# Smt. Shailja Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 6 ILRA 815
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-11
- **Case number:** Criminal Revision No. 3630 of 2022
- **Bench:** Syed Aftab Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shailja-revisionist-v-state-of-u-p-anr-50456
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
397/401
&
Protection of Women from Domestic
Violence Act, 2005-Sections 23, 2(5) & 3shared
house-Revisionist
married
to
opposite parties-Both of them were living
in the house in question from the
inception of their marriage-the residence
is lying vacant, no one is there to resides
in
the
house
in
question
with
the
revisionist-Thus, provision of Rs. 10,000/-
as rental money to the revisionist is also
not sustainable.(Para 1 to 18)

The revision is allowed. (E-6)

## Text

6 All. Smt. Shailja Vs. State of U.P. & Anr.
815
evidence when the witnesses are present in
the trial court.

(v) The appellant shall remain
present before the trial court on each date
fixed, either personally or through his
counsel.

(vi) The appellant shall not
indulge
in
any
criminal
activity
or
commission of any crime after being
released on bail.

22. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail. If in the opinion of the
trial court that absence of the appellant is
deliberate or without sufficient cause, then
it shall be open for the trial court to treat
such default as abuse of liberty of bail and
proceed in accordance with law.

23 . The trial court may make all
possible efforts/endeavour and try to
conclude
the
trial
expeditiously
in
accordance with law after the release of the
appellant, if there is no other legal
impediment.

24. It is made clear that the
observations made in this order are limited
to the purpose of determination of this bail
application and will in no way be construed
as an expression on the merits of the case.
The trial court shall be absolutely free to
arrive at its independent conclusions on the
basis of evidence led unaffected by
anything said in this order.

25. The criminal appeal is allowed.

26. Before parting with this case, this
Court deems it appropriate to record
appreciation for Sri Rajeev Lochan Shukla,
Advocate, who was not counsel in this
case, but has rendered valuable assistance
to this Court in deciding the above
controversy which was repeatedly being
raised in subsequent criminal appeals filed
by the same accused before this Court
because of subsequent denial of relief by
the Special Court.
----------
(2023) 6 ILRA 815
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN IDRISI, J.

Criminal Revision No. 3630 of 2022

Smt. Shailja ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Aishwarya Krishna, Sri Anurag Sharma,
Sri Sarvesh Chaubey

Counsel for the Respondents:
G.A., Sri G.A.,Hemant Kumar,Sri Pradeep
Kumar Keshri

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
397/401
&
Protection of Women from Domestic
Violence Act, 2005-Sections 23, 2(5) & 3shared
house-Revisionist
married
to
opposite parties-Both of them were living
in the house in question from the
inception of their marriage-the residence
is lying vacant, no one is there to resides
in
the
house
in
question
with
the
revisionist-Thus, provision of Rs. 10,000/-
as rental money to the revisionist is also
not sustainable.(Para 1 to 18)

The revision is allowed. (E-6)
(Delivered by Hon'ble Syed Aftab Husain
Idrisi, J.)
816 INDIAN LAW REPORTS ALLAHABAD SERIES

1. At the outset, it is pertinent to
mention that learned counsel for the
revisionist has filed some documents along
with another stay application, but perusal of
record shows that she has already filed an
stay
application
alongwith
memo
of
revision. So learned counsel for the
revisionist
wants
to
withdraw
this
additional
stay
application.
Learned
counsel for opposite no. 2 has no objection
to it, therefore, his prayer for withdrawal of
this additional stay application is allowed.

2.

Accordingly,
the
additional
application seeking stay is dismissed as
withdrawn.

3. Heard learned counsel for the
revisionist, learned A.G.A. for the State as
well as Sri Hemant Kumar, learned counsel
for the opposite party no. 2. Perused the
record.

4. The instant criminal revision has
been preferred against the judgment and
order
dated
20.08.2022,
passed
by
Additional District and Sessions Judge,
Court No. 3, Meerut, in Appeal No. 84 of
2021 (Sandeep Mittal Vs. State of U.P. and
another) whereby the appeal was allowed
and the order dated 24.9.2021, passed by
Civil Judge (J.D.) (Fast Track Court),
Offence against Women, Meerut was set
aside and appellant no. 2 was directed to
pay Rs. 10,000/- to her wife (present
revisionist) for rental house in Case No.
6504 of 2015 (91556 of 2015) (Smt. Shailja
Mittal Vs. Sandeep Mittal), allowed the
application under Section 23 of Protection
of Women from Domestic Violence Act,
2005 with the direction to opposite party
no. 1 (Sandeep Mittal), not to disturb her
residence in common/shared house i.e. 28
Meera Enclave, Garh Road, Meerut.

