by Roma Sangwan
Op EdsOP. ED.

   

Introduction and Issues Crucial to the Decision of the Court

Domestic violence has been a deep-rooted evil in India wherein weak, vulnerable and innocent women suffer at the hands of men. According to the reliable report of India, the National Crime Records Bureau (NCRB), 2019 it has been recorded that the estimate goes to somewhat around 30.9% of the cases of all 4.05 lakh cases are registered under Penal Code, 18602 and Section 498-A3.4 This date showcases the prevalence of the domestic violence in India even after stringent laws and Act in place for the safety of women and their children.

This comment elaborates the righteousness of the landmark judgment of Satish Chander Ahuja v. Sneha Ahuja,5 which gave a clear understanding of the rights of women in shared household. Crime against women and children has been at a constant surge in India and hence the Court elaborated which ultimately broadened the meaning of “shared household” as per Section 2(s)6 of the Protection of Women from Domestic Violence Act, 2005 (“Act of 2005”). Earlier Indian women could only go to the civil courts to avail decree of divorce or could go to the criminal courts under Section 498-A IPC hence, till the year 2005 the remedies for women were limited wherein no emergency relief could be sought by the victim, after the Act of 2005 the scope of remedies for women have increased hence, making the 2005 Act a saving grace for the victims who sometimes suffer as a compulsion and sometimes by the choice of silence in India.

The Court in the present matter dealt with various crucial issues for securing justice for women and their children when they have been subjected to mental and emotional cruelty at the hands of their husband and in-laws. The issues were crucial to understand the definition of “shared household” under Section 2(s) of the Act of 2005 including the interpretation of the earlier judgment of this Court in S.R. Batra v. Taruna Batra7, and various other questions that would further clear the ambiguity in the interpretation of the Act of 2005 and its earlier application in the judgment by the trial court. These issues were drafted by the Court after prudent hearing of the case and the landmark judgment was delivered on the basis of these issues. The brutality and injustice suffered by women in India will only be curbed by the constant involvement of the judiciary in delivering justice.

Brief facts of the case and lower court decisions

In the present matter, the son of Satish Chander Ahuja (hereinafter “R” or “respondent”) married Sneha Ahuja in 1995 and after the said marriage the couple started residing in the first floor of the residence owned by Satish Chander Ahuja. In around 2014 the couple started to have differences and after that the husband filed a divorce petition under Sections 13(1)(i-a) and (iii)8 of the Hindu Marriage Act, 19559.

Chief Metropolitan Magistrate

Further, the wife, Sneha Ahuja filed an application suggesting trauma under Section 12 of the Act of 2005 impleading the husband as Respondent 1, her father-in-law Satish Chander Ahuja as Respondent 2 and mother-in-law as Respondent 3. In the said application, Sneha Ahuja alleged that she has suffered severe mental and emotional trauma by the respondents.

In regard to the said application the Chief Metropolitan Magistrate passed an interim order that the children or the wife Sneha Ahuja will not be disposed of the said shared household property nor should the respondents alienate such property.

Trial Court

Aggrieved by the interim order passed by the Chief Metropolitan Magistrate, the appellant filed a suit for permanent injunction impleading Sneha Ahuja as the sole defendant. Herein, the appellant i.e. Satish Chander Ahuja alleged that he and his wife has been a victim of domestic violence whilst suffering from various heart ailments, hypertension at the age of 76 and hence wants to live peacefully in his self-acquired residence. It was further stated that Sneha Ahuja filed the above domestic violence application to counterblast the divorce petition filed by the husband “R”.

It consequently was proved by the appellant that the residence in the present matter is his self-acquired property by filing required documents under Order 11 Rule 13 CPC10. After duly hearing and recording the present documents the trial court held that the plaintiff is decreed for relief of permanent injunction as prayed for and further asked Sneha Ahuja to vacate the premises of Satish Chander Ahuja within 15 days.

Delhi High Court

Aggrieved by the above judgment Sneha Ahuja filed regular first appeal in the Delhi High Court. The Delhi High Court held11 that the trial court erroneously passed the decree based only on the fact that whether the property in question was a “self-acquired” or “shared household” and gave no regard to the fact that the domestic violence case was still pending adjudication and determination by the court. Aggrieved by the judgment of Delhi High Court the present appellant, Satish Chander Ahuja filed an appeal in the Supreme Court of India.

Supreme Court: A landmark judgment

The Supreme Court whilst pronouncing the judgment12 gave regard to the objectives of the Act of 2005 which is to safeguard the rights of the aggrieved women of India.

Firstly, the Court deciphered the terms “means” and “includes” as mentioned in the definition of “shared household” under Section 2(s) of the Act of 2005. The Court while relying on Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union13, Pioneer Urban Land & Infrastructure Ltd. v. Union of India14, South Gujarat Roofing Tiles Manufacturers Assn. v. State of Gujarat15 and Karnataka Power Transmission Corpn. v. Ashok Iron Works (P) Ltd.16 stated that the term “includes” is interpreted to enlarge, broaden and expand the meaning of the sentence and hence the second half of the definition in Section 2(s) is exhaustive and all-inclusive. Thus, the Court stated that “shared household” does not just mean the household property of the joint family of which the husband is a member of or has a share in but has a wider scope of interpretation.

Secondly, the Court thoroughly analysed the judgment of the Supreme Court in S.R. Batra v. Taruna Batra17 wherein the Court specifically emphasised that the interpretation in the said case was not a correct interpretation and lacked the legal intent of the drafters. The Court further held that the words “lives or at any stage has lived” does not mean any place they have lived fleetingly including any relative's residence, if the definition is broadened to this extent then that would entirely destruct the motive of the Act and would lead to chaos. The living has to have some form of permanency and should have the intention of the parties to accept the premises as “shared household” property.

Thirdly, the Court concurred with the Delhi High Court's judgment and held that the decree of the trial court was unsustainable as the power under Order 12 Rule 6 18 CPC is discretionary and due to that the trial court must have not given the impugned judgment. The Court in this reference relied on Himani Alloys Ltd. v. Tata Steel Ltd19, S.M. Asif v. Virender Kumar Bajaj20, Section 26 21 of the Act of 2005 and further relied for interpretation of the said Section 26 on Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi22.

Fourthly, the Court opined that the plaintiff in the domestic violence case can be treated as “respondent” as per Section 2(q), of the 2005 Act for the sole purpose of determining the rights under Sections 17 23 and 19 24 read with Section 26 of the said Act of 2005. The Court relied on Hiral P. Harsora v. Kusum Narottamdas Harsora 25 wherein the Court struck down “adult male” and further held that for a person to treated as a “respondent” as per Section 2(q) of the Act of 2005, it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved.

Fifthly, the Court while relying on Order 1 Rule 10,26 CPC held that the husband is not a necessary party or a party with the view of the fact that no relief has been claimed against the son of the plaintiff. But the Court further gave regard to Sections 17, 19 and 16 27 of the 2005 Act wherein for the purpose of fulfilling the right of alternate accommodation and maintenance under the Hindu Adoptions and Maintenance Act, 195628 the husband is a necessary party.

“Woman now has a right of residence in the property owned by father-in-law as per the 2005 Act.”

This case has been a turning point for securing justice and rights of women and children aggrieved by domestic violence in India and the author subsequently believe it to be a righteous decision by the Hon'ble Justices. Even in the judgment the Judges particularly put specific reliance on the objectives of the 2005 Act wherein securing the rights of the aggrieved woman and children has been the core object and purpose of the legal drafters.

The issues framed by the Supreme Court were of utmost importance but the core understanding and interpretation of the term “shared household” under Section 2(s) of the Act of 2005, overruled various judgments hence making the decision in Satish Chander Ahuja v. Sneha Ahuja29, a landmark judgment. If the Judges would have relied on prior decisions of the Courts in interpreting the meaning of “shared household” then that rightly so would have created a havoc and chaos. The Court by drifting away from the earlier interpretation gave a new hope to the aggrieved woman in India.

The irony is that the definition of “shared household” has been interpreted by the Court in such a manner that would broaden and yet make it limited than the earlier interpretation of the term. Where before the term was interpreted in a literal manner giving no regard to the legal understating and object of the Act of 2005.

It is pertinent to note that the Court disregarded the judgment in S.R. Batra v. Taruna Batra30 as that would only lead to confusion and chaos in the justice-delivering system. Wherein the Court interpreted and expanded the definition is such a direction that would make any casual place of stay by the couple a “shared household” as per Section 2(s) of the 2005 Act. If this was legal intent of the drafters then the parties would ask for a right of residence in any of the relative's homes where they have resided fleetingly together even as a guest which would shatter the whole idea and object of the Act of 2005. The present case sheds light on the fact that broadening the extent of a definition can sometimes lead to more problems than providing prudent solutions. Hence, in the present case the Judges made a clear distinction as to what will form the exhaustive meaning of the definition and gave importance to the intent of the parties to reside in a place with certain permanency rather than just a casual stay. Herein the parties stayed in the self-acquired property of the father-in-law since their marriage which took place in 1995 that shows the “intent of parties to reside in the said residence with certain permanency” making it the “shared household” of the parties.

It is further prudent to note that after this decision the wife would be entitled to right of residence even in the property of father-in-law as per the Act of 2005 making it a landmark judgment which has opened new dimensions for woman and their security. This case has proved to be a pillar which will open new pathways to a more liberal and safe environment for aggrieved woman and children in India.

Conclusion

This judgment paved new pathways for the Act of 2005 but still the condition of women in India is not remotely close to getting any better. Women still are suffering from various brutalities at the hands of their husbands, in-laws, brothers and so on and so forth.

Relying on the statement by the court in the instant matter, the progress of society is still a far-fetched dream in India, there is still a need for more landmark judgments wherein the court regards women as equal and liberal as men. Protecting the rights, liberty and security of women in India must be the core object while deciding not just the matter of domestic violence but also other crucial questions of law.


† Author is a lawyer presently working in the corporate legal department of a company and can be reached at <romasangwan@gmail.com>.

2. Penal Code, 1860.

3. Penal Code, 1860, S. 498-A.

4. Ministry of Home Affairs, NCRB Report Statistics, Vol. 1, available at <https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf> (visited on 6-2-2022).

5. (2021) 1 SCC 414.

6. Protection of Women from Domestic Violence Act, 2005, S. 2(s).

7. (2007) 3 SCC 169.

