: 1 : Rev-3-09.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CIVIL JURISDICTION CRIMINAL REVISION APPLICATION NO.3 OF 2009 Mrs. Dimple Rajesh Bhatia .. Applicant v/s. The State of Maharashtra & Ors. .. Respondents ......... Ms. Aileen Marques and Shri A.T. Marques for the applicant Mrs. M.M. Deshmukh, APP for respondent no.1 Mr. R.T. Lalwani for respondent no.3 Ms. M.M. Patel i/b Bhaishankar Kanga & Girdharilal for respondent no.2 ......... CORAM : R.Y.GANOO, J. DATE : 12th JULY, 2011 P.C. : 1. The applicant herein filed proceedings in the Court of learned Additional Chief Metropolitan Magistrate, 11th Court, Kurla, Mumbai being Application No.307/N/2007 against respondent nos. 2 and 3 under The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the said Act). The learned Additional Chief Metropolitan Magistrate, 11th Court, Kurla, Mumbai by his order dated 23rd April, 2008 granted an order against respondent no.3 thereby restraining him from dispossessing the applicant from 9, Lav-Kush Bungalow, Sindhi Co- operative Housing Society, Mumbai (hereinafter referred to as the said bungalow). He also ordered respondent no.3 from alienating / : 2 : Rev-3-09.sxw dispossessing from said bungalow. The rest of the prayers were rejected. Being aggrieved by this order dated 23rd April, 2008, the respondent no.2 filed Criminal Appeal No.316 of 2008 in the Court of learned Additional Sessions Judge for Greater Bombay. The learned Additional Sessions Judge for Greater Bombay has by his order dated 29th November, 2008 allowed appeal and order dated 23rd April, 2008 passed by the learned Additional Metropolitan Magistrate, 11th Court, Kurla, Mumbai against respondent no.3 is set aside. 2. The Revision Application is admitted. Accordingly, Rule is granted. Learned Counsel appearing on behalf of the respondents waive service. By consent of both sides, this Revision Application is taken up for hearing. 3. I have heard learned Counsel on both sides. It was sought to be contended by the learned advocate for the applicant before this Court that while passing order dated 29th November, 2008, the learned Additional Sessions Judge has not considered the entire matter in the proper perspective as also the provisions of law. It was sought to be submitted that Purshottam, father of respondent no.3 and husband of respondent no.2 expired on 17th February, 2006 and the learned Additional Sessions Judge has not considered the effect of opening of : 3 : Rev-3-09.sxw succession on account of death of Purshottam and effect of it as to who is the owner of the said bungalow, in regard to which a reference is found in order dated 23rd April, 2008. According to the learned Counsel for the applicant, if the said point of opening of succession is considered, the view taken by the learned Additional Sessions Judge that respondent no.2 would be the full owner of the said bungalow and that respondent no.3 will have no right whatsoever will turn out to be wrong. She submitted that if the entire matter is considered from this angle, the appeal should have been dismissed. 4. As against this, learned Counsel Mr. Lalwani appearing on behalf of the respondent no.3 contended that the provisions of the said Act are not applicable to the facts of this case and, therefore, no order could have been passed and in any case, this Court should not interfere in the impugned order dated 29th November, 2008. He also submitted that that the marriage between the applicant and respondent no.3 is dissolved in accordance with the provisions of law in June, 2010 and, therefore, after June, 2010 the applicant would not be able to claim the benefits of the said Act and this aspect is also now required to be considered by this Court. He of course, pointed out that in the year 2008 when the impugned order was passed, the marriage between the applicant and the respondent no.3 was subsisting. Learned Counsel Mr. : 4 : Rev-3-09.sxw Lalwani further pointed out that efforts were made to try to put an end to the matter, however, as of today, those efforts have failed. 5. After having considered the rival submissions, I am inclined to observe that the order passed by the learned Additional Sessions Judge is only on the question as to who was the owner of the property i.e. the said bungalow and the other aspects. Question whether said Act is not applicable to facts of this case is required to be considered. Similarly, change in circumstances on account of the order of divorce which is passed, is also required to be considered. Hence, I am of the view that it would be proper to set aside order dated 29th November, 2008 leaving all contentions, which are mentioned in the this order open and direct the learned Additional Sessions Judge for Greater Bombay to hear and dispose of the Revision Application within a period of two months, so that the rights shall be decided on the basis of various contentions, which would be raised before the learned Additional Sessions Judge. Hence, following order is passed to dispose of the Revision Application. ORDER (i) Order dated 29th November, 2008 passed by the learned Additional Sessions Judge for Greater Bombay in Criminal Appeal No.316 of 208 is set aside. Said Appeal No.316 of 2008 is restored to the file of the Sessions Court at Mumbai. The learned : 5 : Rev-3-09.sxw Principal Judge, City Civil and Sessions Court shall assign this Criminal Appeal to an Additional Sessions Judge. After this appeal is assigned to the concerned Judge, he shall hear and dispose of this appeal within a period of two months from the date of assignment of this appeal to him. (ii) All contentions are left open. Concerned advocates will be free to advance all contentions to which reference is made in this order. They are also free to raise other contentions, if any. (iii) Applicant and respondent no.3 shall through their advocates shall appear before the Learned Principal Judge, City Civil & Sessions Court, Mumbai on 20th July, 2011 at 11.00 p.m.. Respondent no.3 shall present an authenticated copy of this order to the Learned Principal Judge, City Civil & Sessions Court, Mumbai and request him to assign this Criminal Appeal No.316 of 2008 to a Judge. From today, till the disposal of the Criminal Appeal No.316 of 2008 and 15 days thereafter, order dated 23rd April, 2008 passed by the learned Additional Chief Metropolitan Magistrate, 11th Court, Kurla, Mumbai in Application No. 307/N/2007 shall operate against respondent no.3 husband. (iv)Revision Application is disposed accordingly. (R.Y.GANOO, J.)