Sanjay Bachubhai Sharma vs Pranalinaben W/O Sanjaybhai ...
2022 Latest Caselaw 4694 Guj

     C/SCA/3388/2020                                 CAV JUDGMENT DATED: 05/05/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 3388 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the fair copy of the judgment ? NO

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution NO of India or any order made thereunder ?

========================================================== SANJAY BACHUBHAI SHARMA Versus PRANALINABEN W/O SANJAYBHAI SHARMA ========================================================== Appearance:

MR JAGDHISH SATAPARA(5524) for the Petitioner(s) No. 1 NAMAN H KINKHABWALA(8831) for the Petitioner(s) No. 1 MR.HITENDRA D RAJPUT(7224) for the Respondent(s) No. 1 MR.PRADYUMAN GOHIL(7237) for the Respondent(s) No. 1 RAJPUROHIT R BHAWARLAL(9420) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

Date : 05/05/2022

CAV JUDGMENT

1. By way of present petition, petitioner has prayed for following

reliefs:

                "[I]      Your Lordships may be pleased quash and set




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aside the judgment and order passed by the learned Family Court NO.3, Ahmedabad in interim order passed under Exh.15 dated 07/12/2019 by the learned Family Court no.3, Ahmedabad in Family suit NO.894/2019.

[II] Your Lordships stay the judgment and order passed by the learned interim order passed under Exh.15 dated 07/12/2019 by the Learned Family Court no.3, Ahmedabad in Family suit NO.894/2019.

[III] Any other and/or further relief/s that this Hon'ble Court may deem fit looking to the facts and circumstances of the case may be awarded to the Applicants."

2. Brief facts of the present case may be summarized as under:

2.1 Petitioner is an advocate at the Metro Court and since 2005, he

is residing in Canada and doing job. He is having Canadian

citizenship since last 6 years as well as he is also OCI (overseas

citizenship India) in India. Mother and father of the petitioner are the

permanent resident of U.S.A. That, petitioner having some

residential properties in Maninagar and Narol area. That he has

obtained divorce through court from his earlier wife and as he was in

need of a partner, he had given an advertisement for marriage in

newspaper, along with his mobile number and after this

advertisement, respondent by caste Christian, contacted him and

they talked on the telephone and shared the history to each other and

at that time, petitioner told her that he is divorcee, to which,

respondent informed that she is aged about 45 years and spinster

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(unmarried). She was in search of NRI bridegroom and they both

decided to marry. Thereafter, the petitioner showed his desire to

meet her mother, and therefore, respondent called him to 17, Sharon,

Christpok Society, CTM, Ahmedabad and at that time met her

mother and brother Pradeep. Petitioner asked her mother "why

respondent is still unmarried" to which they told that we don't have

any proper boys in our society and we are in search of NRI

bridegroom, and therefore, she is unmarried".

2.2 Thereafter, the petitioner had performed registered marriage

with said respondent on 05.07.2018, and thereafter, when the

petitioner was to leave to Canada on 06.08.2018, two days earlier i.e.

on 02.08.2018, he received a cover through post, in which, he got a

divorce deed of respondent, due to which, the petitioner got shocked,

and thereafter, he went to the residence of respondent and asked

about the earlier marriage and divorce but they didn't reply properly.

That ticket of the petitioner was already booked prior to this

incident, and therefore, petitioner went to Canada on 06.08.2018.

During this period, petitioner tried to get real truth behind the curtain

but when he inquired about his matter with respondent, she told that

it is false allegation and told the petitioner to trust her. As the

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petitioner had made search and during his search, it was found that

respondent has already got married with two persons and got divorce

on stamp paper. It also came into knowledge of the petitioner that

after the marriage, she obtained big amount on the ground of

divorce, and hence, petitioner understood that he was cheated, and

therefore, petitioner clearly informed to respondent that he cannot

call her to Canada because she did not have valid divorce decree of

court and he can not give false information to Immigration

Department because Immigration Department needed compulsory

court divorce decree and she did not had it.

2.3 As the petitioner got the job in Canada, he went to Canada on

06.08.2018, after handing over the possession of house to his parents

Bachubhai Manilal Sharma & Kusumben, and his father was paying

the maintenance, tax bill & light bill of the said residence property

(105, Shalin Height-2, Flat), which is situated at Narol. That after the

returning from the Canada, petitioner immediately sent a notice on

15.11.2018 through his advocate to respondent and informed her that

he will take legal action against her and also warned the respondent

not to use the surname & photograph of the petitioner.

