PRABHA TYAGI VS KAMLESH DEVI Supreme Court Case 2022

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 511 OF 2022

PRABHA TYAGI …….APPELLANT(S)

VS.

KAMLESH DEVI …….RESPONDENT(S)

J U D G M E N T

NAGARATHNA J.

The aggrieved person, being the appellant herein, who had

filed Miscellaneous Case No. 78 of 2007 on the file of the Court of

Special Judicial Magistrate- I, Dehradun, has assailed judgment

dated 23rd July, 2019 passed by the High Court of Uttarakhand

at Nainital, in Criminal Revision No. 186 of 2014, by which the

judgment dated 11th July, 2014 passed by the Vth Additional

Sessions Judge, Dehradun, in Criminal Appeal No. 53 of 2011

setting aside the order passed by the Special Judicial

Magistrate-I, was sustained.

2. For the sake of convenience, the parties herein shall be

referred to in terms of their rank and status before the Trial Court.

Factual Background:

3. According to the aggrieved person, her marriage with

Kuldeep Tyagi (since deceased) son of late Vishnudutt Tyagi was

solemnized on 18th June, 2005 at Haridwar District, Uttarakhand

as per Hindu rites and rituals and in connection with the

marriage, the family members of the aggrieved person had given

dowry to the family of her deceased husband and Stridhana to the

aggrieved person. For the period immediately following the

wedding, the aggrieved person was residing at the ancestral home

of the respondents along with her mother-in-law-respondent no.1,

two brothers-in-law, wife of her husband’s elder brother and six

sisters-in-law. Thereafter, the aggrieved person began living with

her husband and the respondents in village Jhabreda. That

Kuldeep Tyagi, husband of the aggrieved person died on 15th July,

2005 in a car accident and after the Terhanvi ceremony of her

husband, the aggrieved person was constrained to reside initially

at Delhi, at her father’s house. That immediately prior to the death

of her husband, the aggrieved person had conceived a child.

4. That on 30th March, 2006 the aggrieved person gave birth to

a daughter and owing to the misbehavior and torture meted out

to her by her matrimonial family after her husband’s death, she

moved to Dehradun, Uttarakhand with her daughter, where she

began working as a teacher to support herself and her child. That

the Stridhana given to her at the time of her wedding was never

allowed to be enjoyed by her and even following her exit from her

matrimonial home, the Stridhana was being used by her in-laws,

respondent nos. 1 to 6. That the aggrieved person had sent a legal

notice dated 22nd November, 2006, requesting them to return the

articles of Stridhana, however, there was no response to the same.

5. That the father of the aggrieved person had gifted her a

Maruti (Alto) car, at the time of her wedding and the same was

registered in the name of her deceased husband. Owing to the

accident that her husband had met with, resulting in his death,

the said car had also been damaged. That the aggrieved person’s

mother-in-law had submitted an application before the insurance

company, National Insurance Company which was processing the

claim for damage caused to the car, stating therein that she was

the mother of the deceased and was the only legal heir of the

deceased and therefore any compensation may be made in her

favour.

6. That there exists a land in village Jhabreda to which the

deceased husband of the aggrieved person had right and title.

That respondent no. 1- mother-in-law, on being instigated by the

other respondents objected to the recording of the aggrieved

persons’ name in the revenue records of the said property.

Respondent no. 1 objected by stating that the child borne by

aggrieved person was not Kuldeep Tyagi’s daughter. Owing to

such objection, the Court of Tehsildar passed an order of status

quo with respect to the said property.

7. That the respondents, on several occasions threatened the

aggrieved person that she would face dire consequences if she

ever attempted to claim any right over her husband’s property.

That the respondents, having no sympathy towards the aggrieved

person who had, while pregnant, lost her husband in a fatal

accident, tortured her mentally by denying that her child was the

daughter of Kuldeep Tyagi.

8. With the aforesaid averments, the aggrieved person

approached the Court of the Special Judicial Magistrate under

Section 12 and sought protection orders, residence orders and

compensation orders to be passed under various provisions of the

Protection of Women from Domestic Violence Act, 2005 (for short,

the ‘D.V. Act’). Further, prayers were also made for monetary

reliefs under Section 22 of the D.V. Act.

9. In response to the aforesaid application filed by the

aggrieved person, the respondents filed a joint written statement

to the effect that the marriage of the aggrieved person with

Kuldeep Tyagi was solemnized at a simple ceremony in Haridwar,

on 18th June, 2005. That no dowry or articles of Stridhana were

handed over to the respondents at the time of the ceremony,

therefore, the question of returning the same to the aggrieved

person by the respondents would not arise. That the aggrieved

person could not have conceived a child through the deceased in

a span of twenty-eight days from the date of the marriage and as

such a claim was not only false but unnatural.

10. That the respondents had, in no way, tortured the aggrieved

person. That her statement to the effect that she was residing in

the ancestral home of her husband, during the period

immediately following her wedding, was untrue as she only stayed

with the respondents for one night after her marriage.

11. As regards the Maruti (Alto) car, it was stated that the same

was not a part of the Stridhana given in favour of the aggrieved

person, but was purchased by Kuldeep Tyagi, after borrowing

money for this purpose from respondent no. 1.

That the aggrieved person had, by presenting false facts had

got her name entered as the legal heir of Kuldeep Tyagi in relation

to a land owned by him. That in the said application dated 31st

March, 2006, she had stated that Kuldeep Tyagi had no issue or

heirs. That an order of status quo was obtained by respondent no.

1 by presenting the correct facts before the Tehsildar.

It was averred that the respondents had not committed any

acts of domestic violence. In that background, the respondents

prayed before the Trial Court that the application filed by the

aggrieved person-victim be dismissed.

12. The Special Judicial Magistrate- I, Dehradun, by judgment

dated 12th May, 2011 partly allowed the application filed by the

aggrieved person and directed the respondents to pay Rs.10,000/-

as monetary compensation for insulting and maligning the

aggrieved person. The articles of Stridhana mentioned in the list

enclosed with the application, except the Maruti (Alto) Car, were

to be made available to the aggrieved person at her Dehradun

residence. It was also directed that the respondents shall not

obstruct the aggrieved person and her daughter from enjoying the

property of late Kuldeep Tyagi.