5. The brief facts of the revision are
that the marriage of the revisionist was
solemnized with the opposite party no. 2 as
per Hindu Rites and Rituals on 26.02.1995.
Out of their wedlock a male child was born.
It is alleged that in the course of time, there
arose difference between the husband and
wife. At this, the revisionist (wife) filed an
application dated 16.03.2021 under Section
23 of the Domestic Violence Act. Before
Civil Judge (J.D.) (Fast Track Court),
Offence against Women, Meerut, to which
opposite party no. 2 (husband) filed
objections. Considering the submissions of
learned counsels for the parties and
evidence
on
record,
passed
by
the
Magistrate concerned vide its order dated
24.09.2021 allowed the application of
revisionist
to
reside
into
the
common/shared house, situated at 28
Meera Enclave, Garh Road, Meerut. The
said
order
was
get
complied
with.
Aggrieved by this order, opposite party no.
2, Sandeep Mittal filed Appeal No. 84 of
2021 before the learned District and
Sessions Judge, Meerut, which was allowed
by him vide impugned order dated
20.8.2022 and the order dated 20.8.2022
was set aside on the ground that there is
dispute between the parties, they do not
have cordial relation with each other, and
appellant shall pay Rs. 10,000/- per month
to the revisionist to hire a rental house for
her residence. The revisionist had also filed
Suit No. 165 of 2016 under Section 125
Cr.P.C. for interim maintenance which was
allowed and the opposite party no. 2 was
directed to pay Rs. 7,500/- per month as
maintenance amount to the revisionist.
Aggrieved by the order dated 28.8.2022,
the revisionist filed the present revision.

6. For ready reference, the orders
passed by both the trial Magistrate on
6 All. Smt. Shailja Vs. State of U.P. & Anr.
817
24.9.2021
and
Appellate
Court
on
20.8.2022 are reproduced herein under:-

(1) Order passed by Civil Judge
(J.D.) (Fast Track Court), Offence
against Women, Meerut on 24.9.2021

प्राथषना पत्र अांतगषत धारा 23 घरेिू डहांसा से
मडहिाओां का सांरक्षि अडधडनयम स्वीकार डकया जाता है। आपत्ती
तदनुसार डनस्ताररत। डवपक्षी सांख्या 1 को आदेडशत डकया जाता है
डक वह प्राथषनी को मकान नांबर 28 मीरा एनक्िेव गढ़ रोि थाना
नौचांदी मेरठ में साझा ग्रहस्ती में रहने से प्रभाडवत नहीं करेगा। आदेश
की एक प्रडत थाना सांबांडधत को अनुपािनाथष प्रेडर्त की जाए।
पत्राविी वास्ते डजरह डदनाांक 13.10.2021 को पेश हो।

(2) Order passed by Additional
District and Sessions Judge, Court No. 3,
Meerut on 20.8.2022

अपीिाथी द्वारा प्रस्तुत दाडडिक अपीि स्वीकार की
जाती है। अवर न्यायािय द्वारा पाररत आदेश डदनाांडकत
24.09.2021 अपास्त डकया जाता है। अपीिाथी को आदेडशत
डकया जाता है डक वह प्रत्यथी सां० 2 को डनवास हेतु डकराये के
मकान के डिए प्रडतमाह अांकन 10,000/- रूपये अदा करेगा।

7. Learned counsel for the revisionist
(Wife) submitted that she revisionist lived
in
combined/common
house
with
Respondent no. 2 (husband) from the date
of
her
marriage
i.e.
26.02.1995
to
20.06.2016. In the course of time opposite
party no. 2 engaged in extra marital affairs
with his maid, namely, Geeta. On protest to
this ugly act of husband started committing
domestic
violence
and
cruelty
on
revisionist (wife) and on her son. On
26.6.2016 respondent no. 2 (husband)
attacked
the
revisionist
(wife)
with
intention to kill her. She suffered grave
injuries and got her medical treatment from
Dayawati Modi Nursing Home Meerut.
After treatment, when she returned to
residence (shared matrimonial house),
husband did not allow her and her son to
enter into the house in question. She next
submitted that the impugned judgment and
order dated 20.8.2022 has illegally been
passed without appreciating the evidence
on record in right perspective. The
Appellate Court has completely misread,
misinterpreted and mis-appreciated the
evidence
on
record.
Therefore,
the
impugned judgment and order dated
20.8.2022 is liable to be set aside.

