Wife entitled to reside in shared household or receive rent; ownership by husband not requisite for alternative accommodation under Domestic Violence Act.

ORDER :

1. The present petition is filed under Section 482 of the Code of Criminal Procedure, 1973, read with Article 227 of the Constitution of India, seeking the following reliefs:-

“A. Your Lordship may be pleased to admit and allow this petition.

B. Your lordship may be pleased to stay and further operation of order passed by Ld. Add. Sessions Judge, Court No. 32, City Sessions Court, Ahmedabad in criminal appeal no. 389 OF 2017.

C. Your lordship may be pleased to quash and set aside the order dated 04/12/2020 passed by the Ld. Add. Sessions Judge, Court No. 32, City Sessions Court, Ahmedabad in criminal appeal no. 389 OF 2017.”

BRIEF FACTS OF THE CASE ARE AS UNDER:

2. The wife of the present petitioner, along with their son Rakshit, voluntarily left her matrimonial home on 3.04.2013. Subsequently, she preferred an application under various provisions of the Protection of Women from Domestic Violence Act, 2005 (for “the Act” short, ) which came to be registered as Criminal Miscellaneous Application No. 117 of 2014. Upon hearing the parties, the learned Additional Chief Metropolitan Magistrate, Court No. 18, Ahmedabad, was pleased to pass an order in the said application on 15.04.2017. Aggrieved thereby, the respondent-wife preferred Criminal Appeal No. 389 of 2017 before the learned Additional Sessions Judge, Court No. 32, City Sessions Court, Ahmedabad, which came to be decided by order dated 04.12.2020.

2.1. Being dissatisfied with the said appellate order, the petitioner has approached this Court by way of the present Special Criminal Application.

SUBMISSION OF THE PETITIONER:-

3. In essence, the petitioner–husband assails the judgment and order rendered in Criminal Appeal No. 389 of 2017, preferred by the private respondent–wife, whereby the learned Sessions Court directed the petitioner to provide alternative suitable accommodation to the respondent–wife at Ahmedabad within thirty days from the date of the order, or, in the alternative, to pay her a sum of Rs.5,000/- per month towards rent.

3.1. Learned advocate Mr. Ashish M. Dagli, appearing on behalf of the petitioner–husband, contended that the learned Appellate Court, without adverting to the relevant factual matrix and in the absence of any evidence adduced by the respondent–wife in support of her claim under Section 19 (f) of the Act, proceeded to grant such relief. It was urged that the premises in question belong to and are owned by the petitioner’s father, and thus the respondent–wife cannot assert a right to reside therein.

3.2. It was further submitted that the petitioner is ready and willing to resume cohabitation with the respondent–wife at Morbi; however, she has, of her own volition, declined to join him there. Learned counsel emphasised that the trial court had categorically recorded that, in the absence of evidence, relief under Section 19 (f) of the Act could not be granted. Notwithstanding this, the appellate court, without cogent reasoning, reversed such finding, thereby committing a grave error of jurisdiction.

3.3. Accordingly, it was submitted that the impugned order passed in the appeal preferred by the respondent–wife be quashed and set aside, and the present petition be allowed.

SUBMISSION OF THE RESPONDENTS:-

4. Per contra, learned advocate Mr. Maulin Pandya, appearing for the respondent–wife, submitted that the learned trial court, while declining to