Shovan Kumar Sahoo & vs Spuspanjali Swain .... Opposite Party
2025 Latest Caselaw 8960 Ori

Orissa High Court

Shovan Kumar Sahoo & vs Spuspanjali Swain .... Opposite Party on 13 October, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

           IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR                      CRLREV No.03 of 2024

       Shovan Kumar Sahoo &                 ....         Petitioners
       another

                                      Mr. B.P. Mohanty, Advocate

                                 -Versus-

      SPuspanjali Swain                   ....      Opposite Party
                                       Mrs. Sujata Jena, Advocate

                 CORAM:
                 JUSTICE R.K. PATTANAIK

                 DATE OF HEARING: 24.07.2025
                DATE OF JUDGMENT:13.10.2025


      1. Instant revision under Sections 397 and 401 of the Code of
      Criminal Procedure, 1973 is at the behest of the petitioners
      assailing the impugned judgment dated 1st December, 2023
      as at Annexure-3 of the learned Sessions Judge, Khurda
      confirming the order dated 4th May, 2022 i.e. Annexure-2 of
      the learned S.D.J.M., Bhubaneswar in C.M.C. (D.V) Case
      No.40 of 2022 pending before the learned J.M.F.C. (LR),
      Bhubaneswar on the grounds stated.

      2. As per the pleading on record, the opposite party initiated
      the proceeding against the petitioners with an application
      filed under Section 12 of the Protection of Women from
      Domestic Violence Act, 2005 (hereinafter referred to as 'the
      Act') seeking reliefs and therein, moved an application under

                                                        Page 1 of 15
 Section 23 of the Act for interim monthly alimony and the
learned S.D.J.M., Bhubaneswar, while dealing with the same,
awarded Rs.7,000/- (Rupees Seven Thousand) in her favour
payable till disposal of the proceeding. That apart, the
opposite party was allowed to stay in a flat on the premise
that she shared it a household with petitioner No.1.
According to the petitioners, the flat in question belongs to
petitioner No.2, who is uncle of petitioner No.1 and at no
point of time, it was used as a shared household, hence,
therefore, the learned Court below fell into gross error
allowing the opposite party to stay there. In the alternative,
the   petitioners   were     directed   to   provide   separate
accommodation to the opposite party in the same locality,
where the said flat is situated.

3. Since, the learned S.D.J.M., Bhubaneswar passed the
impugned order dated 4th May, 2022 at Annexure-2 allowing
the opposite party to occupy Flat No.203 (M-56, Jagannath
Apartment, Madhusudan Nagar, Bhubaneswar), with the plea
that the same is owned by petitioner No.2 and was never used
as a household, the petitioners filed Criminal Appeal No.60
of 2023 before the learned Sessions Judge, Khurda at
Bhubaneswar but it has resulted in the impugned decision
dated 1st December, 2023 vide Annexure-3. As the order at
Annexure-2 has been confirmed by the learned Court below,
while disposing of the appeal, the petitioners, since aggrieved
by the order of residence vis-à-vis the flat, have challenged
the same by filing the present revision on the grounds inter
alia that both the learned Courts below committed serious
                                                   Page 2 of 15
 wrong and illegality to the extent allowing the residency in
respect of the flat, which has never been used as a shared
household and when, it is owned by petitioner No.2.

4. Objection is filed by the opposite party to the claim of the
petitioners justifying the decision of learned Courts below as
regards the residence order allowing her to stay in the flat
with an alternative option provided to petitioner No.1 to find
out suitable accommodation. The details of the circumstances
leading to the marriage between petitioner No.1 and opposite
party have been described therein with the allegations of ill-
treatment and torture meted out to her. It has been further
pleaded that petitioner No.1 has approached the Family Court
at Bhubaneswar in C.P. No.102 of 2021 seeking decree of
divorce with a false plea that their marriage is a nullity in the
eye of law by filing an application under Section 25 of the
Special Marriage Act further claiming that there has been no
consummation of marriage and the Marriage Certificate to
have been obtained by fraud. In so far as the challenge to the
residence order by the petitioners is concerned, as per the
opposite party, the learned Courts below did not err in
allowing her to stay in the flat being a shared household.

