{"id":257482,"date":"2009-08-25T00:00:00","date_gmt":"2009-08-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/archana-hemant-naik-vs-urmilaben-i-naik-and-anr-on-25-august-2009"},"modified":"2017-03-20T13:17:34","modified_gmt":"2017-03-20T07:47:34","slug":"archana-hemant-naik-vs-urmilaben-i-naik-and-anr-on-25-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/archana-hemant-naik-vs-urmilaben-i-naik-and-anr-on-25-august-2009","title":{"rendered":"Archana Hemant Naik vs Urmilaben I. Naik And Anr on 25 August, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Archana Hemant Naik vs Urmilaben I. Naik And Anr on 25 August, 2009<\/div>\n
Bench: A.S. Oka<\/div>\n
                                       1\n\n               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                     CRIMINAL APPELATE JURISDICTION\n\n\n\n\n                                                                         \n             CRIMINAL REVISION APPLICATION NO.590 OF 2008\n\n\n\n\n                                                 \n     Archana Hemant Naik                                  ...Applicant\n\n     vs.\n\n\n\n\n                                                \n     Urmilaben I. Naik and Anr.                           ...Respondents\n\n     Ms Anjali Helekar for the applicant\n\n\n\n\n                                 \n     Mr.C.M.Kothari for respondent no.1\n                     \n         CORAM :A.S.OKA,J.\n                    \n         DATE OF HEARING THE LAST ARGUMENT: JULY 3, 2009\n\n         DATE OF PRONOUNCEMENT OF THE JUDGMENT: AUGUST 25,2009\n      \n\n\n     JUDGMENT :\n<\/pre>\n
     1     The revision applicant is an applicant in an<\/p>\n
     application under section 12<\/a> of the Protection<\/p>\n
     of     Women     from     Domestic            Violence              Act<\/a>,2005<\/p>\n
     (hereinafter referred to as the said Act). In<\/p>\n
     the     said      application,             the       applicant                had<\/p>\n
     impleaded       six   opponents.            The       first         opponent<\/p>\n
     Hemant     is   the     husband       of    the       applicant.              The<\/p>\n
     applicant married to said Hemant on 9th May 1986.\n<\/p>\n
     The second opponent in the said application is<\/p>\n
     the brother- in-law of the revision applicant.\n<\/p>\n
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\n                                          2<\/span><\/p>\n
     The fourth opponent is the wife of the second<\/p>\n
     opponent.        The third opponent is the mother-in-\n<\/p>\n
     law     of   the       revision         applicant.               The         third<\/p>\n
     opponent     in       the    said       application                has        been<\/p>\n
     impleaded        as    the    first       respondent                 in       this<\/p>\n
     revision application.              The fifth opponent in the<\/p>\n
     said application under section 12<\/a> of the said<\/p>\n
     Act     is   the       sister-in-law             of       the         revision<\/p>\n
     applicant. The sixth opponent in the application<\/p>\n
     is the husband of the fifth                   opponent.\n<\/p>\n
     2      According       to    the    case         made        out        by      the<\/p>\n
     revision applicant, she was residing along with<\/p>\n
     her husband and her           in-laws in the house by the<\/p>\n
     name Jagan Villa at Nani-Daman.                             According to<\/p>\n
     the case of the revision applicant, on 22nd June<\/p>\n
     2004    in   the      afternoon,        she     was       assaulted             and<\/p>\n
     thrown out of the said house by her husband.                                      It<\/p>\n
     is     alleged     that      the    revision             applicant              was<\/p>\n
     working as a teacher and while she was staying<\/p>\n
     with her husband, her entire salary was being<\/p>\n
     taken by her husband and in-laws and therefore<\/p>\n
     she has no savings.            In the application, she has<\/p>\n
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\n                                       3<\/span><\/p>\n
     referred to the criminal complaint filed by her<\/p>\n
     as well as a petition for divorce filed by her<\/p>\n
     husband      against    her.          By       filing           the        said<\/p>\n
     application under section 12<\/a> of the said Act,<\/p>\n
     she claimed          maintenance from her husband. She<\/p>\n
     also claimed house accommodation or share of her<\/p>\n
     husband in her father-in-law s two bungalows by<\/p>\n
     the      name Jagan Villa and Mani Villa at Nani<\/p>\n
     Daman.\n<\/p>\n
               In the said application under section 12<\/a><\/p>\n
     of the said Act, the revision applicant applied<\/p>\n
     for interim order under section 23<\/a> of the said<\/p>\n
     Act.   The    said    application      was          opposed          by      the<\/p>\n
     opponents to the said application.                          A reply was<\/p>\n
     filed by the opponents to the said application<\/p>\n
     for      contesting      the   said         application.                     The<\/p>\n
     allegations made by the revision applicant were<\/p>\n
     denied in the said reply.             It was contended that<\/p>\n
     the    proceedings     against       the       said        Act       can       be<\/p>\n
     initiated     only     against       the      male         persons           and<\/p>\n
     therefore,      the     proceedings             as       against             the<\/p>\n
     opponent nos.3,4 and 5 was not maintainable.                                   It<\/p>\n
     was    contended      that   the     opponent              no.1-husband<\/p>\n
     has no title to the houses in respect of which<\/p>\n
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\n                                        4<\/span><\/p>\n
     reliefs were claimed.             It is contended that the<\/p>\n
     opponent no.1 was residing in the house of his<\/p>\n
     mother,    i.e,     the    first       respondent             herein          and<\/p>\n
     therefore the house in respect of which relief<\/p>\n
     was sought by the revision applicant cannot be<\/p>\n
     termed    as   a     shared        household.              The        learned<\/p>\n
     Magistrate by order dated 5th March 2008 granted<\/p>\n
