Oral Judgment:
1. Rule. Rule is made returnable forthwith. Learned Adv. Mr. H.N. Bhondge waives service for respondent no.1, and learned APP Mr. P.V. Bhoyar, for respondent no.2. Heard learned counsel for the rival parties. By consent of rival parties, this Criminal Writ Petition is taken up for final hearing and disposed of by this Judgment and Order.
2. Challenge in the present Writ Petition is to the concurrent orders passed by learned Judicial Magistrate First Class, Zari Jamni, Distt. Yavatmal, in Misc. Criminal Case No. 14 of 2013 together with the Judgment and Order passed by the learned Ad Hoc Additional Sessions Judge, Kelapur, in Criminal Appeal No. 11 of 2014, dated 4th December, 2014.
3. Respondent No.1 is the legally wedded wife of petitioner no.1. Their marriage took place on 22nd November, 2010 and it is still in subsistence.
She filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 [hereinafter referred to as âthe Actâ? for brevity] against the petitioners. The same was registered as Misc. Criminal Case No. 14 of 2013. By filing the said complaint, respondent-wife claimed following reliefs against the petitioners:-
â[a] The Non-applicants should not commit any domestic violence against the applicant.
[b] The Non-applicants should not obstruct the applicant to stay in the flat owned by them at Nanded and during her stay, the applicant should not be driven away.
[c] The applicant should be paid maintenance/financial assistance at the rate of Rs. 7,000/- per month.â?
The application filed by the wife under Section 12 of the Act was contested by the petitioners.
4. In order to support her claim, the wife entered the witness box and also examined her witness Vishwas, her brother.
In spite of the sufficient opportunity, the petitioners failed to enter the witness box.
5. After evaluation of pleadings and available evidence on record, the learned Trial Magistrate reached to the conclusion that the petitioners have committed domestic violence against the wife. The learned Trial Magistrate also reached to the conclusion that she is having a right to stay in the flat at Nanded and she should not be evicted from the said flat. Though the wife claimed Rs. 7,000/- for her maintenance, the learned Trial Judge granted maintenance at the rate of Rs. 3,000/- per month.
6. The petitioners were aggrieved by the verdict that was handed down to them by the learned trial Magistrate. To test the correctness of such verdict, they preferred an appeal, i.e., Criminal Appeal No. 11 of 2014. The same was made over to the file of Ad Hoc Additional Sessions Judge, Kelapur. After hearing the parties to the appeal, on 4th December, 2014, the learned Lower Appellate Court confirmed the Judgment and Order passed by the learned Magistrate by dismissing the appeal. Hence the present Writ Petition.
7. Learned counsel for the petitioner Mr. P.V. Kulkarni challenged the order of the Magistrate in granting entitlement of residence in a flat at Nanded to the respondent â“ wife. The entire submission of the learned counsel for the petitioner was restricted only to the said relief granted in favour of the respondent-wife.
The learned counsel for the petitioner challenged such order in favour of the respondent-wife on the ground that the flat at Nanded is already rented out by the petitioner to one Shri Arun Deshmukh and he is in possession thereof and he has also filed a civil suit in respect of the same against the petitioner no.1 and the present respondent no.1 â“ wife. He has also invited my attention to the copy of the plaint filed by said tenant Mr. Arun Deshmukh which is instituted in the Court of Civil Judge [Senior Division], Nanded, bearing Regular Civil Suit No. 510 of 2014. He also submitted that the said flat is not owned by petitioner no.1, but it belongs to petitioner no.4 â“ Sau. Vijaya wife of Prakash Maggidwar. Therefore, he submitted that the impugned order needs interference.
8. In my view, the submissions as advanced by the learned counsel for and on behalf of the petitioner are highly misplaced and contrary to the record. The submission of the learned counsel that the flat at Nanded belongs to petitioner no.4 alone cannot be accepted. Petitioner no.4 â“ Vijaya is the mother of petitioner no.1 and is, thus, the mother-in-law of the respondent no.1 â“ wife.
In para 4 of the Written Statement, so far as the flat and house are concerned, following is the pleading of petitioners:-
âFlat and house are rope ties of joint family.â?
Thus, the petitioners themselves have admitted through their pleadings that the flat at Nanded is a joint family property.
9. In so far as the induction of a tenant and Regular Civil Suit No. 510 of 2014 filed by the said tenant is concerned, it is to be noted that the learned Trial Court passed an order on 28th March, 2014, whereas the suit for perpetual injunction by said tenant Arun Deshmukh is filed on 14th December, 2014. Thus, the said suit is filed after the order was passed by the learned Magistrate against the petitioners.
The Written Statement in domestic violence proceedings was passed by the petitioners on 20th December, 2013. In the suit filed on behalf of the tenant, it is alleged that on 1st August, 2013, the petitioner no.1 executed a Rent-Deed. Thus, the alleged Rent Deed is prior to the date of filing of the Written Statement dated 20th December, 2013. In spite of the same, the Written Statement is conspicuous by its absence in respect of having any reference either to the said Rent Deed or that the flat is rented out to said Arun Deshmukh.
Further, the law will take its own course in so far as Regular Civil Suit No. 510 of 2014 filed by the tenant Arun Deshmukh is concerned. However, surely, in the aforesaid state of affairs as observed on perusal of the record, the right of residence, which is concurrently granted by the courts below in favour of the respondent no.1 â“ wife, cannot be defeated on such a suit filed by a third person.
10. The upshot of the aforesaid discussion leads me to pass the following order:-
ORDER
Criminal Writ Petition No. 3 of 2015 is dismissed. No costs.
Rule is discharged.