The salient findings of the Trial Court are as under:

i) As regards the contention of the respondents to the effect

that it was unnatural that the aggrieved person was

impregnated within twenty-eight days was unnatural, the

Trial Court observed that there was an absolute possibility

of such fact. In holding so, the Trial Court relied on the

submission of the respondents to the effect that the

aggrieved person left their ancestral home on 20th June,

2005 to live independently with her husband. In light of the

said submission, the Trial Court noted that the aggrieved

person lived with her husband till the day of his death and

therefore there was nothing unnatural about her pregnancy

and therefore, the contention of the respondents that the

daughter was not Kuldeep Tyagi’s, was baseless.

ii) That no adverse inference could be drawn from the fact

that the aggrieved person had wrongly stated in the

application filed before the Tehsildar to the effect that

Kuldeep Tyagi had no heirs other than the aggrieved

person, as she had no knowledge of such statement.

iii) That allegation pertaining to the paternity of the aggrieved

person’s daughter was likely to have caused emotional

harm to her, thereby also affecting her profession as a

teacher. In that light, it was observed the aggrieved person

was a victim of domestic violence under Section 1 (d) (iii)

of the D.V. Act. A symbolic amount of Rs.10,000/- was

awarded to compensate the victim for emotional loss

suffered.

iv) That the victim left her matrimonial home thirteen days

after her husband died, owing to repeated taunts and

abuses by the respondents. That no cross examination was

conducted by the respondents to controvert this fact.

Therefore, it was established that the victim did not leave

her matrimonial home of her own will, but because of

conduct of the respondents.

v) That the aggrieved person had not re-married, following

the death of Kuldeep Tyagi. Therefore, she continued to

remain the daughter-in-law of the respondents’ family and

had rights over the property of her deceased husband.

Relief was granted under Section 19 of the D.V. Act, for

independent residence with liberty to visit her husband’s

house since there was no evidence to show that the

matrimonial home of the victim was in the sole ownership

of the mother-in-law of the victim. That she would be

entitled to enjoy the same facilities as enjoyed by her

deceased husband during his lifetime. The respondents

were restrained from disturbing the rights of the victim to

her husband’s property. However, it was clarified that the

Judicial Magistrate had no jurisdiction to pass any orders

in relation to getting the name of the victim entered in the

revenue records.

vi) That no evidence was put forth by the respondents which

would establish that no Stridhana was given at the time of

the marriage. Therefore, all articles of Stridhana as listed

in the list annexed with the application filed before the

Magistrate, were directed to be returned to the victim.

13. Being aggrieved, respondent no. 1, mother-in-law of the

aggrieved person, preferred Criminal Appeal No. 53 of 2011 before

the Vth Additional Sessions Judge, Dehradun. By judgment dated

11th July, 2014, the First Appellate Court set aside the judgment

of the Trial Court, dated 12th May, 2011.

The relevant findings of the First Appellate Court are

encapsulated as under:

i) That the aggrieved person never lived in the shared

household belonging to the respondents, situated in

Jhabreda, but lived in Roorkee with her husband. That the

aggrieved person maintained a house in Roorkee and used

to travel daily to Jhabreda for work, but never shared a

household with the respondents.

ii) Given that the aggrieved person never lived in Jhabreda with

the respondents, it was improbable that her family had

delivered the articles of Stridhana to the respondents in

Jhabreda. That the possession of Stridhana was not vested

with the respondents. Therefore, no question would arise as

to the respondents disturbing or using the Stridhana, which

in fact, was never in their possession.

iii) That the aggrieved person had not led any evidence to

establish that following the death of her husband, she had

lived in Jhabreda with the respondents for thirteen days.

That she continued to live at Roorkee even after the death of

her husband. That in the absence of any evidence to

demonstrate that the aggrieved person ever lived with the

respondents, no case was made out for domestic violence on

the part of the respondents. That the aggrieved person was

not entitled to any relief in terms of a residence order, till

such time as she is allotted a specific share following legal

partition of the property held in joint ownership of her

deceased husband and the respondents.

iv) That in the absence of any evidence as to the delivery of

Stridhana to the respondents, no orders could be passed for

restoration of possession of Stridhana articles in favour of

the aggrieved person.

14. Aggrieved by the judgment of the First Appellate Court, the

aggrieved person preferred a criminal revision petition before the

High Court of Uttarakhand at Dehradun. By judgment dated 23rd

July, 2019, the criminal revision petition was dismissed and the

judgment of the Vth Additional Sessions Judge, Dehradun was

sustained.

The following findings were recorded by the High Court in

the impugned judgment:

i) That as per the provisions of Section 12 (1) of the D.V. Act,

a Domestic Incident Report is required to be mandatorily

filed by a Protection Officer or a service provider before the

Magistrate and the Magistrate may take cognizance of an

offence under the D.V. Act on the basis of such report. That

in the present case, the aggrieved person had only filed an

application alleging domestic violence and since the same

was not accompanied by a report, the conditions of Section

12 (1) of the D.V. Act were not satisfied.

ii) That in order to establish that the respondents had

committed violence as contemplated under the D.V. Act, it

is required that the aggrieved person was sharing a

household with the respondents and there was a domestic

relationship between the parties. That the aggrieved person

was residing separately from the respondents from the day

of her marriage. That there was no domestic relationship

between the aggrieved person and the respondents,

therefore, no relief could be granted under the provisions of

the D.V. Act.

iii) That it could not be accepted that all articles of Stridhana

which were purchased in Roorkee as per the bills presented

in this regard, were delivered to the respondents in

Jhabreda.

The aggrieved appellant has approached this Court

challenging the judgments of the First Appellate Court and the

High Court.

Submissions:

15. We have heard Shri Gaurav Agrawal, learned amicus curiae

on behalf of the appellant-aggrieved person and Shri K.K.

Srivastava, learned counsel appearing on behalf of the

respondent. We have perused the material on record.

