1. This criminal revision has been filed challenging the judgment and order dated 23rd September, 2017 passed by the Chief Judicial Magistrate/Civil Judge (Senior Division), Fast Track Court, Jhansi in Complaint Case 1136 of 2015 (Smt. Uma Devi vs. Sita Ram Ahirwar), under Sections 12, 17, 18, 19, 20 and 22 of the Protection of Women From Domestic Violence Act, 2005 Police Station Mahila Thana Nawabad, District Jhansi as well as the judgment and order dated 15th May, 2018 passed by the Additional Sessions Judge, Court No.6, Jhansi in Criminal Appeal No. 83 of 2017 (Sita Ram Ahirwar vs. State of U.P. & Another), whereby the aforesaid criminal appeal preferred against the judgment and order dated 23rd September, 2017 has been dismissed.
2. I have heard Mrs. Rama Goyal Bansal, the learned counsel for the revisionist and the learned A.G.A. for the State.
3. Brief facts shorn of unnecessary details giving rise to the present criminal revision may be summarized as follows:
4. The marriage of the revisionist Sita Ram Ahirwar was solemnized with the opposite party no.2 Smt. Uma Devi in the year 1975. It is the case of the revisionist that the parties are living separately since 1983. The opposite party no.2 is residing at her parental home at Jhansi. It has come on the record that some time after marriage the revisionist was selected in the Railway Protection Force and joined his duties at Agra. Thereafter, the revisionist refused to maintain his wife i.e. the opposite party no.2 herein. Faced with despair and destitution, an application under Section 125 Cr.P.C. was filed by the wife/opposite party no.2 claiming maintenance. This application came to be registered as Misc. Case No. 58 of 1991 and was allowed vide order dated 10th May, 1994. The revisionist was directed to pay a sum of Rs. 700/- per month to the opposite party no.2 towards maintenance. Subsequently, the opposite party no.2 filed an application under Section 127 Cr.P.C. seeking enhancement in the amount of maintenance. The said application was allowed and the amount of maintenance was consequently enhanced to Rs. 3,000/- per month.
5. The revisionist filed a suit for a decree of divorce in terms of Section 13 of the Hindu Marriage Act. The same was registered as Divorce Petition No. 359 of 2006 (Sita Ram Ahirwar vs. Smt. Uma Devi). The aforesaid suit came to be dismissed vide judgment and decree dated 10th January, 2010. Feeling aggrieved by the same, the revisionist filed First Appeal No. 30 of 2010 (Sita Ram Ahirwar vs. Smt. Uma Devi). The said appeal came to be dismissed by this Court vide judgment and order dated 16th August, 2012. This order dated 16th August, 2012 has now become final between the parties for want of any further challenge.
6. In the year 2009, the opposite party no.2 filed Complaint Case No. 411 of 2009 (Smt. Uma Devi vs. Sita Ram Ahirwar) under Sections 12, 17, 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act of 2005" ). The opposite party no.2, by means of the said complaint case, prayed for the grant of protection order in terms of Section 18, grant of residential rights in the shared household under Section 19, compensation to the tune of Rs. 20,000/-, an amount of Rs. 4,000/- per month towards food, health and clothing, Rs. 2,000/- per month towards household expenses under Section 20 and compensation to the tune of Rs. 1 lac under Section 22. A true copy of the application dated 4th March, 2009 giving rise to the aforesaid complaint case is on the record as Annexure-1 to the affidavit filed in support of the present criminal revision.
7. The aforesaid complaint case was contested by the revisionist and accordingly he filed his objections dated 27th April, 2009, which are on the record as Annexure-2 to the affidavit filed in support of the present criminal revision.