     interim    relief     directing         the        husband            of      the<\/p>\n
     revision applicant to allow the residence of the<\/p>\n
     applicant      with         him        in         house             14-113\/C<\/p>\n
     (hereinafter       referred       to    as      the       said        house).\n<\/p>\n
     The learned Magistrate directed the opponent no.\n<\/p>\n
     2 Manoj and his sister Varsha not to create any<\/p>\n
     panic     in   any        form    of        harassment               to       the<\/p>\n
     applicant.     The husband was directed to observe<\/p>\n
     and follow the order.             The officer in charge of<\/p>\n
     Nani Daman police station was directed to make<\/p>\n
     available one male and one female constable to<\/p>\n
     the     applicant     as     per       her        demand           for        her<\/p>\n
     protection.       The protection officer was directed<\/p>\n
     to assist the revision applicant for enforcement<\/p>\n
     of the order.\n<\/p>\n
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\n                                       5<\/span><\/p>\n
     3      The first respondent (mother-in-law of the<\/p>\n
     revision       applicant)      preferred         an      appeal           for<\/p>\n
     challenging the said order.              The main contention<\/p>\n
     in    the   appeal     was    that   the      first         respondent<\/p>\n
     purchased two plots at Narayan Park, Nani Daman<\/p>\n
     under a sale deed dated 5th February 1998 and<\/p>\n
     thereafter, she had constructed the said house<\/p>\n
     bearing No.14\/113\/C (Jagan villa).                       The case is<\/p>\n
     that the said house is exclusively owned by her.\n<\/p>\n
     4     By    Judgment    and    Order    dated         2nd     September<\/p>\n
     2008, the Appeal was allowed by setting aside<\/p>\n
     the    order    of   the      learned    Magistrate               to      the<\/p>\n
     extent to which it affected the first respondent<\/p>\n
     and     other     female        opponents.                  The         main<\/p>\n
     application as against the female                     opponents was<\/p>\n
     dismissed. The learned Sessions Judge                        held that<\/p>\n
     the proceedings under section 12<\/a> of the said Act<\/p>\n
     was not maintainable against female persons in<\/p>\n
     view of section 2<\/a> (q) of the said Act.                                    The<\/p>\n
     learned Judge held that the documents placed on<\/p>\n
     record show that the first respondent was the<\/p>\n
     owner of the said house and therefore, the said<\/p>\n
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\n                                          6<\/span><\/p>\n
     house cannot be treated as a shared household.\n<\/p>\n
     5      By order dated 20th April 2009, this revision<\/p>\n
     application         was     ordered       to     be       disposed             of<\/p>\n
     finally at the stage of admission.                          The learned<\/p>\n
     counsel      for    the     applicant      submitted             that        the<\/p>\n
     learned Sessions Judge has committed an error by<\/p>\n
     holding that an application under section 12<\/a> of<\/p>\n
     the said Act was not maintainable against the<\/p>\n
     female relatives of the husband.                           She pointed<\/p>\n
     out that the reference in section 2<\/a> (q) of the<\/p>\n
     said Act to the              relatives of the husband is<\/p>\n
     also    to   the        female    relatives      of      the       husband.\n<\/p>\n
     She    pointed out the proviso to sub section 1<\/a> of<\/p>\n
     section 19<\/a> of the said Act which provides that<\/p>\n
     the     order       under        clause   (b)         directing              the<\/p>\n
     respondent         to    remove     himself       from         the       share<\/p>\n
     household          cannot be passed against any person<\/p>\n
     who is a woman.             The learned counsel                  submitted<\/p>\n
     that the very fact that the said                    proviso              finds<\/p>\n
     place in the said Act shows that the an action<\/p>\n
     is maintainable            against the female relatives of<\/p>\n
     the husband except where a relief under clause<\/p>\n
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\n                                              7<\/span><\/p>\n
     (b) of sub section 1<\/a> of section 19<\/a> has been<\/p>\n
     prayed        for.     She    submitted            that       the        learned<\/p>\n
     Sessions        Judge        has        narrowly         construed               the<\/p>\n
     definition of section 2<\/a> (s) of the said Act.\n<\/p>\n
     The very purpose of enacting the said Act will<\/p>\n
     be     defeated if the narrow interpretation put by<\/p>\n
     the learned Sessions Judge to the provisions of<\/p>\n
     the    said     Act     is        accepted.           She,         therefore,<\/p>\n
     submitted that the impugned order of the learned<\/p>\n
     Sessions Judge is perverse.\n<\/p>\n
     6      The learned counsel for the first respondent<\/p>\n
     placed    reliance           on    the      decision         of      the       Apex<\/p>\n
     Court in the case of S.R.Batra and another Vs.<\/p>\n
     Taruna Batra [(2007) 3 SCC 169].                              He submitted<\/p>\n
     that     in     view     of       the       said    decision,              merely<\/p>\n
     because the applicant stayed with her husband in<\/p>\n
     the    house     of     the       first      respondent,             the       said<\/p>\n
     house does not become a shared household within<\/p>\n
     the meaning of section 2(s)<\/a>                         of the said Act.\n<\/p>\n
     He pointed out that the Apex Court has held that<\/p>\n
     in order to claim right to a house as a shared<\/p>\n
     household, the house must belong                          to the husband<\/p>\n
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\n                                              8<\/span><\/p>\n
     or   it    must      have    been            taken         on     rent       by      the<\/p>\n
     husband. A house which is owned by the joint<\/p>\n
     family of which the husband is a member can also<\/p>\n
     be a shared household.                        He submitted that no<\/p>\n
