Hon'ble Zaki Ullah Khan,J.
Order (Oral) We have heard learned counsel for parties and perused the pleadings of writ petition.
Towards our order dated 24.03.2014, a Medical Board headed by Chief Medical Officer, Lucknow, has determined the age of petitioner no.5 as 17 years. The medical observation dated 26.03.2014 recorded during physical examination on reproduction reads as:
"X-ray report X-ray elbow - Epiphysis are fused.
Now, in the peculiar background of the case, when the lady Rinki Devi, who is present in Court, states that she will stay only with petitioner no.1 whom she still believes to be her legally wedded husband contrary to the fact that the said person already has a legally wedded wife with two children, we looked up for provisions of relevant Statutes including Protection of Women from Domestic Violence Act, 2005 (for short, 'the Act of 2005') for rehabilitation of petitioner no.5 in the household of petitioner no.1. Section 17 of the Act of 2005 appears to cover the case of petitioner no.5. Irrespective of the controversy, as to whether petitioner no.5 is legally wedded or not, this is an admitted fact that she has lived in domestic relationship with petitioner no.1. Vide Section 2 (f) of the Act of 2005, definition of 'Domestic Relationship' has been defined as:
"domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
Section 17 of the Act of 2005 is also reproduced for reference as under:
"Right to reside in a shared household. - (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law."
In this view of the matter, without entering into legality or otherwise of the marriage which can be decided by the court below of competent jurisdiction, we protect the right of petitioner no.5 and direct the District Magistrate and Superintendent of Police, Sitapur, to ensure sufficient space in the house of petitioner no.1 for stay of petitioner no.5 with further direction that she will be looked after and maintained from the income of joint family property, namely, agricultural as well as non-agricultural. The Superintendent of Police, Sitapur, shall also ensure that petitioner no.5 is not subjected to any misuse or harassment by the petitioner no.1, his family members or any other person during her stay in the house of petitioner no.1. But that nevertheless, the rights of legally wedded wife and children shall remain fully protected and enforceable under the provisions of Statutes applicable in this regard. However, petitioner no.1 may apply for regular bail before the court of competent jurisdiction, as the right to question the legality of marriage is vested in legally wedded wife. Petitioner no.5 shall be produced before the Superintendent of Police, Sitapur, by the Lucknow police for enforcement of her rights as directed by this Court. The Superintendent, Woman's Protection Home, Lucknow, is directed to release petitioner no.5 forthwith upon receiving a copy of this order.
Writ petition is disposed of with the aforesaid directions and observations.
Order Date :- 27.3.2014 A. Katiyar