1. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the judgment and order dated 22nd April, 2010 passed by the learned Additional City Sessions Judge, Court No.8, Ahmedabad in Criminal Appeal No.17/2010 confirming the order dated 21st December, 2009 passed by the learned Metropolitan Magistrate, Court No.9, Ahmedabad in Criminal Miscellaneous Application No.321/2008 and further seeks a direction to the respondents No.2 and 3 to allow the petitioner to reside in her matrimonial house with her daughter and to enjoy all conjugal rights and further to direct the respondents No.2 and 3 to maintain the petitioner and her daughter.
2. The petitioner herein filed an application under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act') against the second and third respondents herein, who are her husband and mother-in-law respectively, seeking a protection order under section 18 of the Act, an order for residence under section 19, order of maintenance under section 20, order for compensation under section 22 of the Act, etc. in the court of the learned Metropolitan Magistrate, Court No.9, Ahmedabad being Criminal Miscellaneous Application No.321/2008. The learned Magistrate after hearing the learned advocates for the respective parties and appreciating the evidence on record, by an order dated 21st December, 2009, partly allowed the application by passing an order under section 20 of the Act granting a monthly maintenance of Rs.2,000/- to the petitioner and Rs.1,000/- to her daughter Miti for the purpose of school fees, medicines and other expenditure from the date of the application. The remaining prayers sought for by the petitioner under sections 18, 19 and 22 came to be rejected. The petitioner carried the matter in appeal before the City Sessions Court in Criminal Appeal No.17/2010. By the impugned judgment and order dated 22nd April, 2010, the learned Additional City Sessions Judge, Court No.8, Ahmedabad, dismissed the appeal which had given rise to the present petition.
3. Ms. Sunita Ahuja, learned advocate for the petitioner vehemently assailed the impugned order by submitting that the lower appellate court had failed to appreciate the evidence on record in proper perspective while arriving at the finding that no domestic violence had taken place and thereby not granting the reliefs as prayed for by the petitioner under the Act. Attention was invited to the allegations made in the complaint to submit that the petitioner had been subjected to mental and physical harassment by both the respondents and that the court was not justified in coming to the conclusion that there was no harassment caused to the petitioner. It was submitted that the say of the petitioner regarding domestic violence has not been contradicted by the other side and that the courts below have misread the evidence on record while arriving at the finding that there was no domestic violence. It was pointed out that the petitioner has been denied the relief of residence in the matrimonial home on the ground that the house being 27, Dreamland Park Society, Naranpura, Ahmedabad is of the ownership of the third respondent namely, the mother-in-law of the petitioner as well as on the ground that the second respondent does not reside therein. It was contended that both the courts below have erred in holding that the second respondent was staying at a different place namely at 11, Riddhi Society as a paying guest which is contrary to the record of the case as he was actually staying at the matrimonial home at 27, Dreamland Park Society. To substantiate her say, the learned counsel made reference to the first information report lodged by the second respondent in respect of the theft of his Scorpio car, to point out that the address stated by him is 27, Dreamland Park and not 11, Riddhi Society where he claims to be residing at.
3.1 Referring to the evidence on record at great length and in detail, the learned counsel argued that the rent receipt produced by the second respondent in support of his say that he was residing as a paying guest at 11, Riddhi society does not indicate the address of the place in question and as such, the court below was not justified in accepting the say of the respondent that he was residing as a paying guest at the address stated by him in the absence of any other proof in support thereof. It was further submitted that on the question of income of the second respondent, both the courts have gravely erred in coming to the conclusion that the petitioner was not in a position to establish that the second respondent was earning income as claimed by the petitioner. According to the learned counsel both the courts below had erred in relying upon the income-tax return filed by the second respondent for holding that his income was only Rs.10,000/- per month and have further erred in ignoring the evidence to the effect that the second respondent had a Master Gold Card of the HDFC Bank, in support of which, the petitioner had examined the Assistant Manager of the Bank who had proved the documents produced by him. That, the courts below had also failed to consider that the second respondent was a member of two of the reputed clubs of Ahmedabad namely, Karnavati Club and Rajpath Club which are indicative of the fact that his income is far more than Rs.10,000/- per month as claimed by him. It was submitted that despite the fact that it has been established on record that the second respondent had purchased a Scorpio car and was paying instalments thereof, the courts below have held that the second respondent had an income of Rs.10,000/- per month only.
