Thursday, 22 October 2015

Whether family court can grant reliefs under Domestic violence Act?

 Having said so, having examined the well

 reasoned impugned order, the Family Court has rightly
 held that it had jurisdiction to entertain the
 application and that the respondent-wife has made out
 a prima facie case for grant of order in her favour.
 That is how, the impugned order was passed by the
 Family Court impugned in this petition.
Bombay High Court
 WRIT PETITION NO. 5730 OF 2008.
 Rajkumar Rampal Pandey 
 Sarita Rajkumar Pandey 
DATED: 26. 08. 2008.
 Citation: 2008(6)BomCR831

 1. Rule, returnable forthwith. Heard finally by
 consent of parties. Perused the petition.
 2. This petition, filed by petitioner-husband
 under Article 227 of the Constitution of India, is
 directed against the order dated 29.7.2008 passed

 below Exh. 10 in Petition No. A-113 of 2007 by the
 Principal Judge of the Family Court, Bandra, Mumbai
 whereby the petitioner, his mother, sister, other
 relatives, servants and agents are restrained from
 obstructing the respondent-wife to reside in a shared
 3. The petitioner and respondent got married on
 18.5.2001. The Petitioner is working as marketing
 executive. Sometime in the month of February, 2004,
 the respondent-wife joined the Petitioner and started
 residing with him in the shared household. The
 continuous acrimony between them resulted in
 matrimonial discord, leading to divorce petition by
 the husband on the ground of mental cruelty being
 Petition No.A-113/2007 and criminal complaint under
 Sections 498-A, 306 read with Section 34 of the Indian
 Penal Code by the respondent-wife against the
 4. The respondent-wife moved an application
 before the Family Court, Bandra under Section 26 of
 the Protection of Women from Domestic Violence Act,
 2005 ("the Domestic Violence Act" for short) to seek

 declaration that she has a right to reside in the
 shared house i.e. residential flat No.A- 102, "Om
 Adarsh Co-op. Housing Society Ltd. Deonar," Gowandi
 (hereinafter called the "subject-flat") and decree of
 permanent injunction restraining respondent-husband,
 his mother and relatives from evicting, dispossessing
 and/or excluding the respondent-wife from the subject
 flat is said to be a shared household.
 5. The aforesaid application was opposed by the
 petitioner-husband, on the various grounds, contending
 that the subject flat is in the name of his mother.
 The another flat situate at "Parnakuti, Chunna Bhatti"
 is in the name of his grandfather, occupied by his
 aunt and other relatives. In short, he denied his
 interest in the subject-flat. He has also challenged
 the maintainability of the subject application and
 prayed for rejection thereof.
 6. The Family Court, after hearing both parties,
 was pleased to partly allowed the application with the
 result the petitioner-husband and all relatives were
 permanently restrained from committing any act of

 domestic violence and in turn rejected prayer of
 respondent-wife to prevent the petitioner’s mother and
 sister from entering in the shared household.
 7. Being aggrieved by the aforesaid order,to the
 extent it is adverse to the petitioner, he has invoked
 writ jurisdiction of this Court under Article 227 of
 the Constitution of India as stated hereinabove.
 8. The learned counsel appearing for the
 Petitioner urged that the application under Section 26
 of the Domestic Violence Act was not maintainable and
 that the subject-flat cannot be termed as the shared
 household. He submits that the petitioner’s father
 was an employee of the Bombay Municipal Corporation as
 a primary teacher. He formed one Co-operative Housing
 Society under the provisions of the Maharashtra
 Co-operative Societies Act, 1960 ("the M.C.S.Act" for
 short). The Bombay Municipal Corporation was pleased
 to allot one plot of land to the said Society. The
 members of the said Society constructed tenements on

 the said plot of land. The petitioner’s father was
 one of the members allotted with one such tenement
 referred herein as subject flat. He expired on
 27.5.2001. After his demise, the subject flat was
 transferred in the name of his widow i.e. the
 petitioner’s mother being a nominee. He further
 submits that the subject-flat stands in the name of
 the petitioner’s mother as such subject flat cannot be
 said to be the shared household. He further submits
 that his mother is not a party to the proceeding in
 the Family Court. As such, the impugned order could
 not have been passed affecting her interest, that too,
 behind her back. He further submits that the
 Respondent comes from a rich family and that she is
 not in need of residential accommodation. He further
 went on to submit that the subject-flat has, now, been
 sold by his mother vide sale deed dated 2.1.2008 to
 one Mr Abdur Rashid Abdul Hakim. As such, no
 injunction in respect of the subject-flat styling it
 as the "shared household" could have been granted.
 The petitioner has also filed an affidavit of his
 mother wherein she is claiming to be the owner of the
 subject flat and states on oath that she has

