HOUSE OWNED BY MOTHER-IN-LAW IS HER EXCLUSIVE PROPERTY SAME CAN NOT BE TREATED AS SHARE HOUSE HOLD AS DEFINE U/S 2(s) OF D.V. ACT 2005

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

        DATED THIS THE 25TH DAY OF FEBRUARY 2014

                         BEFORE

        THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA

                   CRL.P.No.3198/2013

BETWEEN:

Mrs.G.A. FERRIS
AGED ABOUT 82 YEARS,
W/O LATE FERRIS,
No. 179, E .C. C ROAD,
WHITE FIELD,
BANGALORE-560066.                       ... PETITIONER

(BY SRI YESHU MISHRA, ADV.,)

AND :

1.      SVETLANA ALEXANDROVNA
        DOBROCHASOVA FERRIS,
        W/O MICHAEL GERARD FERRIS,
        AGED ABOUT 33 YEARS,
        NO. 179, E.C.C ROAD,
        WHITE FIELD,
        BANGALORE-560 066.

2.      MICHAEL GERARD FERRIS,
        A/O LATE FERRIS,
        AGED ABOUT 43 YEARS,
        POST BOX NO. 40992,
        DUBAI, UNITED ARAB EMIRATES     .. RESPONDENTS


(BY SMT.SUNITA, ADV., FOR SRI NARENDRA D.V. GOWDA,
ADV., FOR R1
SRI IAN LEWIS FOR SRI MICHAEL FERRIS, ADV., FOR R2)
                              -2-



      THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH
THE ORDER DATED 28.03.2013 PASSED BY THE P.O., F.T.C.-
III,  BANGALORE      (R)   DISTRICT,   BANGALORE     IN
CRL.A.NO.1/2013 AND 2/2013 AND THE ORDER DATED
26.11.2012 PASSED BY THE ADDL. C.J.M., BANGALORE
DISTRICT, BANGALORE IN CRL. MISC. NO.149/2012 AND
ALLOW IA FILED U/S 2(q)AND(s) R/W SEC.17 AND 19 OF THE
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT,
2005 AND REJECT IA FILED U/S. 23(2) R/W SEC.19(1)(a) OF
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT, 2005 THEREIN AND ALLOW THIS PETITION AND QUASH
THE ENTIRE PROCEEDINGS IN CRL. MISC. NO.149/2012 OF
ADDL. C.J.M., BANGALORE DISTRICT, BANGALORE.


     THIS CRL.P COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:


                          ORDER

1.Respondent No.2 in Crl. Misc. No.149/2012 on the file of Addl. Chief Judicial Magistrate, Bangalore District, has come up in this criminal petition impugning the concurrent finding of both the Courts below in holding that the house owned by petitioner herein is a shared house as defined under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 (for short, ‘the Act’).

2. The brief facts leading to this criminal petition are as under:-

The petitioner herein, Mrs. G.A. Ferris, an elderly lady, aged about 82 years, is the mother of 2nd respondent Michael Gerard Ferris and mother-in-law of 1st respondent – Svetlana Alexandrovna. The 1st respondent is the legally wedded wife of 2nd respondent, who is resident of Dubai in United Arab Emirates pursuing his avocation. The petitioner, who is mother-in-law of 1st respondent, is residing at Bangalore in a house belonging to her, which is bearing No.179 situated at E.C.C. Road, White Field, Bangalore-560 066.

3. The 1st respondent herein, complainant in Crl. Misc. No.149/2012, initiated proceedings under Section 12 of the Act. In the said proceedings, she has contended that: she is legally wedded wife of 2nd respondent herein; she is residing in house No.179, ECC Road, White Field, Bangalore, along with petitioner herein, who is her mother-in-law. The said house is her matrimonial house, her husband, who is working in Dubai as Financial Director for International Legal Consultants, had instructed her to stay in the said house till he made arrangement to live with him in Dubai. Though he promised to take her back to Dubai, he developed intimacy with another girl friend and started living with her. Since he refused to take 1st respondent to Dubai, she continued to live with her mother-in-law in the house, which is standing in her name, claiming that as matrimonial house of herself and her husband.

