Bombay High Court
Vicky Manoj Shah vs Kanal Vicky Shah And Anr on 25 March, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:14701 910-WP-502-2025.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.502 OF 2025
Vicky Manoj Shah ...Petitioner
Versus
Kanal Vicky Shah & Anr. ...Respondents
Ms. Sana Raees Khan a/w. Ms. Neha Balani i/b. SRK Legal, for the
Petitioner.
Ms. Pooja Jalan a/w. Ms. Maya Donwalkar, for the Respondent
No.1.
Ms. Shilpa G. Talhar, APP, for the Respondent No.2-State.
CORAM: MADHAV J. JAMDAR, J.
DATED : 25th MARCH 2025
JUDGMENT:
1. Heard Ms. Sana Khan, learned Counsel appearing for the
Petitioner-Husband, Ms. Pooja Jalan, learned Counsel appearing
for the Respondent No.1-Wife and Ms. Shilpa Talhar, learned APP
appearing for the Respondent No.2-State.
2. By the present Writ Petition filed under Article 227 of the
Constitution of India, the challenge is to the order dated 24 th
October 2024 passed by the learned Principal Judge, Family Court,
Mumbai below Exhibit-7 in Petition No. Criminal M.A.-23 of 2024.
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By the impugned order, the present Petitioner-Husband and his
family members are restrained from causing any act amounting to
domestic violence towards the Respondent-Wife and minor
daughter and the present Petitioner-Husband has been directed to
shift to alternate accommodation till disposal of the main
application. The said order is passed under the provisions of
Section 18 and Section 19(1)(b) of the Protection of Women from
Domestic Violence Act, 2005 ("the D.V. Act").
3. It is the main contention of Ms. Sana Khan, learned Counsel
appearing for the Petitioner-Husband that the marriage between
the parties was solemnized on 25 th January 2003. The flat in
question has been purchased by registered Sale Deed dated 29 th
April 2003 and since then the Petitioner-Husband is staying along
with the Respondent-Wife in the said flat. It is her further
contention that in fact, there is no domestic violence and the
Petitioner-Husband is subjected to abuse at the instance of the
Respondent-Wife. To substantiate the said contention, she
submitted that she has evidence in the nature of videos and
transcripts. She therefore, submitted that it is share household
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even of the Petitioner-Husband and therefore, the impugned order
be quashed and set aside.
4. On the other hand, it is the submission of Ms. Pooja Jalan,
learned Counsel appearing for the Respondent-Wife that definition
of "shared household" as contemplated under Section 2(s) means a
household where the person aggrieved lives. She also pointed out
the definition of "aggrieved person" as defined under Section 2(a)
of the D.V. Act and submitted that the Petitioner cannot be the
aggrieved person and therefore, he cannot be covered by the
definition of "shared household" as contemplated under Section
2(s)of the D.V. Act. She further submitted that in fact, there is no
material on record to show that the Respondent-Wife has been
subjected to domestic violence and therefore, the impugned order
has been passed correctly. She submitted that the said flat has been
purchased by the Respondent No.1 and her mother and therefore,
the Petitioner has no right, title and interest with respect to the
said flat.
5. Perusal of the record shows that the learned Principal Judge,
Family Court, Mumbai has considered the material on record
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regarding physical and verbal abuse caused by the Petitioner-
Husband. Learned Judge, Family Court recorded prima facie
finding that the Respondent-Wife has been subjected to domestic
violence.
6. As far as the contention that it is shared household of the
Petitioner and therefore, the Petitioner cannot be directed to shift
to alternate accommodation, it is necessary to note the relevant
provisions of the D.V. Act.
i. Section 2(a) of the D.V. Act defines "aggrieved person" as
follows:
"2. Definitions.--
(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;"
(Emphasis added)
Thus, it is clear that the "aggrieved person" means any
woman who is, or has been, in a domestic relationship with the
Respondent.
