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Shachi Mahajan vs Santosh Mahajan on 10 January, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 19th December, 2018
Judgment delivered on: 10th January, 2019

+ CRL.M.C. 1868/2016 Crl.M.A.35881/2018
SHACHI MAHAJAN ….. Petitioner
versus

SANTOSH MAHAJAN ….. Respondent
+ CRL.REV.P. 345/2016 Crl.M.A.7580/2016
SANTOSH MAHAJAN ….. Petitioner

versus
SHACHI MAHAJAN ….. Respondent
Advocates who appeared in this case:
For the Petitioners: Mr. Rajeev Ranjan Pandey, Adv. with petitioner in person
in CRL.M.C. 1868/2016
Mr. Sunil K. Mittal, Mr. Khushbir Singh, Mr. Anshul
Mittal Ms. Shaiza, Advs. in CRL.REV.P. 345/2016

For the Respondents: Mr. Sunil K. Mittal, Mr. Khushbir Singh, Mr. Anshul Mittal
Ms. Shaiza, Advs. in CRL.M.C. 1868/2016
Mr. Rajeev Ranjan Pandey with respondent in person Advs.
in CRL.REV.P. 345/2016

CORAM:-
HON’BLE MR. JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J

CRL.M.C. 1868/2016 Crl.M.A.35881/2018 (under Section 482
Cr.P.C. read with Section 12 Contempt of Courts Act)

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 1 of 17
CRL.REV.P. 345/2016 Crl.M.A.7580/2016 (under
Section 482
Cr.P.C. read with
Section 12 Contempt of Courts Act)

1. Both these petitions are between Mrs. Santosh Mahajan the
Mother-in-Law and Mrs. Shachi Mahajan the Daughter-in-Law.
Crl.Rev.P. 345/2016 has been filed by the Mother-in-Law, impugning
order dated 25.04.2016, whereby, directions were issued to the
Mother-in-Law to handover one set of keys to the Daughter-in-Law in
pursuance to the protection order of residence dated 07.11.2012
granted to her in respect of Property No. D-113, Anand Vihar, Delhi
(hereinafter referred to as the subject Property).

2. Crl.M.C.1860/2016 has been filed by the Daughter-in-Law,
impugning order dated 02.04.2016 of the Metropolitan Magistrate the
Magistrate did not direct registration of an FIR against the Mother-in-
Law and further direction is sought for initiating proceedings under
Section 31 of the Protection of Women from Domestic Violence Act,
2005 (hereinafter referred to as the
Domestic Violence Act) for
violating the protection order of residence.

3. The Daughter-in-Law was married with the son of Smt. Santosh
Mahajan on 01.03.2008. After the marriage, they resided at Property
No. D-113, Anand Vihar, Delhi. On 21.10.2012, the husband of
Shachi Mahajan left her matrimonial house without informing anyone.
It is alleged by the Daughter-in-Law that he had left the house with a
view to unlawfully expel her from her matrimonial home.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 2 of 17

4. Mother-in-Law is alleged to have instructed the Daughter-in-
Law to leave the matrimonial home. Mother-in-Law is alleged to
have filed a suit for permanent injunction against the Daughter-in-
Law.

5. On a petition filed by the Daughter-in-Law, protection order
was passed on 07.11.2012, restraining the Mother-in-Law from
dispossessing her from the shared household.

6. Order dated 07.11.2012 was challenged by the Mother-in-Law
by filing Crl.M.C. 418/2013. However, by order dated 08.04.2015,
said petition was dismissed on the ground that a disputed question of
fact arose as to whether the property was a shared household or not
and the Mother-in-Law was permitted to raise all issues before the
trial court.

7. Subsequently as the electricity bill was not paid, electricity
supply to the said property was disconnected in May, 2015. It is
alleged that as the electricity was disconnected, the Daughter-in-Law
was constrained to shift to her mother’s house.

