Property dispute, DV dismissed

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 01.07.2015

CORAM : THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRL.RC.(MD)Nos.532 of 2013 and 212 of 2015

R.Vinayagam : Petitioner in Crl.RC.[MD].No.532 of 2013
M.Prema : Petitioner in Crl.RC.[MD].No.212 of 2015

Vs.

1.M.Prema
R.Suseela : Respondents Crl.RC.[MD].No.532 of 2013
1.R.Vinayagam
2.R.Suseela : Respondents in Crl.RC.[MD].No.212 of 2015

COMMON PRAYER

Petitions are filed under Section 397 r/w 401 of the Code of Criminal Procedure, to call for the records relating to the order dated 13.02.2013 made in Crl.A.No.62 of 2011, on the file of the First Additional District and Sessions Judge, Thanjavur, modifying the Judgment dated 10.10.2011 made in STC.No.624 of 2010, on the file of the Judicial Magistrate No.II, Thanjavur and set aside the same.

Reserved – on 22.06.2015
Pronounced – on 01.07.2015

In Crl.RC.[MD].No.532 of 2013
For Petitioner : Mr.G.R.Swaminathan For Mr.T.Antony Arul Raj
For Respondent No.1 : Mr.N.Balakrishnan

In Crl.RC.[MD].No.212 of 2015
For Petitioner : Mr.N.Balakrishnan
For Respondent No.1 : Mr.G.R.Swaminathan For Mr.T.Antony Arul Raj

COMMON ORDER

The petitioner in Crl.RC.[MD].No.212 of 2015 is the wife of one Mr.R.Muruganantham. The petitioner in Crl.RC.[MD].No.532 of 2013, Mr.R.Vinayagam, [the first respondent in Crl.RC.[MD].No.212 of 2015], is the brother of the said Mr.R.Muruganantham. The second respondent in both the Criminal Revision Cases Mrs.R.Suseela is the mother of the petitioner in Crl.RC.[MD].No.532 of 2013 and the mother-in-law of the petitioner in Crl.RC.[MD].No.212 of 2015. For the sake of convenience, in this order, the parties are referred to as arrayed in the order of the Trial Court.

2. The brief facts of the case are as follows:-

The father of the first respondent – Mr.Raju Udayar is no more. Mr.Raju Udayar has left behind two sons, viz., Mr.R.Vinayagam, the petitioner in Crl.RC.[MD].No.532 of 2013 and Mr.R.Muruganantham, the husband of the petitioner in Crl.RC.[MD].No.212 of 2015. Mrs.Prema is happily living with her husband – Mr.R.Muruganantham. The marriage between them was celebrated on 09.09.2007. It is alleged that at the time of marriage, a sum of Rs.45,000/- for the purpose of purchasing a Motorcycle and a sum of Rs.15,000/- for the purpose of purchasing household articles was presented to the bridegroom and the bride by her father. The said amount was actually paid to the first respondent. After the marriage, it is alleged that the petitioner and her husband were residing along with the first respondent – Mr.R.Vinayagam and the second respondent – Mrs.Suseela, at the house, bearing Door No.51, Vellalar Street, Vallam, Thanjavur. According to the petitioner, the said house is the ancestral property of her husband and the first respondent – Mr.R.Vinayagam and the same remains undivided.

2.1. It is her further case that the said property was purchased by Mr.Raju Udayar, but, till his death, no sale deed was obtained from the vendors. Mr.Raju Udayar died in the year 1971. According to the petitioner, at that time, the husband of the petitioner – Mr.R.Muruganantham was a minor. Since the first respondent – Mr.R.Vinayagam was the head of the family, the sale deed was obtained in his name on behalf of the joint family. That is how, the petitioner, her husband and the respondents were residing in the said house.

