Rented property vacated by husband is NOT a shared household ! Wife has no rights to reside there !! Chennai HC
Madras High Court
Sameer Vyas vs State Represented By on 27 November, 2009
THE HONOURABLE MR. JUSTICE C.T.SELVAM
Crl.O.P.No.27877 of 2008
M.P.Nos.1 of 2008, 1 and 2 of 2009
Sameer Vyas . Petitioner
1.State represented by
Chennai 600 017.
represented by her Power Agent
Mr.K.T.M.Ahmed Mustafa Respondents
Criminal Original Petition filed under section 482 of Criminal Procedure Code to call for the records in M.P.No.797 of 2008 on the file of the XIV Metropolitan Magistrate, Egmore and quash the same.
For Petitioner : Mr.Alagirisamy,
Senior Counsel for Mrs.Chitra Sampath
For Respondent 1 : Mr.J.C.Durairaj
Government Advocate [Crl.Side]
For Respondent 2 : Mr.George Cheriyan
For Respondent 3 : Mr.S.L.Sudarsanam
O R D E R
This petition has been filed by the petitioner/accused to call for the records in M.P.No.797 of 2008 on the file of the XIV Metropolitan Magistrate, Egmore and quash the same.
2. The second respondent/complainant is the wife of the petitioner who has moved an application which is pending before XIV Metropolitan Magistrate, Egmore, Chennai. The petitioner husband/accused has been called upon to answer a charge made under Sections 18 to 21 of the Protection of Women from Domestic Violence Act. A report has been filed by the first respondent for alleged sexual and economic abuse.
3. According to the petitioner husband/accused, he and his wife were married according to Hindu Rights at Mumbai on 10.02.1990 and they have two children. The first son Siddhant was born on 14.12.1991 and Shantanu, the second son was born on 6.1.1994. At the time of marriage, the second respondent informed the petitioner/husband that she was a qualified chartered accountant and held a degree in law. As the petitioner was in the administrative service, he believed that they could have a good marital life as both of them came from an educated background. Even though the petitioner realized soon after marriage that the second respondent had no qualms about abusing anyone and the law for personal aggrandizement and gain, as both of them had two failed marriages behind them and he was very fond of his sons and wanted to ensure that they had a stable and secure life, he had strived hand to make the marriage work.
4. The petitioner states that he came out on voluntary retirement and joined Infrastructure Leasing and Financial Services as Chief Executive Officer. Until then, they had lived in ordinary Government quarters of a rental status of Rs.12,000/- per month in SAF Asian Games Village. As part of his new employment, the petitioner was given a premises leased out by the company and so they moved into the new premises in February 2008. Within a fort night, the second respondent has filed H.M.O.P.No.870 of 2008 on the file of the second Additional Family Court for divorce, permanent custody and permanent alimony of Rs.5 Crores and the same was referred to Mediation. In the mediation proceedings, the second respondent/wife sought interim maintenance of Rs.50,000/-. Even as the matter was pending before the Mediation Centre, the second respondent wife has preferred an application seeking to enforce her rights under the Protection of Women From Domestic Violence Act for alleged offences committed by him. The petitioner was served with the notice to appear before the first respondent. The petitioner went with the fervent hope that he would have a fair hearing but to his consternation the second respondent and her counsel shouted at him and abused him and insisted that he should agree to the terms of payment demanded by them. The petitioner made an offer for a settlement to the first respondent based on his income and living standard, but he has received a notice calling upon him to appear before the XIV Metropolitan Magistrate, Egmore, Chennai where the application filed under sections 18 to 21 of the Protection of Women from Domestic Violence Act by the second respondent is pending. The petitioner alleges that the second respondent has made a bald allegation in H.M.O.P.No.870 of 2008 that he had neglected and acted cruelly and that of late he had a liaison with his personal assistant and so treated the family harshly and denied them basic necessities, even while stating that he had insisted and sent the children to an expensive boarding school and paid for their professional tennis coaching. The second respondent has stated in H.M.O.P.No.870 of 2008 that they have had no conjugal life for the past more than two years but has now chosen to allege sexual abuse without giving details of when it happened. On the other hand, the second respondent states that the petitioner did not allow her to go to work, on the other she states that she has been forced to seek employment to take care of the children and their needs. The lease for the present premises which was given to him by the company expired in December 2008. Hence the petitioner had pointed out that she has to find alternative accommodation as he cannot afford such a large premises but the respondent was insistent on holding a premise of 4500 Sq.ft at a huge rent.
