C A no.8712/16 [ENTITY] & Ors v. [ENTITY] 04.02.2017 Pre: Ld. APP for the State. None for the parties. File perused, vide separate detailed order placed along side in the file, impugned order dated 04.12.2015 is set aside qua appellants [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. Further, on careful perusal of the impugned order dated 04.12.2015 it reveals that it is a non-speaking order which impact the principle of fair hearing to the appellants. Accordingly, appeal petition stands disposed of. Trial Court record, if any, be sent back with an attested copy of the order to proceed in accordance with law. Appeal petition/ proceedings be consigned to record room. ([ENTITY]) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI 1 IN THE COURT OF SH. [ENTITY], ADDITIONAL SESSIONS JUDGE (03) , PATIALA HOUSE COURT, NEW DELHI [CASE NUMBER] IN THE MATTER OF : [ENTITY] [[ENTITY] - of respondent [ENTITY]] [ENTITY] [[ENTITY]- of respondent [ENTITY]] [ENTITY] s/o [ENTITY] [son-in-law - f respondent [ENTITY]] [ENTITY] s/o [ENTITY] [son-in-law - of respondent [ENTITY]] all r/o H. No. 224, 3rd Floor, Humayunpur, Safdarjung Enclave, New Delhi. Appellants Versus [ENTITY] w/o [ENTITY] H. No. 151 A, Block-A, Gali no.8, Khasra no.109, Harijan Colony, Nasirpur, New Delhi. Respondent [ENTITY] :
1. This appeal has been filed under [SECTION] of the [ACT] against the order dated 04.12.2015 (hereinafter referred as impugned order) passed by the Court of Ld Trial Court in [CASE NUMBER] whereby ld. Trial court has issued summons to the Appellants on the application filed by the Respondent under [SECTION] of the [ACT].
2. Briefly facts of the case are that a petition has been filed u/[SECTION] of the [ACT] by the respondent against the appellants. Ld. Trial Court after having gone through the whole case file and material on record issued summons to the appellants on finding sufficient material on record vide impugned order dated 04.12.2015, wherein it has been observed that:-
"04.12.2015 Present: Complainant with counsel.
DIR is already filed.
Heard. Record perused.
Considering that the complainant is residing within the jurisdiction of PS Sagarpur, therefore, this court has territorial jurisdiction to entertain the present case.
Statement of complainant u/[SECTION] [ACT] has been recorded separately today.
Considering the overall facts and circumstance of the case, there is sufficient material on record to issue notice to all the respondents.
Let notice be issued against the all the respondents on filing of PF/RC returnable on 29.02.2016."
Feeling aggrieved with the impugned order dated 04.10.2015, ld. Counsel for the appellants filed this appeal petition.
3. Arguments were heard at length. None for the respondent appeared to argue the case. During the course of arguments Ld. Counsel for the appellant submitted that the above complaint case under [ACT] has been filed by the respondent with the ulterior motive of harassing and character assassination of the Appellants and destroy their image in the society.
4. Ld. counsel for the appellants again submitted that the Respondent was served through various modes i.e. through Speed Post and through the counsel appearing in the lower court and as well as through publication in News Paper. However, the Respondent preferred not to appear before this Hon'ble Court.
5. Ld. counsel for the appellants further submitted that notices / summons have been issued without application of mind by Learned Metropolitan Magistrate and without considering the contents of the complaint. It is further submitted that Appellants have been residing at different places than that of the Complainant / Respondent even then, on flimsy grounds they have also been implicated in this complaint case. Whereas, main dispute is between the husband and wife Appellants have unnecessarily been roped in and implicated, therefore the complaint has to be quashed. In this regard, ld. Counsel for the appellants has relied upon the judgment '[PRECEDENT]' the Hon'ble Madhya Pradesh High Court has held that:
"In view of all, as discussed herein above and in the light of law laid down by the Apex Court in the case of State of Haryana and others v. Bhajan Lal and others, (1992) Supp.
(1) SCC 335 : I (2006) CCR (SC) = (1992) Supp., I am of the view that the petition deserves to be allowed. Consequently, it is hereby allowed. The proceedings pending in the Court of JMFC, Ambah, District Morena in [CASE NUMBER] ( Smt . [PRECEDENT], so far as it relates to the petitioners are liable to be and hereby quashed."
6. Ld. counsel for the appellants again submitted that instant complaint is not maintainable under the eyes of the law since in order to make a person as Respondent in a petition under [SECTION], of the [ACT], there must exist a domestic relationship between the Respondent and the Aggrieved Person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act. Domestic relationship is defined under [SECTION] of the Act and is as under:
"domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
7. Ld. counsel for the appellant again submitted that the Respondent / Complainant is not an aggrieved person as per [SECTION] of the [ACT] since there was no domestic relation between the parties and therefore no complaint is maintainable against the Appellants. The instant case is a frivolous case just to harass the Appellants and to settle her personal grudges against the Appellants. The extract of the [SECTION] of the [ACT] is as follows:
"aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent"
8. Ld. counsel for the appellants further submitted that the Hon'ble High Court of Delhi in "[PRECEDENT] has laid down that:
"It is apparent that in order to make a person as respondent in a petition under [SECTION], there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act."