     such right has been established by the revision<\/p>\n
     applicant and on the contrary the documentary<\/p>\n
     evidence on record shows that the said house was<\/p>\n
     exclusively          owned        by        the      first           respondent.\n<\/p>\n
     Relying upon another decision of in the case of<\/p>\n
     Vimlaben Ajitbhai Patel Vs. Vatsalaben A. Patel<\/p>\n
     [(2008) 4 SCC 649], he submitted that the entire<\/p>\n
     burden was on the revision applicant to prove<\/p>\n
     that      the    house      was    a        shared         household.                  He<\/p>\n
     placed      reliance         on        the        decision            of       Madhya<\/p>\n
     Pradesh     High      Court       in        case      of     Ajay        Kant        and<\/p>\n
     others      Vs.      Smt.Alka          Sharma           [(2008)            Cri.L.J.\n<\/p>\n
     264].      He submitted that the Madhya Pradesh High<\/p>\n
     Court held that the proceedings under section 12<\/a><\/p>\n
     of the said Act was maintainable only against an<\/p>\n
     adult      male      person.       He        also       relied           upon        the<\/p>\n
     decision        of   Andhra       Pradesh           High        Court        in      the<\/p>\n
     case of Meenakuru Renuka and others vs. Menakuru<\/p>\n
     Mona Reddy and another [AIR 2009 (NOC) 1544].\n<\/p>\n
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\n                                          9<\/span><\/p>\n
     He submitted that the said High Court held that<\/p>\n
     the complaint under section 12<\/a> as against the<\/p>\n
     female    relatives            of       the          husband            was         not<\/p>\n
     maintainable.\n<\/p>\n
     7     I have carefully considered the submissions.\n<\/p>\n
     The proceedings under                   the said Act is to be<\/p>\n
     initiated by way of making an application                                             to<\/p>\n
     the court of a Magistrate. The application is to<\/p>\n
     be    filed    by    an         aggrieved                 person .                  The<\/p>\n
     application      can           be       also           filed          by            the<\/p>\n
     protection     officer         or   by    any           other         person          on<\/p>\n
     behalf of the aggrieved person.                                An       aggrieved<\/p>\n
     person    has    been      defined            by            clause          (a)       of<\/p>\n
     section   2<\/a>.        An    aggrieved               person          can       be      any<\/p>\n
     woman.    A woman can be an aggrieved person who<\/p>\n
     is, or has been, in a domestic relationship with<\/p>\n
     the   respondent         and    who      alleges              to      have        been<\/p>\n
     subjected to any act of domestic violence by the<\/p>\n
     respondent.     Under      section            2<\/a>      of      the      said        Act,<\/p>\n
      domestic violence             has been defined by clause<\/p>\n
     (g) which provides that                  domestic violence                          has<\/p>\n
     the   same     meaning         assigned              under          section           3<\/a>.\n<\/p>\n
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\n                                        10<\/span><\/p>\n
     Section 3<\/a> reads thus :\n<\/p>\n
       3.Definition         of    domestic        violence-              For       the<\/p>\n
         purposes of this Act, any act, omission or<\/p>\n
         commission         or    conduct         of      the        respondent<\/p>\n
         shall constitute domestic violence in case<\/p>\n
         it –\n<\/p>\n
                (a) harms or injuries or endangers the
\n                health,
\n                being,
\n                       ig    safety,
\n                            whether
\n                                            life,
\n                                         mental        or
\n                                                          limb         or
\n                                                               physical,
\n                                                                               well-\n<\/p><\/blockquote>\n
                                                                                     of<\/p>\n
                the aggrieved person or tends to do so
\n                and    includes        causing          physical             abuse,
\n                sexual abuse, verbal and emotional abuse<\/p>\n
                and economic abuse; or<\/p>\n<\/blockquote>\n
                (b)harasses,             harms,             injuries                 or
\n                endangers        the   aggrieved            person          with       a
\n                view to coerce her or any other person<\/p>\n
                related      to    her      to    meet         any       unlawful
\n                demand for any dowry or other property
\n                or valuable security; or<\/p>\n<\/blockquote>\n
                (c)has      the    effect        of     threatening                the
\n                aggrieved person or any person related
\n                to    her    by    any      conduct           mentioned              in
\n                clause (a) or clause (b); or\n<\/p><\/blockquote>\n
                     (d)otherwise injuries or causes harm,
\n                       whether physical or mental, to the
\n                       aggrieved person.\n<\/p><\/blockquote>\n
                       Explanation I             For the purposes of<\/p>\n
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\n                                  11<\/span><\/p>\n
               this section-\n<\/p><\/blockquote>\n
               (i) physical abuse                 means any act or<\/p>\n
               conduct which is of such a nature as
\n               to    cause       bodily          pain,          harm,          or<\/p>\n
               danger to life, limb, or health or
\n               impair the health or development of<\/p>\n
               the   aggrieved             person        and       includes
\n               assault,      criminal            intimidation                and
\n               criminal force;\n<\/p><\/blockquote>\n