5. The learned Senior counsel appearing for the petitioner submitted that the allegations made in the complaint by the second respondent before the XIV Metropolitan Magistrate were unfounded, that a prima facie case had not been made out for making a complaint and therefore, in the interests of justice, all further proceedings in M.P.No.797 of 2008 on the file of XIV Metropolitan Magistrate, Egmore are to be quashed. The lower Court had issued summons to the petitioner without any application of mind. The learned counsel placed reliance on decisions reported in (2009) 3 MLJ (Crl) 450 and (2008) 2 MLJ (Crl) 389 to support the contention that where the lower Court had failed to apply its mind, the process issued by it would be bad in law.
6.I have carefully perused the complaint in its original form and I am unable to accept the submission that it does not spell out anything that could form the basis for action under the Domestic Violence Act. Though lengthy arguments were made on either side, the same in the major part were addressed on the fairness or otherwise of the claims made by the respondent and the inability to meet the same. This Court has towards settling the issue between the parties, discussed the issue separately with each of them. It was found that there was no meeting ground. It is made known that such an effort earlier also was made by this Court. Suffice it to say that when the basic ingredients are found in the complaint, it is not for this Court to decide on the correctness or otherwise thereof. Such an exercise is reserved for the trial Court. Accordingly, no occassion for exercise of powers under Section 482 of the Criminal Procedure Code in favour of the petitioner herein arises. Accordingly, the Criminal Original Petition No.27877 of 2008 shall stand dismissed.
7. However, there is one other matter which calls for an answer from this Court. The premises in which the respondent presently resides belongs to one Mrs.Shahida Asker. She has approached this Court through her Power Agent and by order dated 03.07.2009 in M.P.No.3 of 2009 has been permitted to implead herself. Under order dated 23.01.2009 in M.P.No.1 of 2008, this Court had passed the following order: “in the interest of justice and also on the humanitarian ground, direct the petitioner herein to allow the second respondent (his wife) and their children to continue in the house presently occupied by the second respondent and her children till 18.02.2009”.
8.The relief sought for in M.P.No.3 of 2009 by the owner of property is a modification of the above order. The admitted facts are that the petitioner is the Chief Executive Officer of the Infrastructure Leasing and Financial Services Limited. When he entered such service, the petitioner was provided residential accommodation at No.6, Nathan Street, Off Harrington Road, Chennai 600 031 with a build up area of 4,500/- sq.ft. in the ground floor at a monthly rent of Rs.1,40,000/-. The rental agreement in respect thereof was entered into on 12.01.2008 for an initial period of 11 months. The lessee is the Company in which the petitioner had entered into employment. The petitioner has since been transferred to Delhi. The employer of the petitioner under letter dated 14.09.2008 had informed the landlord/petitioner in M.P.No.3 of 2009, that the premises were taken for residential accommodation of the petitioner and that as he has been positioned in New Delhi, the leasee Company would not be renewing the lease beyond the period covered by the agreement dated 12.01.2008. As against the letter requesting the landlord to consider termination of the lease agreement earlier at a mutually agreed date, we find a position wherein the second respondent/wife continues to reside in the premises claiming that the same is a “shared household” and that she was entitled to a residence order in keeping with Section 17 of the Protection of Women from Domestic Violence Act.
9.The Honourable Supreme Court in the case of S.R.Batra and another Vs. Taruna Batra in (2007) 3 SCC 169 in negating a claim of “shared household” held that such a right could not be claimed by the wife in respect of property which exclusively belonged to the mother-in-law.
10.The learned counsel for the second respondent sought to draw distinctions between such case and the case on hand by making submissions such as that in the reported case the claimant wife was not residing in the property over which, the right of “shared household” was sought, whereas in the instant case, the respondent continued to reside in such property. This Court considers such submissions a mere hairsplitting exercise.
11.Extending the dictum laid down by the Honourable Apex Court, this Court holds that no claim for “shared household” can be made in respect of property of which neither the petitioner husband nor the respondent wife had a right of tenancy. The tenancy right was that obtained by the employer company for the benefit of its employee viz., the petitioner herein and on his being shifted to Delhi, the employer company has found no need to continue the tenancy and accordingly, the same had been brought to an end. If claims for “shared household” are countenanced in circumstances such as those that present themselves in the present case, the harm that would flow to an owner of property, who has nothing to do with the dispute between the husband and wife, hardly needs to be emphasized. The impleaded third respondent has a right to evict the respondent wife and it is so ordered. As the respondent wife will not be a “tenant”, within the meaning of the Rent Control law, the remedy of the third respondent would be one of eviction under the general law.
12.The Criminal Original Petition is ordered as indicated above. Consequently, the connected miscellaneous petitions are closed.
1.The Protection Officer
Eldams Road, Chennai 600 017.
2.The XIV Metropolitan Magistrate, Egmore, Chennai
3. The Public Prosecutor , High Court,