"It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under [ACT] is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there."
9. Ld. counsel for the appellants again submitted that the appellants have never been into on shared household with the respondent since appellants have a separate matrimonial home and the present address of the appellants is the matrimonial house of the appellants wherein they have been residing for more than 30 years and the Respondent has never resided nor shared the household with the appellant in there matrimonial house. A bare reading of the definition of [SECTION] of the [ACT] which talks about shared household, does the Respondent has drawn the line as per the definition, whether the Appellants are under the said definition. The extract of the [SECTION] of the [ACT] is 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 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."
10. The Hon'ble Apex Court in "[PRECEDENT]]", had held that t he wife, is only entitled to claim any protection or maintenance under the act, in a share house hold in which husband has a share and "a shared household" would only mean house belonging to or taken on rent by husband, or house which belongs to joint family of which husband is a member . Ld. counsel for the appellants further submitted that there are no specific allegations alleged against the Appellants in the said complaint case. It is also submitted that the Appellants have never been into the domestic relationship with the Respondent / Complainant hence no case under the [ACT] is maintainable against the Appellants.
11.Ld. counsel for the appellants further submitted that the appellants have been living separately at House No. 224, 3 rd Floor, Humayunpur, Safdarjung Enclave, New Delhi whereas the matrimonial house of the Respondent / Complainant is at House No. 151 A, Block A, Gali No. 8, Nasirpur Colony, New Delhi as mentioned in her complaint. It is further pertinent to mention that the respondent has separate matrimonial house and Appellants are residing in their respective houses / dwellings. Thus, the essential ingredient laid down under [SECTION] of the Act are not fulfilled as the Appellants were not residing with the Respondent / Complainant, therefore, there was no domestic relationship and question of Appellants committing any kind of domestic violence against Respondent / Complainant. In support of his contentions, ld. Counsel for the appellants again relied upon the judgment "[PRECEDENT]" (CRIMINAL PETITION No. 11446/2013) & judgment "[PRECEDENT]" wherein it has been held that:
"the claim for alternative accommodation under [SECTION] of the Act can only be made against the husband and not against the husband's in-laws or other relatives."
12. Ld. counsel for the appellants further relied upon the judgment "[PRECEDENT]" the Hon'ble Madhya Pradesh High Court held that:
"the wife is entitled to a right of residence in a shared house in which husband has a share only."
13. Ld. counsel for the appellants again submitted that merely because a person is sister and brother-in-law, he cannot be arrayed as a respondent, nor does MM gets authority over each and every relative of the husband, without going into the fact whether a domestic relationship or shared household was there between the aggrieved person and the respondent. On these grounds, ld. Counsel for the appellants submitted prayed to allow the present appeal of the Appellants and set aside the order dated 04.12.2016 passed by the Learned Metropolitan Magistrate, New Delhi.
14. Having given careful consideration to the submissions of ld. Counsel for the appellants I have perused the case file. It has come on record that appellant [ENTITY], who happens to be [ENTITY]; appellant [ENTITY], who happens to be [ENTITY]; appellants [ENTITY] & [ENTITY] are sons [ENTITY] and sons-in-law of respondent [ENTITY]. Besides, all appellants are residing at H. No. 224, 3rd Floor, Humayunpur, Safdarjung Enclave, New Delhi while matrimonial house of the Respondent [ENTITY] is situated at House No. 151 A, Block A, Gali No. 8, Nasirpur Colony, New Delhi. The respondent has separate matrimonial house. Thus, the essential ingredient laid down under [SECTION] of the Act are not fulfilled as the appellants do not appears to reside with the Respondent / Complainant, therefore, it impacts the domestic relationship with the respondent [ENTITY]. Further more, respondent was served through various modes i.e. through Speed Post and through the counsel appearing in the lower court and as well as through publication in News Paper 'Punjab Kesari' dated 01.12.2016. However, the Respondent neither appeared nor represented her case vide orders dated 31.08.2016; 22.09.2016; 14.10.2016; 11.11.2016; 08.12.2016; 09.01.2017; and 24.01.2017. Therefore, in the interest of justice, case is remanded back to the ld. Trial Court with the directions to pass a reasoned and speaking order. In light of these facts and circumstances of the case, the impugned order dated 04.12.2015 is set aside qua appellants [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. Further, on careful perusal of the impugned order dated 04.12.2015 it reveals that it is a non-speaking order which impact the principle of fair hearing to the appellants. Accordingly, appeal petition stands disposed of. Trial Court record, if any, be sent back with an attested copy of the order to proceed in accordance with law. Appeal petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 04.02.2017 ([ENTITY]) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI