1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITON NO.2951 OF 2011 Shri.Mritynjay Kumar Jain & Anr. .. Petitioners V/s Smt.Sangeeta Prakash Chand & Anr. .. Respondents Mr.S.A.Sawant with Ms.G.Shah for the petitioners. Ms.Veena Gowda for Respondent No.1. Ms.U.V.Kejriwal, A.P.P.for the State. CORAM: R.G.KETKAR, J. DATE: 13th October, 2011. P.C.: 1. Heard Mr.S.A.Sawant, learned counsel for the petitioners, Ms.Veena Gowda, learned counsel for Respondent No.1, and Mrs.U.V.Kejriwal, learned A.P.P.for the State. 2. Rule. Learned counsel for the respective Respondent waive service. By consent of the parties, Rule is made returnable forthwith and is heard finally. 3. By this petition, the petitioners are challenging the judgment and order dated 25.05.2011 passed by the learned Metropolitan Magistrate, 22nd Court, Andheri, Mumbai, below Application dated 1.12.2010 as also the judgment and order dated 04.08.2011 passed by the learned Additional Sessions Judge, Gr.Mumbai in Appeal No.319 of 2011. 2 4. By the order dated 25.05.2011 the learned Metropolitan Magistrate allowed the application made by the 1st Respondent. Clauses 2, 3, 4, 5 and 6 of the operative order read thus: “2. The respondents (petitioners herein) are hereby directed to remove themselves (within 48 hours) from the flat presently occupied by the applicant, her husband & her daughter. The respondents shall however be entitled to pay daily visits for an hour to their bed ridden son & for the said purpose, they shall be at liberty to enter the said premises. 3. The respondents shall extend every help & co- operation (including making applications to the concerned bank, giving NOC etc.) to enable the applicant to access the current bank account held by her husband with HDFC bank, Branch Lokhandwala. 4. The respondents shall incur the entire medical expenses of their ailing son Prakashchand Jain which shall include part time nursing at the hands of a professional (if required). 5. The respondents shall refrain from communicating with the applicant except in connection with the medical requirements of Mr.Prakashchand Jain. 6. The respondents shall not cause any sort of obstruction to the applicant in conducting the business of her husband.” 5. By order dated 04.08.2011, learned Sessions Judge substantially maintained clauses 2, 3, 5 & 6 of the operative order of the learned Metropolitan Magistrate. Clause 4 of the operative order directing the petitioners herein to incur the entire medical 3 expenses of their ailing son Prakashchand was quashed and set aside mainly on the ground that the 1st Respondent expressed her readiness and willingness to incur the medical expenses of her husband provided she is allowed to run the business of her husband and operate Bank Account of his business. 6. Petitioner No.1 is the father and Petitioner No.2 is the mother of Prakashchand. Respondent No.1 is the wife of said Prakashchand. Petitioners shall hereinafter be referred as the parents. Respondent No.1 hereinafter be referred as wife and said Prakashchand shall hereinafter be referred as the husband. 7. The 1st Respondent wife filed application under section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) contending interalia that the marriage between her and her husband Praksahchand was solemnized in the year 1992. It was represented to her that the husband is M.B.A.and is gainfully employed. However it turned out to be false and he was only B.Com.and was also unemployed. The parents started harassing her in respect of dowry as according to them she did not bring dowry as per their expectations and had brought lesser cash amount and electronics. 4 8. After marriage wife and husband were residing at Flat No.703 and Flat No.704, Magnum Tower, Lokhandwala Complex, Andheri (W), Mumbai 400053. The Flat No.703 stood in the name of Petitioner No.2 & Flat No.704 stood in the name of Madhav Jain, brother in law of the 1st Respondent wife. However, the said property is joint family property. It is the case of the wife that husband developed vices of chronic alcoholism and womanizing. He started harassing and torturing her regularly on some pretext or the other. In 1993 she gave birth to a girl child by name “Sakshi”. The birth of girl child was not appreciated by the parents and other members of the family. The incidents of torture and harassment to her by the parents and other family members increased and the situation became worst. She was compelled to leave her matrimonial home alongwith her daughter in the year 1998 and go to Kolkatta in order to protect herself and her daughter. She had informed the local police station about her leaving the matrimonial house because of the physical and mental abuses inflicted by the parents and other family members. It is her case that the parents were residing at Samastipur, Bihar where the Petitioner No.1 was carrying on cloth business. 