@JUDGMENTTAG-ORDER
U. D. Salvi, J.@mdashOne Maria D''Souza- the applicant herein has questioned the legality, propriety and correctness of the order giving limited relief protecting her use of two rooms in a shared common ancestral house including the right to ingress and egress thereto through the main passage of the house, but refraining from passing any order as to the use of kitchen, toilet and bathroom in the said house passed by the JMFC, Vasco-da-Gama in the Criminal Case No.1/DVA/2007/B under the provisions of Protection of Women from Domestic Violence Act, 2005 and the order of dismissal of the appeal preferred there from passed by the Additional Sessions Judge, South Goa, Margao in Criminal Appeal No.47/2008 on 29/01/2009. The petitioner/ applicant complained of physical violence at the hands of her sister-in-law Assumpta D''Souza - the respondent herein. Her main grievance was that her sister-in-law Assumpta did not allow her to take bath in the bathroom or use general household articles and even prevented her son to enter her residence situate in the room at the back corner of common ancestral house and for that purpose resorted to physical violence. The applicant reported the incident of domestic violence to the police. Superintendent of Police, South Goa, Margao prepared domestic incident report dated 20.7.2007 in the prescribed form I under the said Act following the complaint of such domestic violence and forwarded the application u/s 12 of the said Act along with the said report to JMFC, Vasco, Goa. This was registered as a case under Protection of Women from Domestic Violence Act, 2005 being Criminal Case No.1/DVA/2007/B. The learned JMFC took cognizance of the said complaint under the said Act and issued notices to the parties.
2. The respondent filed a reply denying the allegations of domestic violence and alleging provision of separate residence made available to the applicant as per oral partition. She further stated that her husband, who was then abroad, had constructed a small kitchen and a separate bathroom and the entire family used the Sulabh Toilet nearby.
3. The allegations and counter allegations made by the rival parties were enquired into. The applicant examined herself as well as one social activist AW2 Selsa Antao and her neighbour-AW3 Liberata Teles. The respondent Assumpta besides examining herself examined her mother-in-law RW2-Aniceta Fernandes and sister-in-law RW3 Lucy D''Souza to establish her defence in the said case.
4. The learned JMFC, Vasco-da-Gama after going through the evidence and the submissions made by the rival parties reached the conclusion that the house in which the applicant and respondent reside was a common ancestral house, which was yet to be partitioned and the complainant/ applicant cannot be thrown out of the shared household. According to the learned JMFC, the complainant/ applicant was cooking in the room of her mother-in-law next to her room and the family members were making use of a government toilet, and there was admission of the fact by the complainant that she was taking bath behind the room, and therefore, the complainant/ applicant cannot be given facility to the bathroom and the kitchen newly constructed by the husband of the respondent. The learned JMFC thus, thought it proper to allow the application of the Maria partly protecting her from being thrown out of the room in the said house and allowing her to use the room of her mother-in-law as a kitchen and to have free access thereto from the adjoining dining room, verandah of sitting room as well as main passage and entry from the front of the house. Thus, it can be seen that the learned JMFC, despite holding that the house is common ancestral property -a shared household, refrained from granting access to the applicant to bathroom and kitchen in the said house property.
5. In the appeal preferred by the applicant against the said order of the learned JMFC, the learned Additional Sessions Judge, South Goa, Margao declined to give any further relief to the applicant on the premise that kitchen, bathroom and toilet were constructed as per the family arrangement between the parties and, therefore, no claim can be made by the applicant to the said premises. This logic employed by the learned Additional Sessions Judge, South Goa, Margao is being assailed in the present revision application.
6. Learned Advocate Lobo for the applicant submitted that the respondent has not preferred any appeal against the judgment and order of the learned JMFC wherein it has been held that the said house property was not partitioned and has remained to be a common ancestral property and this finding of the learned JMFC is based on the evidence recorded in the said case. He further submitted that there is no evidence that the petitioner had consented to the alleged renovation of the common ancestral property and, therefore, whatever was done as by way of renovation merged with the common ancestral property -a shared household, and as such the applicant had every right to use the said kitchen and bathroom. He further pointed out from the evidence of the respondent Assumpta that bathroom was constructed in the old kitchen room situate in the said house property. He argued, as there was no partition, there cannot be an apportionment of shares in common ancestral property and, therefore, the finding of the learned District Judge in declining to grant access to the bathroom in the shared household is perverse and deserves to be set aside. He further submitted that for beneficial use of the premises presently in the occupation of the applicant, permission needs to be granted to her to have separate water and electricity connection to the said room.