3.2. It was urged that the petitioner herein while residing with her husband had on account of her daughter’s school vacation gone to her parental home on 8th May, 2008. However, while she was at her parental home, on 21st May, 2008, the second respondent issued and served a notice upon her through his advocate informing her not to enter the matrimonial house and that he was bringing an end to the relationship of husband and wife between them, thereby leaving the petitioner and her daughter homeless and without any support or maintenance. It was submitted that the second respondent was carrying on the business of sale and purchase of land, sale of health club equipment and was also engaged in the business of event management and had a considerable income despite which, he was not supporting the petitioner and their daughter. It was submitted that the findings recorded by the court below that the petitioner had left the matrimonial home on her own will is de hors the record inasmuch as the petitioner had merely left her matrimonial home to visit her parents during the vacation for a few days and that it was the second respondent who had prevented the petitioner from re- entering the matrimonial home which amounted to domestic violence as envisaged under section 3 of the Act. It was submitted that “economic abuse” is one of the forms of domestic violence envisaged under clause (a) of section 3 of the Act. Economic abuse under the said section includes deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom as well as prohibition or restriction to continued access to resources or facilities to which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. The finding that there was no domestic violence is, therefore, contrary to the evidence on record.
3.3 Referring to the impugned judgment and order passed by the lower appellate court, it was pointed out that the lower appellate court has failed to appreciate the evidence in proper perspective and has merely relied upon the findings recorded by the trial court while dismissing the appeal. That the lower appellate court has failed to appreciate the relevant evidence on record and as such, the impugned judgment passed by the lower appellate court being contrary to the facts on record, is perverse and as such, deserves to be quashed and set aside and the petitioner is entitled to the reliefs prayed for in her application under section 12 of the Act.
4. Vehemently opposing the petition, Mr. Satyajit Sen, learned advocate for the second respondent submitted that both the courts below have, upon appreciation of the evidence on record, recorded concurrent findings of fact and as such, there is no warrant for intervention in exercise of powers under Article 227 of the Constitution of India. Referring to the evidence on record, it was submitted that the petitioner has not been able to establish that there was any physical or mental harassment caused to her and as such, the courts below have rightly recorded that there was no domestic violence as contemplated under the Act. Even otherwise, the petitioner is not entitled to the relief claimed in the application under section 12 inasmuch as, there being no violence, there was no question of grant of any protection order under section 18 of the Act. It was submitted that the principal relief claimed by the petitioner is for residence in 27, Dreamland Park Society which she calls 'the matrimonial home'. However, the said house belongs to the third respondent who is petitioner’s mother-in-law and as such the petitioner has no right to claim residence in the said house. Strong reliance was placed on the decision of the Supreme Court in the case of S.R. Batra & Anr. v. Smt. Taruna Batra, AIR 2007 SC 1118, wherein it has been held that there is no law on matrimonial homes in India but as per available law right to wife can only be as against the husband and not against the father-in-law, mother-in-law or other relatives. It was, accordingly, submitted that the house in question which belongs to the mother-in-law namely, the third respondent does not become a 'shared household' only because the petitioner had shared that house with the husband earlier. Under the circumstances, the courts below were justified in holding that the petitioner was not entitled to a right of residence in the said house.
4.1 Next, it was submitted that all the submissions advanced by the learned advocate for the petitioner are on factual aspects whereas this court would exercise powers under Article 227 of the Constitution of India only when there is an error of jurisdiction. Under the circumstances, the scope of exercise of powers under Article 227 is very much limited in the present case, and that in a case like the present one where there are concurrent findings of fact recorded by both the courts below, there is no scope for any interference. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil, (2010) 8 SCC 329, for the proposition that be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. The power to issue a writ or certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest the gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above jurisdictions is sought to be invoked. The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. It was submitted that under the circumstances, this court ought not to undertake the exercise of reappreciation and revaluation of the evidence on record. That no error of jurisdiction having been committed by the courts below, there is no warrant for any intervention by this court.
4.2 It was next submitted that insofar as the contention as regards economic abuse as contemplated under section 3 of the Domestic Violence Act is concerned, it was neither pleaded nor was it the case of the petitioner before the courts below and as such, at this stage it would not be proper to entertain any plea in that regard. Referring to the merits of the case, it was pointed out that the second respondent had filed a petition under section 13 of the Hindu Marriage Act, 1955 being H.M.P. No.605/2008 on 18th June, 2008 summons whereof was served upon the petitioner on or about 21st June, 2008 and the subject application was merely filed as a counterblast on 23rd June, 2008.
4.3 As regards the quantum of income of the second respondent, the learned counsel submitted that the petitioner has failed to lead any evidence in respect of his income. It was argued that it was for the petitioner to establish that the income of the second respondent was to the extent claimed by her and that she had miserably failed to prove the same. The courts below were, therefore, justified in relying upon the returns of the income of the second respondent for arriving at the conclusion that his income was to the extent stated therein. Referring to the allegations made in the application under the provisions of the Act, it was submitted that none of the allegations therein would constitute mental or physical harassment and as such, the courts below were justified in holding that this is not a case of domestic violence. It was pointed out that the learned Metropolitan Magistrate despite having come to the conclusion that there was no domestic violence in the present case, had awarded maintenance under section 20 of the Act, in all amounting to Rs.3,000/-, which was contrary to the provisions of law inasmuch as once there was a finding that there was no domestic violence, the question of granting any relief under the provisions of the Act, including the grant of any maintenance did not arise. Despite the aforesaid legal position, the second respondent did not challenge the said decision, as he is conscious of his obligations towards his wife and daughter. It was pointed out that it is not as if the second respondent was oblivious of his obligation towards the petitioner and his daughter and that he had given six cheques for a sum of Rs.2,000/- each to the petitioner, however, she has refused to accept the same. According to the learned counsel the second respondent can support the petitioner only to the extent of his income and that the claim made by the petitioner being highly exaggerated, the courts below were justified in rejecting the same. It was, accordingly, urged that there being no merit in the petition, the same is required to be dismissed.
5. In the backdrop of the aforesaid contentions, it may be germane to briefly refer to the facts of the case as emerging from the record. The petitioner in the application under section 12 of the Act has made various allegations against the second and third respondents alleging that she has been subjected to mental and physical harassment by them. Both the courts below, upon appreciation of the evidence on record, have concurrently found that this is not a case where the petitioner has been subjected to mental and physical harassment. The allegations made in the application run into about twenty one pages wherein several incidents have been narrated which according to the petitioner are incidents of mental and physical harassment. Insofar as the third respondent, viz., the petitioner’s mother-in-law is concerned, the allegations appear to be mainly to the effect that during quarrels between the husband and wife, she did not interfere and despite requests made by the petitioner, she did not try to resolve the disputes between them. On the question of physical and mental harassment both the courts below have arrived at concurrent findings of fact that there was no such harassment. Under the circumstances, in the absence of any perversity in the findings recorded by the courts below, this court in exercise of powers under Article 227 of the Constitution of India would not re- appreciate the evidence on record and substitute its opinion in place of that of the lower courts. However, it may be noted that the expression “domestic violence’ as defined under section 3 of the Act does not mean only physical and mental abuse, but also “economic abuse”. Thus, any act, omission or commission or conduct on the part of the respondent, inter alia, constitutes domestic violence in case it causes economic abuse. From the findings recorded by the courts below it is apparent that both the courts have held that there is no physical or mental abuse and as such no domestic violence. The angle of economic abuse has not been examined by either of the courts below. On behalf of the second respondent, it has been contended that such plea as regards economic abuse not having been taken before the courts below cannot be raised for the first time before this court. In this regard it may be recalled that the petitioner had made the application under section 12 of the Act alleging domestic violence for the grounds stated in the application. Thus, what is required to be examined by the court is whether on the grounds stated and the evidence led by the parties any case of domestic violence can be said to have been made out. Once domestic violence is pleaded it takes within its sweep all the ingredients thereof and each ingredient is not required to be pleaded separately. The court on the basis of the evidence on record is required to independently apply its mind to the same and examine as to whether or not a case of domestic violence is made out. The nature of the domestic violence may differ from one of physical abuse, to one of mental abuse or verbal and emotional abuse or economic abuse. It is for the court to ascertain as to whether on facts a case of domestic violence under any of the categories laid down thereunder is made out. While considering an application under section 12 of the Act, the court is required to keep in mind the object behind the Act namely to provide a remedy under the civil law which is intended to protect women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. Thus, essentially the Act is in the nature of social welfare legislation. Under the circumstances, the proceedings thereunder cannot be equated with ordinary civil proceedings to bind the parties to the pleas raised in the application. Of course the court while considering an application cannot go beyond the evidence led by the parties, but even in the absence of any submission raised regarding the nature of the abuse, the court can certainly apply its mind to the facts of the case and examine as to whether the acts alleged constitute any form of abuse as contemplated under section 3 of the Act. The respondent cannot be heard to contend that even if on facts abuse of a nature contemplated under section 3 of the Act is made out merely because the complainant had pleaded another kind of abuse on the same facts, the court cannot examine the evidence on record and grant relief to the complainant.
6. Examining the case on merits, it is well settled that this court in exercise of powers under Article 227 of the Constitution of India would not enter into the arena of appreciation of the evidence on record except in a case where the findings recorded by the courts below are perverse. As noticed earlier, both the courts below have recorded concurrent findings of fact to the effect that there is no physical or mental harassment. Having examined the evidence on record, it is not possible to state that the said findings are perverse. Under the circumstances, merely because it may be possible to take a different view on the same set of facts would not vest jurisdiction in this court to interfere in exercise of powers under Article 227 of the Constitution of India. However, for the reasons that follow this court is of the view that the conclusion arrived at by the courts below that there is no domestic violence is contrary to the evidence on record and, therefore, perverse.
7. A perusal of the judgments passed by both the courts below indicate that both the courts have arrived at a finding of fact that the petitioner had voluntarily left her matrimonial home and that the second respondent had not subjected her to any physical or mental harassment nor had he thrown her out of the house. Thus, both the courts have held that the petitioner has voluntarily left her husband’s home. While holding so both the courts below have failed to appreciate the evidence on record in proper perspective. From the evidence on record, one thing is clear that the petitioner had left her matrimonial home where she was residing with her husband on 8th May, 2008 on account of her daughter’s summer vacation. The petitioner has categorically stated in the application as well as in her deposition that she had informed her mother-in-law when she had left that she would return on 22nd May, 2008. The facts on record also reveal that the third respondent was often going to the U.S.A. and was, therefore, residing at the subject house only for short periods. At the relevant time, when the petitioner went to her parental home on 5th May, 2008 during the vacation period, the third respondent, that is, her mother-in-law was in India and was residing with them and the petitioner had informed her before leaving for her parental home. However, it appears that on 17th May, 2008, the third respondent left for U.S.A. at which point of time, they had informed her daughter who had also gone to drop the third respondent at the airport. However, immediately thereafter, before the petitioner could return to her matrimonial home, by a notice dated 19th May, 2008, the second respondent informed the petitioner that she has quarreled with his mother and gone to her parental home and that she should stay where she is and not return back and that he no longer desires to keep her as his wife. It is stated in the notice that the doors of the house are permanently closed for her and that the third respondent before leaving for America had said that she (the petitioner) should not be permitted to enter her house. It is further stated in the notice that in case the petitioner tries to enter the said house, it would amount to a criminal offence of trespass. That in case she needed her things, she should ask her daughter to fetch the same. This notice dated 19th May, 2008 came to be received by the petitioner on 21st May, 2008 one day prior to 22nd May, 2008, the date on which she was scheduled to return to her matrimonial home.
8. At this stage, it may be pertinent to refer to certain findings recorded by the learned Metropolitan Magistrate. The learned Magistrate, in answer to the second issue framed by him namely, whether the complainant proves that the respondent No.1 – husband had on 8th May, 2008 committed any act of domestic violence and driven the complainant out of the house, has recorded that the complainant has in her deposition stated that her daughter's vacation commenced on 4th May and on 5th May as there was vacation, she had gone to stay at her parental home. The learned Magistrate has observed that there is nothing in the deposition of the complainant to show that she was required to leave the house on 8th May, 2008 on account of any physical or mental harassment. Thus, the complainant has failed to prove that she had been subjected to mental and physical harassment and was driven out of the house. That she has, in her cross- examination, admitted that she had gone on her own will to her parental home. Thus, it is apparent that the complainant has failed to prove that she had to leave the house of the defendant on account of the harassment caused by him. The learned Magistrate has further recorded that the respondent had issued a notice dated 19th May, 2008 through his advocate in response to which the complainant had filed a reply dated 2nd June, 2008 wherein she has nowhere stated that the respondent had subjected her to mental and physical harassment on 8th May, 2008 and driven her out of the house. In case the defendant had thrown her out of the house after subjecting her to physical harassment, she would have stated so in the reply to the notice. Thus, it is apparent that the complainant has, on her own, gone to her parental house on 8th May, 2008. Thus, the complainant has failed to prove that she was required to leave the house on account of physical and mental harassment caused by the respondent. The learned Magistrate has, accordingly, answered the issue in the affirmative namely that the complainant had left the matrimonial home of her own will. Though it had been contended by the learned advocate for the second respondent that before the courts below, no plea had been taken that being denied the access to shared household amounts to deprivation under clause (iv) of section 3 of the Act, it is apparent that the findings recorded by the learned Metropolitan Magistrate are clearly contrary to the evidence on record. It may be reiterated that the Protection of Women from Domestic Violence Act, 2005 has been enacted to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Under the circumstances, the learned Magistrate was required to examine the evidence on record to ascertain as to whether or nor in the facts of the present case, there was any domestic violence as contemplated under section 3 of the Act. The mere fact that a plea may not have been specifically taken before the learned Magistrate does not mean that the learned Magistrate is not required to examine that aspect of the matter. In the facts of the present case, it is the categorical case of the petitioner that she had left for her parental home only on account of her daughter's vacation and that she was to return on 22nd May, 2008. Thus, it is apparent that the petitioner had never left her matrimonial home permanently or on account of any dispute between the parties. She had merely gone to stay there for a short while during the course of her daughter’s vacation which is quite a normal thing. However, the learned Magistrate while recording that the second respondent had issued a notice through the advocate on 19th May, 2008 in response to which the petitioner did not take any plea that she had been thrown out of her house on 8th May, 2008, has failed to notice the contents of the said notice which specifically prohibits the petitioner from entering into the house where she was residing with her husband all these years. Thus, it is apparent that though the petitioner may not have been thrown out of the house as claimed by her, it is apparent from the evidence on record that she had left the house for her daughter's vacation and was to return after a few days. However, thereafter, before she could return, she had been specifically prevented by the second respondent from re-entering the house. Thus, the finding that the petitioner had left her matrimonial house is contrary to the evidence on record inasmuch as a mere visit to the parental home cannot be said to amount to leaving the matrimonial home permanently. It is apparent from the evidence on record that when the petitioner had gone to her parental home for vacation, the second respondent by issuing notice through the advocate had prevented her from re- entering the house. It has also come on record that the second respondent had changed the locks of the house on account of which the petitioner could not re-enter the house despite the fact that she had the keys to the same. Under the circumstances, the finding that the petitioner had left the matrimonial home is clearly contrary to the evidence on record inasmuch as it is apparent that the petitioner was prevented from having access to the house where she was residing prior to going to her parental home for a few days. The said finding, being contrary to the evidence on record, is, therefore, perverse, warranting intervention by this court.
9. At this juncture, it may be germane to refer to the provisions of section 3 of the Act which defines 'domestic violence' and lays down that for the purposes of the 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 economic abuse. 'Economic abuse' has been defined under clause (iv) of the Explanation thereto as follows:-
(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.
10. As is apparent from the facts noted hereinabove, the petitioner was denied access to the house where she was residing with her husband prior to 5th May, 2008 when she went with her daughter to her parental home during the vacation, which clearly falls within sub-clause (c) of clause (iv) of Explanation I to section 3 of the Act. Moreover, it is not the case of the respondent that subsequent thereto, he was maintaining the petitioner and their daughter. Thus, by his act of not permitting the petitioner to re-enter the house, the second respondent has also deprived her of all economic or financial resources to which she was entitled. Under the circumstances, even if the contention of the learned advocate for the second respondent to the effect that both the courts having recorded concurrent findings of fact to the effect that there was no mental or physical harassment warranting intervention by this court is accepted, even then, it is clear that the act of the second respondent would fall within the ambit of “economic abuse” as contemplated under clause (iv) of Explanation 1 of section 3 of the Act and as such, would amount to 'domestic violence' as envisaged under the section 3 of the Act. Thus, the findings recorded by the learned Metropolitan Magistrate as confirmed by the learned Additional City Sessions Judge are contrary to the evidence on record and based upon a misreading of the provisions of section 3 of the Act and as such perverse. Both the courts below have failed to examine the facts of the present case in the light of clause (iv) of Explanation 1 of section 3 of the Act. Under the circumstances, the concurrent finding of fact recorded by both the courts below to the effect that there was no domestic violence is clearly contrary to the evidence on record and as such, is perverse. The contention that there is no warrant for exercise of powers under Article 227 of the Constitution, therefore, does not merit acceptance.
