Gulshan Kumar Subhaschandra Sharma vs Seema Gulshan Kumar Sharma
2025 Latest Caselaw 1949 Guj

Gujarat High Court

Gulshan Kumar Subhaschandra Sharma vs Seema Gulshan Kumar Sharma on 17 January, 2025

Author: Umesh A. Trivedi

Bench: Umesh A. Trivedi

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                              R/SCR.A/127/2014                            ORDER DATED: 17/01/2025

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                              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO.
                                              127 of 2014
                                                  With
                         R/CRIMINAL REVISION APPLICATION NO. 668 of 2013
                       ======================================
                            GULSHAN KUMAR SUBHASCHANDRA SHARMA & ANR.
                                                  Versus
                                  SEEMA GULSHAN KUMAR SHARMA & ANR.
                       ======================================
                       Appearance:
                       MR MM SAIYED(1806) for the Applicant(s) No. 1,2
                       MR. D. P. KINARIWALA(410) for the Respondent(s) No. 1
                       MR SOAHAM JOSHI, ADDITIONAL PUBLIC PROSECUTOR for the
                       Respondent(s) No. 2
                       ======================================

                         CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                                                      Date : 17/01/2025

                                                        ORAL ORDER

1. Both these proceedings arise out of the order passed by the 8th Additional Senior Civil Judge and Additional C.J.M.4, Bharuch dated 22.01.2013 in Criminal Miscellaneous Application No.599 of 2009 .

2. In a proceeding filed by the respondent - wife in Special Criminal Application under the provisions of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act') providing for protection order under Section 18 and residence order under Section 19 of 'the Act' as also grant of compensation in the form of monetary relief to the tune of Rs.10,000/-, which was challenged by the

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applicants, being the husband and mother-in-law before the 2 nd Additional Sessions Judge, Bharuch by way of Criminal Appeal No.8 of 2013 whereby vide judgment and order dated 06.08.2013, the learned appellate Court modified the order so far as it relates to an amount of reasonable rent to be paid in lieu of shared house hold, which came to be reduced from Rs.2000/- to Rs.1500/-.

3. Criminal Revision Application is filed by the wife - Seema Gulshankumar Sharma challenging the order passed by the appellate Court reducing the amount in lieu of shared house hold from Rs.2000/- to Rs.1500/-, that too, from the date of an order passed by the learned Magistrate awarding the same claiming it to be entitled from the date of filing the application before the learned Judge placing reliance under 'the Act'.

4. Since both these proceedings arise out of the same order and between the same parties, it is hereby disposed of by this common judgment and order.

5. As such, in respect of domestic violence, meted out to the wife is concerned, there is no dispute and even otherwise cannot be disputed in view of the reasons recorded in the order of the trial Court and confirmed by the appellate Court at the instance of the husband and mother-in-law.

6. Heard Mr. M.M. Saiyed, learned advocate for the applicants in Special Criminal Application. According to his submission, the order of shared house hold cannot be enforced

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against the mother-in-law as husband has already died during pendency of this petition. He has further submitted that since the wife has stayed with her father, there is no requirement of an order of shared house hold or any amount, which she has not spent in lieu of shared house hold.

7. He has further submitted that mother-in-law is aged about 75 years and not earning anything. She cannot be asked to pay anything towards shared house hold, which is even otherwise under Section 19 of 'the Act' as an enabling provision and that direction comes to an end on the death of the husband as it was his primary duty to provide house hold, and therefore, he has submitted that Special Criminal Application be allowed and the order so far as it relates to providing shared house hold or in lieu to pay the amount thereof be quashed and set aside.

