Crl. Revision No. 3084 of 2016 [1]
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
(1) Crl. Revision No. 3084 of 2016 (OM)
Date of decision: April 17, 2018
Vikas and others
…Petitioners
Versus
Smt. Usha Rani and another
…Respondents
(2) Crl. Revision No. 2985 of 2016 (OM)
Smt. Usha Rani
…Petitioner
Versus
Naresh Kumar and others
…Respondents
CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR
Present: Mr. Rajesh Hooda, Advocate,
for the petitioners in Crl. Revision No. 3085 of 2016 and
for the respondents in Crl. Revision No. 2984 of 2016.
Mr. Vivek K. Thakur, Advocate,
for the petitioner in Crl. Revision No. 2985 of 2016 and for
the respondents in Crl. Revision No. 3084 of 2016.
JAISHREE THAKUR, J.
1. By this judgment, I propose to dispose of the above titled two
revision petitions as they arise out of a similar set of facts, involving similar
question of law. However, for the sake of convenience, facts are being taken
from Criminal Revision No. 3084 of 2016.
2. In brief the facts, as alleged, are that a marriage was solemnized
between Naresh Kumar and Usha Rani on 18.6.2002 as per Hindu rites and
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ceremonies. After some time, the husband of Usha Rani and his family
members started demanding dowry and a motorcycle and threatened that in
case the demands are not met, she would be turned out of her matrimonial
home. There was no improvement in the behaviour of her husband and his
family members and ultimately she was thrown out of the matrimonial
home. Under these circumstances, Usha Rani was constrained to approach
the police with a complaint, on the basis of which FIR No. 70 dated
23.10.2005 was registered under Sections 498-A, 406 and 506 IPC. In the
said proceedings, the husband Naresh Kumar was declared as proclaimed
person. Thereafter, a petition under Section 12 of the Protection of Women
from Domestic Violence Act 2005 (hereinafter referred to as “Domestic
Violence Act”) was filed by Usha Rani against her husband–Naresh
Kumar, Smt. Santara (mother-in-law), Vikas, Narender and Dinesh
(brothers-in-law) and Smt. Saroj (sister of Naresh Kumar). In the said
complaint, petitioner–Usha Rani, (for short ‘the petitioner’) submitted that
the respondents–Naresh Kumar (husband), Smt. Santora (mother-in-law),
Vikas, Narender and Dinesh (brothers-in-law) and Smt. Saroj (sister of
Naresh Kumar) (for short ‘the respondents’) have committed domestic
violence, gave beatings and threatened to eliminate her and, therefore, they
be stopped from committing any kind of Domestic Violence against the
petitioner. Protection order was issued under Section 18 of the Domestic
Violence Act. The petitioner also sought relief under Section 19 as well as
monetary relief to the petitioner under Section 20 of the Domestic Violence
Act was sought, apart from compensation.
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3. The petition was contested by all other than Naresh Kumar–
husband, who was proceeded against ex-parte. Eventually, the Judicial
Magistrate Ist Class (JMIC), Dadri, Bhwani, after taking note of the fact that
the petitioner is the wife of Naresh Kumar allowed interim claim of the
petitioner by directing the aforesaid family members of Naresh Kumar to
pay `15,000/- per month collectively, from the date of filing of the present
application as well as to provide residential house constructed in 60 square
yards. Aggrieved against the said order, an appeal under Section 29 of the
Domestic Violence Act was preferred before the Additional Sessions Judge,
Bhiwani, who modified the said judgment to the extent that the petitioner-
wife would hand over the possession of the share household to the
respondents but maintained that the respondents No. 2 to 4 would pay
maintenance to the tune of `3,000/- per month collectively to the petitioner-
wife. Aggrieved against the said order, Criminal Revision No. 3084 of 2016
has been filed by the Vikas, Virender and Dinesh (brothers-in-law)–
respondents for dismissing the complaint filed by the petitioner-wife,
whereas Criminal Revision No. 2985 of 2016 has been preferred by the
petitioner-wife for setting aside the order passed by the Additional Sessions
Judge, Bhiwani, vide which maintenance has been reduced to `3000/- per
month as well as her right to residence in the shared household has been
taken away.
4. Learned counsel appearing on behalf of Vikas, Virender and
Dinesh (petitioners in Criminal Revision No. 3084 of 2016) contends that
the complaint filed under Section 12 of the Domestic Violence Act on
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4.12.2015 before the JMIC, Charki Dadri, Bhiwani, is not maintainable and
would be barred by limitation. It is further argued that as per the case set up
by the petitioner-herself she had been turned out of the matrimonial home as
far back as in 2005 itself, which resulted in registration of FIR 70 dated
23.10.2005. It is also submitted that the parties, namely, Naresh Kumar–
husband and Usha Rani–wife had been residing separately on account of
the matrimonial dispute and there was no shared household between them,
while further submitting that the complaint is barred by limitation. In
support of his contention, learned counsel relies on Inderjit Singh Grewal
Versus State of Punjab and another 2011 (4) R.C.R. (Criminal) 1,
wherein the Supreme Court held that a complaint under the provisions of
Domestic Violence Act is to be filed only within a period of one year from
the date of the incident.
5. Per contra, learned counsel appearing on behalf of the
complainant–Usha Rani submits that being legally wedded wife of Naresh
Kumar, she is entitled to residence in shared household and accommodation
had been rightly allowed by the JMIC, Charki Dadri. Moreover, she would
also be entitled to maintenance, since she does not have means to support
herself. Moreover, it is only an interim application that had been allowed
and without proper evidence being adduced, the relief as awarded of right of
residence in a shared household as well as right of maintenance ought not to
be interfered with.
6. Learned counsel for the complainant–Usha Rani relied on
Shalini Versus Kishor and others 2015 (11) SCC 718, wherein the
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Supreme Court allowed the claim of the wife for shared household, who had
been living separately for the past 15 years from her husband. The Supreme
Court reiterated the view taken in Saraswathy Versus Babu 2014 (4) SCC
(Crl.) 688, wherein the complaint was filed by the wife after almost fourteen
years from the date she was driven out of her matrimonial home. In
Shalini’s case (supra), the Supreme Court relied on V.D. Bhanot Versus
Savita Bhanot 2012 (1) R.C.R. (Criminal) 834, wherein the Supreme
Court held that a wife will be entitled to maintain a petition under the
provisions of the Domestic Violence Act, even if the act of domestic
violence had been committed prior to coming into force of the Domestic
Violence Act.
7. I have heard learned counsel for the parties and have perused
the record.
8. The Protection of Women from Domestic Violence Act, 2005
was enacted to protect women against violence of any kind specially
violence occurring within the family. In the ‘Statement of Objects and
Reasons’, it is noticed that the situation wherein a woman is subjected to
cruelty by her husband or his relatives was originally sought to be dealt with
by the addition of Section 498-A in the Indian Penal Code, however, this
law did not cover the entire spectrum of the violence, maltreatment etc.
meted out to a woman. It was in this background that the aforesaid Act of
2005 came into existence. The Act of 2005 proposes to cover and provide
protection to those women who are or have been in a relationship with the
abuser where both the parties have lived together in a “shared household”
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and are related by consanguinity, marriage or through a relationship in the
nature of marriage or adoption or are family members living together as a
joint family. Those women who are sisters, widows, mothers, single woman
or living with the abuser are entitled to legal protection. Section 2(a) defines
as to who would be an “aggrieved person” under the Act while defining
“domestic relationship” under Section 2(f), “respondent” under Section 2(q)
and “shared household” has been defined under Section 2(s). The definition
of sections which are relevant for the purpose of adjudicating the
controversy are reproduced for ready reference:
“2(a) “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;
2(f) “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;
2(q) “respondent” means any adult male person who is, or has
been, in a domestic relationship with the aggrieved person and
against whom the aggrieved person has sought any relief under
this Act;
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file a
complaint against a relative of the husband or the male
partner;
2(s) “shared household” means a household where the person
aggrieved lives or at any stage has lived in a domestic
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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, 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.”