5. Heard Mr. Mohanty, learned counsel for the petitioners
and Ms. Jena, learned counsel for the opposite party.

6. In course of hearing, Mr. Mohanty, learned counsel for the
petitioners reiterating the facts pleaded on record cited a case
law in Satish Chander Ahuja Vrs. Sneha Ahuja (2021) 1
SCC 414 to contend that the Apex Court, while considering
                                                     Page 3 of 15
 the law pertaining to interpretation and working of the Act,
held and observed that the words and expression 'lives or at
any stage has lived in a domestic relation' shall have to be
given its normal and purposeful meaning. It is held therein
that the living of the women in a household has to refer to
living which has some permanency and mere fleeting or
casual living at different places shall not make a shared
household and therefore, the intention of the parties and the
nature of living in the household is to be looked into to find
out as to whether the intent was to treat the premises as
shared household and referring to the same, the contention of
Mr. Mohanty, learned counsel is that the flat was never used
and utilized by the petitioners and the opposite party as a
'shared household'. It is once again claimed that the flat is
owned by petitioner No.2. The contention is that the flat is
not in the name of petitioner No.1 or a joint family property
or is possessed by the family nor at any point of time, the
parties ever lived there, which, therefore, could not have been
treated as a shared household, hence, the learned Courts
below committed wrong in reaching at such a conclusion and
in support thereof, Mr. Mohanty, learned counsel refers to the
definition of 'shared household' in Section 2(s) of the Act.

7. On the contrary, Mrs. Jena, learned counsel for the
opposite party submits that the petitioners and the opposite
party stayed together in the flat and therefore, the order of
residence is perfectly justified. It is submitted that the
opposite party has been subjected to ill-treatment and cruelty
in the hands of petitioner No.1 after their marriage and she
                                                   Page 4 of 15
 has no means of income and therefore, has been
accommodated as an interim measure since the flat is claimed
to be a shared household. In support of the contention
justifying the residence order, Mrs. Jena, learned counsel
cited a decision of the Apex Court in S. Vijikumari Vrs.
Mowneshwarachari C in SLP (C) No.5342 of 2023 dated
10th September, 2024 with reference to Section 25(2) of the
Act, as the petitioners had approached the court of first
instance seeking variation of the residence order. It is
contended that as the learned S.D.J.M., Bhubaneswar
declined to entertain such an application, it was not pursued
thereafter, hence, the petitioners are estopped from
questioning the impugned order i.e. Annexure-2 dated 4th
May, 2022 confirmed in appeal by the learned Sessions
Judge, Khurda. On merits vis-a-vis residence order, since, it
is the plea of the petitioners that the flat has never been used
as a shared household, Mrs. Jena, learned counsel would
finally submit that such a decision is not to be tinkered with
as the claim put forth is incorrect.

8. It is pleaded by the opposite party that there has been a
domestic relationship between her and petitioner No.1 after
their marriage was solemnized and both lived together. The
Court is to consider, whether, such claim of the opposite
party justifying shared household is acceptable in the light of
the pleadings on record vis-à-vis the residence order
involving the flat. In fact, the learned Courts below held that
the opposite party has been permitted to stay in the flat with
an option for petitioner No.1 to look for alternative
                                                    Page 5 of 15
 accommodation with all such facilities situate within the
same locality. The contention of Mr. Mohanty, learned
counsel for the petitioners is that the flat was never used as a
shared household by the parties and in that regard, the
decision in Satish Chander Ahuja (supra) is placed reliance
on. The Court is to examine the rival contentions in
juxtaposition to the pleadings of the parties regard being had
to the intent and purport of the law.

9. Section 2(s) of the D.V. Act defines 'shared household'
and it means a household where the person aggrieved lives or
at any time, has lived in a domestic relationship either singly
or along with 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 in the shared household.

10. On a reading of the above provision, it is made to understand that the parties shall have to be in a domestic relationship and at any point of time, must have been lived in a household either owned by one of them or as a tenant, jointly or otherwise and it includes a household of the joint family even when none of them is having right, title or interest in respect thereof. As far as the residence order is

concerned, it has been provided in Section 19 of the D.V. Act having the powers of a Magistrate to exercise, while considering application under Section 12(1) thereof to pass any such order with the satisfaction that a domestic violence has been committed by the respondent and to restrain him from dispossessing the aggrieved person from the shared household, whether or not, such respondent has a legal or equitable interest therein. By exercising such power under Section 19 of the D.V. Act, the Magistrate may have to direct the respondent to remove himself from the shared household, when domestic violence of the aggrieved person is prima facie established. A whole lot of measures may be taken by the Magistrate to protect the aggrieved person against dispossession in the hands of the respondent exercising powers under the Act.

11. The contention of Mrs. Jena, learned counsel for the opposite party referring to the decision in S. Vijikumari (supra) is that when the order of the Court of first instance under Section 25 of the D.V. Act was not challenged by any of the petitioners, the residence order as per Annexure-2 still being questioned, the revision filed by them is not maintainable.

