Judgement: Section -12 - Domestic Violence - Right of Residence

Court:Bombay High Court

Bench: JUSTICE R.P. Sondurbaldota

Vijaya Vasant Sawant Vs Shubhangi Shivling Parab & Ors On 1 April 2013

Law Point:
Protection of Women from Domestic Violence Act, 2005 — Section 12 — Domestic Violence — Right of residence — Delay and laches — Delay of 3 years in filing complaint not explained by petitioner — Apparently filing complaint was counterblast to divorce proceedings initiated by husband — Petitioner had been staying away from husband for more than 4 years prior to filing of complaint — Petitioner can have no claim for house owned by respondent No. 1, mother-in-law, since her husband himself had no legal right thereto — Any residence for whatever brief period, petitioner had in that house was only on account of permission granted by respondent No. 1 — Impugned order upheld.

JUDGEMENT

1. The revision petitioner herein is the complainant in Criminal Case No. 150/DVA/2009 filed against her husband and respondent Nos. 1 to 4 herein in the Court of Judicial Magistrate, First Class, Ponda, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”). These respondents are her mother-in-law, sister-in-law and brother-in-law. She has also filed an application for protection orders under Section 19 to restrain the respondents and her husband from causing any domestic violence to her and to her child and to restrain them from dispossessing her or obstruct her from entering the matrimonial home at Borivali, as also to restrain respondent No. 2 from alienating or encumbering the residential house at Borivali without intimation to her, selling or mortgaging her jewellery in the custody of respondent No. 2 and for its return. She has also sought custody of the child. It is admitted position that the revision petitioner has been residing separately from her husband who is not a party to the present petition since 1st April, 2004. The husband had filed petition for divorce in the year 2008. Almost a year thereafter i.e. on 16th February, 2009, the petitioner filed her complaint under the Act against her husband and the respondents herein. By the orders passed in the intervening period, the petition for divorce of the husband has been allowed severing marriage ties between the petitioner and her husband.

1. Respondent Nos. 1 to 4 filed an application at Exhibit 6 for dropping them from the proceedings and/or to discontinue the proceedings against them contending that the allegations made against them in the complaint are vague and do not justify continuance of the complaint. As regards respondent Nos. 2 to 4, the only allegations made against them are that the petitioner was subjected to harassment by the husband and respondent No. 1, the mother-in-law on the instigation of respondent Nos. 2 to 4. It was argued before the Trial Court that continuing the complaint against the respondents would amount to abuse of process of law by the petitioner. It was also contended that since the petitioner had been residing separately from her husband and other family members since the year 2004, there was no question of granting any protection order. As regards the claim of the petitioner of the house at Borivali being a shared household as contemplated by the provisions of the Act, the respondents contended that same belongs exclusively to respondent No. 1, the mother-in-law. Further, since the petitioner had already shifted from that house, it cannot have the character of shared household. The Trial Court by its order dated 13th May, 2009 rejected the application at Exhibit 6 holding that the complaint filed by the petitioner herein makes out a prima facie case to proceed against the respondents and that the contention raised in the application can be raised by them in rebuttal to the case of the petitioner at the time of trial. Respondent Nos. 1 to 4 challenged the order of rejection by preferring Criminal Appeal No. 89/2009 to the Sessions Court. That appeal came to be allowed by order dated 6th March, 2010 which has been impugned herein.
2. With the assistance of the Counsel for both sides, I have gone through the order of the Trial Court on the application at Exhibit 6 and the order of the Sessions Court in the appeal preferred therefrom, as also the complaint filed by the petitioner.
3. The Sessions Court in its well reasoned order noted that the complaint herein was initiated by the petitioner subsequent to the proceedings for divorce filed by the husband in the year 2008. Various allegations made in the application are vague and the allegations do not consist of any overt act of harassment against respondent Nos. 2 to 4. The allegations are restricted to instigating respondent No. 1 and the husband to cause harassment to the petitioner and to demand dowry. The Sessions Court also noted that all the instances alleged pertain to the period prior to September, 2004 when the petitioner left the matrimonial home. There is no allegation whatsoever of any incident thereafter. It is of the opinion that though the Act came into force in the year 2006, it was open for the petitioner to take recourse to the proceedings under the general law either by way of civil or criminal proceedings. Further delay of three years in filing the complaint not explained by the petitioner. Apparently filing the complaint was a counterblast to the divorce proceedings initiated by the husband.
4. Perusal of the complaint supports the view taken by the Sessions Court that the allegations therein are vague and without necessary particulars. Besides, the petitioner had been staying away from the husband for more than four years prior to filing of the complaint which fact has not been taken into consideration by the Trial Court. As regards the claim made by the petitioner for the house owned by respondent No. 1 at Borivali, the Sessions Court has correctly held that the petitioner can have no claim thereto since her husband himself had no legal right thereto. Any residence for whatever brief period that the petitioner had in that house was only on account of the permission granted by respondent No. 1.
5. Taking an overall view of these facts, in my opinion, the Sessions Court was correct in passing the impugned order allowing the appeal. Hence, the revision application is dismissed.

Revision dismissed.

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