               (ii) Sexual            abuse            includes              any\n               conduct\n               ig           of        a    sexual         nature           that\n               abuses,       humiliates,                 degrades              or\n               otherwise      violates             the       dignity           of\n             \n               woman;\n               (iii) verbal            and      emotional              abuse\n      \n\n               includes-\n                                      (a) insults,               ridicule,\n   \n\n\n\n                     humiliation,             name        calling            and\n                     insults          or     ridicule            specially\n\n\n\n\n\n                     with     regard          to      not        having          a\n                     child or a male child; and\n                                      (b) repeated threats to\n\n\n\n\n\n                     cause       physical             pain          to       any\n\n                     person       in       whom       the        aggrieved\n\n                     person is interested.\n\n     (iv) economic abuse      includes -\n\n               (a)    deprivation               of       all        or       any\n\n<\/pre>\n
           economic or financial resources to which<\/p>\n
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\n                            12<\/span><\/p>\n
      the aggrieved person is entitled under<\/p>\n
      any law or custom whether payable under<\/p>\n
      an    order   of    a     court      or      otherwise             or<\/p>\n
      which the aggrieved person requires out<\/p>\n
      of necessity including, but not limited<\/p>\n
      to,     household         necessities                for         the<\/p>\n
      aggrieved     person and            her children, if<\/p>\n
      any,     stridhan,         property,            jointly            or<\/p>\n
      separately         owned       by        the         aggrieved<\/p>\n
      person, payment of rental related to the<\/p>\n
      shared household and maintenance;\n<\/p><\/blockquote>\n
      (b) disposal of household effects, any<\/p>\n
      alienation of assets whether movable or<\/p>\n
      immovable,                valuables,                     shares,<\/p>\n
      securities, bonds and the lands or other<\/p>\n
      property in which the aggrieved person<\/p>\n
      has an interest or is entitled to use by<\/p>\n
      virtue of the domestic relationship or<\/p>\n
      which may be reasonably required by the<\/p>\n
      aggrieved person or her children or her<\/p>\n
      stridhan or any other property jointly<\/p>\n
      or     separately       held      by      the        aggrieved<\/p>\n
      person; and<\/p>\n
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\n                                 13<\/span><\/p>\n
           (c)prohibition            or         restriction                   to<\/p>\n
           continued       access          to        resources                or<\/p>\n
           facilities which the aggrieved person is<\/p>\n
           entitled to use or enjoy by virtue of<\/p>\n
           the     domestic       relationship                  including<\/p>\n
           access to the shared household.\n<\/p>\n
           Explanation      II-      For        the        purpose            of<\/p>\n
           determining whether any act, omission,<\/p>\n
           commission or conduct of the respondent<\/p>\n
           constitutes         domestic          violence               under<\/p>\n
           this     section,     the       overall            facts          and<\/p>\n
           circumstances of the case shall be taken<\/p>\n
           into consideration.\n<\/p>\n
     4. The word     respondent        has been              defined by<\/p>\n
       section 2<\/a> (q) which reads as follows:\n<\/p>\n
            2(q) respondent            means any adult male
\n           person    who    is,      or       has        been,          in      a
\n           domestic relationship with the aggrieved
\n           person and against whom                     the aggrieved
\n           person has sought any relief under this
\n           Act:\n<\/p><\/blockquote>\n
           .      Provided that an aggrieved wife or<\/p>\n
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\n                                         14<\/span><\/p>\n
                 female living in a relationship in the
\n                 nature of a marriage may also file a<\/p>\n
                 complaint         against     a    relative             of      the
\n                 husband or the male partner.\n<\/p><\/blockquote>\n
     8      The first part of clause (q)                    provides that<\/p>\n
     the respondent means any adult male person who<\/p>\n
     is or has been in domestic relationship with the<\/p>\n
     aggrieved person and against whom the aggrieved<\/p>\n
     person has sought any relief                       under the said<\/p>\n
     Act.     The proviso carves out an exception                                  to<\/p>\n
     the rule that a respondent can be only adult<\/p>\n
     male    person.           It     provides       that         either           an<\/p>\n
     aggrieved wife or female living in relationship<\/p>\n
     in   the    nature       of    marriage       may       also        file        a<\/p>\n
     complaint against the relative of the husband or<\/p>\n
     male partner.            Reference to the male partner in<\/p>\n
     the proviso is because the proviso applies to a<\/p>\n
     female living in relationship in the nature of<\/p>\n
     marriage.      Thus, the aggrieved wife or female<\/p>\n
     to   whom    the         proviso    to        section          2<\/a>    (q)       is<\/p>\n
     applicable,        can     file    a     complaint           against            a<\/p>\n
     relative of the husband or a relative of her<\/p>\n
     male    partner.           The     proviso        carves           out        an<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                             15<\/span><\/p>\n
     exception       to    the       definition         of      respondent              in<\/p>\n
     section 2<\/a> (q). In the                   two cases where proviso<\/p>\n
     is applicable, an application under section 12<\/a><\/p>\n
     will lie even against a relative of the husband<\/p>\n
     or male partner,                 as the case may be.                        It is<\/p>\n
     important to note that the proviso refers to a<\/p>\n
