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2011(1) Crimes 1 (Del.)
DELHI HIGH COURT
Shiv Narayan Dhingra, J.
Adil and Ors. —Petitioners
versus
State and Anr. —Respondents
Criminal M.C. No. 4139 and Cri .A. No. 14141 of 2009
Decided on 2.9.2010
Counsel for the Parties:
For the Petitioners:Mr. N.K. Handa, Advocate.
For the Respondent No. 2:Ms. Rakhi Dubey, Advocate in person.
For the State: Mr. Sunil Sharma, APP.
IMPORTANT POINT
Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship.
Headnote:Protection of Women From Domestic Violence Act, 2005—Section2(f) —Domestic relationship—An aggrieved person lived together with respondent in a shared household—Living together at any point of time—At any point of time means where an aggrieved person had been continuously living in shared household as a matter of right but for some reason the aggrieved person had to leave the house temporarily—Domestic relationship would come to an end once the husband with his family had moved out of his joint family and established the own household—Resort to Domestic Violence Act could not be done to enforce property rights—Aggrieved person applicant when with her husband had separated from shared household in Ghaziabad to Delhi—Impugned order allowing applicant aggrieved person to reside in that shared household was liable to be set aside. (Para 10 to 12)
JUDGMENT
Shiv Narayan Dhingra, J.— By this petition the petitioners have assailed orders dated 30th November, 2009, and 6th November, 2009, passed by learned Metropolitan Magistrate (MM).
2. Brief facts relevant for the purpose of deciding this petition are that the respondent Kaushar Bano was married to Zahid Khan, brother of the three petitioners on 16th March, 1994. Zahid Khan died on 14th November, 2002, at Delhi. After his death, Kaushar Bano filed an FIR on 26th July, 2003 against the petitioners and her mother-in-law and other relatives making various allegations of cruelty, dowry demand etc. In this FIR, she gave her residence as House No.5, Gali Masjidwali No.1, Babarpur, Shahadara, Delhi -32.
3. After coming into force of The Protection of Women from Domestic Violence Act (in short Domestic Violence Act), she filed an application under Section 12 of Domestic Violence Act on 6th August, 2007, and also made an application for interim relief under Section 23 of Domestic Violence Act seeking right of residence in the property where petitioners were living i.e. District Bulandshahar, U.P.
4. The Court of MM passed an order dated 19th April, 2008, observing that the property, in which right of residence was being sought by Kaushar Bano, was a property of her mother-in-law and cannot be termed as shared household. She, therefore, dismissed the application for interim relief and fixed the case for evidence giving an opportunity to prove the facts.
5. Against this order Kaushar Bano preferred an appeal before the learned Sessions Judge. Learned Additional Sessions Judge observed that the mother-in-law of Kaushar Bano i.e. mother of the present petitioners, expired on 4th June, 2008, and after her death, the question whether the property constituted shared house-hold would be required to be gone into by the MM again and the MM would determine if the appellant would be entitled to a relief in the changed circumstances since the property (matrimonial home) was indeed not in the name of any of the respondents i.e. the present petitioners, their mother having expired. She remanded back the matter to MM vide her order dated 27th November, 2008.
6. After the matter was remanded back, learned MM reconsidered the application under Section 23 of Domestic Violence Act and passed order dated 6th November, 2009 observing that respondent had a right to live in the property at Bulandshahar. It was brought to the notice of the MM that present petitioners have filed a civil suit in the Court of Civil Judge, S.D., Bulandshahar, U.P. in respect of same property, wherein wife Kaushar Bano was made as a respondent.
7. The learned MM allowed application of wife observing that vide order dated 19th April, 2008, the interim relief was refused to Kaushar Bano on the ground that house in Bulandshahar did not constitute a shared household as no document was on record to show that property was one in which the husband had a right or it was exclusive property of mother-in-law. She observed that, prima facie, the interim order was refused to Kaushar Bano on the ground that property belonged to mother-in-law, but the stand taken by the present petitioners was contrary to the reply filed by them later on where they had taken a stand that house in question belonged to their father and a settlement/Will was executed by him. She observed that since the earlier stand taken before the Court was that the property belonged to their mother and mother had expired intestate deceased husband of Kaushar Bano being a son had a right in the property in question, hence the property can be termed as shared household. She therefore, held that Kaushar Bano had a right of residence in the property in Town Gulaothi, District Bulandshahar, U.P.
8. Against this order, an appeal was preferred by the petitioners before the learned Additional Sessions Judge who observed that there was no infirmity in the order passed by the learned MM and the property could be termed as shared hous
