High Court · 2025

1. Instant criminal revision has been preferred against the order dated 5.1.2024 passed by the learned Additional District and Sessions Judge/Special Court (POCSO Act) No. 30 Agra in Criminal Appeal No. 11 of 2023 whereby learned trail court has set aside the order dated 16.1.2023 passed by the learned Magistrate in Complaint Case No. 833 of 2016 (Smt. Seema vs. Pushpendra Pratap Singh) filed under section 12 of Protection of Women from Domestic Violence Act.

2. Learned Magistrate had initially dismissed the complaint of Smt. Seema, the present respondent no. 2 vide order dated 16.01.2023 on application under section 19 of Domestic Violence Act. Learned Magistrate has directed the opposite party, the present revisionist provide a separate accommodation along with kitchen, latrine and bathroom in House No. B-572, 100 fita road Kalindi Bihar Tedhi Bagiya, Agra, within a month.

3. Heard learned counsel for the revisionist, learned counsel for the respondent no. 2, learned AGA for the State and perused the material available on record. Pleadings have already been exchanged between the parties.

4. Learned counsel for the revisionist submitted that the respondent no. 2 had filed a complaint under section 12 of Domestic Violence Act before court of District Judge (JD)/FTC, Court no. 1, Agra under section 12 of Domestic Violence Act. An application under section 19 of Domestic Violence Act was filed by the applicant seeking residence order in shared household. Learned Magistrate had refused the prayer raised by the complainant regarding residence order in respect of her household but directed the opposite party to make payment of Rs. 1000/- per month to the complainant so that she could reside in accommodation. Feeling aggrieved by the order dated 16.1.2023 Smt. Seema had filed criminal appeal before court of session which was allowed by appellate court and the revisionist was directed to provide an one room accommodation in the aforesaid house to the complainant along with other remedies.

5. He next submitted that revisionist, opposite party has filed present criminal revision feeling aggrieved by the judgement and order passed by the lower appellate court dated 5.1.2024. He further submitted that learned court below has passed the impugned order without giving finding that the complainant had ever resided in said house and one room accommodation has been provided to the complainant in a portion of the house in fact said house elder brother of the revisionist is resided along with his family. This is not a shared household ever used by the complainant along with her husband, the revisionist.

6. He next submitted that in application dated 24.5.2019 wherein an interim residence order has been sought by the complainant. She has not stated specifically therein that she resided in the house in question as shared household. She has averred in paragraph no. 1 of the application in general manner that after marriage, the complainant resided along with opposite parties in house no. 11/47, B-1 Durga Colony Rambag, Agra and House No. B-572, 100 fita road Kalindi Bihar Tedhi Bagiya, Agra which comes within different sharedhouse.

7. He further submitted that in objection dated 6.12.2023 filed by the revisionist, he has specifically averred that the mother of opposite party no. 2 had died long ago. He is residing in the house of Durga Colony Rambag, Agra along with his retired father. His brother resides separately along with his wife and children. Applicant had resided in the house of the opposite party no. 2 along with his father after marriage and no other person ever resided with them. There is no shared household and opposite party no. 2 did not want to reside in House No. B-572, 100 fita road Kalindi Bihar Tedhi Bagiya, Agra because this house belongs to his brother and complainant cannot live forcefully in any other house wherein he is not a share householder. She is not willing to reside in the house of the opposite party no. 2 11/47, B-1 Durga Colony Rambag, Agra because she always created fuss while residing in the said house. There is no need of any accommodation or rented house because she is a fluent and able lady. In fact section 17 of Domestic Violence Act comes arrive to residence in shared household but she has left the house of the revisionist on her own will and is residing separately from him at her parental home without any sufficient cause therefore she is not entitled for any residence order. He next submitted that without fulfilling condition of section 19 of Domestic Violence Act, no permanent or interim maintenance can be passed under the law.

