second wife claim shared household, no case made out

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.04.2012

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.No.9665 of 2012

Rehana .. Petitioner

Vs.

1.Protection Officer,

(Protection of Women from

Domestic Violence Act, 2008)

Kancheepuram District,

Kancheepuram.

2.A.Malika Begum .. Respondent

This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records in CMP No.118 of 2009 on the file of the Judicial Magistrate, Tambaram and quash the “residence order” made therein on 14.7.2009 and directing the first respondent to remove the second respondent from the “shared household” i.e. No.7, First Cross Street, 2nd Main Road, Lakshmipuram Extension-II, West Tambaram, Chennai-600 045. For Petitioner : Mr.O.R.Abul Kalaam

– – – –

ORDER

The petitioner is the second wife of one Mohammed Aslam. The second respondent is the first wife of the said Mohammed Aslam. In this writ petition, the petitioner has come forward to challenge an order passed by the learned Judicial Magistrate, Tambaram in Crl.M.P.No.118 of 2009, dated 14.7.2009. The petitioner seeks to set aside the said order and also for a direction to remove the second respondent from the household i.e. No.7, First Cross Street, 2nd Main Road, Lakshmipuram Extension-II, West Tambaram, Chennai.

2.This court is not inclined to entertain the writ petition at the instance of the petitioner as she was neither a party to the proceedings before the learned Magistrate, Tambaram nor she has locus standi to file such a writ petition.

3.The contention of the petitioner was that the premises in question belonged to her. Therefore, the learned Magistrate cannot pass an order in terms of Section 17 of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act). It is seen from the records that the second respondent who was married to Mohammed Aslam both under the Special Marriage Act as well as as per the Islamic Rites, was neglected by her husband. She also moved the Family Court for maintenance. The marriage between the second respondent and her husband was not dissolved so far. Even as per the admission made by the second respondent’s husband in the counter statement, dated 9.3.2009 filed before the learned Judicial Magistrate, Tambaram, he had categorically stated that he did not seek for any divorce in the interest of the children though he claimed that the complaint was the false complaint.

4.On the other hand, the stand of the second respondent before the learned Magistrate was that after their marriage, Mohammed Aslam had clandestinely transferred some properties in favour of the petitioner and she was pushed out of the place along with her disabled child. This necessitated her to move the learned Judicial Magistrate under the provisions of the PWDV Act. The learned Magistrate after going through the rival contentions had granted the relief. As against the said order, an appeal lies to the Sessions Court in terms of the Section 29 of the Act. Hence the petitioner if aggrieved she should file an appropriate application before the Sessions Court after getting the leave of the court to challenge the same. On the other hand, the stand taken by the husband of the second respondent before the learned Magistrate was very evasive and correctly the learned Magistrate, Tambaram had granted the relief in favour of the second respondent. Such an order is always subjected to further order. Section 17(2) itself says that an aggrieved person cannot be evicted or excluded from the shared household or any part of it by any person except the procedure established by law. Therefore, it is for the petitioner to establish her title before the appropriate court before seeking for any relief against the cancellation of the shared housedhold order given by the learned magistrate. There is no case made out by the petitioner. Accordingly, the writ petition will stand dismissed. No costs. vvk

To

Protection Officer,

(Protection of Women from

Domestic Violence Act, 2008)

Kancheepuram District,

Kancheepuram

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