4. It is also contended by her that she is no longer welcome to live in the said house by her mother-in- law. That there is an attempt to throw her out of the alleged matrimonial house. Hence, she filed petition in Crl. Misc. No.149/2012 for the relief of protection order against 2nd respondent herein and his mother under Section 12 of the Act seeking to restrain them from committing any further act of domestic violence on her and her child; to order status quo regarding her residence; not to force her out of the matrimonial home; for monetary relief in a sum of `.1,00,000/- per month as maintenance for herself and the minor child; `.2,00,000/- towards educational expenses of the child and also for protection order against 2nd respondent herein and his mother from interfering with the custody of her son and a sum of `.1 Crore as compensation for the injuries, mental torture and emotional disturbance suffered by her.

5. In Crl.Misc. No.149/2012, the petitioner herein, who is 2nd respondent, entered appearance and filed statement of objections, sum and substance of which is that, the complainant -1st respondent herein has no right to seek maintenance from her and that the house in which petitioner herein is residing is her absolute property and that the relationship between petitioner, her son and the complainant not being cordial, the complainant is trying to forcibly stay in the house belonging to petitioner and that there never was any cordiality between petitioner and the complainant, therefore question of she ill-treating the complainant and quarrelling with her never arose. It is her further case that neither her son – Michael Gerard Ferris nor the complainant has any right in the house belonging to her and they also do not have any right to forcibly stay in the said house.

6. In the proceedings before the trial Court, an application in I.A.I was filed by the complainant for the interim relief under Section 23(2) read with Section 19(1)(a) of the Act, to protect her alleged residence in the house belonging to her mother-in-law, petitioner herein. In the said proceedings, an application is also filed by her mother-in-law under Section 2(q) and (s) read with Sections 17 and 19 of the Act, for deleting her name in the said proceedings.

7. It is seen that the learned Magistrate, after hearing the complainant and her mother-in-law, who is applicant in I.A.II, proceeded to accept the contention that the house belonging to mother-in-law, is shared house as defined under Section 2(s) of the Act and allowed I.A.I by an interim order restraining the respondents in the said proceedings from dispossessing the petitioner and her child from shared household until disposal of the said proceedings and dismissing the application in I.A.II filed by the mother-in-law seeking deletion of her name from the proceedings in Crl. Misc. No.149/2012 by order dated 26.11.2012. Aggrieved by the same, the said order was challenged in Crl.A. No.1/2013 and Crl.A. No.2/2013, on the file of Fast Track Court III, Bangalore Rural District.

8. It is seen that the Fast Track Court III of Bangalore Rural District, which heard the aforesaid two appeals, proceeded to dismiss the same confirming the order passed by the learned Magistrate dated 26.11.2012 allowing the application, I.A.I, filed by the wife seeking protection for her stay in the alleged shared house and also confirming the order rejecting the application in I.A.II, filed by mother-in-law seeking deletion of her name from the proceedings. Against the concurrent finding of both the Courts below, the present petition is filed seeking quashing of the order dated 28.03.2013 passed in Crl. A. Nos.1 and 2 of 2013, confirming the interim order passed by the learned Addl. Chief Judicial Magistrate in Crl. Misc. No.149/2012 in allowing I.A.I filed under Section 23(2) read with Section 19(1)(a) of the Act and in rejecting the application, I.A.II filed under Section 2(q) and (s) read with Sections 17 and 19 of the Act.

9. Heard the learned counsel for petitioner as well as contesting respondent, complainant, in Crl. Misc. No.149/2012.

10. Learned counsel for petitioner would submit that the definition of `shared household’ as defined under Section 2(s) of the Act is exhaustive and the same reads as under:

“2. (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.”

According to him, the parties in these proceedings belong to Christian religion and there is no concept of joint family in Christian law. The property in question is standing in the name of the petitioner herein and that is her absolute property. In that view of the matter, the said house cannot be treated as a shared house. He would rely upon the judgment rendered by the Apex Court in the matter of S.R. BATRA AND ANOTHER VS. TARUN BATRA reported in ((2007) 3 SCC 169) and the relevant portion of the judgment reads as under:-

“22. Apart from the above, we are of the opinion that the house in question cannot be said to be a “shared household” within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”). Section 2(s) states:

“2. (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;”.

24. Learned counsel for the respondent Smt. Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household.

25. We cannot agree with this submission.

26. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband’s father, husband’s paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces, etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist in living in all these houses of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.

xxx

29. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a `shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a “shared household”.”