8. When the Daughter-in-Law got an order for restoration of the
electricity, she could not enter the premises as the locks of the
premises had been changed by the Mother-in-Law. A complaint
under
section 31 was filed against the Mother-in-law. Mother-in-Law
filed an application under
Section 25 of the Domestic Violence Act,
seeking modification of the protection order dated 07.11.2012.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 3 of 17

9. By impugned order dated 02.04.2016, the Metropolitan
Magistrate directed the Mother-in-Law to hand over the keys of the
shared household to the Daughter-in-Law.

10. It is alleged by the Daughter-in-Law that the aforesaid order
was not complied with.

11. Mother-in-Law filed a petition before the High Court
(Crl.M.C.1643/2016) impugning order dated 02.04.2016, which was
withdrawn with liberty to file a revision petition and consequently, the
subject Crl.Rev.P. 345/2016 has been filed.

12. It is contended by the learned counsel appearing for the
Daughter-in-Law that the order, granting rights of residence, i.e.,
07.11.2012, has been upheld by this Court and, accordingly, the
Mother-in-Law cannot now impugn the same by challenging a
consequential order of handing over of the keys of the premises to the
Daughter-in-Law. Further, it is contended that since the Mother-in-
Law is in breach of the orders of the Court and has not complied with
the orders of the Court to handover possession of the subject premises,
she is liable to be prosecuted.

13. Per contra, learned counsel appearing for the Mother-in-Law
has submitted that the property is in the exclusive name of the
Mother-in-Law, so no rights of residence could have been granted to
the Daughter-in-Law. Alternatively, it is submitted that the Daughter-
in-Law was granted residence in terms of the order dated 07.11.2012

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 4 of 17
and she was occupying the same and since she herself did not pay the
electricity consumption charges, electricity was disconnected and
thereafter she abandoned the property. It is alleged that the Mother-
in-Law became aware of the Daughter-in-Law abandoning the
property when she was informed by the police of a theft in the
property. It transpired that the property had been abandoned and left
unattended and unlocked by the Daughter-in-Law.

14. Further, it is submitted that subject property has now been sold
to a third party by way of a registered Sale Deed dated 31.10.2018.

15. With regard to sale of the subject property, learned counsel
appearing for the Daughter-in-Law contended that the property was
originally purchased by the Father-in-Law by way of an agreement to
sell and, as such, on the death of the Father-in-Law, his son i.e. her
husband had a 1/3rd share in the subject property. It is submitted by
the Daughter-in-Law that her husband has not shown any share in the
subject property so as to defeat her rights and the rights of her minor
son and further that she on behalf of her minor son has already filed a
suit inter alia for declaration qua the same.

16. During arguments, several suggestions were made by the
parties for amicably resolving the disputes. However, the same could
not be resolved. A suggestion was made by the learned counsel
appearing for the Mother-in-Law that since the property had been
sold, alternative accommodation would be arranged for the petitioner.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 5 of 17

17. Learned counsel appearing for the Daughter-in-Law contended
that the Daughter-in-Law was not looking at an alternative
accommodation of a tenanted premises as there would be no security
or safety and she was only interested in a secured accommodation.

18. At this stage it would be expedient to refer to the relevant
statutory provisions of the
Domestic Violence Act.

19. Sections 12 of the Domestic Violence Act inter alia reads as
under:-

“12. Application to Magistrate.–

(1) An aggrieved person or a Protection Officer or
any other person on behalf of the aggrieved person may
present an application to the Magistrate seeking one or
more reliefs under this Act: Provided that ………….

(2) The relief sought for under sub-section (1) may
include a relief for issuance of an order for payment of
compensation or damages without prejudice to the right
of such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic
violence committed by the respondent: Provided that
…………

(3) *****”

20. In terms of Section 12 an aggrieved person, protection officer
or any other person on behalf of the aggrieved person can file an
application seeking one or more reliefs under the Act. The relief under
section 12 may also include a relief for issuance of an order for
payment of compensation or damages.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 6 of 17

21. Section 19 and 20 of the Domestic Violence Act pertaining to
Residence orders inter alia reads as under:

“19. Residence orders.–

(1) While disposing of an application under sub
section (1) of section 12, the Magistrate may, on being
satisfied that domestic violence has taken place, pass a
residence order–