8. Learned counsel for respondent no.
2 and learned A.G.A. vehemently opposed
the submissions made by learned counsel
for the revisionist On the cumulative
strength of the aforesaid submissions, it is
strenuously urged that order under revision
does not suffer from any serious illegality
and perversity in law, as such the learned
Appellate Court has rightly passed the
impugned order dated 20.8.2022.

9. To deal with the correctness
various
terms
"domestic
relationship,
"shared
household"
and
"domestic
violence"
etc
used
in
the
present
controversy. A brief resume of such terms
having material bearing on the issues
involved in the present revision will be
helpful in adjudicating the controversy
involved in the present criminal revision.
Following relevant terms are defined in u/s
2 and 3 of PW for DV Act. Which are
quoted herein-under:

Section "2. Definitions.--In this
Act, unless the context otherwise requires,--

............

(f) "domestic relationship" means
a relationship between two persons who
live or have, at any point of time, lived
together in a shared household, when they
are related by consanguinity, marriage, or
818 INDIAN LAW REPORTS ALLAHABAD SERIES
through a relationship in the nature of
marriage, adoption or are family members
living together as a joint family;

............

(s) "shared household" means a
household where the person aggrieved lives
or at any stage has lived in a domestic
relationship either singly or along with the
respondent
and
includes
such
a
household whether owned or tenanted
either jointly by the aggrieved person and
the respondent, or owned or tenanted by
either of them in respect of which either
the aggrieved person or the respondent
or both jointly or singly have any right,
title, interest or equity and includes such
a household which may belong to the
joint family of which the respondent is a
member, irrespective of whether the
respondent or the aggrieved person has
any right, title or interest in the shared
household.

Section 3. Definition of domestic
violence.--For the purposes of this Act, any
act, omission or commission or conduct of
the respondent shall constitute domestic
violence in case it--

(a) harms or injures or endangers
the health, safety, life, limb or well-being,
whether mental or physical, of the
aggrieved person or tends to do so and
includes causing physical abuse, sexual
abuse, verbal and emotional abuse and
economic abuse; or

(b) harasses, harms, injures or
endangers the aggrieved person with a
view to coerce her or any other person
related to her to meet any unlawful demand
for any dowry or other property or
valuable security; or

(c) has the effect of threatening
the aggrieved person or any person related
to her by any conduct mentioned in clause
(a) or clause (b); or

(d) otherwise injures or causes
harm, whether physical or mental, to the
aggrieved person. Explanation I.--For the
purposes of this section,--

(i) "physical abuse" means any
act or conduct which is of such a nature as
to cause bodily pain, harm, or danger to
life, limb, or health or impair the health or
development of the aggrieved person and
includes assault, criminal intimidation and
criminal force;

(ii) "sexual abuse" includes any
conduct of a sexual nature that abuses,
humiliates, degrades or otherwise violates
the dignity of woman;

(iii)
"verbal
and
emotional
abuse" includes--

(a) insults, ridicule, humiliation,
name calling and insults or ridicule
specially with regard to not having a child
or a male child; and

(b) repeated threats to cause
physical pain to any person in whom the
aggrieved person is interested.

(iv) "economic abuse" includes--

(a) deprivation of all or any
economic or financial resources to which
the aggrieved person is entitled under any
law or custom whether payable under an
order of a court or otherwise or which the
aggrieved person requires out of necessity
including, but not limited to, household
necessities for the aggrieved person and
6 All. Smt. Shailja Vs. State of U.P. & Anr.
819
her children, if any, stridhan, property,
jointly
or
separately
owned by
the
aggrieved person, payment of rental
related to the shared household and
maintenance;

(b) disposal of household effects,
any alienation of assets whether movable
or immovable, valuables, shares, securities,
bonds and the like or other property in
which the aggrieved person has an interest
or is entitled to use by virtue of the
domestic relationship or which may be
reasonably required by the aggrieved
person or her children or her stridhan or
any other property jointly or separately
held by the aggrieved person; and

(c) prohibition or restriction to
continued access to resources or facilities
which the aggrieved person is entitled to
use or enjoy by virtue of the domestic
relationship including access to the shared
household.