2.2. While so, on 27.02.2010, the respondents, viz., the brother-in-law and mother-in-law of the petitioner, harassed the petitioner demanding more amount from her father. They attempted to manhandle her. It is her further case that out of fear, she rushed into a room in the house and bolted the same from outside. But, the first respondent broke open the door, entered into the room, attacked her and pushed her out of the house. The electricity connection to the said room was also disconnected. He also abused her pointing out that she is a physically challenged woman. Thus, according to the petitioner, the respondents caused domestic violence to her. The first respondent has also misappropriated a sum of Rs.45,000/- given at the time of marriage for the purpose of purchasing the Motorcycle, as he did not purchase any Motorcycle for her husband. With the above allegation, the petitioner made a complaint before the Protection Officer, at Thanjavur, under the Protection of Women from Domestic Violence Act, 2005, [for brevity, “the Act”]. The Protection Officer held an enquiry and finally submitted a report before the learned Judicial Magistrate No.II, Thanjavur, alleging that there was domestic violence caused to the petitioner by the respondents and recommending for an order for shared household in the said house and also for monetary relief.

2.3. On appearance before the learned Judicial Magistrate, the respondents filed an appropriate counter, wherein it was contended that there was no such violence caused at all by them. It was further contended that the house in question was purchased exclusively by the first respondent, in which the husband of the petitioner has got no share at all. It was further contended that there was no shared house as defined in the Act. It was also contended that a sum of Rs.45,000/- was never paid to the first respondent at the time of marriage for the purpose of purchasing a Motorcycle for the husband of the petitioner at all. It was also contended that the entire proceedings before the Trial Court was not maintainable, since the issue raised therein would fall outside the purview of the Act. It was further contended that since there was no love-lost between the respondents and the husband of the petitioner, her husband had instigated the petitioner to initiate this proceedings, which, according to the respondents, is a clear abuse of process of law and the Court. Therefore, according to the respondents, the claim made by the petitioner should be rejected.

2.4. Before the Trial Court, on the side of the petitioner, four witnesses were examined. PW-1 is the petitioner, who has spoken, inter alia, that a sum of Rs.45,000/- was paid at the time of marriage to the first respondent on behalf of her husband, which the first respondent has embezzled and that the house in question is an ancestral property, over which her husband has an undivided share. PW-2, Mr.Arumugaamy, is the Village Administrative Officer, Vallam North Village. He has stated that the Chitta for the property comprising Survey No.448/11, originally stood in the name of Mr.Raju Udayar, the father of the first respondent and his brother. He has further deposed that after the demise of Mr.Raju Udayar, his legal heirs are residing in the said house. PW-3, Mr.Tamilarasan, claims to be a close relative of the first respondent and his brother. According to him, in the house in question, the first respondent and his brother Mr.R.Muruganantham were residing. He has further stated that the said house was originally purchased only by the father of the first respondent and in the negotiation, for the purchase of the house, according to PW-3, he participated. He has further stated that at the time of marriage between the petitioner and her husband, a sum of Rs.40,000/- was given as dowry for the purpose of purchasing the Motorcycle. PW-4 is the husband of the petitioner. He has stated about the marriage between him and the petitioner and that a sum of Rs.40,000/- paid at the time of marriage for the purpose of purchasing the Motorcycle, which the first respondent has embezzled. He has further stated that the house in question was purchased by his father, in which he has got undivided share. Thus, he has duly supported the claim made by the petitioner.

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2.5. Having considered all the above, the Trial Court, by order dated 10.10.2011, directed the first respondent to pay a sum of Rs.40,000/- to the petitioner within a period of one month from the date of receipt of a copy of the order. The Trial Court further directed that the respondents, shall not, in any manner, disturb the petitioner from living in the house in question and she shall not be removed from possession. The Trial Court further directed that the respondents shall not cause any domestic violence to the petitioner, her children and her husband. Lastly, the Trial Court directed the respondents to pay a sum of Rs.2,000/- towards cost of the proceedings. Challenging the same, the respondents filed C.A.No.62 of 2011. The learned First Additional District and Sessions Judge, Thanjavur, by Judgment dated 13.02.2013, allowed the appeal in part, thereby setting aside the directions for payment of Rs.40,000/- as monetary relief and the cost of Rs.2,000/-, as ordered by the Trial Court. However, the Lower Appellate Court confirmed the direction of the Trial Court, directing the respondents not to disturb the possession of the petitioner, her husband and their children to live in the house in question and also confirmed the direction not to cause any domestic violence to the petitioner, her husband and her children. As against the order of the Lower Appellate Court, setting aside the payment of monetary relief of Rs.40,000/- and the cost of Rs.2,000/-, the petitioner – Mrs.Prema has come up with Crl.RC.[MD].No.212 of 2015 and challenging the other directions granted by the Trial Court and confirmed by the Lower Appellate Court, the first respondent before the Trial Court – Mr.R.Vinayagam has come up with Crl.RC[MD].No.532 of 2013.