8. Hindu Marriage Act, 1955, Ss. 13(1)(i-a) and (iii).

9. Hindu Marriage Act, 1955.

10. Civil Procedure Code, 1908, Or. 11 R. 13.

11. Ambika Jain v. Ram Prakash Sharma, 2019 SCC OnLine Del 11886.

12. (2021) 1 SCC 414.

13. (2007) 4 SCC 685.

14. (2019) 8 SCC 416.

15. (1976) 4 SCC 601.

16. (2009) 3 SCC 240.

17. (2007) 3 SCC 169.

18. Civil Procedure Code, 1908, Or. 12 R. 6.

19. (2011) 15 SCC 273.

20. (2015) 9 SCC 287.

21. Protection of Women from Domestic Violence Act, 2005, S. 26.

22. (2017) 14 SCC 373.

23. Protection of Women from Domestic Violence Act, 2005, S. 17.

24. Protection of Women from Domestic Violence Act, 2005, S. 19.

25. (2016) 10 SCC 165.

26. Civil Procedure Code, 1908, Or. 1 R. 10.

27. Protection of Women from Domestic Violence Act, 2005, S. 16.

28. Hindu Adoptions and Maintenance Act, 1956.

29. (2021) 1 SCC 414.

30. (2007) 3 SCC 169.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: While dismissing the bail application in case registered under Section 302, 120-B Penal Code, 1860, Sameer Jain, J. held that parity cannot become the sole criteria to grant bail.

Applicant is the cousin brother of the deceased. FIR was lodged against the applicant and his parents with the allegation that applicant along with his parents ablazed the sister of informant by pouring kerosene oil and during the course of treatment she succumbed to her injuries. The dying declaration of the deceased was recorded by the Additional City Magistrate-III on the date of incident in the hospital in which she stated that applicant, his parents and brother of applicant dragged her in their home and after pouring kerosine oil ablazed her.

Counsel for the applicant submitted that entire allegation made in the FIR and in the dying declaration of the deceased was totally false and baseless and initially, during investigation, the accusation made against the applicant and his parents were found false. He vehemently submitted that co-accused have already been enlarged on bail by the co-ordinate Bench of this Court and as per dying declaration the allegation against the applicant is also at par with those accused persons, who have been enlarged on bail, therefore, on the ground of parity applicant should also be released on bail.

AGA submitted that there is specific allegation against the applicant in the dying declaration of the deceased recorded by the Additional City Magistrate-III and while granting bail to co-accused the dying declaration of the deceased could not be discussed, therefore, on the ground of parity applicant should not be released on bail.

The Court noted that the informant was not the eye-witness but Additional City Magistrate- III recorded the dying declaration of the deceased and from its perusal there is specific allegation against the applicant and co-accused. The Court from the perusal of the bail orders of other co-accused found that they were given bail without assigning any reasons. They were released on bail merely on the basis of argument advanced by counsel for the co-accused persons.

The Court reiterated the recent Supreme Court case of Birjmani Devi v. Pappu Kumar, (2022) 4 SCC 497 where the Court deprecated the practice to allow bail application without assigning any reason observing,

“38. Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”

The Court dismissed the bail application stating that parity cannot become the sole criteria to grant bail and if the bail granted to similarly placed co-accused persons without assigning any reasons then on the basis of such bail orders merely on the ground of parity, the bail application should not be allowed and parity can only be persuasive in nature and cannot be binding.

[Manish v. State of U.P., 2022 SCC OnLine All 429, decided on 22-06-2022]


Advocates who appeared in this case :

Mr Kapil Tyagi, Advocate, for the Applicant;

Mr Arvind Kumar, Advocate, for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna J. allowed the petition and directed to dispose the application seeking maintenance, within a period of two weeks from the date of receipt of the copy of this order.

The petitioner filed an application invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’ ) on several allegations which are not under challenge before the Court. The petitioner filed this application seeking a direction by issuance of a writ in the nature of mandamus to the Metropolitan Magistrate Traffic Court-III, Bangalore to dispose of the interlocutory/main application filed under the Protection of Women from Domestic Violence Act, 2005 in a Criminal Miscellaneous application within three months.

Counsel for petitioner contended that every application accompanying the main application should be decided by the learned Magistrate within three months from the date of its presentation in terms of Section 12 DV Act.

The Court observed that sub-section (5) of Section 12 DV Act mandates that every application filed under the Act shall be disposed of by the Court within sixty days (60 days) of the date of its presentation. The order sheet reveals that the application was filed on 12-11-2021 seeking maintenance but 60 days have passed by yet the order sheet does not demonstrate any consideration of the application.

The Court thus held “the petitioner is entitled to a mandamus at the hands of this Court or a direction to the Magistrate to dispose of the application for maintenance expeditiously.” [Rajamma H v. Thimmaiah V, 2022 SCC OnLine KAR 1009, decided on 09-06-2022]

*EDITORIAL NOTE:

For disposal of application filed under the Domestic Violence Act, 2005,  Section 12(5)  mandates the time limit of 60 days from the date of presentation and not 6 months.


Appearances

For petitioner- Mr Ragavendra Gowda K. and Mr Mohan Kumar D.

 


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsDistrict Court

Karkardooma Courts, Delhi: In a matter regarding providing maintenance to wife and children, Ramesh Kumar-1, Principal District & Sessions Judge, expressed that certain, factors such as husband’s liabilities, his standard of living, inflation rates, etc. are to be taken note of when Court decides the quantum of maintenance.

An appeal was filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against the impugned decision passed by the Metropolitan Magistrate whereby the maintenance of Rs 40,000 was awarded in favour of the respondent from the month and the year of filing of the petition before the trial court, and further awarded compensation of Rs 1,00,000 in favour of the respondent.

Factual Background

It was stated that the respondent was treated with love and care, at her matrimonial home, however, she was not happy with the marriage. Further, it was stated that, it was the second marriage of the respondent and the appellant had asked several times for the decree of divorce from her previous husband, but, the respondent never showed the same to him.

Additionally, it was stated that when the appellant tried to stop the respondent from frequently visiting her parental home, the respondent used to abuse and manhandle the appellant and would threaten the appellant to implicate him and his family in false criminal cases or to face the dire consequences.

It was added that the husband tolerated all the cruelties at the hands of the wife to save the matrimonial life.

In the year 2015, the respondent filed a case under Section 12 of the Protection of Women from Domestic Violence Act against the appellant and his family. Trial Court passed an order for interim maintenance in favour of the respondent and her minor son.

Appellant submitted that due to the prevailing circumstances, he used to remain under depression and could not perform his job obligations and due to his poor performance, he was terminated by his employer.

Analysis, Law and Decision

Court expressed that, it is a well-settled principle of law that,

“…it is the legal duty of every able bodied person to maintain his wife and children and provide them with the basic amenities of the life, as per his financial status.”

 Adding to the above, it was stated that while deciding the quantum of maintenance, the Court should take into account the earnings of the husband as well as his other liabilities and the due regard to be given to the standard of living of the husband as well as the inflation rates and high costs of living.

Bench stated that even if the appellant’s plea that he was terminated from service by his employer was accepted, the fact remained that the appellant was a qualified person and capable of earning. Hence, the trial Court had rightly assumed the appellant’s salary to be Rs 80,000.

“Appellant being the husband of the respondent, and father of minor child, has social as well as moral duty to provide maintenance to respondent.”

Settled Law

The appellant being the husband of the respondent, cannot escape from his moral duty of providing maintenance to his wife as well as a minor child.

Hence, the trial Court had rightly observed that the aspect of financial deprivation of woman, is included in the category of economic abuse.

“…an aggrieved woman needs economic support, in view of the domestic violence, perpetrated upon her, by a person, who is in domestic relation with her.”

Settled Law

Every able-bodied person is bound to maintain his wife and children and cannot run away from this responsibility.

 In view of the above, Court held that there was no infirmity or illegality in the impugned decision. [Pawan Sharma v. Aarti Sharma, 2022 SCC OnLine Dis Crt (Del) 17, decided on 10-5-2022]

Case BriefsSupreme Court

Supreme Court: Refusing to interfere with the Delhi High Court verdict, the bench of MR Shah and BV Nagarathna, JJ has held that in a dispute between the husband and wife under the Domestic Violence Act, the landlord, who otherwise is entitled to the decree of eviction should not be made to suffer. The dispute between the husband and wife under the Domestic Violence Act shall not preclude and/or affect the right of the landlord to get the possession if otherwise he is entitled to.

The Court made clear that if the wife has any grievance against the husband, may be in respect of the alternative accommodation, the same is required to be adjudicated in the proceedings under the Domestic Violence Act and/or any other remedy which may be available to her against the husband.

The Court was hearing an appeal against the Delhi High Court verdict [2021 SCC OnLine Del 2109] wherein the Trial Court’s order granting the possession of the suit property on favour of the landlord was upheld. The appellant wife, in the present case, had challenged the Trail Court’s order on the ground that her husband should provide her accommodation as per the Domestic Violence Act, 2005.

The Delhi High Court, was, however, of the view the issue of accommodation by husband under the Domestic Violence Act cannot be a subject matter of the dispute between the landlord and the tenant.

The High Court had also taken note of the fact that an application filed by the appellant herself in the proceedings before the Trial Court wherein the impugned order has been passed, has been withdrawn by the appellant because of the fact that in a separate proceeding under the D. V. Act on her application certain orders have been passed though recalled later, which order has been taken in appeal by the appellant.

“It is for the appellant to seek such orders as appropriate in accordance with law. But surely not in these proceedings.”

[Archana Goindi Khandelwal v. Rajesh Balkrishnan Menon, Special Leave to Appeal (C) No(s). 2939/2022, order dated 04.03.2022]


Counsels

For Appellant: Advocates VK Anand and Ravi Kumar Tomar

Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna, J. allowed the criminal petition and quashed both the orders by the Magistrate and the Sessions Judge.

The facts of the case are such that the petitioner and the respondent are husband and Wife and the marital life between the couple have turned sore, pursuant to which respondent-wife filed a petition invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Magistrate awarded maintenance of Rs.1,000/-. After invoking the provisions of the Act, the respondent-wife filed a invoking Section 127 of the Cr.PC. for enhancement of the maintenance amount awarded under the Act. The petition was allowed and the respondent-wife was awarded maintenance of Rs.5,000/- from the date of the order. Feeling aggrieved by the order, Criminal Revision Petition invoking Section 397 Cr.PC was filed. The Sessions Judge dismissed the said Revision Petition confirming the order passed by the Magistrate enhancing maintenance to the wife from Rs 1,000/- to Rs 5,000/-. It is these two orders that are called in question in the subject petition.

Counsel for the petitioner submitted that the respondent once having invoked the provisions of the Act could not have filed an application seeking enhancement under Section 127 of the Cr.P.C. The order passed by the learned Magistrate as affirmed by the learned Sessions Judge is orders without jurisdiction.

The Court observed that Section 125 of the Cr.P.C. enables the wife to seek maintenance at the hands of the husband inter alia. Invoking this provision, the learned Magistrate can award maintenance. Section 127 of the Cr.P.C. deals with alteration in allowance. Maintenance that is awarded under Section 125 of the Cr.P.C. can be varied in an application filed under Section 127 of the Cr.P.C. What is sine qua non is that an order of maintenance should precede a petition under Section 127 of the Cr.P.C., failing which, a petition under Section 127 of the Cr.P.C. seeking enhancement of maintenance is not available.

The Court further observed that it is an undisputed fact that the respondent-wife invoked the provisions of the Act in which maintenance was awarded. It is also an admitted fact that there is no proceeding initiated by the respondent-wife invoking Section 125 of the Cr.P.C. Therefore, without there being any determination of maintenance under Section 125 of the Cr.P.C. petition under Section 127 of the Cr.P.C. is not maintainable. The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving allowance under Section 125 of Cr.P.C. can maintain a petition under Section 127 of the Cr.P.C. A proceeding under Section 125 of the Cr.P.C. therefore should precede a proceeding under Section 127 of the Cr.P.C. The fact that a provision of Act was invoked for grant of maintenance and provisions of Cr.P.C. are invoked seeking enhancement of maintenance cannot be countenanced in law.

The Court thus held “the order passed by the learned Magistrate enhancing maintenance under Section 127 of the Cr.P.C. was without jurisdiction and a nullity in law. The foundation being a nullity in law, a super structure to it affirming the order of the learned Magistrate, by the learned Sessions Judge will have to follow suit – is to be declared a nullity in law.”

[Shivanand v. Basavva, Criminal Petition No. 101378 of 2019, decided on 17-02-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Saket Court
Case BriefsDistrict Court

Saket Courts, New Delhi: Anuj Agrawal, Additional Sessions Judge –05 while addressing case wherein the maintenance sought by wife, held that,

“It cannot be believed that a person who was capable of supporting a family by getting married, would all of a sudden become devoid of all sources of income.”

Factual Background

The Complaint under Section 12 of the Domestic Violence Act was filed by the respondent stating that she was the legally wedded wife of the appellant and was not working. Respondent was a divorcee and her second marriage got solemnized with the appellant. As per the respondent/wife due to physical, verbal, emotional, economic and domestic violence committed by the appellant and his mother, she had been living separately from him since November 2017.

Respondent/wife is stated to be living in rented accommodation and sustaining herself with great hardship as she was having no source of income.

Hence the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed.

Trial Court assessed the monthly income of the appellant as Rs 1 lakh per month and awarded monthly interim maintenance o Rs 30,000 including rent for alternate accommodation in favour of the complainant.

Appellant/husband was aggrieved with the impugned order and assailed the same.

Analysis, Law and Decision

Firstly, the Court observed that while fixing an interim maintenance court has to take a prima facie view of the matter and need not critically examine the respective claims of the parties regarding their respective incomes and assets because for deciding the same the evidence would be required.

Adding to the above, Court stated that an aggrieved person cannot be rendered to lead a life of a destitute till completion of the trial.

Further, Court cited the decision of the Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7, wherein the test for computing maintenance was laid down.

Plea of the husband that the complainant was a well-qualified woman and was capable of earning and rather she was earning by running a high-end fashion clothing company in the name and style of ‘Allure’ in partnership with her mother as well as from her consultation job.

Court reiterated the settled law that simply because the wife was earning, her claim for maintenance cannot be rejected. Point to be considered is whether the amount the wife is earning sufficient to meet her creature comforts; to keep her body soul together; to keep the wolf from the door; and to keep the pot boiling.  

Supreme Court’s decision in Rajnesh v. Neha,(2021) 2 SCC 324 was also considered in the present matter.

Therefore, the plea of the appellant/husband that respondent/wife was earning was without any merit.

With regard to the territorial jurisdiction of the trial court, the present appeal is barred by limitation.

Further, since the domestic violence report is already on record, the same as an important bearing as far as the question of territorial jurisdiction of the trial court and summoning of appellant/husband was concerned.

Bench opined that the plea of appellant/husband that trial court had no territorial jurisdiction to entertain the complaint filed by respondent/wife was without merit and the same stood rejected.

Husband before the trial court claimed to be a Businessman but having NIL monthly income and sustaining himself on charity and borrowing from relatives and friends. Further, he claimed that his monthly expenditure was Rs 27,360 ad had no resources and was surviving on loans and charity.

Bench on perusal of record noted that the appellant was a qualified person having qualification of MBA as well as having directorship of various companies and even if the income of the appellant was assumed to be NIL on the date of filing of his income affidavit before the trial court, but his earning capacity could not be lost sight of.

Further, it was found that the appellant/husband had concealed certain entries from his bank statement, and he had no explanation for the same.

In Court’s opinion, appellant opted not to file the bank statement for the period 2018 and thereby leaving no doubt that he was not coming up and with full truth with respect to his economic capacity.

Court also took judicial notice of the fact that appellant/husband’s company was one of the manufacturers of the brand ‘Too Yum’ and the brand ambassador of the said brand was ‘Virat Kohli’, hence it looked highly improbable that a company which is running into great losses was in a position to afford a celebrity of such stature for the advertisement of its product.

Hence,

“…appellant/husband is a man of means having vast business and appears to be impersonating himself as a ‘pauper’ so as to defeat the legitimate claim of the respondent/wife for the maintenance.”

Concluding the matter, Court held that the trial court’s assessment of the maintenance was fully justifiable and could not be faulted with. [Rebala Sudhir Reddy v. State, Criminal Appeal No. 151 of 2020, decided on 3-1-2022]

Case BriefsHigh Courts

Delhi High Court: Explaining the significance of ‘shared household’ Asha Menon, J., explained that where a residence is clearly a shared household, it would not bar the owner from claiming eviction against her daughter-in-law, if circumstances call for it.

An instant suit was filed for possession, damages and permanent injunction in respect of the property. The plaintiff claimed to be the exclusive and absolute owner of the suit property.

The suit was filed against the daughter-in-law of the plaintiff who is defendant 1 and her mother who is defendant 2. Son of the plaintiff and the husband of the defendant 1 expired in 2020.

Even if it was accepted that defendant 2 had come to reside with her daughter then, to be of comfort to her daughter, clearly, she had no right to continue to stay in the suit premises once the plaintiff had expressed her desire that the defendant 2 should leave.

Whether defendant 1 raised a triable issue with regard to the title of the plaintiff?

In Court’s opinion, defendant’s claim reflected a desperate attempt to question the plaintiff’s exclusive title to the suit property, which attempt has failed.

Reasoning the above-said further, High Court stated that accepting the fact that the plaintiff’s husband had bequeathed the property to the children, it was also a fact that the children relinquished their shares and rights in favour of their mother.

The Relinquishment Deed was of the year 1999 and the son of the plaintiff married three times, and the defendant 1, being the third wife, entered his life in 2014. Between 1999 till 2014, neither the deceased son of the plaintiff nor her daughter questioned the Relinquishment Deed executed in favour of their mother or the execution of the Conveyance Deed in 2000 solely in the name of the plaintiff.

Even after the marriage of the deceased son of the plaintiff to the defendant 1, the son never questioned the validity of the Relinquishment Deed, by instituting any legal proceedings.

Hence, in view of the above, challenge raised by the defendant 1 was completely untenable and the plaintiff was clearly the exclusive owner of the suit property.

In the present matter, Court noted that the defendants admitted the existence of the Relinquishment Deed and Conveyance Deed executed in favour of the plaintiff and expressed that,

Merely raising the bogey of a life interest does not detract from the admissions made, thus acknowledging the exclusive title of the plaintiff to the suit property.

Shared Household

Defendant 1 raised the plea that the suit premises constituted her shared household.

The significant point to be noted was that the plaintiff herself did not dispute the fact that the suit premises formed the shared household, hence no other evidence or proof was required to establish the said fact.

High Court opined that in light of the decision of the Supreme Court in Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 the mere fact that premises take on the nature of shared household would not per se be a complete defence to a suit for possession filed by the owner of the property, being the in-laws of the defendant/aggrieved person, nor is such a suit barred.

The protection under the DV Act assuring the residence of the aggrieved person in the shared household does not vest any proprietary or indefeasible right on the aggrieved person. It is also subject to eviction being initiated in accordance with law.

Right of residence allowed to aggrieved person does not extend to her insisting on the right of residence in a particular premises.

Section 19 of the DV Act provides for an alternate accommodation being given to the aggrieved person of the same level in certain circumstances.

 “…even where a residence is clearly a shared household, it does not bar the owner, the plaintiff herein, from claiming eviction against her daughter-in-law, if the circumstances call for it.”

Whether the plaintiff must be put to the rigours of a trial to determine whether she made out a case for reclaiming possession of the suit premises or whether the facts as set out in the written statement and the plaint would be sufficient to come to a conclusion?

As per the written statement, the relationship between the parties was far from cordial.

Defendant 1’s case was that the plaintiff and her grandson subjected her to abuse along with this she also stated that she was entitled to half share in the property and thus was entitled to half of the rental income as per the Will of the late father-in-law. She even alleged that her stepson being the grandson of the plaintiff was wasting away the assets of her late husband and was operating various bank accounts and mutual fund accounts of her late husband on the basis of being the nominee, without accounting for her share.

Court noted that defendant 1 in order to wrest settlement from the plaintiff, had made efforts to pressurize her while staying in her premises.

Bench opined that, the defendants admitted in their written statement that the plaintiff had one bedroom in her possession whereas the defendants had two bedrooms in their possession with kitchen, drawing and dining being common portions. By inducting her mother and for a short time her sister, defendant 1 seemed to have made an attempt to assert rights in respect of the suit property, clearly causing distress to the plaintiff.

The averments made in the written statement were sufficient to establish a justification for the plaintiff to seek the eviction of the defendants.

High Court held that the plaintiff was entitled to seek possession of the suit premises from the two defendants without the rigours of an unnecessary and prolonged trial at her age.

Suppression of Facts

Plaintiff counsel submitted that the defendants had a place in Pune.

In the written statement the allegation was that the plaintiff and the grandson were trying to force the defendants “to return to Pune”. The Bench stated that interestingly the affidavit of defendant 2 stated her residential address to be the suit premises but it cannot be her permanent residence. Defendant 2 arrives from somewhere upon the death of her son-in-law.

Hence, there had been suppression of facts by the defendants. [Madalsa Sood v. Maunicka Makkar, 2021 SCC OnLine Del 5217, decided on 10-12-2021]


Advocates before the Court:

For the Plaintiff:

Rajat Aneja & Chandrika Gupta, Advocates.

For the Defendants:

D.K. Goswami, Sr. Advocate with Saharsh Jauhar & Kuldeep Singh, Advocates for D-1 & D-2.

Case BriefsDistrict Court

LXIII Addl. City Civil & Sessions Judge, Bengaluru:  B. Venkatesha, LXIII Addl. City Civil & Sessions Judge, dismissed an appeal filed under Section 29 of the Domestic Violence Act finding that the petitioner wife had proved the factum of domestic violence.

Appellant had filed the present appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 challenging the order passed on the file of Court of M.M.T.C.-2, Bengaluru.

Background

Petitioner had filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 contending that she was the aggrieved person and sought protection, residence and monetary reliefs as per Section 18 to 20 of PWDV Act. She had sought for grant of the protection order and that respondents 1 and 2 must not cause violence, other relatives or any person who gave assistance from Domestic Violence.

Respondent 1 had preferred present appeal contending that the trial court erred in believing the allegation of bigamy, terming emotional abuse caused on the petitioner by him by saying that it is nothing but domestic violence.

Analysis, Law and Decision

Bench stated that it was clearly shown that respondent 1 married another lady that caused emotional abuse to the petitioner. The facts made it clear that the petitioner was subjected to domestic violence within the purview of Section 3 of the Protection of Women in Domestic Violence Act, 2005.

Further, with regard to the grant of other reliefs, the trial court opined that as per the cross-examination version of respondent, he was getting Rs 94,000 gross salary during June 2018. Petitioner was getting sufficient income from Pottery Business.

Mere becoming a graduate or having any decree is not sufficient.

Due to petitioner’s age factor, she could not get a suitable job for her qualification. Respondent did not even dispute the marriage.

By taking into consideration the maintenance order and income of respondent, Court directed respondent to pay Rs 20,000 along with Rs 3,00,000 for mental agony suffered.

Bench while elaborating further, added that it was not in dispute that the petitioner was the legally wedded wife of R1. There was no dispute that the petitioner had a domestic relationship with the respondents 1 soon after her marriage till the year 1996.

There was no dispute that there exists matrimonial disputes between the petitioner and respondent 1.

It was clear that the petitioner was residing in a shared household though she was residing separately in a house that belonged to R1, and R1 has no evidence to show that the petitioner was working as a teacher as alleged by him. Since she was aged 50 years, possibility of getting jobs at that age was remote.

Conclusion

View of the trial court that the petitioner had proved that R1 subjected to domestic violence could not be interfered.

Court found the appeal to be devoid of merits.

Hence, appeal filed by the appellant under Section 29 of the Domestic Violence Act, 2005 was dismissed. [H.K Sreenivas v. C. Jayaanthi, Crl. A. No. 588 of 2020, decided on 4-10-2021]


Advocates before the Court:

For the appellant: Party in person

For the respondent: K. Shridara, Advocate

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., held that an aggrieved person cannot choose to file a petition under Section 12 of the Domestic Violence Act at any and every place, even if she was a mere casual visitor to that place.

Instant petition assailed the order by which the Metropolitan Magistrate refused to entertain an application under Section 12 of the Domestic Violence Act, 2005 for want of jurisdiction envisaged under Section 27 of the said Act and in consequence, directed to return the application to the petitioner.

Analysis, Law and Decision

High Court stated that every statute has to be interpreted keeping in mind the purpose for which it has been enacted and the interpretation must be such, so as to advance the purpose of the act and should not be such as to defeat, the intention of the legislature.

In the case on hand, since after applicant’s marriage, she was continuously residing in Hyderabad. It appeared that she was subjected to domestic violence at Hyderabad, whereupon she had filed a complaint.

Later, she came to Mumbai and resided in a hotel situated within the local limits of Metropolitan Magistrate, Bandra. Soon thereafter, she filed two non-cognizable complaints and reported that she was forced to flee to Mumbai, to protect herself and she believed and apprehended being under constant surveillance at the instance of her husband and son in their attempt to keep a watch on her actions, whereby she was frightened and harassed by them.

Whereafter, she filed an application under Section 12 of the D.V. Act, which was within 23 days, after her arrival in Mumbai from Hyderabad.

Court noted from the complaint, and argument that Respondents being highly influential persons in Hyderabad and although applicant ventured to lodge a complaint against them, she won’t be able to secure any relief from police or such other agency under the D.V. Act. From 1993 till 2021 she was subjected to domestic violence, she did not take any measure to protect her life, property or to prevent the respondents from causing or inflicting domestic violence to her.

Question for Consideration

 Whether application under Section 12 filed by the Petitioner discloses or implies her intention to reside at a place in Mumbai or was it just casual or flying visit to acquire jurisdiction?

In Court’s opinion looking at the applicant’s background it was difficult to accept her contention that she could not seek a protection order at Hyderabad.

“…application in no way suggest or implies that she was forced to leave the Hyderabad and or she was intending to reside in Mumbai.”

In view of the chronology of the events, applicant engineered the cause of action with an intention to file a case and confer jurisdiction upon the Magistrate.

Thus, Court held that the applicant was not “temporarily” residing within the jurisdiction of the Court of Magistrate and no cause of action arose in Mumbai. The facts of the case suggest that the applicant’s visit to Mumbai was ‘casual visit’ and did not imply a definite intention to stay at a particular place. Therefore, Magistrate’s order cannot be faulted with, either for wrong or non-exercise of jurisdiction.

“…if liberal construction is placed upon the provision, made under Section 27 of the Act, as sought by the Applicants, it may lead to abuse of legal process of law, as aggrieved person may choose, any place, where she may be a casual visitor.”

Hence, impugned order declining to entertain, petitioner’s application under Section 12 for want of jurisdiction could not be faulted with.  [Afia Rasheed Khan v. Dr Mazharuddin Ali Khan, 2021 SCC OnLine Bom 4605, decided on 3-12-2021]


Advocates before the Court:

Mr. Rizwan Merchant a/w Ms. Z. Abdi i/by Mr. Rizwan Merchant and Associates, Advocate for Petitioner.

Mr. K. Krishna Shrawan i/by Mr. Ajay Khaire, Advocate for 1 and 2.

Ms. M.R. Tidke, APP for State/ Respondent 3.

Case BriefsDistrict Court

City Civil & Sessions Judge, Bangalore: Krishnamurthy R. Padasalgi, LV Addl. City Civil & Sessions Judge upheld the order of the trial court which had refused to grant maintenance to the petitioner-wife.

Petitioner wife preferred the present appeal on being aggrieved by the orders passed for an application filed under Section 12(1) of the Protection of Women from the Domestic Violence Act, 2005.

Parties:

Appellant-Petitioner (wife) and Respondents 1 &2 (husband and mother-in-law)

Petition was filed before the trial court under Section 12 of the Act and sought protection, order of monthly maintenance, medical expenses and also to pay back Rs 2 lakhs gifted to the respondent 1 and also return gold ornaments given at the time of marriage and also to refund Rs 4,50,000 spent on marriage by parents of the appellant and refund of Rs 50,000 towards medical expenses.

It was stated that respondent 1 after two months of marriage started to treat the wife as slave and sexual object and not show any love. Respondent 1 gave physical and mental torture to abort the child.

Once when the wife tried to escape, kerosene was poured to kill her.

Analysis, Law and Decision

Bench noted that to show domestic violence, there was no evidence at all.

Although the domestic violence is incident which happens within four walls of the house. No independent evidence can be expected.

 Duration of the marriage was quite short.

As far as the appellant was considered, she was able to maintain herself and she could put her same stand of living.

There was no necessity to award maintenance for her separately and with regard to findings of the trial that no domestic violence was proved was correct. Even on re-appreciation of evidence no instance of domestic violence was proved. Although the trial court without asking maintenance for the minor child graciously awarded maintenance which was correct and did not require any interference.

Therefore, the appeal filed by the petitioner has been rejected. [Roopa M.R., v. Krishan, Crl. A. No. 45 of 2018, decided on 6-11-2021]


Advocates before the Court:

For the appellant:

B.V.K Advocate

For the Respondents:

B.S.N., Advocates

Case BriefsHigh Courts

Rajasthan High Court: Chandra Kumar Songara J. allowed the petition of the wife-petitioner on the grounds of having a child, no source of income and residing with her parents.

The instant transfer application was filed under Section 24 of the Code of Civil Procedure, 1908 i.e. CPC on behalf of the petitioner wife seeking transfer of the Divorce Petition No.39/2020 filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘HMA1955’) by the respondent-husband from the Court of Additional District Judge, Kekri District Ajmer to the Family Court situated at Kota.

The Court observed that In the present case, the petitioner-wife is residing in Kota at her parental house. The petitioner-wife has a daughter, namely Vaidehi from her first husband. Presently, she is six years old and is being taken care of by the petitioner alone. The petitioner is a house-wife and she is not employed anywhere and has no source of income. The Kekri Court in Ajmer District is at a distance of more than 100 kms. from Kota. The daughter of petitioner is about six years old and parents of petitioner are too old.

The Court relied on judgments Sumita Singh v. Kumar Sanjay, AIR 2002 SC 396 and Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi (2005) 12 SCC 237  and observed that while going into the merits of a transfer application, Courts are required to give more weightage and consideration to the convenience of the female litigants, and transfer of legal proceedings from one Court to another should ordinarily be allowed taking into consideration their convenience and the Courts should desist from putting female litigants under undue hardships. In such type of matters, the convenience of the wife is to be preferred over the convenience of the husband.

The Court thus held “the present transfer application filed by the petitioner-wife is allowed and case bearing No.39/2020 titled as Rajendra Prasad Sharma Vs. Smt. Ekta Dhadhich pending before the Court of Additional District Judge, Kekri District Ajmer is ordered to be transferred to the Family Court, No.1, Kota.”

