The right of residence under the DV act is exclusive and not affected by any right under Section 9 of the Hindu Marriage act, 1955.

JUDGMENT

Chandra Dhari Singh, J. - The present petition has been filed under article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, (hereinafter 'Cr.P.C.') against Order dated 5th December, 2013 passed by learned additional Sessions Judge-02/Special Judge (NDPS) (hereinafter 'aSJ'), East, Karkardooma Courts, Delhi, in Criminal appeal No. 104/13 titled 'Om Prakash Gupta vs anjani Gupta' whereby learned aSJ was pleased to confirm the residence Orders dated 1st November, 2013, in favour of Respondent No.1.

FaCTUaL MaTRIX

2. Marriage between the Respondent No.1 (hereinafter 'Respondent') and the son of the Petitioners, Mr. alok Gupta, was solemnized on 30th January, 1990 according to Hindu rites and rituals and Petitioner No. 1 (since deceased) and Petitioner No. 2 (hereinafter 'Petitioner') are the mother-in-law and father-in-law, respectively, of the Respondent. Petitioner No. 1 has been represented by her Legal Representatives, Mr. alok Gupta as Petitioner No. 2(a), Mr. anurag Gupta as Petitioner No. 2 (b) and Ms. Sarika Gupta as Petitioner No. 2 (c).

3. The relationship between the Respondent and her in-laws was cordial in the beginning, however, it started to deteriorate with time. The Respondent left her matrimonial home on 16th September, 2011. Consequently, more than 50 cases, both civil and criminal, were filed by the parties against each other. One of these cases were initiated by the Respondent under the Protection of Women from Domestic Violence act, 2005, (hereinafter 'DV act') and during the proceedings the Respondent claimed right to residence in the property bearing no. a-41, Swasthya Vihar, Delhi-110092.

4. The DV act matter, registered as No. V-275/12, was heard by the learned Metropolitan Magistrate, Mahila Court, East District, Karkardooma Courts, New Delhi, and the learned Metropolitan Magistrate passed the Order dated 1st November, 2013, wherein it was observed that the husband of the Petitioner is the 50 percent owner of the co-owned house, bearing no. a-41, Swasthiya Vihar, Delhi- 110092, the Respondent was residing on the first floor of the said matrimonial home till the day she was dispossessed from the house, that is on 16th September, 2011 and that there was a prima facie case that the husband of the Respondent was having an illicit affair. The learned Metropolitan Magistrate held that, in view of the above facts, the Respondent herein was entitled to the right of residence in the first floor of the abovementioned property.

5. aggrieved by the said Order, the Petitioner filed Criminal appeal No. 104/13 on, summarily, the following grounds:

* The property was in exclusive possession of the petitioners against one of whom the respondent had levelled charges of sexual assault.

* The respondent had a right to live with her husband as a wife, however, by allowing her to live at Swasthya Vihar while her husband is living at Indirapuram, the Trial Court did not take care of the fact that parties may eventually get separated because of the order of right to residence.

* The wife's right of residence is co-existence with the husband and she cannot claim a right of residence at a place where her husband is not residing.

* The respondent contested the petition under Section 9 of the Hindu Marriage act, 1955, and lived away from the son of petitioner for 11/2 year; she, therefore, should not have been allowed to live in the house where her husband was not residing.

* The respondent levelled allegations of sexual assault against father-in-law and allowing her to live in the said house would give an opportunity to her to keep filing frivolous cases.

* The respondent is guilty of adultery and on this ground case of divorce had been filed against her.

* There is only one entrance, one electricity connection and one water connection in the house and two parties having strained relations cannot live under such circumstances.

6. The learned appellate Court considered the facts and circu