16. The submissions of Shri Gaurav Agrawal, learned amicus

curiae, are as under:

(i) At the outset, he contended that the High Court and the

First Appellate Court had erred in setting aside the

judgment of the Court of the Special Judicial Magistrate- I,

Dehradun, dated 12th May, 2011 on the primary ground that

aggrieved person was not sharing a household with the

respondents and there was no domestic relationship

between the parties and therefore, no relief could be granted

under the provisions of the D.V. Act. Elaborating on the said

contention, learned amicus curiae for the appellantaggrieved person referred to Sections 2 (f) and 2 (s) of the

D.V. Act to contend that an aggrieved person has to be in a

‘domestic relationship’ as defined under the D.V. Act in

order to attract the provisions of the D.V. Act. If such a

person is living, or has at any point of time lived together in

a ‘shared household’ with the persons against whom

allegations of domestic violence have been made, the

provisions of the D.V. Act would apply. That in the present

case, the aggrieved person, had, following the death of her

husband on 15th July, 2005, resided in the family home of

the respondents at Ulheda and resided there for a period of

thirteen days. That such residence could not continue owing

to the conduct of the respondents who subjected the

aggrieved person to mental abuse, causing her to leave the

shared household. That attempts made by the aggrieved

person to re-enter the shared household were obstructed by

the respondents. Having regard to the short span of her

marital life owing to the death of her husband and the fact

that she was denied entry and residence at the shared

household following her husband’s death, the length of the

period during which household was shared by the parties,

ought not be a consideration having the effect of denying the

protection of the D.V. Act to the aggrieved person.

(ii) It was next contended that the death of the aggrieved

person’s husband would not result in cessation of the

domestic relationship. That the appellant-aggrieved person

would continue to be related to the respondents by virtue of

her marriage. That the only factor disabling the aggrieved

person from continuing in a domestic relationship with the

respondents was the conduct of the respondents.

Nevertheless, she would be eligible to claim protection under

the D.V. Act because the definition of ‘domestic relationship’

as provided under Section 2 (s) of the D.V. Act which

includes not only a relationship between two people who

presently live together in a shared household, but also

extends to persons who have, at any point of time lived

together in a shared household. That the short period,

following the death of her husband, during which the

aggrieved person shared a household with the respondents

would qualify as a period during which the aggrieved person

and the respondents were in a ‘domestic relationship’.

(iii) It was submitted that it is not mandatory for the aggrieved

person to reside, at the point of time when commission of

violence, with those persons against whom the allegations

of violence have been levelled. In this context, reference was

made to the decision of this Court in Satish Chander

Ahuja vs. Sneha Ahuja – [(2021) 1 SCC 414] wherein the

phrase ‘lives or at any stage has lived’, as appearing in

Section 2 (s) of the D.V. Act was interpreted to mean such

household which the aggrieved person shared with the

respondents, at the time of filing the application under the

D.V. Act or a household which the aggrieved person had

been excluded from in the recent past. In light of the said

decision, it was urged that it is not necessary that the

respondents must have been living with the aggrieved

person at the time when the alleged acts of domestic

violence were perpetuated as there is no statutory

requirement to this effect. That subject to the caveat that an

aggrieved person, has, at some point, shared a household

with the persons who have allegedly committed acts of

domestic violence, then any act of domestic violence

committed by such persons during the period in which the

parties were living in the shared household, or even

subsequent to such period, would entitle the aggrieved

person to approach a competent Court under Section 12 of

the D.V. Act.

(iv) It was urged that the provisions of the D.V. Act must be

interpreted in a manner, so as to, ensure that the protection

granted to women under the D.V. Act is made available to

them in the widest amplitude. That restricting the scope of

domestic violence cases, only to matters wherein domestic

violence was committed against the aggrieved person, while

she was residing at the shared household, would not

sufficiently achieve the objects of the enactment.

(v) Learned amicus curiae, Shri Gaurav Agrawal, next

contended that the High Court had erred in holding that a

Domestic Incident Report is required to be mandatorily filed

by a Protection Officer before the Magistrate and it is only

on the basis of such report that the Magistrate may take

cognizance of the commission of domestic violence. Learned

amicus curiae for the appellant-aggrieved person referred to

Rule 5 of the Protection of Women from Domestic Violence

Rules, 2006 (for short, the ‘D.V. Rules’) which requires a

Protection Officer to prepare a Domestic Incident Report on

receiving a complaint of domestic violence and submit the

same to the Magistrate and forward copies of the Report to

a police officer in charge of the police station having

jurisdiction over the area were the alleged acts of domestic

violence have taken place, and to the service providers in

the area. Having regard to the said Rule, it was contended

that the requirement to prepare a Domestic Incident Report

arises only in cases where a complaint has been made by an

aggrieved person, to a Protection Officer. That a Magistrate

who entertains an application submitted under Section 12

of the D.V. Act, is not required by any statutory provision,

to call for a Domestic Incident Report. That an application

under Section 12, may be disposed of even without requiring

a Domestic Incident Report to be submitted. That the only

requirement of Section 12, is that, in the event that a

complaint is made to a Protection Officer and such officer

has submitted a report, the Magistrate shall consider the

same. That in cases where a complaint is not made by a

Protection Officer, there arises no reason to specifically call

for and consider a Domestic Incident Report.

(vi) In this context, reference was made to Section 12 of the D.V.

Act which enables an aggrieved person or a Protection

Officer to make an application before the Magistrate seeking

reliefs under the D.V. Act. It was submitted that in cases

where an aggrieved person independently makes an

application before the Magistrate, there would be no

requirement on the part of the Magistrate to consider or call

for a Domestic Incident Report. However, in cases where the

application has been made by a Protection Officer, the same

shall be mandatorily accompanied by a Domestic Incident

Report and when such report is submitted, the Magistrate

is required to consider the same.

(vii) It was submitted that the statutory intention could not be

to the effect that the Magistrate shall not entertain

proceedings or grant relief under Sections 18 to 20 and

Section 22 of the D.V. Act in the absence of the Domestic

Incident Report. That such an interpretation would defeat

the purposes of the D.V. Act as it would act as a bar against

the Magistrate to pass orders in the absence of the report.

(viii) It was contended that the High Court and the First Appellate

Court had failed to view the matter in the true and correct

perspective, having regard to the purpose of enactment of

the D.V. Act. In the above backdrop, it was prayed that the

judgments of the High Court and the First Appellate Court

may be set aside and the judgment of the Trial Court may

be restored.

17. Per contra, learned counsel for the respondent supported the

impugned judgments of the High Court and the First Appellate

Court and contended that the said judgments are justified and

hence, do not call for interference by this Court by submitting as

under :

(i) It was denied that the aggrieved person was in a domestic

relationship with the respondents. It was submitted that the

aggrieved person, following her marriage with Kuldeep

Tyagi, was residing with him in Roorkee District, Haridwar

and not with the respondents, in Jhabreda. That her place

of residence, had been recorded as Roorkee, in the

application filed under the D.V. Act before the Magistrate,

as well as in the application submitted before the revenue

authorities for mutation of her name in the revenue records

pertaining to the property belonging to her deceased

husband. That even following the death of Kuldeep Tyagi,

the aggrieved person did not reside with the respondents.