2.4 That after receiving of such notice, respondent wife came in

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action with an unknown person aged about 35 years old, break the

lock of the house of the petitioner and took the possession forcefully

of residence property and shop which was in same building. On the

day of the incident, petitioner was at Canada and the parents of the

petitioner were at the house of his relatives at Gandhinagar, and

therefore, respondent wife committed criminal trespass on

12.11.2018 and went to reside in the said house and in this house. In

this documents and house hold articles and golden ornaments worth

Rs.4 to 5 Lakhs and cash amount of Rs. 17,000/-, share certificate

and valuable articles were misappropriated by respondent.

2.5 Thereafter respondent wife immediately filed a Family Suit

No.2446 of 2018 before the learned Family Court on 19.11.2018

with injunction application which was rejected on 21.02.2019 with

detailed order. That in the said Family Suit No.2446 of 2018,

respondent prayed not to dispossess her from similar property. On

the same ground and with same contentions she also filed an

application under the provisions of Domestic Violence Act as

interim application in the civil suit No.894 of 2019 before Family

Court. Respondent wife did not proceeded in the said civil suit after

the rejection of injunction application and not produced any further

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evidence even though the court has issued notice. That, thereafter

petitioner has filed his detailed reply and even though the respondent

wife had not remained present, the said civil suit was dismissed on

07.12.2019.

2.6 Though said respondent wife does not have any right, title,

interest over the shop, she has prepared a false and fraudulent rent

agreement dated 24.12.2018 and has registered the same at Narol

P.S. vide registration No.2607/2018, in which names of all the

accused are given and she has also kept her things inside the shop

and by making the forged rent agreement has get a wrongful gain of

Rs. 26000/- and deposit of Rs.12,000/- per month as rent, and

therefore, petitioner filed written complaint to the police. When the

petitioner told that he is real owner, the tenant called the respondent.

She gave filthy abuses and her accomplice threatened the petitioner

to kill him if he does not go from there and also assaulted the

petitioner with wooden stick on his hand. The said severe attack

done by the respondent and her accomplice was recorded in mobile

phone. The petitioner, therefore, gave written complaint to the police

against the respondent to register offence punishable under Sections

461, 462, 467, 468, 471, 506 (2), 120 (B), 420, 447, 448, 452, 457

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and 380 against all these persons on 14.06.2019

2.7 That even though the police has not taken any action after the

written complaint, father of the petitioner has filed complaint before

the Metropolitan Magistrate Court No.19 as criminal application

No.6714 of 2018 on 22.11.2018. That after Court has issued inquiry

under Section 202 of Cr.P.C. and call for the report from the police,

police submitted the report before the court concern, wherein it is

clearly come out that to obtain the property of the petitioner she has

married with the petitioner and also come out that she has filed a

bogus complaint under Section 498 (A) of I.P.C. against petitioner

and his family members. Even she has suppressed that she had taken

divorce earlier during the time of marriage, which also came out

during the investigation. Therefore, the court issued the processes

against the respondent wife.

2.8 That in between the wife also filed criminal complaint on

28.11.2018 before Narol Police Station as I-C.R. No.290 of 2018

under Sections 498(A), 323, 506 (2) and 114 of the IPC. That in the

said complaint, she has never stated that she is residing at the

premises of Narol. That petitioner has also filed Family Suit No.894

of 2019 before the learned Family Court, Ahmedabad for

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cancellation of marriage registration under Section 25(3) of the

Special Marriage Act on 19.04.2019. That in the suit, petitioner has

also filed injunction application but the court has not proceeded in

such application. That on the one hand, the learned Family court has

not proceeded further in the Family Suit No. 894 of 2019 and in the

same Family Suit No. 894 of 2019, respondent wife filed an

application under Sections 12, 19 read with 26 of the Protection of

Women from Domestic Violence Act, 2005 on 22.05.2019 at

Exh.15. That court proceeded the said application at Exh. 15 and

passed an order on 07.12.2019. That learned Family Court has

ordered not to dispossess the respondent wife from the suit property

and hence petitioner has challenged the same before this court.

3. Heard learned advocate for the petitioner and learned advocate

for the respondent at length.

4. It is submitted by learned advocate for the petitioner that

respondent has preferred an application under Section 19 read with

Section 26 of the Protection of Women from Domestic Violence

Act, 2005 (hereinafter referred to as "the Act") in the suit preferred

by the petitioner for annulment of marriage i.e. Family Suit No.894

of 2019. That application preferred by the respondent under section

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19 read with Section 26 of the Act is not maintainable and the same

is barred by principles of res-judicata. The respondent had already

preferred a suit before the learned Family Court being Family Suit

No.2446 of 2018 along with Exh.5 application. The Exh.5

application of the respondent came to be rejected vide order dated

21.02.2019 and strict observations were made by the learned Family

Court against the respondent.