(a) restraining the respondent from dispossessing or
in any other manner disturbing the possession of
the aggrieved person from the shared household,
whether or not the respondent has a legal or
equitable interest in the shared household;

(b) directing the respondent to remove himself from
the shared household;

(c) restraining the respondent or any of his relatives
from entering any portion of the shared household
in which the aggrieved person resides;

(d) restraining the respondent from alienating or
disposing of the shared household or encumbering
the same;

(e) restraining the respondent from renouncing his
rights in the shared household except with the
leave of the Magistrate; or

(f) directing the respondent to secure same level of
alternate accommodation for the aggrieved person
as enjoyed by her in the shared household or to
pay rent for the same, if the circumstances so
require:

Provided that no order under clause (b) shall be
passed against any person who is a woman.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 7 of 17

(2) *******

(6) While making an order under sub-section (1), the
Magistrate may impose on the respondent obligations
relating to the discharge of rent and other payments,
having regard to the financial needs and resources of the
parties.

(7) *******

20. Monetary reliefs.–

(1) While disposing of an application under sub-
section (1) of section 12, the Magistrate may direct the
respondent to pay monetary relief to meet the expenses
incurred and losses suffered by the aggrieved person and
any child of the aggrieved person as a result of the
domestic violence and such relief may include but is not
limited to–

(a) *****
(b) *****

(c) the loss caused due to the destruction, damage or

removal of any property from the control of the
aggrieved person; and

(d) *****

(2) The monetary relief granted under this section
shall be adequate, fair and reasonable and consistent
with the standard of living to which the aggrieved person
is accustomed.

(3) *****

**********”

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 8 of 17

22. Under Section 19 of the Domestic Violence Act, the magistrate
on being satisfied that domestic violence has taken place, can pass a
residence order restraining the respondent from dispossessing or in
any other manner disturbing the possession of the aggrieved person
from the shared household; directing the respondent to remove
himself from the shared household; restraining the respondent or any
of his relatives from entering any portion of the shared household in
which the aggrieved person resides; restrain the respondent from
alienating or disposing of the shared household or encumbering the
same; restrain the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate or directing the
respondent to secure same level of alternate accommodation for the
aggrieved person as enjoyed by her in the shared household or to pay
rent for the same, if the circumstances so require. While making an
order under 19 (1), the Magistrate may impose on the respondent
obligations relating to the discharge of rent and other payments,
having regard to the financial needs and resources of the parties.

23. Under section 20, while disposing of an application under 12(1)
the Magistrate can direct the respondent to pay monetary relief to
meet the expenses incurred and losses suffered by the aggrieved
person and any child of the aggrieved person inter alia due to the
destruction, damage or removal of any property from the control of
the aggrieved person; and the monetary relief granted under this
section has to be adequate, fair and reasonable and consistent with the
standard of living to which the aggrieved person is accustomed.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 9 of 17

24. Section 31 of the Domestic Violence Act reads as under:

“31. Penalty for breach of protection order by
respondent.–

(1) A breach of protection order, or of an interim
protection order, by the respondent shall be an offence
under this Act and shall be punishable with imprisonment
of either description for a term which may extend to one
year, or with fine which may extend to twenty thousand
rupees, or with both.

(2) The offence under sub-section (1) shall as far as
practicable be tried by the Magistrate who had passed
the order, the breach of which has been alleged to have
been caused by the accused.

(3) While framing charges under sub-section (1), the
Magistrates may also frame charges under
section 498A
of the Indian Penal Code (45 of 1860) or any other
provision of that Code or the
Dowry Prohibition Act,
1961 (28 of 1961), as the case may be, if the facts
disclose the commission of an offence under those
provisions.”

25. Section 31 makes breach of a protection order punishable and
the offender liable to imprisonment upto one year or fine which may
extend to Rupees twenty thousand or with both.

26. The allegation of the Daughter-in-Law is that the Mother-in-
Law has violated the order of residence and has prevented her from
residing in the subject property. It is alleged that when the residence
order was in force, the Mother-in-Law locked the subject property and
thereby prevented her from entering into the same. Further, it is

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 10 of 17
alleged that the Mother-in-Law has sold the subject property, thereby,
preventing her from enforcing her rights of residence in the shared
household.