8. The parties went to trial. The opposite party no.2 Smt. Uma Devi adduced herself as P.W.-1 and further adduced one Ajay Kumar as P.W. 2, whereas the revisionist Sita Ram Ahirwar also adduced himself as a witness and was described as D.W.-1. The parties produced documentary evidence in support of the their claims and objections. The opposite party no.2 in support of her case, filed certified copy of the order dated 11th January, 2010 passed by the Family Court, Jhansi in Case No. 39 of 2006 (Smt. Uma Devi vs. Sita Ram Ahirwar) under Section 127 Cr.P.C., the photo copy of the order directing deduction from the salary of the revisionist as well as the photo copy of the pay slip of the revisionist. There is no recital in the orders passed by the courts below that any documentary evidence was adduced by the revisionist nor there is any averment in the affidavit filed in support of the present criminal revision, giving details of the documentary evidence, if any, filed by the revisionist before the courts below.
9. The trial court vide order dated 2nd June, 2012 dismissed the complaint case filed by the opposite party no.2. Aggrieved by the same, the opposite party no.2 Smt. Uma Devi preferred Criminal Appeal No. 83 of 2012 (Smt. Uma Devi vs. State & Another) in terms of Section 29 of the Act of 2005. The said criminal appeal was allowed. Consequently, the order dated 2nd June, 2012 passed by the trial court dismissing the complaint filed by the opposite party no.2 was set aside and the matter was remanded to the Magistrate for decision afresh.
10. Upon remand, the trial court allowed the complaint case filed by the opposite party no.2 vide judgment and order dated 23rd September, 2017. The revisionist challenged the said judgment and order dated 23rd September, 2017, by filing an appeal, which was registered as Criminal Appeal No. 83 of 2017 (Sita Ram Ahirwar vs. State of U.P. & Another). The said criminal appeal came to be dismissed vide judgment and order dated 15th May, 2018. Thus, feeling aggrieved by the judgment and order dated 23rd September, 2017 and 15th May, 2018 detailed above, the revisionist has now come to this Court by means of the present criminal revision.
11. Mrs. Rama Goyal Bansal, learned counsel for the revisionist in challenge to the orders dated 23rd September, 2017 and 15th May, 2018 has submitted with vehemence that the impugned orders passed by both the courts below are unsustainable in law and fact. She secondly summits that the opposite party no.2 has herself been residing separately since the year 1983 and therefore, it cannot be even imagined that domestic violence was committed in the period immediately preceding the complaint. Thirdly, she submits that in view of the aforesaid fact and also the fact that the opposite party no.2 is being paid maintenance in terms of the orders passed under Section 125/127 Cr.P.C. no further amount of maintenance can be claimed by the opposite party no.2. It is also urged that though the divorce suit filed by the revisionist seeking divorce from the opposite party no.2, on one of the grounds mentioned in Section 13 of the Hindu Marriage Act, has been dismissed but that by itself is not sufficient to hold that there was commission of domestic violence in the shared household on the part of the revisionist. It is also urged that the house in respect of which residential rights have been granted by the Magistrate, which direction has been affirmed by the appellate court does not belong to the revisionist but belonged to the mother of the revisionist, who has sold the same to Manoj Kumar Anand, the younger brother of the revisionist vide registered sale-deed dated 12th October, 2010. Thus, the aforesaid house is no longer a shared household but the exclusive property of Monoj Kumar Anand. As the revisionist is residing at Agra, where he is working as Head Constable in Railway Protection Force, the residential rights granted to the opposite party no.2 in respect of the house which is the subject matter of the registered sale-deed dated 12th October, 2010, on the premise that it is a shared household is wholly perverse. The directions so issued by the Magistrate, when examined in the light of the attending circumstances as noted herein above, cannot be sustained. Lastly, it is urged that the findings recorded by the courts below on issues of fact are not based upon any evidence. On the cumulative strength of the aforesaid submissions, it is strenuously urged that both the impugned orders passed by the courts below are liable to be quashed by this Court.
12. Before proceeding to consider the correctness of the submissions urged by the learned counsel for the revisionist, in support of the present criminal revision, it is imperative to take notice of the terms "domestic relationship, shared household and domestic violence" as defined in Section 2 (f), 2 (s) and Section 3 of the Act of 2005. A brief resume of the admitted facts and their material bearing on the issues involved in the present criminal revision will also be helpful in adjudicating the controversy involved in the present criminal revision.
