(In The Matter Of Application ... vs Swarupa Praharaj
2023 Latest Caselaw 11734 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK
                          CRLMC NO.2419 of 2021

           (In the matter of application under Section 482 of the
           Criminal Procedure Code, 1973).
           Debabrata Mishra & others       ...         Petitioners
                                  -versus-
           Swarupa Praharaj                     ...    Opposite Party

           For Petitioners             : Mr. B.Sahoo, Advocate

           For Opposite Party          : Ms. S.Patnaik, Advocate

                        CRLREV NO.78 of 2022
         (In the matter of application under Sections 397/401 of
         Code of Criminal Procedure, 1973).

           Swarupa Praharaj                     ...         Petitioner
                                     -versus-
           Debabrata Mishra & others            ...   Opposite Parties

           For Petitioner              : Ms. S.Patnaik, Advocate

           For Opposite Parties        : Mr. B.Sahoo, Advocate

                    CORAM:
                        JUSTICE G. SATAPATHY

                  DATE OF JUDGMENT : 27.09.2023


      G. Satapathy, J.

1. The order passed on 07.10.2021 by learned

District & Sessions Judge, Khurda at Bhubaneswar in

Criminal Appeal No. 03 of 2021 and the order passed

on 07.01.2021 by learned S.D.J.M., Bhubaneswar in

CMC No. 644 of 2020 in an application U/S. 23(2) of

Protection of Women from Domestic Violence Act,

2005 (in short, the "Act") are impugned in these

application U/S. 482 of Code of Criminal Procedure,

1973 (in short, the "Code") and U/S. 397/401 of the

Code by the husband with parents-in-laws and wife

separately.

2. Since both the orders passed in Appeal and

Criminal Misc. Case are under challenge by the

husband with parents-in-laws and wife separately in

CRLMC and Criminal Revision, the same are heard

together and disposed of by this common order with

consent of the learned counsel for the parties.

3. For the sake of convenience and in order to

avoid confusion, the petitioners in CRLMC who are

Opposite Parties in Criminal Revision are herein after

referred to as "Respondents" whereas, the Opposite

Party in CRLMC who is the petitioner in Criminal

Revision is hereinafter referred to as "aggrieved

person" in terms of the Act. The aggrieved person is

the wife of Respondent No.1 (R-1), whereas

Respondent Nos. 2 & 3 (R-2 & 3) are her parents-in-

laws.

4. The facts in precise are the aggrieved

person being the legally married wife of R-1 has filed

a petition against the Respondents U/S. 12 of the Act

seeking reliefs U/S. 18 to 21 of the Act and it is

claimed by the aggrieved person that after some days

of her marriage, she was physically, mentally and

emotionally tortured by her in-laws and accordingly

she is residing in the house of her parents in a

miserable condition without having any independent

source of income. The aforesaid petition U/S. 12 of

the Act was registered as CMC No. 644 of 2020 by

learned S.D.J.M., Bhubaneswar and in such

proceeding, the aggrieved person has also filed a

petition U/S. 23(2) of the Act seeking ex-parte

interim orders. The learned S.D.J.M., Bhubaneswar

accordingly after hearing the learned counsel for the

petitioner and on going through the materials placed

on the basis of affidavit disposed of the petition of the

aggrieved person U/s. 23(2) of the Act granting ex-

parte protection order in favour of the aggrieved

person U/S. 18 of the Act, while refusing to grant

other ex-parte relief as claimed by her. The petitioner

being satisfied with such order accordingly carried an

appeal to the Court of learned District & Sessions

Judge, Bhubaneswar at Khurda in Criminal Appeal No.

3 of 2021 wherein the learned District & Sessions

Judge, Khurda by the impugned order passed in the

appeal allowed the appeal in part by granting interim

order for making provision for alternative

accommodation by directing R-1 to pay a sum of

Rs.7,000/- per month towards rent of the house to be

arranged by the aggrieved person. It is accordingly

directed in the appeal about adjustment of the rent in

the final order that would be passed in the proceeding

U/S. 12 of the Act (CMC No. 644 of 2020).

