Delhi High Court
Renu Sharma vs Mc Sharma on 30 September, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 30th, 2016
+ CRL.REV.P. 134/2015
RENU SHARMA ..... Petitioner
Through: Mr.Roshan Santhalia, Advocate.
versus
MC SHARMA ..... Respondent
Through: Mr.Vikas Tomar and Mr.Saman
Yadav, Advs.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. The present revision petition has been filed under Sections
397 and 401 of the Code of Criminal Procedure (hereinafter shall
be referred as Cr.P.C.) for setting aside the order dated 02.02.2015
passed by the learned Additional Sessions Judge and for restoring
the order dated 10.10.2014 passed by the learned Metropolitan
Magistrate. Vide order dated 10.10.2014, the learned MM directed
the respondent-husband not to dispossess the petitioner-wife out of
the matrimonial house No.B-I/102, Milan Vihar Apartments,
Patparganj, Delhi under Section 19 of the Prevention of Women
from Domestic Violence Act, 2005 (PWDV Act). The learned
ASJ reversed the order of the learned MM vide order dated
02.02.2015 and directed the petitioner-wife to vacate the said
house and shift to house no.101, Trilok Apartment, Plot No.85, I.P.
Extension, Patparganj, Delhi.
2. The facts in brief are that a complaint under Section 12 of
the PWDV Act was filed by the petitioner-wife against her
husband/respondent and others. During the pendency of the said
complaint, an application under Section 19(1)(a) & (d) and
20(1)(d) read with Section 23(1) of the PWDV Act for restraining
the respondents from dispossessing the petitioner-wife from house
no.B-I/102, Milan Vihar Apartments, Patparganj, Delhi was
moved. The said application was allowed by the learned MM vide
order dated 10.10.2014 directing the respondents not to dispossess
the petitioner from the said house. The respondent-husband
challenged the said restrain order by filing an appeal. The
appellate Court vide order dated 02.02.2015 directed the petitioner-
wife to shift to house i.e. 101, Trilok Apartment, Plot No.85, I.P.
Extension, Patparganj, Delhi. The respondent-husband was
directed to make payment of Rs.50,000/- towards shifting of house
and also to pay a sum of Rs.5,000/- per month to the petitioner-
wife till the final disposal of the case. Feeling aggrieved by the
order passed by the appellate Court, the present revision petition
has been preferred by the petitioner-wife.
3. Arguments advanced by the learned counsel for the parties
were heard.
4. Argument advanced by the counsel for the petitioner is that
the house in Milan Apartment where she is residing is her
matrimonial house and she is residing there since 2006 along with
minor daughter. It will be difficult for her to shift her residence. It
was further argued that provision of alternative accommodation is
the last remedy, whereas in the present case the petitioner is
residing in her matrimonial house. The judgments relied upon by
the appellate Court are not applicable. The petitioner always
requested her husband to come and stay with her. The husband is
fit and fine and the updated documents regarding his suffering
from Hepatitis C or bladder cancer have not been placed on record.
The petitioner is suffering from problem in her knee and it will be
difficult for her to shift to a house which is on the 2nd or 3rd floor.
5. Per contra, argument advanced by the counsel for the
respondent-husband is that he is suffering from incurable Hepatitis
C and bladder cancer and he is facing great difficulty in the house
where he is residing which is situated on the 2nd and 3rd floor. The
alternative accommodation offered to the petitioner-wife is having
1100 sq. ft. which is a duplex house comprising 3 bed rooms,
drawing-dining, kitchen, 2 toilets, store room and balconies. The
distance between the two houses is also not too far from each
other. It was further argued that there is no fault in the order
passed by the appellate Court.
6. After going through the rival contentions, this Court has
observed that the respondent-husband is suffering from Hepatitis C
and bladder cancer. The fact regarding suffering of respondent-
husband from said ailments has not been denied by the petitioner-
wife. The only objection taken by her is that the updated
documents regarding illness of the respondent-husband were not
placed on record to show his present status. Such an objection is a
vague objection. When it is an admitted fact that the respondent-
husband is suffering from said ailments, a sympathetic view is to
be taken towards him.
7. It is apparent from the record that the alternative
accommodation proposed by the respondent-husband is not too far
from the house where the petitioner-wife is presently residing. It is
an admitted fact that the house in which the petitioner-wife is
presently residing is 1250 sq. ft. and the alternative
accommodation proposed is about 1100 sq. ft. Keeping in view
the medical condition of the respondent-husband, the appellate
Court directed the petitioner-wife to shift to the alternative
accommodation. But keeping in view the change of size of house,
the appellate Court has directed the respondent-husband to pay a
sum of Rs.5,000/- per month to the petitioner-wife to mitigate the
said hardship. This Court does not find any fault in the same.
8. The present revision petition has been filed assailing the
judgment passed by the Court below. After going through the
record and the submissions made by the parties, this Court is of the
considered opinion that there is no apparent illegality or infirmity
in the judgment/order passed by the Court below. This Court is
not sitting in appeal and is dealing with the revision petition. It is a
settled law that while exercising the revisional jurisdiction, the
Court cannot re-appreciate the evidence.
9. In view of the above mentioned facts and circumstances, this
Court does not find any irregularity, illegality or impropriety in the
judgment/order passed by the learned Additional Sessions Judge.
Consequently, the present revision petition is dismissed.
Application, if any, is also disposed of.
(P.S.TEJI)
JUDGE
SEPTEMBER 30, 2016
dd