11. Per contra, the learned counsel appearing for the 1st respondent – complainant tried to substantiate that the view taken by both the Courts below in holding that the property standing in the name of petitioner herein is shared house is just and proper and tried to distinguish the judgment rendered by the Apex Court in S.R. Batra`s case (referred supra) with reference to the facts of the present case. In that behalf, she relied upon the judgment rendered by the High Court of Delhi in the matter of SMT. PREETI SATIJA Vs. SMT. RAJ KUMARI AND ANOTHER, which is an unreported judgment rendered on 15.01.2014, wherein it is held that in the circumstances, where a husband is seeking to evade his responsibilities and upon marital discord breaking out, he allegedly disappeared and was disowned by his mother and the mother of the husband instituting a suit and seeking to dispossess the daughter-in-law and her grandchildren claiming that she no longer has any relationship with her son or daughter- in-law while claiming the ownership of the property under Will from her husband cannot be accepted because such situations are engineered by the husband in collusion with the parents to deprive the legitimate right of the wife.

12. Learned counsel for respondent has relied upon the judgment in the matter of SRI. MRITYNJAY KUMAR JAIN AND ANOTHER Vs. SMT. SANGEETA PRAKASH CHAND AND ANOTHER rendered by the High Court of Judicature at Bombay in Criminal Writ Petition No.2951/2011 on 13.10.2011 (unreported judgment) and the same is with reference to a case where the husband and wife were living together and later, the wife left the matrimonial house in the year 1998 and subsequently, came back in 1999 and continued to reside in the same and there was a mutual understanding between the husband and wife and parents of the husband regarding arrangement having made by themselves for separate residence. It is observed in paras 13 and 14 of the said judgment as under:

“13. I have considered the rival submissions made by learned counsel appearing for the parties. It is not in dispute that the 1st Respondent is the legally wedded wife of Mr.Prakashchand. It is also not in dispute that after the marriage, the 1st respondent is residing in the suit premises along with her husband. Even accepting the case of the petitioners that she left the matrimonial home in the year 1998, nonetheless she came back in the year 1999 and till date she is residing in the suit properties. It is also not in dispute that the parents are residing at Flat No.101, Galactica Towers, which is also in the same locality where the suit premises is situate. The Courts below have considered this aspect and in particular in Paragraph No.12, the learned Sessions Judge considered section 19 of the Act as also the judgment of the Apex Court in the case of S.R.Batra (supra). It is recorded that the parents, by mutual understanding, as and by way of family arrangement have starting residing separately. The petitioners have their separate residence and it cannot be said that they are homeless or shelter-less. On the contrary, on their own volition the parents have shifted from the suit premises to Galactica Towers. I therefore do not find that the Courts below committed any error while issuing the direction against the parents ordering them to remove themselves from the suit premises. Section 2(s) of the Act defines the expression “shared household” and reads as under:-

In the Act, unless the context otherwise requires-

“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.”

14. Having regard to the inclusive definition of the expression “shared household” and having regard to the fact that the wife is residing in the suit premises after her marriage, and having further due regard to the fact that the parents by way of family arrangement are residing separately, in my opinion, the Courts below were justified in issuing the impugned direction.”

13. The third judgment relied upon by learned counsel for 1st respondent is in the matter of P. BABU VENKATESH, KANDAYAMMAL AND ANOTHER Vs. RANI in Crl. R.C. Nos.48 and 148 of 2008 and M.P. No.1 of 2008 decided by the High Court of Madras on 25.03.2008 reported in 2008-2-LW(Crl.)451, wherein it is held in paras 9, 15 and 16 as under:

“9. But, in this case even before the litigation started, it is reported that both of them had resided in the subject house, which is now in the name of the second petitioner. Further, it is brought to the notice of this Court that after the dispute had arisen between the parties, the mother, the second petitioner herein. Therefore, factually, the aforesaid ratio laid down by the Supreme Court can be distinguished. If the contention of the petitioners is accepted, every husband will simply alienate his property in favour of somebody else after the dispute has arisen and would take a stand that the house where they last resided is not a shared household and therefore the wife is not entitled to seek for residence right in the shared household. xxx

15. Of course, the learned Judicial Magistrate is empowered to consider the suggestion emanated from the husband to provide alternate accommodation as contemplated under Section 19(f) of the Act, while passing a final order in the main application. It is after all an order passed ex- parte on the strength of the averment found in the affidavit filed by the aggrieved wife. Such a suggestion can be seriously considered by the Judicial Magistrate during the final disposal of the main application. In view of the above, the Court finds that the learned Judicial Magistrate has rightly passed the protection order. The said order does not suffer from any illegality or impropriety. Therefore, the question of setting aside the said order does not arise.

