Case BriefsSupreme Court

Supreme Court: The bench of MR Shah and BV Nagarathna*, JJ has answered three important questions pertaining to the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) and has expanded the scope of the Act by holding that,

  1. Even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex-parte or interim as well as a final order under the provisions of the D.V. Act.
  2. The expression ‘right to reside in the shared household’ would include not only actual residence but also constructive residence in the shared household.
  3. It is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting.

(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?

Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. Even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.

When the proviso is read in the context of the main provision which begins with the words ‘an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act’ would clearly indicate that the aggrieved person can by herself or through her advocate approach the Magistrate for seeking any of the reliefs under the D.V. Act. In such an event, the filing of a Domestic Incident Report does not arise. The use of the expression ‘shall’ in the proviso has to be read contextually i.e., the Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider. If the intention of the Parliament had been that filing of the Report by the Protection Officer is a condition precedent for the Magistrate to act upon the complaint filed by an aggrieved person even when she files it by herself or through her advocate then it would have been so expressed. But a conjoint reading of Sub-Section (1) of Section 12 with the proviso does not indicate such an intention. Thus, the plenitude of power under Section 12 of the D.V. Act is accordingly interpreted and pre-requisite for issuing notice to the respondent on an application filed by the aggrieved person without the assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise. If a contrary interpretation is to be given then the opening words of Sub-Section (1) of Section 12 would be rendered otiose and it would be incumbent for every aggrieved person to first approach a Protection Officer or a service provider, as the case may be, and get a Domestic Incident Report prepared and thereafter to approach the Magistrate for reliefs under the D.V. Act, which is not the intention of the Parliament.

(ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?

It is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.

Even in a case where the woman in a domestic relationship is residing elsewhere on account of a reasonable cause, she has the right to reside in a shared household. Also a woman who is, or has been, in a domestic relationship has the right to reside not only in the house of her husband, if it is located in another place which is also a shared household but also in the shared household which may be in a different location in which the family of her husband resides.

Hence, the expression ‘right to reside in the shared household’ would include not only actual residence but also constructive residence in the shared household i.e., right to reside therein which cannot be excluded vis-à-vis an aggrieved person except in accordance with the procedure established by law. If a woman is sought to be evicted or excluded from the shared household she would be an aggrieved person in which event Sub-Section (2) of Section 17 would apply.

(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?

There should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act.

The question raised about a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed must be interpreted in a broad and expansive way, so as to encompass not only a subsisting domestic relationship in presentia but also a past domestic relationship. Therefore, the Parliament has intentionally used the expression ‘domestic relationship’ to mean a relationship between two persons who not only live together in the shared household but also between two persons who ‘have at any point of time lived together’ in a shared household.

[Prabha Tyagi v. Kamlesh Devi, 2022 SCC OnLine SC 607, decided on 12.05.2022]


*Judgment by: Justice BV Nagarathna


Counsels

For appellant-aggrieved: Amicus Cureai Gaurav Agrawal

For Respondent: Advocate K.K. Srivastava

Case BriefsHigh Courts

Delhi High Court: Prateek Jalan, J., addressed the issue of whether visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as a shared household, would render them members of the “shared household.

Respondent 1 in the present proceedings was the petitioner’s husband and respondent 2 was her mother-in-law. Respondent 3 was the petitioner’s sister-in-law and respondent 4 was the husband of respondent 3.

It was stated that the petitioner had filed an application under Sections 12, 17, 18, 19, 20 and 22 of the DV Act and all the four respondents were arrayed as accused. A notice was issued, and the matter was adjourned for consideration on the point of summons to other respondents. Further, MM issued summons to respondent 2 also, but came to the conclusion that respondents 3 and 4 had not been residing in the shared household, hence no summons was issued to them.

The petitioner had challenged the order by way of an appeal under Section 29 of the DV Act and the appellate court affirmed the view taken by the MM.

Analysis, Law and Decision

In the present matter, Court noted in the complaint that the petitioner had mentioned in the memo of parties that the respondents 1 and 2 were residents at the matrimonial home, whereas respondents 3 and 4 were residents of BB- 18C Janakpuri, New Delhi.

The complainant had lived with the respondents 1 and 2 in a shared household in Jalandhar, and the joint family consisted of the petitioner and the respondents 1 and 2.

Respondents 3 and 4 being the sister-in-law of the petitioner and her husband, visited often for various lengths of time, but there was no suggestion that they were, or intended to be, permanently resident in the said household.

High Court expressed that,

Just as the woman living fleetingly or casually at different places, would not convert those places into a “shared household”, the visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as shared household, would not render them as members of the “shared household”.

Therefore, the view taken by the MM and the Appellate Court did call for interference under Section 482 of the CrPC. Hence the petition was dismissed. [Bharti Anand v. Sushant Anand, 2022 SCC OnLine Del 1191, decided on 26-4-2022]


Advocates before the Court:

For the Petitioner: C.P. Vig, Advocate

For the Respondents: None

Case BriefsDistrict Court

Dwarka Courts, New Delhi: Richa Gusain Solanki, Additional Senior Civil Judge-Cum-JSCC-Cum-Guardian Judge, addressed a matter with regard to the eviction of the daughter-in-law by in-laws.

The present suit was filed for permanent and mandatory injunction.

Plaintiff was the owner of the suit property having purchased it from the previous owner. The defendant was the daughter-in-law of the plaintiff. Plaintiff’s son was residing separately from the defendant.

Further, it was stated that the defendant’s behaviour was rude and harsh towards the plaintiff and her family from the very beginning. Since the defendant did not mend her ways, the plaintiff separated the defendant from her son.

Out of natural love and affection for the son and the daughter-in-law, the plaintiff permitted the defendant to reside at the suit property. On knowing that the defendant wanted to sell the property, she asked the defendant to vacate the property, but the defendant refused to do so and demanded Rs 15 lakhs for the same.

Plaintiff had no source of income, and the husband of the plaintiff received a meagre pension which was insufficient to run the household. If the suit property was vacated by the defendant, the same could be let out for an additional source of income. Therefore, the present suit had been filed.

Analysis, Law and Decision

“A party who seeks grant of an injunction must satisfy the Court that his/her dealing of the matter has been fair, honest and free of any fraud or illegality.”

Court noted that the manner in which suits were filed and withdrawn had shown that the plaintiff availed the benefits of the settlement and then took a U-turn to the disadvantage of the defendant.

Plaintiff’s conduct appeared to be such as to disentitle her to the assistance of the Court and no injunction could be granted under Section 41(i) of the Specific Relief Act.

Preponderance of probabilities 

Defendant did not file any application seeking an interim injunction against the sale of the suit property in this case. No injunction was ever granted and in a span of almost 5.5 years, the defendant has not sold or attempted to sell the suit property. Rather she has undertaken in her written statement that she never intends to do so.

“…rights of the plaintiff as an owner of the suit property have to be balanced with the rights of the defendant who is residing in the suit property in the capacity of a daughter-in-law of the plaintiff.”

Since the suit property was the shared household of the defendant, the status of the defendant was more than that of a gratuitous licensee.

Can the defendant have a legal right of residence in the suit property by virtue of Sections 17 read with 19 of the PWDV Act?

The repeated filing of civil suits to evict the defendant and her minor child from the suit property, despite there being a settlement between the parties and especially after the plaintiff had got the FIR quashed on the basis of the settlement, only goes to show that the plaintiff has caused immense mental harassment to the defendant.

“…suits for eviction must have hung over the head of the defendant like a Damocles’ Sword; the fear of not knowing what will happen to the defendant and her minor child, who had already been deserted by the son of the plaintiff must have caused great anxiety to her.”

The above-stated constituted emotional and economic abuse within the meaning of “domestic violence’ under Section 3of the PWDV Act.

Bench expressed that,

Usually, in cases where the in-laws and the daughter-in-law are residing in the same premises, the in-laws would be entitled to seek eviction of the daughter-in-law from their property after providing an alternative reasonable accommodation to her.

Plaintiff was obligated to provide for adequate residence to the defendant and there was no reason why the defendant should be evicted from the suit property.

Hence, the plaintiff was not entitled to a decree of mandatory injunction in her favour.[Bala Devi v. Anjana, CS SCJ: 112 of 2017, decided on 16-3-2022]

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., addressed a matter wherein the right of residence was claimed by the wife.

In the present matter, marriage between respondent 1 and the son of the petitioners was solemnized according to Hindu rites and rituals and petitioner 1 (since deceased) and petitioner 2 are mother-in-law and father-in-law of the respondent.

Petitioner 1 has been represented by her legal representatives as petitioner 2(a), (b) and (c).

Between the respondent and her in-laws was cordial in the beginning and eventually it started to deteriorate with time. Further, the respondent left her matrimonial home and consequently more than 50 cases, both civil and criminal were filed by the parties.

In one of the cases, the respondent claimed the right of residence.

Aggrieved by the order of Metropolitan Magistrate that had entitled the right to residence, petitioner filed the criminal appeal.

Appellate Court considered the facts and circumstances and upheld the order of Metropolitan Magistrate observing that the respondent had been living in the said premises since her marriage and her husband was the 50% shareholder to the house which gave her the right to continue to live there.

In the present petition, order of the Appellate Court has been impugned.

Analysis, Law and Decision

The existence of the strained relationship between the Petitioner and the Respondent has been well established by the fact that there are more than about 60 criminal and civil cases pending between the parties.

High Court found that the decision of Metropolitan Magistrate was in consonance with the findings of the Supreme Court in SR Batra v. Tarun Batra, (2007) 3 SCC 169,  as well as the fact that the respondent had an emotional attachment to the house given that she had lived there for over 20 years of her married life and even the Appellate Court was right in upholding the same while passing the impugned Order.

Therefore, the Appellate Court rightly appreciated that the respondent has the right to live at her husband’s co-owned property.

In view of the above, the petition was dismissed.[Om Prakash Gupta v. Anjani Gupta, 2022 SCC OnLine Del 701, decided on 8-3-2022]


Advocates before the Court:

For the Petitioners: Anurag Jain, Advocate

For the Respondents: Arvind Varma, Sr. Advocate with Abhishek Chhabra, Advocate for R-1 along with R-1 in person

Raghuvinder Varma, APP for R-2/State

District CourtHigh Court Round UpLegal RoundUp

Here are our interesting Picks from the stories reported this week:

People using cyberspace to vent out anger and frustration by travestying key-figures holding highest office in country, is abhorrent and violates right to reputation: All HC

Sanjay Kumar Singh, J., expressed that, 

“The internet and social media has become an important tool through which individuals can exercise their right to freedom of expression but the right to freedom of expression comes with its own set of special responsibilities and duties.”

Read more, here…


When a person suffers injury without any negligence on his part, but result of combined effect of negligence of two other persons: Is it a case of composite or contributory negligence? Bom HC answers

Expressing that, Negligence does not always mean absolute carelessness, but want of such a degree of care as required in particular circumstances, Vinay Joshi, J., held that no absolute standard can be fixed as to what constitutes negligence differs from case to case.

Read more, here…


[Yes Bank Loan Fraud] Public money under garb of Term loan siphoned off, resulting in generation of ‘proceeds of crime’ as well as its layering and ultimate projection as untainted money: Del HC while denying bail to Gautam Thapar

While addressing a matter wherein bail of Gautam Thapar accused in Yes Bank Loan Fraud case, was sought, Manoj Kumar Ohri, J., expressed that it is well settled that, economic offences constitute a class apart and need to be visited with a different approach, given their severity and magnitude. Albeit these offences are likely to adversely impact the economic fabric of the country, bail shall not be denied to a person accused of an economic offence in a routine manner.

Read more, here…


Where the residence is a shared household, would it create any embargo upon owner to claim eviction against his daughter-in-law? Read what Del HC says

Yogesh Khanna, J., held that right of residence under Section 19 of the Domestic Violence Act is not an indefeasible right of residence in a shared household, especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law.

Read more, here…


Every common woman travelling in public transport have experienced incidents of inappropriate touch by male gender, but ignored: Is this the reason why such assaults go unreported? Read detailed decision on one such incident

Expressing that essence of a woman’s modesty is her womanhood, H.H. The Special Judge A.D.DEO, remarked that incidents of unwelcome, inappropriate touch by the male accused in the journey are very common sexual assault experience by every common woman travelling in public transport, but ignored by each one of them, thinking that there is no likelihood of coming across, the same assailant after the journey.

Read more, here…


Children less than 12 years of age are “asexual” and normally take time to recognize that disguised love, affection or warmth by perpetrator is sinful: Tis Hazari Courts, Delhi

Dharmesh Sharma, Principal District & Sessions Judge, found a 28-year-old man guilty of committing aggravated penetrative sexual assault on a minor aged 11 years old.

Read more, here…


Touching ‘bum’ of a minor girl will be sexual assault punished under S. 10 of POCSO Act? POCSO Court explains

Expressing that, the sexual intention is the state of mind, may not necessarily to be proved by direct evidence, such intention is to be inferred from attending circumstances of the case, M.A. Baraliya, Designated Judge under POCSO Act, 2012, held that touching bum of a girl cannot be said to be without sexual intention.

Read more, here…

Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., held that right of residence under Section 19 of the Domestic Violence Act is not an indefeasible right of residence in a shared household, especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law.

Appeal was filed to set aside the decision passed by the Additional District Judge.

Factual Matrix

Respondent claimed to be the absolute and sole owner of the property vide a registered sale deed, hence he filed a suit for eviction against his daughter-in-law.

A decree of possession with damages equivalent to the market rent of the alleged illegal possession was passed against the appellant and also a decree of permanent injunction to restrain her from creating any third party right in such property.

Appellant’s case was that she being a legally wedded wife of respondent’s son had been residing with her minor daughters in one room with an attached bathroom and balcony in the suit property.

The main plea of the appellant was that S. Kesar Singh (grandfather of appellant’s husband) had purchased the New Friends Colony property out of joint family funds and from sale proceeds of the ancestral property and after the death of S. Kesar Singh the subject property was purchased by the respondent from such ancestral funds, hence the suit property is a joint family property in which the appellant has also a right to reside.

Lower Court in its order had passed a decree of possession to the respondent and it was held that the property was self-acquired property of the respondent, and the appellant was residing in the property as his daughter-in-law and after the termination of the license, she had no right to stay therein.

Analysis, Law and Decision

High Court on considering the above facts and circumstances stated that, since S. Kesar Singh died in 1977, the succession opened after commencement of the 1956 Act, hence there was no basis to say that the subject property was an ancestral property or there existed HUF.

High Court opined that the subject property exclusively belonged to the respondent and the appellant on contrary did not file any document to show the existence of any HUF in the name of S. Kesar Singh and sons or the property.

The house in which the appellant had been residing after her marriage with the son of the respondent was a shared household. Though the husband and wife had been living separately.

Also, another significant point that the Court noted was that, the son of the respondent did not claim any right in the subject property, hence where shared household was admitted by the respondent, there was no need for the trial court to implead the husband of the appellant.

“Admittedly where the parties are residing is a flat, having only three bed rooms, a drawing room and the appellant is in possession of a room in the said flat, then considering there are various complaints filed by them against each other; their relations being not cordial, would it in such circumstances, be appropriate for them to stay together and fight every minute of their existence.” 

Bench remarked that,

In this case, both (father-in-law and mother-in-law) being senior citizens of age about 74 and 69 years and being in the evening of their life, are entitled to live peacefully and not to be haunted by the marital discord between their son and daughter-in-law.

Elaborating further, the High Court added that, where the residence is a shared household, it does not create any embargo upon the owner to claim eviction against his daughter-in-law.

Bench advised that since there was friction in the relationship between the parties, hence it would be appropriate if an alternative accommodation is provided to the appellant as per Section 19(2)(f) of the Protection of Women from Domestic Violence Act.

In view of the above, the appeal was dismissed. [Ravneet Kaur v. Prithpal Singh Dhingra, 2022 SCC OnLine Del 594, decided on 24-2-2022]


Advocates before the Court:

For the Appellant: Mr Sahilendra Bhardwaj and Ms Aroma S Bhardwaj, Advocates.

For the Respondent: Mr Rajat Wadhwa, Mr Aman Kapoor, Mr Lakshay Luthra, Mr Aditya Varun, Advocates.

