Saroj vs State Of Rajasthan
2022 Latest Caselaw 11545 Raj

                                       (1 of 8)                   [CRLR-1457/2019]


     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR

S.B. Criminal Revision Petition No. 1457/2019

Saroj W/o Lt. Sh. Suresh Hingorani, Aged About 41 Years, B/c Sindhi, R/o House No. 22, Pawan Vihar Yojna, Jodhpur.

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Lokesh Hingorani S/o Lt. Sh. Laxmandas, (Dever), B/c Sindhi, R/o 19/842, Chopasani Housing Board, Jodhpur.

3. Rakesh Hingorani S/o Lt. Sh. Laxmandas, (Dever), B/c Sindhi, R/o 19/842, Chopasani Housing Board, Jodhpur.

4. Smt. Kamla W/o Lt. Sh. Laxmandas, (Mother In Law), B/c Sindhi, R/o 19/842, Chopasani Housing Board, Jodhpur.

----Respondents Connected With S.B. Criminal Revision Petition No. 79/2019 Saroj W/o Lt. Sh. Suresh Higorani, Aged About 38 Years, B/c Sindhi, R/o H.no. 22, Pawan Vihar Yojna, Jodhpur.

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Lokesh Higorani S/o Lt. Sh. Laxmandas, (Devar), B/c Sindhi, R/o 19/842, Chopasani Housing Board, Jodhpur.

3. Rakesh Higorani S/o Lt. Sh. Laxmandas, (Devar), B/c Sindhi, R/o 19/842, Chopasani Housing Board, Jodhpur.

4. Smt. Kamla W/o Lt. Sh. Laxmandas, (Mother In Law), B/c Sindhi, R/o 19/842, Chopasani Housing Board, Jodhpur.

                                                                ----Respondents


For Petitioner(s)        :     Mr. H.M. Saraswat
For Respondent(s)        :     Mr. Mahipal Bishnoi PP
                               Mr. Neel Kamal Bohra

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

(2 of 8) [CRLR-1457/2019]

Reserved on 08/09/2022 Pronounced on 16/09/2022

1. These criminal revision petitions under Sections 397 & 401

Cr.P.C. have been preferred claiming the following reliefs:

Revision Petition No.1457/2019:

"vr% fuxjkuh ;kfpdk izLrqr dj fouez fuosnu gS fd izkFkhZuh dh fuxjkuh ;kfpdk Lohdkj QjekbZ tkdj vihyh; U;k;ky; }kjk ikfjr vkns'k fnukad 24-09-2019 ,oa fo}ku eftLVªsV }kjk ikfjr vkns'k fnukad 26-09- 2017 dks fujLr Qjek;k tkos rFkk izkFkhZuh }kjk pkgs x;s vuqrks"kksa dks Lohdkj Qjek;k tkosA vU; dksbZ mfpr vkns'k tks izkFkhZuh ds i{k esa gks ikfjr fd;k tkosA"

Revision Petition No.79/2019 "vr% fuxjkuh ;kfpdk izLrqr dj fouez fuosnu gS fd izkFkhZuh dh fuxjkuh ;kfpdk Lohdkj QjekbZ tkdj vihyh; U;k;ky; }kjk ikfjr vkns'k fnukad 01-11-2018 ,oa fo}ku eftLVªsV }kjk ikfjr vkns'k fnukad 17-09- 2016 dks fujLr Qjek;k tkos rFkk izkFkhZuh }kjk pkgs x;s vuqrks"kksa dks Lohdkj Qjek;k tkosA vU; dksbZ mfpr vkns'k tks izkFkhZuh ds i{k esa gks ikfjr fd;k tkosA"

2. The cause of dispute between the parties, as revealed from

the record, including the impugned orders passed by the learned

courts below, is a residential house (House No.22, Pawan Vihar

Scheme, Jodhpur).

3. Revision Petition No.1457/2019 has been preferred by the

petitioner against the judgment dated 24.09.2019 passed by the

learned appellate court, upholding the order dated 26.09.2017

passed by the learned trial court, whereby the application

preferred by the petitioner for delivery possession of the house in

question was rejected.