8. Mr. D.P. Kinariwala, learned advocate for the wife, submitted that as recorded in the orders passed by the learned Magistrate as also appellate Court residence in which wife was staying with husband was in the name of father-in-law. There is no will made by the father-in-law or partition took place between the mother and son. She has all the right in the property, after the death of her husband. Therefore, he has submitted that the mother-in-law, if cannot provide shared house hold in that very property, she is supposed to pay the amount in lieu thereof. He has further submitted that as coming on record, maternal uncle-in-law and maternal aunt-in- law are staying together in that very house where they are not supposed to stay. Only with a view to deny shared house hold

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in that very property they are staying. If mother-in-law, according to the submission of learned advocate for the wife, wants her own brother and sister-in-law to stay with her in that very property, she is supposed to pay the amount as reduced by the appellate Court in lieu of right to shared house hold, and therefore, he has submitted that the petition filed by the husband and mother-in-law, which would now survive only for mother-in-law, is required to be rejected.

9. Arguing in Revision filed by the wife, it is submitted that the payment at reduced rate in lieu of the shared house hold is limited to the date of order passed by the learned Magistrate, it should relate back to the date of filing of the application before the Magistrate. According to his submission it has to be from the date of application filed before the Magistrate by the wife. However, that prayer and argument appears to be misconceived as the order passed is modified by the learned appellate Court till the date of passing of the order by the Magistrate. The husband and the mother-in-law are supposed to pay Rs.2000/- in lieu of shared house hold and the learned appellate Court modified that order at a reduced rate from the date of order passed by the learned Magistrate, and therefore, according to me, husband and mother-in-law are supposed to pay Rs.2000/- as order of the appellate Court goes by reducing it from the date of order passed by the learned Magistrate whereas payment at reduced rate has to be made from the date of the order passed by the learned Magistrate and thereafter. Therefore, there appears no substance in the Revision Application, and therefore, it is hereby rejected with the aforesaid clarification. Now coming to Special Criminal

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Application filed by the husband and the wife under the supervisory jurisdiction under Article 227 of the Constitution of India on the question of interfering with in case of any mistake of law apart from any mistake of fact is concerned, considering the submission made, it is very clear that so long as property inherited by the husband is still with any of the relative of the husband, they are supposed to maintain the wife in each and every respect, more particularly, when any order having financial obligation on the husband or even relatives of the husband, they are supposed to fulfill the same. Any order of Court of law cannot be refused to be obeyed on the ground that any litigant is aged and not earning, and therefore, not able to pay the monetary benefit.

10. At the same time, maternal uncle and aunt-in-law have no right to remain in shared house hold where wife is entitled to stay and on that ground it should not have been refused.

11. As evidence is led by the husband and the mother- in-law, they did not want her to stay in the shared house hold citing the reason for enough accommodation when maternal uncle and aunt-in-law are staying together. Therefore, the learned Magistrate was kind enough to give three options to the applicants mother-in-law as also husband either to provide shared house hold in the entire premises or that first floor of the premises or in lieu thereof to pay the rent to the extent of Rs.2000/- but which is now reduced by the appellate Court assigning reasons.

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12. I see no reason to interfere with the said reasons assigned, that too, reasons put forth by the learned advocate for the applicants as stated hereinabove. At the same time, the argument that Section 19 of 'the Act' is an enabling provision and with the death of the husband, no order thereunder can be passed against the relatives of the husband, is misconceived. So long as relatives of the husband have the property of the husband, may be jointly with them, every order passed in favour of the wife has to be executed even from the joint property, which includes the share of deceased husband. In the present case, as it is very clear from the evidence on record, the residential property where in-laws stays wherein deceased husband of the applicant, even not having the entire property but has a right at least to an extent of 50% along with the mother without considering even the succession Act. Be that as it may, since the property of the husband is still with the mother-in-law, she cannot avoid execution of the order passed in favour of the wife from that very property. At the same time, while exercising supervisory jurisdiction under Article 227 of the Constitution of India, I see no reason and substance in the submission made on behalf of the mother-in- law to entertain this application. Hence, this Special Criminal Application is also hereby rejected.

(UMESH A. TRIVEDI, J.)

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