SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Jayshree W/O. Shrawan Kharat And … vs Anita W/O. Raju Kharat And Anr on 25 September, 2019

CrWp 1475 18.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1475 OF 2018

1. Jayshree w/o Shrawan Kharat,
Age 39 years, Occ. Service.

2. Shravan @ Baban Kishan Kharat,
Age 40 years, Occ. Service.

Both r/o. Padmavati Road, Chaitainy
Nagar, Opposite I.I.T. market Pavai,
Mumbai – 400076 … Petitioners

VERSUS

1. Anita w/o Raju Kharat,
Age 26 years, Occ. Household,
R/o. Greves Company Road,
Ambedkar Nagar, CIDCO,
Aurangabad.

2. Satyabhama w/o Kishan Kharat,
Age 60 years, Occ. Household,
R/o. Juinagar, Section – 25,
Flat No. 9, Bharat Society, B-2,
Nerul, Navi Mumbai. … Respondents.

Advocate for Applicant : Mr. Jivan J. Patil.
Advocate for Respondent No. 1 : Mr. Sandanshiv M.B.
Advocate for respondent No. 2 : Mr. A.B. Jagtap.

CORAM : MANGESH S. PATIL, J.
RESERVED ON : 21/09/2019
PRONOUNCED ON : 25/09/2019

1/9

::: Uploaded on – 26/09/2019 27/09/2019 02:22:14 :::
CrWp 1475 18.odt
JUDGMENT :

Heard. Rule. The rule is made returnable forthwith. The

learned advocate Mr. Sandanshiv waives service for respondent No. 1.

At the request of both the sides the matter is heard finally at the stage

of admission.

2. The respondent No. 1 filed a proceeding before the learned

J.M.F.C. Aurangabad under section 12 of the Protection of Women

from Domestic Violence Act, 2005 (hereinafter referred as to ‘D.V. Act’)

against her husband, the petitioners herein who are the brother-in-law

and brother-in-law’s wife and the respondent No. 2 herein who is her

mother-in-law seeking various reliefs under different provisions of the

D.V. Act. The learned Magistrate by the judgment and order dated

14.01.2015 allowed the application partly. He directed the respondents

No. 2 to 5 therein to pay her maintenance at the rate of Rs. 3000/- per

month and also issued a direction in the nature of injunction

restraining them from obstructing and objecting her stay in the flat

stated to be the shared household. It may be mentioned herein that

though the respondent No. 1 in the original complaint was arrayed

being the husband of the respondent No. 1, since he has been

admittedly not traceable, the matter proceeded in his absence and the

impugned order was directed only against the rest of the respondents.

2/9

::: Uploaded on – 26/09/2019 27/09/2019 02:22:14 :::

CrWp 1475 18.odt

3. It appears that the respondent No. 2 in the original

proceeding who was the father-in-law of respondent No. 1 had died

during pendency of the proceeding. The respondents No. 1, 3, 4 and 5

preferred appeal under section 29 of the Domestic Violence Act before

the Sessions Court. By the impugned judgment and order the learned

Additional Sessions Judge dismissed the appeal. Hence this Writ

Petition.

4. The learned advocate for the petitioners vehemently

submitted that the two Courts below have not considered the evidence

in the proper perspective. There was no sufficient proof that the rest

of the respondents apart from the husband were in domestic

relationship with the respondent No. 1-wife as defined under section

2(f) of the D.V. Act. The petitioners who are the brother-in-law and

his wife were residing separately and not sharing the house and

therefore no liability could have been fixed on them. He further

submitted that there was sufficient record to show that the husband of

the respondent No. 1 had gone missing in May 2011. There was not

enough material and evidence before the two Courts below to show

that the respondent No. 1 and the petitioners herein had shared the

house at Nerul. Therefore the Courts below could not have granted

any relief to her as contemplated under section 19 of the D.V. Act in

3/9

::: Uploaded on – 26/09/2019 27/09/2019 02:22:14 :::
CrWp 1475 18.odt
respect of that flat which was not a shared household within the

meaning of Section 2(s) of the D.V. Act. The appreciation of evidence

by the two Courts below is perverse and arbitrary and should be

interfered with in this proceeding.

5. The learned advocate also submitted that the complaint filed

by the respondent No. 1 under section 498A, etc. of the Indian Penal

Code against all her matrimonial relations has been dismissed and they

have been acquitted and therefore that is a circumstance to show that

there was no domestic violence.

6. The learned advocate for the respondent No. 1 submitted

that there was ample evidence before the Courts below to show that

she was cohabiting with her husband in the same flat at Nerul wherein

even the petitioners were residing and cohabiting with them. They

were served with the notices of the original proceeding on the same

address. There was specific averment about it in the original original

application. She had indetail alleged as to how she was subjected to

domestic violence and was not allowed to reside in the flat at Nerul.

She has duly supported her such allegations by leading cogent and

reliable evidence and the two Courts below have taken consistent and

plausible view by correct appreciation of the evidence and this Court

should not intervene in exercise of the writ jurisdiction in such
4/9

::: Uploaded on – 26/09/2019 27/09/2019 02:22:14 :::
CrWp 1475 18.odt
concurrent findings of facts.