5. Being aggrieved with the order passed in

CMC No. 644 of 2020 and Criminal Appeal No. 3 of

2021, the aggrieved person as well as the

Respondents has challenged such order in the

aforesaid Criminal Revision and CRLMC.

6. In the course of hearing of the Revision and

CRLMC, Ms. S.Patnaik, learned counsel by relying

upon the decision in Prabha Tyagi v. Kamlesh

Devi; (2022) 8 SCC 90 has vehemently argued and

submitted that neither the learned SDJM nor the

Sessions Judge had applied judicial mind in passing

the orders impugned herein and without assigning

any reason, the learned Sessions Judge has modified

the order passed by the learned SDJM, Bhubaneswar

making provision for alternative residence to the

aggrieved person by simply directing R-1 to pay a

sum of Rs.7,000/- per month as a interim residence

order which in the circumstance appears to be

contrary to the law inasmuch as the petitioner had

sought for a direction to the Respondents to make

provision for residence of the aggrieved person in the

shared household. Ms. Patnaik has accordingly prayed

to set aside both the orders by directing R-1 to make

provision for residence of the aggrieved person in the

shared household.

7. On the other hand, Mr.B.Sahoo, learned

counsel appearing for the Respondents has submitted

that the orders impugned in this CRLMC being

unsustainable in the eye of law, the same may kindly

be set aside since the same have been passed

without appreciation of materials and documents and

the non-application of minds by the concerned

Presiding Officers render both the orders passed in

CMC and Criminal Appeal unsustainable in the eye of

law. Mr.Sahoo has accordingly prayed to set aside

both the orders passed by learned SDJM,

Bhubaneswar and learned Sessions Judge, Khurda.

8. The Protection of Domestic Violence Act,

2005 is a piece of social legislation and it has been

enacted by keeping in view the rights guaranteed

under Articles 14, 15 and 21 of the Constitution to

provide for a remedy under the civil law which is

intended to protect the woman from being the victims

of domestic violence and to prevent the occurrence of

domestic violence in the society. It also empowers

the Magistrate to pass protection orders in favour of

the aggrieved person to prevent the Respondent from

aiding or committing the act of domestic violence or

any other specified act. The aim and objective of the

Act is for providing security to the aggrieved person

against the domestic violence.

9. Admittedly the learned SDJM, Bhubaneswar

has passed interim orders under Section 23(2) of the

Act which reads as under:-

"23(2). If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed of the aggrieved person under section 19, section 20, section 21 or, as the case may be, section 22 against the respondent."

10. Rival submissions has made it very clear

that the aggrieved person is aggrieved by the order

passed by the learned S.D.J.M., Bhubaneswar

refusing to pass interim residence order, whereas the

respondents are aggrieved by the ex parte order

passed by the learned S.D.J.M. prohibiting/restraining

the respondents from committing any domestic

violence against the Petitioners till disposal of the

case. However, the aggrieved person has carried an

appeal to the Court of learned Sessions Judge,

Khurda at Bhubaneswar who after setting aside the

refusal of interim residence order granted an interim

order directing Respondent No.1 (Husband) to pay

rent of Rs.7,000/- per month as a alternative

accommodation for the aggrieved person. In the

appeal, the learned Sessions Judge, Khurda at

Bhubaneswar has further directed that the aforesaid

payment of rent shall subject to adjustment in the

final order that would be passed in the proceeding

under Section 12 of the Act.

11. Section 23(2) of the Act clearly lays down

the discretionary power of the Magistrate to grant ex

parte residence order on the basis of affidavits of the

aggrieved person in such form as prescribed in the

Protection of Women from Domestic Violence Rules,

2006 ( In short, the "Rule"). Section 19 of the Act

provides for residence orders and Section 19(f)

provides that while disposing of an application under

Section 12(1) of the Act, the Magistrate may, on

being satisfied that domestic violence has taken

place, pass a residence order directing the

respondent to secure same level of alternate

accommodation for the aggrieved person as enjoyed

by her in the shared household or to pay rent for the

same, if the circumstance so require. The aggrieved

person, however, has urged through her counsel to

put her in the shared household by way of an order.

