Uday Baliram Dhakate And Another vs Sau. Madhuri Sanjay Dhakate
2017 Latest Caselaw 5665 Bom

 wp.596.17                                       1        

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR


               CRIMINAL WRIT PETITION NO.596 OF 2017


 1.  Uday S/o Baliram Dhakate,
     Aged about 40 years,Occ-clerk,

 2.  Pramila Baliram Dhakate,
     Aged about 70 years,Occ-Household,

      Both R/o Kargil Chowk,
      Chandrapur Road, Gadchiroli,
      Tahsil and District-Gadchiroli.                                     PETITIONERS

       ...V E R S U S...

  
 Sau. Madhuri Sanjay Dhakate,
 Aged about 40 years,
 Occupation-Household, R/o Kargil Chowk,
 Chandrapur Road, Gadchiroli,
 Tahsil and District-Gadchiroli.                             RESPONDENT

 -------------------------------------------------------------------------------------------
 Shri R.S.Kurekar,Advocate for petitioners.
 Shri V.N.Morande, Advocate for respondent.
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :- AUGUST 4,2017

ORAL JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally

by consent of learned counsel for the parties.

2] The marriage took place between respondent and

Sanjay Baliram Dhakate, the son of present petitioner no.2 on

9/5/1999. After the marriage, respondent started her cohabitation

with her husband Sanjay at house No.19, Kargil Chowk,

Chandrapur Road, Gadchiroli. The present petitioners are also the

members of the family who reside in the said house.

3] The application was moved before the competent Court

by respondent under Section 12 of the Protection of Women from

Domestic Violence Act,2005. It was registered as Criminal Case

No.81/2012. In the said proceeding, application under Section 23

of the Protection of Women from Domestic Violence Act,2005 for

interim relief was also filed. The said application is at Exh.5. The

prayer was made that the present petitioner should not interfere

with the peaceful enjoyment and possession of the respondent on

the ground floor of the house in question. The application was

contested. The learned J.M.F.C.Gadchiroli on 4/9/2012 allowed

the application and thereby prohibited the present petitioners,

directing them not to dispossess or disturb the possession of the

respondent.

4] Felt aggrieved by the said order ,criminal appeal under

Section 29 of the Protection of Women from Domestic Violence

Act,2005 was carried before the learned Additional Sessions

Judge,Gadchiroli. The said was registered as Criminal Appeal

No.17/2015. The learned Additional Sessions Judge,Gadchiroli

dismissed the said appeal. Hence, present revisions is filed.

5] I heard Shri R.S.Kurekar, advocate for petitioner and

learned Advocate Shri V.N.Morande, advocate for respondent.

6] According to submission of learned counsel Shri

Kurekar in view of the law laid down by Hon'ble Apex Court in

S.R.Bara..vs..Smt.Taruna Bara, AIR2007 SC 1118(1) the

orders passed by the learned Court below are unsustainable. He

also submits that the property in question stands in the name of

the father in law of the respondent and after his death the name

of the present petitioner no.2 is mutated.

7] Per contra, learned counsel for respondent pointed out

from the evidence of father in law of the respondent who expired

during the pendency of the proceeding before the Court to the

effect that he has admitted that house in question is not his self

acquired property but is ancestral property.

8] The learned counsel for the petitioners fairly states that

except the name of father in law and now the mother in law,the

petitioner no.2 in a tax receipt there is no other document to show

that property is question was exclusively owned by and or

purchased by father in law. In view of the aforesaid fact, the law

as pronounced by learned Apex Court in S.R.Batra and another

(cited) supra cannot be made applicable since in the said case the

house in question was exclusively belonged to father in law of the

respondent Smt.Taruna Batra.

9] Merely because, the name is incorporated or appearing

in the tax receipt title is not created. These are the documents

only for fiscal purposes. It is also not in dispute that the

respondent shared the house, is her matrimonial house alongwith

the petitioners since it was a joint family property. The present

petitioners cannot claim rights exclusively. Therefore, this aspect

was rightly considered by the learned Court below while deciding

the appeal warranting no interference by this Court. Hence, the

writ petition is dismissed.

Rule is discharged with no order as to costs.

JUDGE

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