Saturday, August 17, 2013

DV + residence order granted and affirmed EVEN if husband ONLY inherited house. Mother & nominee selling house NOT valid / NOT accepted by HC !! house was in dad's name & Husband's Father died intestate!! :-( .

 
 
DV + residence order granted and affirmed EVEN if husband ONLY inherited house. Mother & nominee selling house NOT valid / NOT accepted by HC !! house was in dad's name & Husband's Father died intestate!! :-( . Husband files divorce petition, Full package of 498a, 34 IPC, + DV etc filed by ablaa Naari wife ... Residence order AFFIRMED by honourable HC . Husband also asked to pay rs 25000 costs to wife 
 
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Notes
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* Full package of 498a, 34 IPC, + DV etc filed by ablaa Naari wife "..... 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 petitioner-husband......."
* husband tries saying house is in the name of mother..."......opposed by the petitioner-husband, on the various grounds, contending that the subject flat is in the name of his mother...."....also "...Respondent comes from a rich family and that she is not in need of residential accommodation....."
* wife shows society regn in the name of husband's dad and dad had died intestate (without will)
* so husband automatically gets a share
* Lower court grants residence order in favour of wife
* husband and co go on appeal
* appeal rejected by HC. 
HC says wife can get resid order and does NOT accept the sale by husband's mother ".....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.....!
* however As far as I can see , lower court has NOT granted her injunctions or has NOT stopped others in family from entering their own house !! (what a pathetic state) ...."....and in turn rejected prayer of respondent-wife to prevent the petitioner's mother and sister from entering ....."
 
 
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO. 5730 OF 2008.
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Rajkumar Rampal Pandey Aged
about 30 years, Occu Service,
R/o Room No. 6/231,
Maharashtra Housing Board,
Chunnabhatti, Mumbai-22. .. Petitioner.
 
Vs.
 
Sarita Rajkumar Pandey Aged
about 26 years, Occ.
Housewife, R/o A/11, Tulsi
Baug Bldg. Chandavarkar
Cross Road No.1 Borivli
(West), Mumbai 400 92. .. Respondent.
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Mr S. B. Shetye, Advocate for the Petitioner. 
Mr A. A. Walwaikar, Advocate for the Respondent. 
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CORAM: V. C. DAGA, J.
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DATED: 26. 08. 2008.
 
JUDGMENT:
 
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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 household.
 
FACTUAL MATRIX:
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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 petitioner-husband.
 
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. 
 
RIVAL CONTENTIONS:-
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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.
 
STATUTORY PROVISIONS:
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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".
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"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 household."
 
SECTION : 19. Residence orders.
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(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 resides;
 
26. Relief in other suits and legal proceedings:-
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"(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 granted.
 
CONSIDERATION:
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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. 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 respondent-wife.

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.)


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist