IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15th DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION NO.837/2017 BETWEEN :
Sosigowda @ Papegowda S/o Sosigowda Aged about 65 years Occupation: Agriculture R/o Ganjigere Village Bookanakere Hobli K.R. Pet Taluk-571 426.
… Petitioner (By Sri Prasanna Kumar P. Daroji, Advocate) AND :
1. Sowmya W/o Manjunath Aged about 30 years R/o Hanganahalli Village Chinakurali Hobli Pandavapura Taluk 2. Manjunatha S/o Sosigowda Aged about 40 years Occupation: Agriculture R/o Ganjigere Village Bookanakere Hobli K.R. Pet Taluk-571 426.
… Respondents (By Sri Praveenkumar N.K., Advocate for R1; R2 is served and unrepresented) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the judgment dated 27.03.2015 passed by the court of the Senior Civil Judge and JMFC, Pandavapura, in Crl.Misc.No.3/2014 and also judgment dated 05.01.2017, passed by the III Addl. District and Sessions Judge, Mandya Sitting at Srirangapattana in Criminal Appeal No.5017/2015.
This Criminal Revision Petition coming on for orders this day, the Court made the following:-
O R D E R The present petition is filed by the father-in-law of respondent No.1 herein challenging the judgment passed by the III Additional District and Sessions Judge, Mandya sitting at Srirangapatna, dated 5.1.2017 in Criminal Appeal No.5017/2015, whereunder the order passed by the learned Senior Civil Judge and JMFC Pandavapura, dated 27.3.2015 in Cr.Mis.No.3/2014, has been confirmed.
2. I have heard the learned counsel for the petitioner and respondent No.1. Though this case is posted for admission with consent it is taken up for final disposal.
3. It is the case of respondent No.1 that she got married with respondent No.2 herein on 28.6.2007 by paying the dowry in the form of cash of Rs.50,000/- and gold. Her father-in-law, the petitioner herein and her husband-respondent No.2 started ill-treating and harassing her. Hence, she filed a complaint before K.R.Pet Police Station and on the basis of the said complaint, her husband and father-in-law were summoned and warned and they have given an undertaking on 8.6.2012. It is her further case that on the same day, they abused her in filthy language and without providing food, they snatched mangalya chain and other gold ornaments and drew her out of the house. A case was also registered in this behalf. It is further stated that respondent No.1-wife was not having any means and therefore she filed an application under Section 12 and also under Sections 19 and 20 of Protection of Women from Domestic Violence Act, 2005 (‘Act’ for short) to pay the allowance and for providing the residence. The trial Court after considering the material placed on record, allowed the petition filed under Sections 19 and 20 of the Act in part and directed respondent No.2 and the petitioner herein to provide a separate residence to respondent No.1 and her minor children within 30 days and also directed to provide maintenance of Rs.3,000/- per month to her and 2,000/- per month to both children till they attain the age of majority. Challenging the same, the husband- respondent No.2 and the father-in-law, the present petitioner preferred an appeal in Criminal Appeal No.5017/2015. The appellate Court after considering the material on record, confirmed the order of the trial Court and dismissed the appeal. Against which, the petitioner, father-in-law of respondent No.1 is before this Court.
4. It is the contention of the learned counsel for the petitioner that the Courts below have erred in coming to the conclusion that the petitioner herein has to accommodate by providing a rented house to respondent No.1. It is his submission that wife’s right to residence therein does not cover the property belonging to the father-in-law. The ‘shared house’ means, it is the property of the husband alone and not of the father-in- law or mother-in-law. In order to substantiate his contention, he relied upon the decision in the case of S.R.Batra & another Vs. Taruna Batra (Smt.), reported in (2007)3 SCC 169. He further submitted that the petitioner was placed ex parte and he was not having any opportunity to put forth his evidence and as such the order of the trial Court is not sustainable in law and prays to allow the petition by setting aside the impugned orders.
5. Per contra, the learned counsel for respondent No.1 vehemently argued by supporting the judgments of both the Court below that domestic violence has been proved by the first respondent-wife and she has led the evidence. The petitioner has not appeared and has not led any evidence. Under such circumstances, the said contention cannot be accepted and the same is liable to be dismissed. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
7. Relationship between respondent Nos.1 and 2 and out of the said wedlock, two children were born is not in dispute. The only question which has been raised before this Court is that the father-in-law of respondent No.1, the present petitioner is not liable to give the ‘shared house’ it is only the husband who has to give accommodation and therefore the order passed by the trial Court is not justifiable. For the purpose of brevity, I quote Section 19 of the Act, which reads thus:-
“19. Residence orders- (1) 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-
(a) 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;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or (f) 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:
Provided that no order under clause(b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub- section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub- section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) the Magistrate may direct the officer-in- charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.”
8. A close reading of Clause (1)(f) of Section 19 of the Act, the Court can direct respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed in by her in the shared household or to pay rent for the same, if the circumstances so require. The only question which remains for consideration by this Court is what is the meaning of “shared household”. The wife is entitled to claim a right of residence in a shared household which would only mean the house belonging or taken on rent by husband or house which belongs to joint family of which the husband is a member. The said aspect has also been discussed by the Hon’ble Apex Court in the decision in the case of S.R.Batra & another Vs. Taruna Batra (Smt.) (cited supra), cited by the learned counsel for the petitioner himself. In the said decision, it has been made very clear that in order to overcome the said clause, father-in-law or mother-in-law as the case may be have to prove that the said property is not a joint family property has to be established by him, then only the father-in-law can be excluded from passing of such an order. But in the instant case, no such evidence has been produced to show that it is his self acquired property. In the absence when father-in-law and her husband are residing together a presumption ban be drawn that it is a joint family property. When it is the contention of respondent No.1-wife that it is the joint family property and the husband is also a member of the said joint family, then under such circumstances, the Court can pass the domestic violence order under Section 19(1) (f), including her father-in-law if it is the joint family property. Keeping in view aforesaid minute line of distinction which has been held in the above said decision, the contention which has been raised by the petitioner’s counsel is not acceptable and the same is liable to be rejected.
9. Though it is contended by the learned counsel for the petitioner that no opportunity was given to the petitioner by the trial Court, on perusal of the records, it would indicate that notice was served on the petitioner but he has remained absent and even he has not filed any objections. Under such circumstances, the said contention taken up by the petitioner is not acceptable.
10. Taking into consideration the facts and circumstances of the case, I am of the considered view that the petitioner has not made out any good ground to interfere with the impugned orders passed by both the Courts below. Both the Courts below after considering the said facts, have come to a right conclusion which does not require any interference by this Court.
Accordingly, petition being devoid of merits, stands dismissed.
Sd/- JUDGE *ck/-