Allowed

Jagdish Sharma @ Dhanpat Sharma v. Smt. Urmila Sharma

Chhattisgarh HC7 Aug 2023CRR/512/2020

Case brief

AI extract

What is this about?

High Court affirmed residential order for daughter-in-law under DV Act despite her separation, ruling residence right exists based on prior cohabitation and violence. Court ordered appellant to provide two rooms or pay Rs.5,000 monthly rent.

What did the court decide?

Appellant directed to make available two rooms for respondent's residence within 30 days or pay Rs.5,000 monthly rent to her from the date of the order.

Jagdish Sharma @ Dhanpat Sharma Vs Smt. Urmila… — Matrimonial and Divorce | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Revision No.512 of 2020

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Order Reserved on : 20.7. 2023

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Order Passed on : 7.8.2023

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Jagdish Sharma @ Dhanpat Sharma, son of Rampat Sharma, aged about 76 years, R/o Fazal Bada, Bilaspur, Police Station Kotwali, Tahsil and District Bilaspur, Chhattisgarh

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---- Applicant

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versus

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Smt. Urmila Sharma, wife of Rajendra Sharma, aged about 45 years, R/o Behind City Hospital, Gandhi Chowk, Bilaspur, Tahsil and District Bilaspur, Chhattisgarh, at present R/o Dayalband, Nariyal Kothi, Bilaspur, Police Station City Kotwali, Tahsil and District Bilaspur, Chhattisgarh

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Smt. Shanti Sharma, wife of Jagdish Sharma, aged about 70 years ----- Died, Her name is deleted vide order dated 23.8.2022

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Rukmani Sharma, son of Jagdish Sharma, aged about 41 years,

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Shailendra Sharma, son of Jagdish Sharma, aged about 44 years,

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Narendra Sharma, son of Jagdish Sharma, aged about 48 years, No.2 to 5 R/o Fazal Bada, Bilaspur, Police Station Kotwali, Tahsil and District Bilaspur, Chhattisgarh

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Saroj Sharma, wife of Prakash Sharma, aged about 46 years, R/o Shahdol, Madhya Pradesh

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--- Respondents

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------------------------------------ Applicant with	---------- :	------------------------------------------------- Shri T.K. Jha, Advocate
Respondent No.1 with	:	Ms. Ranjana Jaiswal, Advocate
For other Respondents ------------------------------------	: ----------	None -------------------------------------------------

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Hon'ble Shri Justice Arvind Singh Chandel

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C.A.V. Order

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The instant revision has been preferred by Applicant Jagdish Sharma @ Dhanpat Sharma against order dated 18.3.2020

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passed by the Sessions Judge, Bilaspur in Criminal Appeal No.3 of 2020 arising out of the judgment dated 6.12.2019 passed by the Judicial Magistrate First Class, Bilaspur in M.J.C. Case No.128 of 2015, whereby the Judicial Magistrate, while allowing the application/complaint filed by Respondent 1 Urmila Sharma under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (henceforth ‘the DV Act’), passed a residence order under Section 19 of the DV Act, which has also been affirmed by the Sessions Judge vide the impugned order.

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Facts of the case, in short, are that Applicant Jagdish Sharma is father-in-law of Respondent 1 Urmila Sharma. Respondents 3, 4 and 5 are sons of Jagdish Sharma and Respondent 6 is sister-in-law of Urmila Sharma. Marriage between Urmila Sharma and Rajendra Sharma was solemnised on 16.2.1997 and out of their wedlock two children took birth. An application under Section 12 of the DV Act was preferred by Urmila Sharma inter alia on the ground that one month after the marriage Applicant Jagdish Sharma and other Respondents started harassing and torturing her mentally. In the year 2003, after the delivery of her child, when this harassment and torture increased, she left her matrimonial house and went to her maternal house situated at Jabalpur (Madhya Pradesh). A settlement took place and, therefore, she again came back to