Tis-hazari
Case BriefsDistrict Court

Tis Hazari Court, Delhi: Sanjay Sharma-II, ASJ-03, termination of service does not mean that husband is incapable of finding another employment and the said would not absolve him from his responsibility to maintain the wife.

Criminal Appeal under Section 29 of the Protection of Women from Domestic Act, 2005 was directed against the order, in complaint case, whereby trial court directed the appellant to pay interim maintenance of Rs 5,133 per month to the respondent from the date of filing of present petition till its final disposal.

Factual Matrix

The complainant filed an application under Section 12 of the Act against the appellant and his family members alongwith an application under Section 23 of the Act for interim maintenance on the averments that complainant was married with the appellant.

Complainant alleged that she was subjected to physical and mental cruelty for bringing insufficient dowry. In October, 2013, the complainant left the shared household.

Further, the complainant’s case was that the appellant was earning more than Rs 50,000 per month and the appellant was living a luxurious life. The complainant is now residing with her parents.

Analysis and Discussion

“It is trite to state that it is the moral and legal obligation of the appellant to maintain his wife and provide her same comforts commensurate to his status and standard of living.” 

As per the affidavit of assets, income and expenditure filed by the appellant it was clear that the appellant was a graduate ad an experienced photographer.

The fact that the appellant was unemployed would not absolve him from his responsibility to maintain the complainant.

Further, the Court observed that, Termination of service does not mean that the appellant is incapable of finding another employment or work.

In the above mentioned affidavit, the appellant stated that his expenses were around Rs 5,600 per month and he had shown his mother as his dependent, though he did not explain the source of his income.

The appellant is a graduate. He is able-bodied and experienced photographer. He is residing in an ancestral home in a posh colony of Delhi. He is not suffering from any physical disability preventing him from doing any work. He cannot shrink his responsibility regarding interim maintenance towards the complainant by pleading unemployment, Court expressed.

Conclusion

The Bench found no reason to interfere with the impugned order awarding a meagre amount to interim maintenance of Rs 5,133 per month to the wife.[Pawan Deep Singh v. Jaspreet Kaur, Criminal Appeal No. 107 of 2021, decided on 5-2-2022]


Advocates before the Court:

Mr. Rajesh Bhatia, Advocate with the appellant.

Ms. Monika Sharma, Advocate with the respondent.

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 BriefsHigh Courts

Andhra Pradesh High Court: While explaining the law on whether father is obligated to provide maintenance to his daughter irrespective of the fact that she has turned major, Joymalya Bagchi, J., refused to interfere with the decision of lower court.

Issue:

The father challenged the lower court’s decision for recovery of maintenance to the tune of Rs 22,000 for a period of 11 months on the ground that 2nd respondent, his daughter, had attained majority.

Court took note of the fact that the maintenance order passed in favour of 2nd respondent-daughter was not modified under Section 127 CrPC and she was unmarried and had no source of income.

It was argued that maintenance order would not survive as the daughter had attained the age of majority and this Court in the exercise of its inherent jurisdiction ought to set aside the order directing realization of dues payable to 2nd respondent after her attaining majority.

Crux:

Whether Magistrate was justified to order recovery of maintenance due to 2nd respondent, who was unmarried and pursuing her education, and who had had attained majority.

Supreme Court in the decision of Abhilasha v. Parkash,2020 SCC OnLine SC 736, observed that though a Family Court is entitled to grant maintenance to a major in-married girl by combining the liabilities under Section 125 CrPC and Section 20(3) of the Act of 1956, a Magistrate exercising powers under Section 125 CrPC was not authorized to do so.

Bench stated that Magistrate is entitled to entertain an application under the Protection of Women from Domestic Violence Act, 2005 and grant monetary relief to meet expenses incurred and losses suffered by an aggrieved person under Section 20 of the DV Act, in the event of domestic violence by way of economic abuse is established.

Conjoint reading of Section 2(a) and 2(f) of the DV Act would show that a daughter, who is or was living with her father in a domestic relationship by way of consanguinity, is entitled to seek reliefs including monetary relief on her own right as an aggrieved person under Section 2(a) of the DV Act irrespective of the fact whether she is a major or minor.

In the present matter, the relation between the parties as father and daughter was admitted and they both had stayed together in a shared household.

Hence, in Court’s opinion, the decision of the Magistrate directing recovery of maintenance was not illegal on the mere ground that she turned major.

Further, the Court clarified that in Abhilasha v. Parkash,2020 SCC OnLine SC 736, the power of the magistrate to grant monetary relief under the DV Act did not fall for consideration and further the Bench added citing the Supreme Court’s decision in Rajput Ruda Meha and v. State of Gujarat, that it is settled law that a judgment is not an authority for a proposition which was neither raised nor argued.

Therefore, Court concluded by denying to interfere with the impugned order. [Menti Trinadha Venkata Ramana v. Menti Lakshmi, 2021 SCC OnLine AP 2860, decided on 9-09-2021]


Advocates before the Court:

For the Petitioner: T.V. Sridevi

For the Respondent 3: Additional Public Prosecutor

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J. while addressing the matter, expressed that

“…in the opinion of this Court, all cases of family disputes cannot be characterised as cases under the DV Act.”

Plaintiff had filed a suit against his son and daughter-in-law, respectively.

In view of various disputes between the plaintiff and his son/daughter-in-law, he sought the permanent and mandatory injunction, damages seeking vacant and peaceful possession of the suit property and removal of his son and daughter-in-law. Damages and mesne profits were also sought by the plaintiff.

 Issues:

  • Condonation of delay of 342 days, in filing the present second appeal.
  • Merits of matter.