That the aggrieved person was working as a teacher and

there was no evidence led to establish that she had taken

leave from her job and resided in Jhabreda for thirteen days

following the death of her husband.

It was contended that in view of the said facts, it could

not be held that a ‘domestic relationship’ subsisted between

the parties, on the basis of which relief could be claimed

under the D.V. Act. That based on the very nomenclature of

the D.V. Act, any violence alleged under the D.V. Act must

always be in relation to a ‘domestic relationship’ and

therefore, subsistence of a domestic relationship would be a

precondition to invoke Section 12 of the D.V. Act and grant

reliefs contemplated under Section 18 to 20 and Section 22

of the D.V. Act.

(ii) It was submitted that the facts, as narrated by the aggrieved

person in the application made before the Magistrate are

inaccurate and provide a fabricated version of events.

(iii) It was next contended that the aggrieved person had failed

to prove that her family had delivered possession of articles

of Stridhana to the respondents. That the receipts of the

articles purchased, would show that the articles were

purchased in Roorkee and therefore, it would be rather

improbable that the same were delivered to the respondents

at their residence in Jhabreda. It was therefore urged that

no assumption could be made that the Stridhana stood in

the custody of the in-laws of the aggrieved person.

(iv) It was further urged that in the absence of a Domestic

Incident Report, the Magistrate could not have taken

cognizance of the matter. That Section 12 (1) casts a

mandatory duty on the Magistrate to consider the Domestic

Incident Report submitted under the D.V. Act for initiation

of proceedings, and it is only after consideration of the same

that the substantive provisions of the Sections 18 to 20 and

Section 22 of the D.V. Act may be applied to extend benefit

of the same to an aggrieved person. In support of this

contention, Shri K.K. Srivastava referred to the language of

Section 12 (1) to contend that the phrase used in the proviso

is ‘shall take into consideration any Domestic Incident Report’

thereby suggesting that the requirement to consider a

Domestic Incident Report is a mandatory one, irrespective

of whether or not a complainant was made before the

Protection Officer prior to filing an application before the

Magistrate. That non-consideration of the Domestic Incident

Report would strike at the very root of the matter and such

irregularity would render the decision of the Magistrate, a

nullity.

(v) It was lastly submitted that proceedings under the D.V. Act

were ill-motivated, misconceived and were initiated with the

sole intention to harass the respondents and more

specifically, respondent no. 1, being the mother-in-law of

the aggrieved person, aged over 80 years. That the High

Court and First Appellate Court rightly set aside the

decision of the Magistrate and held that no relief could be

granted to the aggrieved person under the D.V. Act. That the

judgments of the High Court and First Appellate Court are

based on a true and correct appreciation of the law, as

applicable to the facts of the present case and the same may

not be interfered with by this Court.

18. Learned counsel for the respective parties have relied upon

certain judgments of this Court and various High Courts in

support of their submissions. The same shall be referred to later.

Points for Consideration:

19. The submissions of the learned amicus curiae /counsel for

the respective sides were on the following points for consideration

which were raised vide order dated 11th February, 2022:

“(i) Whether the consideration of Domestic Incident

Report is mandatory before initiating the proceedings

under D.V. Act, in order to invoke substantive

provisions of Sections 18 to 20 and 22 of the said Act?

(ii) Whether it is mandatory for the aggrieved person to

reside with those persons against whom the allegations

have been levelled at the point of commission of

violence?

(iii) Whether there should be a subsisting domestic

relationship between the aggrieved person and the

person against whom the relief is claimed?”

Legal Framework:

20. For an easy and immediate reference, the following

provisions of the Protection of Women from D.V. Act are extracted

as under:

“2. Definitions.—In this Act, unless the context

otherwise requires,—

(a) ‘aggrieved person’ means any woman who

is, or has been, in a domestic relationship with

the respondent and who alleges to have been

subjected to any act of domestic violence by the

respondent;

x x x

(e) ‘domestic incident report’ means a report made

in the prescribed form on receipt of a complaint

of domestic violence from an aggrieved person;

(f) ‘domestic relationship’ means a relationship

between two persons who live or have, at any

point of time, lived together in a shared

household, when they are related by

consanguinity, marriage, or through a

relationship in the nature of marriage, adoption

or are family members living together as a joint

family;

x x x

(s) ‘shared household’ means a household where

the person aggrieved lives or at any stage has

lived in a domestic relationship either singly or

along with the respondent and includes such a

house hold whether owned or tenanted either

jointly by the aggrieved person and the

respondent, or owned or tenanted by either of

them in respect of which either the aggrieved

person or the respondent or both jointly or singly

have any right, title, interest or equity and

includes such a household which may belong to

the joint family of which the respondent is a

member, irrespective of whether the respondent

or the aggrieved person has any right, title or

interest in the shared household.”

“3. Definition of domestic violence.—For the

purposes of this Act, any act, omission or

commission or conduct of the respondent shall

constitute domestic violence in case it—

(a) harms or injures or endangers the health,

safety, life, limb or well-being, whether mental or

physical, of the aggrieved person or tends to do so

and includes causing physical abuse, sexual

abuse, verbal and emotional abuse and economic

abuse; or

(b) harasses, harms, injures or endangers the

aggrieved person with a view to coerce her or any

other person related to her to meet any unlawful

demand for any dowry or other property or

valuable security; or

person or any person related to her by any

conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether

physical or mental, to the aggrieved person.

Explanation I.—For the purposes of this

section,—

(i) ‘physical abuse’ means any act or conduct

which is of such a nature as to cause bodily pain,

harm, or danger to life, limb, or health or impair

the health or development of the aggrieved person

and includes assault, criminal intimidation and

criminal force;

(ii) ‘sexual abuse’ includes any conduct of a

sexual nature that abuses, humiliates, degrades

or otherwise violates the dignity of woman;

(iii) ‘verbal and emotional abuse’ includes-

(a) insults, ridicule, humiliation, name calling

and insults or ridicule specially with regard to not

having a child or a male child; and

(b) repeated threats to cause physical pain to any

person in whom the aggrieved person is

interested;

(iv) ‘economic abuse’ includes—

(a) deprivation of all or any economic or financial

resources to which the aggrieved person is

entitled under any law or custom whether

payable under an order of a court or otherwise or

which the aggrieved person requires out of

necessity including, but not limited to, house

hold necessities for the aggrieved person and her

children, if any, Stridhana, property, jointly or

separately owned by the aggrieved person,

payment of rental related to the shared house

hold and maintenance;

(b) disposal of household effects, any alienation of

assets whether movable or immovable, valuables,

shares, securities, bonds and the like or other

property in which the aggrieved person has an

interest or is entitled to use by virtue of the

domestic relationship or which may be

reasonably required by the aggrieved person or

her children or her Stridhana or any other

property jointly or separately held by the

aggrieved person; and

to resources or facilities which the aggrieved

person is entitled to use or enjoy by virtue of the

domestic relationship including access to the

shared household.

Explanation II.—For the purpose of determining

whether any act, omission, commission or

conduct of the respondent constitutes ‘domestic

violence’ under this section, the overall facts and

circumstances of the case shall be taken into

consideration.”

x x x

“12. Application to Magistrate.—(1) 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 this Act:

Provided that before passing any order on such

application, the Magistrate shall take into

consideration any Domestic Incident Report

received by him from the Protection Officer or the

service provider.

(2) The relief sought for under Sub-Section (1)

may include a relief for issuance of an order for

payment of compensation or damages without

prejudice to the right of such person to institute

a suit for compensation or damages for the

injuries caused by the acts of domestic violence

committed by the respondent:

Provided that where a decree for any amount as

compensation or damages has been passed by

any court in favour of the aggrieved person, the

amount, if any, paid or payable in pursuance of

the order made by the Magistrate under this Act

shall be set off against the amount payable under

such decree and the decree shall,

notwithstanding anything contained in the Code

of Civil Procedure, 1908 (5 of 1908), or any other

law for the time being in force, be executable for

the balance amount, if any, left after such set off.

(3) Every application under Sub-Section (1) shall

be in such form and contain such particulars as

may be prescribed or as nearly as possible

thereto.

(4) The Magistrate shall fix the first date of

hearing, which shall not ordinarily be beyond

three days from the date of receipt of the

application by the court.

(5) The Magistrate shall Endeavour to dispose of

every application made under Sub-Section (1)

within a period of sixty days from the date of its

first hearing.”

x x x

“17. Right to reside in a shared household.—

(1) Notwithstanding anything contained in any

other law for the time being in force, every woman

in a domestic relationship shall have the right to

reside in the shared household, whether or not

she has any right, title or beneficial interest in the

same.

(2) The aggrieved person shall not be evicted or

excluded from the shared household or any part

of it by the respondent save in accordance with

the procedure established by law.”

x x x

“23. Power to grant interim and ex parte

orders.—(1) In any proceeding before him under

this Act, the Magistrate may pass such interim

order as he deems just and proper.

(2) If the Magistrate is satisfied that an

application prima facie discloses that the

respondent is committing, or has committed an

act of domestic violence or that there is a

likelihood that the respondent may commit an act

of domestic violence, he may grant an ex parte

order on the basis of the affidavit in such form, as

may be prescribed, of the aggrieved person under

section18, section 19, section 20, section 21 or,

as the case may be, section 22 against the

respondent.”

21. Before proceeding further, it would be useful to refer to the

following relevant judgments of this Court wherein this Court has

interpreted various provisions of the D.V. Act :

a) In Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and

Another – [(2014) 10 SCC 736], this Court while

interpreting the definition of aggrieved person under Section

2(a) of the D.V. Act held that apart from the woman who is

in a domestic relationship, any woman who has been in a

domestic relationship with the respondent, if alleged to have

been subjected to any act of domestic violence by the

respondent comes within the meaning of aggrieved person.

Further, Section 2(f) of the D.V. Act states that a person

aggrieved (widow herein) who, at any point of time has lived

together with the husband in a shared household is covered

by the meaning of domestic relationship. Also, Section 2(s)

of the D.V. Act states that if the person aggrieved at any

stage has lived in a domestic relationship with the

respondent in a house, can claim a right in a shared

household.

After analysing the relevant provisions of the D.V. Act,

this Court while referring to V.D. Bhanot vs. Savita

Bhanot – [(2012) 3 SCC 183], held that the conduct of the

parties even prior to coming into force of the D.V. Act could

be taken into consideration while passing an order under

Sections 18, 19 and 20 thereof. The wife who had shared a

household in the past but was no longer residing with her

husband can file a petition under section 12 if subjected to

domestic violence. It was further observed that where an act

of domestic violence is once committed, then a subsequent

decree of divorce will not absolve the liability of the

respondent from the offence committed or to deny the

benefit to which the aggrieved person is entitled to.

b) In the case of Krishna Bhattacharjee vs. Sarathi

Choudhury and Another - [(2016) 2 SCC 705], this Court

held that a claim for recovery of Stridhana, two years after a

decree of judicial separation is maintainable. The Court held

that judicial separation does not change the status of a wife

as an aggrieved person under Section 2(a) read with Section

12 of the D.V. Act and does not end the domestic

relationship under Section 2(f) of the D.V. Act. It was further

held that a judicial separation was a mere suspension of

husband-wife relationship and not a complete severance of

relationship as in the case of a divorce. Moreover, an

application filed under section 12 of the D.V. Act by the wife

is not barred by any limitation.

In the said case, this Court referred to Saraswathy

vs. Babu – [(2014) 3 SCC 712].

Further, Dipak Misra J. (as His Lordship then was)

while speaking for the Two-Judge Bench held that the

definition of domestic relationship under Section 2 (f) of the

D.V. Act is very wide and protection under the said provision

would be given to a wife even if she is judicially separated,

by observing thus :

“18. The core issue that is requisite to be

addressed is whether the Appellant has ceased to

be an ‘aggrieved person’ because of the decree of

judicial separation. Once the decree of divorce is

passed, the status of the parties becomes

different, but that is not so when there is a decree

for judicial separation. A three-Judge Bench in

Jeet Singh and Ors. v. State of U.P. and Ors. (1993)

1 SCC 325 though in a different context, adverted

to the concept of judicial separation and ruled

that the judicial separation creates rights and

obligations. A decree or an order for judicial

separation permits the parties to live apart. There

would be no obligation for either party to cohabit

with the other. Mutual rights and obligations

arising out of a marriage are suspended. The

decree however, does not sever or dissolve the

marriage. It affords an opportunity for

reconciliation and adjustment. Though judicial

separation after a certain period may become a

ground for divorce, it is not necessary and the

parties are not bound to have recourse to that

remedy and the parties can live keeping their

status as wife and husband till their lifetime.”

