Vicky Manoj Shah v. Kanal Vicky Shah

1. Heard Ms. Sana Khan, learned Counsel appearing for the Petitioner-Husband, Ms. Pooja Jalan, learned Counsel appearing for the Respondent No.1-Wife and Ms. Shilpa Talhar, learned APP appearing for the Respondent No.2-State.

2. By the present Writ Petition filed under Article 227 of the Constitution of India, the challenge is to the order dated 24th October 2024 passed by the learned Principal Judge, Family Court, Mumbai below Exhibit-7 in Petition No. Criminal M.A.-23 of 2024. By the impugned order, the present Petitioner-Husband and his family members are restrained from causing any act amounting to domestic violence towards the Respondent-Wife and minor daughter and the present Petitioner-Husband has been directed to shift to alternate accommodation till disposal of the main application. The said order is passed under the provisions of Section 18 and Section 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005 (“the D.V. Act”).

3. It is the main contention of Ms. Sana Khan, learned Counsel appearing for the Petitioner-Husband that the marriage between the parties was solemnized on 25th January 2003. The flat in question has been purchased by registered Sale Deed dated 29th April 2003 and since then the Petitioner-Husband is staying along with the Respondent-Wife in the said flat. It is her further contention that in fact, there is no domestic violence and the Petitioner-Husband is subjected to abuse at the instance of the Respondent-Wife. To substantiate the said contention, she submitted that she has evidence in the nature of videos and transcripts. She therefore, submitted that it is share household even of the Petitioner-Husband and therefore, the impugned order be quashed and set aside.

4. On the other hand, it is the submission of Ms. Pooja Jalan, learned Counsel appearing for the Respondent-Wife that definition of “shared household” as contemplated under Section 2(s) means a household where the person aggrieved lives. She also pointed out the definition of “aggrieved person” as defined under Section 2(a) of the D.V. Act and submitted that the Petitioner cannot be the aggrieved person and therefore, he cannot be covered by the definition of “shared household” as contemplated under Section 2(s)of the D.V. Act. She further submitted that in fact, there is no material on record to show that the Respondent-Wife has been subjected to domestic violence and therefore, the impugned order has been passed correctly. She submitted that the said flat has been purchased by the Respondent No.1 and her mother and therefore, the Petitioner has no right, title and interest with respect to the said flat.

5. Perusal of the record shows that the learned Principal Judge, Family Court, Mumbai has considered the material on record regarding physical and verbal abuse caused by the Petitioner- Husband. Learned Judge, Family Court recorded prima facie finding that the Respondent-Wife has been subjected to domestic violence.

6. As far as the contention that it is shared household of the Petitioner and therefore, the Petitioner cannot be directed to shift to alternate accommodation, it is necessary to note the relevant provisions of the D.V. Act. i. Section 2(a) of the D.V. Act defines “aggrieved person” as follows:

Thus, it is clear that the “aggrieved person” means any woman who is, or has been, in a domestic relationship with the Respondent. ii. Domestic relationship is defined under Section 2(f) as follows: (f) “domestic relationship” means a relationship between two person; who live or have, at any point of time, lived together in a shared household, in the nature of marriage, adoption or are family members living together as a joint family;” iii. The “shared household” is defined under Section 2(s) as follows: (s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith 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.” Thus a combined reading of all these definitions clearly show that “aggrieved person” means any woman. Thus, by no stretch of imagination the Petitioner who is husband can fall under the definition of “aggrieved person” under the provisions of the D.V. Act.

7. Thus, it is clear that the “aggrieved person” as contemplated under the D.V. Act is a woman who is in domestic relationship with the Respondent and subjected to domestic violence by the Respondent. The definition of “shared household” is required to be understood in the context of the definition of the “aggrieved person”.

8. It is also relevant to note that a person who can apply to the Magistrate seeking one or more reliefs under the D.V. Act is “aggrieved person” as specified in Section 12 of the D.V. Act, the relevant part of which reads as under: “12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present any application to the Magistrate seeking one or more reliefs under this Act…..” Thus, it is clear that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person can apply to the Magistrate under the provisions of the D.V. Act. Thus, it is very clear that only woman can be the aggrieved person as more particularly contemplated under Section 2(a) of the D.V. Act and such woman or on her behalf only application can be filed before the Magistrate under Section 12 of the D.V. Act.

9. Ms. Sana Khan, learned Counsel has relied on the decision of a learned Single Judge in the case of Ishpal Singh Kahai vs. Mrs. and more particularly, on paragraph No.13 of the same. It is her contention that right has been given to both the spouses to enter into and occupy the matrimonial home and in certain cases to have the other spouses right to live there terminated despite the fact that she/he did own, fully or partly, the matrimonial home. It is her submission that therefore, right is available irrespective of the title of the house. She submitted that admittedly, the Petitioner is staying with the Respondent in the said matrimonial house since last 23 years and therefore, the impugned order is perverse. 1 2011 (3) Mh.L.J. 849

10. In the said case of Ishpal Singh (supra), the Petitioner/husband has challenged the order of the learned Judge, Family Court, Mumbai, directing him to remove himself from the residential flat in which he resides and from creating nuisance by attempting to enter in the suit flat until the hearing and final disposal of the Petition. While dismissing the said Writ Petition, the said observations are made by the learned Single Judge in the context of the submission made on behalf of the husband that the wife is not the full and complete owner of the flat in which he also resides and hence could not be granted the relief of injunction against him. The entire case of the husband is based upon ownership rights. In view of the above background of the factual position in Ishpal Singh (supra), it is very important to note the observations in paragraph No.29 of the said decision, which reads as under: