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Section 19 in The Protection of Women from Domestic Violence Act, 2005
The Protection of Women from Domestic Violence Act, 2005
Section 26 in The Protection of Women from Domestic Violence Act, 2005
Section 22 in The Protection of Women from Domestic Violence Act, 2005
Article 227 in The Constitution Of India 1949

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Bombay High Court
Rajkumar Rampal Pandey Aged vs Housewife on 26 August, 2008
Bench: V.C. Daga
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               APPELLATE SIDE




                                                                     
                      WRIT PETITION NO. 5730 OF 2008.
                                                2008




                                             
     Rajkumar Rampal Pandey Aged
     about 30 years, Occu Service,
     R/o    Room     No.    6/231,
     Maharashtra Housing    Board,
     Chunnabhatti, Mumbai-22.




                                            
                                                     ..     Petitioner.

                Vs.




                                  
     Sarita Rajkumar Pandey Aged
     about    26     years,    Occ.

     Baug
     Cross
            Bldg.
             Road
                  
     Housewife, R/o A/11, Tulsi
                      Chandavarkar
                    No.1    Borivli
     (West), Mumbai 400 92.
                 
                                                       .. Respondent.

     Mr S.   B.    Shetye, Advocate for the Petitioner.
      


     Mr A.   A.    Walwaikar, Advocate for the Respondent.
   



                                    CORAM:      V. C. DAGA, J.

                                    DATED:      26. 08. 2008.

     JUDGMENT:

---------

1. Rule, returnable forthwith. Heard finally by consent of parties. Perused the petition.

2. This petition, filed by petitioner-husband under Article 227 of the Constitution of India, is directed against the order dated 29.7.2008 passed ::: Downloaded on - 09/06/2013 13:45:54 ::: below Exh. 10 in Petition No. A-113 of 2007 by the Principal Judge of the Family Court, Bandra, Mumbai whereby the petitioner, his mother, sister, other relatives, servants and agents are restrained from obstructing the respondent-wife to reside in a shared household.

FACTUAL MATRIX:

--------------

3. The petitioner and respondent got married on 18.5.2001. The Petitioner is working as marketing executive.

ig Sometime in the month of February, 2004, the respondent-wife joined the Petitioner and started residing with him in the shared household. The continuous acrimony between them resulted in matrimonial discord, leading to divorce petition by the husband on the ground of mental cruelty being Petition No.A-113/2007 and criminal complaint under Sections 498-A, 306 read with Section 34 of the Indian Penal Code by the respondent-wife against the petitioner-husband.






     4.        The    respondent-wife        moved          an       application

     before    the    Family Court, Bandra under Section 26                          of

     the    Protection       of Women from Domestic Violence                     Act,

     2005    ("the Domestic Violence Act" for short) to                          seek




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     declaration      that   she   has a right to reside                    in     the

     shared     house    i.e.   residential flat No.A-                  102,       "Om




                                             
     Adarsh     Co-op.    Housing Society Ltd.              Deonar," Gowandi

     (hereinafter       called the "subject-flat") and decree of




                                            
     permanent      injunction restraining            respondent-husband,

     his    mother and relatives from evicting, dispossessing

     and/or     excluding the respondent-wife from the subject




                                  

flat is said to be a shared household.

5. The igaforesaid application was opposed by the petitioner-husband, on the various grounds, contending that the subject flat is in the name of his mother.

The another flat situate at "Parnakuti, Chunna Bhatti"

is in the name of his grandfather, occupied by his aunt and other relatives. In short, he denied his interest in the subject-flat. He has also challenged the maintainability of the subject application and prayed for rejection thereof.

6. The Family Court, after hearing both parties, was pleased to partly allowed the application with the result the petitioner-husband and all relatives were permanently restrained from committing any act of ::: Downloaded on - 09/06/2013 13:45:54 ::: ( 4 ) domestic violence and in turn rejected prayer of respondent-wife to prevent the petitioner's mother and sister from entering in the shared household.

7. Being aggrieved by the aforesaid order,to the extent it is adverse to the petitioner, he has invoked writ jurisdiction of this Court under Article 227 of the Constitution of India as stated hereinabove.