Analysis, Law and Decision

High Court stated that there was no delay in filing the present appeal.

Several disputes arose amongst the said family members, which, according to Plaintiff, were due to the interference of the family members of the daughter-in-law, including the mother and the brothers of the daughter-in-law.

There was no document on record to show the existence of a HUF, of which, Plaintiff was alleged to be the Karta.

Plea of ‘shared household’ appeared to have clearly been put up on behalf of the daughter-in-law, as a faint plea, and as an argument of last resort.

There were no complaints that had been preferred against the father-in-law and there were no cases filed or pending under the DV Act, or any other legislation at the instance of the daughter-in-law.

Further, the Bench stated that the father was merely seeking to evict both his son and daughter-in-law, on the strength of his ownership of the suit property.

Adding to the above, Court stated that the settled position of law is that proceedings under the DV Act are not required and the same can also be raised as defence in the suit, the basic requirements of the said Act ought to be satisfied.

The present is not a case where the case set up is one under the DV Act, involving domestic violence. 

High Court highlighted the peculiar facts:

  • The ownership of the Plaintiff in the suit property is not in dispute.
  • The sale of the property of the mother, which took place in 2011, was never challenged by the Defendants.
  • The purchase of this suit property in the name of the Plaintiff was never challenged by the Defendants.
  • There is no complaint of Domestic Violence raised by the daughter-in-law before any forum. In fact, to the contrary, the Plaintiff has filed complaints against his son and daughter-in-law with police repeatedly, alleging ill-treatment and abuse.
  • The Defendants i.e., the son and daughter-in-law are living together peacefully. The written statement before the trial court was filed jointly. The first appeal was also filed jointly, and so is the present second appeal. There is no estrangement or marital discord between them.
  • The order passed in the application under Order XII Rule 6 CPC has also been executed and the Defendants have already moved out of the suit property and are living in alternate premises.

In light of the above stated facts and noting that they are distinguishable from the facts of Satish Chandra Ahuja v. Sneha Ahuja, [2020 (11) SCALE 476] and Vanitha v. Deputy Commr., [2020 (14) SCALE 210]

Court dismissed the appeal. [Aarti Sharma v. Ganga Saran, 2021 SCC OnLine Del 4110, decided on 24-08-2021]


Advocates before the Court:

For the Appellants: Zahid Ali, Advocate

For the Respondent: Ashok Kumar Tiwari, Advocate

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ujjal Bhuyan and Madhav J. Jamdar, JJ., while explaining the provisions under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 also elaborated upon the concept of shared household and remanded the matter back to the Tribunal for Maintenance and Welfare of Parents and Senior Citizens.

In the present matter, the legality and validity of the order passed by the Deputy District Collector, acting as the Presiding Officer of the Tribunal for Maintenance and Welfare of Parents and Senior Citizens as challenged.

Respondent 1 was the mother-in-law of the petitioner. Petitioner alongwith her husband and minor daughter used to reside in a Flat along with respondent 1.

The above referred flat originally belonged to Anandlal Jasani who during his lifetime made nomination in respect of the said flat whereby 20% share of the flat was granted in favour of petitioner’s husband.

Since her marriage, the petitioner was living in the above-stated flat along with respondent 1 and the father-in-law till his death.

Petitioner claimed that the said flat is her matrimonial home as well as her shared household. Petitioner, her husband, daughter, and respondent 1 were residing in the said flat.

Further, the petitioner submitted that her husband was suffering from mental illness and depression because of which he required regular treatment and counselling and could not contribute to the earnings of the family.

Petitioners Allegation

Petitioner alleged that respondent 1 wanted to sell the stated flat and thereafter retain the sale consideration to herself to enable her to lead an affluent lifestyle. Petitioner and her husband were opposed to selling the flat.

Adding to the above, petitioner submitted that the said flat was not self-acquired property of respondent 1, rather it was an ancestral property of the family of the petitioner’s husband wherein petitioner’s husband, petitioner and their minor daughter had equal rights, title and interest.

Further, it was added that respondent 1 had the motive of ousting the petitioner, her husband and minor daughter from the flat and that was the reason why she filed a complaint before the Tribunal for Maintenance and Welfare of Parents and Senior Citizens for eviction of the petitioner and her husband from the flat to allow her to reside in the flat all by herself.

This Court had issued an order dated 15-04-2021 stating that no coercive steps should be taken against the petitioner.

Analysis, Law and Decision

Bench noted that Tribunal held that the flat was an ancestral property and that both respondent 1 and petitioner along with her husband had joint rights. In so far sale of the flat was concerned, it was beyond the jurisdiction of the tribunal.

In Tribunal’s opinion, as per Sections 4(2) and (3) of the 2007 Act, it was the obligation of the children or the relatives to maintain a senior citizen to the extent of the needs of such senior citizen.

Based on Sections 4,5,9, 13 and 23 of the 2007 Act, Tribunal decided and directed the petitioner and her husband to vacate the flat and to hand over the possession to respondent 1.

Whether the flat in question is a shared household and that petitioner has a right to reside in the shared household?

Supreme Court in S. Vanitha v. Deputy Commissioner, 2020 SCC OnLine SC 1023 concluded that claim of the appellant that the premises constitute a shared household within the meaning of the 2005 Act would have to be determined by the appropriate forum. The claim cannot be simply obviated by evicting the appellant in the exercise of the summary powers entrusted by the 2007 Act.

Question for consideration:

Whether the Tribunal under the 2007 Act can order eviction of a person from tenement in which he has ownership right to the extent of 20%?

Whether having regard to the mandate of Section 4 of the 2007 Act read with other provisions of the said 2007 Act, Tribunal can direct or order eviction of children or relative at the first instance itself or at a later stage to enforce an order of maintenance passed at the first instance?

Supreme Court in S. Vanitha v. Deputy Commissioner, 2020 SCC OnLine SC 1023 took the view that Tribunal under the 2007 Act may have the authority to order an eviction if it is necessary and expedient to ensure maintenance and protection of the senior citizen or parent.

Single Judge in Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, 2018 SCC OnLine Bom 2246  took the view that the Tribunal can order eviction under the 2007 Act, as noticed above, such order was in the context of the tenement being the exclusive property of the parent/senior citizen which was not so in the present case.

Therefore, Court held that without expressing any opinion at this stage on the questions formulated by this Court above, it is essential for the Tribunal to first conclude, though summarily, as to whether the flat in question was an ancestral property or exclusively owned by respondent 1.

Further, the Court expressed that in terms of Section 9 of the 2007 Act, Tribunal must be satisfied that the parent has suffered neglect at the hands of the children or relatives or that they have refused to maintain the parent.

Under Section 5(3) of the 2007 Act, the Tribunal is mandated upon receipt of an application for maintenance to provide an opportunity of hearing to both the parties and to hold an enquiry for determining amount of maintenance.

Further, the procedure contemplated under the 2007 Act is summary in nature nonetheless Tribunal is required to find out as to whether the flat in question belongs exclusively to respondent 1 or it is an ancestral property where petitioner has also a right to ownership and/or residence through her husband.

Tribunal is also required to deal with the contention of petitioner that the flat in question is her shared household wherefrom she cannot be evicted.

As the Supreme Court had pointed out in S. Vanitha v. Deputy Commissioner2020 SCC OnLine SC 1023, both parents / senior citizens and the daughter-in-law are vulnerable groups in the Indian context and for protection of their rights the 2005 Act and the 2007 Act have been enacted.

In the above backdrop, the claims of the contesting parties would have to be decided which unfortunately does not appear to be the case in the instant proceeding. 

Hence, the High Court set aside the Tribunal’s order and remand the matter back to the Tribunal for fresh decision.[Ritika Prashant Jasani v. Anjana Niranjan Jasani, 2021 SCC OnLine Bom 1802, decided on 13-08-2021]


Advocates before the Court:

Mr. Kishor Maru for Petitioner. Mr. Anoshak Daver a/w. Ms. Kausar Banatwala, Ms. Neuty Thakkar and Ms. Tanishka Desai i/b. Mr. Tushar Goradia for Respondent No.1.
Ms. Anjana N. Jasani, Respondent in person.
Ms. Ritika Jasani, Petitioner in person.

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., refused to grant relief to the petitioner against orders of the lower court restraining him from dispossessing the respondent from the subject property and also directing him to pay monthly maintenance to her.

Factual Matrix

Respondent had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It was stated that the respondent met petitioner in the year 2009 when she was already married. In the year 2014 after obtaining divorce, the respondent got married to the petitioner.

It is further stated that the petitioner in order to induce respondent to marry him did not disclose his marital status to her. Though petitioner executed a Marriage Agreement to how his genuineness and responsibility towards the respondent and her child from a prior marriage.

Respondent was subjected to physical and mental abuse by the petitioner. Hence, respondent had filed an FIR against the petitioner. Respondent also sought a restraining order from being evicted from the rented accommodation.

Analysis, Law and Decision

High Court expressed that DV Act is meant to provide for the rights of women to secure housing.  The Act also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household.

What does the aggrieved have to show?

Aggrieved person has to show that the aggrieved person and the respondent (man) lived together in a shared household.

Marriage Deed was filed which recorded that after the marriage parties will reside together as husband and wife and will be faithful towards each other. There were photographs of the petitioner and respondent that gave the impression that the parties were living together as husband and wife and had married each other.

As per the school record of the child, petitioner was the father of the child. Copies of the bank accounts were filed wherein the petitioner has been shown as a nominee of the account held by the respondent.

High Court noted that the couple held themselves out in the society as being akin to spouses which fact was evident from marriage-cum-agreement deed, affidavits, the school records of the child and the bank statements of the respondent.

In the present matter, respondent was told that the wife of the petitioner was on dialysis and that she would die soon.

Petitioners’ contention was that he had not entered into any rental agreement and the agreements, affidavits and the photographs produced by the respondent were not genuine.

Bigamous and Adulterous Relationship?

Bench expressed that question as to whether the respondent herein has been duped by the petitioner or whether she was a party to an adulterous and bigamous relationship or not and whether her conduct would not entitle her to any protection under the DV Act can be determined only after the evidence is led.

Metropolitan Magistrate, after the evidence led, had concluded that the respondent was not entitled to the protection of the DV Act and hence shall return the respondent the amount received by her as interim maintenance.

High Court held that the matter be heard by the trial court and should be decided finally within a period of 1 year. [Parveen Tandon v. Tanika Tandon, 2021 SCC OnLine Del 3044, decided on 7-06-2021]


Advocates before the Court:

For the Petitioner: Utkarsh and Anshu Priyanka, Advocates.

For the Respondent: Kamal Anand, Advocate

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., dealt with the provisions in regard to the concept of the shared household while referring to a very pertinent decision of the Supreme Court.

In the instant case, the petitioner is stated to be the daughter-in-law and respondents her parents-in-law.

It has been added that multiple proceedings have been pending between the husband and wife but the focus and purpose due to which the parties were present before the Court was the Agreement to Sell entered between respondent 1 mother-in-law with third-party qua property which was purportedly in her name.

Shared Household Property

As per the petitioner, the property in question was a shared household property where she had lived with her husband due to which the said property could not be alienated from the said property.

Petitioner with regard to the above, filed an application under Section 19(1)(d) of the Protection of Women from Domestic Violence Act, 2005 (DV Act) and Magistrate after issuance of notice, vide an order granted interim relief to petitioner restraining respondents from selling or alienating the property in question.

Revision Petition was preferred against the interim order before the Sessions Court under Sections 395/397 CrPC which was converted into an appeal and vide judgment dated 03-05-2021, the said appeal was allowed.

Petitioner sought aside the judgment passed by the Appellate Court.

Analysis, Law and Decision

Bench perused the impugned judgment, provisions of DV Act as well as Supreme Court’s decision in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414.

What was the crux of the matter?

Petitioner filed an application to restrain the parent-in-law from selling or alienating the subject property. Since Agreement to Sell had to be executed with a limited time frame, aggrieved parents-in-law filed an appeal against the restraint order, which was allowed by the Appellate Court after giving due opportunity of being heard.

Appellate Court referred to Section 2(s) of the Statute, which defined shared household and relied upon the Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 where the rights of an aggrieved woman as provided under Sections 17 & 19 of the Statute, came to be revisited by the Supreme Court.

Appellate Court had observed that daughter-in-law was not residing at the house in question on the day of presentation of the complaint nor any time soon before. It was added to the observation that she was occupying a staff quarter allotted to her husband and lived in the house in question only for a short duration and occasionally visited parents-in-law, to say only thrice.

What did the appellate court held?

“…that these short durational visits or stay of daughter-in-law at the house of the parents-in- law would not get the house a colour of being a shared house hold.”

Bench in the instant case agreed with the ratio laid down by the Supreme Court decision in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, however, the facts were different in the present case in comparison to the Supreme Court decision.

High Court added that the fact remained that petitioner never resided with parents-in-laws and always stayed at the place of posting of her husband and visited them occasionally.

Bench added that the intent and purpose of DV Act was to safeguard the interest of distressed women.

Though it is stated that the provisions of Section 17 of the DV Act stipulate that every woman in a domestic relationship shall have a right to reside in the shared household whether or not she has any right, title or beneficial interest in the same, but in the present case, petitioner had in fact neither permanently nor for a longer period resided in the house of parents-in-law and so, it could not be termed as ‘shared household’. Hence, there was no question of evicting or dispossessing her from there.

Pertinent Question in the present case

Whether the old aged parents-in-law, who at the fag-end of their life, wish to sell off their property to relocate themselves in a better place of their choice, be restrained to sell of the house or permitted to do it?

Supreme Court’s observation in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 was referred to, wherein it was stated:

90. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of the 2005 Act or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by the High Court [Ambika Jain v. Ram Prakash Sharma, 2019 SCC OnLine Del 11886] in para 56 adequately balance the rights of both the parties.”

Hence, in light of the above observations, Court found that the impugned judgment did not suffer from illegality or infirmity.

Therefore, the present application was accordingly dismissed while making it clear that the observations made by this Court are in the peculiar facts of the present case and shall not be treated as a precedent in any other case. [Vibhuti Wadhwa Sharma v. Krishna Sharma,2021 SCC OnLine Del 2104, decided on 17-05-2021]


Advocates before the Court:

For the petitioner: Jatan Singh, Saurav Joon & Tushar Lamba, Advocates

For the respondents: Roopenshu Pratap Singh, Advocate

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

Case BriefsSupreme Court

“The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never-ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime.”

Supreme Court: Answering important question pertaining to the interpretation and working of the Protection of Women from Domestic Violence Act, 2005 (DV Act) in relation to right of residence in the shared household, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that

“The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household.”

In the judgment running into over 150 pages, the Court elaborately discussed and interpreted the provisions and scheme of DV Act. Overruling the law laid down in SR Batra v. Taruna Batra, (2007) 3 SCC 169, the Court held that respondent in a proceeding under Domestic Violence Act can be any relative of the husband and in event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household.

In SR Batra v. Taruna Batra, (2007) 3 SCC 169, a two judge-bench had held that where it was held that the wife is entitled only to claim a right under Section 17(1) to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.


KEY TAKEAWAYS FROM THE JUDGMENT


WHAT IS A SHARED HOUSEHOLD?

“Means and includes”

The definition of shared household in Section 2(s) of the DV Act is an exhaustive definition. The first part of definition begins with expression “means” which is undoubtedly an exhaustive definition and second part of definition, which begins with word “includes” is explanatory of what was meant by the definition.

The use of both the expressions “means and includes” in Section 2(s) of Act, 2005, thus, clearly indicate the legislative intent that the definition is exhaustive and shall cover only those which fall within the purview of definition and no other.

Conditions to be fulfilled for a shared household

(i) person aggrieved lives or at any stage has lived in a domestic relationship.

(ii) (a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and

(b)includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

“At any stage has lived”

The use of the expression “at any stage has lived” immediately after words “person aggrieved lives” has been used to protect the women from denying the benefit of right to live in a shared household on the ground that on the date when application is filed, she was excluded from possession of the house or temporarily absent.

The shared household is contemplated to be the household, which is a dwelling place of aggrieved person in present time.

“… shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent. .”

Further, Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.

Hence, the words “lives or at any stage has lived in a domestic relationship” have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not.

IS RIGHT TO RESIDENCE UNDER SECTION 19 AN INDEFEASIBLE RIGHT?

The right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law.

“While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties.”

WHO CAN BE A RESPONDENT?

There are two conditions for a person to be treated to be respondent within the meaning of Section 2(q), i.e.,

  • in a domestic relationship with the aggrieved person, and
  • against whom the aggrieved person has sought any relief under Act, 2005.

For the purposes of determination of right of defendant under Sections 17 and 19 read with Section 26 in the suit in question the plaintiff can be treated as “respondent”, but for the grant of any relief to the defendant or for successful resisting the suit of the plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant. Hence,

“To treat a person as the “respondent” for purposes of Section 2(q) it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved person.”

NOTE: The Court in Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165, where the Court has struck down the expression “adult male” from the expression “any adult male person” and held that restricting the meaning of respondent in Section 2(q) to only “adult male person” is not based on any intelligible differentia having rational nexus with object sought to be achieved. Hence, it is now permissible under definition of Section 2(q) to include females also. [Read the full report on the 2016 verdict here]

IS THERE ANY EXCEPTION TO THE RIGHT TO RESIDE IN SHARED HOUSEHOLD?

The expression “save in accordance with the procedure established by law”, in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household.

“In appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household.”

For example, when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself.

Further, the embargo under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent”, i.e., one who is respondent within the meaning of Section 2(q) of Act, 2005.

CAN AN ORDER UNDER SECTION 19(1)(b) BE PASSED AGAINST A WOMAN?

Section 19 (1)(b) of DV Act provides that while disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order directing the respondent to remove himself from the shared household.

The Court held that while passing the order of residence under Section 19, more particularly under sub-section 19(1)(b) as per the proviso to Section 19(1), no order under clause(b) shall be passed against any person who is a woman.

ARE PROCEEDINGS UNDER THE DV ACT AND PROCEEDINGS BEFORE A CIVIL COURT, FAMILY COURT OR A CRIMINAL COURT, AS MENTIONED IN SECTION 26 OF THE DV ACT INDEPENDENT PROCEEDINGS?

The proceedings under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section 26 of the D.V. Act are independent proceedings, like the proceedings under Section 125 of the Cr. P.C. for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/family court for the reliefs under the Hindu Adoption and Maintenance Act. However, the findings/orders passed by the one forum has to be considered by another forum.

CONCLUSION

  • The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
  • The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
  • A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.

[Satish Chander Ahuja v. Sneha Ahuja, 2020 SCC OnLine SC 841, decided on 15.10.2020]

Case BriefsHigh Courts

Allahabad High Court: Vivek Kumar Birla, J., while addressing a matter with regard to “shared household”, held that,

“daughter-in-law can be evicted without seeking decree of eviction against son with whom she had moved on the suit property after the marriage of the son of the plaintiff with the appellant.”

Appellant was married to the plaintiff’s son — Vijay Gandhi. In the year 2013, Vijay Gandhi deserted the appellant and filed a divorce petition under Section 13 of the Hindu Marriage Act.

Further, it has been noted that an FIR was lodged against the appellant by the plaintiff.

Plaintiff is the owner of the property wherein he permitted his son and the defendant to live on the first floor of his house. Defendant started harassing the plaintiff who is old and handicapped along with his wife.

Suit for Eviction

In view of the above incident, the plaintiff asked his son to vacate the house with the defendant, who later came back and refused to vacate the house. Hence suit for eviction was filed against the defendant.

Substantial question in the present appeal

(I) Whether as per definition of shared household provided under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 appellant daughter-in-law can be evicted without seeking a decree of eviction against son with whom she had admittedly moved on the first floor of the suit property after the marriage of the son of the plaintiff with appellant?

Supreme Court in its decision, S.R. Batra v. Tarun Batra, (2007) 3 SCC 169, while considering the aspect of “shared household” held that where the plaintiff is the exclusive owner, it cannot be called a “shared household”. The wife’s claim for alternative accommodation against the plaintiff was rejected and was held that it can be claimed only against the husband and not against the in-laws or other relatives.

S.R. Batra v. Tarun Batra, (2007) 3 SCC 169: a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.

Hence, in the Court’s opinion, no substantial question of law arose or can be raised in the present second appeal.

Order 1 Rule 3 and Rule 9 CPC

Further, the Court added that, it is not in dispute that the husband was not residing in the suit property and left the house. It is also not being questioned that if parents permit his son to live in their house he would be a licensee. If his wife is also living with him, she would also be a licensee.

Where the son has left and is not residing in the suit property, no relief is being or is claimed against him. Since he is not living in the suit property, question of filing a separate suit or which may attract any common question of law or fact would also not arise.

Lastly, answering the substantial question of law in the negative, bench once again cited the Supreme Court decision in S.R. Batra with regard to the shared household and the argument for counsel for the respondent (wife) that definition of the shared household includes a house where the person aggrieved lives or at any stage had lived in a domestic relationship was specifically considered and rejected.

Court added that a reading of the said judgment, subject to correction, prima facie, reflects that husband was not a party to the suit and it was held that the claim for alternative accommodation can only be made against the husband and not against the in-laws or other relatives.

Therefore, in view of the definition of the shared house, as provided under Section 2 (s) of the Act, 2005 daughter-in-law can be evicted without seeking a decree of eviction against the son with whom she had admittedly moved in the suit property after the marriage of the son of the plaintiff.

In view of the above observations, petition was dismissed. [Sujata Gandhi v. S.B. Gandhi, 2020 SCC OnLine All 763, decided on 12-06-2020]