7. I have carefully gone through the judgments of both the

Courts below and perused the record. It is trite that the High Court in

exercise of the writ jurisdiction would be loath in exercising it when

there are consisting findings of facts of the two Courts below and can

step in only when here is a gross error or perversity in appreciation of

the evidence. Bearing in mind this principle let us approach the case.

8. It is necessary to note at this juncture that the father-in-law

has died during pendency of the proceeding and the mother-in-law has

not preferred the present proceeding by joining in the array of the

petitioners albeit she has been made a respondent No.2. It is also

important to note that though admittedly the husband has been

missing since the year 2011 and was merely made respondent No. 1

for the name sake, the title clause of the appeal shows that even he

was made an appellant in the appeal preferred by the petitioners along

with the mother-in-law.

9. Be that as it may, we now have to consider the case of the

petitioners alone. According to them since before marriage they were

residing separately and had not shared the flat at Nerul as a common

household along with the respondent No. 1 at any point of time and

5/9

::: Uploaded on – 26/09/2019 27/09/2019 02:22:14 :::
CrWp 1475 18.odt
consequently it cannot be said that they were having any domestic

relation with her within the meaning of Section 2(f) of the D.V. Act and

the flat at Nerul cannot be said to be a shared household within the

meaning of Section 2(s). Therefore the scope of the present Writ

Petition is restricted in ascertaining whether the observations and

conclusions of the two Courts below qua the petitioners are

sustainable.

10 In their written statement they have specifically admitted that

after the marriage the respondent No. 1 started cohabiting with her

husband and the matrimonial relations in the flat at Nerul, albeit the

petitioners herein contended that they have been residing separately

else where since before such marriage. Therefore independent of this

issue there is apparently no dispute that the flat at Nerul is a shared

household. The definition of ‘shared household’ under Section 2(s) of

the D.V. Act 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 them in
respect of which either the aggrieved person or the
respondent or both jointly or singly have any right, title,
6/9

::: Uploaded on – 26/09/2019 27/09/2019 02:22:14 :::
CrWp 1475 18.odt
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.

Since even a past residence is sufficient, when it is admitted

that after the marriage the respondent No. 1 along with her husband

were cohabiting in the same flat which was being used as a flat of the

joint family since it was purchased/acquired by the deceased father-in-

law of the respondent No. 1, nothing further needed to be established

to hold that it was indeed a shared household.

11. As far as the petitioners version that they have been residing

else where since before the marriage of the respondent No. 1, an

attempt was made to show that they have been residing in a

Government premises at Pavai. But as has been rightly noticed by the

learned Magistrate except such bald statement there was absolutely no

material to show even prima facie that they have been staying in such

Government premises. They have not produced any evidence about it,

which they could have easily done. For this reason the learned

Magistrate discarded the petitioners’ version that they have been

residing else where and not in the shared household at Nerul.

Although the petitioner No. 2 herein had stepped in the witness box, in

7/9

::: Uploaded on – 26/09/2019 27/09/2019 02:22:14 :::
CrWp 1475 18.odt
the absence of any concrete or corroborative evidence on the record

the learned Magistrate has rightly refuted the petitioners’ contention

that they were residing at Pavai. Consequently, an inference has been

drawn that even they have been residing in the shared household as

members of the joint family and thus are in domestic relationship with

the respondent No. 1 within the meaning of Section 2(f) which reads

thus :

“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;”

As can be seen all the persons living in the same shared household as

family members can be regarded as having domestic relationship. The

respondent No. 1 had specifically averred that all of them were

residing in the flat at Nerul including the petitioners and the

petitioners have failed to meet such averment by leading cogent and

reliable evidence.

12. The learned Additional Sessions Judge has correctly

appreciated the facts and circumstances and has come to a plausible

conclusion confirming the observations of the learned Magistrate.

8/9

::: Uploaded on – 26/09/2019 27/09/2019 02:22:14 :::

CrWp 1475 18.odt

13. Much emphasis was laid by the learned advocate for the

petitioners in the observations in paragraph No. 14 and 17 of the

judgment passed by the learned Additional Sessions Judge while

arguing that the learned Additional Sessions Judge has not analysed

the evidence and has only cursorily referred to it to draw some

conclusion.

14. I am afraid, the submission of the learned advocate is not

acceptable. The learned Additional Sessions Judge has clearly

discussed the evidence and has drawn the inferences which according

to him are deducible on the basis of the oral testimonies and the

documents produced on record. According to learned Judge such oral

and documentary evidence clearly demonstrated and substantiated the

version of the respondent No. 1 that the flat at Nerul is a shared

household within the meaning of section 2(s) of the D.V. Act.

16. Resultantly, I find no apparent error or illegality in the

observations and the conclusions drawn by the two Courts below so as

to enable this Court to interfere in such concurrent findings.

17. The Writ Petition is dismissed. Rule is discharged.

( MANGESH S. PATIL, J. )
mkd
9/9

::: Uploaded on – 26/09/2019 27/09/2019 02:22:14 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation