2025:HHC:21666 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.529 of 2023 Decided on: 07.07.2025 Narayan Dassi ….Petitioner Versus Ganga Ram ...Respondent Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? For the petitioner: Mr. Rajnish K. Lal, Advocate. For the respondent: Ms. Kiran Lata, Advocate. Satyen Vaidya, Judge (Oral) On the last date, costs of Rs.10,000/- was imposed as adjournment was sought on behalf of the respondent on the ground of absence of learned counsel. 2. Today, learned counsel for the respondent has explained the unavoidable reasons in which she could not remain present for addressing arguments. 3. I am satisfied with the reasons which prevented the learned counsel from appearing on the last date. Accordingly, order dated 28.06.2025 is recalled to the extent the costs was imposed upon the respondent. 2 4. By way of instant petition, challenge has been laid to order dated 17.05.2023. passed by learned Chief Judicial Magistrate, Kinnaur at Reckong Peo. 5. The impugned order has been passed on execution application of petitioner Narayan Dassi to execute order dated 20.09.2021, passed by learned Chief Judicial Magistrate, Kinnaur at Reckong Peo in Case No.6 of 2016. 6. The operative part of order dated 20.09.2021 reads as under: “In the result of discussion hereinabove and my findings on the points No.1 to 8 above, the petition is allowed to the affect that the petitioner is awarded maintenance amount @ Rs. 2,000/- per month from the respondent/husband from the date of filing of petition alongwith compensation amount of Rs. 30,000/-. Further, the respondent is also permanently restrained from committing any acts of domestic violence against the petitioner. The petitioner is also held entitled for various reliefs under Sections 18 to 20 of the Act. Let copy of this order be sent to the Station House Officer concerned for immediate necessary action and compliance under intimation to the court. Copy of order be supplied to the petitioner free of cost. File, after completion, be consigned to the record room.” 7. The order passed by learned Chief Judicial Magistrate, Kinnaur at Reckong Peo on 20.09.2021 has been 3 affirmed by learned Sessions Judge, Kinnaur vide judgment dated 25.05.2022, passed in Criminal Appeal No.31 of 2021. 8. According to the petitioner, directions issued in order dated 20.09.2021 by learned Chief Judicial Magistrate, Kinnaur at Reckong Peo, holding the petitioner entitled to various reliefs under Sections 80 to 20 of Protection of Women from Domestic Violence Act, 2005 (for short, “the Act”) were ambiguous. The ambiguity had arisen because in consequence to aforesaid order, the respondent had offered to provide the petitioner residential accommodation in his old house, whereas the claim of the petitioner throughout had been that she was residing with the respondent as his wife in a new house i.e. RCC structure, which according to the petitioner was the shared household. The petitioner claims right of residence in the new house. 9. In this background, the execution application was filed by the petitioner before learned Chief Judicial Magistrate, Kinnaur at Reckong Peo and the same came to be dismissed vide impugned order dated 17.05.2023. 10. Learned executing Court has held that the Court while sitting as executing Court has certain limitations and cannot grant relief which was not specifically provided for in the order. 4 11. Learned counsel for the petitioner has placed reliance on the judgments passed by Hon’ble Supreme Court in The State of Bombay vs. Rusy Mistry and another, AIR 1960 SC 391 and Rajinder Kumar vs. Kuldeep Singh & others, (2014) 15 SCC 529, to assert that the executing Court is not powerless in cases where the ambiguity is found in the order or decree of the Court. 12. What the petitioner is seeking in execution of order dated 20.09.2021 is a right of residence in new house. The petitioner is pressing for her claim on the ground that it is not possible for her to live in the old house as the respondent has married another woman and is residing with her in the said house. 13. Learned counsel for the petitioner has also placed reliance on a judgment passed by Hon’ble Bombay High Court in Mrs/ Sabah Sami Khan vs. Adnan Sami Khan, Writ Petition No.6625 of 2010, wherein it has been observed that a wife cannot be expected to live in the house where her husband is residing with another woman as his wife or otherwise. 14. Undoubtedly, in light of Rusy Mistry and Rajinder Kumar cases (supra), the executing Court is not powerless in cases where the decree or order is ambiguous. However, keeping in view the provisions of Section 19 of the Act, grant of specific 5 relief as prayed by the petitioner, may not be within the jurisdiction of the learned Magistrate. 15. Section 19 of the Act reads as under: “19. Residence orders.—(1) While disposing of an application under sub-section (1) of section12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order. a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to remove himself from the shared household; (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; (d) restraining the respondent from alienating or disposing off the shared household or encumbering the same; (e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman. 6 (2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person. (3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence. (4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly. (5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order. (6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties. (7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order. (8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her 7 stridhan or any other property or valuable security to which she is entitled to.” 16. Admittedly, at the time of filing of the petition under Section 12 of the Act, the petitioner was not occupying the shared household, which according to her, was the new house. In none of the situations, mentioned in Section 19 of the Act, the Magistrate can order, directing the petitioner to be accommodated in the new house. As per Section 19(f) of the Act what can be ordered is to direct the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require. 17. In the fact situation, as discussed above, no fault can be found with the impugned order as the learned Magistrate even if intended to exercise some jurisdiction, may have been able to pass the directions as sought by the petitioner. 18. Viewed from another angle in the peculiar circumstances, the petitioner cannot be said to be without remedy. 19. Section 25(2) of the Act reads as under: “25. xxx xxx (2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances 8 requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.” 20. This provision vests the Magistrate with jurisdiction to decide all issues relating to change or modification in the order in certain exigencies. Thus, the petitioner shall be at liberty to avail her remedy under Section 25(2) of the Act and in case she chooses to avail such remedy, observations made in the impugned order shall not stand in her way and learned Magistrate shall decide her application under Section 25(2) of the Act on its own merits, strictly in accordance with law. 21. The petition is accordingly disposed of along with pending application(s), if any. ( Satyen Vaidya ) Judge July 07, 2025 (vt)