     relative       and        not     to    a    male        relative.               The<\/p>\n
     definition           of     domestic           relationship                  under<\/p>\n
     section 2(f)<\/a> is very wide. However, a                                  domestic<\/p>\n
     relationship between a wife and a husband or a<\/p>\n
     female    and     a       male    partner          are     the       only        two<\/p>\n
     categories included in                      the proviso to section<\/p>\n
     2(q)<\/a>. The        question         to be decided is                       whether<\/p>\n
     a relative of the husband or a relative of the<\/p>\n
     male    partner       referred         to     in    the          proviso           to<\/p>\n
     clause (q)           of section 2<\/a>             can only be                 a male<\/p>\n
     relative?\n<\/p>\n
     9      Under    the       said    Act,         different             kinds         of<\/p>\n
     reliefs         can       be      granted          to     the        aggrieved<\/p>\n
     persons.       The said reliefs are as under :\n<\/p>\n
                (a)       Protection         order       under        section           18<\/a><\/span><\/p>\n
                for        prohibiting             acts          of         domestic<\/p>\n
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\n                                          16<\/span><\/p>\n
                  violence.<\/p><\/blockquote>\n
                  (b) Residence orders under section 19<\/a>,<\/p>\n
                  in relation to a shared household\n<\/p>\n
                  (c)Monetary          reliefs under section 20<\/a><\/p>\n
                  in the nature of                medical expenses or
\n                  maintenance etc.<\/p>\n
                  (d)    Custody     orders        under        section               21<\/a><\/span>
\n                  relating to children; and\n<\/p>\n
                  (e)        Compensation orders under section<\/p>\n
                  22.<\/span><\/p>\n
     10<\/span><\/p>\n
            Under section 23<\/a> of the said Act, power to<\/p>\n
     grant interim and ex parte ad-interim orders                                     in<\/p>\n
     terms of sections 19<\/a>, 20<\/a>, 21<\/a> or 22 of the said<\/p>\n
     Act has been conferred on a Magistrate.                                          It<\/p>\n
     must    be    borne       in   mind      that      in      view        of      the<\/p>\n
     definition         in     section        2<\/a>   (q),         normally             the<\/p>\n
     respondent can only be an adult male person.                                     By<\/p>\n
     virtue of proviso,              in certain cases to which<\/p>\n
     the proviso applies, any relative of the husband<\/p>\n
     or male partner, as the case may be,                                can be a<\/p>\n
     respondent.            As stated earlier, proviso applies<\/p>\n
     when the aggrieved person is a wife or a female<\/p>\n
     living       in    a     relationship        in       the       nature           of<\/p>\n
     marriage.          If such      aggrieved              wife or female<\/p>\n
     files a complaint,             she can do so even                      against<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                        17<\/span><\/p>\n
     a     relative of the husband or a relative of the<\/p>\n
     male partner, as the case may be. The question<\/p>\n
     is whether such relative can be a female.                                       In<\/p>\n
     this context it will be necessary to consider<\/p>\n
     section 19<\/a> of the said Act which reads thus :\n<\/p>\n
     19 Residence orders           (1) While disposing of an<\/p>\n
     application under sub section (1) of section 12<\/a>,<\/p>\n
     the<\/p>\n
            Magistrate     may,    on       being         satisfied              that<\/p>\n
     domestic    violence        has        taken        place,           pass         a<\/p>\n
     residence order –\n<\/p>\n
                 (a)     restraining            the      respondent              from<\/p>\n
                 dispossessing or in any other manner<\/p>\n
                 disturbing        the          possession                of       the
\n                 aggrieved        person            from         the         shared
\n                 household,            whether             or         not          the<\/p>\n
                 respondent       has       a     legal         or     equitable
\n                 interest in the shared household;\n<\/p><\/blockquote>\n
                 (b) directing the respondent to remove<\/p>\n
                 himself from the shared household;\n<\/p><\/blockquote>\n
                 (c)       restraining            the       respondent               or
\n                 any of his relatives from entering any
\n                 portion     of    the          shared         household             in
\n                 which the aggrieved person resides;\n<\/p><\/blockquote>\n
                (d) restraining             the        respondent                from
\n              alienating    or    disposing              off       the       shared
\n              household or encumbering the same ;\n<\/p><\/blockquote>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                          18<\/span><\/p>\n
              (e)        restraining          the        respondent                from
\n              renouncing         his      rights          in        the        shared<\/p>\n
              household         except    with        the       leave        of      the
\n              Magistrate; or<\/p>\n<\/blockquote>\n
           (f) directing the respondent to secure same
\n           level of alternate accommodation for the<\/p>\n
           aggrieved person as enjoyed by her in the
\n           shared household or to pay rent for the
\n           same, if the circumstances require:\n<\/p><\/blockquote>\n
     .     Provided       that\n                         ig       no     order        under          clause          (b)\n     shall    be    passed       against       any      person          who       is     a\n     woman.\n                       \n     11        As per the proviso to section 2(q)<\/a>, in\n      \n\n<\/pre>\n
     case of any aggrieved wife or a female living in<\/p>\n
     a relationship in the nature of marriage, the<\/p>\n