Explanation II.--For the purpose
of determining whether any act, omission,
commission or conduct of the respondent
constitutes "domestic violence" under this
section, the overall facts and circumstances
of
the
case
shall
be
taken
into
consideration."

10. it is an admitted case both the
parties that marital relations between them
and it subsists till date. They are legally
wedded as husband and wife. Out of their
wedlock a son born to them. Who is also
living with the revisionist. It has also not
been disputed by the learned counsel for
respondent no. 2 that after their marriage
the revisionist resided with respondent no.
2, in the house situated at 28 Meera
Enclave, Garh Road, Meerut. Thus, as per
definition of the domestic relationship is
under section 2(f) of D.V. Act,2005, Since
both of them were living in the same house
from the inception of their marriage i. e.
26.02.1995 in the house in question and
they had held shared house as defined is
u/s. 2(s) of D.V. Act. In the course of time
the dispute arose between them, as alleged
by
revisionist,
in
view
of
husband
respondent no. 2 having extra marital
affairs with his Maid. Geeta. It is also
alleged by revisionist committed, domestic
violence as he attacked revisionist of his
ugly act; he on 26.6.2016, in which she
received grave injuries and under gone
medical treatment at Dayawati Modi
Nursing Home Meerut. It was only when
she returned to her residence i. e. shared
matrimonial home, respondent no. 2, did
not allow her to enter the house in
qoestions. As per the definition under
Section 3 of Protection of Women from
Domestic Violence Act, 2005, this act of
respondent no. 2 falls under the domestic
violence.

11. Learned counsel for respondent
no. 2 contended that besides, his real
brother of respondent no. 2 his father and
other family members are also residing in
the house in question. Sharing of that house
by the revisionist may cause unnecessary
wrangle , bucking and scuffling, even made
and to disturb the peace and harmony of
these members. Moreover, present dispute
is lasting since 2016 and there are serious
litigation between the parties . So their
living under one roof is dangerous to the
life and health of respondent no. 2 and his
family members. It is also submitted that
respondent no. 2 is ready to pay Rs.
10,000/- as rent to facilitate the revisionist
to reside in rented house.

12. Learned counsel for revisionist
Refuting the aforesaid argument of learned
820 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for respondent no. 2, learned
counsel for the revisionist submitted that
the house in question is a big house,
consisting of 16 big and small rooms. The
revisionist is in possession only two rooms
on the 1st floor of the house in question.

13. Learned counsel for revisionist
next submitted that it is an admitted fact
that the father of respondent no 2 was the
owner of the house in question. His father
Shobha Lal Mittal (father-in-law of the
revisionist) had died on 07.12.2020. His
brother Dr. Pradeep Mittal resides at A-38
Moti Prayag Colony Garh Road, Meerut, as
is evident from the perusal of the WS filed
in Suit No. 1057 of 2020, wherein he
mentioned th

14. It has been argued by the learned
counsel for the respondent no. 2 that
revisionist wants to take over the entire
house situated at Meera Colony and wants
to become the owner of that house. Learned
counsel for the revisionist refuted this
argument of respondent no. 2 and clarified
that there is no apprehension in the mind of
revisionist that she would take over the
ownership of the house in question because
after the death of the father, having
ownership of the house, the ownership goes
to the LRs of the deceased owner.
Therefore, this apprehension expressed by
the learned counsel for the opposite party
no. 2 is baseless and unreasonable and his
argument is not tenable.

15. It is also an admitted fact that
respondent no. 2 is also not residing with
the revisionist in the house in question.
This fact is also evident from the facts that
he has given his present residential address
in the memo of appeal as resident of house
no. 468 Phool Bagh Colony, Meerut. In
these circumstances, no other man reside
with the revisionist. There arises no
question of quarreling, causing heart to
anyone in that residence. The learned
appellate court erred in recording its
conclusion in this behalf.