9. Admittedly, the complainant–Usha Rani was married to
Naresh Kumar (brother of Vikas etc., and who was proceeded against ex-
parte) and, therefore, it can safely be stated that Naresh Kumar and the
complainant–Usha Rani were in ‘domestic relationship’, since they resided
together for a considerable period of time, before she was turned out of her
matrimonial home on account of bringing inadequate dowry, as alleged by
her.
10. From the arguments, as raised before this Court, the question
that would arise for consideration is, whether the complaint under the
Domestic Violence Act filed by the petitioner-wife in the year 2015, after a
period of 10 years having left/turned out of her matrimonial home, would be
barred by limitation and, whether the petitioners in Criminal Revision No.
3084 of 2016, being brothers-in-law of the complainant-wife, are liable to
maintain her, being wife of their brother, in his absence.
11. To arrive at a conclusion, it would be expedient to refer to
Section 28 of the Domestic Violence Act, 2005, which lays down the
procedure specifying that all the proceedings under Sections 12, 18, 19, 20,
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21, 22 and 23 and offences under Section 31 shall be governed by the
provisions of the Code of Criminal Procedure. Section 31 in turn provides
for penalty for breach of protection order by respondent which specifies that
a breach of protection order, or of an interim protection order, by the
respondent shall be an offence punishable with imprisonment of either
description for a term which may extend to one year and to refer to Rule 15
(6) which specifies that when charges are framed under Section 31, they be
tried in accordance with the provisions of Chapter XXI of the Code of
Criminal Procedure, 1973.
12. There is no dispute regarding the subsistence of the marriage
between the parties, but would the complaint be hit by the bar of limitation,
as has been held in Inderjit Singh Grewal (Supra)? The facts, as emerged,
in Inderjit Singh Grewal are that the wife filed a criminal complaint before
the competent court to initiate criminal proceedings against her husband
alleging that the decree of divorce had been obtained by playing fraud and
the marriage was solemnized at Jalandhar. On account of the fact that the
parties could not pull along, a divorce under Section 13-B of the Hindu
Marriage Act was filed for dissolution of marriage by mutual consent. The
statements of both the parties were recorded and the proceedings were
adjourned for more than six months, enabling the parties to re-consider their
decision to part ways. The parties in that case had appeared again before the
Courts on 20.3.2008 and got recorded their statements affirming that they
could not reside together and, thereafter the District Judge, Ludhiana,
allowed the said petition and dissolved their marriage. Thereafter, the wife
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filed a complaint under the provisions of the Domestic Violence Act before
the Senior Superintendent of Police, Ludhiana, alleging that the divorce was
a sham transaction and even after getting the divorce they are residing as
husband and wife. She has been forced to leave the matrimonial home and,
therefore, she should be allowed interim protection as provided under the
Domestic Violence Act. Eventually, the wife filed a complaint under the
Domestic Violence Act and summons were issued, while also filing a Civil
Suit seeking declaration that the decree of divorce was null and void. She
also lodged FIR under Sections 406, 498-A, 376, 120-B IPC. Under the
circumstances, the husband filed a criminal petition before the High Court
for quashing of the complaint filed by the wife under Section 12 of the
Domestic Violence Act. The High Court dismissed the petition of the
husband, which led to filing Criminal Appeal before the Supreme Court. It is
in this background, the Supreme Court held that the complaint filed by the
wife under the Domestic Violence Act would not be sustainable, in view of
the fact that the decree of divorce subsisted and that the complaint had been
filed beyond the period of one year from the date of incident.
13. However, in a subsequent judgment rendered in Shalini’s case
(supra), the Supreme Court clearly allowed the complaint filed under the
Domestic Violence Act at the behest of the wife holding that a wife can
claim residence in a shared house, even though she had been living
separately for the past 15 years, while interpreting the term “domestic
relationship”.