4.1 That the respondent may be entitled to prefer an application

under Section 19 read with Section 26 of the Act before the

Competent Court but not at the cost of principle of res-judicata. Bear

perusal of Section 26 (2) of the Act would make it clear that the

relief sought under Section 26 should be in addition to the relief

sought in other proceedings but it cannot be of the same nature. Had

it been the case that the respondent had not preferred Family Suit

No.2446 of 2018, then her application under Section 19 read with

Section 26 of the Act in petitioner's Family Suit No.894 of 2019

could have been entertained, but in the present case the very same

court has rejected the Exh.5 application of the respondent in Family

Suit No.2446 of 2018 and the suit itself is dismissed. In spite of

which the respondent has preferred application under Section 19

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read with Section 26 seeking same relief but under different

nomenclature. That if such applications are permitted under the

shadow of Section 26 of the Act, then the same will create

multiplicity of proceedings in civil and criminal courts. Therefore,

the same cannot be entertained and the impugned order deserves to

be quashed and set aside.

4.2 It is further argued that without prejudice to the aforesaid

contentions. The impugned order deserves to be quashed and set

aside as the ingredients of Section 19 of the Act itself is not

attracted. Two basic criteria for invoking section 19 of the Act are

(a) There should be prima facie occurrence of Domestic Violence

Act and (b) The subject matter property should be shared-household.

4.3 It is submitted that so far as the Domestic Violence is

concerned, nowhere in the entire Application preferred by the

Respondent, the respondent has stated that domestic violence has

been committed by the petitioner or his family members. That even

the learned court below has failed to observe in the order that prima

facie domestic violence has not taken place against the respondent

by the petitioner.

b) So far as ingredient of shared-household is concerned the same is

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not at all attracted in the facts of the present case. The definition of

shared-household is provided under Section 2(s) of the Act. The

interpretion of the said definition has been done by the Hon'ble

Supreme Court in Para 63 of the land mark judgment in Civil Appeal

No.2483 of 2020 i.e. Satish Chander Ahuja Vs. Sneha Ahuja as

well as para 14, 16 and 19 passed by Hon'ble Delhi High Court in

Cri.MC1327/2021 and Cri.MA 7314/ 2021 i.e. Vibhuti Wadhwa

Sharma Vs. Krishna Sharma and Anr. In the aforesaid judgments

Hon'ble Courts have observed that living of women in household

has to refer to living which has some 'permanency'. 'Mere fleeting

or casual living' would not amount to shared-household.

4.4 Thus, it is crystal clear that the respondent has not resided in

the subject matter property from 05.07.2018 to 12.11.2018 and on

12.11.2018 the respondent has tried to take illegal possession of the

subject matter property. That even considering the reply filed by the

respondent, the respondent herself has accepted that she had gone at

her parental home in the month of October-2018. Thus there is no

permanency in the residence of the respondent. Therefore, the

subject matter property would not fall under the purview of shared-

household, and therefore, Section 19 could not have been invoked by

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the respondent.

4.5 That prima facie respondent is not entitled for relief under the

Act as the very relation of the petitioner and respondent is under

challenge before the learned Family Court in Family Suit No.894 of

2019. The marriage between petitioner and respondent is null and

void as the respondent has committed fraud in marrying the

petitioner. The respondent has not disclosed material fact that the

respondent herself was married with two other persons before

marrying the petitioner. That even the respondent has stated that she

is unmarried in the affidavit of marriage as well as notice of

marriage. That even considering principle of law as laid down by the

Hon'ble Supreme Court in exactly similar case precisely in Para 13.1

and 13.2 of judgment reported in AIR 2019 SC 1500 in

Swapnanjali Sandeep Patil Vs. Sandeep Ananda Patil, the marriage

itself between the petitioner and respondent is null and void and in

such circumstances prima facie no orders could have been passed by

the learned Family Court under the Act when the alleged domestic

relationship itself is under challenge.

4.6 That even otherwise the order passed by the learned Family

Court is an unseasoned order. That no reasoning for prima facie case

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of the respondent has been observed by the learned Family Court.

That the observations made by the learned Family Court in

consonance with Section 19 of the Act. Further observation has been

by learned Family court in consonance with the definition of

'shared-household'. Thus the impugned order is an unseasoned order

and the same deserves to be quashed and set aside.

5. Per contra, learned advocate appearing for the respondent has

vehemently submitted that the petition filed by the present petitioner

for declaring the marriage as null and void before learned Family

Court vide Family Suit No. 894 of 2019 is pending and meanwhile,

Exh. 15 came to be allowed as interim application, whereby the

petitioner is restrained to dispose of the respondent from said

property.

5.1 That till the time Family Suit No.894 of 2019 filed by the

petitioner for null and void of her marriage before learned Family

Court is not concluded and respondent herein is in status of wife, the

question of null and void of marriage only can be decided after

appreciating the evidence by learned Family Court, Ahmedabad,

hence at this junction the respondent has only shelter i.e. shared

household.