8. Learned counsel also took reference of criminal misc. application no. 301 filed on 29.11.2024 wherein prayer has been made to incorporate the possession order dated 8.8.2024 passed by the court below in Case No. 100700/2022 Seema vs. Pushpendra Pratap Singh and others and to permit him to incorporate the amendment in prayer clause in present criminal revision. The amendment has been sought on page 6 and 9 of memo of revision. He further submitted that copy of order dated 8.8.2024 during pendency of present revision has been filed as annexure No. 2 to criminal misc. application dated 29.11.2024 which reveals that the order dated 5.1.2024 passed in Criminal Appeal No. 11 of 2023 has been executed by learned court below and respondent no. 2 has been given a possession in portion of said house in execution of order of appellate court and judicial notice may be taken of this fact. He further submitted that complainant has accepted in her application that in the House No.11/47, B-1 Durga Colony Rambag, Agra, in-laws and her husband created domestic violence with her, therefore, she cannot be permitted to take possession of the portion of the said house as shared household. Learned Magistrate has rightly refused the prayer of the complainant with regard to shared household and said she will be provided a house allowance to the tune of Rs. 1000 per month for taking a separate accommodation on rent. The appellate court has disallowed the prayer of the revisionist without cogent and sufficient reasons, therefore, impugned order passed by the learned appellate court is not sustainable.

9. Per contra, learned counsel for the respondent no. 2 submitted that this is admitted fact that the impugned order has already been implemented and executed by the learned Magistrate as there is no special order in favour of the revisionist in present revision. He further submitted that revisionist had filed an appeal before court of session feeling aggrieved by the execution order dated 8.8.2024 passed by learned Magistrate in execution proceedings pursuant to impugned order and special said criminal appeal under section 29 of Domestic Violence Act has also been dismissed vide order dated 21.2.2025.

10. He next submitted that this is wrong to say no specific pleading has been raised in respect of house in question. The respondent no. 2 who is original complainant has specifically stated in application for interim residence order dated 24.5.2019 that she has been residing in both houses after marriage along with opposite party, namely, house no. 11/47, B-1 Durga Colony Rambag, Agra and House No. B-572, 100 fita road Kalindi Bihar Tedhi Bagiya, Agra which comes within meaning of share householder. Both the houses belong to father-in-law of the revisionist. A criminal appeal was preferred by sister-in-law (bhabhi) of the revisionist against impugned order dated 5.1.2024 before Court of Session and same has also been dismissed by appellate court. The revision is devoid of merits and deserves to be dismissed.

11. Learned counsel for the revisionist placed reliance on the paragraph 63 of the judgement of Hon'ble Supreme Court passed in Satish Chander Ahuja vs. Sneha Ahuja in Civil Appeal No. 3483 of 2020 which reads as under:- "63. The words "lives or at any stage has lived in a domestic relationship" have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not. As noted above, Act 2005 was enacted to give a higher right in favour of woman. The Act, 2005 has been enacted to provide for more effective protection of the rights of the woman who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not." 12. This is settled law that under section 23 of the Act, the court of Magistrate or appellate court can grant interim and ex-parte order in a proceeding under the Act. Section 23 may reproduced as under:- "23. Power to grant interim and ex parte orders. —(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper." 13. Thus a bare perusal of aforesaid statutory provision it is obvious that in any proceedings before the Magistrate under this Act, he can pass any interim orders as he deems just and proper.

14. The revisionist has stated in her application for being granted a residence order in shared household. She has specifically stated she used to reside along with opposite parties in both the houses. She has not prayed for granting a separate accommodation in some other house which did not come within purview of shared household. This fact has not been denied. Both the houses were acquired by the father of the revisionist who is father-in-law of the respondent no. 2. Learned Magistrate had provided the major amount of Rs. 1000/- per month as house allowances to the applicant which is highly insufficient in city of Agra and it is hardly possible to get accommodation their even no such prayer has been made in the application.

15. Considering rival submissions of learned counsel for the parties and material on record, pleadings of the parties and also the fact that impugned order has also been implicated by the court of first instance, therefore, I find no merit in present criminal revision and same is liable to be dismissed .