This Court is quite conscious of the fact that the

aggrieved person has a right to reside in a shared

household irrespective of her right, title or beneficial

interest in the same and she shall not be evicted or

excluded from the shared household or any part of it

by the respondent save in accordance with the

procedure establish by law in terms of Section 17 of

the Act. It is, therefore, very clear that a woman

when becomes an aggrieved person by way of

domestic violence, she can enforce her right to live in

a shared household.

12. When the contention of the aggrieved

person is addressed to in the backdrop of the

admitted facts of the case, there appears no dispute

as to the status of the aggrieved person as legally

wedded wife of R-1 and their marriage was stated to

be solemnized on 09.03.2014, but there appears

allegation against the Respondents for committing

domestic violence upon the aggrieved person and,

thereby, the Magistrate has not committed any

illegality in passing interim order under Section 23(2)

of the Act, which even gives discretion to the

Magistrate to pass such ex parte interim order on

expectation/apprehension of likelihood of commission

of domestic violence by the Respondent on the basis

of affidavit produced by the aggrieved person. The

dispute in this case appears to have been narrowed

down in the appeal to the effect whether the

alternate residence order passed in favour of the

aggrieved person by the learned Sessions Judge,

Khurda is justified since the Magistrate has not

passed any such order. It also appears from the

impugned order passed by the Magistrate that the

aggrieved person had alleged that after some days of

marriage, she was physically, mentally and

emotionally tortured by the respondents and she is

residing in the house of her parents in a miserable

condition having no source of independent income,

but evidence was yet to be led in the proceeding

under Section 12 of the Act before the learned SDJM

to know about the status of the shared household in

which the victim had once lived with the

Respondents. Further, the learned Sessions Judge

has passed interim residence order in favour of the

aggrieved person which is inconsonance with Section

19(f) of the Act. The learned counsel for the

aggrieved person has of course relied upon the

decision in Prabha Tyagi(supra) seeking for a

direction to the respondents for inducting the

aggrieved person in the shared household, but in

Prabha Tyagi(supra) the Apex Court has passed a

detailed judgment after taking into consideration the

provision of law as well as the evidence led by the

parties before the Magistrate. Besides, in such

decision, the Apex Court has restored and affirmed

the order passed by the Magistrate in a proceeding

under Section 12 of the Act wherein, the learned

Magistrate has passed final order directing the

respondents to pay monetary compensation to the

aggrieved person as well as making the Streedhan

available to the aggrieved person as also not to

obstruct the aggrieved person and her daughter from

enjoying the property of her husband.

13. After careful analysis of the impugned order

passed by the learned Magistrate and the order

passed by the learned Sessions Judge in appeal

together with analysis of materials placed on record

on the backdrop of the provisions of the Act, this

Court does not find any error apparent in the

impugned order passed in the appeal inasmuch as the

appellate Court has passed residence order in terms

of Section 19(f). Besides, it is open for the aggrieved

person to redress her grievance in the proceeding

under Section 12 of the Act in CMC No. 644 of 2020

which is still pending for final disposal, which shall be

required to be disposed of within a period of sixty

days from the date of its first hearing as per the

mandate of Section 12(5) of the Act.

14. In the result, both the CRLMC and Criminal

Revision being unmerited stand dismissed on contest,

but in the circumstance there is no order as to costs.

All the interim orders passed in the present

proceedings stood vacated.

                                                                                   (G. Satapathy)
Signature Not Verified                                                                  Judge
Digitally Signed
Signed by: KISHORE KUMAR SAHOO

Designation: SecretaryOrissa High Court, Cuttack, Reason: AuthenticationDated the 27th day of September, 2023/Kishore Location: High Court of Orissa Date: 27-Sep-2023 15:02:00