4. Revision Petition No.79/2019 has been preferred by the

petitioner against the judgment dated 01.11.2018 passed by the

learned appellate court, upholding the order dated 17.09.2016

(3 of 8) [CRLR-1457/2019]

passed by the learned trial court, whereby the application

preferred by the petitioner under Section 23 of the Protection of

Women from Domestic Violence Act, 2005 was rejected.

5. Brief facts of this case, as placed before this Court, by

learned counsel appearing on behalf of the petitioner, are that the

petitioner's marriage was solemnized with one Suresh Higorani

(since deceased), as per Hindu rituals, on 29.06.2001. Out of the

said wedlock, a son, namely, Mohit, was born. The private

respondents are the brothers-in-law and mother-in-law,

respectively, of the present petitioner.

5.1 As the pleaded facts would reveal, the present petitioner,

immediately after hear marriage, was subjected to physical and

mental cruelty at the hands of her husband and his family

members, including the private respondents herein, at her

matrimonial home.

5.2 Owing to the said continuous and ever increasing cruelty, the

petitioner and her husband (since deceased) submitted an

application seeking mutual divorce before the concerned Family

Court; but unfortunately, on the date fixed before that Court itself,

the petitioner's husband committed suicide, as a consequence

whereof, the mutual divorce application was rejected by the

concerned court.

6. Learned counsel for the petitioner submitted that during the

lifetime of her husband (Late Suresh), the petitioner purchased a

plot in the Pavan Vihar Scheme, for which she has obtained a loan

from the IDBI Bank; at that time, under the persuasion of her

Late husband, she appointed Lokesh Hingorani (private

respondent No.2 herein), the brother-in-law of the petitioner, as

Special Power of Attorney (Khaas Mukhthyaarnama), so as to

(4 of 8) [CRLR-1457/2019]

enable the private respondent No.2 to look after the day-to-day

affairs in relation to construction of the house in question over the

aforementioned plot.

6.1 Learned counsel further submitted that looking into the

cruelty of her in-laws, she tried her level best to get the

aforementioned power of attorney cancelled, as a counterblast

thereof, the private respondent no.2 herein filed a false complaint

against the petitioner; not only this, the private respondents have

exerted immense pressure upon the petitioner so as to enable

them to get the unauthorized possession of the house in question.

6.2 Learned counsel also submitted that since the proceedings

pursuant to filing of the mutual divorce petition could not

culminate into finality, on count of her husband's death (by

suicide), therefore, she remained a legally wedded wife of her late

husband; her household article are still being kept in the house of

her late husband at Housing Board.

6.3 Learned counsel further submitted that the house in question

is the self acquired property of the petitioner, but still, the private

respondents are bent upon to deprive the petitioner of her

legitimate civil and ownership rights over the property in question;

her minor son Mohit is also in the custody of the private

respondents, and the petitioner, was not even permitted to meet

her son.

6.4 Learned counsel thus submitted that the learned courts

below have passed the impugned orders without taking into due

consideration the overall facts and circumstances of the case and

without duly appreciating the evidence placed on record; thus, the

impugned orders passed in both the instant petitions deserve to

be quashed and set aside.

(5 of 8) [CRLR-1457/2019]

7. On the other hand, learned Public Prosecutor as well as

learned counsel for the private respondents herein opposed the

aforesaid submissions made on behalf of the petitioner.

8. Learned counsel for the private respondents submitted that

the petitioner has pleaded false facts before the learned courts

below.

8.1 Learned counsel further submitted that the petitioner and

her husband (since deceased) had already taken divorce as per

the rituals prevalent in their community, but the divorce decree by

the competent court could not be obtained, on count of death of

her husband. Thus, as per learned counsel, once the divorce had

happened, as per the settled customs and usage of the

community, then the mere factum of absence of divorce decree

could not sustain the plea of the petitioner regarding subsistence

of her marriage with Late Suresh. Moreover, as per learned

counsel, the petitioner, after divorce as per community customs,

left her matrimonial home and was residing at her parents house,

while her son, Mohit, was residing with the private respondents

herein.