While referring to the case of Rashmi Kumar vs.

Mahesh Kumar Bhada – [(1997) 2 SCC 397], this Court

held that Stridhana property is the exclusive property of the

wife on proof that she entrusted the property or dominion

over the Stridhana property to her husband or any other

member of the family. There is no need to establish further

any special agreement to prove that the property was given

to the husband or other member of the family.

While considering the issue of limitation and/or

‘continuing offence’/ ‘continuing cause of action’, this Court

held:

“32. Regard being had to the aforesaid statement

of law, we have to see whether retention of

Stridhana by the husband or any other family

members is a continuing offence or not. There can

be no dispute that wife can file a suit for

realization of the Stridhana but it does not debar

her to lodge a criminal complaint for criminal

breach of trust………. The concept of ‘continuing

offence’ gets attracted from the date of deprivation

of Stridhana, for neither the husband nor any

other family members can have any right over the

Stridhana and they remain the custodians. For

the purpose of the 2005 Act, she can submit an

application to the Protection Officer for one or

more of the reliefs under the 2005 Act.”

c) We could also allude to the exposition of this Court in Ajay

Kumar vs. Lata alias Sharuti and Others – [(2019) 15

SCC 352], wherein the husband of the respondent therein

had died, and maintenance was claimed from the brother of

the deceased husband. The Court held that at a prima facie

stage, a case for grant of maintenance was made out since

the respondent and her deceased husband resided in the

same house and the appellant therein (brother of deceased

person) also resided in the same household.

d) Further in Satish Chander Ahuja vs. Sneha Ahuja –

[(2021) 1 SCC 414], a Three-Judge Bench of this Court,

wherein one of us (Shah, J.) was a member, considered the

expressions ‘lives or have at any point of time lived’

appearing in Section 2 (s) of the D.V. Act. This Court while

considering the correctness of the law laid down in S.R.

Batra vs. Taruna Batra – [(2007) 3 SCC 169], concluded

that the said case had not correctly interpreted Section 2(s)

of the D.V. Act and that the said judgment does not lay down

a correct law and observed as under :

“66. ……….The expression ‘at any stage has lived’

occurs in Section 2(s) after the words ‘where the

person aggrieved lives’. The use of the expression

‘at any stage has lived’ immediately after words

‘person aggrieved lives’ has been used for object

different to what has been apprehended by this

Court in paragraph 26. The expression ‘at any

stage has lived’ 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 use of the expression ‘at any stage

has lived’ is for the above purpose and not with

the object that wherever the aggrieved person has

lived with the relatives of husband, all such

houses shall become shared household, which is

not the legislative intent. The shared household

is contemplated to be the household, which is a

dwelling place of aggrieved person in present

time………………

67. ……………. The entire Scheme of the Act is to

provide immediate relief to the aggrieved person

with respect to the shared household where the

aggrieved person lives or has lived. As observed

above, the use of the expression ‘at any stage has

lived’ was only with intent of not denying the

protection to aggrieved person merely on the

ground that aggrieved person is not living as on

the date of the application or as on the date when

Magistrate concerned passes an order under

Section 19. The apprehension expressed by this

Court in paragraph 26 in S.R. Batra v. Taruna

Batra (supra), thus, was not true apprehension

and it is correct that in event such interpretation

is accepted, it will lead to chaos and that was

never the legislative intent. We, thus, are of the

considered opinion that 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.

68. 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. As noted

above, Act 2005 was enacted to give a higher

right in favour of woman. The Act, 2005 has been

enacted to provide for more effective protection

of the rights of the woman who are victims of

violence of any kind occurring within the family.

The Act has to be interpreted in a manner to

effectuate the very purpose and object of the Act.

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.

69. ………… The definition of shared household

as noticed in Section 2(s) does not indicate that

a shared household shall be one which belongs

to or taken on rent by the husband. We have

noticed the definition of ‘Respondent’ under the

Act. The Respondent in a proceeding under

Domestic Violence Act can be any relative of the

husband. In the 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.”

Analysis:

22. Section 12 of the D.V. Act states that 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. The proviso,

however, states that before passing any order on such an

application, the Magistrate shall take into consideration any

Domestic Incident Report received by him from the Protection

Officer or the service provider. The expression ‘aggrieved person’

as defined under Section 2(a) means any woman who is, or has

been, in a domestic relationship with the respondent and who

alleges to have been subjected to any act of domestic violence by

the respondent. Domestic relationship as defined in Section 2(f),

means a relationship between two persons who live or have, at

any point of time, lived together in a shared household, when they

are related by consanguinity, marriage, or through a relationship

in the nature of marriage, adoption or are family members living

together as a joint family. Domestic violence has the same

meaning as assigned to it in Section 3.

23. The expression ‘shared household’ in relation to the

definition of domestic relationship as per the definition in Section

2(s) means a household where the person aggrieved lives or at any

stage has lived in a domestic relationship either singly or along

with the respondent and includes such a household whether

owned or tenanted either jointly by the aggrieved person and the

respondent, or owned or tenanted by either of them in respect of

which either the aggrieved person or the respondent or both

jointly or singly have any right, title, interest or equity and

includes such a household which may belong to the joint family

of which the respondent is a member, irrespective of whether the

respondent or the aggrieved person has any right, title or interest

in the shared household. The definition of shared household is

thus an inclusive one.

24. Section 17 speaks of right to reside in a shared household

while Section 19 deals with residence orders which could be

passed by a Magistrate while disposing of an application under

Sub-Section (1) of Section 12, on being satisfied that domestic

violence has taken place in a shared household. Thus, while

Section 19 deals with residence orders, the right to reside in a

shared household is dealt with in Section 17 of the D.V. Act. SubSection (1) of Section 17, which begins with a non-obstante clause

states that notwithstanding anything contained in any other law

for the time being in force, every woman in a domestic relationship

shall have the right to reside in the shared household, whether or

not she has any right, title or beneficial interest in the same. SubSection (2) states that an aggrieved person shall not be evicted or

excluded from the shared household or any part of it by the

respondent save in accordance with the procedure established by

law.