7. Learned Advocate Thali for the respondent submitted that the order of the learned JMFC was passed without any jurisdiction in as much as the provision of the said Act cannot be invoked against the respondent, particularly the female respondent. According to him, Section 2(q) of the said Act clearly defined the term ''respondent'' as-only adult male person'', and, therefore, there could not have been any proceedings under the said Act against the respondent, who is sister-in-law of the applicant. He relied upon the judgments reported in CDJ, 2008 MHC 3626 Uma Narayan Versus Priya Krishna Prasad,
8. Learned Advocate Thali for the respondent argued that to achieve uniformity of view in interpretation of a central legislation, it is necessary to fall in line with the interpretation of the said Act done by other High Courts, particularly in view of the lack of reasons in interpreting the relevant provisions in Archana Naik''s case decided by the Ld. Single Judge of our High Court. According to him, the provisions of Section 2(q) and Section 31 were not considered by our High Court in proper perspective. In advocating his view point, he relied on the judgment reported in CDJ 1988 MHC 049 - C Leo Machodo Versus Commissioner of I.T. and 1978 V.
9. In the matter of construction of an Indian Statue, particularly a Central Statute like the protection of Women from Domestic Violence Act, 2005 there must be uniformity of construction. This has been so held as one of valid principles of interpretation of statutes in C Leo Machodo''s case by the Hon''ble Apex Court cited on behalf of the respondent. However, judicial freedom to differ from such practice for compelling reasons is also held to be a valid course which can be taken by the High Court in the matter of construction of a Statute.
10. If one peruses the statement of objects and reasons leading to the said enactments, one can easily notice that the relevant bill was moved for making provision for the following:
(i) it covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file complaint against the wife or the female partner.
(emphasis supplied)
11. The said Act was thus enacted to provide for more effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters enacted therewith or incidental thereto. This was considered vis-a-vis the provisions of Section 2(q) and the provisions for granting relief to the aggrieved persons under Sections 18,19,20,21 and 22 of the said Act in depth by the learned Single Judge Mr. Justice A. S. Oak while passing judgment in Archana Naik''s case (supra). He made following observations :
In my considered view, the relative within the meaning of proviso to section 2(q) cannot be only a male relative and the relative referred to in proviso to clause (q) of Section 2 can also be a female relative of the husband or the male partner, as the case may be. Thus, when an aggrieved person is a person to whom the proviso to section 2(q) is applicable, a respondent in the application u/s 12 can be a male or a female relative of the husband or the male partner, as the case may be. If an application u/s 12 is filed by such aggrieved person, i.e., the wife of the female to whom proviso to section 2(q) is applicable, or is filed on behalf of such aggrieved persons, a female relative of the husband or the male partner can be a respondent. However, whether a relief can be granted against the female relative of the husband or the male partner will depend on the nature of the reliefs sought and the facts and circumstances of the case. As stated earlier, some of the reliefs such as a relief under clause
(b) of sub-section (1) of the section 19 can never be granted against the female relative of husband or the male partner. Similarly, as held by the Apex Court in the case of S.R. Batra (supra), a relief under clause (f) of sub-section (1) of section 19 cannot be granted against a relative of the husband or the male partner. A relief can be granted against a female relative of a husband or a male partner only if a relief against such a relative is capable of being granted under sections 18 to 22 of the said Act.
15. -Perusal of the decisions of Madhya Pradesh and Andhra Pradesh High Courts shows that the aforesaid aspects have not been considered by the High Courts. To that extent the learned Sessions Judge has committed an error.
12. It is correct that the proviso to Section 2(q) is an enabling provision whereby the aggrieved wife can file a complaint for breach of protection order u/s 31 of the said Act against a relative of the husband irrespective of gender. However, such protection orders are passed u/s 18 of the Act. A generous and meaningful interpretation of the said provision so as to make it more effective instrument of protection of the rights of the women, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto is what is expected by the legislature and not its narrow construction as sought to be advanced by the learned Advocate Thali for the petitioner. There is no reason to differ with the view taken by the learned brother Judge Mr. Justice A. S. Oak in the judgment dated 25.08.2009 in Criminal Revision Application No.590/2008. It can, therefore, very well be seen that there are compelling reasons to depart from the principle of uniformity generally adopted in the matter of construction of the Indian Statute - Central Statute.