11. The question that then arises for consideration is as regards the relief which the petitioner would be entitled to. As noticed earlier, in the present case, based on the allegations of domestic violence, the petitioner has claimed relief under sections 18, 19, 20 and 22 of the Act.
12. Insofar as the relief claimed under section 18 of the Act namely, for a protection order is concerned, in the light of the concurrent findings recorded by the courts below that there was no mental or physical harassment, the question of grant of protection order would not arise and as such, to that extent the learned Magistrate was justified in denying the said relief.
13. As regards the relief claimed under section 19 of the Act for “residence orders” is concerned, the petitioner has claimed a right to the shared household. A “shared household” has been defined under section 2(s) to mean a household where a 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 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. In the facts of the present case, though it is an admitted position that the petitioner was residing at the subject house, viz., 27, Dreamland Park alongwith her husband and mother-in-law at the relevant time, that is, 8th May, 1998 when she went to her parental home for her daughter’s vacation and was subsequently denied access thereto, both the courts below have concurrently found that the second respondent is no longer residing at the said address and that the said house belongs to the third respondent who is the mother-in-law of the petitioner. The Supreme Court in the case of S.P. Batra vs. Smt. Taruna Batra (supra) has expressed the opinion that under section 17(1) of the Act, 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. Adverting to the facts of the present case, both the courts below having found that the house belongs to the petitioner’s mother-in-law wherein her husband is no longer residing, under the circumstances, evidently, the petitioner cannot claim a right of residence in the said house. However, the mere fact that the petitioner is not entitled to reside in the subject house, viz., 27, Dreamland Park as claimed by her does not mean that she is not entitled to the relief claimed by her under section 19 of the Act. Clause (f) of section 19 of the Act provides that while disposing of an application under sub- section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require. Thus, though the petitioner may not be entitled to the relief as prayed for by her, namely, a direction to the second and third respondents to permit her to reside at 27, Dreamland Park, she may be entitled to a direction to the second respondent to secure same level of alternate accommodation for her or to pay rent for the same.
14. In this regard it may be pertinent to note that the subject house was of the ownership of the third respondent wherein she was permitting the petitioner and the second respondent to reside. At present the second respondent is stated to be residing as a paying guest in rented premises. From the evidence which has come on record, the second respondent does not appear to have the capacity to secure same level of alternate accommodation as the subject house for the petitioner or to pay rent for the same. Under the circumstances, issuing a direction to the second respondent to provide the same level of alternative accommodation or to pay rent for the same would be an exercise in futility. In the facts and circumstances of the present case, the petitioner can at best claim the same level of alternate accommodation as presently enjoyed by the second respondent. The next question that is required to be answered as to what relief can be granted to the petitioner in the facts and circumstances of the case.
15. As can be seen from the impugned judgment and order, the lower appellate court has concurred with the finding of the learned Magistrate that the monthly income of the second respondent is Rs.10,000/- on the basis of the income tax returns filed by him. However, the lower appellate court has also observed that merely because the second respondent had taken loan from the bank for purchase of Scorpio car and is paying monthly instalments of Rs.9,448/- and is having Master Gold Card having credit limit of Rs.40,000/- does not mean that he has the capacity to pay the maintenance as prayed for by the petitioner. From the tenor of the order passed by the lower appellate court, it appears that since the lower appellate court has concurred with the finding recorded by the trial court to the effect that there is no domestic violence in the present case, it has not seriously applied its mind to the question of quantum of maintenance to be granted to the petitioner. Reverting to the facts of the present case, insofar as the income of the second respondent is concerned, the sole basis for arriving at the finding that the income of the second respondent is Rs.10,000/- is the income tax returns filed by the second respondent indicating that his income is approximately Rs.10,000/- per month. Accordingly, the amount awarded by way of maintenance to the petitioner and her daughter has been arrived at on that basis. Assailing the findings of the courts below on the finding as regards the quantum of income, the learned advocate for the petitioner had placed reliance upon a judgment and order dated 29th January, 2010 passed by this court in the case of Anup Vinod Vidhani v. State of Gujarat rendered in Criminal Miscellaneous Application No.563/2010 wherein before the court it had been canvassed that from the income tax returns of the husband, interim maintenance of Rs.15,000/- granted by the learned Magistrate was not justified. The court observed that one cannot lose sight of the fact that income tax returns are mostly the declaration by the person of his own income which need not necessarily, in all cases, to be taken as a gospel truth. In the facts of the said case, the petitioner before the court had stated that his dispensary was situated in premises owned by his mother and that he resides in a house which is owned by his father. The court observed that the petitioner was using a car, had a land line telephone as well as a mobile phone and that if he was living life of such comforts, it was necessary that his wife must be permitted bare minimum existence on somewhat similar sets of facilities. Under such circumstances, the court did not find it fit to interfere with the order of interim maintenance passed by the learned Magistrate directing the husband to pay Rs.15,000/- from the date of the application.