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ii. Domestic relationship is defined under Section 2(f) as
follows:
"2. Definitions.--
(f) "domestic relationship" means a relationship
between two person; who live or have, at any point
of time, lived together in a shared household, in the
nature of marriage, adoption or are family members
living together as a joint family;"
(Emphasis added)
iii. The "shared household" is defined under Section 2(s) as
follows:
"2. Definitions.--
(s) "shared household" means a household where
the person aggrieved lives or at any stage has lived
in a domestic relationship either singly or alongwith
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."
(Emphasis added)
Thus a combined reading of all these definitions clearly
show that "aggrieved person" means any woman. Thus, by no
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stretch of imagination the Petitioner who is husband can fall under
the definition of "aggrieved person" under the provisions of the
D.V. Act.
7. Thus, it is clear that the "aggrieved person" as contemplated
under the D.V. Act is a woman who is in domestic relationship with
the Respondent and subjected to domestic violence by the
Respondent. The definition of "shared household" is required to be
understood in the context of the definition of the "aggrieved
person".
8. It is also relevant to note that a person who can apply to the
Magistrate seeking one or more reliefs under the D.V. Act is
"aggrieved person" as specified in Section 12 of the D.V. Act, the
relevant part of which 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 any
application to the Magistrate seeking one or more
reliefs under this Act....."
(Emphasis added)
Thus, it is clear that an aggrieved person or a Protection
Officer or any other person on behalf of the aggrieved person can
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apply to the Magistrate under the provisions of the D.V. Act. Thus,
it is very clear that only woman can be the aggrieved person as
more particularly contemplated under Section 2(a) of the D.V. Act
and such woman or on her behalf only application can be filed
before the Magistrate under Section 12 of the D.V. Act.
9. Ms. Sana Khan, learned Counsel has relied on the decision of
a learned Single Judge in the case of Ishpal Singh Kahai vs. Mrs.
Ramanjeet Kahai1 and more particularly, on paragraph No.13 of
the same. It is her contention that right has been given to both the
spouses to enter into and occupy the matrimonial home and in
certain cases to have the other spouses right to live there
terminated despite the fact that she/he did own, fully or partly, the
matrimonial home. It is her submission that therefore, right is
available irrespective of the title of the house. She submitted that
admittedly, the Petitioner is staying with the Respondent in the
said matrimonial house since last 23 years and therefore, the
impugned order is perverse.
1 2011 (3) Mh.L.J. 849
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10. In the said case of Ishpal Singh (supra), the
Petitioner/husband has challenged the order of the learned Judge,
Family Court, Mumbai, directing him to remove himself from the
residential flat in which he resides and from creating nuisance by
attempting to enter in the suit flat until the hearing and final
disposal of the Petition. While dismissing the said Writ Petition, the
said observations are made by the learned Single Judge in the
context of the submission made on behalf of the husband that the
wife is not the full and complete owner of the flat in which he also
resides and hence could not be granted the relief of injunction
against him. The entire case of the husband is based upon
ownership rights. In view of the above background of the factual
position in Ishpal Singh (supra), it is very important to note the
observations in paragraph No.29 of the said decision, which reads
as under:
"29. It can, therefore, be seen that there is no place
for proprietary rights under the D.V. Act. The Act is
an extension of the deeper and profounder principle
of Women's Rights as a part of Human Rights. The
matrimonial home or the shared household of a
person does not require it to be owned or co-owned
by the person who has been violated. It could be
any household "whether owned or tenanted, either
jointly or by either of them" as specifically set out in
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section 2(s) above. It is the household in which the
victim and the violator may be having rights, singly
or jointly. Consequently, they may or may not have
title to the property and hence the victim can apply
for a residence order to the Court in respect of a
shared household, which includes their matrimonial
home, whether or not she has any right, title or
beneficial interest therein. The very consideration of
ownership rights would put materialism before
matrimony."
(Emphasis added)
Thus, it is clear that what is held in Ishpal Singh (supra) is
that right is given to the victim of domestic violence in domestic
relationship protecting her right of residence irrespective the law
relating to ownership of immovable property. The said right is
given to the victim of domestic violence in domestic relationship.