[Ekta Dhadhich v. Rajendra Prasad Sharma, S.B. Civil Transfer Application No. 72/2021, decided on 30-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Petitioner(s): Mr. Abhishek Bhardwaj

For Respondent(s): Mr. Arnav Singh

Case BriefsHigh Courts

Calcutta High Court: Bibek Chaudhari, J., considered the question as to whether Section 482 CrPC is applicable in relation to an application under Section 12 of the Protection of Women from Domestic Violence Act.

The following is a summary of High Court’s determination on legal points that were before it for consideration.

 Issue

In a case set in the backdrop of allegations of violence and harassment advanced by the daughter-in-law against her husband and in-laws, the High Court determined the following questions:

(1) Whether Magistrate’s order in a proceeding under Section 12 read with Section 23 of the Protection of Women from Domestic Violence Act, 2005 on the point of maintainability of said proceeding can be quashed under the provisions of Section 482 of the Code of Criminal Procedure?

(2) Whether an appeal under Section 29 of the Domestic Violence Act shall lie against an order passed by the Judicial Magistrate or Metropolitan Magistrate upon an application filed by the respondent(s) challenging maintainability of the application under Section 12 of the said Act?

Determination

After a comprehensive discussion revolving around various provisions of the Domestic Violence Act, inherent powers of High Court and the judicial opinion on the same, the Court concluded that:

(i) Respondent(s) can challenge maintainability of an application under Section 12 of the Domestic Violence Act filed by the aggrieved person before the Court of the Magistrate immediately after appearance in the proceeding by filing appropriate petition.

(ii) The Magistrate shall dispose of such application challenging maintainability of the proceeding under Section 12 after giving the opportunity of being heard to the aggrieved person. An aggrieved party may file an appeal under Section 29 of the Domestic Violence Act against the order passed by the Magistrate before the Sessions Judge.

(iii) Against the order passed by the court of appeal, a revision under Section 397 read with Section 401 CrPC shall lie.

(iv) Alternatively, a respondent may file an application under Section 482 CrPC challenging maintainability of a proceeding under Section 12 of the Act for quashing of the proceedings immediately on receipt of notice before the High Court.

(v) An order upon an application challenging maintainability under Section 12 of the Domestic Violence Act shall not be assailed under Article 227 of the Constitution of India.

While so holding, the High Court differed from the decision of the Single Judge of Madras High Court in P. Pathmanathan v. V. Monica, (2021) 2 CTC 57, which inter alia held that the petition under Section 482 CrPC is not maintainable. The Madras High Court said that the relief under the Domestic Violence Act will be granted by a civil or criminal or family court.

It is also important to note that the High Court held that a proceeding under Section 12 of the Domestic Violence Act is final in nature affecting the rights and/or liabilities of the parties in relation to the question as to whether the aggrieved person is entitled to get relief under Section 18-22 and Section 23(2) of the said Act. [Chaitanya Singhania v. Khushboo Singhania, 2021 SCC OnLine Cal 2602, decided on 27-09-2021]


Advocates before the Court:

For the Petitioners:

Mr. Sabyasachi Banerjee, Adv. Mr. Anirban Dutta, Adv.

Mr. Abhishek Jain, Adv.

For the Respondent:

Sanjoy Bose, Adv.

Case BriefsHigh Courts

Bombay High Court: Noting the misery of parents aged 90 years, G.S. Kulkarni, J., observed that,

“Daughters are daughters forever and sons are sons till they are married” albeit there would surely be exemplary exceptions.

A Sad Case

In the present matter, petitioner 1 alongwith his wife petitioner 2 and their daughter petitioner 3 dragged his parents-respondents 1 and 2, aged 90 and 89 years in protracted legal proceedings.

As a last resort, the parents had to invoke the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 on which the Maintenance Tribunal granted relief to the parents.

Aggrieved with the decision of the Maintenance Tribunal the present petition was filed.

Misery of Parents 

At such an advanced stage of lives, parents had to reach the tribunal as petitioners 1 and 2 were forcibly trying to grab the flat in which the parents were residing and had permitted the petitioners to reside who were harassing and torturing the parents since many years.

Flat in Question

The flat initially belonged to the father and later gifted it to his two daughters by gift deed.

Metropolitan Magistrate had prohibited petitioner 1 and 2 from committing any act of domestic violence and had restrained them from dispossessing or in any manner disturbing the possession of the mother from the shared household.

The above order was passed on the complaint of the mother.

Analysis

High Court noted that the present case was a ‘classic case’ where the petitioners 1 and 2 intended to prevent the parents from leading a normal life at their old age of about 90 years.

Defeating Parents right to lead a normal life

It was stated that the property in question was not an ancestral property on which the petitioner 1 could claim any legal right so as to keep himself on such property alongwith his family and foist themselves on the parents against their wishes by remaining on the property without any legal rights.

Hence, Maintenance Tribunal had rightly recognized the rights of the parents on the property.

Concluding the matter, Court noted that the present case was a story of desperate parents who intend to be at peace at such advanced stage in life.  Whether such bare minimum expectations and requirement should also be deprived to them by an affluent son, is a thought which the petitioners need to ponder on.

Adding to the above, Bench stated that the son seemed to be blinded in discharging his obligations to cater to his old and needy parents and on the contrary dragged them to litigation.

It is painful to conceive that whatever are the relations between the son and the parents, should the son disown his old aged parents for material gains?

While directing the petitioners to vacate the flat in question alongwith his family members, the petition was rejected. [Ashish Vinod Dalal v. Vinod Ramanlal Dalal, 2021 SCC OnLine Bom 2976, decided on 15-09-2021]


Advocates before the Court:

 Mr Yashpal Thakur with Mr Surendra Raja with Mr Mukund Pandya, for the Petitioner.

Mr Abhay Khandeparkar, Senior Advocate i/b. Mr Kunal Tiwari, for Respondent Nos.1 and 2.

Ms Vaishali Nimbalkar, AGP for the State.

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., expressed while addressing the present application that,

“Second marriage cannot come within the definition of domestic violence.”

By the instant application, applicants sought quashing of criminal proceedings filed by sole respondent under the provisions of the Protection of Women from Domestic Violence Act, 2005.

Further, the applicants also prayed for setting aside the orders passed by the Court of Judicial Magistrate.

Applicant 1 got married to the sole respondent and soon after the marriage, there was matrimonial discord between the two, because of which, applicant 1 filed a divorce proceeding on the ground of cruelty.

The divorce decree granted was confirmed upto the Supreme Court and the rejection of the application for restitution of conjugal rights filed by the respondent also stood confirmed.

Bench stated that the contentions raised on behalf of applicant 1 on ground of cruelty were accepted by all the Courts and hence the said findings attained finality.

Question for consideration:

  • Whether respondent is entitled to rely upon incidents pertaining to the same time period and relatable to the allegation and contentions raised to claim that she had suffered domestic violence at the hands of the applicants, as defined under the DV Act.
  • Whether the act of applicant 1 preforming a second marriage after the grant of divorce decree can be said to be an act of domestic violence under the provisions of the DV Act?
  • Whether the proceedings initiated by respondent under provisions of the DV Act can be said to be an abuse of process of law?

Analysis, Law and Decision

High Court stated that on perusal of Sections 12 to 23 of the D.V. Act, respondent has indeed raised the very issues and contentions that she had relied upon during the initial round of litigation pertaining to the divorce petition filed by applicant 1 and application or restitution of conjugal rights filed by respondent.

Hence, respondent cannot be permitted to reiterate the same by filing application under the provisions of the DV Act, 3 months after the Supreme Court dismissed her Special Leave Petition and confirmed the findings rendered by the Family Court and this Court on identical issues.

Second Marriage

 Court rejected the contention that the second marriage performed by applicant 1, after grant of divorce decree amounted to domestic violence.

Section 3 of the D.V. Act defines ‘domestic violence’ in an elaborate manner and it refers to physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. This is in the context of a domestic relation shared between the aggrieved person and respondent.

Family Court granted divorce on the ground of cruelty cannot eb denied in the present matter.

Merely because applicant 1 performed second marriage cannot come within the definition of domestic violence under Section 3 of the D.V. Act.

The manner in which the proceedings were sought to be initiated under the provisions of DV Act was nothing but an abuse of process of law.

Court noted that the respondent appeared to be interested in initiating and continuing the proceedings as a tool of harassment against the applicants.

Prayers pertaining to monthly maintenance, compensation, residence order, etc., have all been made of the contentions raised in the earlier round of litigation.

In view of the above background, High Court held that continuance of the proceedings would amount to permitting abuse of the process of law, hence the same cannot be permitted. [Bhushan v. Nilesha Bhushan Deshmukh, Criminal Application (APL) No. 164 of 2017, decided on 9-08-2021]


Advocates before the Court:

S.A. Mohta, Advocate for applicants

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar, J., allowed the petition and directed that there cannot be any proceedings against the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

The instant Criminal Petition was filed under Section 482 Criminal Procedure Code i.e. Cr.P.C., praying to quash the entire proceedings on the file of the Civil Judge and JMFC Arakalagudu in Crl.Misc.No.45/2021 initiated by respondent 1 under Section 12 of Protection of Women From Domestic Violence Act 2005  as against the petitioner.

Counsel for the petitioner Mr. M H Prakash submitted that the petitioner has been unnecessarily made a party by the respondent 1 in her application before the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It was further submitted that the only allegation found is that respondent 1 suspected her husband to be having illegal relationship with the petitioner and he thought of bringing her to his house therefore the petitioner should not have been made a party in the application filed under Section 12 of the Act as she does not fall within the meaning of respondent as mentioned under Section 2(q) of the Act.

Counsel for respondent 1 Mr. C P Puttaraja submitted that Domestic violence has been committed on the instigation of the petitioner and this is the reason for making her party in the application filed under Section 12 of the Act.

The Court observed that the definition of ‘domestic relationship’ under Section 2(f) and Section 2(q) of the Act makes it clear that only those persons who have been in the domestic relationship can be made as respondent. It was further observed that in the instant case the allegation against the petitioner is that the 1st respondent’s husband was suspected to be having illegal relationship with the petitioner and he thought of bringing the petitioner to his house. Except this allegation there are no other allegations against the petitioner which indicate that she too joined with the husband of the 1st respondent in harassing her.