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5.2 That the petitioner has been trying to throw the respondent out

of the home since beginning. That he had filed the proceeding for

null and void Family Suit No.894 of 2019 in April, 2019. That she is

residing permanently after her marriage there at the shared house till

date, except she had gone temporally to her parents' home in

between. That petitioner herein failed to establish prima facie that

the respondent had not

stayed in said shredded house. That there are averments and

documents filed by the petitioner itself are sufficient to prove at this

juncture that the present respondent was staying in the said home as

well as there are certain other document filed by the respondent

supports her contention and case that the said house is shared house

hold as per the provisions of 2(s) of the Domestic Violence Act,

2005.

5.3 That the suit notice of said family suit was served upon the

respondent at the shared house hold which clearly proves that at time

of filing of the application under Section 19 of the Domestic

Violence Act as well as right from beginning the respondent was

residing in said property, which the learned Family Court had

observed about service of summons at the suit property in its order at

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Exh. 15. Therefore, it is crystal clear that at time of filing of the

application the respondent here was in shared house hold.

5.4 That so far as the contention of staying prior and immediate

after marriage staying at said shared house hold is concerned, same

is also very clear from the averment and the documents filed by the

present petitioner, which is at Page No.114 of the proceeding. That

the father of the present petitioner had given the statement/complaint

before the police, wherein he said that when some inquiry was made,

and thereafter, she has left the home, it means prima facie prior to

that also she was staying in the said property. As far two averments

are concerned very crystal clear that at the time filing of the

application, and prior, as well as after that also, she was staying in

the said property.

5.5 It is further submitted that petitioner's every averments are

contradictory at different stages before Family Court as well as

before this Court. That the story has been cooked up that she had

broken the lock, which is just built for the purpose of depriving from

right to have shelter in shared house hold. That interestingly the

parents of the petitioner was not living in said shared hold but when

it came to be litigation to deprive the respondent from shelter they

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have said that they were staying in shared house, where it is nothing

but false statement.

5.6 That at Page 205 of the present proceedings, there is report of

the records wherein the attempt was made to serve the summons on

the petitioner at his other resident at Maninagar, wherein his father

had clearly said that they are nothing to do with their son as well as

further also it is crystal clear that they were not residing at the shared

house hold and question does not arise that they have gone to the

Gandhinagar and the respondent had broken the lock. That prima

facie looking to the documents and said property and averments all

are contradictory. The intention of the parents also very clear that

they have just joined hands to support their son and defeat the right

to reside in shared house of the respondent.

5.7 It is further submitted that respondent had paid the society

charges from her account which is attached at the Page No.200. That

as far as the provisions of 2(s) is concerned, it is very crystal clear

that even if stayed in shared house hold in past at any point of time

with husband then in that case also same is considered as shared

house hold, where as in present case the petitioner had taken the

respondent to the said home after marriage and then he had left for

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U.S.A.

5.8 It is further submitted that Delhi High Court in CRI. M.C.

1327 of 2021 and SRI MA 7314/2021 i.e. Vibhuti Wadhwa Sharma

Vs. Krishna Sharma and Anr. judgment is not applicable in the

present case as the litigation was between in-law and daughter-in-

law as well as there was other shared house, hence it is very different

to the facts of present case on hand. Here this is only shared house as

well as property is owned by the husband not the in-laws.

5.9 It is further submitted that in the Civil Appeal No. 2483 of

2020 i.e. Satish Chandra Ahuja Versus Sneha Ahuja , the entire

judgment it is very clearly discussed about shared house hold and

Section 19 of the Domestic Violence Act, wherein Para 63 favours

the respondent, since she has been till date staying in the said

property which is her only shared house. That she is pite that

Hon'ble Supreme Court had remanded matter back without

disturbing the order under Section 19 of the Domestic Violence Act,

2005, that to be decided by civil proceeding not in Domestic

Violence proceeding.

5.10 It is further submitted that attempt was made to the extent that

application was made to disconnect the electricity and finally the

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respondent had replied to the torrent power once after the said

attempt was made and hence she has got the electricity. That in civil

suit, interim application for was not granted on certain technical

points as well as the Domestic Violence Act protects the woman

from wider scope, without having right, title and interest in the said

property. Moreover the same learned Family Court has protected the

respondent by way of order below Exh.5, since test of the remedy is

different in civil as well as Domestic Violence Act. The right to

shelter is basic intention behind the litigation and Section 19 of the

Domestic Violence Act, if she may not be protected her life may be

ruined and she may shelter less. Therefore at this stage the order

below Exh.15 is proper, valid and as per the provision of law, which

should be upheld in the great interest of justice. Ultimately it was

requested by learned advocate appearing for the respondent-wife to

dismiss this petition and confirm the order passed below Exh.15 in

the interest of justice.