14. Later in Krishna Bhatacharjee Versus Sarathi Choudhury
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and another 2016 (2) SCC 705, the question of limitation arose before the
Supreme Court wherein the wife was seeking return of her Istridhan back
from her husband. In Krishna Bhatacharjee’s case (supra), a matrimonial
dispute arose and the wife was driven out of her matrimonial home.
Conciliation was arrived at between the parties and both started living in a
rented house. However, within a short period, the husband filed a petition
for judicial separation before the Family Court, which prayer was allowed
and the parties got judicial separation in the year 2010. It was thereafter that
an application under Section 12 of the Domestic Violence Act was filed
seeking seizure of Istridhan articles from the possession of the husband. The
application, which was made before the CDPO was forwarded to the Chief
Judicial Magistrate, Agartala Sadar, West Tripura, who issued notice to the
respondent-husband, who in turn filed his objection thereto. The Chief
Judicial Magistrate, after taking into consideration that the wife was an
“aggrieved person” opined that no domestic relationship existed between
the parties, as there was a judicial separation. Therefore, relief was
declined to the wife. The Additional Sessions Judge, while relying upon the
judgment rendered in Inderjit Singh Grewal’s case (supra), dismissed the
appeal so filed being time barred, as did the High Court. It is in this
background that the Supreme Court, while relying upon the judgment
rendered in Saraswathy (supra), decided the core issue, whether the wife
had ceased to be an “aggrieved person” (while relying on judgment
rendered in Jeet Singh and others Vs. State of U.P. And others (1993) 1
SCC 325) on account of a judicial separation, and held that the relationship
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of the husband and wife does not get severed. The Supreme Court held as
under:-
“In view of the aforesaid pronouncement, it is quite clear that
there is a distinction between a decree for divorce and decree
of judicial separation; in the former, there is a severance of
status and the parties do not remain as husband and wife,
whereas in the latter, the relationship between husband and
wife continues and the legal relationship continues as it has not
been snapped. Thus understood, the finding recorded by the
courts below which have been concurred by the High Court
that the parties having been judicial separated, the appellant
wife has ceased to be an “aggrieved person” is wholly
unsustainable”
while further holding that retention of Istridhan by the husband or any other
family members is a continuing offence and held the wife to be an
“aggrieved person” under the provisions of the Domestic Violence Act
while allowing the appeal. As regards, the question of limitation, the
Supreme Court held as under:-
“Regard being had to the aforesaid statement of law, we have
to see whether retention of stridhan by the husband or any
other family members is a continuing offence or not. There can
be no dispute that wife can file a suit for realization of the
stridhan but it does not debar her to lodge a criminal complaint
for criminal breach of trust. We must state that was the
situation before the 2005 Act came into force. In the 2005 Act,
the definition of “aggrieved person” clearly postulates about
the status of any woman who has been subjected to domestic
violence as defined under Section 3 of the said Act. “Economic
abuse” as it has been defined in Section 3(iv) of the said Act
has a large canvass. Section 12, relevant portion of which have11 of 19
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Crl. Revision No. 3084 of 2016 [12]been reproduced hereinbefore, provides for procedure for
obtaining orders of reliefs. It has been held in Inderjit Singh
Grewal (supra) that Section 498 of the Code of Criminal
Procedure applies to the said case under the 2005 Act as
envisaged under Sections 28 and 32 of the said Act read with
Rule 15(6) of the Protection of Women from Domestic Violence
Rules, 2006. We need not advert to the same as we are of the
considered opinion that as long as the status of the aggrieved
person remains and stridhan remains in the custody of the
husband, the wife can always put forth her claim under Section
12 of the 2005 Act. We are disposed to think so as the status
between the parties is not severed because of the decree of
dissolution of marriage. The concept of “continuing offence”
gets attracted from the date of deprivation of stridhan, for
neither the husband nor any other family members can have
any right over the stridhan and they remain the custodians.”