RIVAL CONTENTIONS:-

------------------

8. The learned counsel appearing for the Petitioner urged that the application under Section 26 of the Domestic Violence Act was not maintainable and that the subject-flat cannot be termed as the shared household. He submits that the petitioner's father was an employee of the Bombay Municipal Corporation as a primary teacher. He formed one Co-operative Housing Society under the provisions of the Maharashtra Co-operative Societies Act, 1960 ("the M.C.S.Act" for short). The Bombay Municipal Corporation was pleased to allot one plot of land to the said Society. The members of the said Society constructed tenements on ::: Downloaded on - 09/06/2013 13:45:54 ::: ( 5 ) the said plot of land. The petitioner's father was one of the members allotted with one such tenement referred herein as subject flat. He expired on 27.5.2001. After his demise, the subject flat was transferred in the name of his widow i.e. the petitioner's mother being a nominee. He further submits that the subject-flat stands in the name of the petitioner's mother as such subject flat cannot be said that his to be the shared household.

mother is not a party to the proceeding He further submits in the Family Court. As such, the impugned order could not have been passed affecting her interest, that too, behind her back. He further submits that the Respondent comes from a rich family and that she is not in need of residential accommodation. He further went on to submit that the subject-flat has, now, been sold by his mother vide sale deed dated 2.1.2008 to one Mr Abdur Rashid Abdul Hakim. As such, no injunction in respect of the subject-flat styling it as the "shared household" could have been granted.






     The    petitioner        has   also filed an affidavit                           of     his

     mother      wherein she is claiming to be the owner of the

     subject      flat    and    states       on             oath       that      she        has




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     transferred,       assigned     and relinquished                all      rights,

     title     and/or interest in respect of the                     subject-flat




                                                
     in    favour     of     the purchaser and that she is                    not      in

     possession thereof.




                                               
     9.         The    petition     is    strongly            opposed         by     the




                                   
     learned     counsel for the respondent-wife and supported
                    

the impugned order on facts and law both.

STATUTORY PROVISIONS:

--------------------

10. Before embarking upon the rival submissions it is necessary to note that the Domestic Violence Act was enacted on 13th September, 2005 to provide more effective protection of the rights of women, guaranteed under the Constitution, who are victims of violence within the family and to deal with the matters connected therewith or incidental thereto.


     The    purpose     of the Act is to provide remedy                       in     the

     civil     law     for    protection      of       women         from        being




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     victimised   by   domestic violence and to                       prevent         the

occurrence of domestic violence to the society.

11. With the aforesaid aim and objects of the Domestic Violence Act, now, let me turn to the provisions of the Act relevant for the decision of this petition.

Section 2 (s) "Shared household".

-------------------------------

"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."

SECTION : 19. Residence orders.

--------------------------------

(1)While disposing of an application under subsection (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-
            (a)        ..




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               (b)         ..

               (c)      restraining the respondent or any of




                                             
his relatives from entering any portion of the shared household in which the aggrieved person resides;
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 subsection (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 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."

12. Reading of the aforesaid provisions would go to show that Section 26 provides that any relief available under Sections 18, 19, 20, 21 and 22 can 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 ::: Downloaded on - 09/06/2013 13:45:54 ::: ( 9 ) proceeding was initiated before or after the commencement of this Act.

13. It is, therefore, clear that a relief available under Section 19 of the Domestic Violence Act can also be claimed under Section 26 of the Act.


     Section    19 (1) (c) provides that a court can restrain




                                  
     the    respondent or any of his relatives from                           entering

     any    portion
                     ig of

     aggrieved person resides.
                               the shared household                in

                                         Section 19 (1) (a) provides
                                                                          which        the
                   
     that    the    order      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, can be

     granted.





     CONSIDERATION:
     -------------





     14.       Having     heard both parties and having examined

     the    statutory relevant provisions, it is not possible

     to    accept   the contention of the petitioner that                              the

     application      under       Section            26         moved         by       the




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respondent-wife, was not maintainable.

15. The contention of the petitioner that, the subject-flat was owned by his mother, as such, the petitioner had no right, title or interest in the subject-flat and that the it has already been sold by his mother under a sale deed, dated 2.1.2008 executed, in favour of Mr Abdur Rashid Abdul Hakim, cannot be accepted for the reasons stated hereinafter.