16. Thus, the revisionist is residing in
the
shared
house
since
24.09.2021.
Respondent no. 2 was also residing with
her in that house up to filing of the appeal
before learned Sessions Judge and she is in
possession of first floor consist of in two
rooms. While, the residence is lying vacant,
no one is there to resides in the house in
question with the revisionist, it will be
sheer wastage of money by providing the
revisionist rental money of Rs.10,000/- to
be spent as rent for living in any other
accommodation. It may also be mentioned
that for some time respondent no. 2 has
expelled
to
the
revisionist,
but
in
compliance of the order dated 24.9.2021
passed by learned Civil Judge (JD), S.S.P.
Meerut, provided re-entry to the revisionist
in the shared house in question. Since
24.9.2021, she is residing in the shared
house situated at 28 Meera Enclave Garh
Road, Meerut continuously.

17. Respondent no.2 was residing in
their house at the time of filing appeal
before Sessions Judge and She was in
possession of 1st floor of the have in two
rooms set.

18. In view of the above, the finding
recorded by the learned appellate court
regarding provision of Rs.10,000/- as rental
money to the revisionist is also not
sustainable.

19.

Accordingly,
the
findings
recorded by learned appellate court vide
order dated 20.08.2022 is liable to be set
aside and the order passed by the learned
6 All. Yuvraj Yadav Vs. Adheekshak Kendriya Karagar Naini, Prayagraj & Anr.
821
Civil Judge (JD) (Fast Track Court),
offences against women, Meerut is liable to
be upheld findings of the appellate court is
perverse and against the law and facts.

20. Resutantly, the revision is
allowed. The impugned order of the
learned appellate court dated 20.08.2022 is
set aside and quashed. Order passed by
learned Civil Judge (JD) (Fast Track
Court), is affirmed. Respondent no. 2
(husband) is directed not to interfere in
residence of the revisionist in the shared
house in question
----------
(2023) 6 ILRA 821
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE GAJENDRA KUMAR, J.

Habeas Corpus Writ Petition No. 350 of 2023

Yuvraj Yadav ...Petitioner
Versus
Adheekshak
Kendriya
Karagar
Naini,
Prayagraj & Anr. ...Respondents

Counsel for the Petitioner:
Sri Prabha Shanker Chaturvedi, Sri Abhishek
Kumar Mishra, Sri Chandrakesh Mishra, Sri
D.S. Mishra (Sr. Advocate)

Counsel for the Respondents:
G.A.,
Sri
Dan
Bahadur
Yadav,
Sri
Parmeshwar Yadav

The Constitution of India, 1950-Article226- WRIT of Habeas Corpus- Writ of
habeas corpus cannot be entertained
when a person is committed to judicial
custody or police custody by a competent
court by an order-the detention of the
accused cannot be said to invalid on
account of certain irregularities if any
occurring in the earlier remand orders and
the accused cannot get the benefit of such
technical errors-the petitioner has already
invoked provisions of Section 482 Cr.P.C.,
hence administration of criminal justice
has already come into play and the same
cannot
be
set
at
knaught
by
simultaneously
invoking
extra-ordinary
remedy
under
Article
226
of
the
Constitution of India, which may be a
remedy of right but as per settled law
cannot be issued as a matter of course.
Moreover, when corpus is in legal custody
under valid remand order, the present writ
petition is not be maintainable as per the
law settled by the Apex Court as well as
the High Courts. (Para 25, 27 & 31)

Petition dismissed. (E-15)

List of Cases cited:

1. Ram Narayan Singh Vs St. of Delhi & ors.
1953 0 Supreme (SC) 27

2.
Keshav Singh Vs Speaker, Legislative
Assembly AIR 1965 All 349

3. Gautam Navlakha Vs National Investigation
Agency 2021 0 Supreme (SC) 334

4. Surjeet Singh Vs St. of U.P. 1984 ALL. L. J.
375

5. Urooj Abbas Vs St. of U.P. 1971 0 Supreme
(All) 211

6. Sunil Kumar Sharma Vs St. (Nct of Delhi)

7. Saquib Abdul Hamid Nachan & ors. Vs St.
of Mah. (2006) 108 BOMLR 339, 2006 CriLJ
2196,

8. Manubhai Ratilal Patel Vs St. of Guj. & ors.
[2013 1 SCC 314],

9. Saurabh Kumar v. Jailor, Koneila Jail & anr.
[2014 13 SCC 436]

10. St. of Mah. Vs Tasneem Rizwan Siddiquee
[AIR 2018 SC (Criminal) 1449]