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
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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.
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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
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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
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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
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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,
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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
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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.
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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
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