5 9. It is her case that though she was driven out of the matrimonial home alongwith her daughter, the parents and her husband lodged a missing complaint. After publication of this advertisement, the family of the wife also issued clarification in this regard. The husband visited the wife at her brother’s house in Kolkatta between 1999-2000. On the assurance given by her husband and after the written undertaking, she returned to Mumbai alongwith her daughter. It is her specific case that on the advice of well wishers and friends of her husband, it was decided that the parents shall stay separately and separate flat was purchased in the vicinity being Flat No.1, Galactica Tower, 3rd Cross Lane, Lokhandwala Complex, Andheri (W), Mumbai – 400 053 in the joint names of parents, her husband and the brother in law of the wife. Her husband purchased the shop being Shop No.3, B/26, Wellington Building, Shastri Nagar, Andheri (W), Mumbai. He started his chemical business from the said premises. Thereafter, he started courier business in the year 2000 where the wife was assisting him for the next four years. The vices of her husband became major issue and the husband was compelled to close down his chemical business. Subsequently, the husband suffered 6 paralytic stroke due to brain hemorrhage in the month of November, 2009. He was admitted in Kokilaben Dhirubhai Ambani Hispital on 08.11.2009. It is her case that she was teaching in City International School, but she had to leave her job because of her husband’s hospitalization. She had to sell her remaining jewellery and made the payment of Rs.2 lakhs to the hospital. Even at the hospital she was harassed and tortured by the parents and their family members. Though the parents were residing separately in Galactica Tower, on 20.10.2010 they alongwith their two daughters and their elder son-in-law forcefully entered the matrimonial home. It is in these circumstances, she instituted the application under section 12 of the Act claiming several reliefs. 10.The parents filed a detailed reply dated 09.12.2010. It was interalia contended that after the marriage in the year 1992, the wife and husband were staying in Flat No.703 and 704, Magnum Tower, ( suit premises) with Petitioner No.2 Nirmaladevi and her younger son Madhav. Petitioner No.1 was residing at Samstipur, Bihar, where he had a cloth business. He used to occasionally visit Petitioner No.2 and the children. The parents and husband 7 were not happy due to arrogant nature and lavish lifestyle of the wife. She never performed her duties as housewife in the matrimonial house and was only interested in expensive shopping, clothing and articles for herself. It was further contended that in the year 1998 wife took her daughter without informing anyone and left her matrimonial house and disappeared. The husband had made a written complaint to the Oshiwara Police Station on 29.06.1998 and had published advertisement for missing of wife alongwith the daughter. Sometime in the year 1999 the wife alongwith the minor daughter came back to the matrimonial house. However, the parents and husband never had a peace of mind. In the year 2000 the parents decided to stay separately from the wife and husband and Petitioner No.1 purchased Flat No.101 at Galactica Tower. However they used to frequently visit their son Prakashchand and the grand-daughter Sakshi. The chemical business of the husband came to standstill due to severe competition and inadequate profits. The losses were partly covered by the husband through his own savings and partly through the help given by Petitioner No.1. On 8th November, 2009, husband suffered stroke of brain 8 hemorrhage and he was rushed to the hospital. It was contended that the wife never cared to attend her bed-ridden husband and the huge amount of Rs.18 lakhs was spent on the hospital bills. The entire expenses of the prolonged hospitalization of the husband were borne by Petitioner No.1. It is their case that the wife changed the name of proprietory concern of her hushand from ‘Prakash Forwarding Agency’ to ‘Sakshi Enterprises. It was also contended that the wife had instituted suit under the Mental Health Act, 1987 before this Court for appointing her as a caretaker and manager of immovable properties and the bank accounts of her husband. On these among other grounds, the parents resisted the application. 11.In support of this petition, Mr.Sawant submitted that by clause 4 of the operative order of the learned Metropolitan Magistrate the parents were to incur entire medical expenses of their ailing son. The learned Sessions Judge set aside that clause. However, no further direction was given to the wife to bear the medical expenses. He submitted that the husband is bed ridden and is suffering from brain hemorrhage and it is imperative that he is given proper medical treatment. However, the learned Sessions 9 Judge after quashing clause 4 of the operative order of the learned Metropolitan Magistrate, has not given any direction as to who should bear the medical expenses of the husband. He further submitted that the Courts below committed serious error in directing the parents to remove themselves from the suit premises, and in particular, in so far as the petitioner No.2 is