IMPORTANT POINTS
(1) Ouster from matrimonial home – Where wife voluntarily establishes a separate residence or has access to alternate accommodation, direction or restoration to a previously occupied premises is not automatic and may be declined – DV Act secures protection against dispossession, it does not compel reinstatement into a residence abandoned by choice.
(2) Exercise of inherent powers – Jurisdiction under Section 482 Cr. PC is to be exercised by High Court in cases of apparent perversity and illegality.

JUDGMENT

Ravinder Dudeja, J.—This petition has been filed by the petitioner, challenging the impugned order date 29th February 2024, passed by learned Metropolitan Magistrate [“MM”]-03, South District, Saket Court, New Delhi in Complaint Case No. 1511/2023, in the matter titled “Reena Grover Vs. Ramesh Grover & Ors.” and order dated 07th September 2024, passed by the learned Additional Sessions Judge-05, South District, Saket Courts, New Delhi [“ASJ”] on the ground that the said orders are illegal, perverse, bad in law and suffer from infirmity and illegality and therefore liable to be set aside.

Factual Background:

2. The facts, as succinctly captured in the judgment passed by the learned ASJ are that petitioner/wife got married with respondent No. 1 in the year 1964, and since then, she had been residing in the matrimonial home at C-7, Green Park, South Delhi. Three children were born out of the said wedlock, two sons and one daughter. Respondents were not ready to give any share in property to the daughter. In her complaint filed under Section 12 of the Protection of Women from Domestic Violence [“DV Act”], petitioner alleged infiction of emotional, mental and economic abuse at the hands of the respondents. On 13th April 2024, petitioner moved to her daughter’s house, located in Safdarjung Enclave. She along with her baggage shifted to her daughter’s house considering that for post-care treatment, she would be requiring the same. Since the petitioner’s health started improving, on 08th July 2023, petitioner tried to re-enter her matrimonial home at C-7, Green Park, but was denied re-entry. She claimed that she has lived at her matrimonial home for more than 30 years and therefore cannot be denied entry into her matrimonial home.

3. Petitioner accordingly filed an application under Section 19 read with Section 23 DV Act before the court of MM, which has been dismissed vide order dated 29th February 2024, observing that the petitioner was currently residing at Safdarjung property, which also belongs to respondent No. 1. The learned Magistrate did not agree with the argument of the petitioner that as respondent No. 1 himself was not in possession of the said property, he cannot be considered to have provided that accommodation to the petitioner for her residence. The leaned court was of the view that respondent No. 1 might not be in actual possession of the property, however, he certainly was in constructive possession, being the owner of the property. The learned trial court also repelled the argument of the petitioner that her daughter is residing in that property and therefore the said property cannot be provided to the petitioner as an alternate accommodation. The learned trial court took the view that petitioner cannot insist on residing in Green Park property when her husband has already offered a suitable accommodation, and therefore in order to provide further acrimony between the parties and multiplicity of proceedings, deemed it appropriate that petitioner continues to reside at Safdarjung property of respondent No.1.

4. The appeal under Section 29 of the DV Act against the order dated 29th February 2024, passed by the learned MM, has also been dismissed vide order 07th September 2024. The learned Appellate Court observed that petitioner has levelled allegations of domestic violence not only against her husband but also against her son and grandson, who all are residing in the Green Park house in which residence order has been sought and therefore considering such circumstances, observed that it would be highly inappropriate to permit the petitioner to go and reside in the shared household as it will simply result in further litigation and dispute between the parties. The learned Appellate Court also found that there was nothing on record for the trial court to come to a conclusion that the complainant has shifted to Gurgaon from Safdarjung Enclave and thus found no reason to take a view different from what the trial