Madhya Pradesh High Court
Smt. Mahima Rajput vs Vikram Singh Yadav on 12 September, 2019
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
CRR-428-2016
THE HIGH COURT OF MADHYA PRADESH
CRR-428-2016
(Smt. Mahima Rajput Vs. Vikram Singh & Ors.)
Gwalior, Dated : 12/09/2019
Shri R.P. Gupta, learned counsel for the petitioner.
Shri Atul Gupta along with Shri Deepak Khot, counsel
for the respondent No.2.
This revision has been filed, under section 397/401 of Code of Criminal Procedure (hereinafter referred to as "the Code"), against the judgment dated 22/01/2016 passed by First Additional Sessions Judge, Morena in Criminal Appeal No.266/2015, whereby order dated 05/12/2015 passed in MJC No.324/2014 by JMFC, Morena has been modified.
The brief facts leading to filing of this case are that the petitioner has filed application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Act") stating therein that the petitioner and respondent No.1 got married on 31/05/2010 and out of the wedlock, one daughter namely- Ku. Aradhya was born. After marriage, respondent No.1/husband started meeting out cruelty and harassment to the petitioner stating that he received less dowry and started demanding Rs.5,00,000/- more. Since the demand could not be fulfilled, the respondent No.1 continued harassing the petitioner, due to which, she had no alternative but to file application under 2 CRR-428-2016 Section 12 of the Act. The said application was decided vide order dated 05/12/2015. The trial Court directed the respondents herein to allot a portion of the house for her residence situated at Saat Bhai Ki Goth, Madhoganj, Lashkar, Gwalior. Being aggrieved by the order dated 05/12/2015, respondents preferred an appeal under Section 29 of the Act before Sessions Judge, Morena. The appellate Court vide order dated 22/01/2016 set aside the order dated 05/12/2015 and directed the respondents herein to pay a sum of Rs.2,000/- per month to the petitioner herein till decision of MJC No.324/2014. Learned Appellate Court set aside the order on the ground that the petitioner had filed an application under Section 12 of the Act stating therein that respondents were greedy persons and for want of dowry, they might commit her murder and thereafter, respondent No.1/husband wanted to re- marry. It was also stated that the respondent No.1/husband wanted all of them to be implicated in various other cases. In such circumstances, the petitioner felt insecure and had prayed that she may be given alternative accommodation where she can live along with her daughter. On the basis of aforesaid, learned Appellate Court set aside the order dated 05/12/2015 and directed respondents to pay a sum of Rs.2,000/- per month till decision of MJC No.324/2014.
Being aggrieved, the petitioner filed present revision on 3 CRR-428-2016 the ground that Appellate Court erred in setting aside the order dated 05/12/2015 and directed to pay Rs.2,000/- which is bad in law. According to Section 17 of the Act, every woman in a domestic relationship has right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. Respondents are having three houses, out of which the petitioner is entitled to reside in one portion of any house belonging to respondent No.1/husband. On these grounds, learned counsel for the petitioner prays for setting aside the Appellate order dated 22/01/2016.
On the other hand, Shri Atul Gupta, Advocate appearing for the respondent No.2 submitted that order passed by the Appellate Court is just and proper. Trial Court had not considered the fact that claim for alternative accommodation can only be made against the husband and not against the in- laws. Wife is only entitled to reside in the shared household and "shared household" would only mean that the house belongs to the husband, the house is on rent or the house belongs to joint family of which husband is a member. In the present case, trial Court without considering this aspect held that the petitioner is entitled to live in the "shared household". Order passed by the Appellate Court is just and proper particularly in view of the fact that petitioner had expressed her anxiety with regard to her safety while residing with 4 CRR-428-2016 husband and in-laws and so called apprehension of threat which petitioner was facing. The Appellate Court has rightly passed the order granting Rs.2,000/- per month as an alternative to the shared accommodation. Accordingly, order passed by the Appellate Court deserves to be affirmed.
Heard learned counsel for the parties. Learned trial Court failed to consider the fact that though the woman in domestic relationship has the right to reside in the shared household but the house must belong to husband or must have been taken on rent by the husband then only she can reside in "shared household". The Apex Court had the occasion to consider similar circumstances in the case of S.R. Batra & Anr. Vs. Taruna Batra (Smt.) [(2007) 3 SCC 169] wherein it has been held as under:-
"15. In the same decision it was observed:
"it may be that with change of situation and complex problems arising it is high time to give the wife or the husband a right of occupation in a truly matrimonial home, in case of the marriage breaking up or in case of strained relationship between the husband and the wife."
16. In our opinion, the above observation is merely an expression of hope and it does not lay down any law. It is only the legislature which can create a law and not the Court. The courts do not legislate, and whatever may be the personal view of a Judge, he cannot create or amend the law, and must maintain judicial restraint.
17. There is no such law in India, like the British Matrimonial Homes Act, 1967, and 5 CRR-428-2016 in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.
22. Apart from the above, we are of the opinion that the house in question cannot be said to be a "shared household" within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act'). Section 2(s) states:
"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 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;".
24. Learned counsel for the respondent Smt. Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household.
26. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grand parents, his 6 CRR-428-2016 maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.
27. It is well settled that any interpretation which leads to absurdity should not be accepted.
28. Learned counsel for the respondent Smt Taruna Batra has relied upon Section 19(1)
(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's in-laws or other relatives.
29. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a "shared household" would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a "shared household".
(Emphasis Supplied) Admittedly, the petitioner is not residing with the respondents but is residing at Morena. Real import of Section 17 of the Act can only be invoked if the wife resides with 7 CRR-428-2016 husband. The Appellate Court while setting aside the order dated 05/12/2015 had taken into consideration the application filed by the petitioner regarding perceived threat to her life and had passed the order directing grant of Rs. 2,000/- per month till the decision of MJC No.324/2014.
Respondents herein have filed certain documents alongwith list of documents on 12/09/2019 to show that respondent No.1 has no share in the property/houses where the petitioner would become entitled for right to reside in the "shared household".
Accordingly, this Court does not find any error in the order passed in appeal so as to call for interference. Revision being devoid of merits and substance is hereby dismissed.
Records of the Court below be sent back to the concerned Court immediately.
Trial Court is also directed to decide MJC No.324/2014 as expeditiously as possible preferably within a period of three months from the date of receipt of record.
(S.A. Dharmadhikari) Judge rahul RAHUL SINGH PARIHAR 2019.09.16 18:36:56 +05'30'