13. Section 2 (f), 2 (s) and Section 3 of the Act of 2005 are quoted herein-under:
"2. Definitions.--In this Act, unless the context otherwise requires,--
............
(f) "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;
............
(s) "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.
3. Definition of domestic violence.--For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it--
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation I.--For the purposes of this section,--
(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) "verbal and emotional abuse" includes--
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) "economic abuse" includes--
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.--For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration."
14. It is an undisputed position that the opposite party no.2 is the legally wedded wife of the revisionist. Therefore, both legally and morally, the revisionist is bound to maintain his wife i.e. the opposite party no.2 herein.
15. It is also an admitted fact that the revisionist had filed a suit for a decree of divorce under Section 13 of the Hindu Marriage Act, which was registered as Divorce Petition No. 359 of 2006 (Sita Ram Ahirwar vs. Smt. Uma Devi), which came to be dismissed vide judgment and decree dated 10th January, 2010. The appeal preferred against the aforesaid judgment and decree has also been dismissed vide judgment and order dated 16th August, 2012. Thus, the revisionist has failed to establish the ground on which the divorce was prayed for.
16. On account of the failure of the revisionist in maintaining his wife i.e. the opposite party no.2, proceedings under Section 125 Cr.P.C. were initiated by the opposite party no.2, which came to be allowed by means of an order dated 10th May, 1994, whereby and where-under, the revisionist was to pay a sum of Rs. 500/- per month towards maintenance to the opposite party no.2. Subsequently, upon an application filed by the opposite party no.2 in terms of Section 127 Cr.P.C. the amount of maintenance was enhanced to Rs. 3,000/- per month.
17. At this stage, this Court has to examine the issue as to when the amount of maintenance is payable to a wife under Section 125 Cr.P.C. Before proceeding to consider this issue, it is beneficial to quote the provisions of Section 125 Cr.P.C. itself which are accordingly quoted here-under:
"125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w. e. f, 18- 12- 1978 ).
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-
(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.
(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
18. From the perusal of the provisions of Section 125 (4) Cr.P.C., which have been quoted herein above, it is apparent that the wife can claim maintenance under Section 125 Cr.P.C. only when the husband has refused to maintain her. In case the wife herself decides not to live with her husband, then in that situation the wife shall not be entitled to the amount of maintenance payable under Section 125 Cr.P.C. The order passed by the concerned court in proceedings under Section 125 Cr.P.C. has now become final for want of any further challenge by the revisionist. Thus, the undisputed situation, which emerges before this Court, is that on account of the failure on the part of the revisionist to maintain his wife i.e. the opposite party no.2, the revisionist has been directed to pay maintenance to the opposite party no.2, which amount has subsequently been enhanced on an application under Section 127 Cr.P.C. filed by the wife/opposite party no.2.
19. As a corollary to the aforesaid, the next issue that will arise for consideration is whether any amount of maintenance can be claimed by the opposite party no.2 over and above the amount of maintenance already being paid by the revisionist to the opposite party no.2 or the amount of maintenance awarded to the opposite party no.2 under Section 125 Cr.P.C. shall be adjusted in the amount of maintenance to be paid by the revisionist to the opposite party no.2, pursuant to the order dated 23rd September, 2017 passed by the Magistrate as confirmed by the appellate court vide order dated 15th May, 2018. Section 20 (1) (d) of the Act of 2005 clearly provides that the order of maintenance passed under the Act of 2005 is over and above the provisions of Section 125 Cr.P.C. Section 20 of the Act of 2005 for ready reference is quoted herein-below:
"20. Monetary reliefs.--
(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to--
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub‑section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent."