3. Since these Criminal Revision Cases arise out of a single proceedings, I have heard them together and dispose of the same by this Common Order.

4. I have heard the learned counsel on either side and perused the records carefully.

5. The learned counsel for the petitioner would submit that there is clear evidence of PW-1 and PW-4 that a sum of Rs.45,000/- was paid at the time of marriage for the purpose of purchasing the Motorcycle and the same was embezzled by the first respondent. Thus, the learned counsel would submit that the Lower Appellate Court was not right in setting aside the monetary relief granted by the Trial Court. The learned counsel would further submit that there was no reason to set aside the order for cost, as directed by the Trial Court. Thus, according to the learned counsel, the order of the Lower Appellate Court setting aside the directions of the Trial Court to pay a sum of Rs.40,000/- towards monetary relief and to pay a sum of Rs.2,000/- as cost to the petitioner needs to be interfered with. The learned counsel would further submit that so far as the house in question is concerned, it has been clearly established by the evidences of PW-1 and PW-4, more particularly, from the evidence of PW-2 that the house in question was owned by the father- in-law of the petitioner, in which the first respondent and the husband of the petitioner have got an undivided share. The learned counsel would further submit that this factual finding has been arrived at by the two Courts below, which does not require any interference at the hands of this Court. Therefore, according to him, the Criminal Revision Case filed by the first respondent Mr.R.Vinayagam deserves to be dismissed.

6. The learned counsel for the first respondent – Mr.R.Vinayagam, would submit that this is a clear case of abuse of process of law as well as the Court. According to him, the dispute raised, in this case, is purely civil in nature, which needs to be adjudicated upon only by a Civil Court. He would further submit that so far as the direction for payment of Rs.40,000/- is concerned, according to the evidences of PW-1 and PW-4, a sum of Rs.45,000/- was actually paid, whereas, according to the evidence of PW-3, a sum of Rs.40,000/- alone was paid. He would further submit that absolutely, there is no evidence worth believing either oral or documentary. It was because of this reason, according to the learned counsel, the Lower Appellate Court set aside the direction of the Trial Court to pay a sum of Rs.40,000/-. The learned counsel would further submit that since the entire case is a clear abuse of process of law as well as the Court, the cost of Rs.2,000/-, ordered by the Trial Court was rightly set aside by the Lower Appellate Courrt, which does not require any interference at the hands of this Court. So far as the house in question is concerned, the learned counsel would submit that absolutely, there is no evidence to show that the house was owned by late Raju Udayar. He would further submit that as per 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.

7. Here, in this case, according to the learned counsel, even according to the evidences available, there is no domestic violence caused by the husband. When the husband and the wife are residing happily, the question of violence at the hands of someone else would not arise. Thus, according to the learned counsel, the order of the Lower Court directing the respondents not to disturb the alleged possession of the petitioner and not to cause any violence is not sustainable and the same is liable to be set aside.

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8. I have considered the above submissions.

9. Let me, at the first, take up the issue relating to the jurisdiction. So far as the direction for shared household is concerned, it is the claim made by the petitioner that the property in question was purchased by her father-in-law, in which the petitioner, her husband and the respondents were living. But, admittedly, the sale deed stands in the name of the first respondent. The husband of the petitioner has not made any claim so far by filing any civil suit for partition. It is crystal clear from the evidences available that as of now, there is no love-lost between the husband of the petitioner and the respondents. When there is a dispute relating to the claim for share in the house, it would be appropriate for her husband to file a civil suit for necessary relief. Instead of doing so, it is obvious that he has used his wife to initiate the present proceedings, as though there was domestic violence at the hands of the respondents, as defined in the Act. Absolutely, there is no acceptable evidence to prove that there was any domestic violence at the hands of the respondents. For granting any relief under the Act in favour of the petitioner, essentially, it should be proved that there was domestic violence, as defined in the Act. But, in the case on hand, except the fact that there was dispute regarding the share in the property, which, according to the husband of the petitioner, is an ancestral property, absolutely, there is no evidence worth considering that there was domestic violence caused by the respondents. If once this Court comes to the conclusion that there is no violence in terms of the Act, the entire order passed by the Courts below granting relief to the petitioner has to be set aside.