6. Having heard learned advocates appearing for the respective

parties and perused the material placed on record by the either side,

it appears that before marrying the respondent with the present peti-

tioner, she was married with one Amitbhai Johnbhai Makwan on

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03.03.2020, and thereafter, divorce deed was executed by the re-

spondent and said Amitbhai Johnbhai Makwan on 09.10.2000. Copy

of the divorce deed is produced on record. There is nothing on

record that divorce decree was obtained by the respondent and said

Amitbhai Johnbhai Makwan from the competent court of law. It

further appears from the record that the said Amitbhai Johnbhai

Makwan executed an affidavit on 04.11.2000 declaring that divorce

deed preferred on 09.10.2000 stands cancelled. Again on

31.07.2002, respondent and said Amitbhai Johnbhai Makwan pre-

ferred another divorce deed but even then no divorce decree was ob-

tained by them from the Civil Court. Thereafter, it appears from the

record that respondent again got married to one Keshwala Hardas

Viram on 05.02.2007. However, she had not obtained legal divorce

from her former husband i.e. Amitbhai Johnbhai Makwan.

7. It appears from the memorandum of marriage, the respondent

herein portrayed herself to be unmarried. Copy of the memorandum

of marriage dated 05.02.2007 between Keshwala Hardas Viram and

respondent is produced on record. Again on 18.09.2009, divorce

deed was executed with Keshwala Hardas Viram and the present re-

spondent but no divorce decree was obtained from the competent

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court of law. The said divorce deed dated 18.09.2009 is produced on

record by the petitioner. However, respondent was already married

twice and had not taken divorce from the aforesaid two persons in

spite of the said facts, with an intent to cheat the petitioner, she con-

veyed that she was unmarried and had taken the petitioner under

confidence and induced him to marry with her. It appears that peti-

tioner was kept under dark, and therefore, he agreed to marry with

the respondent. As respondent belongs to Christian community and

petitioner belongs to Hinduism, both had agreed to marry in accor-

dance with Special Marriage Act, 1954.

8. From the affidavit dated 28.05.2018 executed by the petitioner

and respondent, she has depicted herself as "unmarried" whereas she

was already married to two other persons. Affidavit dated

28.05.2018 is produced on record. It further appears that, notice of

intended marriage between the petitioner and respondent dated

30.05.2018 was issued wherein also, respondent has shown herself

as unmarried in spite of the fact that an option of divorce was avail-

able, she opted for unmarried column. From this notice and affidavit,

intention of the respondent from the beginning appears to be clear to

cheat the present petitioner and take away the possession of the sub-

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ject matter of the property. Copy of the notice intended marriage

dated 30.05.2018 is produced on record. As per the submission of

the petitioner, aforesaid facts were never disclosed by the respondent

to the petitioner. It appears that an application was preferred by the

respondent under the protection of women from Domestic Violence

Act, 2005 under Section 26 of the Act and sought protection under

Sections 12 and 19 of the Act. For the perusal of this Court, Section

26 of the said Act provides as under:

"(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such pro- ceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief."

9. Bare perusing Section 26 of the said Act, it appears that how-

ever remedy was available with the respondent to prefer an applica-

tion under Section 26 of the Act for remedies available under Sec-

tions 18, 19, 20, 21 and 22 of the Act as Section 26 is in a nature of

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giving final relief and not interim protection. It further appears that

intention of the legislation is to grant final relief to the respondent

and not interim protection in pending suits. It is not in dispute that

Family Suit No.894 of 2019 was preferred by the present petitioner

for annulment of marriage wherein respondent has preferred an ap-

plication Exh.15 under Section 26 of the Act for protection available

under Sections 12 and 19 of the Act. If we refer the application

Exh.15 dated 22.05.2019 preferred by the respondent under Section

26 read with Sections 12 and 19 of the Act, it transpires that no alle-

gations of domestic violence were charged against the petitioner or

his family members. In absence of any specific allegations of domes-

tic violence by the petitioner or his family members remedies avail-

able under the Domestic Violence Act would be doubtful.

10. It further appears that marriage of the petitioner with the re-

spondent was registered on 05.07.2018, thereafter, respondent was

residing at her parental home and was not residing with the peti-

tioner as he was intended to bring the respondent after ceremony was

organized and he had left for Canada on 06.08.2018. It further ap-

pears that after leaving for Canada by the petitioner, subject matter

property was vacant and respondent was not residing in the said

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property. Electricity bill for the month of October-2018 is produced

on record by the petitioner, which shows that the units consumed for

the months of August and September is 0 (Nil) and therefore, from

the aforesaid facts, it can be said that no one was residing in the sub-

ject matter property i.e. 105/F Shalin Heights, Narol, Ahmedabad

and subject matter property cannot be treated as shared household.