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her matrimonial house. In the year 2006, she was expelled out of the matrimonial house along with her husband and children deceitfully and they were prevented to return to the shared household. Since her husband was doing a private job and she was also working in a beauty parlour but their income was not so sufficient that they could afford a rental accommodation, in the month of June, 2015 when she and her husband went to live in their shared household, they were stopped to enter, they were beaten and were made to return. Thereby, Applicant Jagdish Sharma committed domestic violence. Therefore, she filed a complaint under Section 12 of the DV Act seeking relief under Sections 18, 19, 20 and 22 of the DV Act. In their reply, Applicant Jagdish Sharma and rest of the Respondents herein pleaded that for the last 15 years they are residing in a house situated behind the City Dispensary, Gandhi Chowk. It was further pleaded that Urmila Sharma lived at Bhilai for about 4 years and at Bilaspur for about 3 years along with all the family members. She herself committed quarrels with the family members and left the matrimonial house and in June, 2015, she along with her husband deliberately tried to enter her matrimonial house. When they could not succeed in entering the matrimonial house then the false and fabricated complaint under Section 12 of the DV Act was filed by her.

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After recording evidence and hearing the parties, the Judicial Magistrate First Class, vide his order dated 6.12.2019, allowed the application under Section 12 of the DV Act and passed the order of residence under Section 19 of the DV Act and directed Applicant Jagdish Sharma to give two rooms of his house situated behind the City Dispensary, Gandhi Chowk for the purpose of residence of Respondent 1 Urmila Sharma and her family. It was further directed that Jagdish Sharma shall remain restrained from disturbing the peaceful possession of Urmila Sharma over the part of his house where she along with her family will reside. Against the said order of the Judicial Magistrate, an appeal was moved by Applicant Jagdish Sharma under Section 29 of the DV Act, which has been dismissed by the Sessions Judge vide the impugned order dated 18.3.2020. Hence, the instant revision by Jagdish Sharma.

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Learned Counsel appearing for the Applicant submitted that the impugned order dated 18.3.2020 passed by the Sessions Judge suffers from perversity and illegality and, therefore, it is not sustainable. Both the Courts below also ignored the fact that Respondent 1 Urmila Sharma had voluntarily left her matrimonial house and started to live separately from the year 2006. Since she was residing separately from the year 2006, she is not entitled to get any part of the shared household for

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her residence. It was further argued that from the year 2006 Respondent 1 Urmila Sharma is residing separately and since then no domestic relationship between both the parties is left. On this ground also, she is not entitled for an order of residence in the shared household. Reliance was placed on a judgment of the Learned Single Bench of the Madhya Pradesh High Court passed in M.Cr.C. No.5644 of 2016 (Kuldeep Singh v. Rekha) .

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Learned Counsel appearing for Respondent 1 opposed the above arguments raised on behalf of the Applicant and submitted that concurrent finding of both the Courts below is in favour of Respondent 1 Urmila Sharma. There is no perversity or illegality in the impugned order passed by the Sessions Judge. It was further argued that from the admission made by Applicant Jagdish Sharma in his written statement it is clear that Respondent 1 Urmila Sharma resided with Applicant Jagdish Sharma in the shared household for three years and it is also established from the evidence on record that in the year 2015 a domestic violence was done with Urmila Sharma. Therefore, the Judicial Magistrate First Class has rightly passed the order of residence in favour of Urmila Sharma and that has rightly been upheld by the Appellate Court. Reliance was placed on a judgment passed by the Supreme Court on 12.5.2022 in Criminal Appeal No.511

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of 2022 (Prabha Tyagi v. Kamlesh Devi) and on (2021) 2 SCC 324 (Rajnesh v. Neha) .

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I have heard the rival contentions put-forth on behalf of the parties and perused the entire material available on record with due care.

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It would be appropriate to refer to some of the relevant provisions of the DV Act as under:

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“ 2. Definitions.— In this Act, unless the context otherwise requires,—

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xxxxx xxxxx xxxxx

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(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

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(s) “shared household” means a household where the person aggrieved lives or at any stage 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, title or interest in the shared household.

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Definition of domestic violence.— For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

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(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

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(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

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(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

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(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. xxxxx xxxxx xxxxx

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Residence orders.— (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—

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(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

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(b) directing the respondent to remove himself from the shared household;

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(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

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(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

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(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

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(f) 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 circumstances so require:

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Provided that no order under clause (b) shall be passed against any person who is a woman.

