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16.01.2020

Ct. 35
Sl. 6
KS
C.R.R. 3542 of 2019

Sri Pratul Chandra Ghosh Ors.

‐Vs.‐
The State of West Bengal Anr.

Mr. Dipanjan Chatterjee
….. For the Petitioners
Mr. Sudip Ghosh Chowdhury
…..For the Opposite Party No.2

In this revisional application the petitioner nos.1 to 3 being the husband,

father‐in‐law and mother‐in‐law of the opposite party no.2 have challenged the

proceeding being, M.C. No.115 of 2018 (T.R. 205 of 2018) under Sections 17/ 18/

22 of the Protection of Women from Domestic Violence Act, 2005, pending in

the Court of the learned Judicial Magistrate, 5th Court, Chinsurah, Hooghly,

inter alia, on the ground that there is no domestic relationship between the

petitioners and the opposite party no.2 which came to an end before filing of the

application under Section 12 of the Protection of Women from Domestic

Violence Act, 2005. So, there cannot be any apprehension in the mind of the

opposite party no.2 that she may be subjected to domestic violence by the

petitioners and, as such, without any subsisting domestic relationship, the

question of any apprehension would not arise. The opposite party no.2 has

filed application under Section 12 of the Act of 2005, inter alia, praying for an

order of residence in the shared household which does not belong to her

husband‐petitioner no.1 rather the household property belongs to petitioner

nos.2 and 3 the parents‐in‐law of the opposite party no.2. Thus, it is contended
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that the opposite party no.2 is not entitled to claim any order of residence in

such household which is not her husband’s property, and as such, an order of

alternative accommodation is not enforceable against the opposite party nos.2

and 3.

Mr. Dipanjan Chatterjee, learned advocate appearing for the petitioners

urged for quashing the proceeding qua the petitioner nos.2 and 3 and relied on

a decision in the case of S. R. Batra Anr. V. Taruna Batra reported in AIR

2007 SC 1118 wherein it has been held that there is no law in India like in 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. On the contrary, Mr. Sudip Ghosh Chowdhury

learned advocate appearing for the opposite party no.2 submits that the

opposite party nos.2 and 3 have not even entered appearance before the learned

Magistrate. The order‐sheet in the referred case reveals that application filed on

behalf of the opposite party no.2 was fixed for hearing of interim petition on

04.12.2019 and the petitioners instead of entering appearance before the

Magistrate have preferred this revisional application challenging the

proceeding.

Now, Mr. Chowdhury informs this Court that the case is fixed on 27th

January, 2020 for hearing of the interim application under Section 23 of the D. V.

Act wherein the opposite party‐wife has prayed for an order of protection of the

right to residence in the shared household and restraining the opposite parties,

the present petitioners from evicting the petitioners from shared household

under Section 17 of the Protection of Women from Domestic Violence Act, 2005.
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In this context, it is submitted on behalf of the petitioners that since, the

present opposite party no.2 is putting in her parental home question of such an

order of injunction restraining the opposite parties from evicting the petitioner

does not arise. As regards the Prayer – (b) for interim order under Section 18 of

the said Act, the prohibition has been prayed against the present petitioners

from committing any act of domestic violence upon the opposite party no.2.

This is also not maintainable as against the petitioner nos. 2 and 3 as per

submission of learned advocate for the petitioners that since, the opposite party

no.2 is not putting up in the shared household belongings to the petitioner nos.2

and 3, one cannot think of any domestic violence. As regards Prayer – (c)

protection order under Section 22 of the Act has been made for a direction upon

the present petitioners to pay the compensation and damages for mental agony

and emotional distress suffered by the present opposite party no.2 due to

physical and mental torture by the petitioners.

In this context, it appears from the record that the opposite party no.2 has

filed an F.I.R. under Section 498A against the opposite parties alleging mental

and physical cruelty meted out. At the same time, it is made to understand on

behalf of the petitioners that the petitioner no.1 was asked to pay a sum of Rs.25

laks to the opposite party no.2 and to sign a petition of mutual divorce. But,

there is no copy of petition of mutual divorce as alleged by the petitioners. I am

of the opinion that all the factual aspects addressed to this Court can be decided

by the Trial Court on evidence. This Court finds that proceeding before the

Magistrate is at the initial stage . It is true that the protection for residence

cannot be asked for against the father‐in‐law and the mother‐in‐law as per the
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dictate of the Hon’ble Supreme Court in the above cited decision but the fact

remains that the household property really belongs to the petitioner nos.2 and 3

is not in proof before this Court.

I make it clear that, the wife can seek such protection against her husband.

In the context of the above, discussion and considering that the proceeding is at

the initial stage, this Court is not inclined to quash the proceeding against the

petitioners or even against the opposite party nos. 2 and 3. They are at liberty to

address the Judicial Magistrate before whom the Miscellaneous Case is pending

keeping all the points open for decision by the learned Magistrate.

Accordingly, this revisional application being, C.R.R. 3542 of 2019 is

disposed of.

Urgent photostat certified copies of this order, if applied for, be made

available to the parties upon compliance of the requisite formalities.

(Shivakant Prasad, J.)