11. Prima facie there is reason to believe that petitioner and re-

spondent were never residing permanently with each other in the

said house and therefore, she cannot claim her right under Section 19

of the Act in the aforesaid property. Copy of the electricity bill is

produced at Page No.37 of the main petition. Further, it also appears

that respondent has not resided with the parents of the petitioner in

the subject matter property. Further, it appears that father of the peti-

tioner had preferred Criminal Misc. Application No.6714 of 2018

(Criminal Case No.85303 of 2019) and prayed for registering the of-

fence under Sections 406, 452, 323, 506(2) and 114 of the I.P.C.

against the respondent. If we peruse the police report prepared by the

police authorities, it is clearly stated in respect of the subject matter

property that respondent has illegally broken up the door of the sub-

ject matter property on 12.11.2018 and also illegally entered in the

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subject matter property. Copy of the complaint lodged by the father

of the petitioner is also produced on record as well as police report at

page No.114 of the main petition. Further, it appears that respondent

has abused the process of law by executing a rent agreement with the

third party for the subject matter property knowing that she is not the

owner of the subject matter property. Further, it appears that learned

Chief Metropolitan Magistrate, Ahmedabad on 21.09.2019 in Crimi-

nal Misc. Application No. 6714 of 2018 was pleased to issue sum-

mons to the respondent under Sections 452, 406, 420 and 114 of the

I.P.C and the said complaint was converted into Criminal Case

No.85303 of 2019. Copy of the criminal case is produced by the

present petitioner at page No.116 of the main petition.

12. Further, it appears from the record that members of the Uma

Co-operative Housing Society situated nearby to the subject matter

property i.e. Shalin Heights, Narol, Ahmedabad have made a com-

plaint about nuisance created by the respondent by notice dated

15.09.2020. Petitioner had also preferred complaint against the re-

spondent as she had preferred a forged rent agreement of the shop,

which is in the same flat of subject matter property in favour of the

third party, and therefore, petitioner had preferred Criminal Misc.

C/SCA/3388/2020 CAV JUDGMENT DATED: 05/05/2022

Application No.3052 of 2020 against the respondent wherein,

learned Additional Chief Metropolitan Magistrate was pleased to

pass an order below Exh.1 on 01.02.2021 to issue process to the re-

spondent for the offence punishable under Sections 465, 467 and 468

of the I.P.C., 1860, and thereafter, it was directed to convert into

criminal case. Further, it appears that respondent had preferred a

frivolous complaint against the present petitioner under Sections 500

and 114 of the I.P.C., 1860 before the learned Chief Metropolitan

Magistrate, Ahmedabad being Criminal Misc. Application No.3188

of 2020 wherein learned Chief Metropolitan Magistate, Ahmedabad

was pleased to reject the prayer made by the respondent vide order

dated 11.02.2021.

13. Respondent has filed Family Suit No.2446 of 2018 before the

Family Court, Ahmedabad with a prayer to restrain the defendant

and his parents or their agents, transferee or power of attorney not to

take possession of the subject matter property i.e. 105/F Shalin

House behind Aakruti Township opposite Srinath Residency, Narol,

Ahmedabad or to take the forceful possession by granting permanent

injunction. She also preferred one application along with the suit un-

der Order 39 Rule 1 and 2 read with Section 151 of Civil Procedure

C/SCA/3388/2020 CAV JUDGMENT DATED: 05/05/2022

Code restraining the defendants and their servants, agent, assignee,

power of attorney to dispossess her and also to enjoy the disputed

property.

14. Learned Family Court after hearing the parties, was pleased to

reject the application Exh.5 preferred by the respondent for ad -in-

terim relief by his order dated 21.02.2019. Learned Family Court has

observed in the order "as per the contention of the wife she was liv-

ing in a disputed property but in her whole plaint she has not stated

description to the disputed property. Under the provisions of Order

VII of C.P.C. as she was specifically stated in the petition about the

description of the immovable property so that sufficiently it can be

identified by boundaries or survey number of the disputed property.

Merely on title page, she has stated her address but in support of the

said address, he has not produced any documentary evidence to

show that said property was running on the name of the respondent

No.1. Merely she has produced the electricity bill vide Mark 4/6, but

from that bill no one can say that electricity connection is of the said

property is running in the name of respondent No.1. Also from the

said bill, it was observed that consumption of electricity bill during

C/SCA/3388/2020 CAV JUDGMENT DATED: 05/05/2022

the month of October-2018 is 0 unit." Ultimately, the application

Exh.5 for interim relief was rejected vide order dated 21.02.2019.