16. In the facts of the present case, both the courts below have found that the petitioner has not been able to establish that the second respondent was earning approximately Rs.1 lakh per month as claimed by her in the application under section 12 of the Act. Both the courts below have, therefore, placed reliance upon the income tax returns filed by the second respondent for the purpose of arriving at the conclusion that he was earning Rs.10,000/- (Rupees ten thousand) per month. However, the evidence on record suggests that the standard of living of the respondent is reasonably good and does not appear to be of a person having an income of only Rs.10,000/- per month. However, in the absence of any evidence having been brought on record as regards his actual income, the income of the second respondent may be estimated to be approximately Rs.15,000/- (Rupees fifteen thousand) per month. The reliefs claimed by the petitioner are, accordingly, required to be considered on the basis that the income of the second respondent is Rs.15,000/- per month.
17. It may be recalled that the learned Metropolitan Magistrate has awarded Rs.2,000/- to the petitioner and Rs.1,000/- for her daughter, which, is apparently a very meagre amount and can, in no manner, said to be sufficient for the purpose of maintaining the petitioner and her daughter. Under the circumstances, this court is of the view that the petitioner is entitled to a sum of Rs.3,000/- per month under section 20 of the Act and Rs.2,000/- per month under section 20(1)(d) of the Act for maintenance of her daughter. Insofar as the relief under section 19 of the Act is concerned, both the courts below have found that what is stated to be the shared household belongs to the third respondent-mother-in-law and that the second respondent-husband is living as a paying guest in rented premises. Under the circumstances, for the reasons stated hereinabove, it is not possible to issue a direction to the second and third respondents to permit the petitioner to reside at the subject house, namely, 27 Dreamland Park. For the reasons stated hereinabove, this court is of the view that the facts of the case do not justify issuance of a direction as contemplated under clause (f) of sub-section (1) of section 19 of the Act. However, the petitioner is entitled to payment of rent in respect of accommodation taking into consideration the capacity of the second respondent from the income as determined hereinabove. Accordingly, the petitioner would be entitled to payment of an amount of Rs.4,000/- towards rent from the second respondent. The petitioner would be entitled to the aforesaid reliefs from the date of the application.
18. Vide an order dated 13th September, 2010, this court while issuing rule had, in addition to the amount awarded by the learned Magistrate, directed the second respondent to pay Rs.5,000/- per month to the petitioner till the final disposal of the petition. Under the circumstances, the second respondent would be entitled to set off any amount paid under the said order while considering the amount payable by virtue of this order. It is further clarified that in the light of the relief granted by this court, the order dated 13th September, 2010 would no longer survive.
19. For the foregoing reasons, the petition partly succeeds and is, accordingly, allowed to the following extent. The second respondent shall pay a sum of Rs.5,000/- per month under section 20 of the Act to the petitioner (Rs.3,000/-
+ Rs.2,000/-) and Rs.4,000/- per month towards rent for residential accommodation, in all Rs.9,000/- per month. The impugned order dated 22nd April, 2010 passed by the learned Additional City Sessions Judge, Court No.8, Ahmedabad confirming the order passed by the learned Metropolitan Magistrate is hereby quashed and set aside to the above extent. The relief granted by the learned Metropolitan Magistrate by his judgment and order dated 21st December, 2009 shall stand substituted by the relief granted hereinabove. Rule is made absolute accordingly with no order as to costs.
( Harsha Devani, J. ) hki