PRASHANT KUMAR AGARWAL, J. - (1.) THE petitioners, who are father-in-law and mother- inlaw respectively of the non-petitioner Dr, Vinita Choudhary, have preferred this criminal revision petition against that part of the order dated 5.7.2011 passed by the Metropolitan Magistrate No. 11, Jaipur Metropolitan, Jaipur in Complaint Case No. 13/2011 whereby an interim direction/ order was made for the residence of the complainant in the house in dispute and also against the order dated 16.9.2011 passed by the appellate Court whereby the above-said order has been upheld and affirmed.
(2.) BRIEF relevant facts for the disposal of this revision petition are that complainant Dr. Vinita Choudhary filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred as "the Act") against the petitioners and her husband Shri Satish Bijarniya (non-petitioner No. 5 herein) seeking various relief's under the provisions of the Act including one under Section 19 to the effect that the petitioners and non petitioner No. 5 may be ordered to allow the complainant to continue to reside in the house in dispute or they may provide alternative accommodation to her or to pay Rs.5,000 per month as rent. It is pertinent to note that in the complaint no such fact was averred by the complainant that the house in dispute is a self acquired property of her husband or he is co-owner of it along with the petitioners or it is an ancestral house in which her husband also has share. Reply to the complaint was filed by the petitioners, in which apart from other facts, it was averred that the complainant has no connection with the house in dispute and it is a self-acquired property of the petitioner No. 1 Shri Dan Mal and the complainant has no legal right in the same. Non-petitioner No. 5, husband of the complainant, also filed separate reply to the complainant with the averment that the house in dispute is a self-acquired property of the petitioner No. 1 and no other person including the complainant has any right in it. It was further averred that he has a separate house in his possession and control and the complainant can reside in the same. The learned Magistrate after hearing the parties vide interim order dated 5.7.2011 made a direction to the petitioners and non-petitioner No.5 not to interfere in the residence of the complainant in the house in dispute and also not to disconnect electric supply to it. Feeling aggrieved from this part of the order, the petitioners filed Appeal No. 35/2011 under Section 29 of the Act and the same was dismissed by the appellate Court vide judgment and order dated 16.9.2011. It was found by the Court that no evidence has been produced indicating that the house in dispute has been constructed by petitioner No. 1. It was also observed that this fact can be decided finally only recording evidence of the parties. It was further held that according to Hindu Law, grandson has a right in the property of his grand-father. With these findings the order of the learned Magistrate was upheld and affirmed. Still dissatisfied, the petitioners are before this Court by way of this criminal revision petition. It was submitted by the learned counsel for the petitioners that specific averment was made in the reply filed by the petitioners as well as in the separate reply filed by the non-petitioner No.5 to the effect that the house in dispute is self- acquired property of the petitioner No.1 and no other person including the complainant has right in it and this fact has remained unrebutted as it has not been denied by the complainant in any manner and even in the complaint no averment 'was made that the house in dispute solely belongs to non-petitioner No.5 or he is co-owner of the same but the learned Courts below without considering the matter in a right perspective have directed the petitioners not to interfere in the possession/residence of the complainant in it. It was further submitted that there is ample documentary evidence available on record indicating that the Plot over which the house in dispute was constructed was purchased by the petitioner and loan for construction and re-construction of the same was also taken by him from his employer and, therefore, no further evidence is required to be recorded. It was also submitted that it is well settled legal position that daughter-in-law has no right to claim residence right in a house which solely belongs to her father-in-law. It was further submitted that in the present case specific averment was made by non-petitioner No.5 that the complainant can reside in another house which is in the sole possession and control of him but that aspect of the matter was not even considered. It was also submitted that the complainant herself made a prayer that alternative accommodation or Rs.5,000 per month as rent may be provided to her but even then residence right in the house in dispute was granted.
(3.) IN support of his submissions, learned counsel for the petitioners relied upon the cases of S.R. Batra & Anr, v. Taruna Batral and Neetu Mittal v. Kanta Mittal & Ors.;