11. The "domestic violence" is defined under Section 3 of the
D.V. Act is as follows:
"3. Definition of domestic violence.--For the
purposes of this Act, any act, omission or
commission or conduct of the respondent shall
constitute domestic violence in case it--
(a) harms or injures or endangers the health, safety,
life, limb or well-being, whether mental or physical,
of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse,
verbal and emotional abuse and economic abuse; or
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(b) harasses, harms, injures or endangers the
aggrieved person with a view to coerce her or any
other person related to her to meet any unlawful
demand for any dowry or other property or valuable
security; or
(c) has the effect of threatening the aggrieved
person or any person related to her by any conduct
mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether
physical or mental, to the aggrieved person.
Explanation I.--For the purposes of this section,--
(i) "physical abuse" means any act or conduct which
is of such a nature as to cause bodily pain, harm, or
danger to life, limb, or health or impair the health
or development of the aggrieved person and
includes assault, criminal intimidation and criminal
force;
(ii) "sexual abuse" includes any conduct of a sexual
nature that abuses, humiliates, degrades or
otherwise violates the dignity of woman;
(iii) "verbal and emotional abuse" includes--
(a) insults, ridicule, humiliation, name calling and
insults or ridicule specially with regard to not
having a child or a male child; and
(b) repeated threats to cause physical pain to any
person in whom the aggrieved person is interested;
(iv) "economic abuse" includes--
(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
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order of a court or otherwise or which the aggrieved
person requires out of necessity including, but not
limited to, house hold 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 house hold
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 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."
(Emphasis added)
12. Thus, it is clear that the situation contemplated under the
D.V. Act is that aggrieved person has been subjected to domestic
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violence. As already noted herein above, "aggrieved person" means
any woman who is in domestic relationship with the Respondent
and who is subjected to any act of domestic violence. Thus, by no
stretch of imagination, the protection granted under the D.V. Act is
applicable to the Petitioner-Husband.
13. As far as the jurisdictional fact under the provisions of the
D.V. Act that the aggrieved person is subjected to domestic
violence, the learned Principal Judge, Family Court, Mumbai has
recorded prima facie satisfaction concerning the same. Nothing is
pointed out to hold that the said finding is perverse finding.
14. The factual position on record clearly shows that the flat in
question has been purchased by registered Sale Deed dated 29th
April 2003 by the Respondent-Wife and her mother. Thus, the
Respondent-Wife and her mother are the owners of the flat in
question.
15. Ms. Pooja Jalan, learned Counsel appearing for the
Respondent-Wife relies on the affidavit of assets and liabilities of
Petitioner-Husband filed before the learned Trial Court. In the said
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affidavit of assets and liabilities, it is specifically mentioned that
the Petitioner is Diamond Broker and his approximate monthly
income is Rs.7,00,000/-. It is the submission of Ms. Sana Khan,
learned Counsel appearing for the Petitioner-Husband that the said
Rs.7,00,000/- is not monthly income but the same is annual
income of the Petitioner-Husband. However, it is an admitted
position that the Petitioner-Husband is in the business of Diamond
Broker. In any case, there is no perversity or illegality in the
impugned order.
16. Accordingly, the Writ Petition is dismissed, however, with no
order as to costs.
17. At this stage, Ms. Sana Khan, learned Counsel appearing for
the Petitioner-Husband seeks stay of the impugned order. However,
as the subject flat is of the ownership of the Respondent-Wife and
as the learned Principal Judge, Family Court, Mumbai has recorded
a finding that the Respondent-Wife has been subjected to domestic
violence, no case is made out for granting any stay. Therefore, the
said request is rejected.
[MADHAV J. JAMDAR, J.]
Digitally
signed by
SONALI
SONALI MILIND
MILIND PATIL
Date:
PATIL 2025.03.29
18:00:54
+0530
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