16. The learned counsel appearing for the Petitioner was fair enough to produce the photo copy of the sale deed dated 2.1.2008 executed by the mother of the Petitioner for the perusal of the Court. The said sale deed is not a registered document. It is scribed on the stamp paper of Rs.100/-. It is insufficiently stamped. It refers to a payment of consideration by cheque dated 1.2.2008. However, there is no material on record to show encashment of the said cheque. Insufficiently stamped and unregistered sketchy sale deed, without relevant recitals, leads me to draw an inference that the said deed is a bogus document of sale brought into ::: Downloaded on - 09/06/2013 13:45:54 ::: ( 11 ) existence just to defeat the right of the present respondent-wife and to get over the impugned order passed by the Family Court. The alleged sale deed did not extinguish the right, title and interest of the vendor in the subject flat. Title did not pass over to the alleged purchaser. The alleged sale deed is inadmissible in evidence. The purported sale deed dated 2.1.2008 does not create any right, much less right, Abdul Hakim.

title or interest in favour of Mr Abdur Rashid As stated herein, the title still vests with the original owner.

17. Now, let me examine the question: whether the petitioner husband has any interest in the subject flat so as to bring it well within the sweep of a shared household?

18. The learned counsel for the petitioner has produced the share certificate issued by the Co-operative Housing Society in whose building subject flat is located. The share certificate is in the name of Rampal Rajaram Pandey i.e. father of the petitioner (since deceased). With the death of Rampal ::: Downloaded on - 09/06/2013 13:45:54 ::: ( 12 ) Pandey the said flat stood inherited by the Petitioner and his mother with other legal heirs, if any. The nominee does not become owner of the property.

Nominee holds property for the benefit of the heirs.

The petitioner's son is one of the legal heirs having interest in the subject-flat by virtue of inheritance.

He is not a party to the alleged transaction of sale.

Consequently, it has to be treated that he still has a can be interest in the subject-flat.

                 treated     as    the
                                              The subject-flat, thus,

                                         shared     household,            wherein
                    
     admittedly,      the    respondent-wife lived in a                 domestic

relationship with the petitioner.

19. At this stage, it is relevant to mention that during the course of hearing a misleading, rather false, statement was made stating that the share certificate issued by the Society was in the name of the mother of the petitioner. The statement was found, factually, incorrect. It is, thus, clear that every attempt was made by the petitioner to defeat the legitimate right of the respondent-wife.




     20.        Having     said    so,   having     examined          the      well




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     reasoned       impugned order, the Family Court has rightly

     held     that      it   had     jurisdiction             to    entertain           the




                                                     
     application         and that the respondent-wife has made out

     a     prima facie case for grant of order in her                            favour.




                                                    
     That     is    how,     the impugned order was passed                       by     the

Family Court impugned in this petition.




                                    
     21.          The    learned counsel for the petitioner placed

     heavy

     the     case
                     
               reliance

                     of S.
                              on the judgment of the Apex Court

                               R.    Batra and Anr v.                 Taruna
                                                                                          in

                                                                                      Batra
                    
     (Smt)    (2007) 2 Supreme Court Cases (Cri) 56.
                                                 56                              In     the

     said    judgment        the    shared         household          was        neither

     belonging       to husband - Amit Batra nor it was taken on
      


     rent    by     him.     It was not a joint family property                           of
   



     which    husband Amit Batra was a member.                        It was in the

exclusive possession of Appellant No.2, mother of Amit Batra, hence, it was held that such an accommodation or house cannot be called as a shared household. So far as the case in hand is concerned, the petitioner-husband has undivided interest in the house after death of his father. His father died intestate.


     Consequently,           the     flat      was        inherited            by       the

     petitioner-husband             along      with        other        heirs.          The




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alleged transaction of transfer is nothing but a bogus transfer brought about to defeat the claim of the respondent-wife.

22. In the above view of the matter, the petition is liable to be dismissed. In view of the false and misleading statement made by the petitioner coupled with the act of preparing a bogus document to defeat the claim petition of will the respondent mere dismissal not serve the ends of justice.

                                                                           of     the

                                                                                  The
                   
     petition     is, thus, dismissed.          Rule stands discharged

     with    costs quantified in the sum of Rs.                   25,000/-          to

     be    paid   by   the petitioner         to    the      respondent-wife
      


     within four weeks from today.             Order accordingly.
   





                                                       (V. C. DAGA, J.)





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