15. As already stated, this Court has to answer the question,
whether the complaint is barred by limitation based upon the provisions of
the Domestic Violence Act and the law, as cited. Section 28 of the
Domestic Violence Act mandates all proceedings under Sections 12, 18, 19,
20, 21, 22, and offences under Section 31 shall be governed by the Code of
Criminal Procedure. Whereas Section 31 provides for penalty of breach of
protection order against the ‘respondent’ and Rule 15 of the Rules Of 2006
provides for procedure under Section 31 of the Domestic Violence Act.
16. An aggrieved person is permitted to present an application to
the Magistrate seeking one or more reliefs under this Act and the Magistrate
shall take into consideration any domestic incident report received by him
from the Protection Officer also. Section 12 of the Domestic Violence Act is
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enabling provision to file an application, whereas Sections 18 to 22 of the
Domestic Violence Act provide for rights of the aggrieved person to seek
different reliefs like protection, residence, monetary relief, custody of minor
and compensation. No limitation has been prescribed for seeking any such
relief. Penal provisions under Section 31 of the Domestic Violence Act
would get attracted on a breach of a protection order . It is only in a situation
when there is a breach of any protection order on an application under
Section 12 or on any of the reliefs under Sections 18 to 22 of the Domestic
Violence Act, then and then only, an application under Section 31 of the
Domestic Violence Act is to be filed within one year from the date of such
breach and not thereafter. Therefore, the court is of the opinion that there is
no limitation prescribed to institute a claim seeking relief under Sections 17
to 22 of the Domestic Violence Act.
17. “Economic abuse” is a form of Domestic Violence as
recognized by the Domestic Violence Act and is defined under Section 3
(iv) :-
“(a) deprivation of all or any economic or financial resources
to which the aggrieved person is entitled under any law or
custom whether payable under an order of a court or otherwise
or which the aggrieved person requires out of necessity
including, but not limited to, household necessities for the
aggrieved person and her children, if any, stridhan, property,
jointly or separately owned by the aggrieved person, payment
of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets
whether movable or immovable, valuables, shares, securities,
bonds and the like or other property in which the aggrieved
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person has an interest or is entitled to use by virtue of the
domestic relationship or which may be reasonably required by
the aggrieved person or her children or her stridhan or any
other property jointly or separately held by the aggrieved
person; and
(c) prohibition or restriction to continued access to resources
or facilities which the aggrieved person is entitled to use or
enjoy by virtue of the domestic relationship including access to
the shared household. Explanation II.–For the purpose of
determining whether any act, omission, commission or conduct
of the respondent constitutes “domestic violence” under this
section, the overall facts and circumstances of the case shall be
taken into consideration. ”
Being the lawfully married wife of Naresh Kumar, the
petitioner is entitled to seek maintenance under Section 125 of the Code of
Criminal Procedure. Similar provision has been made under the provisions
of the Domestic Violence Act, if it can be substantiated that there is
economic abuse. It is trite to say that a husband is duty bound to maintain
his wife, but would the in-laws have the same burden caste upon them?
18. The term “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. In the case of S..R Batra and
another vs Taruna Batra (2007) 3 SCC 169, the question raised before
the Supreme Court was, whether a daughter-in-law had any right to claim
residence in a property belonging to the mother-in-law by claiming it to be
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“shared residence” answered in the negative. It was held:
“28. Learned counsel for the respondent Smt Taruna Batra has
relied upon Section 19(1)(f) of the Act and claimed that she
should be given an alternative accommodation. In our opinion,
the claim for alternative accommodation can only be made
against the husband and not against the husband’s (sic) in-laws
or other relatives.
29. As regards Section 17(1) of the Act, in our opinion the wife
is only entitled to claim a right to residence in a shared
household, and a shared household would only mean the house
belonging to or taken on rent by the husband, or the house
which belongs to the joint family of which the husband is a
member. The property in question in the present case neither
belongs to Amit Batra nor was it taken on rent by him nor is it
a joint family property of which the husband Amit Batra is a
member. It is the exclusive property of Appellant 2, mother of
Amit Batra. Hence it cannot be called a “shared household”.”
