JANAKBHAI MOHANLAL PALSANAWALA Vs. UMABEN JANAKBHAI PALSANAWALA

JUDGEMENT

(1.) RULE . Learned advocate Ms.Kruti Shah waives service of notice of Rule on behalf of respondent No.1-wife and learned Additional Public Prosecutor Mr.L.R. Pujari waives service of notice of Rule on behalf of respondent No.2-State.

(2.) THE present revision application arises out 31st of the order dated October, 2012 of learned Sessions Judge, Surat in Criminal Appeal No.93 of 2011, whereby the learned Sessions Judge has dismissed the appeal of the present applicant, and has thereby confirmed order dated 12th September, 2011 passed by (2nd the learned Judicial Magistrate First Class Court), Surat below Exhibit 9 in Miscellaneous Application No.11 of 2011. The said order dated 12th September, 2011 was an interim order which was passed pursuant to an application under Section 23 of the Prevention of Woman from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act') filed by respondent No.1-wife. By the said order, the applicant-husband is directed to make arrangement for the respondent-wife, for her residence on the ground floor of the property called Pooja Row-house or in the alternative to pay Rs.10,000/- (Rupees Ten Thousand Only) per month in lieu of the residential accommodation. The said property Pooja Raw House belong to husband and his family who have been staying thereat.

(3.) LEARNED advocate Mr.Hardik Dave for the applicant raised several contentions. It was submitted that by virtue of the order of the learned Magistrate, what is actually directed is restoration of possession of the property, which was not permissible under Section 19 of the Act. Referring to Section 19 of the Act, it was submitted that Section 19 only permits the orders in restraint and restoration of possession in not contemplated under any of the clauses of that Section. It was next submitted that the residence order can be passed only against husband and the learned Magistrate has exceeded his jurisdiction as the order is passed against the in-laws also. It was further submitted that while passing the order under Section 19(1), financial need and resources of the parties are relevant criteria as provided sub-section (6) thereof.