Wife challenged dismissal of her application under the PWDV Act seeking restraint on husband's possession during final decree proceedings in a partition suit. The High Court held the decree had attained finality and the Executing Court cannot go beyond it; no DV reliefs could be granted at that stage.
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NC: 2024:KHC:33993 WP No. 20067 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 20067 OF 2023 (GM-FC)
BETWEEN:
SMT. GAJALAKSHMI W/O MR. GIRIGOWDA, AGED ABOUT 61 YEARS, R/AT NO.5296, 10TH CROSS, 3RD MAIN, VIJAYANAGAR 2ND STAGE, MYSURU, KARNATAKA.
…PETITIONER
(BY SRI. RANGARAMU V., ADVOCATE)
AND:
SRI. T. GIRIGOWDA S/O LATE. THIMMEGOWDA, Digitally AGED ABOUT 66 YEARS, signed by SUVARNA T R/AT NO.C/9, Location: POOJA NILAYA, SECOND CROSS, HIGH KUMBARAKOPPALU, COURT OF MAHADESWARA TEMPLE ROAD, KARNATAKA MYSURU-570 017.
…RESPONDENT
(BY SRI. SURENDRA KUMAR N., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO i) QUASH OR MODIFY THE IMPUGNED ORDER PASSED ON IA NO. 06/ 2022 IN FDP
NC: 2024:KHC:33993 WP No. 20067 of 2023
NO. 01/2019, DATED 04/11/2022, PASSED BY THE HONBLE COURT OF FIRST ADDL PRL. JUDGE, FAMILY COURT AT MYSURU A COPY AT ANNEXURE-A AND B AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the orders passed by the trial Court on I.A.No.6/2022 in F.D.P.No.1/2019 dated 04.11.2022 by the I Addl. Prl. Judge, Family Court at Mysuru, the wife who is the respondent therein, is before this Court.
Thereafter, Final Decree Proceedings were initiated and the final decree was drawn on 04.11.2022. Now it is the grievance of the wife that she has come up with an IA No.6 under Sections 17, 19(1)(a) and (c) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'PWDV Act' for short) r/w. Section 151 of CPC and Section 26 of the Protection of Women from Domestic Violence Act, 2005. It is stated that the wife along with the daughter are residing in the said suit schedule property, where half of the share is granted to
the husband and there shall be a direction to the husband not to disturb the possession of the wife and the daughter from the said premises or from interfering with the wife's and daughter's peaceful possession and enjoyment of the property. The Trial Court, by order impugned, had dismissed the application by order dated 04.11.2022. While dismissing the application, the Court had observed
that in O.S.No.57/2018, the Court had considered and overruled defense raised by the wife and decreed the suit. Further, under the PWDV Act, the wife has filed Crl.Misc.
NC: 2024:KHC:33993 WP No. 20067 of 2023
No.950/2020 before the 5th J.M.F.C. Mysuru and the said case is still pending and an order copy is produced by the husband passed by the 5th J.M.F.C. Mysuru in Crl.Misc. No.950/2020 dated 01.07.2022, whereby an attempt is made to amend the petition in Criminal Miscellaneous by seeking the identical restrain order against the husband. The learned judge, by order dated 01.07.2022, had dismissed the said application and the said order is not challenged by the wife. The Court further observed that the Act permits the aggrieved person to seek the relief under Sections 18, 19, 20, 21 and 22 of the Act along with the other reliefs in the pending legal proceedings, but, in the present case, the Criminal Misc.No.950/2020 filed by the wife is still pending. The grounds urged by the wife in IA No.6 have been already considered by the trial Court as well as by the Executive Court and the 5th J.M.F.C. Court under the relevant provisions of law and at this stage, the wife is not entitled for the relief claimed under IA No.6. Moreover, the present petition has been filed to draw a final degree merely because the respondent and the
daughter has right in the said household. The final degree cannot be denied to the husband because there is ample opportunity to the respondent to workout the remedies available in execution proceedings. Accordingly, the Court had dismissed the application and further Schedule 'A' property shown in Commissioner's report is allotted to the share of the husband and Schedule 'B' property shown in the Commissioner's report is allotted to the share of the defendant. If any of the parties are willing to sell their share, then they are at liberty to sell the same to the opposite party to the price/value estimated by Respondent No.2-Commissioner in the valuation report. It is also observed that the husband is entitled to take possession of his share allotted therein above through the process of the Court. Aggrieved thereby, the wife is before this Court. It is submitted that under the Domestic Violence Act, she has every right to retain her possession and the trial Court without considering all these aspects and without giving any finding on that, had dismissed the application. It is stated that in fact the said land is purchased by the father
of the wife and on that, the husband and the wife had constructed the house and the wife and the daughter alone can enjoy the said property. It is submitted that in view of the allegations made by the wife in the Domestic Violence case, the Court is empowered to pass such orders restraining the husband from occupying the property. He submits that all these aspects were not considered by the Executive Court.
NC: 2024:KHC:33993 WP No. 20067 of 2023
dispute about the fact that a suit is filed by the husband seeking partition. A decree is passed granting equal share to the wife and the husband and that decree and judgment passed by the Court, had attained finality and the Final Decree is passed, it is registered and at the time of allotment of the shares, the Commissioner's report is also placed on record. At that point of time, this application is filed seeking protection under the Domestic Violence Act and that the husband should not be given possession of the property. The arguments that are advanced by the learned counsel for the wife, this court is not able to appreciate the reliefs that can be sought under the Domestic Violence Act. Already a petition is pending before
the Court and it appears from the record that when a similar application is filed, it is already dismissed by the trial Court. That apart, a judgment and decree is passed by the Court and the same has attained finality. At the stage of execution, the Executing Court cannot go beyond the decree and consider these aspects. If the petitioner wants to agitate these issues, it has to be before the
NC: 2024:KHC:33993 WP No. 20067 of 2023
Competent Court and in the considered opinion of this Court, the Executive Court had rightly dealt with the issue
and this Court finds no reasons to interfere with the order impugned.
Accordingly, the Writ Petition is dismissed .
SD/- (LALITHA KANNEGANTI) JUDGE
KA List No.: 1 Sl No.: 11 CT:SNN
1 issue framed by the court
Whether a wife could seek protection under the PWDV Act restraining the husband's possession at the final decree stage in partition proceedings.
4 provisions across 3 enactments
Smt. Gajalakshmi
Sri. T. Girigowda
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