27. On the other hand, the contention of the Mother-in-Law is that
the issue as to whether the subject property was a shared household
was left open by the High Court by its order dated 08.04.2015 and the
issue is still pending. Further, it is contended that the Daughter-in-
Law had voluntarily abandoned the property and left the same
unattended and, as such, cannot now claim any rights of residence in
the same.

28. Further, it is contended on behalf of the Mother-in-Law that
under
Section 19 of the Domestic Violence Act, the Magistrate has the
power to pass an order restraining the respondent from alienating or
disposing of the shared household or encumbering the same.
However, no such order was passed in the present case and the order
dated 02.11.2018 passed by the Trial Court, restraining the Mother-in
Law from selling the property was passed after the sale deed had
already been registered and as such is unenforceable. It is contended
that since there was no order restraining the Mother-in-Law from
selling or alienating the subject property, the sale of the property by
way of a registered sale deed to a third party does not amount to
violation of the residence order attracting the penal consequences
stipulated under
Section 31 of the Protection of Women from
Domestic Violence Act, 2005.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 11 of 17

29. Further, reliance is placed on the judgment of this Court dated
16.11.2018 in Crl.M.C. 3381 of 2018 titled Gauri Bhalla Versus
Ashish Bhalla, wherein, this Court has held that maintenance of a
married wife, during subsistence of marriage, is on the husband. It is a
personal obligation. The obligation to maintain a Daughter-in-Law
arises only when the husband has died. Such an obligation can also be
met from the properties of which the husband is a co-sharer and not
otherwise. For invoking the said provision, the husband must have a
share in the property. The property in the name of the Mother-in-Law
can neither be a subject-matter of attachment nor during the lifetime
of the husband, his personal liability to maintain his wife can be
directed to be enforced against such property.

30. In the facts of the present case, it may be noticed that there was
an order of residence in favour of the Daughter-in-Law which was in
force. Said order had neither been vacated nor modified by either the
Trial Court or any higher forum. No doubt, the issue as to whether
such an order was liable to be modified in the facts of the present case
was pending consideration before the Trial Court, however, pending
the proceedings before the Trial Court, subject property now stands
transferred to a third party by way of a registered sale deed. Neither
the husband nor the Mother-in-Law have any surviving share in the
subject property after the registration of the sale deed in favour of a
third party.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 12 of 17

31. Perusal of the documents, filed by the parties on record, show
that Conveyance Deed of the subject property was executed in favour
of the Mother-in-Law on 30.03.2010, much prior to the passing of the
order of residence dated 07.11.2012. The issue whether the husband
had a 1/3rd undivided share in the property having inherited the same
from his father on his demise, does not arise for consideration in these
proceedings and is the subject matter of civil proceedings between the
parties.

32. In the facts of the case equities have to be balance. On the one
hand the rights of third party i.e. the purchaser of the subject property
has to be balanced vis-a-vis the rights that the Daughter-in-Law is
seeking to enforce. The claim is that her husband had a 1/3 rd share in
the subject property. Sale Deed placed on record shows the sale
consideration as Rs.3,40,00,000/-. Accordingly, direction is liable to
be issued to the Mother-in-Law to deposit 1/6th of the sale proceeds
(i.e. one half of 1/3rd) with the Trial Court for securing the rights, if
any, determined in favour of the Daughter-in-Law and her minor son.

33. No doubt, the action of the Mother-in-Law in disposing of the
property by way of a registered sale deed has caused loss to the
Daughter-in-Law, however it may be seen that there was no order
restraining the Mother-in-Law from selling or alienating the subject
property and, as such, she cannot be penalised in terms of
Section 31
of the Domestic Violence Act.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 13 of 17

34. However, the action of the Mother-in-Law in selling the subject
property, though not strictly illegal, has caused loss to the Daughter-
in-Law. Accordingly, one would also have balance the corresponding
rights of the parties. On the one hand, Mother-in-Law is alleged to
have sold the property for her bona fide needs and third party rights in
the subject property have arisen and on the other hand, the Daughter-
in-Law is deprived of her rights of residence in the subject property.