25. While Section 19 deals with a multitude of directions or

orders which may be passed against the respondent vis-à-vis the

shared household in favour of an aggrieved person, Section 17

confers a right on every woman in a domestic relationship to

reside in the shared household irrespective of whether she has

any right, title or beneficial interest in the same. This right to

reside in a shared household which is conferred on every woman

in a domestic relationship is a vital and significant right. It is an

affirmation of the right of every woman in a domestic relationship

to reside in a shared household. Sub-Section (2) of Section 17

protects an aggrieved person from being evicted or excluded from

the shared household or any part of it by the respondent save in

accordance with the procedure established by law. The distinction

between Sub-Section (1) and Sub-Section (2) of Section 17 is also

to be noted. While Sub-Section (2) deals with an aggrieved person

which is defined in Section 2(a) of the D.V. Act in the context of

domestic violence, Sub-Section (1) of Section 17 is a right

conferred on every woman in a domestic relationship irrespective

of whether she is an aggrieved person or not. In other words, every

woman in a domestic relationship has a right to reside in the

shared household even in the absence of any act of domestic

violence by the respondent.

26. It is necessary to appreciate the importance and significance

of the right of every woman in a domestic relationship to reside in

a shared household. As already noted, the expression ‘shared

household’ is expansively defined in Section 2(s) of the D.V. Act

but the expression contained in Section 17 namely, ‘every woman

in a domestic relationship shall have the right to reside in the

shared household irrespective whether she has any right, title or

beneficial interest in same’, requires an expansive interpretation.

In this context, Harbhajan Singh vs. Press Council of India -

(AIR 2002 SC 1351) could be relied upon wherein, Cross on

“Statutory Interpretation” (Third Edition, 1995) has been relied

upon as follows:-

“Thus, an ‘ordinary meaning’ or ‘grammatical meaning’

does not imply that the Judge attributes a meaning to

the words of a statute independently of their context or

of the purpose of the statute, but rather that he adopts

a meaning which is appropriate in relation to the

immediately obvious and unresearched context and

purpose in and for which they are used.”

27. While the object and purpose of the D.V. Act is to protect a

woman from domestic violence, the salutary object of Sub-Section

(1) of Section 17 is to confer a right on every woman in a domestic

relationship to have the right to reside in a shared household.

Hence, the said provision commences with a non-obstante clause.

28. For a better understanding of the said right, it would also

be useful to relate it to the societal and familial context in India.

29. As already noted, a domestic relationship means a

relationship between two persons who live or have at any point of

time, lived together in a shared household. The relationship may

be by (i) consanguinity, (ii) marriage or, (iii) through a relationship

in the nature of a marriage, (iv) adoption or (v) are family members

living together as a joint family. The expression ‘domestic

relationship’ is a comprehensive one. Hence, every woman in a

domestic relationship in whatever manner the said relationship

may be founded as stated above has a right to reside in a shared

household, whether or not she has any right, title or beneficial

interest in the same. Thus, a daughter, sister, wife, mother,

grand-mother or great grand-mother, daughter-in-law, motherin-law or any woman having a relationship in the nature of

marriage, an adopted daughter or any member of joint family has

the right to reside in a shared household.

30. Further, though, the expression ‘shared household’ is

defined in the context of a household where the person aggrieved

lives or has lived in a domestic relationship either singly or along

with respondent, in the context of Sub-Section (1) of Section17,

the said expression cannot be restricted only to a household

where a person aggrieved resides or at any stage, resided in a

domestic relationship. In other words, a woman in a domestic

relationship who is not aggrieved, in the sense that who has not

been subjected to an act of domestic violence by the respondent,

has a right to reside in a shared household. Thus, a mother,

daughter, sister, wife, mother-in-law and daughter-in-law or such

other categories of women in a domestic relationship have the

right to reside in a shared household de hors a right, title or

beneficial interest in the same.

Therefore, the right of residence of the aforesaid categories

of women and such other categories of women in a domestic

relationship is guaranteed under Sub-Section (1) of Section 17

and she cannot be evicted, excluded or thrown out from such a

household even in the absence of there being any form of domestic

violence. By contrast, Sub-Section (2) of section 17 deals with a

narrower right in as much as an aggrieved person who is

inevitably a woman and who is subjected to domestic violence

shall not be evicted or excluded from the shared household or any

part of it by the respondent except in accordance with the

procedure established by law. Thus, the expression ‘right to reside

in a shared household’ has to be given an expansive

interpretation, in respect of the aforesaid categories of women

including a mother-in-law of a daughter-in-law and other

categories of women referred to above who have the right to reside

in a shared household.

31. Further, the expression ‘the right to reside in a shared

household’ cannot be restricted to actual residence. In other

words, even in the absence of actual residence in the shared

household, a woman in a domestic relationship can enforce her

right to reside therein. The aforesaid interpretation can be

explained by way of an illustration. If a woman gets married then

she acquires the right to reside in the household of her husband

which then becomes a shared household within the meaning of

the D.V. Act. In India, it is a societal norm for a woman, on her

marriage to reside with her husband, unless due to professional,

occupational or job commitments, or for other genuine reasons,

the husband and wife decide to reside at different locations. 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.

32. If a woman in a domestic relationship seeks to enforce her

right to reside in a shared household, irrespective of whether she

has resided therein at all or not, then the said right can be

enforced under Sub-Section (1) of Section 17 of the D.V. Act. If

her right to reside in a shared household is resisted or restrained

by the respondent(s) then she becomes an aggrieved person and

she cannot be evicted, if she has already been living in the shared

household or excluded from the same or any part of it if she is not

actually residing therein. In other words, the expression ‘right to

reside in the shared household’ is not restricted to only actual

residence, as, irrespective of actual residence, a woman in a

domestic relationship can enforce her right to reside in the shared

household. Thus, a woman cannot be excluded from the shared

household even if she has not actually resided therein that is why

the expression ‘shall not be evicted or excluded from the shared

household’ has been intentionally used in Sub-Section (2) of

Section 17. This means if a woman in a domestic relationship is

an aggrieved person and she is actually residing in the shared

household, she cannot be evicted except in accordance with the

procedure established by law. Similarly, a woman in a domestic

relationship who is an aggrieved person cannot be excluded from

her right to reside in the shared household except in accordance

with the procedure established by law. Therefore, 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.

33. In support of this interpretation, another example may be

noted. A woman on getting married, along with her husband may

proceed overseas on account of professional or job commitments.

