HARIT DHEER Vs. SUGANDHA

JUDGEMENT

(1.) This revision petition has been filed by the petitioners Harit Dheer, Ashok Dheer and Smt. Usha Dheer against the order dated Feb. 25, 2013 of Sessions Judge, Jaipur City, Jaipur in Criminal Appeal No. 764 of 2012 dismissing the appeal filed against the interim order dated 1.8.2012 of Judicial Magistrate (Class-1) No. 18 Jaipur City in Criminal Complaint No. 14/2011 filed under Section 12 of Protection of Women under Domestic Violence Act, 2005 whereby direction was made not to alienate, transfer or sale the property till disposal of the complaint. Brief facts giving rise to this revision petition are that the complainant non-petitioner No. 1 Smt. Sugandha filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act of 2005) before the Trial Court mentioning therein that she was married to the petitioner No. 1 on April 19, 2009 as per Hindu Customs at Jaipur. It was stated in the complaint that after some time of marriage respondents started behaving cruelly, both physically and mentally, with her and demanding dowry asking her to bring from her father. This was duly replied by the respondents and all the allegations levelled against them were denied. The non-petitioner No. 1 during pendency of the complaint moved an application dated 27.7.2012 stating that in the criminal case she has prayed for alternative accommodation and requested that she may be allowed to reside in the shared household at the address mentioned in the case i.e. 307 Gurunanakpura, Vijay Path, Adarsh Nagar, Jaipur as her 'Stridhan' is also present in that house. It was also stated that she has come to know that the respondents are going to sell the property and want to run away and if they will do so she will not get the relief sought in the case and this causes injustice to her. A prayer was made that application may be allowed and the respondents be restrained from alienating or disposing of the shared household and further requested that the SDM Stamp, Jaipur be directed not to do the registry till the disposal of the criminal case. The Court below allowed the application and vide order dated 1.8.2012 was passed in favour of the complainant directing the petitioners that till the disposal of the criminal case pending under Section 12 of the Act of 2005 they will not alienate or dispose of the common shared household i.e. 307 Gurunanakpura, Vijay Path, Adarsh Nagar, Jaipur. Against the order dated 1.8.2012 the petitioners filed appeal under Section 29 of the Act of 2005 but the same was rejected by the appellate Court by the order dated 25.2.2013. Against this order of the appellate Court, the petitioners have filed the revision petition praying that both the orders of the Court below be set aside.

(2.) The learned Counsel for the petitioners submitted that the Courts below have committed grave error in deciding the application restraining the petitioners from alienating or disposing of the shared household without considering that under Section 17(1) a shared household only mean the house belonging to her husband, in which they had resided in past than only one can claim for right to residence. It was further argued that the Courts below did not consider the preliminary objections which were taken by the petitioners to the effect that in the application complainant has not mentioned that under which provision of Act of 2005 it has been moved, and there is no provision in the Act under which such an application can be filed. The learned Counsel for the petitioners has placed reliance on S.R. Batra and Another v. Taruna Batra, 2007 3 SCC 169. The order of the Judicial Magistrate and the order of the appellate Court suffer from infirmities so as to call for interference in the revisional jurisdiction of this Court.

(3.) The learned Counsel for the non-petitioner opposed the arguments of the petitioner and submitted that the orders passed by the Judicial Magistrate and appellate Court are just and proper and there is no illegality in the orders.