19. On that corollary, if an aggrieved person is not permitted to
continue to stay in premises that do not belong to the husband, or have been
rented by him, or in such property he does not have a share in being joint
property, can the brothers-in-law be directed to maintain the aggrieved
person by giving her maintenance as has been done in the instant case?
There is no dispute with the proposition that the husband has a moral and a
statutory obligation to maintain his wife, but can liability or obligation as it
may be, be fastened on to his brothers?
20. As per the provisions of the Domestic Violence Act 2005
“domestic relationship” means a relationship between two persons who live
or have, at any point of time, lived together in a shared household, when
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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 whereas “respondent” means any adult male person who is, or has
been, in a domestic relationship with the aggrieved person and against
whom the aggrieved person has sought any relief under this Act. The
aggrieved person in order to claim a right of residence has to establish that
her husband is owner of the property or that property is joint family
property. Similarly, maintenance too would be payable by the husband and
in his absence cannot be fastened upon his brothers. At best a claim can be
made from an income derived from joint assets in which the husband would
have a share.
21. In a recent case reported in Abdulrahim Abdulmiya Pirzada
another Vs State of Gujarat others 2016 SCC Online Gujarat 1187
the High Court while dealing with a similar question held:
“8. At this juncture, it may be germane to refer to certain
decisions of the Supreme Court. In the case of Vimlaben
Ajitbhai Patel v. Vatslaben Ashokbhai Patel and others, (2008)
4 SCC 649, the Supreme Court has, after referring to the
provisions of Section 3(b),18 and 19 of the Hindu Adoptions
and Maintenance Act, 1956, observed 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. The Court further
observed that Sections 18 and 19 of the said Act prescribe the
statutory liabilities in regard to maintenance of wife by her
husband, and only on his death, upon the father-in-law.
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Mother-in-law, thus, cannot be fastened with any legal liability
to maintain her daughter-in-law from her own property or
otherwise.
9. In the case of S.R. Batra and another v. Taruna Batra (Smt.),
(2007)3 SCC 169, the Supreme Court has expressed the
opinion that 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. In the facts of the said case, the Court
observed that the house in question belonged to the mother-in-
law of Smt. Taruna Batra and did not belong to her husband
Amit Batra, hence Smt. Taruna Batra cannot claim any right to
live in the said house. The Court was further of the view that
the house in question could not be said to be a ‘shared
household’ within the meaning of Section 2(s) of the Protection
of Women from Domestic Violence Act, 2005. It was contended
before the Supreme Court that a ‘shared household’ includes a
household where the person aggrieved lives or has at any stage
lived in a domestic relationship. The court did not agree with
the said submission and was of the opinion that the wife is only
entitled to claim a right to residence in a shared household,
and a shared household would only mean the house belonging
to or taken on rent by the husband, or the house which belongs
to the joint family of which the husband is a member.
10. From the principles enunciated in the above referred
decisions, it is apparent that any right which the wife has
during the subsistence of her marriage and during the lifetime
of her husband is against the husband and she has no right to
claim any relief against the father-in-law or sister-in-law or
any of the relatives of her husband inasmuch as the obligation
to maintain her lies only on her husband.”
On that premise it can be said that the obligation to maintain the wife and
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pay her a monthly maintenance would be on the husband and not on the
other family members as has been done in the present case.
22. For the reasons afore-stated, Criminal Revision No. 3084 of
2016 (filed by Vikas, Virender and Dinesh, brothers-in-law of Usha Rani) is
allowed and the impugned order dated 25.7.2016 passed by the Additional
Sessions Judge (Exclusive Court), Bhiwani, vide which they have been
directed to pay maintenance @ `3000/- per month collectively to Usha, is
set aside. Consequently, Criminal Revision No. 2985 of 2016 (filed by
Usha Rani) is dismissed. However, Usha Rani is at liberty to claim residence
in the house, which belongs to the joint family of which her husband is a
member or claim maintenance against her husband.
April 17, 2018 (JAISHREE THAKUR)
prem JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes
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