10. The learned counsel for the respondents, in order to substantiate his contention that the claim made by the petitioner is liable to be rejected, has relied on the Judgment of the Hon’ble Supreme Court in S.R.Batra and another Vs. Taruna Batra, reported in 2007 3 SCC 169, wherein, the Hon’ble Supreme Court has made an elaborate discussion on this aspect and held in Paragraph Nos.26 to 30, as follows:-

“26. If the aforesaid submission is accepted, then it will mean that
wherever the husband and wife lived together in the past that
property becomes a shared household. It is quite possible that the
husband and wife may have lived together in dozens of places e.g.
with the husband?s father, husband?s paternal grandparents, his
maternal parents, uncles, aunts, brothers, sisters, nephews, nieces,
etc. If the interpretation canvassed by the learned counsel for the
respondent is accepted, all these houses of the husband?s relatives
will be shared households and the wife can well insist in living in
all these houses of her husband?s relatives merely because she had
stayed with her husband for some time in those houses in the past.
Such a view would lead to chaos and would be absurd.

27. It is well settled that any interpretation which leads to
absurdity should not be accepted.

28. Learned counsel for the respondent Smt Taruna Batra has relied
upon Section 19(1)(f) of the Act and claimed that she should be given
an alternative accommodation. In our opinion, the claim for
alternative accommodation can only be made against the husband and
not against the husband?s (sic) in-laws or other relatives.

29. 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 2,
mother of Amit Batra. Hence it cannot be called a ?shared household?.

30. No doubt, the definition of ?shared household? in Section 2(s)
of the Act is not very happily worded, and appears to be the result
of clumsy drafting, but we have to give it an interpretation which is
sensible and which does not lead to chaos in society. [Emphasis
supplied].

11. In Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel, reported in 2008 4 SCC 649, relied on by the learned counsel for the petitioner, the Hon’ble Supreme Court, by relying on S.R.Batra’s case has held in Paragraph Nos.27 to 30 as follows:-

27. The Domestic Violence Act provides for a higher right in favour
of a wife. She not only acquires a right to be maintained but also
thereunder acquires a right of residence. The right of residence is a
higher right. The said right as per the legislation extends to joint
properties in which the husband has a share.

28. Interpreting the provisions of the Domestic Violence Act this
Court in S.R. Batra v. Taruna Batra6 held that even a wife could not
claim a right of residence in the property belonging to her mother-in-
law, stating: (SCC p. 173, paras 17-19) ?17. There is no such law in
India like the British Matrimonial Homes Act, 1967, and in any case,
the rights which may be available under any law can only be as
against the husband and not against the father-in-law or mother-in-law.

18. Here, the house in question belongs to the mother-in-law of Smt
Taruna Batra and it does not belong to her husband Amit Batra. Hence,
Smt Taruna Batra cannot claim any right to live in the said house.

19. Appellant 2, the mother-in-law of Smt Taruna Batra has stated
that she had taken a loan for acquiring the house and it is not a
joint family property. We see no reason to disbelieve this statement.?

29. Reliance placed by Mr Goel on V. Tulasamma v. Sesha Reddy is
wholly misplaced. The question which arose for consideration therein
was the nature of the right a widow acquires in the property of which
she had been in possession in lieu of maintenance. Interpreting sub-
section (1) of Section 14 of the Hindu Succession Act this Court held
that the term ?possessed? should receive a wide meaning. It is in
this context this Court noticed the authorities from Shastric Hindu
Law whereupon our attention has been drawn: (SCC pp. 108-09, para 10)
?10. ? Similar observations have been made by the learned author at
p.528 of the book which may be extracted thus:

?According to both the schools, the lawfully wedded wife acquires
from the moment of her marriage a right to the property belonging to
the husband at the time and also to any property that may
subsequently be acquired by him, so that she becomes a co-owner of
the husband, though her right is not coequal to that of the husband,
but a subordinate one, owing to her disability founded on her status
of perpetual or lifelong tutelage or dependence.