12. The term 'shared household' as defined under the Act is to be understood in the context of domestic violence alleged by the aggrieved person against the respondent and to what it includes as a household and according to the decision in Satish Chander Ahuja (supra), it has to mean

permanency in sharing the household and not casual or temporary stay at a place to bring it within the fold of 'shared household'. If the parties live or lived at a particular place without permanency, the premises cannot be treated as shared household and for the said purpose, the intention of the parties is to be looked into, whether, they intended to treat the place of residence as a 'shared household'. As earlier discussed, it has to be a household whether owned or tenanted jointly or separately including such household which may belong to joint family of which the respondent is a member. It is not that each and every place becomes a shared household unless there is permanency attached to it having a requisite intention of the parties to reside there or treating the same as a place of residence either for a temporary period or permanently. A casual visit to a place without any intention of the parties to reside cannot be termed as a 'shared household' for the purpose of the Act. It has been held and concluded by the Apex Court in Satish Chander Ahuja (supra) that the Act has been introduced to provide an effective protection to the rights of the women, who are the victims of violence and therefore, to be interpreted in a manner to effectuate the very purpose and object thereof, hence, Section 2(s) read with Sections 17 & 19 of the D.V. Act shall have to be understood keeping in mind that women in distress hast a right of residence in a shared household irrespective for having any legal interest therein.

13. As far as the case of the petitioners is concerned, the flat is owned by petitioner No.2 and not a joint family property or it belongs to petitioner No.1and since the parties never lived there, the opposite party has no right of residence claiming it to be a shared household.

14. On perusal of the pleadings on record, it is made to reveal that the opposite party had stayed in a residence quarters at Kharavel Nagar, Bhubaneswar and it was for a period between 5th September, 2021 to 9th September, 2021. There is no other place mentioned in her pleading to show that she lived with petitioner No.1 sharing a common household. It is not pleaded by the opposite party anywhere that she lived and shared the household with petitioner No.1 or her in-laws in the alleged flat.

15. Ms. Jena, learned counsel for the opposite party would submit that the residence order was sought to be varied at the behest of the petitioners with the application filed under Section 25(2) of the Act, but it was dismissed in absence of any changed circumstances, as according to the learned Magistrate, he lacked jurisdiction to review such an order and it has been confirmed by the learned Court below with the conclusion that the variation of the order as to right of residence in absence of any changed circumstances could not have altered, modified or revoked. Since the said order under Section 25(2) of the Act was not challenged thereafter by the petitioners, it is the submission of Mrs. Jena, learned counsel that the same could not have been questioned in appeal filed

before the learned Court below. Admittedly, the residence order and monthly alimony was allowed by the learned S.D.J.M., Bhubaneswar by order dated 4th May, 2022 and it was subject of challenge in the appeal.

16. The objection of the opposite party against the appeal was to the effect that the same could not be filed against the order of residence as well as the monthly maintenance. Nonetheless, the appeal was dismissed vide impugned judgment dated 1st December, 2023. In other words, the learned Court below was not inclined to interfere with the impugned orders dated 4th May, 2022 and 19th August, 2023 of the learned S.D.J.M., Bhubaneswar and learned J.M.F.C (LR), Bhubaneswar passed in connection with C.M.C. (D.V) Case No.40 of 2022. The fact remains, the residence order was confirmed and also the monthly alimony of Rs.7000/- payable to the opposite party. The order of residence in respect of the flat is challenged by the petitioners and as previously stated, it is with the plea that such flat is owned by petitioner No.2 and had never been a 'shared household' of petitioner No.1 and opposite party.

17. The decision in S. Vijikumari (supra) is in connection with an order under Section 25(2) of the Act against monthly maintenance allowed with a plea that the same is to be revoked for the fact that the opposite party wife had misrepresented the Court about the need of maintenance, whereas, she is as an employed woman and hence, it was sought to be reviewed. Against the said order of maintenance

in the case (supra), an appeal was filed by the opposite party husband but the order of maintenance was confirmed and thereafter, such an application under Section 25(2) of the Act was moved seeking revocation of the monthly alimony with the plea advanced that the petitioner wife is employed and does not require maintenance. Against the aforesaid backdrop, the Apex Court held and observed that the order of maintenance stands confirmed and attained finality with the disposal of the appeal and thereafter, its revocation under Section 25(2) of the Act could not have been entertained on any such ground. In so far as the case at hand is concerned, the facts are distinguishable. In fact, the monthly maintenance was allowed with the residence order and such order of residence was challenged in appeal, according to the Court, the same is maintainable, even though, the application under Section 25(2) of the Act was dismissed and was not challenged by the petitioners. Any such interim order may be challenged in appeal or sought to be varied or modified or revoked with the filling of same. If revocation is applied but the same is not allowed, it does not mean that the person aggrieved cannot question it after the final order of the learned Magistrate. In other words, the petitioners though not challenged the order under Section 25(2) of the Act, they are not estopped from filing the appeal challenging the order of residence and monthly alimony on merit. Of course, the appeal was preferred by the petitioners against both the orders combinedly which could not have been permitted by the learned Court below as the order of residence is of the