35. The contention of the Mother-in-Law is that the Daughter-in-
Law was residing in only one room of the first floor of the subject
property. On the other hand, the contention of the Daughter-in-Law is
that the household was common and she was occupying the first floor
of the subject property.

36. Documents on record prima facie show that the Daughter-in-
Law was in possession of one room on the first floor, but was sharing
the kitchen and common areas on the ground floor.

37. Without getting into the controversy, one may examine the
rights that are granted by
Section 19 of the Protection of Women from
Domestic Violence Act, 2005.

38. Section 19(1)(f) inter alia stipulates that the Magistrate shall
secure same level of alternative accommodation for the aggrieved
person as enjoyed by her in the shared household or direct payment of
rent for the same, if the circumstances so require.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 14 of 17

39. In the facts of the present case, since the subject property is
now not available, the only order that can be passed in favour of the
Daughter-in-Law for securing her residence is to direct the Mother-in-
Law to ensure that either a ground floor or a first floor is obtained on
rent for the residence of the Daughter-in-Law in the locality ‘Anand
Vihar’ in a similar property.

40. Since the action of the Mother-in-Law has also resulted in
removal of a property from the control of the Daughter-in-Law, she
has to be granted adequate, fair and reasonable
compensation/monetary relief for the deprivation of said property.

41. Another factual dispute, which is still pending consideration
before the Trial Court, is as to whether the Daughter-in-Law had
abandoned the property and thereby the protection order of residence
had worked itself out and she was not entitled to any residence in the
subject property.

42. Keeping in view of the facts and circumstances, these petitions
are disposed of with the following directions:-

(i) Mother-in-Law shall ensure that a flat is taken on rent
either on the ground floor or on the first floor in the
locality of Anand Vihar, Delhi in a property similar in
nature to subject property.

(ii) All formalities for taking on rent the said floor shall be
undertaken by the Mother-in-Law. She shall be liable to
pay the rental as well as the security deposit for such
property.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 15 of 17

(iii) Mother-in-Law shall keep a security deposit, equivalent
to 12 months rental, with the Trial court at all points of
time.

(iv) This exercise of obtaining the premises on rent shall be
completed within a period of 4 weeks from today.

(v) Trial Court shall, within a period of three months,
determine the monetary compensation, which would be
paid by the Mother-in-Law to the Daughter-in-Law, in
terms of
Section 20(1)(c) and Section 20(2) of the
Domestic Violence Act, for the period that the Daughter-
in-Law was deprived of the use of the subject property till
she is provided an alternative residence. Trial Court
while ascertaining compensation shall decide on the
allegation of the Mother-in-Law that the Daughter-in-
Law had abandoned the subject property and its effect, if
any.

(vi) In the meantime, Mother-in-Law shall pay an interim
compensation of Rs. 75,000/- to the Daughter-in-Law
within a period of 2 weeks. The amount paid as an
interim compensation would be subject to adjustment, on
final adjudication by the Trial Court.

(vii) Mother-in-Law shall also deposit, with the Trial Court,
Rs. 57,00,000/- (i.e. 1/6th of the sale consideration of Rs.
3,40,00,000/- (rounded off)), received from sale of the
subject property.

(viii) This deposit shall be for securing the rights, if any,
determined in favour of the Daughter-in-Law and her
minor son.

(ix) The direction to deposit 1/6th of the sale proceeds are
without prejudice to the rights and contentions of the
parties and do not amount to expression of any opinion
on the claim made by the Daughter-in-Law for herself
and her minor son.

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 16 of 17

43. Petitions and the pending applications are, accordingly,
disposed of in the above terms. Interim order dated 02.11.2018 passed
by the Trial Court and interim order dated 06.11.2018 passed by this
Court in Crl.M.C. 1868 of 2016 is vacated.

44. Order Dasti under signatures of the Court Master.

JANUARY 10, 2019/st                        SANJEEV SACHDEVA, J

CRL.M.C. 1868/2016 CRL.REV.P. 345/2016 Page 17 of 17

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