A married woman has a legal right to enter her matrimonial home, especially when protected by a court order. Charges of criminal trespass and house breaking are not applicable when the petitioner has a legal right to reside in the shared household.

JUDGMENT

1. By this petition the petitioner seeks quashing of FIR No. 339/2022, P.S. Shahbad Dairy registered under Sections 454 and 380 of the IPC. The FIR was lodged on the basis of a complaint filed by the father-in-law of the petitioner for allegedly committing offences of house trespass, house breaking and theft in the matrimonial house in which she resided at post her marriage.

2. The petitioner and respondent No.2 son were married on 11th December, 2021. The petitioner was residing in the matrimonial home bearing house No. 137-138, 2nd floor, A-3, Sector-11, Rohini, Delhi-110085 along with her in-laws. Owing to physical, mental and emotional torture as alleged by the petitioner meted out to her by her husband and in-laws, she filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005, (PWDV), on an apprehension that she would be dispossessed from the shared household. The Ld. MM vide an order dated 26th April, 2022 granted a protection order in favour of the petitioner restraining the respondents therein from dispossessing her from the matrimonial home without following the due process of law. As per the petitioner when she went back to her matrimonial home from the Court she found the doors of the house locked and thus took refuge at her parental house for the night. On the next day i.e. 27th April 2022, when she went to the matrimonial home, her husband and in-laws were present but did not allow her to enter the house. She went to the police station to seek assistance where the SHO asked her to wait who then went to the house to question the family. Allegedly, when the SHO took her back to the house, the gates were locked and the family had gone away. Having received no cooperation or assistance from the police, she was left with no option but to use a spare set of keys in order to enter in her matrimonial house.

3. Later, respondent No. 2 (the father in-law) and other family members appealed against the protection order stating that the house was locked and the petitioner may create a law and order situation. Ld.ASJ vide order dated 28th April 2022 stayed the protected order of the Ld. MM. The petitioner filed an application for vacation of stay and vide order dated 9th May 2022, Ld.ASJ clarified the order wherein it was directed that respondent No. 2 and his family not to do any illegal act of dispossessing the petitioner from the matrimonial household. Immediately thereafter on 11th May 2022 respondent No. 2 got the instant FIR registered, which the petitioner claims is evidently a counter blast to harass the petitioner further.

4. The petitioner therefore seeks quashing of this FIR on the basis that the petitioner has not filed a petition against the petitioner. It is contended that the petitioner is a legitimate member of the matrimonial household as it is a shared household and has a right to reside. Also, she has legitimate court orders in her favour for protection from dispossession. In these circumstances, the question of trespass does not arise ex facie on the very ingredients of Section 443 of the IPC which involves the "the right to eject" a trespasser from a premises. Further, it is contended that the definition of house breaking under Section 445 of the IPC can only be invoked when the charge of criminal trespass can be established. Also criminal trespass as defined in Section 441 of the IPC involves an intention to commit an offence or to intimidate, insult or annoy any person in possession of such property, which the petitioner contends was not her intent, but only to reside in the property that she was entitled to by virtue of her marriage.

5. The learned counsel for the petitioner placed reliance on the decision of the High Court of Madras in Vandhana v. T. Shrikant, 2007(5) CTC 679, where it was held that the entry of the wife into her matrimonial home is a matter of right and the right can be exercised forcibly or otherwise. Reliance was also placed on Kavit