16. The present criminal revision is dismissed accordingly. Order Date :- 4.3.2025 SY SUSHAMA YADAV High Court of Judicature at Allahabad

1. Instant criminal revision has been preferred against the order dated 5.1.2024 passed by the learned Additional District and Sessions Judge/Special Court (POCSO Act) No. 30 Agra in Criminal Appeal No. 11 of 2023 whereby learned trail court has set aside the order dated 16.1.2023 passed by the learned Magistrate in Complaint Case No. 833 of 2016 (Smt. Seema vs. Pushpendra Pratap Singh) filed under section 12 of Protection of Women from Domestic Violence Act.

2. Learned Magistrate had initially dismissed the complaint of Smt. Seema, the present respondent no. 2 vide order dated 16.01.2023 on application under section 19 of Domestic Violence Act. Learned Magistrate has directed the opposite party, the present revisionist provide a separate accommodation along with kitchen, latrine and bathroom in House No. B-572, 100 fita road Kalindi Bihar Tedhi Bagiya, Agra, within a month.

3. Heard learned counsel for the revisionist, learned counsel for the respondent no. 2, learned AGA for the State and perused the material available on record. Pleadings have already been exchanged between the parties.

4. Learned counsel for the revisionist submitted that the respondent no. 2 had filed a complaint under section 12 of Domestic Violence Act before court of District Judge (JD)/FTC, Court no. 1, Agra under section 12 of Domestic Violence Act. An application under section 19 of Domestic Violence Act was filed by the applicant seeking residence order in shared household. Learned Magistrate had refused the prayer raised by the complainant regarding residence order in respect of her household but directed the opposite party to make payment of Rs. 1000/- per month to the complainant so that she could reside in accommodation. Feeling aggrieved by the order dated 16.1.2023 Smt. Seema had filed criminal appeal before court of session which was allowed by appellate court and the revisionist was directed to provide an one room accommodation in the aforesaid house to the complainant along with other remedies.

5. He next submitted that revisionist, opposite party has filed present criminal revision feeling aggrieved by the judgement and order passed by the lower appellate court dated 5.1.2024. He further submitted that learned court below has passed the impugned order without giving finding that the complainant had ever resided in said house and one room accommodation has been provided to the complainant in a portion of the house in fact said house elder brother of the revisionist is resided along with his family. This is not a shared household ever used by the complainant along with her husband, the revisionist.

6. He next submitted that in application dated 24.5.2019 wherein an interim residence order has been sought by the complainant. She has not stated specifically therein that she resided in the house in question as shared household. She has averred in paragraph no. 1 of the application in general manner that after marriage, the complainant resided along with opposite parties in house no. 11/47, B-1 Durga Colony Rambag, Agra and House No. B-572, 100 fita road Kalindi Bihar Tedhi Bagiya, Agra which comes within different sharedhouse.

7. He further submitted that in objection dated 6.12.2023 filed by the revisionist, he has specifically averred that the mother of opposite party no. 2 had died long ago. He is residing in the house of Durga Colony Rambag, Agra along with his retired father. His brother resides separately along with his wife and children. Applicant had resided in the house of the opposite party no. 2 along with his father after marriage and no other person ever resided with them. There is no shared household and opposite party no. 2 did not want to reside in House No. B-572, 100 fita road Kalindi Bihar Tedhi Bagiya, Agra because this house belongs to his brother and complainant cannot live forcefully in any other house wherein he is not a share householder. She is not willing to reside in the house of the opposite party no. 2 11/47, B-1 Durga Colony Rambag, Agra because she always created fuss while residing in the said house. There is no need of any accommodation or rented house because she is a fluent and able lady. In fact section 17 of Domestic Violence Act comes arrive to residence in shared household but she has left the house of the revisionist on her own will and is residing separately from him at her parental home without any sufficient cause therefore she is not entitled for any residence order. He next submitted that without fulfilling condition of section 19 of Domestic Violence Act, no permanent or interim maintenance can be passed under the law.