15. Suppressing the material facts in a Family Suit No. 894 of

2019 preferred by the present petitioner for annulment of his mar-

riage, she preferred an application Exh.15 under Sections 12 and 19

read with Section 26 of the Protection of Woman from Domestic Vi-

olence Act, 2005 in respect of the similar property i.e. shop particu-

larly F-18, Shalin Heights Srv No.581/1, T.P. No.58, Plot No.35/2,

M.T. No.0320-26-22-19-0001. She further prayed in Paragraph

No.16 (B) that she may not be dispossessed or disturbed her posses-

sion during the pendency of the present suit as contemplated under

Section 19 of the Protection of Women from Domestic Violence Act

on 22.05.2019.

16. Application of the respondent-wife was allowed under Section

19 read with Section Section 56 of the Protection of Women from

Domestic Violence Act restraining the petitioner from dispossessing

the respondent from suit house i.e. F-105, Shalin Heights, Narol,

Ahmedabad bearing Muni. Tenement No.0320-26-2301-0001- GJ

till the final decision of the suit vide order dated 07.12.2019. As the

same prayer was rejected by the learned Family court while passing

C/SCA/3388/2020 CAV JUDGMENT DATED: 05/05/2022

the order below Exh.5 on 21.02.2019, knowingly the respondent pre-

ferred an application Exh.15 in Family Suit No.894 of 2019 on

22.05.2019 and the learned Judge of Family Court allowed the ap-

plication erroneously. Once the prayer was rejected by the learned

Family Court in respect of the same subject matter of the property,

again the same Family Court can not and may not grant the same

prayer in an application preferred under Sections 12 and 19 read

with Section 26 of the Protection of Women from Domestic Vio-

lence Act, 2005 during the pendency of the Family Suit No.894 of

2019 preferred by the petitioner.

17. If we peruse Section 26(2) of the Act it provides that relief

sought under Section 26 should be in addition to the relief sought in

other proceedings but it can not be of the same nature. Very same

Court has rejected the application Exh.5 of the respondent in Family

Suit No.2446 of 2018, and thereafter, in an application under Section

19 read with Section 26 seeking same relief by the respondent under

different nomenclature was wrongly allowed by the learned Family

Court . This would create multiplicity of proceedings in civil and

criminal courts. Further to attract Section 19 of the Act, there should

be prima facie occurrence of domestic violence and subject matter

C/SCA/3388/2020 CAV JUDGMENT DATED: 05/05/2022

property should be shared household. If we refer the application

Exh.15 preferred by the respondent before the Family Court in Fam-

ily Suit No.894 of 2019, it is nowhere alleged by her that domestic

violence was committed by the petitioner or his family members

with the respondent. Even learned Judge, Family Court also not ob-

served in the entire order that prima facie domestic violence was

taken place against the respondent by the petitioner. In absence of

such observation made by learned Family Court while passing the

order below Exh.15, impugned order deserves to be interfered by

this Court.

18. This Court would like to refer the definition of shared house-

hold as provided under Section2(S) of the Act in the case of Vibhuti

Wadhwa Sharma Vs. Krishna Sharma and Anr. delivered in

Cri.MC1327/2021 and Cri.MA 7314/ 2021, which is as observed as

under:

"14. While relying upon the principles annunci- ated by the Hon'ble Supreme Court in the afore- said decision, the learned Appellate Court in the impugned judgment observed that the daughter- in-law (petitioner herein) was not residing at the house in question on the day of presentation of the complaint nor any time soon before. Further ob- served that she was occupying a staff quarter al-

lotted to her husband and lived in the house in question only for short duration and occasionally

C/SCA/3388/2020 CAV JUDGMENT DATED: 05/05/2022

visited parents-in-law, to say only thrice. The Ap- pellate Court accordingly held that these short durational visits or stay of daughter-in-law at the house of the parents-in-law would not get the house a colour of being a shared house hold and having hold so, the restraint order of the learned Metropolitan Magistrate was set aside, it being without any finding as regards the nature of premises being a shared house hold. Further held that the paents-in-law shall be well within their rights to sell off the house in question.

16. This Court is in agreement with the ratio of law laid down by the Hon'ble Supreme Court in Satish Chandra Ahuja (Supra), however, the facts of the present case are distinguishable on facts of the said case. In Satish Chandra Ahuja (Supra) the daughter-in-law was residing on the first floor of the subject property and had therefore claimed her right as shared household but in the present case, the petitioner has actually never resided with the parents-in-laws.

19. The provisions of Section 17 of the DV Act stipulates that every woman in a domestic rela-

tionship shall have a right to r side in the shared household whether or not she has any right, ti tle or beneficial interest in the same. However, in the present case admittedly petitioner has in fact nei- ther permanently nor for a longer period resided in the house of parents-in-laws and so, it cannot be termed as 'shared household'. Thus, there is no question of evicting or dispossessing her from there. However, to safe guard the interest of peti- tioner the trial court, while deciding petitioner's petition under the DV Act, may pass an order to provide with an alternative accommodation to pe- titioner under Section 19 (1) (f) of the DV Act."

