Begraj Sharma And Another vs Uma Sharma
2022 Latest Caselaw 6433 P&H

CRM-M-16041 of 2021                                                      1

      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH


                                 CRM-M-16041 of 2021 (O&M)
                                 Reserved on : 25.5.2022
                                 Date of Decision: July 8, 2021

Begraj Sharma and another
                                                            ...Petitioners
                                    Versus
Uma Sharma
                                                            ...Respondent

CORAM:- HON'BLE MS. JUSTICE JAISHREE THAKUR

Present:-   Mr. Manish Soni, Advocate
            for the petitioners.

            Mr. Bhupinder Ghai, Advocate,
            for the respondent.

JAISHREE THAKUR, J.

1. The petitioners, who are none other than the in-laws of the

respondent--Uma Sharma, have approached this court under Section 482

of the Code of Criminal Procedure (hereinafter referred to as "the Code")

with the prayer for quashing of order interim dated 16.12.2019 passed by

Additional Sessions Judge, Gurugram, along with all subsequent/incidental

proceedings, including order dated 20.12.2019, 03.01.2020 passed by the

court of Judicial Magistrate Ist Class, under Section 12 of the Protection of

Women from Domestic Violence Act, 2005 and in execution proceedings

dated 16.8.2019.

2. A few brief facts need to be noted for adjudication by this court.

i) As alleged, a marriage was solemnized between Umesh Kumar

son of the petitioners, as per Hindu rites and ceremonies with Uma

Sharma on 21.11.2011. Out of this wedlock two girls were born on

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14.4.2013 and 02.07.2016. Initially after the marriage, the

respondent-complainant ("the respondent" for short) stayed in the

house owned by petitioner No. 2, that is at House No. 1573/30,

Block-G, Rajendra Park, Gurugram. However, both the husband and

the wife shifted out on 13.10.2015 and stayed in a rented

accommodation in Laxman Vihar, Gurugram. The house was taken on

rent on 13.10.2015 where the husband and the wife continued to

reside till 13.06.2018.

ii) A matrimonial dispute arose between Umesh Kumar son of the

petitioners and the respondent, which was settled on a compromise

having been effected between the parties. Another accommodation

was taken on rent that is House No. 941/31, 2nd floor Laxman Vihar,

Gali No. 2, Phase I, Gurugram. As the matrimonial dispute continued,

the respondent moved out of the rented accommodation and went to

live in her parental house from where she filed an application under

Section 12 of the Protection of Women from Domestic Violence Act,

2005 (hereinafter referred to as "the Act of 2005"). She also filed an

application under Section 23 of the Act of 2005 for grant of interim

ex-parte order. The respondent prayed for right of residence before

JMIC, Gurugram and the trial court directed Umesh Kumar to pay

rent of house No. 518/31, Ground Floor, Laxman Vihar, Phase II,

Street No. 7, Gurugram every month. The application filed under

Section 23 of the Act of 2005 for interim maintenance was decided

and the husband was directed to pay an amount of ₹12,000/-,

including rent and other expenses per month. It was clarified that ₹

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10,000/- would be paid as rent from 1.10.2019 and the remaining

amount of ₹2000/- would be paid from the date of the order that is

01.11.2019. The prayer made to restrain the petitioners herein from

disposing or alienating the property was declined.

iii) Thereafter, the respondent filed a revision petition before the

Court of Additional Sessions Judge Gurugram against interim order

dated 01.11.2019, which was modified on 16.12.2019 and the

respondent and the two minor girls were allowed right of residence on

the first floor of House No. 1573/30, Ekta Property Street, Rajendra

Park, Gurugram, which house belonged to petitioner No. 2, the

mother-in-law of the respondent. Furthermore, a direction was issued

restraining the other two sons of the petitioners from entering the first

floor, with a direction to the husband Umesh Kumar to pay a sum of ₹

10,000/- per month as maintenance.

iv) Pursuant to the order dated 16.12.2019, the respondent was put

in possession of the first floor and a report was submitted by the

bailiff.

v) The order dated 16.12.2019 was challenged before this Court

in CRM-M-2787 of 2020, which was dismissed by this very court on

4.2.2020 by imposing costs of ₹30,000/-.

vi) Having paid the amount of ₹30,000/-, the present criminal misc

petition has been filed seeking to challenge the order dated

16.12.2019 as passed by the Additional District Judge, Gurugram,

allowing right of residence to the respondent and the orders passed

whereby possession has been handed over to the respondent.