     relative of the husband or male partner                                   can be<\/p>\n
     a respondent.          If a wife or a woman to whom the<\/p>\n
     proviso       is    applicable           is    compelled             to       seek<\/p>\n
     residence          order    in    respect            of       a           shared<\/p>\n
     household only as against the male relatives of<\/p>\n
     her     husband or male partner,                      as the case may<\/p>\n
     be, the order under section 19<\/a> of the said Act<\/p>\n
     will be completely ineffective in as much                                         as<\/p>\n
     the female           relatives           of the husband or the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                           19<\/span><\/p>\n
     male partner occupying the shared household will<\/p>\n
     continue to disturb possession                       of such             wife or<\/p>\n
     such     female of the shared household, or may<\/p>\n
     continue      to    prevent         entry        of      such        aggrieved<\/p>\n
     wife or       female to the shared household.                                      On<\/p>\n
     plain reading of the proviso to section 2(q)<\/a> it<\/p>\n
     is    clear   that        a   relative         referred           to     in      the<\/p>\n
     proviso is not only a male relative.                                   The main<\/p>\n
     section specifically uses the word                              male           Even<\/p>\n
     the     proviso           refers          to          male             partner.\n<\/p><\/blockquote>\n
     Therefore,         whenever      the      legislature                intended,<\/p>\n
     the    word        male       has    been        used        in      the       main<\/p>\n
     section and its proviso.                  But while referring to<\/p>\n
     relative of the wife or the woman referred to in<\/p>\n
     proviso,      the    word        male          has     not        been       used.\n<\/p>\n
     In case of two domestic relationships covered by<\/p>\n
     proviso to section 2(q)<\/a> viz; (i) relationship<\/p>\n
     between wife and husband and (ii) a relationship<\/p>\n
     in the nature of marriage between a female and<\/p>\n
     her male partner, the respondent can be                                        any<\/p>\n
     relative      of    the       husband       or     male        partner.            It<\/p>\n
     cannot be the intention of the legislature that<\/p>\n
     the     relative          in the proviso can                      only be            a<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                    20<\/span><\/p>\n
     male relative.        This fact is abundantly clear<\/p>\n
     from the proviso to sub section 1<\/a> of section 19<\/a>.\n<\/p>\n
     The     legislature    has    clarified              by       the        said<\/p>\n
     proviso that an order in terms of clause (b) of<\/p>\n
     sub-section (1) of      section 19<\/a>              cannot be passed<\/p>\n
     against a person who is a woman.                      The very fact<\/p>\n
     that proviso to sub-section (1) of section 19<\/a><\/p>\n
     has been enacted shows that an order under some<\/p>\n
     other<\/p>\n
               clauses of sub-section (1) of section 19<\/a><\/p>\n
     except clause (b) can be passed against a woman<\/p>\n
     who is     a relative of the husband or the male<\/p>\n
     partner     to whom     the proviso to section 2(q)<\/a><\/p>\n
     applies.     If a narrow interpretation is put to<\/p>\n
     proviso    to section 2<\/a> (q) to the effect that the<\/p>\n
     relative    referred    to   therein           is      only        a     male<\/p>\n
     relative, the      aforesaid proviso to sub-section<\/p>\n
     (1) of section 19<\/a> becomes meaningless. If it is<\/p>\n
     accepted that in no case a relief under section<\/p>\n
     19<\/a> can be granted against a woman, then the said<\/p>\n
     proviso    to   sub-section        (1)     becomes           redundant.\n<\/p>\n
     The legislature contemplated that the residence<\/p>\n
     order under sub-section (1) of section 19<\/a> could<\/p>\n
     be passed even against any female who                                   is a<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                           21<\/span><\/p>\n
     relative of a husband or a relative of a                                        male<\/p>\n
     partner referred to in the proviso to                                     section<\/p>\n
     2(q)<\/a> and therefore,                the proviso to sub-section<\/p>\n
     (1)    has     been    enacted       to        prevent         an     order         of<\/p>\n
     dispossession          under       clause         (b)        being          passed<\/p>\n
     against a woman relative of the husband or a<\/p>\n
     male partner.\n<\/p>\n
     12     Under\n                      \n                     clause         (a)        of    sub-section               (1)       of\n\n<\/pre>\n
     section 19<\/a> the respondent can be restrained from<\/p>\n
     disturbing            the    possession            of      the        aggrieved<\/p>\n
     person of the shared household whether or not<\/p>\n
     the    respondent            has     any        legal         or      equitable<\/p>\n
     interest in the shared household.                                   In a case<\/p>\n
     where an aggrieved person is a wife or a female<\/p>\n
     referred to in proviso to sub-section 2(q)<\/a>, if<\/p>\n
     the relative of the husband or the male partner<\/p>\n
     was    to    include        only      the       male        relative,             the<\/p>\n
     grant of residence order in terms of clause (a)<\/p>\n
     will serve no purpose and will become redundant<\/p>\n
     as such order will not bind the female relatives<\/p>\n
     of the husband or the male                        partner,                 as the<\/p>\n
     case    may     be,    who    are     residing            in       the      shared<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                          22<\/span><\/p>\n
     household.        The        same    is        the      case         with        the<\/p>\n
     residence order under clause (c) of sub section<\/p>\n
     (1).\n<\/p>\n
     13     It must also be remembered that section 2(q)<\/a><\/p>\n
