SRI BRUNDABEN PATRA Vs. RAJALAXMI PATRA

JUDGEMENT

(1.) THE petitioners being the opposite parties in I.A. No.29 of 2011, arising out of C.P. No.480 of 2011 of the Court of Judge, Family Court, Bhubaneswar assailed the order dated 4.3.2011 restraining them from interfering with Opposite partys Possession of a portion of the building and also directing them to allow use of electricity and water Supply to the portion occupied by the opposite party in this case.

(2.) THE facts leading to filing of this writ petition are undisputed. The Opposite party is the daughter -in -law of the petitioners. The husband of the opposite party died leaving behind the Opposite party and her infant daughter. The opposite party has been in occupation of the first floor of the building over revenue Plot No.1328, Mouza -Kapilaprasad in Bhimtangi area under Bhubaneswar Tahasil where she has been residing along with infant daughter. She filed an application before the learned Judge, Family Court under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as 'the Act, read with Sections 18, 20 and 22 of the said Act on the allegation that after death of her husband the opposite parties, i.e., the present petitioners subjected her, to cruelty to evict her from the building. They disconnected the electricity and water supply connections to the floor under her occupation on 15.1.2001 and they forced her to evict that part of the building.

(3.) IN assailing this order, the learned counsel for the petitioners submitted that the learned Judge, Family Court has no jurisdiction to entertain the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and the same can be initiated before a Magistrate. Learned counsel for the petitioners also submitted that the order passed by the learned Judge, Family Court without calling for a report from the Protection Officer is illegal. Therefore, it is submitted that the order passed by the learned Judge, Family Court is without jurisdiction. Hence, he prayed to set aside the same. Learned counsel for the opposite party, however, contended that the learned Judge, Family Court has jurisdiction to decide the case and hence there is no justification to interfere with the order passed by the learned trial Judge. Learned counsel for the opposite party relying on M. Palani v. Meenakshi1submitted that when a civil Court passes the order under Section 12(1), it is not necessary to look into the report submitted by the Protection Officer. Similarly, the opposite party relied upon the reported cases of Pramodini Vijay Fernandes v. Vijay Fernandes2; Alexander Sambath Abner v. Miron Lede and another3, Mohit Yadam and another v. State of A.P. and others4 and submitted that an application under Section 7(1) of the Family Court Act read with Section 12 of the Act, 2005 is maintainable before the learned Judge, Family Court. However, the learned counsel for the petitioners has relied upon the reported case of Smt. Neetu Singh v. Sunil Singh5, wherein the Chhattisgarh High Court has held that the aggrieved wife cannot move an independent fresh application under Section 12 of the Act. Such an application can only be entertained by a Magistrate having jurisdiction and it is not maintainable before the Judge, Family Court.