8.2 Learned counsel, while denying the averments and

submissions made on behalf of the petitioner, more particularly,

regarding her ownership over the house in question, submitted

that during the lifetime of the petitioner's husband, the house in

question was sold to the private respondents by the petitioner and

her late husband, followed by execution of the power of attorney

(registered) and Will document in their (private respondent's)

favour; since then, the private respondents, being lawful owner,

are in physical possession of the house in question.

(6 of 8) [CRLR-1457/2019]

8.3 As per learned counsel, even after sale of the disputed

property, the same was mortgaged by the petitioner with the Bank

and a loan was taken by her; the instalments towards such loan

are being continuously and regularly, paid by the private

respondents; the expenditure towards work of furniture, marble

electricity, water etc. in the house in question was being incurred

by the private respondents.

8.4 Learned counsel also submitted that during the lifetime of

her husband, the petitioner was having extra-marital affair with

some other man, and both of them, were giving continuous

threats to the petitioner's late husband, as a consequence

whereof, her husband, on the date fixed before the concerned

Family Court, committed suicide, and thus, the application for

mutual divorce could not culminate into divorce decree.

8.5 Learned counsel further submitted that the son of the

petitioner lived with her for a period of four years; the education

and welfare of the child is very well taken care of by the private

respondents; even the child is very happy to live with them.

8.6 Learned counsel also submitted that the petitioner, while

launching the proceedings under the provisions of the Domestic

Violence Act and other laws, is bent upon to take possession of

the house in question, by seeking to falsely implicate and entangle

the private respondents; whereas, in relation to possession and

ownership of the house in question, there is a remedy available

under the civil law, which can be resorted to by the petitioner; but

the petitioner, by seeking to launch criminal and other proceedings

against the private respondents, clearly wishes to cause

unwarranted harassment to her in-laws, including the private

respondents herein.

(7 of 8) [CRLR-1457/2019]

8.7 Learned counsel thus submitted that it is clear from the

aforementioned backdrop and the well reasoned speaking

impugned orders concurrently passed by the learned courts below

that the petitioner has not approached the courts of law, including

this Hon'ble Court, with clean hands, while making incorrect

averments and levelling false allegations against the private

respondents. Thus, as per learned counsel, the impugned orders

were concurrently passed by the learned courts below do not

warrant any interference by this Court.

9. Heard learned counsel for the parties as well as perused the

record of the case.

10. This Court observes that while affirming the impugned order

of rejection of the application preferred by the petitioner under

Section 23 of the Domestic Violence Act, the learned revisional

court concluded that in the said application, there is no specific

mention as to which of the private respondents, on what date, at

what time, subjected the petitioner to domestic violence; nor any

affidavit etc. has been placed on record by the petitioner to

substantiate such allegation. In absence of such specific mention,

the learned court below has rightly passed the said impugned

order.

11. As regards the contention of the petitioner to the effect that

the private respondent are not letting the petitioner to meet her

son, Mohit, the record reveals that in the statement under Section

161 Cr.P.C., her son clearly stated against her mother (the present

petitioner), while clearly mentioning in particular, that the present

petitioner used to torture his late father (husband of the

petitioner).

(8 of 8) [CRLR-1457/2019]

12. Thus, now the bone of contention remains the delivery of

possession and peaceful enjoyment of the house in question by

the present petitioner.

12.1 This Court also observes, as rightly noticed by the learned

revisional court, that the documents, namely, Power of Attorney, is

a subject matter of evidence, and no conclusion in regard thereto

can be drawn at the preliminary stage of the case.

12.2 Further, at the preliminary stage, no conclusion can be drawn

also in respect of ownership of the petitioner over the house in

question, that too, in absence of any document on record, to

substantiate the claim of ownership by the petitioner.

12.3 This Court also observes that the learned court below has

rightly concluded that despite all above, it is always open for the

petitioner to get her civil rights in respect of the house in question

adjudicated by the concerned civil court.

13. In light of the aforesaid observations, this Court does not

find any legal infirmity in the impugned orders, consecutively and

concurrently, passed by the learned courts below, so as to warrant

any interference therein.

14. Consequently, the present petitions being devoid of any

merit, are hereby dismissed. All pending applications stand

disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

SKant/-

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