     specifically uses the word adult                              male         member<\/p>\n
     or     male     partner.        If        the      intention             of      the<\/p>\n
     legislature       was        that        the      relative              of       the<\/p>\n
     husband or the male partner referred to in the<\/p>\n
     proviso has to be only a                       male        relative, the<\/p>\n
     legislature      would        have       specifically                used        the<\/p>\n
     word     male     in     the    proviso.                       As      set       out<\/p>\n
     earlier,      there     is    another              reason              why       the<\/p>\n
     relative of the husband or male partner referred<\/p>\n
     to in the proviso to section 2(q)<\/a>                                   cannot be<\/p>\n
     only a male relative.                The said reason is that<\/p>\n
     the    proviso   to     sub-section             (1)       of     section           19<\/a><\/a><\/span><\/p>\n
     clearly    implies           that    the       residence             order         in<\/p>\n
     terms of any of the clauses of sub-section (1)<\/p>\n
     of section 19<\/a> except clause (b) can be passed<\/p>\n
     against a respondent who is a                            woman.              It is<\/p>\n
     obvious from the             the proviso to section 2(q)<\/a><\/p>\n
     that a woman can be a respondent only in                                   a case<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                       23<\/span><\/p>\n
     where the aggrieved person is the wife or the<\/p>\n
     female       referred to in proviso to clause (q) of<\/p>\n
     section 2<\/a>.         From the proviso           to sub-section (1)<\/p>\n
     of     section 19<\/a> it becomes crystal clear that the<\/p>\n
     word     relative        used in proviso of section                        2(q)<\/a><\/p>\n
     is not restricted to a                 male relative of the<\/p>\n
     husband or a male relative of the male partner.\n<\/p>\n
     Therefore, the word             relative               in proviso to<\/p>\n
     section 2(q)<\/a> includes a female relative.\n<\/p>\n
     14     The    relevant      part      of     the        statement              of<\/p>\n
     objects and         reasons of the said Act reads thus:\n<\/p>\n
                   4          The Bill, inter alia, seeks to<\/p>\n
                  provide for the following –\n<\/p>\n
                       (i)It covers those women who are or<\/p>\n
                        have been in a relationship with the<\/p>\n
                        abuser where both parties have lived<\/p>\n
                        together in a shared household and<\/p>\n
                        are     related         by          consanguinity,<\/p>\n
                        marriage or through a relationship<\/p>\n
                        in     the   nature          of       marriage              or<\/p>\n
                        adoption.                      In             addition,<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                      24<\/span><\/p>\n
                    relationships           with      family           members<\/p>\n
                    living together as a joint family<\/p>\n
                    are also included.              Even those women<\/p>\n
                    who   are     sisters,         widows,            mothers,<\/p>\n
                    single      women,       or    living          with        the<\/p>\n
                    abuser       are        entitled             to        legal<\/p>\n
                    protection            under         the           proposed<\/p>\n
                    legislation.            However, whereas the<\/p>\n
                    Bill enables the wife or the female<\/p>\n
                    living      in    a     relationship               in      the<\/p>\n
                    nature      of        marriage          to        file         a<\/p>\n
                    complaint             under        the            proposed<\/p>\n
                    enactment        against       any       relative            of<\/p>\n
                    the husband or the male partner, it<\/p>\n
                    does not enable any female relative<\/p>\n
                    of the husband or the male partner<\/p>\n
                    to file complaint against the wife<\/p>\n
                    or the female partner.\n<\/p>\n
                                          (emphasis added)<\/p>\n
     Thus even the statement of objects and reasons<\/p>\n
     also refers to `any relative                 of the husband or<\/p>\n
     the   male   partner.   In      my     considered           view,         the<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                            25<\/span><\/p>\n
      relative       within         the        meaning         of       proviso           to<\/p>\n
     section 2(q)<\/a> cannot be only a male relative and<\/p>\n
     the relative referred to in proviso to clause<\/p>\n
     (q) of section 2<\/a> can                 also    be a female relative<\/p>\n
     of the husband or the male partner,                               as the case<\/p>\n
     may be.       Thus, when an aggrieved person is a<\/p>\n
     person to whom the              proviso            to section 2(q)<\/a> is<\/p>\n
     applicable,         a    respondent          in         the        application<\/p>\n
     under   section
\n                     ig       12    can    be    a       male       or        a   female<\/p>\n
     relative of the husband or the                          male partner, as<\/p>\n
     the    case    may       be.         If     an      application                under<\/p>\n
     section 12<\/a>          is filed by such aggrieved person,<\/p>\n
     i.e,    the wife or the female to whom proviso to<\/p>\n
     section      2(q)<\/a>       is    applicable,               or      is       filed       on<\/p>\n
     behalf of such aggrieved persons,                                    a       female<\/p>\n
     relative      of the husband or the male partner can<\/p>\n
     be a respondent                However, whether a relief can<\/p>\n
     be granted against the female relative of the<\/p>\n
     husband or the male partner will                              depend on the<\/p>\n
     nature of the reliefs sought and the facts and<\/p>\n