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3. Mr. Manish Soni, learned counsel appearing on behalf of the

petitioners, would vehemently argue that the order dated 16.12.2019 as

passed by the Additional Sessions Judge, Gurugram, allowing right of

residence to the respondent in the house belonging to petitioner No.2 is

unsustainable. It is argued that the judgment rendered in S.R Batra and

another versus Smt. Taruna Batra 2007 (1) RCR (criminal) 403

(Supreme Court) clearly holds that a house which is exclusively owned by

father-in-law cannot be called as 'shared household' within the ambit of

Section 2 (s) of the Act of 2005. It is argued that the revisional authority has

failed to appreciate the fact that the house, in which right of residence has

been allowed, belongs to the mother-in-law and not the husband of the

complainant. It is also submitted that initially the parties, that is the

respondent and the son of the petitioners, resided in that house, but soon

after their marriage shifted from the said premises and took separate

accommodation on rent. It is argued that the respondent thereafter shifted to

her paternal home from where she initiated proceedings under the Act of

2005 and also sought maintenance under Section 125 of the Code. It is

argued that she has been allowed the right of residence on the 1st floor of

the house belonging to petitioner No. 2, however she does not reside therein

and has kept the premises under lock and key only to harass the petitioners.

Learned counsel for the petitioners would rely upon the site plan annexed

with this instant petition to show that the petitioners are in possession of

only a few rooms which is wholly inadequate for their needs as they have 2

other sons who are married and would require accommodation, whereas the

entire 1st floor is with the respondent who doesn't reside there. It is argued

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that the family members of the petitioners are at risk of having to face

criminal prosecution at the hands of the respondent in case she is allowed to

reside in the said premises, as she would have every opportunity to raise

frivolous allegations against them. It is submitted that the brothers of the

respondent are practicing advocates at the district courts at Gurugram who

are harassing the petitioners herein and continuously threatening them. It is

argued that the petitioners herein would be ready to find alternate

accommodation for the respondent and make necessary payment for the

same. In this regard, reliance is placed on a judgment rendered in Ravneet

Kaur Versus Prithpal Singh Dhingra 2022 (2) CivCC 186, where the

Delhi High Court allowed alternate accommodation.

4. Per contra, Mr. Bhupinder Ghai, learned counsel appearing on

behalf of the respondent would argue that there is no infirmity in the interim

order as passed by Additional Session Judge, Gurugram. Great emphasis has

been laid upon the very maintainability of these proceedings considering the

fact that the petitioners had in fact already approached this court

challenging order dated 16.12.2019 of the Additional Session Judge

allowing the right of maintenance/residence to the respondent by instituting

CRM-M-No 55374 of 2019, which petition was dismissed as withdrawn

with liberty to challenge the subsequent orders passed. The aforesaid

petition was dismissed on 07.01.2020 and on change of counsel another

petition came to be filed, that is CRM-M-2787 of 2020, which was also

dismissed on 4.2.2020 as there was concealment of filing the earlier

petition. It is argued that pursuant to the order dated 16.12.2019, the

respondent and her two daughters are already in possession of the first floor,

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while submitting that there is adequate evidence available to the effect that

the petitioners themselves are residing elsewhere and using the ground floor

for commercial purpose. In this regard, the respondent has sought to place

reliance on the photographs, already taken on record.

5. Heard the counsel for the parties and with their assistance have

gone through the pleadings of the case and the case law cited.

6. Learned counsel for the petitioners has argued that the

impugned order dated 16.12.2019, which allows the right of residence to the

respondent, cannot be sustained in the light of the fact that it is not a 'shared

residence'. The house in question belongs to the mother-in-law and,

therefore, the ratio as settled in S.R. Batra's case (supra) would be

applicable. However, this argument is not sustainable in the light of the

judgment rendered in Satish Chander Ahuja versus Neha Ahuja (2020) 4

RCR(Criminal) 745, which went into the question whether the judgment

rendered in S.R. Batra (Supra) had correctly interpreted the provisions of

Sections 2 (s) of the Act of 2005 and whether it lays down the correct law?

The Supreme Court, while interpreting Section 2 (s) of the Act of 2005,

which defines 'shared household', has held that the interpretation given by

the court in S.R Batra's case (Supra) is not the correct interpretation and

the said judgment has not laid down the correct law.

7. The question, whether this petition seeking to challenge the

interim order dated 16.12.2019 passed by the Additional Sessions Judge,

Gurugram, allowing the right of residence to the respondent is maintainable,

will have to be answered in the negative. At the first instance, the order

dated 16.12.2019 was challenged by way of filing CRM-M-No 55374 of

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2019, but the same was withdrawn by the counsel on 7.2.2020 since the

possession had already been handed over to the respondent. Reference may

be made to the interim order dated 23.12.2019 passed in the said CRM-M-

No.55374 of 2019, which took note of the contention of the counsel for the

respondent. Part of the order is reproduced as under:

"Mr. Bhupinder Ghai, Advocate, who appears on behalf of respondent No.1, at his own, submits that subsequent to passing of the impugned order dated 16.12.2019, another order has been passed on 20.12.2019 and thereafter, possession has already been handed over on 21.12.2019."