concerned. He submitted that admittedly, these two flats are in the name of Petitioner No.2 Smt.Nirmala Devi Jain (Flat No.703) and Madhav Jain (Flat No.704). Having regard to the proviso to section 19(1)(b) of the Act, the Courts below were not justified in passing that order against the petitioner No.2 who is a woman. In support of this submission, he relied upon the judgment of the Apex Court in the case of S.R.Batra & Anr. V/s.Taruna Batra, (2007) 2 SCC (Cri) 56. He further submitted that the parents are seriously concerned about the medical treatment given to their son Prakashchand, and in fact till date they have spent Rs.18 lakhs towards the medical treatment. Having regard to the serious nature of illness of their son, the wife should not be allowed to operate the Bank account of their son and if any payments are to be made from the account of their son, the payments should be 10 made only towards the medical expenses under the supervision of an officer to be appointed by this Court and the payment should be made by way of cheque only. He further submitted that the Flat Nos.703 & 704 were amalgamated into one and the parents may be permitted to reside in one of the flats alongwith their bed ridden son. He also invited my attention to the fact that the wife had initiated proceedings under the Mental Health Act, 1987 on 26.05.2010 for appointing her as caretaker and manager of the immovable properties and bank accounts of her husband. However, the said proceeding was not pursued further and was dismissed. He therefore submitted that the impugned orders deserve to be interfered with. 12.On the other hand, learned counsel for the wife supported the impugned orders. She submitted that the daughter is about 17 years of age and during the course of hearing before the learned Sessions Judge she was informally enquired as to whether the 1st Respondent is taking proper care of her father. The daughter disclosed that her mother is taking proper care of her father. She further submitted that husband suffered a paralytic stroke due to brain hemorrhage on 08.11.2009. It was she who admitted him to 11 the hospital and that she is also running the business of courier services of her husband. She has obtained the business loans and for the purpose of repayment of these business loans, as also for giving proper medical treatment to her husband it is necessary that she is allowed to operate the bank account of her husband. Learned counsel for the wife further submitted that she is also required to look after and maintain her house and having regard to the growing needs of her daughter, she may be permitted to operate the bank account of her husband. In so far as the contentions based upon section 19(1)(b) of the Act is concerned, she submitted that the parents are residing at Flat No.101, Galactica Tower, 3rd Cross Lane, Lokhandwala Complex, Andheri (W), Mumbai as and by way of family arrangement, and therefore, the Courts were justified in issuing the directions. 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 12 home in the year 1998, nonetheless she came back in the year 1999 and till date she is residing in the suit premises. 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 this 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 alongwith the respondent and 13 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. 15.The submission of Mr.Sawant that since two flats are amalgamated into one and the parents may be permitted to reside in one of the flats alongwith their son Prakashchand, cannot be accepted in view of the reasons recorded by me earlier. 16.In so far as the running of business and operating of bank account of Mr.Prakashchand is concerned, the learned counsel for the wife contended that the parents are not running the business and she is running the business of her husband on account of his illness. In these circumstances, it is submitted that she may be permitted to 14 operate the bank account of her husband so as to meet the medical expenses as also to pay the business loans and take care of the household expenses. Learned counsel further submitted that she is reiterating her statement which is recorded by the learned Sessions Judge in Paragraph No.9 of the order to the effect that she is ready to incur the medical expenses of her husband provided she is allowed to run the business and allowed to operate the bank account of her husband. 17.In view of this, I do not find that the Courts below have committed any error in passing the impugned orders. In fact the learned Sessions Judge has modified the order passed by the learned Metropolitan Magistrate in respect of the daily visit of the parents to their ailing son and the parents are at liberty to give daily visit for three hours during 12.00 noon to 03.00 p.m. 18.Taking overall view of the matter, in my opinion, no case is made out for interference under Article 227 of the Constitution of India. Petition fails and the same is dismissed. Rule is discharged. In the circumstances of the case, there shall be no order as to costs. (R.G.KETKAR, J.)