8. Learned counsel also took reference of criminal misc. application no. 301 filed on 29.11.2024 wherein prayer has been made to incorporate the possession order dated 8.8.2024 passed by the court below in Case No. 100700/2022 Seema vs. Pushpendra Pratap Singh and others and to permit him to incorporate the amendment in prayer clause in present criminal revision. The amendment has been sought on page 6 and 9 of memo of revision. He further submitted that copy of order dated 8.8.2024 during pendency of present revision has been filed as annexure No. 2 to criminal misc. application dated 29.11.2024 which reveals that the order dated 5.1.2024 passed in Criminal Appeal No. 11 of 2023 has been executed by learned court below and respondent no. 2 has been given a possession in portion of said house in execution of order of appellate court and judicial notice may be taken of this fact. He further submitted that complainant has accepted in her application that in the House No.11/47, B-1 Durga Colony Rambag, Agra, in-laws and her husband created domestic violence with her, therefore, she cannot be permitted to take possession of the portion of the said house as shared household. Learned Magistrate has rightly refused the prayer of the complainant with regard to shared household and said she will be provided a house allowance to the tune of Rs. 1000 per month for taking a separate accommodation on rent. The appellate court has disallowed the prayer of the revisionist without cogent and sufficient reasons, therefore, impugned order passed by the learned appellate court is not sustainable.

9. Per contra, learned counsel for the respondent no. 2 submitted that this is admitted fact that the impugned order has already been implemented and executed by the learned Magistrate as there is no special order in favour of the revisionist in present revision. He further submitted that revisionist had filed an appeal before court of session feeling aggrieved by the execution order dated 8.8.2024 passed by learned Magistrate in execution proceedings pursuant to impugned order and special said criminal appeal under section 29 of Domestic Violence Act has also been dismissed vide order dated 21.2.2025.

10. He next submitted that this is wrong to say no specific pleading has been raised in respect of house in question. The respondent no. 2 who is original complainant has specifically stated in application for interim residence order dated 24.5.2019 that she has been residing in both houses after marriage along with opposite party, namely, house no. 11/47, B-1 Durga Colony Rambag, Agra and House No. B-572, 100 fita road Kalindi Bihar Tedhi Bagiya, Agra which comes within meaning of share householder. Both the houses belong to father-in-law of the revisionist. A criminal appeal was preferred by sister-in-law (bhabhi) of the revisionist against impugned order dated 5.1.2024 before Court of Session and same has also been dismissed by appellate court. The revision is devoid of merits and deserves to be dismissed.

11. Learned counsel for the revisionist placed reliance on the paragraph 63 of the judgement of Hon'ble Supreme Court passed in Satish Chander Ahuja vs. Sneha Ahuja in Civil Appeal No. 3483 of 2020 which reads as under:- "63. The words "lives or at any stage has lived in a domestic relationship" have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not. As noted above, Act 2005 was enacted to give a higher right in favour of woman. The Act, 2005 has been enacted to provide for more effective protection of the rights of the woman who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not." 12. This is settled law that under section 23 of the Act, the court of Magistrate or appellate court can grant interim and ex-parte order in a proceeding under the Act. Section 23 may reproduced as under:- "23. Power to grant interim and ex parte orders. —(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper." 13. Thus a bare perusal of aforesaid statutory provision it is obvious that in any proceedings before the Magistrate under this Act, he can pass any interim orders as he deems just and proper.

14. The revisionist has stated in her application for being granted a residence order in shared household. She has specifically stated she used to reside along with opposite parties in both the houses. She has not prayed for granting a separate accommodation in some other house which did not come within purview of shared household. This fact has not been denied. Both the houses were acquired by the father of the revisionist who is father-in-law of the respondent no. 2. Learned Magistrate had provided the major amount of Rs. 1000/- per month as house allowances to the applicant which is highly insufficient in city of Agra and it is hardly possible to get accommodation their even no such prayer has been made in the application.

15. Considering rival submissions of learned counsel for the parties and material on record, pleadings of the parties and also the fact that impugned order has also been implicated by the court of first instance, therefore, I find no merit in present criminal revision and same is liable to be dismissed .

16. The present criminal revision is dismissed accordingly. Order Date :- 4.3.2025 SY SUSHAMA YADAV High Court of Judicature at Allahabad