20. Therefore, in view of the provisions contained in Section 20 (1) (d) of the Act of 2005, the Court cannot be persuaded to hold that since the opposite party no.2 is already being paid maintenance in terms of an order passed under Section 125 Cr.P.C. and modified subsequently under Section 127 Cr.P.C. the opposite party no.2 is not entitled to any amount of further maintenance in terms of Section 12 of the Act of 2005. The argument raised by the learned counsel for the revisionist is an antitheses to the object and spirit of the Act, when Section 20 (1) (d) of the Act of 2005 specifically provides that the Act of 2005 shall have an overriding effect over any other law operating in the same field.
21. It has further come on record that the revisionist had himself instituted a suit for a decree of divorce on one of the grounds mentioned in Section 13 of the Hindu Marriage Act. The said suit being Divorce Petition No. 359 of 2006 (Sita Ram Ahirwar vs. Smt. Uma Devi) came to be dismissed vide judgment and decree dated 10th January, 2010. The said order carried in appeal before the High Court, but was dismissed vide order dated 16th August, 2012. Therefore, the grounds urged by the learned counsel for the revisionist against the opposite party no.2 in respect of her conduct could not be proved before the court in appropriate proceedings. The findings recorded in the aforesaid judgments, which admittedly is inter-se between the same parties cannot be ignored. As already noted above, no documentary evidence was adduced by the revisionist before the courts below to establish the plea raised by him against the character and conduct of the opposite party no.2.
22. From the perusal of the orders passed by both the courts below it is further apparent that no proceedings were ever initiated by the revisionist in terms of Section 9 of the Hindu Marriage Act for restitution of conjugal rights, therefore, in light of the fact relating to the dismissal of the suit for decree of divorce filed by the revisionist coupled with the failure on the part of the revisionist to institute a suit for restitution of conjugal rights clearly goes to establish the indifferent attitude of the revisionist towards his legally wedded wife i.e. the opposite party no.2.
23. It has also come in the statement of the opposite party no.2 before the trial court as well as in his pleadings that the revisionist is not ready to keep the wife. Once this admission is there then there is hardly any room or doubt to rebut the presumption regarding the occurrence of domestic violence as defined in Section 3 of the Act of 2005.
24. This takes me to the second part of the controversy which is the issues framed by the trial court for effective adjudication of the dispute between the parties, the findings recorded on the said issues and lastly whether such findings can be said to be based upon no evidence.
25. The trial court in order to effectively adjudicate the controversy raised before it framed the following issues:
(i) Whether the plaintiff has been able to establish that she resided along with the defendant in a shared household?
(ii) Whether the plaintiff has been able to establish that physical, vocal, mental, economical or in relation to demand of dowry, any criminality was committed upon her during the period in which the plaintiff was residing with the defendant in the shared household?
(iii) Whether the plaintiff is entitled to receive a sum of Rs. 1 lac as damages in lieu of physical, vocal, mental, economical, violence or in relation to demand of dowry?
(iv) Whether the plaintiff is entitled to the payment of Rs. 2,000/- per month towards medical health, food and clothing and another sum of Rs. 4,000/- towards basic facilities from the defendant?
(v) Whether the plaintiff is entitled to the relief regarding the grant of residential rights in the shared household?
(vi) Whether apart from the claim of residential rights, damages and maintenance the plaintiff is entitled to any other relief?
26. The trial court critically and analytically dealt with each of the issues so framed in the light of the pleadings, the evidence on record and the law on the subject as settled either by the Apex Court, this Court or any other High Court.
27. Regarding issue no.1, the trial court on the reasoning that since the defendant in his written statement has clearly admitted that after marriage the plaintiff came to her marital home, therefore, the factum regarding the living of the husband and the wife i.e. the revisionist and the opposite party no.2 in the shared household is proved.