13. Relying on the observations mentioned in para 6 of the judgment of the Hon''ble Single Judge of this Court sitting at Nagpur reported in CDJ 2009 BCC 1192 -Nandkishor Damodar Vinchurkar Versus Kavita Nandkishor Vinchurkar and another, learned Advocate Thali for the respondent submitted that the learned JMFC had not considered domestic incident report of the Protection Officer under the said Act before passing the impugned order as required under proviso to clause (I) of Section 12 of the said Act and, therefore, no valid order could have been passed by the JMFC giving any cause for the appeal and consequent revision thereafter. The record reveals that the domestic incident report u/s 9(b) and 37(2)(c) of the Protection of Women from Domestic Violence Act, 2005 in the prescribed form I under hand of Superintendent of Police, South Goa, Margao -Mr.Shekhar Prabhudessai was forwarded along with the application to the Learned JMFC, Vasco-da-Gama in Form II with the letter dt.20.07.2007 Exh.1/C and, thereafter, cognizance was taken of the said complaint i.e. grievance of the appellant by the learned JMFC. Learned Advocate Lobo for the appellant brought to the notice of this Court the relevant notification No. 2-104(12)-66/OW-CD/234 dated 15.12.2006 showing the appointment of Mr.Shekhar Prabhudessai, S.P. South, Goa, Margao, Goa as a Protection Officer to perform the duties and functions under the said Act. No force, therefore, remains in the submissions made on behalf of the respondent in that regard.
14. Perusal of the record further reveals that both the Courts below were persuaded by the fact that bathroom and the kitchen were newly constructed by the brother-in-law of the applicant at his expense, which resulted in denial of facility of the kitchen and bathroom to the applicant. The impugned judgment of the learned Additional Sessions Judge, South Goa, Margao further reveals that the kitchen in the said house was renovated and the toilet and bathroom were constructed following the family arrangement involving the parties to this appeal. These observations of the learned Additional Sessions Judge is not arbitrary or baseless, but it has roots in the evidence led before the learned JMFC. While exercising revisional jurisdiction, it would be improper to reappreciate the evidence and reach a different conclusion from that of the Court below.
15. Moreover, if one peruses the sketch of the house property and scrutinises the evidence it is not difficult to realise that the remedy in terms of giving access to use the said facility of bathroom and kitchen to the applicant would amount to encroachment on the family arrangement entered into to save peace and honour of the whole family, and thus would be worst than cure. In the case of Kameswari Dasya Versus Sishuram Deka and another reported in 1924 Calcutta 792 cited on behalf of the respondent, the jurisprudential wisdom, that the Court would not interfere in the arrangement, tacit or express, between the co-owners at the instance of one co-owner during the tenure in common, becomes evident. However, at the same time, one cannot be a silent spectator to the fact revealed in the evidence that the applicant -a widow has to take bath in open and to use her mother-in-law''s room as a kitchen without adequate arrangement therein for such use. Ultimately the family arrangements are made also for making suitable provision for the female member of the family.
16. In the instant case, a ray of hope for amicable settlement between the parties flickered at the time of closing of arguments and, therefore, the decision in the matter was kept in abeyance for long time. However, for the reasons best known to the applicant, she remained cool to the minutes of order drafted and tendered on behalf of the respondent, which have remained on record without the same being withdrawn by the respondent. Virtually, learned Advocate Thali for the respondent expressed readiness and willingness of the respondent to accede to the terms and conditions proposed on behalf of the applicant. The applicant desires construction of a kitchen and bathroom as well as a separate water and electricity connection in her name at her expense in the premises made available to her for use by the order of the learned JMFC dated 15.2.2008 and virtually the respondent conceded to this desire of the applicant in exchange of giving up of the access to the rest of the ancestral house by the applicant. Initially the applicant was willing to give up such access, if exclusive use of the room in her occupation and mother-in-law''s room next to it with a separate access therefor was granted. It appears that talks of settlement between the parties did not materialise into consent terms due to break down of talks on the details of modalities for giving effect to such settlement, such as removal of material of mother-in-law etc. therefrom. Nonetheless it can be seen that a workable solution to this problem was well within the sight of both the parties. On this background, the complete justice can be done by invoking the inherent powers of this Court for passing the orders facilitating the applicant to construct a kitchen and bathroom and to get a separate water and electricity connection in her name at her own costs in the said premises in which she presently resides and cooks so as to provide beneficial and meaningful use of the shared household. Hence the order :
(i) The applicant is free to construct a kitchen facility and bathroom in accordance with local laws at her own costs and shall be free to get a separate water and electricity connection in her name at her own costs in the said premises in accordance with law in which she presently resides and is protected as per the order dated 15.02.2008 passed by the learned JMFC, Vasco-da-Gama, Goa; and the respondent shall not obstruct such construction of a kitchen and bathroom in the said premises and /or impede the process of getting a separate water and electricity connection in the name of the applicant to the said premises in any manner whatsoever; and if necessary, shall give no objection to the applicant in that regard.
(ii) The parties hereto are free to arrive at any further family arrangement in writing in accordance with law.
Criminal Revision Application No.43/2009 is disposed of accordingly.