This right of the wife to maintenance from her husband is not lost
even if the husband renounces Hinduism.

This right subsists even after the husband?s death although her
husband?s right as distinguished from hers may pass by survivorship
or by succession to sons or even to collaterals; these simply step
into the position of her husband, and she is required by Hindu Law to
live under their guardianship after her husband?s death.? ?

30. The orders passed by the High Court which are impugned before us
are, thus, wholly unsustainable. They suffer from total non-
application of mind”.

12. Keeping the principles stated in the above said Judgments of the Hon’ble Supreme Court, let us have a quick look into the Explanation II to Section 3 of the Act, which reads as follows:-

Explanation II.- For the purpose of determining whether any act,
omission, commission or conduct of the respondent constitutes
“domestic violence” under this Section, the over all facts and
circumstances of the case shall be taken into
consideration?

13. This Explanation would make it clear that whether a particular act or omission of the accused amounts to domestic violence or not, is to be tested by taking into account the over all facts and circumstances of the case. In the instant case, the facts placed before this Court would go to show that there has been a dispute regarding the rival claim made by the husband of the petitioner and the first respondent for the house in question. As I have already stated, the petitioner and her husband are living happily and there is no disturbance in the matrimonial life. This dispute, regarding property right, which needs to be resolved before a competent Civil Court, is now given a colour of domestic violence so as to abuse the process of Court.

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14. In view of the above discussion, I have to hold that absolutely, there is no evidence that there was domestic violence caused by the respondents. Whether the husband of the petitioner has got any undivided share in the property in question or not is a matter to be resolved only by the competent Civil Court and a Criminal Court cannot venture to resolve the same. The admission made by the husband of the petitioner, who has been examined as PW-4, that he is behind the filing of the case by the petitioner and that he has been looking after the case, by accompanying the petitioner to Court for all hearings, would go to show that he has made an attempt to abuse the process of Court by taking a short cut method, instead of travelling through the appropriate route to reach the Civil Court for their dispute resolved. In fact, he is the actual litigant, but hiding under the veil of his wife. Thus, I have no hesitation to hold that this case instituted before the Criminal Court is a clear abuse of process of Court, which cannot be appreciated.

15. So far as Crl.RC[MD].No.212 of 2015 is concerned, though it is contended by the petitioner that a sum of Rs.45,000/- was paid at the time of marriage for the purpose of purchasing the Motorcycle for her husband, there is no acceptable evidence either oral or documentary to prove the same. The Lower Appellate Court has mainly relied on the contradiction between the evidences of PW-1 and PW-4 and that of the evidence of PW-3, who has stated that a sum of Rs.40,000/- alone was paid. This, in my considered view, would only go to show that the claim made by the petitioner is false and therefore, the Lower Appellate Court was right in setting aside the order of the Lower Court in this regard. So far as the direction for payment of Rs.2,000/- ordered by the Trial Court is concerned, since I have held that the case initiated by the petitioner before the Trial Court itself is a clear abuse of process of law as well as the Court, the order of the Lower Appellate Court setting aside the direction for payment of Rs.2,000/- also needs to be sustained and thus, Crl.RC[MD].No.212 of 2015 filed by the petitioner – Mrs.Prema is liable to be dismissed. While disposing of these Criminal Revision Cases, it may be necessary to impose appropriate cost on Mrs.Prema, for having abused the process of Court. But, taking into consideration the fact that she is a physically challenged woman and also the fact that she does not have sound economic status, I desist from imposing cost.

16. In view of the foregoing discussions, Crl.RC[MD].No.212 of 2015 filed by the petitioner – Mrs.Prema is dismissed and Crl.RC[MD].No.532 of 2013 filed by the petitioner – Mr.R.Vinayagam is allowed and the order of the Trial Court, dated 10.10.2011, made in STC.No.624 of 2010, directing the respondents not to disturb the petitioner from residing in the house bearing Door No.51, Vellalar Street, Vallam, Thanjavur, and not to cause any violence is hereby set aside. In the result, the order of the learned Judicial Magistrate No.II, Thanjavur, in full shall stand set aside.

To

1.The First Additional District and Sessions Judge, Thanjavur.
2.The Judicial Magistrate No.II, Thanjavur.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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