The Court held “Therefore the petitioner does not come within the scope of respondent as envisaged under Section 2(q) of the Act. Making her respondent in the application filed under Section 12 of the Act is unwarranted”.[Harini H v. Kavya H, Criminal Petition No. 2148 OF 2021, decided on 17-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., held that irrespective of whether the proceedings under Central Act 43 of 2005 are of civil or criminal nature, the power under Article 227 of the Constitution would always lie to quash the proceedings if a case is really made out.

Instant petition was filed under Article 227 of the Constitution of India for quashing the proceedings on the file of the Judicial Magistrate.

It was stated that the petitioners were the parents-in law of the respondent. Marital life of the respondent came under strain leading to filing of D.V.O.P No. 11 of 2021. In the said petition respondent had arrayed her husband as the first respondent, petitioners as respondents 2 and 3 and her brother-in-law and wife of brother-in-law as respondents 4 and 5.

It was contended that the above petition was an abuse of legal process, hence the present petition was filed.

Adding to the above it was stated that the petition was filed on 17-03-2021 but the Registry did not number the petition.

Hesitation of the Registry was on the account of divergent views expressed in some of the earlier orders of the Madras High Court.

Earlier, to quash the proceedings filed under the Protection of Women from Domestic Violence Act, 2005, petitions used to be filed under 482 of CrPC. This was put an end to by a Judge of this Court vide order in Dr. P. Pathmanathan v. V. Monica (2021 (2) CTC 57)

In the above decision, Court had expressed that:

“..the proceedings instituted under the Central Act 43 of 2005 are civil in nature and therefore, petition under Section 482 of Cr.P.C. will not lie to quash them. Even while laying down a set of directions indicating the remedies available to the aggrieved parties, it was also held that a petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the magistrate suffer from a patent lack of jurisdiction. The jurisdiction under Article 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exists a clear jurisdictional error and that manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner.”

Whereas a contrary view was adopted by Justice S.M. Subramaniam in P. Arun Prakash v. S. Sudhamary,2021 SCC OnLine Mad 1954, it was held that the proceedings filed under the Central Act 43 of 2005 before the Criminal Court can only be termed as criminal proceedings. Such proceedings cannot be transferred from a criminal Court to a civil Court by exercising the supervisory power under Article 227 of the Constitution of India.

In the present matter Court decided on the question,

Whether the impugned proceedings instituted under Central Act 43 of 2005 are civil or criminal in nature?

Bench opined that the Registry should not have kept the petition unnumbered for so long. When in view of the statutory bar set out in Section 18-A of the SC/ST (Prevention of Atrocities) Act, a petition for anticipatory bail was not numbered by the Registry of the Madras High Court, matter was taken up by the Supreme Court. In P. Surendran v. State, (2019) 9 SCC 154, it was held that:

“…act of numbering a petition is purely administrative…”

 “…In this context, we accept the statement of the Attorney General, that the determination in this case is a judicial function and the High Court Registry could not have rejected the numbering…”

Hence, following the above decision, Court held that the Registry ought to have placed the papers before the Court, if it had any doubt regarding the maintainability.

Further, Court expressed that Article 227 of the Constitution of India is to the effect that every High Court shall have the superintendence over all the Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. The text of the provision is forum-neutral. It makes no distinction between civil court and criminal court. In other words, the power under Article 227 can be exercised both over civil Courts as well as the criminal Courts. While the power under Section 482 of CrPC, can be exercised only with reference to criminal proceedings before the criminal Courts, the power under Article 227 of Constitution of India is much wider and comprehensive.

High Court directed the Registry to number the petition and list the matter for admission. [Muthulakshmi v. Vijitha, 2021 SCC OnLine Mad 2183, decided on 11-06-2021]

Case BriefsSupreme Court

Supreme Court: In a case where the petitioner sought recusal of Justice Dr. DY Chandrachud from hearing an application seeking recall of a previous order of which Justice Chandrachud a part of, the bench of Dr. DY Chandrachud and MR Shah*, JJ has not found any valid and good ground for recusal and has said that,

“Merely because the order might not be in favour of the applicant earlier, cannot be a ground for recusal. A litigant cannot be permitted to browbeat the Court by seeking a Bench of its choice.”

Background

The petitioner had instituted proceedings under Section 12 of the Protection of Women from Domestic Violence Act 2005 against a man with whom she had claimed to have entered into a relationship ‘in the nature of marriage’. She, however, was unable to prove this claim before the Karnataka High Court and hence, the High Court had, on July 31, 2018, noticed that,

“Domestic relationship means, the relationship between two persons who live or have at any point of time, lived together in a shared household. This concept has not been established by the petitioner.”

The petitioner, hence, instituted a case under Article 226 seeking that the decision of the Single Judge of the High Court dated July 31, 2018 “may be declared void/disabled/ recalled”.

It was her case that,

“In order to put forth a claim based on a relationship in the nature of marriage, it is not necessary under the law that neither of the parties should have a subsisting marriage and that notwithstanding the fact that the respondent was in a subsisting marriage, a valid claim under the Act would be maintainable in a situation such as the one which has been set up by the petitioner as the foundation for the grant of relief. She urged that in a situation such as the present, if the respondent who had a subsisting marriage entered into a relationship with her, there is no reason why a woman in the relationship should be left without a remedy.”

Order dated September 3, 2020

The Bench of Dr. DY Chandrachud and KM Joseph, JJ had declined to entertain the writ petition under Article 226 of the Constitution seeking a declaration of the invalidity of the order dated July 31, 2018 while expressly keeping open the rights and remedies available to the petitioner under Article 136 of the Constitution.

It had said,

“A writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court.”

Present order

The Court considered the following factors and dismissed the application at hand:

  • earlier one other application was filed by the petitioner to recall order dated 03.09.2020 which was dismissed.
  • order dated 03.09.2020 was pronounced after hearing the applicant.
  • earlier application for recalling of order dated 03.09.2020 was also dismissed after hearing the petitioner.

The Court also directed that the Registry shall not accept any further miscellaneous application on the subject matter of order dated 03.09.2020 or on the two orders dismissing the application for recall of the order dated 03.09.2020.

[Neelam Manmohan Attavar v. Manmohan Attavar, 2021 SCC OnLine SC 58, decided on 05.02.2021]


*Justice MR Shah has penned this judgment

Also read

Know Thy Judge| Justice Dr. DY Chandrachud

Op EdsOP. ED.

Reflection on Domestic Violence Act and Role of Judiciary

Introduction

I would like to begin the article with a quote of Justice S Rajendra Babu, the then Chief Justice of India, who in his speech on Gender Justice – Indian Perspective[1] said as follows:

“Sita was not born, but found, and after marriage, exile, agnipariksha and abandonment was her lot. Yet there is not a single temple to Sita, and Rama is adored as the ideal man — Maryada Purushottama — Adarsha Purusha. Women get nothing being Sitas. Let us look for Durga and Kali in them.”

International Documents, i.e. Covenants, Chargers, Declarations and Treaty, etc.

The United Nations developed its policy on domestic violence in 1981. Pursuant to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which came into force in the year 1976, the Convention on the Elimination of All Forms of Discrimination Against Women came into force. However, this convention did not in unequivocal terms include violence against women or domestic violence, and therefore, in 1992, a Committee on the Elimination of Discrimination Against Women was formed. United Nations’ document A/47/38 was promulgated in 1992. In 1995, at the Fourth World Conference on women in Beijing, China, the topic of domestic violence and responsibility for domestic violence was taken into account. In 2000, a special session on women was conveyed by the United Nations known as Beijing +5 which dealt with the topic of domestic violence as the focal point and it was given priority. There was a report of Radhika Coomaraswamy, belonging to Sri Lanka, who was appointed as Special Rapporteur on violence against women and her report addressed domestic violence at length and model legislation of domestic violence was included. Thus, international and regional human rights conferences directed the States to take reasonable steps to prevent violence on women and to ensure that the victim was given adequate compensation, notable conferences are mentioned herein below:

  1. Human Rights and Women – Universal Declaration of Human Rights.
  2. The United Nations Convention on the Elimination of Discrimination against Women, 1967.
  3. The United Nations Convention of the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) – Vienna Declaration.
  4. Universal Declaration of Human Rights, 1948.
  5. United Nations World Conference on Human Rights, 1993 (Vienna Declaration and Programme of Action)
  6. Convention on the Elimination of All Forms of Discrimination against Women, 1979.
  7. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

First World Conference on Women, Mexico, 1975

As early as the United Nations re-affirmed the faith in fundamental human rights, it claimed about equality, dignity and rights of women in Article 6 of Declaration of elimination of discrimination against women in 1976, advocating the principle of non-discrimination. Article 6 directs the state parties to make provisions for civil and criminal law to combat all forms of exploitation of women. Later on, immediately after six years of Convention, punishment of crime on the basis of discrimination against women was issued in the 1973 Charter. Thereafter in 1979, Convention against Elimination of All Kinds of Discrimination against Women was passed by the United Nations. Domestic violence is pre-dominating part of the human rights and is violative of human rights, and therefore, all the National Commissions for Women Act of 1996 emphasised on the protection of civil rights of women and the United Nations Charters Convention also made basis of legislative law enacted in the year 2005.

Constitution of India and Women Empowerment

In view of the rights guaranteed under Article 14, 15 and 21 of the Constitution of India to provide for a remedy under the civil law, which is intended to protect the women from being victim of domestic violence and to prevent the occurrence of domestic violence in the society, the Constitution placed a great insight and farsightedness in incorporating various provisions for safeguarding the women. The Constitution in Article 15(3) lends helping hands to the women and children by incorporating that nothing would prevent the State from legislating any provisions for women and children. This shows that Article 14 prohibits discrimination of any kind but Article 15(3) encourages the affirmative discrimination in favour of women. The constitutional philosophy has inspired bringing special legislation intended to eradicate the evil prevailing in the society. The Constitution has been interpreted by the Supreme Court of India which can be said to be bold innovation in administrative constitutional cannons in favour of the women. In a recent decision in Mangat Mal v. Punni Devi[2], the Supreme Court has taken within its compass the provisions of residence along with the maintenance. The recent decision of the Supreme Court was in State of Rajasthan v. Hat Singh[3], which prohibited “Sati”.

Reports of Law Commission of India on Violence against Women

Since 1986, the Law Commission of India has been of the view of legislating the law on domestic violence. It has suggested piecemeal amendments in different legislations like Hindu Marriage Act, 1955, Evidence Act, amendment in Code of Civil Procedure and Criminal Procedure Code and also the latest being recommending the law for Protection of Women from Domestic Violence Act, 2005.

