Smt. Deep Sharma And Another vs Smt. Binu Sharma And 6 Others

Court: Allahabad High Court

Bench: JUSTICE Mrs. Jyotsna Sharma, J.

Smt. Deep Sharma And Another vs Smt. Binu Sharma And 6 Others on 24 May, 2023

Law Point:

 Domestic Violence courts cannot pass ordere against ant to 22 clearly show that relief can only be granted against respondent

JUDGEMENT

1. Sri Rahul Sripat, learned Senior Advocate assisted by Sri Ishir Sripat, learned counsel for the revisionist, Sri Randhir Singh, learned counsel for respondent no. 1 and Sri O.P. Mishra, learned AGA for the State, are present. None responds on behalf of respondent nos. 2 to 6.

2. By means of this criminal revision the revisionist Smt. Deep Sharma and Yagyawal Sharma have challenged an order dated 27.08.2022 passed by Special Judge (Gangster Act) Additional District and Session Judge, Court No. 6, Ghaziabad in a criminal appeal no. 204 of 2019, under Section 29 of the Protection of Women from Domestic Violence Act, 2005, Police Station Sahibabad, District Ghaziabad arising out of Case No. 585 of 2019 (Smt. Binu Sharma vs. Dhirendra Kaushik and Others), under Sections 12, 18, 19, 20, 21, 22, 23 of the Protection of Women from Domestic Violence Act, 2005, by which the appeal was partly allowed and the order passed by the trial court was modified.

3. Heard Sri Rahul Sripat, learned Senior Advocate assisted by Sri Ishir Sripat, learned counsel for the revisionist, Sri Randhir Singh, learned counsel for respondent no. 1 and Sri O.P. Mishra, learned AGA for the State and perused the material on record. None responds on behalf of respondent nos. 2 to 6.

4. The relevant facts are as below:-

The respondent no. 1-Smt Binu Sharma filed against final order passed in a complaint case no. 585 of 2019 against her husband, father in-law, mother in-law, jeths and jethanis under Section 12 of the Protection of Women from Domestic Violence Act (herein after referred to “the Act”)with certain allegations; the trial court gave a finding that her husband committed domestic violence and not rest of the opposite parties; the learned trial court allowed the relief to the revisionist/applicant Smt. Binu Sharma by order dated 11.09.2019 under Sections 18, 19, 20 and 22 of the Act against her husband only; the appellant Binu Sharma filed an appeal no. 204 of 2019 against the respondents challenging the trial court’s order with a prayer that she is entitled for relief against all the respondents who included her mother in-law, father in-law, jeths and jethanis; her husband-Dhirendra Kaushik filed another (cross) appeal no. 209 of 2019 against his wife praying for setting aside the order of the trial court dated 11.09.2019; the learned appellate court heard both the appeals together and modified the order to certain extent; the learned appellate court, partly allowing the appeal no. 204 of 2019 modified the relief granted under Section 19 of the Act to the extent that all the respondents/opposite parties were directed to not to interfere in her right to entry and residence in a shared household and dismissed the rest of the prayer of the appellant Smt. Binu Sharma; At the same time the learned appellate court partly allowed the appeal of husband appeal no. 209 of 2019 and modified the relief granted under section 20 of the Act to the extent that the wife shall be entitled for Rs. 6,000/- per month instead of earlier Rs. 8,000/- per month and their daughter shall be entitled for Rs. 5,000/- per month instead of earlier Rs. 6,000/- per month; the learned appellate court dismissed the appeal for the rest of the reliefs claimed by the husband; the learned trial court affirmed rest of the order passed by the trial court excluding the portions as above.

5. The grounds taken in this revision are as below:-

(i) The order passed by the appellate court is devoid of reasoning, is illegal and passed against the evidence available on record;

(ii) The son of the revisionist i.e. husband of Smt. Binu Sharma has not been residing with their parents and instead he resided in a rented accommodation in District Gautam Buddh Nagar and this fact is admitted therefore the appellate court cannot legally direct the revisionist to let their daughter in-law reside in their house where the revisionist are residing;

(iii) The house in question was purchased by the revisionist no. 1 out of her own personal resources and that she broke all relations with her son and daughter in-law and therefore, the revisionist cannot be compelled to accommodate the respondent no. 1; their accommodation cannot be treated as shared household; moreover there is a finding given by the appellate court that no domestic violence was committed by the revisionists, therefore no relief can be given against them;