Living of woman in a household must be a nature of perma-

nency not a nature of mere fleeting or casual living.

C/SCA/3388/2020 CAV JUDGMENT DATED: 05/05/2022

19. It is undisputed fact that marriage between the petitioner and

respondent was taken place on 05.07.2018 and petitioner left for

Canada on 06.08.2018. Electricity bill of the subject matter property

for the months of August and September-2018 shows consumption

of 0 (Nil) units. On 12.11.2018, respondent tried to take forcefully

possession of the subject matter property and complaint was filed by

the father i.e. Criminal Misc. Application No.6714 of 2018. Police

report was also submitted. Certain photographs are produced on

record by the petitioner showing that respondent was trying to take

illegal possession of the subject matter property. Respondent also

preferred Family Suit No.2446 of 2018 on 19.11.2018 with a prayer

of not dispossessing her from the subject matter property. Applica-

tion Exh.5 was preferred by the respondent under Order 39 Rule 1

and 2 of the C.P.C., which was rejected by learned Family court on

21.02.2019.

20. Further it appears that, suit was filed by the respondent i.e.

Family Suit No.2446 of 2018 came to be rejected on the ground of

non prosecution on 07.12.2019. From the record, prima facie, it ap-

pears that respondent was not residing in the subject matter property

from 05.07.2018 to 12.11.2018 and on 12.11.2018, she tried to take

C/SCA/3388/2020 CAV JUDGMENT DATED: 05/05/2022

illegal possession of the subject matter property. If we consider the

reply filed by the respondent, she has accepted that she had gone at

her parental home in the month of October-2018, and therefore,

there was no permanency in the residence of the petitioner. Subject

matter property may not fall under the purview of shared household,

and therefore, Section 19 of the Act could not have been invoked by

the respondent in the facts of the present case. Further, relation of

the petitioner and respondent is under challenge before the learned

Family Court in Family Suit No.894 of 2019. As per the prayer

made by the petitioner in the suit, the said marriage is null and void

as the respondent has committed fraud in marrying to the petitioner

as she did not disclose the material fact that respondent herself was

married with two other persons before marrying the petitioner. She

declared that she was unmarried in her affidavit of marriage as well

as notice of marriage produced at page No.29 and 31 of the petition.

21. Judgment relied upon by the petitioner in case of Swapnanjali

Sandeep Patil versus Sandeep Ananda Patil reported in AIR 2019

SC 1500 holding that marriage itself between the petitioner and re-

spondent is null and void and in such circumstances, no order could

C/SCA/3388/2020 CAV JUDGMENT DATED: 05/05/2022

have been passed by learned Family Court under the Act when the

alleged domestic relationship itself is under challenge.

22. These facts were available with the learned Family Court

while deciding the application Exh.15 preferred by the respondent

and facts of the previous order passed below Exh.5 in Family Suit

No.2446 of 2018. Contention of the respondent that she has paid

maintenance of the subject matter property cannot be given any

weigtage as the receipt endorsed the date as 10.04.2019 i.e. after fil-

ing of the Family Suit No.2446 of 2018.

23. Even if any maintenance are paid by the respondent from the

rent received by her she would not be entitled to get any relief as

prayed in her application Exh.15. Motive behind filing the applica-

tion Exh.15under the Act by the respondent appears to take posses-

sion of the subject matter property.

24. From the record it appears that respondent has not come up

with clean hands and she was not entitled for any relief under the

Act. Purpose of the Act is to protect women from domestic violence

and to bring women at par with men in the society but she can not

take undue advantage of law.

C/SCA/3388/2020 CAV JUDGMENT DATED: 05/05/2022

25. From the facts of the present case, this Court is of the opinion

that the respondent has misused the liberty granted to her by filing

such a wrong and frivolous application Exh.15 before the learned

Family Court in Family Suit No.894 of 2019 preferred by the present

petitioner. Learned Family Court has erroneously and wrongly

passed the impugned order granting relief to the respondent as

prayed by her in her application as she is not entitled to get the same

relief.

26. Under the circumstances, this Court is of the view to interfere

in the interim order dated 07.12.2019 passed below Exh.15 in Fam-

ily Suit No.894 of 2019 by learned Family Court No.3, Ahmedabad.

27. Hence, this petition is hereby allowed. The impugned judg-

ment and interim order dated 07.12.2019 passed below Exh.15 in

Family Suit No.894 of 2019 by learned Family Court No.3, Ahmed-

abad is hereby quashed and set aside. Notice stands discharged.

(B.N. KARIA, J) SUYASH