Chhangur Ram Nishad Vs State Of U.P. And Another

Allahabad High Court (Single Judge)

CRIMINAL MISC. CASE, 1418 of 2015, Judgment Date: Apr 27, 2015

Case :- CRIMINAL REVISION No. - 1418 of 2015
Revisionist :- Chhangur Ram Nishad
Opposite Party :- State Of U.P. And Another
Counsel for Revisionist :- Arvind Upadhyay
Counsel for Opposite Party :- Govt.Advocate
Hon'ble Naheed Ara Moonis,J.
Heard learned counsel for the revisionist as well as Sri Santosh Kumar Singh
"Paliwal", learned counsel appearing on behalf of the opposite party no.2 and
the learned A.G.A. and also perused the material placed on record.
The instant criminal revision has been filed by the revisionist against the order
dated 7.4.2015 passed in Criminal Appeal No.62 of 2014 (Chhangur Ram
Nishad Vs. State of U.P. and another) as well as order dated 19.7.2014 passed
by learned Judicial Magistrate, Court no.22, Azamgarh in Misc. Case No.727
of 2014 (Smt. Bindu Devi Vs. Chhangur Ram Nishad and others), under
Section 12 of Protection of Women From Domestic Violence Act, 2005
(hereinafter referred as an Act).
The submission of the learned counsel for the revisionist is that the revisionist
is the father-in-law of the opposite party no.2, who had moved an application
under Section 12 of the Act against the revisionist. The husband of opposite
party no.2 expired on 27.7.2008 and since then the opposite party no.2 is
residing at her parental house. The opposite party no.2 had also moved an
application under Section 125 of the Code of Criminal Procedure for claiming
maintenance allowance. Hence the institution of case under Section 12 of the
Act is malicious intent to grab the property of the revisionist over which the
opposite party no.2 has no right or title legally and factually both. But the
court below in a mechanical manner without considering the entire facts and
circumstances of the case granted interim maintenance of Rs.3000/- per
month to the opposite party no.2 and her three children and further directed
that the opposite party no.2 shall also reside along with her father-in-law and
the in-laws will not cause any hindrance in her peaceful living in the house.
The revisionist was also refrained from causing any mental or physical cruelty
which comes within the purview of Domestic Violence Act. The revisionist
aggrieved with the aforesaid order dated 9.7.2014 passed by the learned
Magistrate preferred the appeal before the District Judge. The District Judge
has affirmed the finding recorded by the trial court by order dated 7.4.2015.
The order passed by the two courts below are absolutely unjust, illegal and
against the provision of law as well as against the dictum of the Apex Court in
S.R. Batra Vs. Taruna Batra reported in AIR (SC)-2007-0-118 wherein the
Apex Court has made observation with regard to the shared house which is
being quoted here as under:
"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'."
Therefore, the orders passed by the two courts below to allow the opposite
party no.2 (daughter-in-law) to live along with the revisionist is against the
dictum of the Apex Court as she is not entitled to live along with her fatherin-
law which do not come within the purview of shared household.
Learned counsel for the complainant has contended that the orders passed by
the two courts below do not call for any interference by this Court as all the
aspects of the case have been considered. The court below has passed the
order directing the revisionist to pay interim maintenance of Rs.3000/- to the
opposite party no.2 and her three children as well as to allow her to live along
with her father-in-law as her husband expired in the year 2008. The revisionist
has failed to comply with the aforesaid order passed by the learned
Magistrate. Neither a single penny has been given to the opposite party no.2
nor she is being allowed to live in the house after her husband's death which is
not only clear violation of two orders but also against the provision of law.
The learned appellate court has also committed no mistake in affirming the
order passed by the learned Magistrate while directing the revisionist to
comply with the order passed by the learned Magistrate.
Now the revision has been preferred by the revisionist against the concurrent
finding given by the two courts below. There is no illegality or perversity in
the orders impugned. The opposite party no.2 is entitled to live in the house of
her father-in-law as it is not the case of the revisionist that the house in
question is his own property whereas his deceased son and daughter-in-law
and all were living jointly under the same roof
I have considered the rival submissions of the learned counsel for the
revisionist as well as learned counsel for the opposite party no.2 and also gone
through the material placed on record.
From perusal of the record it transpires that opposite party no.2 is the widow
of revisionist's son who expired in the year 2008. Thereafter she was ousted
from her matrimonial house and she was living along with her parents along
with her three children.
Indisputably the opposite party no.2 is legally wedded wife of the son of the
revisionist. The trial court has recorded finding that opposite party no.2 is
unable to maintain herself and her three children. The opposite party no.2 did
not get any financial assistance either from the revisionist or anyone else. The
revisionist was responsible for the delay in deciding the application. The aim
of the Domestic Violence Act 1995 is to reduce and prevent violence in
domestic relationships by recognising that domestic violence in all its forms is
unacceptable behaviour, and by making sure there is effective legal protection
for victims of domestic violence. The courts must be guided by this aim
whenever they are exercising a power under the Act to protect the recurrence
of domestic violence in the society especially within the family by her
husband or his relatives. The Act empowers the Magistrate to pass protection
order in favour of aggrieved person. An aggrieved person is defined in
Section 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;
(f) "domestic relationship" means a relationship between two persons who
live or have, at any point of time, lived together in a shared household, when
they are related by consanguinity, marriage, or through a relationship in the
nature of marriage, adoption or are family members living together as a joint
family;
(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.
The aggrieved person the daughter-in-law, the opposite party no.2 is entitled
to use enjoy and access to the shared household. The prohibition or putting
any kind of restriction comes within the definition of domestic violence as
provided under Section 3 of the Act. Section 17 also provides aggrieved
women in a domestic relationship shall have the right to reside in the shared
household, whether or not she has any right, title or beneficial interest in the
same and the aggrieved person shall not be evicted or excluded from the
shared household or any part of it by the respondent save in accordance with
the procedure established by law.
Therefore, the case cited by the learned counsel for the revisionist is not
applicable under the facts and circumstances of the present case.
In view of the above conspectus the impugned orders do not call for any
interference. Accordingly, this revision has no merit and is hereby dismissed.
The court below is directed to proceed against the revisionist in respect of
execution of the order passed by the two courts below.
Order Date :- 27.4.2015
Mt/