(iv) The husband, has stated in a reply filed in misc. case no. 26 of 2020 filed under Section 31 of the Act that he is ready to keep his wife with him or in any other rented accommodation of his choice, hence it is not at all justified for the court to direct the revisionists to let her reside in their own house;

(v) The trial court failed to appreciate the fact that they produced enough of evidence by filing CCTV footage and other material to show that it was their daughter in-law who has been harassing them and assaulted them on several occasions and that the revisionist are senior citizens, hence granting relief against them is not only illegal but is nothing but abuse of process of law; the proceeding initiated by the daughter in-law is malafide and malicious;

(vi) The directions given by the appellate court are against the pleading of the parties and against the evidence given by the both the sides, hence is liable to be set aside.

6. For clarity it is repeated that the contentions of the respondent no. 1-Smt. Binu Sharma are that she, used to reside in the residence at Ghaizabad, with her in-laws, therefore, the Ghaziabad residence is her shared household and she has right to reside there; In this view of the matter the directions given by the court cannot be faulted and are correct factually and legally both.

7. It may be noted at the very outset that the trial court while allowing the application filed by Smt. Binu Sharma (against her husband and rest of her family members as well) granted relief against her husband only and no direction was passed against the present revisionist (or any other members of husband’s family). For clarity, it may be repeated that her husband (respondent no. 2 herein) was directed not to commit any domestic violence, provide for her safe entry and residence in the shared household or to provide rent for separate accommodation in alternative and certain other monetary reliefs under Sections 20 and 22 of the Act; the revisionists have challenged the appellate court’s order insofar as they were directed to provide safe entry and residence in the shared household at Ghaziabad; rest of the order passed by the trial court is unchallenged.

8. From the perusal of the material on record and from the arguments of both the sides, there is no serious challenge to the facts that the husband has been living separately in Gautam Buddh Nagar since the disputes arose and that the wife is claiming her right to reside in a house, in which undisputedly her father in-law and mother in-law and rest of the family members are presently residing. This evidence has come before the court below that initially the husband and the wife have been residing in ground floor and other member of husband’s family were residing on first and second floor of the same house. The main crux of the arguments of the revisionists is that they produced evidence before the court below to show that it was their daughter in-law who has been harassing and assaulting them, therefore the order is not at all proper and justified and that, as that house is a separate house owned exclusively by Smt. Deep Sharma (the mother in-law) purchased from her own resources, therefore, it cannot be treated as shared household. In addition, this fact is vehemently stressed by the revisionist that no finding has been given by the courts below that they ever committed any domestic violence, therefore legally such an order cannot be passed against them.

9. In this case the learned trial court evaluated and appreciated evidence given by both the sides and gave a finding that the husband and wife have been living together in a house at Ghaziabad on ground floor only and that rest of the family members were staying at upper floors. On the basis of the aforesaid facts as well as certain other facts and circumstances, the trial court took a view that it was husband alone who indulged in domestic violence against his wife and that she failed to prove the allegations against rest of them. The learned trial court on the basis of appreciation of evidence found no real challenge to the fact that the house at Ghaziabad was a shared household, therefore, wife was entitled to stay there. However, most probably in the light of certain facts coming in evidence, the learned trial court found it proper to make a provision for alternative relief of providing certain amount as rent for separate accommodation, that too subject to certain conditions. Now the court has to look for the reasons which prompted the learned appellate court to modify the trial court’s order regarding shared household/rented accommodation.

10. In this view of the matter, I perused the judgment of appellate court. The learned appellate court formally framed some points of determination. The learned appellate court went on to discuss the definition of shared household given in relevant law. It found that the house/residence in question came within the definition of shared household. What is important to be noticed that the appellate court, thereafter considered the question of commission of domestic violence and affirmed the finding given by the learned trial court that no domestic violence was committed by the rest of the family members, (who included the present revisionists). The learned appellate court observed and affirmed the aforesaid finding in view of facts that the husband and the wife once lived together on the ground floor and rest of the family members on upper floors; and that not only they were residing separately but they have been separate in the matters of fooding as well; they were having separate arrangements in other aspects of living.

