Every Woman In A Domestic Relationship Has Right To A Shared Household Irrespective Of Maintenance Granted U/s 125 CrPC: J&K & L HC

The Court clarified the Rajnesh v. Neha (2021) guidelines prescribed by the Supreme Court which stated that a court had to take into consideration the maintenance already awarded in the previous proceedings and grant an adjustment or set off of the said amount.

A Single Bench of Justice Sanjay Dhar observed, “The learned trial court was well within its jurisdiction to pass the order to provide share household to respondent No.1. In terms of Section 17 of the D.V.Act, every woman in a domestic relationship has a right to shared household. Therefore, respondent No.1 could not have been denied this statutory right.”

Sr. Advocate A.H. Naik represented the appellant, while Advocate G.N. Shaheen appeared for the respondents.

The husband sought quashing of the order of the Magistrate under Article 227 of the Constitution which directed the husband to provide a habitable room along with a kitchen and bathroom in the shared household or alternative accommodation for the wife under the Protection of Women from Domestic Violence Act (D.V. Act).

According to the husband, he pronounced talaq upon his wife and got remarried. The wife filed an application under Section 125 of the Cr.P.C against the husband, which was allowed and an order was passed granting her an interim maintenance.

In the meantime, the wife filed a petition under Section 12 of the D.V. Act to seek interim monetary compensation under Section 23 of the D.V. Act. The trial Magistrate by virtue of the impugned order declined to pass an interim order of monetary compensation in favour of the wife but directed the husband to provide shelter to the wife in a shared household.

The impugned order was challenged on the grounds that the wife was already granted interim maintenance under Section 125 of the Cr.PC, and had a sufficient source of income as well.

The Court explained that it was not open to the husband to invoke the supervisory jurisdiction of the Court without following the statutory remedy of appeal against the impugned order in a subordinate Court first.

“The impugned order has been passed by the learned trial Court in exercise of its powers under Section 23 of the D.V.Act. Section 29 of the said Act provides for an appeal to the Court of Sessions from an order made by the Magistrate. Therefore, the impugned order passed by the learned trial Magistrate is appealable in nature. Admittedly, the petitioner has not availed the remedy of statutory appeal and instead the instant petition has been filed directly invoking the supervisory jurisdiction of this Court,” the Court Bench remarked.

The Court further explained that the contention of the husband that the trial Magistrate did not consider the ratio laid down by the Supreme Court in Rajnesh v Neha was “without any substance.”

“In the instant case learned trial Magistrate has, in para (4) of the impugned order, clearly stated that order as to maintenance is not being passed because proceedings under Section 125 of Cr.P.C are going on between the parties and the respondent No.1 is receiving interim maintenance. The contention of the petitioner in this regard is, therefore, contrary to the records.” the Court noted.

Accordingly, the High dismissed the appeal

Cause Title: XYZ v. ABC & Ors.

Appearance:

Petitioner: Sr. Advocate A.H. Naik; Advocate Zia

Respondents: Advocates G.N.Shaheen and Asif Ali

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