 transferred, assigned and relinquished all rights,
 title and/or interest in respect of the subject-flat
 in favour of the purchaser and that she is not in
 possession thereof.
 9. The petition is strongly opposed by the
 learned counsel for the respondent-wife and supported
 the impugned order on facts and law both.
 10. Before embarking upon the rival submissions it
 is necessary to note that the Domestic Violence Act
 was enacted on 13th September, 2005 to provide more
 effective protection of the rights of women,
 guaranteed under the Constitution, who are victims of
 violence within the family and to deal with the
 matters connected therewith or incidental thereto.
 The purpose of the Act is to provide remedy in the
 civil law for protection of women from being

 victimised by domestic violence and to prevent the
 occurrence of domestic violence to the society.
 11. With the aforesaid aim and objects of the
 Domestic Violence Act, now, let me turn to the
 provisions of the Act relevant for the decision of
 this petition.
 Section 2 (s) "Shared household".
 "shared household" means a household where the
 person aggrieved lives or at any stage has
 lived in a domestic relationship either singly
 or along with the respondent and includes such
 a household whether owned or tenanted either
 jointly by the aggrieved person and the
 respondent, or owned or tenanted by either of
 them in respect of which either the aggrieved
 person or the respondent or both jointly or
 singly have any right, title, interest or
 equity and includes such a household which may
 belong to the joint family of which the
 respondent is a member, irrespective of
 whether the respondent or the aggrieved person
 has any right, title or interest in the shared
 SECTION : 19. Residence orders.
 (1)While disposing of an application under
 subsection (1) of section 12, the Magistrate
 may, on being satisfied that domestic violence
 has taken place, pass a residence order-
 (a) ..

 (b) ..
 (c) restraining the respondent or any of
 his relatives from entering any portion of the
 shared household in which the aggrieved person
 26. Relief in other suits and legal
 "(1) Any relief available under sections 18,
 19, 20,21, and 22 may also be sought in any
 legal proceeding, before a civil court, family
 court or a criminal court, affecting the
 aggrieved person and the respondent whether
 such proceeding was initiated before or after
 the commencement of this Act.
 (2) Any relief referred to in subsection (1)
 may be sought for in addition to and along
 with any other relief that the aggrieved
 person may seek in such suit or legal
 proceeding before a civil or criminal court.
 (3) In case any relief has been obtained by
 the aggrieved person in any proceedings other
 than a proceeding under this Act, she shall be
 bound to inform the Magistrate of the grant of
 such relief."
 12. Reading of the aforesaid provisions would go
 to show that Section 26 provides that any relief
 available under Sections 18, 19, 20, 21 and 22 can
 also be sought in any legal proceeding, before a civil
 court, family court or a criminal court, affecting the
 aggrieved person and the respondent; whether such

 proceeding was initiated before or after the
 commencement of this Act.
 13. It is, therefore, clear that a relief
 available under Section 19 of the Domestic Violence
 Act can also be claimed under Section 26 of the Act.
 Section 19 (1) (c) provides that a court can restrain
 the respondent or any of his relatives from entering
 any portion of the shared household in which the
 aggrieved person resides. Section 19 (1) (a) provides
 that the order restraining the respondent from
 dispossessing or in any other manner disturbing the
 possession of the aggrieved person from the shared
 household, whether or not the respondent has a legal
 or equitable interest in the shared household, can be
 14. Having heard both parties and having examined
 the statutory relevant provisions, it is not possible
 to accept the contention of the petitioner that the
 application under Section 26 moved by the