11. In para 7 of the judgment, while on one hand the learned appellate court agreed with the view taken by the learned trial court that no domestic violence was committed by rest of the family members (except husband), went on to consider the arguments given by the appellants that in case the relief under Section 19 of the Act is not given against rest of the family members then it will not be possible for her to reside and stay in the ground floor of the same house without interference. The learned appellate court held as below:-

“उक्त के अवलोकन से स्पष्ट है कि धारा 19 घरेलू हिंसा अधिनियम का अनुतोष अन्य विपक्षीगण के विरुद्ध नहीं दिया गया है जबकि यह तथ्य स्थापित है कि उस भवन में सभी विपक्षीगण किसी प्रक्रम्य पर एक साथ निवास करते थे। यह तथ्य भी उल्लिखेनीय है कि परिवादिनी द्वारा प्रस्तुत प्रार्थना पत्र के बाद परिवादिनी के सास ससुर के द्वारा अपने लडके धीरेन्द्र के साथ अथवा परिवादिनी के पति को अपने सम्पत्ति से बेदखल कर दिया गया है। ऐसी स्थिति में तो अन्य विपक्षीगण के विरुद्ध धारा 19 का अनुतोष नही दिया जाये तो विचारण न्यायालय के द्वारा दिया गया आदेश निष्प्रभावी हो जायेगा क्योकि अन्य विपक्षीगण का हस्तक्षेप स्वभाविक है। ऐसी स्थित में धारा 19 की बावत दिया गया निर्णय परिवर्तित किये जाने योग्य है तथा अपीलार्थी के इस तर्क के आधार पर आलोच्य निर्णय में परिवर्तन किया जाना उचित है।”

12. The Protection Women from Domestic Violence Act, 2005 has certain social purpose to achieve. The object of this Act is to protect the women who have been subject to domestic violence. The reliefs which may be granted under this Act are quite wide in extent. There is an attempt to take care of all the probable reliefs leaving scope for moulding them which, in the peculiarity of circumstances of each case may be required. The moot point which arises in this case is whether any kind of directions can be issued to any person in domestic relationship when the complainant failed to prove the allegations of domestic violence against him?

13. I find it pertinent to reproduce Section 19 of the Act which is as below:-

“(1) While disposing of an application under sub-section (1) of section 12, 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.

(2) The Magistrate may impose any additional conditions 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.”

Bare perusal of Section 19 of the Act demonstrates that order can only be passed against a respondent. Now a question arises who is a respondent?

14. I went through the provisions of law given in the Act. The scheme of things, in my view appears that the women should be protected from any person, who is guilty of committing domestic violence as defined in section 3 of the Act. All kinds of probable violence have been included in the definition, but by no stretch of imagination, it can be construed that a person against whom allegations of domestic violence could not be proved can be directed under the provisions of section 18 and 19 etc under Chapter IV of the Act. The courts are not empowered to direct any person whose act does not fall in the purview of the Act.

Section 2(a) which defines an aggrieved person under the Protection of Women from Domestic Violence Act, 2005 is as below:-

“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.”

Meaning thereby the respondent must not only stand in domestic relationship with the aggrieved person but he should be one who has subjected the aggrieved person to domestic violence. Chapter IV of the Protection of Women from Domestic Violence Act, 2005 enumerates the kinds of orders which can be passed against the ‘respondent’. The perusal of the provisions of Sections 18 to 22 clearly show that the relief can only be granted against the respondent/respondents. In case the above provisions are read together the only reasonable and sensible conclusion which can be drawn is that any person who is not a respondent or who is not found involved in domestic violence, cannot be brought within the purview of this Act. The courts cannot pass order against any other person on the basis of perceived threats or interference. If such a course of action is allowed this shall set a very dangerous trend, the consequences whereof cannot be foreseen. It may happen that any person whether or not standing in any domestic relationship and whether or not, has committed domestic violence may become subject of mischief which may see no end. The reasoning given by the learned appellate court is improper and illegal. For the sake of arguments if it is presumed that there may be certain other members of the family who are likely to interfere in her right to reside in the shared household then such an act may amount to an offence and action can be taken as per law.

15. In my opinion, there was no ground to actually interfere in the order passed by the learned trial court on the assumption that there is likelihood of interference by the revisionists. The order of the appellate court suffers from illegality and impropriety and is therefore set aside. Accordingly this revision is allowed.

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