year 2022, whereas, the decision under Section 25(2) of the Act is of 2023. Nonetheless, the learned Court below upheld both the orders in Criminal Appeal No.60 of 2023. Under such circumstances and for the above discussion, this Court is of the view that irrespective of any such order dated 19 th August, 2023 arising out of C.M.C. (D.V) Case No.40 of 2022, the appeal before the learned Court below was maintainable and the same cannot be questioned on any such ground referring to the decision of the Apex Court in S Vijikumari (supra).

18. The next question is, whether, the right of residence in favour of the opposite party with respect to the flat as has been allowed by the Court of first instance and confirmed in the appeal is in accordance with law. Mr. Mohanty, learned counsel for the petitioners would submit that the flat was never used for the purpose of residence by the parties or ever shared it as a household, hence, the right of residence in respect thereof cannot be claimed. As earlier discussed, Section 2(s) of the Act provides definition of 'shared household' In the instant case, on repeated reading of the pleading of the opposite party, nowhere, it is revealed that the flat was ever used as a household by the parties. Rather, the claim of the opposite party is that she had stayed in a residential quarter in Unit-9 at Bhubaneswar and that too, for a brief period. There is no such pleading from the side of the opposite party about the shared household residing in the flat, which is claimed to be owned by petitioner No.2. On what basis the right of residence was allowed in favour of the

opposite party with regard to the flat is not revealed either from the order of the learned S.D.J.M., Bhubaneswar dated 4th May, 2022. The said aspect has also not been dealt with by the learned Court below in the appeal. May be that, the right of residence was allowed by both the learned courts below in respect of the flat since petitioner No.1 disclosed the same to be his place of residence at Bhubaneswar without really enquiring, whether, it has been or was ever used as a shared household by the parties. It may also be for the reason that the learned Courts below in absence of any place of residence shared by the parties as a permanent or temporary place of abode deemed it just and proper to allow the opposite party to stay in the flat that being the place of residence of petitioner No.1. According to the Court, such a decision and direction is not in terms of the law contemplated. The place where the parties never resided or shared as a household or used it as a temporary residence with casual stay or visit cannot be considered for the purpose of the right of residence. As the flat claimed to be in the name of petitioner No.2, in absence of shared household by the parties ever before is definitely to cause inconvenience to him. The learned Courts below failed to consider all such aspects while allowing the right of residence in favour of the opposite party. The Court is, however, in agreement with the learned Courts below that petitioner No.1, being the husband and having been directed to pay interim alimony of Rs.7000/- per month, has a bounden duty to consider proper accommodation of the opposite with necessary arrangement

made in absence of any shared household. Law enjoins that in case, there has been no shared household used by the parties, the Court is to direct the aggrieved person to be provided accommodation for her stay or pay rent to her. Considering the fact that the flat was not used by the parties as a shared household at any point of time, the impugned order of the learned Court below to that extent is liable to be interfered with but confirming the remainder upholding the decision vis-à-vis alternate accommodation allowed in favour of the opposite party. The Court is inclined to ensure separate residence for the opposite party to be complied with by petitioner No.1 making provision of such accommodation on rent with all basic facilities available thereat, if possible, in or around the same locality, where the flat is situated, even though, the same is held not to be a shared household in order to cause her least inconvenience after such relocation. The Court is also inclined to hold that the opposite party, who is presently residing in the flat, should be allowed to continue, till such time, the alternate accommodation is provided to her by petitioner No.1.

19. Accordingly, it is directed.

20. In the result, the revision petition stands disposed of. As a necessary corollary, the impugned judgment dated 1st December, 2023 as at Annexure-3 of the learned Sessions Judge, Khurda is hereby modified to the extent indicated with a direction to petitioner No.1 to provide alternate accommodation to the opposite party in terms of the

directions issued and upon such provision made available, the latter, on being informed, shall vacate the flat in question within a fortnight or a month thereafter. It is further directed that petitioner No.1 shall bear the rent and miscellaneous expenses of the alternate accommodation without causing undue hardship to the opposite party, who, in case of any such contingency, hall have the liberty to approach the concerned court for appropriate orders. In the circumstances, however, there is no order as to the costs.

(R.K. Pattanaik) Judge Alok