Family dispute, Shared household and Domestic Violence Act

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL MISC. APPLICATION (C-482) No. 600 of 2011

Rafat Araa
W/o Jafar Khan @ Darban Singh
R/o Mohalla Katortal Nai Basti
Near Lashkhar Kashipur
District Udham Singh Nagar………………..Applicant

Versus

Kamar Mirja
S/o Kaishar Mirja
R/o Mohalla Katortal Nai Basti
Near Lashkhar Kashipur
District Udham Singh Nagar………………Respondent

Shri D.C.S.Rawat, Advocate, present for the petitioner. Shri Abhishek Verma, Advocate, present for the respondent.

Hon’ble Prafulla C. Pant, J.

Heard.

(2) By means of this petition, moved under section 2

482 of Code of Criminal Procedure, 1973, the petitioner has quashing of the judgment and order dated 16.05.2011, passed by Additional Sessions Judge, Kashipur, in Criminal Appeal No. 133 of 2010, Qamar Mirja vs. Rafat Araa, filed under section 29 of Protection of Women from Domestic Violence Act, 2005.

(3) Brief facts of the case, are that, the petitioner Rafat Araa is real aunt (BUA) of the respondent Qamar Mirja. She moved an application under Protection of Women from Domestic Violence Act, 2005, against the respondent pleading that she was being subjected to physical cruelty by the respondent to oust her from the house, they are living together. It is also pleaded by the petitioner Smt. Rafat Araa that the house was purchased by her husband through a registered sale deed from Kaisar Mirja (father of the present respondent), and allowed Qamar Mirja (nephew of the petitioner) to stay in the house as a goodwill gesture. On the other hand, the respondent pleaded before the trial court that where abouts of his father are not 3

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known, and the alleged sale deed is a forged document. The respondent further pleaded that it was he who allowed the petitioner Smt Rafat Araa as she was his aunt to stay in the house.

(4) In the above circumstances, the pleading of the parties suggest that it is a dispute of ownership of the house in question. However, what is to be seen for the purposes of this case, is whether the property is a shared household, or not.

(5) The definition of “shared household” is mentioned in clause (s) of section 2 of Protection of Women from Domestic Violence Act, 2005. It reads as under:-

” 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 4

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.

The above definition makes it clear that the aggrieved must have lived in a domestic relationship with the respondent. The definition of “domestic relationship” is given in clause (f) of section 2 of the Act. Said definition reads as under :-

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“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;

From the above definition of domestic relationship it appears that it is necessary that the aggrieved person should have related to the respondent by consanguinity, marriage or through the relationship in the nature of marriage, adoption or as a member of joint family. It is nobody’s case that there was a joint family of the petitioner and her brother Kaisar Mirja (father of the respondent). Nor, the petitioner and respondent are related by consanguinity, marriage, or relationship in the nature of marriage, or adoption.

(6) ” Aggrieved person” is defined in clause (a) of section 2 of the Act. The same reads as under:-

” aggrieved person” means any woman who is , or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.;

(7) In the above circumstances, having gone through the definition of ” aggrieved person” 6

given in clause (a) of section 2, and that of “domestic relationship” and ” shared household”, quoted above, this court comes to the conclusion that the aunt (BUA), and her nephew can not be said to be the persons living together in a shared household, under the domestic relationship. That being so, the appellate court has committed no illegality in allowing the appeal, and setting aside the order passed by the Magistrate in favour of the petitioner.

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(8) Accordingly, this petition filed under section 482 of Cr.P.C., is dismissed.

(Prafulla C. Pant, J.)

Dt.04.01.2012

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