1 81 wp.983.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 983 OF 2010 Mrs. Prapti Prabhakar Raut. ... Petitioner Versus 1. Prabhakar Damodar Raut. 2. The State of Maharashtra. ... Respondents ----- Ms Savina Bangera i/b Mr. V.P.Vaidya for the Petitioner. Mr. M.A.Noorani for the Respondent No.1. ----- CORAM : A.S.OKA, J. DATE : 20 th October, 2011. P.C. 1 Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for Respondent No.1. By consent, taken up for final disposal. 2 The Petitioner is the wife of Respondent No.1. The Petitioner made an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the said Act”). By the order dated 7 th July, 2009, the application made 2 81 wp.983.10 by the Petitioner was allowed. The operative part of the said order reads thus: “O R D E R a) Application is allowed. b) The Respondent is directed by protection order to restrain from committing any domestic violence or aid and abet domestic violence and shall not enter her place of employment and shall not communicate in form of personal contact, oral or written communication or by telephonic contact to the applicant. c) The Respondent shall restrain from disturbing the occupation of the applicant and her children in her share household i.e. House No.604, Talekhal, Grampanchayat, Man. Taluka: Palghar, Dist. Thane. d) No order to cost.” An appeal was preferred by the Respondent No.1. The appeal was partly allowed. The operative part of the said order reads thus: “O R D E R 1. The Appeal is partly allowed. 2. The order passed by Ld. J.M.F.C. (II Court), Palghar, in Misc. Application No.286/2007 is maintained with following modification in clause-C of the said order. C-1) The Respondent is restrained from disturbing the occupation of the applicant and her children in her share household i.e. House No.604, Telekhal, Grampanchayat, Man, Taluka – Palghar, Dist. 3 81 wp.983.10 Thane. C-2) The Opponent shall stay on the ground floor of the said house by creating a separate entrance for the applicant from the northern side of the house near the staircase to allow the applicant to use the first floor. C-3) The portion of the house in possession of the applicant and the opponent be segregated by creating a partition in the northern front room near the staircase. 3. The Opponent shall spend for creating the entrance for the applicant and also for the partition. 4. No order as to costs.” 3 The submission of the learned counsel appearing for the Petitioner is that the learned Sessions Judge has exceed the jurisdiction vested in him. The submission is that the learned Sessions Judge could not have exercised the powers, which could not have been exercised by the learned Magistrate while deciding the application made by the Petitioner. The submission is that while passing the order regarding shared household, the Sessions Court has directed the partition of the shared household and the learned Judge was not competent to do the same after recording a finding that 4 81 wp.983.10 there is a domestic violence inflicted by the Respondent No.1. She submitted that the case of the Petitioner was that she had constructed the house in question. She submitted that the Sessions Court cannot order partition of the house constructed by the Petitioner while deciding the application of the Petitioner. 4 The learned counsel appearing for the Respondent No.1 relied upon the contentions raised in the affidavit-in-reply. He placed reliance on the order dated 1 st September, 2008 passed by the learned Magistrate. He submitted that the learned Magistrate passed an order, which will have the effect of dispossessing the Respondent No.1 from the shared household. He submitted that to ensure that the Respondent No.1 – husband is not prevented from using the shared household, a workable arrangement has been made by the learned Sessions Judge with which no interference is called for. He submitted that considering the reasonable arrangement made between the parties, this Court should not interfere with the impugned order. 5 81 wp.983.10 5 I have carefully considered the submissions. The order dated 7 th July, 2009 passed by the learned Magistrate is in two parts. The first apart grants protection order under Section 18 of the said Act. The Sessions Court has not disturbed the said part. Clause (C) of the operate part of the order of the learned Magistrate is a residence order as provided under Section 19 of the said Act. 6 Under Section 19(1) of the said Act, various categories of orders can be passed. One category of order is of restraining the Respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household. There is a power to issue direction to the Respondent to remove himself from the shared household. There is a power to restrain the Respondent from entering in any portion of the shared household in which the aggrieved person resides. 7 Initially, the learned Magistrate passed an order dated 1 st September, 2008 granting protection order as well as granting the 6 81 wp.983.10 order directing removal of the Respondent No.1 from the shared household. The said order was set aside and the matter was remanded to the learned Magistrate. The order dated 7 th July, 2009 has been passed on remand. The said order does not direct removal of the Respondent No.1 from the shared household. In fact, one of the prayers made by the Petitioner was for direction to the Respondent No. 1 to remove himself. However, the learned Magistrate has not passed an order of removing the Respondent No.1 from the shared household. The Petitioner did not challenge the order of the learned Magistrate and the appeal was preferred by the Respondent No.1. In the present case, the Sessions Court has directed that the Petitioner shall stay on the ground floor of the house and the Respondent No.1 shall stay on the first floor. The learned Sessions Judge has directed that a separate entrance for the Respondent No.1 shall be created from the northern side of the house. The learned Sessions Judge also directed that a partition shall be created for segregating the two partitions of the house. Clause (3) of the operative part of the impugned order 7 81 wp.983.10 suggests that the expenses of creating separate entrance and partition shall be borne by the Respondent No.1. 8 Perhaps, the object of the order passed by the Sessions Court appears to be that the Petitioner and the Respondent No.1 shall stay separately. While deciding an appeal arising out of an order passed on the application under Section 12 of the said Act, an order virtually directing the partition of the house has been passed. Before both the Courts below, the specific contention of the Petitioner is that by obtaining loan, she had constructed the house. The case of the Respondent No.1 is that he has constructed the house. Both the Courts below have not recorded any specific finding on this aspect. Before passing a drastic order of partition, this aspect ought to have been considered especially when the prayer of the Petitioner was that the Respondent No.1 shall remove himself from the house. 9 The order of the learned Magistrate protects the occupation of the Petitioner and her children of the entire shared 8 81 wp.983.10 household. In the circumstances, the drastic order passed by the Sessions Court without recording proper findings will have to be quashed and set aside and the appeal will have to be remitted to the Sessions Court for fresh decision. 10 Hence, I pass the following order: i. The impugned judgment and order dated 6 th March, 2010 is quashed and set aside ; ii. The Criminal Appeal No.14 of 2009 is restored to the file of the Sessions Court ; iii. The parties are directed to appear before the Additional Sessions Judge at Palghar on 28 th November, 2011 for fixing the schedule of hearing of the appeal ; iv. The learned Sessions Judge shall hear and decide the appeal afresh as expeditiously as possible ; v. All contentions of the parties on merits of the appeal are expressly kept open ; and 9 81 wp.983.10 vi. The writ petition is partly allowed on above terms with no order as to costs. [ A.S.OKA, J ]