2024:BHC-GOA:173 Meena IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO.84 OF 2023 Smt. Reena C. Naik ...Applicant.

1.

Aged 45 years, Indian National, Married, Temporary Resident of Flat No.402, Shetye Plaza, Upper Bazar, Ponda, Goa- 403401.

W/o. Chandan Naik, aged 45 years, R/o. 507 Haldai, Shiroda, Ponda, Goa – 403 106.

V/s.

Mrs. Swayangeeta Rajesh Naik

1 Aged 51 years, Indian National, Married, W/o. Rajesh Naik, R/o. 507, Haldai, Shiroda, Ponda, Goa- 403106.

Mr. Rajesh Naik

2.

Aged 54 years, Indian National, Married, S/o. Late Mahadev Naik, R/o. 507, Haldai, Shiroda, Ponda, Goa- 403106.

Mr. Chandan M. Naik

3.

Aged 48 years, Indian National, Married, S/o. Late Mahadev Naik, R/o. 507, Haldai, Shiroda, Ponda, Goa- 403106. ...Respondents Mr. Parag Rao with Mr. Ajay Menon, Advocates for the Petitioner.

Mr. Hrudaynath S. Shirodkar, Advocate for Respondent Nos. 1 and 2.

Mr. Arjun Naik, Advocate for Respondent No.3.

CORAM: BHARAT P. DESHPANDE, J DATED: 23^rd January, 2024

ORAL JUDGMENT:

1.

Rule. Rule is made returnable forthwith.

2.

Heard learned Counsel for the parties at the admission stage with consent for disposal since a very limited issue is involved in the present proceedings.

3.

Mr. Rao appearing for the petitioner would submit that the learned trial Court granted the application under Domestic Violence Act vide its order dated 17/11/2022, in part and refused the prayer for shared household. The petitioner then filed an appeal before the Appellate Authority vide Criminal Appeal No.176 of 2022. Mr. Rao would submit that such criminal appeal was rejected only by placing reliance on the judgment of S.R. Batra and another v/s. Taruna Batra [(2007) 3 SCC 169].

4.

Mr.Rao would submit that the ratio laid down in S.R.

Batra(supra) was considered by the Supreme Court a three Judge Bench in case of Satish Chander Ahuja v/s. Sneha Ahuja [(2021) 1 SCC 414]. The Apex Court overruled the observations in the case of S.R. Batra(supra) specifically with regard to the interpretation of shared household as defined under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005.

5.

Mr. Rao further submits that in the decision in the case of Prabha Tyagi v/s. Kamlesh Devi [(2022) 8 SCC 90], the Apex Court discussed the expression “joint family” and shared household.

6.

He submits that the learned First Appellate Court by relying upon a overruled judgment, dismissed the appeal.

7.

The learned Counsel Mr. Arjun Naik appearing for respondent No.3 submits that the First Appellate Court’s order is entirely based on the observations in the case of S.R. Batra(supra).

8.

The decision in the case of Satish Chander Ahuja(supra) and more specifically paragraphs 69 and 70 are material which reads thus:

“64. In paragraph 29 of the judgment, this Court in S.R. Batra Vs. Taruna Batra (supra) held that wife is only entitled to claim a right to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. We have noticed the definition of “respondent” under the Act. The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household.

70. We are of the view that this court in S.R. Batra Vs. Taruna Batra (supra) although noticed the definition of shared household as given in Section 2(s) but did not advert to different parts of the definition which makes it clear that for a shared household there is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband