment in deciding the issue
involved herein in the pendency of the suit and even in pendency of the
matrimonial proceeding.
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9. In the given scenario and the married Wife being deprived of right
to residence, this Court observes, the Husband has a duty to maintain his
Wife and having failed to cast such duty in the present and for the contest
so far on the issue of residence of a married Wife, for the opinion of this
Court, minor discrepancies here and there should not be given a handle to
the Husband and Father-in-law to deprive the deserted Wife to at least get
minimum dignity in maintaining her life.
10. It is in the light of above discussions, this Court looking to the
reasoning of the 2nd Additional District Judge, Bhubaneswar finds, there
is appropriate consideration of the issue involved, which does not require
any interference. As required under law, copy of the order at Annexure-
13 and judgment of this Court be served on the concerned Magistrate and
also on the protection office functionaries under the Act, 2005 by the
Opposite Party for effective implementation of the direction therein.
11. While parting away, this Court however observes, whatever
observations and findings arrived at involving the Miscellaneous
Proceeding involved herein shall not stand on the way for ultimate
decision in the suit.
12. It is in the above view of the matter, this Court finds no substance
in the ultimate submission of the learned counsel for the Petitioner
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requiring to interfere in the impugned order. The Civil Misc. Petition is
therefore, dismissed but however there is no order as to cost.
...............................
(Biswanath Rath, J.) Orissa High Court, Cuttack. The 12th January, 2022/M.K.Rout, A.R.-cum-Sr.Secy.
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