     circumstances of the case.                        As stated earlier,<\/p>\n
     some    of    the       reliefs      such        as      a     relief          under<\/p>\n
     clause (b) of sub-section (1) of the section 19<\/a><\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                           26<\/span><\/p>\n
     can never be granted against the female relative<\/p>\n
     of husband or               the male partner.                 Similarly, as<\/p>\n
     held by the Apex Court in the case of S.R.Batra<\/p>\n
     (supra),       a       relief      under    clause            (f)       of      sub-\n<\/p>\n
     section     (1)        of    section       19<\/a>     cannot          be      granted<\/p>\n
     against a relative                 of the husband or the male<\/p>\n
     partner.           A    relief      can    be     granted           against           a<\/p>\n
     female relative of a husband or a male partner<\/p>\n
     only   if   a<\/p>\n
                        relief         against       such      a     relative            is<\/p>\n
     capable of being granted under sections 18<\/a> to 22<\/a><\/p>\n
     of the said Act.\n<\/p>\n
     15          Perusal          of     the     decisions              of       Madhya<\/p>\n
     Pradesh     and        Andhra      Pradesh        High        Courts          shows<\/p>\n
     that     the       aforesaid         aspects           have          not        been<\/p>\n
     considered by the High Courts.                            To that extent<\/p>\n
     the    learned         Sessions       Judge        has        committed             an<\/p>\n
     error.\n<\/p>\n
     16          Now, it will be necessary to go back to<\/p>\n
     the facts of the case.                    The           applicant                   is<\/p>\n
     claiming a relief in respect of a house which<\/p>\n
     according to her is a                shared household.                        It is<\/p>\n
     observed        in       the       impugned          Judgment                   that<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                      27<\/span><\/p>\n
     documents placed on record which have not been<\/p>\n
     disputed by the revision                applicant show that<\/p>\n
     the alleged shared household is standing in the<\/p>\n
     name    of   her    mother-in-law,              i.e,         the       first<\/p>\n
     respondent.         A    copy   of   the     application               under<\/p>\n
     section 12<\/a> filed by the              revision applicant is<\/p>\n
     placed on record.           In the said application, it<\/p>\n
     is    alleged     that    the   house      was       owned         by      the<\/p>\n
     father-in-law who is no more.                  However, as held<\/p>\n
     by the Sessions Court, the documents on record<\/p>\n
     show that the house stands in the name of the<\/p>\n
     mother-in-law. In view of the law laid down by<\/p>\n
     the Apex Court            in the case of S.R.Batra and<\/p>\n
     another      (supra),            while        considering                  the<\/p>\n
     application        for    interim     relief,           the        learned<\/p>\n
     Sessions Judge was right in holding that                                   the<\/p>\n
     documents placed on record prima facie show that<\/p>\n
     the    property     claimed     by   the     applicant             is      the<\/p>\n
     property of her mother-in-law.                            It must be<\/p>\n
     noted     that the learned Judge was not finally<\/p>\n
     deciding the application under section 12<\/a> but<\/p>\n
     was    dealing     with    an    application             for       interim<\/p>\n
     relief. Therefore, it is not possible to find<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                                      28<\/span><\/p>\n
     fault   with   the       impugned     order.         However,             the<\/p>\n
     learned Sessions Judge has committed an error by<\/p>\n
     ordering    deletion       of   the   names        of     the       female<\/p>\n
     relatives of the husband in as much as this case<\/p>\n
     is covered by the proviso to section 2(q)<\/a> of the<\/p>\n
     said Act.\n<\/p>\n
     17         Hence, I pass the following order :\n<\/p>\n
          i)That part of the impugned order, by which<\/p>\n
          application under section 12<\/a> of the said Act<\/p>\n
          has    been        dismissed     against            the        female<\/p>\n
          relatives     of     the   applicant,is            quashed           and<\/p>\n
          set aside.         It is clarified that the female<\/p>\n
          family members of the husband will continue<\/p>\n
          to be respondents to the application.\n<\/p><\/blockquote>\n
          ii)Rest       of     the    impugned           order           stands<\/p>\n
          confirmed.<\/p><\/blockquote>\n
          iii)It is made clear that               the learned trial<\/p>\n
          Judge will decide the main application under<\/p>\n
          section 12<\/a> of the said Act                      without being<\/p>\n
          influenced by the impugned order passed by<\/p>\n
          the Sessions Court.              The findings recorded<\/p>\n
          by the Sessions Court are only prima facie<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>
\n                         29<\/span><\/p>\n
     findings.\n<\/p>\n
     iv)Revision Application      is partly allowed<\/p>\n
     in above terms.\n<\/p>\n
                                  JUDGE<\/p>\n
                               ::: Downloaded on – 09\/06\/2013 14:56:20 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Archana Hemant Naik vs Urmilaben I. Naik And Anr on 25 August, 2009 Bench: A.S. Oka 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL REVISION APPLICATION NO.590 OF 2008 Archana Hemant Naik …Applicant vs. Urmilaben I. Naik and Anr. …Respondents Ms Anjali Helekar for the applicant Mr.C.M.Kothari […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-257482","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nArchana Hemant Naik vs Urmilaben I. Naik And Anr on 25 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/archana-hemant-naik-vs-urmilaben-i-naik-and-anr-on-25-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Archana Hemant Naik vs Urmilaben I. 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