The matter was adjourned to 7.1.2020 on which date counsel for the

petitioners sought to withdraw the petition. Order dated 7.1.2020 reads as

under: -

"Learned counsel for petitioners herein seeks permission to withdraw the instant petition with liberty to file a fresh one by challenging the subsequent order passed in the meanwhile. Dismissed as withdrawn with the aforesaid liberty."

Thereafter, the petitioners approached this court again and filed CRM-M-

No. 2787 of 2020 challenging order dated 16.12.2019. This petition was

opposed by the counsel for the respondent by contending that there was

concealment of fact as it had not disclosed regarding the withdrawal of

CRM-M-No. 55374 of 2019. In view of the above statement, on 4.2.2020

this court passed the following order:-

"The main petition fixed for 01.04.2020, has been taken up for hearing today on an application (CRM-4379-2020) being filed by the respondent.

The instant petition has been filed seeking to quash the order

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dated 16.12.2019 passed by Addl. Sessions Judge, Gurugram whereby the order of JMIC, Gurugram dated 01.11.2019 has been set aside.

It has been brought to the notice of the Court by the respondent that there has been concealment on the part of the petitioners herein that the petitioners had already challenged the impugned order dated 16.12.2019 in CRM-M-55374-2019 before this Court and also without disclosing that the respondent-mother of the two minor daughters has already been put in possession of the 1st floor of the shared household, they preferred this second petition.

Faced with this, learned counsel for the petitioners herein, without submitting any argument, seeks to withdraw the instant petition with liberty to challenge the fresh orders which have been passed subsequently. He fairly submits at the bar that he had no idea of the earlier petitions that had been preferred by the petitioners herein.

In view of that, the instant petition is dismissed as withdrawn with the aforesaid liberty.

However, the act and conduct of the petitioners is deprecated as they should have been fair to both, the counsel who has filed the petition and should have brought it to his knowledge that the earlier petition had been got dismissed, as well as to this Court. Keeping in view the conduct of the petitioners, a cost of Rs.30000/- is imposed upon them and the same would be handed over to the respondent. In case the petitioners herein propose to file a fresh petition, for which liberty has been sought, they are required to annex a duly acknowledged receipt of Rs. 30,000/- from the respondent herein with the said petition."

A con-joint reading of orders passed on 7.1.2020 and 4.2.2020 would

clearly establish that the petitioners had sought to withdraw the petitions so

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filed and challenge the orders passed subsequent to the orders dated

16.12.2019. In other words, order dated 16.12.2019 had attained finality.

The petitioners have sought to reopen and re-agitate the interim order dated

16.12.2019 which had allowed the right of residence to the respondent.

Learned counsels had sought permission to challenge the subsequent orders

passed, that is order subsequent to order dated 16.12.2019. This is the third

attempt made by the petitioners to challenge the order dated 16.12.2019

allowing right of residence to the respondent, which cannot be permitted

under any circumstances. The petitioners had given up their right to do so

on the withdrawal of CRM-M-55374-2019, with liberty to challenge the

subsequent orders passed.

8. Once the interim order dated 16.12.2019 had attained finality, it

would be a natural consequence that the respondent is put in possession of

the said premises and therefore this court finds no infirmity in the orders

dated 20.12.2019 and 3.1.2020 passed by the executing court which are

under challenge before this court.

9. The matter is still subjudice before the trial court and evidence

has to be led (if not already done so) by the parties concerned regarding

whether or not the premises is a 'shared premises'. The parties would be at

liberty to raise any or all pleas at the relevant time as to whether the first

floor is being occupied or is under lock and key, whether the premises are

being occupied by the petitioners or not etc. etc. No opinion is being given

by this court on the issues raised. As regards the question of alternate

residence, since the order of 16.12.2019 has attained finality, this court is

not inclined to interfere in the possession already handed over.

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10. However, it would be expected of the court below to strike a

balance as has been held in the case of Satish Chander Ahuja (supra)

where it has been held that "Before we close our discussion on Section 2 (s),

we need to observe that the right to residence under Section 19 is not an

indefeasible right of residence in shared household especially when the

daughter-in-law is pitted against aged father-in-law and mother-in-law.

The senior citizens in the evening of their life are also entitled to live

peacefully not haunted by marital discord between their son and daughter-

in-law. While granting relief both in application under Section 12 of Act,

2005 or in any civil proceedings, the Court has to balance the rights of both

the parties."

11. Consequently, with the aforesaid observations, this petition is

dismissed.

July 8, 2022                                    (JAISHREE THAKUR)
prem                                                             JUDGE


Whether speaking/reasoned :             Yes
Whether Reportable :                    No




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