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xxxxx xxxxx xxxxx”

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From the pleadings and evidence available on record, it is well established that Respondent 1 Urmila Sharma is daughter-inlaw of Applicant Jagdish Sharma. It is also established that from the year 2006, Urmila Sharma is residing separately with her family and is not residing in the shared household. From the material available on record, it is also established that there is a house available with Applicant Jagdish Sharma situated behind the City Dispensary at Gandhi Chowk and that is an ancestral property. From the admission made by Applicant Jagdish Sharma, it also reveals that in the ground floor of that ancestral house/shared household Jagdish Sharma lives with his family and on the first floor three rooms and one hall are available which are given to child tenants as a hostel on rent. From the admission made by Jagdish Sharma, it is also established that Urmila Sharma lived at Bhilai with Jagdish Sharma and other family members for about four years. Thereafter, she also lived with them at Bilaspur for about three years. Thus, it is clear that Urmila

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Sharma has already lived with Jagdish Sharma in the shared household in a domestic relationship for about three years.

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From the statement of Urmila Sharma and the documents available on record, it is also clear that in the month of June, 2015, when Urmila Sharma went to Jagdish Sharma for demanding a residence in the shared household (the ancestral property of her husband) then she was subjected to domestic violence by Jagdish Sharma and his other family members. The finding recorded by the Courts below in this regard is in accordance with the evidence available on record.

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Dealing with the issue, the Supreme Court in Rajnesh (supra) observed and held as under:

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“ 87. Section 17 of the DV Act grants an aggrieved woman the right to live in the “shared household”. Section 2(s) defines “shared household” to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.

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The right of a woman to reside in a “shared household” defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, held that “shared household” referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared

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household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a “shared household”. It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a “shared household”. Section 2(s) read with Sections 17 and 19 of the DV Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly.

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Section 19(1)(f) of the DV Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.”

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In Prabha (supra), while answering the question whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed, the Supreme Court held as under:

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“ 52. ….. It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-a-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a

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domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.”

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In the light of above mentioned judgments of the Supreme Court, on examination of the material available on record in the instant case, it is quite vivid that though Respondent 1 Urmila Sharma was not residing in the shared household at the time of filing of her complaint under Section 12 of the DV Act, as admitted by Applicant Jagdish Sharma she lived in the shared household for about three years at some point of time earlier. From the evidence available on record, it is also vivid that in the year 2015 during domestic relationship between the Applicant and Respondent 1 she was subjected to domestic violence. Therefore, considering the entire evidence available on record, both the Courts below have rightly held that Respondent 1 is entitled to get the order of residence under Section 19 of the DV Act. Thus, I affirm the finding recorded by both the Courts below in this regard.

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From the material available on record, it also appears that no cordial relationship exists between the Applicant and Respondent 1. The Applicant is a senior citizen aged more than 70 years. It also appears that while living the parties

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together there can be possibility of quarrels taking place between them. It is also clear that a hostel is being run on the first floor of the shared household. Looking to the entire circumstances as mentioned above, as contained in Section 19(1)(f) of the DV Act, Applicant Jagdish Sharma can be directed to pay a fixed amount as rent to Respondent 1 Urmila Sharma for her residence. Further, before the Appellate Court Jagdish Sharma had agreed to pay a monthly sum of Rs.5,000 as rent to Urmila Sharma. Therefore, in view of the above, it is directed that as ordered by both the Courts below, Applicant Jagdish Sharma shall either make available two rooms in the shared household to Respondent 1 Urmila Sharma for her residence with her family or he shall pay a fixed sum of Rs.5,000 per month as rent to her. If Jagdish Sharma chooses to give two rooms in the shared household to Urmila Sharma, it will be done within 30 days from the receipt of this order, otherwise, as directed above, he shall pay her the fixed monthly sum of Rs.5,000 with effect from today.

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In the result, the revision is disposed of with the aforesaid directions.

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Sd/( Arvind Singh Chandel ) JUDGE

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Gopal

Jagdish Sharma @ Dhanpat Sharma v. Smt. Urmila Sharma

Case brief

What is this about?

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Jagdish Sharma @ Dhanpat Sharma v. Smt. Urmila Sharma

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