16. Coming to the order passed by the learned Judicial Magistrate giving a direction to the police authority concerned to break open the lock and give protection to the respondent to reside in the subject house, the Court finds that the learned Judicial Magistrate has ample power under Section 19(7) of the Act to give any order to the officer incharge to assist him in the implementation of the protection order. The interim residence order is one of the protection orders. Of course, the said provision does not specifically state that the learned Judicial Magistrate may direct the officer incharge to break open the lock. To give effect to the protection order passed ex-parte, the learned Judicial Magistrate will have to necessarily pass an order break open the lock by the police. If the submission made on the side of the petitioners that the learned Judicial Magistrate is not empowered to give any order to break open the lock is accepted, then in all cases, the husband will lock the house and walk off and thereby depriving the wife from enjoying the protection order passed under the Act. The Court finds that the aforesaid submission is against the spirit of the object and scheme of the benevolent Special Act.”

This is a matter in which the husband, who is the original owner of the property after the dispute arose between himself and his wife had transferred the property in favour of his mother with the sole intention of depriving the legitimate right of his wife to reside in the matrimonial house.

14. The other two judgments of the Apex Court relied upon by the learned counsel for respondent are with reference to the ratio that was laid down by the Hon`ble Apex Court in the matter of ISLAMIC ACADEMY OF EDUCATION Vs. STATE OF KARNATAKA ((2003) 6 SCC

697) and in the matter of RAMESH CHAND DAGA Vs. RAMESHWARI BAI ((2005) 4 SCC 772) and SANDHYA MANOJ WANKHADE Vs. MANOJ BHIMRAO WANKHADE AND OTHERS ((2011) 3 SCC 650), the aforesaid view of Apex Court in the matter of Islamic Academy of Education is followed.

15. On going through the impugned order, it is clearly seen that an attempt is made by 1st respondent – wife, who is complainant before the learned Magistrate to stake a claim in the house exclusively belonging to her mother-in-law as a shared house. None of the judgments, which are relied upon by learned counsel for 1st respondent would in any way relate to the facts on hand in the present case. On the contrary, the judgment

rendered by the Apex Court in the matter of S.R. BATRA (referred supra) relied upon by the petitioner squarely applies on all fours to the facts of the case on hand in accepting that the house owned by the petitioner herein is her exclusive property and same cannot be treated as shared house as defined under Section 2(s) of the Act.

16. Though the attempt made by learned counsel appearing for the 1st respondent – complainant is commendable, in the facts and circumstances, this Court cannot deviate itself to accommodate a wife, who is said to be in pitiable circumstances by permitting her to stay in the house exclusively belonging to her aged mother-in-law against her wish. The petitioner is aged 82 years and is in the evening of her life. Merely because husband of 1st respondent is the son of the petitioner, she cannot be burdened to provide accommodation to her daughter-in- law against her wish. Even if the submission on the part of the 1st respondent – complainant in trying to appeal to the conscience of this Court to the effect that each set of facts will have to be assessed based on the merits of the same is given due consideration, the application filed by 1st respondent – complainant under Section 23(2) read with Section 19(1)(a) of the Act, cannot be considered, on any count.

17. For the reasons stated above, the application, I.A.I filed by 1st respondent herein – complainant is required to be dismissed setting aside the orders passed by both the Courts below. While doing so, application, I.A.II, filed by petitioner herein, mother-in-law, under Section 2(q) and (s) read with Sections 17 and 19 of the Act is required to be allowed setting aside the finding of both the Courts below in the order impugned that the house of the petitioner is shared house as defined under Section 2(s) of the Act and petitioner herein is necessary party to the proceedings in Crl. Misc. No.149/2012.

18. Accordingly, Criminal petition is allowed. The order dated 28.03.2013 passed in Crl. A. Nos.1 and 2 of 2013 on the file of the Fast Tr ack Court III, Bangalore Rural District, confirming the interim order dated 26.11.2012 passed by the Addl. Chief Judicial Magistrate, Bangalore District, in Crl. Misc. No.149/2012, is set aside. Consequently, application, I.A.I filed by the 1st respondent herein, complainant, is dismissed and application, I.A.II, filed by the petitioner herein, mother-in-law, before the learned Magistrate in Crl. Misc. No.149/2012 seeking deletion of her name from the said proceedings is allowed.

Sd/-

JUDGE sma

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