28. Placing reliance upon the judgment of the Apex Court in the case of B.D. Bhanot vs. Savita Bhanot; 2012 (3) SCC 183, the judgment of the Bombay High Court in Maruti Lande vs. S. Gangubai Maruti Lande; 2012 Cr.L.J. 87 as well as the judgment of this Court in the case Preetam Singh vs. State of U.P.; 2013 (1) D.N.R. 1, the trial court came to the conclusion that irrespective of the fact the wife has been ousted from her marital home in the period immediately preceding the enforcement of the Act of 2005, but in case the same deprives the wife of any of or financial or economic benefits to which she is entitled to as a wife then in such a situation the wife can maintain an application under Section 12 of the Act of 2005.
29. The trial court upon consideration of the entire gamut of the facts and circumstances as well as the evidence on the record, rightly concluded that even though the fact regarding the living of the plaintiff in the shared household is not proved, but since after marriage the plaintiff came to her marital home and started living in the shared household from where she was ousted, on account of the conduct of the husband and her family members, clearly establishes the commission of domestic violence and therefore, the application filed by the plaintiff is maintainable.
30. With regard the issue no.2 the trial court came to the conclusion that the D.W. 1 Sita Ram Ahirwar the defendant has clearly admitted in his testimony that he does not wish to keep his wife i.e. the plaintiff with him. As noted above the plaintiff is the legally wedded wife of the defendant and therefore, the defendant is both legally and morally bound to maintain his wife. The failure on the part of the defendant in not filing a suit in terms of the Section 9 of the Hindu Marriage Act for restitution of conjugal rights coupled with the failure of the suit for divorce filed by the husband and further the direction by the court to the husband to pay maintenance to his wife clearly establish that though the plaintiff may not have been able to establish the commission of the physical domestic violence or harassment on account of the demand of dowry, yet she has been able to establish the mental and economic, torture committed by the defendant upon her after he got employed as a Constable in the Railway Protection Force.
31. With regard to issue no.3, the trial court held that the plaintiff is entitled to compensation to the tune of Rs. 25,000/- inasmuch as the defendant is residing at Agra alone after leaving his wife causing mental and sentimental hardship to the plaintiff.
32. In respect of issue no.4, the trial court held that in view of the judgment of the Orisa High Court in Jivendra Mahapatra vs. Pushpita Mahapatra; 2004 Cr.L.J. 1648, wherein it has been held that the wife is entitled to the same status and dignity as that of her husband, the plaintiff is further entitled to maintenance quantified at Rs. 2,000/- per month over and above the amount of maintenance awarded under Section 125 Cr.P.C. In arriving at the said conclusion, the trial court was swayed by the fact that the defendant in his written statement has given the details of the liability faced by him but has not mentioned his duty and obligation towards his wife i.e. the plaintiff.
33. Regarding issue no.5, the trial court having considered the issue nos. 1 to 4 came to the definite conclusion that since the relationship between the plaintiff and the defendant as husband and wife clearly subsist the wife is entitled to the grant of residential rights as contemplated under Section 19 of the Act of 2005. Accordingly, the trial court directed for giving respectable space with basic amenities to the wife in the shared household.
34. Lastly, the trial court upon consideration of the entire material on the record came to the definite conclusion that the plaintiff is also entitled to the grant of a protection order as the relationship between the plaintiff and the defendant as husband and wife still subsist and the wife has been deprived of her dignity and status as the legally wedded wife on account of the domestic violence was caused by the defendant.
35. The judgment of the trial court dated 23rd September, 2017 was carried in appeal. The appellate court did not find any perversity or illegality in the findings recorded by the trial court in the order dated 23rd September, 2017 and consequently dismissed the appeal vide order dated 15th May, 2018.
36. From the perusal of the grounds of appeal, which are on the record, at page 97 of the paper book, it is apparent that as many as seven grounds were taken in challenge to the order dated 23rd September, 2017. However, none of the grounds challenged or even doubted the findings recorded by the trial court on the issues so framed. Primarily the case of the revisionist before the appellate court was regarding the propriety in awarding maintenance to the wife/opposite party no.2 even when a sum of Rs. 3,000/- was being paid towards maintenance to the wife by virtue of an order under Section 125 Cr.P.C. as modified under Section 127 Cr.P.C. and further on the point of limitation that the marriage took place in the year 1975, the Protection of Women from Domestic Violence Act, 2005 came into force in the year 2005, therefore, the provisions of the same could not be made applicable in the present case, when admittedly the wife/opposite party no.2 was living separately since 1983. In short, there was no challenge to the findings of fact recorded by the trial court.
37. It is by now well settled that revisional Court under Section 397 Cr.P.C. has very limited jurisdiction. The revisional court firstly can only consider the question regarding quantum of sentence and not the merit of sentence. Secondly, the revisional Court can set aside an order if the same has been passed in exercise of jurisdiction with material irregularity resulting in miscarriage of justice. Lastly, if a fact, which is a jurisdictional fact has been left undecided by the appellate court, the revisional court can set aside the order and remand the matter to the court below for adjudicating such jurisdictional facts.
38. In the present criminal revision, none of the conditions, as enumerated above, which are necessary for exercise of revisional jurisdiction are present. Therefore, there is hardly any ground to interfere with the orders impugned in the present criminal revision.
39. However, one fact which is required to be dealt with is the direction issued by the trial court in terms of Section 19 of the Act of 2005, whereby the wife/opposite party no.2 has been granted residential rights in the so called shared household to a limited extent. This direction issued by the trial court as affirmed by the appellate court has been assailed before this Court on the ground that the house in respect of which the direction in terms of Section 19 of the Act of 2005 has been issued is no longer a shared household. By virtue of a deed of sale dated 12th October, 2010 the house in which residential rights have been granted was sold by the erstwhile owner i.e the mother of the revisionist in favour of her younger son i.e. the brother of the revisionist. Therefore, it is urged that since the house is now the exclusive property of one Manoj Kumar, the same is no longer a shared household, and therefore, the direction issued in terms of Section 19 of the Act of 2005 is manifestly illegal.
40. There is nothing on the record to show that the factum regarding the execution of the sale deed dated 12th October, 2010 was brought to the notice of the courts below.
41. It may be noted that it is not the case of the opposite party no.2 that the said sale-deed was executed to overcome the consequences which may flow from an order passed under Section 19 of the Act of 2005. The transfer of a house by a registered sale-deed extinguishes the rights of the erstwhile owner.
41. However, considering the fact that the plaintiff the opposite party no.2 herein is a fairly elderly woman aged about 55 years coupled with the fact that the parties have been living separately since long, any attempt on the part of the plaintiff to enforce the residential rights so granted in her favour in respect of the alleged shared household would be putting her to imposed litigation with hardly any chances of success.
42. Reference at this stage be made to the judgment of the Apex Court in the case of S.R. Batra Versus Taruna Batra, reported in 2007 (13 SCC 169, whereby the following has been observed in Paragraph-28:
"28. As regards Section 17(1) of the Act, in our opinion the 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 property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a `shared household'."
43. Therefore, in order to avoid any future complexity, coupled with the fact that no residential rights can be granted in the house owned by the brother of the husband, this Court proposes to modify the order dated 23rd September, 2017 passed by the trial court as affirmed by the appellate court. Accordingly, it is hereby provided that the residential rights granted to the opposite party no.2 in terms of Section 19 of the Act of 2005 in House no. 1, Muhalla Pullia No.9, Kalari Ke Pas, Thana Premnagar, Jhansi, treating it to be a shared household is hereby set aside. As the said direction issued by the courts below is being set aside, the plaintiff/opposite party no.2 herein has to be adequately compensated by this Court. Accordingly, it is provided that the revisionist shall pay a sum of Rs. 4,000/- per month to the opposite party no.2 in lieu thereof. The said amount shall be deducted from the salary of the revisionist in the same manner as the amount awarded by the court in terms of Sections 125/127 Cr.P.C. has been deducted.
42. With the aforesaid directions, the present criminal revision succeeds and is allowed in part. However, the parties shall bear their own costs.
(Rajeev Misra, J.) Order Date :- 12.9.2018 Sushil/-