Working of the Act

This topic would cover the provisions of the statute which is sought to be discussed namely, the definition of term “Domestic Violence”, incorporated in Section 3 of the Protection of Women from Domestic Violence Act, 2005  takes within its sweep mental or physical harassment or injury or even endangers the life of the aggrieved person and also the sexual abuse, verbal and emotional abuse and even economic abuse to the injured or anyone else related to her. It even takes within its sweep the demand for any dowry or any other property or valuable security. The definition also includes threatening by any conduct mentioned in clause (a) or (b) of the Act. The legislative intention was to stop male dominance.

Chapter 4 is the most important chapter of the Act. Section 12 empowers the Magistrate and other courts adjudicating the matter. Beginning with the application to the Magistrate, counseling as per Section 14 and the welfare expert can also be taken into confidence. The most important Section is S.17 which provides for right to residence in shared household, and therefore, the Magistrate and the court would have wide powers to pass interim orders to protect the women. However, all these are discretionary powers given to the judicial officers, and therefore, the role of Magistrate becomes very much important and the judiciary is made the custodian of the protection of the rights of the women. Section 23 is also very important as it relates to interim orders, which can be passed by the judicial officers. All these reliefs can also be collaterally agitated before the court where either other proceedings are pending and there would be in addition to and as narrated above, the rights, which are given to a destitute lady would take within its sweep, residence orders, compensation orders and other custodial orders, which would be for the benefit and the protection of the disturbed lady.

Section 29 prescribes appeals against the orders could be made within 30 days from the date of the order of the magistrate and served to the other party.

Section 31 prescribes penalty for breach of order by the respondent. Therefore, execution becomes very easy, non-cumbersome and the most important factor is that the punishment prescribed would be treated to be an offence as per Section 31 and would be non-bailable, giving sole powers to the aggrieved persons.

Critical and analytical view overview of the Act

The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora[4] has held that:

“(i) A cursory reading of the statement of objects and reasons makes it clear that the phenomenon of domestic violence against women is widely prevalent and needs redressal. Whereas criminal law does offer some redressal, civil law does not address this phenomenon in its entirety. The idea therefore is to provide various innovative remedies in favour of women who suffer from domestic violence, against the perpetrators of such violence; (ii) It is not difficult to conceive of a non-adult 16 or 17- year-old member of a household who can aid or abet the commission of acts of domestic violence, or who can evict or help in evicting or excluding from a shared household an aggrieved person; (v) The impugned judgment of the Bombay High Court was set aside and it was declared that the words ‘adult male’ in Section 2(q) of the Act, 2005 will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stood deleted.”

In Krishna Bhattacharjee v. Sarathi Choudhury[5], the Supreme Court has held that the 2005 Act has been legislated, as its Preamble would reflect, to provide for more effective protection of the rights of the women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The 2005 Act is a detailed Act. The dictionary clause of the 2005 Act, which we shall advert to slightly at a later stage, is in a broader spectrum. The definition of “domestic violence” covers a range of violence which takes within its sweep “economic abuse” and the term “economic abuse” as the provision would show, has many facets.

In Deoki Panjhiyara v. Shashi Bhushan Narayan Azad[6], the Supreme Court has interpreted and defined the object of the Protection of Women from Domestic Violence Act, 2005, Section 12 vis-a-vis Hindu Marriage Act, 1955, Section 11. In this case, on application, interim maintenance was granted by Trial Court, affirmed by Sessions Judge and against which, writ was filed by husband before High Court and also revision application by husband that the marriage between the appellant and the respondent was null and void. The High Court held that the appellant was not the legally wedded wife of the respondent and she was not entitled to maintenance granted by the learned lower courts. The Supreme Court on appeal by the appellant-wife held that in the present case until the invalidation of the marriage between the appellant and the respondent is made by a competent court, it would only be correct to proceed on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all the benefits and protection available under the Domestic Violence Act, 2005 and held that the interference made by the High Court with the grant of maintenance in favour of the appellant was not justified and, hence, the Supreme Court had set aside the order of High Court.

The Supreme Court also held that if according to the respondent, the marriage between him and the appellant was void on account of the previous marriage between the appellant and Rohit Kumar Mishra, the respondent ought to have obtained the necessary declaration from the competent court in view of the highly contentious questions raised by the appellant on the aforesaid score. It is only upon a declaration of nullity or annulment of the marriage between the parties by a competent court that any consideration of the question whether the parties had lived in a “relationship in the nature of marriage” would be justified. In the absence of any valid decree of nullity or the necessary declaration, the Court will have to proceed on the footing that the relationship between the parties is one of marriage and not in the nature of marriage. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceeding for maintenance.

This view is too harsh on the husband where courts have held the women not to be legally wedded wife. The decision of the Supreme Court requires rethinking.

The Supreme Court in S.R. Batra v. Taruna Batra[7] has held that a wife can seek alternative accommodation for the said accommodation can be sought from the husband but not the relative of the husband. The said decision has been reconsidered and a different view has been there by the Supreme Court in Satish Chander Ahuja v. Sneha Ahuja[8], wherein the view has been that the wife can claim even from the other members of the family and directed the Trial Court rather the Family Court to proceed further and decide the same. The reason for discussing this judgment goes to show that the Court once again interpreted the statutory scheme of the protection of women from Domestic Violence Act, 2005. The Court has felt that there is rampant violence to the women and the remedies were limited before 2005. The Supreme Court in the latest decision of Satish Chander Ahuja case[9] has enlarged the scope of matrimonial home. The decree of the Trial Court was set aside by the High Court and the order was remanded for fresh adjudication. The author has been very critical about remand of the matters but this was a case which was arisen from interim relief. A reference to the judgment in Neelam Gupta v. Mahipal Sharan Gupta[10], goes to show that in the matrimonial matters, the Court has held that women would be entitled to a shared residence in lieu thereof husband should provide her with a suitably reasonable accommodation. The protection order was granted but disposed of way back on 17-6-2008 by Mahila Court. The Supreme Court disposed of the appeal with certain directions as the matter was mediated and the parties have decided to part away by filing a petition under Section 13-B of the Hindu Marriage Act. This shows that mediation is an alternative remedy applicable to such litigation also. The decision of the Supreme Court in Aishwarya Atul Pusalkar v. Maharashtra Housing & Area Development Authority[11] goes to show that the Court has interpreted the term “shared household” and by alienating any immovable assets would defeat right of a victim lady which would be described as domestic violence. The Court again reiterated and directed the lower courts to take proper decision as the lady was permitted to retain the possession of the residential accommodation and pay the rent and the Housing Board was directed not to disturb her residence.

It goes without saying that in Shyamlal Devda v. Parimala[12], the Court has once again reiterated that provisions of Section 482 of CrPC can be invoked for quashing the complaints under the Domestic Violence Act. The person aggrieved has been explained and the maintainability of the complaint makes it clear that domestic violence complaint can be lodged or filed in the Court where the person aggrieved permanently or temporarily resides or carries out his business or is employed. Objections, so as to challenge the jurisdiction of the Metropolitan Court of Bangalore, were turned down against the husband and parents-in-law.

Recently in P. Rajkumar v. Yoga[13], the overlapping of Section 125 Cr.P.C with Domestic Violence has been considered which has been reiterated by the Supreme Court in Lalita Toppo v. State of Jharkhand[14]. The Supreme Court has laid down the guidelines for determining compensation in matrimonial cases in recent decision in Amarendu Jyoti v. State of Chhattisgarh[15]. Thus, it goes to show that the courts have been zealous in interpreting the Act so that the object is satisfied.

Also refer to Saraswathy v. Babu[16], Indra Sarma v. V.K.V. Sarma[17], Rupali Devi v. State of U.P.[18], Ajay Kumar v. Lata[19], Sangita Saha v. Abhijit Saha[20], Reema Aggarwal v. Anupam[21], and Madhu Kishwar v. State of Bihar[22] and Hira Lal v. State (Govt. of NCT) Delhi[23]; these judgments dealt with Dowry Prohibition Act, 1986. This was the time when the Supreme Court proved that the law was inadequate.

All these decisions are related to domestic violence. As mentioned earlier, judgment of the  Supreme Court holding that the wife would have the right of maintenance which would partake even it the right to residential home.

Any other related points

This law works in addition to other laws and does not make the existing pre-2005 legal regime redundant. Instead, it recognises the need for relief to be granted as a basic minimum to provide women with a violence-free space from which they can negotiate their future from a position of equality. Hence, the nature of relief is emergency and temporary in nature; the permanent solution still remains in the realm of personal laws under which a woman would have to decide on whether or not to continue the relationship. In doing so, the PWDVA makes a first but significant step towards achieving the goal of equality.

The next question to be answered was how a woman would access these reliefs. Going to a court is a traumatic process for most people, women being no exception. In addition, there are other constraints such as stigma attached to litigating against one’s own family, the lack of wherewithal to access the courts and difficulties in getting orders enforce. It was essential to address these concerns by providing mechanisms within the law. The office of the “Protection Officer” was therefore instituted under the law. The protection officer has a twofold duty; first, to assist the woman in accessing the court and other support services (such as legal aid, medical facilities, shelter homes, etc.) and second, to assist the court during the course of the proceedings and in the enforcement of orders.

Suggestions

There appears to be wide divergence in the kind of orders that are being granted by magistrates across the States. One commonality being that the major users of the law are married women and the most commonly granted orders are for maintenance. This is perhaps due to the fact that magistrates are accustomed to granting maintenance orders under Section 125 of the Criminal Procedure Code, 1973. It is, however, heartening to note that in a number of cases, widows and aged mothers, who hereinbefore were not covered, have been able to obtain favourable orders, particularly residence orders. There are also diverse trends in the nature of the orders being claimed by women, for instance in Rajasthan, where women have mostly claimed orders for restoration into the shared household whereas in Kerala, many women have sought orders directing the men to stay away. It is, however too early to ascribe reasons behind such divergent practices.

The purpose of the Act is to give protection to the aggrieved woman from domestic violence keeping in view the intention of the legislature in passing the Act that minor procedural discrepancies do not disentitle the complainant from seeking the relief.

Conclusion

The genesis of the legislation along with the other legislations on the subject was, as can be seen necessitated by the harassment which was faced by women. At times, the maintenance would not be enough. The provision of matrimonial homes had not been discussed. The main purpose of this legislation is equality before law and equal protection of laws regardless of religion, caste, community and faith. Difficulties which arise at times with complaints under Domestic Violence Act are also felt and if the entire family is sent to jail without there being pre conciliations, the role of the Judge becomes very important so as to see that the family does not suffer what can be said to be irretrievable breakdown of marriage. The Act has been strictly interpreted recently in the judgments which are analysed by the undersigned. The provisions of Indian Evidence Act had been made applicable but the overriding effect is there, so as to give primacy to the Act. There is radical approach which is required to be taken by the family courts as they are under an obligation to see that matrimonial rights and obligations of the women are fulfilled. The jurisdictional aspect also requires to be seen as litigation under the Domestic Violence Act goes to the Magisterial Court whereas for other maintenance, divorce, restitution of conjugal rights, the parties have to go to the Civil Court or the Family Court as the case may be. This also requires to be looked into by the legislation.


* Judge, Allahabad High Court   

[1] (2002) 5 SCC J-1.

[2] (1995) 6 SCC 88

[3] (2003) 2 SCC 152

[4] (2016) 10 SCC 165

[5] (2016) 2 SCC 705

[6] (2013) 2 SCC 137

[7] (2007) 3 SCC 169

[8] 2020 SCC OnLine SC 841

[9] 2020 SCC OnLine SC 841

[10] 2020 SCC OnLine SC 422

[11] 2020 SCC OnLine SC 408

[12] (2020) 3 SCC 14

[13] 2019 SCC OnLine SC 1825

[14] (2019) 13 SCC 796

[15] (2014) 12 SCC 362

[16] (2014) 3 SCC 712

[17] (2013) 15 SCC 755

[18] (2019) 5 SCC 384

[19] (2019) 15 SCC 352

[20] (2019) 18 SCC 81 : 2019 SCC OnLine SC 559

[21] (2004) 3 SCC 199

[22] (1996) 5 SCC 125

[23] (2003) 8 SCC 80

Case BriefsSupreme Court

Supreme Court: In a bid to harmonise the competing reliefs of a daughter-in-law and her in-laws under the Protection of Women from Domestic Violence Act 2005 and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, respectively, the 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has held that the Tribunal under the Senior Citizens Act, 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent, however, the over-riding effect for remedies sought under the Senior Citizens Act 2007, cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the DV Act 2005.

Background

The spouse of the appellant purchased a property in his own name a few months before the marriage but subsequently sold it, after a few years, under a registered sale deed at the same price to his father (the father-in-law of the appellant), who in turn gifted it to his spouse i.e. the mother-in-law of the appellant after divorce proceedings were instituted by the Fourth respondent. Parallel to this, the appellant had instituted proceedings of dowry harassment against her mother-in-law and her estranged spouse; and her spouse had instituted divorce proceedings. The appellant had also filed proceedings for maintenance against the Fourth respondent and the divorce proceedings are pending. It is subsequent to these events, that the parents-in-law instituted an application under the Senior Citizens Act 2007 seeking their daughter-in-laws’s eviction from the residential house.

The appellant had asserted that she had been living in the house, as her matrimonial residence, until the application was filed. According to her, her spouse has deserted her and their minor daughter and left them in the lurch. The electricity to the premises was disconnected for non-payment of dues. She claimed that the proceedings have been utilised to secure the eviction of the appellant so as to deny her claim of a right to reside in the shared household under the Protection of Women from Domestic Violence Act 2005.

Harmonising competing reliefs under the DV Act 2005 and Senior Citizens Act 2007

Section 36 of the DV Act 2005 stipulates that the provisions of the Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. This is intended to ensure that the remedies provided under the enactment are in addition to other remedies and do not displace them. The Senior Citizens Act 2007 is undoubtedly a later Act and Section 3 stipulates that its provisions will have effect, notwithstanding anything inconsistent contained in any other enactment. However, the provisions of Section 3 of the Senior Citizens Act 2007 giving it overriding force and effect, would not by themselves be conclusive of an intent to deprive a woman who claims a right in a shared household, as under the DV Act 2005.

“Principles of statutory interpretation dictate that in the event of two special acts containing non obstante clauses, the later law shall typically prevail.”

The Senior Citizen’s Act 2007 contains a non obstante clause. However, in the event of a conflict between special acts, the dominant purpose of both statutes would have to be analyzed to ascertain which one should prevail over the other. The primary effort of the interpreter must be to harmonize, not excise. Hence, Section 36 of the DV Act 2005, albeit not in the nature of a non obstante clause, has to be construed harmoniously with the non obstante clause in Section 3 of the Senior Citizens Act 2007 that operates in a separate field.

In this case, both pieces of legislation are intended to deal with salutary aspects of public welfare and interest. The DV Act 2005 was intended to deal with the problems of domestic violence which, as the Statements of Objects and Reasons sets out, “is widely prevalent but has remained largely invisible in the public domain”. The Statements of Objects and Reasons indicates that while Section 498A of the Indian Penal Code created a penal offence out of a woman’s subjection to cruelty by her husband or relative, the civil law did not address its phenomenon in its entirety. Hence, consistent with the provisions of Articles 14, 15 and 21 of the Constitution, Parliament enacted a legislation which would “provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society”.

A significant object of the legislation is to provide for and recognize the rights of women to secure housing and to recognize the right of a woman to reside in a matrimonial home or a shared household, whether or not she has any title or right in the shared household.

“Allowing the Senior Citizens Act 2007 to have an overriding force and effect in all situations, irrespective of competing entitlements of a woman to a right in a shared household within the meaning of the DV Act 2005, would defeat the object and purpose which the Parliament sought to achieve in enacting the latter legislation.”

The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the DV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislations have to be harmoniously construed.

“Hence the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007.”

Role of Tribunals constituted under Senior Citizens Act 2007

Senior Citizens Act 2007 was promulgated with a view to provide a speedy and inexpensive remedy to senior citizens. Accordingly, Tribunals were constituted under Section 7. These Tribunals have the power to conduct summary procedures for inquiry, with all powers of the Civil Courts, under Section 8. The jurisdiction of the Civil Courts has been explicitly barred under Section 27 of the Senior Citizens Act 2007.

“However, the over-riding effect for remedies sought by the applicants under the Senior Citizens Act 2007 under Section 3, cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the DV Act 2005. The DV Act 2005 is also in the nature of a special legislation, that is enacted with the purpose of correcting gender discrimination that pans out in the form of social and economic inequities in a largely patriarchal society. In deference to the dominant purpose of both the legislations, it would be appropriate for a Tribunal under the Senior Citizens Act, 2007 to grant such remedies of maintenance, as envisaged under S.2(b) of the Senior Citizens Act 2007 that do not result in obviating competing remedies under other special statutes, such as the DV Act 2005.”

Section 26 of the DV Act empowers certain reliefs, including relief for a residence order, to be obtained from any civil court in any legal proceedings. Therefore, in the event that a composite dispute is alleged, such as in the present case where the suit premises are a site of contestation between two groups protected by the law, it would be appropriate for the Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould reliefs, after noticing the competing claims of the parties claiming under the DV Act 2005 and Senior Citizens Act 2007.

Duty of “aggrieved woman” under DV Act

Section 3 of the Senior Citizens Act, 2007 cannot be deployed to over-ride and nullify other protections in law, particularly that of a woman’s right to a “shared household‟ under Section 17 of the DV Act 2005. In the event that the “aggrieved woman” obtains a relief from a Tribunal constituted under the Senior Citizens Act 2007, she shall be duty-bound to inform the Magistrate under the DV Act 2005, as per Sub-section (3) of Section 26 of the DV Act 2005. This course of action would ensure that the common intent of the Senior Citizens Act 2007 and the DV Act 2005- of ensuring speedy relief to its protected groups who are both vulnerable members of the society, is effectively realized.

Decision on facts

A shared household would have to be interpreted to include the residence where the appellant had been jointly residing with her husband. Merely because the ownership of the property has been subsequently transferred to her in-laws or that her estranged spouse is now residing separately, is no ground to deprive the appellant of the protection that was envisaged under the DV Act 2005.”

On construing the provisions of sub-Section (2) of section 23 of the Senior Citizen Act 2007, it is evident that it applies to a situation where a senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred. On the other hand, the appellant’s simple plea is that the suit premises constitute her “shared household‟ within the meaning of Section 2(s) of the DV Act 2005.

Considering the series of transactions which took place in respect of the property, the Court noticed that the fact that specific proceedings under the DV Act 2005 had not been instituted when the application under the Senior Citizens Act, 2007 was filed, should not lead to a situation where the enforcement of an order of eviction deprives her from pursuing her claim of entitlement under the law.

“The inability of a woman to access judicial remedies may, as this case exemplifies, be a consequence of destitution, ignorance or lack of resources. Even otherwise, we are clearly of the view that recourse to the summary procedure contemplated by the Senior Citizen Act 2007 was not available for the purpose of facilitating strategies that are designed to defeat the claim of the appellant in respect of a shared household.”

Conclusion

The Court, hence, concluded that the claim of the appellant that the premises constitute a shared household within the meaning of the DV Act 2005 would have to be determined by the appropriate forum. The in-laws i.e. the Second and Third Respondents will be at liberty to make a subsequent application under Section 10 of the Senior Citizens Act 2007 for alteration of the maintenance allowance, before the appropriate forum.

The Court left it open to the appellant to pursue her remedies under the DV Act 2005. For that purpose, it would be open to the appellant to seek the help of the District Legal Services Authorities and if the appellant does so, all necessary aid and assistance shall be furnished to her in pursuing her legal remedies and rights. Further, in order to enable the appellant to pursue her remedies under the DV Act 2005, there shall be an order and direction restraining the respondents from forcibly dispossessing the appellant, disposing of the premises or from creating any right, title and interest in favor of any third party in any manner whatsoever for a period of one year, to enable the appellant to pursue her remedies in accordance with law. The appellant is at liberty to move the Court to espouse her remedies under the DV Act 2005 for appropriate orders, including interim protections.

[S. Vanitha v. Deputy Commissioner, Bengaluru Urban District, Civil Appeal No. 3822 of 2020, decided on 16.12.2020]


*Justice Dr. DY Chandrachud has penned this judgment. Read more about him here.

For Appellant: Advocate Yatish Mohan

For Respondents: Advocate Rajesh Mahale