 respondent-wife, was not maintainable.
 15. The contention of the petitioner that, the
 subject-flat was owned by his mother, as such, the
 petitioner had no right, title or interest in the
 subject-flat and that the it has already been sold by
 his mother under a sale deed, dated 2.1.2008 executed,
 in favour of Mr Abdur Rashid Abdul Hakim, cannot be
 accepted for the reasons stated hereinafter.
 16. The learned counsel appearing for the
 Petitioner was fair enough to produce the photo copy
 of the sale deed dated 2.1.2008 executed by the mother
 of the Petitioner for the perusal of the Court. The
 said sale deed is not a registered document. It is
 scribed on the stamp paper of Rs.100/-. It is
 insufficiently stamped. It refers to a payment of
 consideration by cheque dated 1.2.2008. However,
 there is no material on record to show encashment of
 the said cheque. Insufficiently stamped and
 unregistered sketchy sale deed, without relevant
 recitals, leads me to draw an inference that the said
 deed is a bogus document of sale brought into

 existence just to defeat the right of the present
 respondent-wife and to get over the impugned order
 passed by the Family Court. The alleged sale deed did
 not extinguish the right, title and interest of the
 vendor in the subject flat. Title did not pass over
 to the alleged purchaser. The alleged sale deed is
 inadmissible in evidence. The purported sale deed
 dated 2.1.2008 does not create any right, much less
 right, title or interest in favour of Mr Abdur Rashid
 Abdul Hakim. As stated herein, the title still vests
 with the original owner.
 17. Now, let me examine the question: whether the
 petitioner husband has any interest in the subject
 flat so as to bring it well within the sweep of a
 shared household?
 18. The learned counsel for the petitioner has
 produced the share certificate issued by the
 Co-operative Housing Society in whose building subject
 flat is located. The share certificate is in the name
 of Rampal Rajaram Pandey i.e. father of the
 petitioner (since deceased). With the death of Rampal

 Pandey the said flat stood inherited by the Petitioner
 and his mother with other legal heirs, if any. The
 nominee does not become owner of the property.
 Nominee holds property for the benefit of the heirs.
 The petitioner’s son is one of the legal heirs having
 interest in the subject-flat by virtue of inheritance.
 He is not a party to the alleged transaction of sale.
 Consequently, it has to be treated that he still has a
 interest in the subject-flat. The subject-flat, thus,
 can be treated as the shared household, wherein
 admittedly, the respondent-wife lived in a domestic
 relationship with the petitioner.
 19. At this stage, it is relevant to mention that
 during the course of hearing a misleading, rather
 false, statement was made stating that the share
 certificate issued by the Society was in the name of
 the mother of the petitioner. The statement was
 found, factually, incorrect. It is, thus, clear that
 every attempt was made by the petitioner to defeat the
 legitimate right of the respondent-wife.
 20. Having said so, having examined the well

 reasoned impugned order, the Family Court has rightly
 held that it had jurisdiction to entertain the
 application and that the respondent-wife has made out
 a prima facie case for grant of order in her favour.
 That is how, the impugned order was passed by the
 Family Court impugned in this petition.
 21. The learned counsel for the petitioner placed
 heavy reliance on the judgment of the Apex Court in
 the case of S. R. Batra and Anr v. Taruna Batra
 (Smt) (2007) 2 Supreme Court Cases (Cri) 56. In the
 said judgment the shared household was neither
 belonging to husband - Amit Batra nor it was taken on
 rent by him. It was not a joint family property of
 which husband Amit Batra was a member. It was in the
 exclusive possession of Appellant No.2, mother of Amit
 Batra, hence, it was held that such an accommodation
 or house cannot be called as a shared household. So
 far as the case in hand is concerned, the
 petitioner-husband has undivided interest in the house
 after death of his father. His father died intestate.
 Consequently, the flat was inherited by the
 petitioner-husband along with other heirs. The

 alleged transaction of transfer is nothing but a bogus
 transfer brought about to defeat the claim of the
 22. In the above view of the matter, the petition
 is liable to be dismissed. In view of the false and
 misleading statement made by the petitioner coupled
 with the act of preparing a bogus document to defeat
 the claim of the respondent mere dismissal of the
 petition will not serve the ends of justice. The
 petition is, thus, dismissed. Rule stands discharged
 with costs quantified in the sum of Rs. 25,000/- to
 be paid by the petitioner to the respondent-wife
 within four weeks from today. Order accordingly.
 (V. C. DAGA, J.) (V. C. DAGA, J.)

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