Such a woman may not have had an opportunity of residing in

the shared household after her marriage. If, for any reason, such

a woman becomes an aggrieved person and is forced to return

from overseas then she has the right to reside in the shared

household of her husband irrespective of whether her husband

(respondent) or the aggrieved person (wife) has any right, title or

beneficial interest in the shared household. In such

circumstances, parents-in-law of the woman who has returned

from overseas and who is an aggrieved person cannot exclude her

from the shared household or any part of it except in accordance

with the procedure established by law.

Another situation is a case where, immediately after

marriage, the wife actually resided in the shared household while

her husband proceeded overseas. When such a woman is

subjected to domestic violence, she cannot be evicted from the

shared household except in accordance with the procedure

established by law.

34. There may also be cases where soon after marriage, the

husband goes to another city owing to a job commitment and his

wife remains in her parental home and nevertheless is a victim of

domestic violence. She has the right to remain in her parental

home as she would be in a domestic relationship by

consanguinity. Also in cases where a woman remains in her

parental home soon after marriage and is subjected to domestic

violence and is therefore an aggrieved person, she also has the

right to reside in the shared household of her husband which

could be the household of her in-laws. Further, if her husband

resides in another location then an aggrieved person has the right

to reside with her husband in the location in which he resides

which would then become the shared household or reside with his

parents, as the case may be, in a different location. There could

be a multitude and a variety of situations and circumstances in

which a woman in a domestic relationship can enforce her right

to reside in a shared household irrespective of whether she has

the right, title or beneficial interest in the same. Also, such a right

could be enforced by every woman in a domestic relationship

irrespective of whether she is an aggrieved person or not.

35. In the Indian societal context, the right of a woman to reside

in the shared household is of unique importance. The reasons for

the same are not far to see. In India, most women are not educated

nor are they earning; neither do they have financial independence

so as to live singly. She may be dependent for residence in a

domestic relationship not only for emotional support but for the

aforesaid reasons. The said relationship may be by consanguinity,

marriage or through a relationship in the nature of marriage,

adoption or is a part of or is living together in a joint family. A

majority of women in India do not have independent income or

financial capacity and are totally dependent vis-à-vis their

residence on their male or other female relations who may have a

domestic relationship with her.

36. In our view, the D.V. Act is a piece of Civil Code which is

applicable to every woman in India irrespective of her religious

affiliation and/or social background for a more effective protection

of her rights guaranteed under the Constitution and in order to

protect women victims of domestic violence occurring in a

domestic relationship. Therefore, the expression ‘joint family’

cannot mean as understood in Hindu Law. Thus, the expression

‘family members living together as a joint family’, means the

members living jointly as a family. In such an interpretation, even

a girl child/children who is/are cared for as foster children also

have a right to live in a shared household and are conferred with

the right under Sub-Section (1) of Section 17 of the D.V. Act.

When such a girl child or woman becomes an aggrieved person,

the protection of Sub-Section (2) of Section 17 comes into play.

37. In order to give an expansive interpretation to the expression

‘every woman in a domestic relationship shall have the right to

reside in shared household’, certain examples by way of

illustrations have been discussed above. However, those

illustrations are not exhaustive and there could be several

situations and circumstances and every woman in a domestic

relationship can enforce her right to reside in a shared household

irrespective of whether she has any right, title or beneficial

interest in the same and the said right could be enforced by any

woman under the said provision as an independent right in

addition to the orders that could be passed under Section 19 of

the D.V. Act; also an aggrieved woman who has the right to reside

in the shared household is protected by Sub-Section (2) of the

Section 17 of the D.V. Act.

38. In the case of Smt. Bharati Naik vs. Shri Ravi Ramnath

Halarnkar and Another – [2010 SCC Online Bom 243], the

High Court of Bombay at Goa held that the words ‘has been’ and

‘have lived’ appearing in the definition of ‘aggrieved person’ and

‘respondent’ in the D.V. Act are plain and clear. The Court held

that the aforesaid words take in their sweep even a past

relationship. The words have been purposefully used to show the

past relationship or experience between the concerned parties. It

was further observed that the said D.V. Act has been enacted to

protect a woman from domestic violence and there cannot be any

fetter which can come in the way by interpreting the provisions in

a manner to mean that unless the domestic relationship

continues on the date of the application, the provisions of the D.V.

Act cannot be invoked.

39. In a judgment of the High Court of Madras in Vandhana vs.

T. Srikanth and Krishnamachari – [2007 SCC Online Mad

553], authored by Ramasubramanian, J., it was held that

Sections 2(f), 2(s) and 17 of the D.V. Act ought to be given the

widest interpretation possible. The Court, after observing various

instances and situations, held that many a woman may not even

enter into the matrimonial home immediately after marriage.

Therefore, it was concluded that a healthy and correct

interpretation to Sections 2(f) and 2(s) of the D.V. Act would be

that the words ‘live’ or ‘have at any point of time lived’ would

include in its purview ‘the right to live’ as interpreted above. It

would be useful to quote from the said judgment as under:-

“20. In a society like ours, there are very many

situations, in which a woman may not enter into her

matrimonial home immediately after marriage. A couple

leaving for honeymoon immediately after the marriage

and whose relationship gets strained even during

honeymoon, resulting in the wife returning to her

parental home straight away, may not stand the test of

the definition of domestic relationship under Section 2(f)

of the Act, if it is strictly construed. A woman in such a

case, may not live or at any point of time lived either

singly or together with the husband in the ‘shared

household’, despite a legally valid marriage followed

even by its consummation. It is not uncommon in our

society, for a woman in marriage to be sent to her

parental home even before consummation of marriage,

on account of certain traditional beliefs, say for

example, the intervention of the month of Aadi. If such

a woman is held to be not entitled to the benefit of

Section 17 of the Act, on account of a strict

interpretation to Section 2(f) of the Act that she did not

either live or at any point of time lived together in the

shared household, such a woman will be left remediless

despite a valid marriage. One can think of innumerable

instances of the same aforesaid nature, where the

woman might not live at the time of institution of the

proceedings or might not have lived together with the

husband even for a single day in the shared household.

A narrow interpretation to Sections 2(f), 2(s) and 17 of

the Act, would leave many a woman in distress, without

a remedy. Therefore, in my considered view a healthy

and correct interpretation to Sections 2(f) and 2(s) would

be that the words ‘live’ or ‘have at any point of time lived’

would include within their purview ‘the right to live’. In

other words, it is not necessary for a woman to establish

her physical act of living in the shared household, either

at the time of institution

of the proceedings or as a thing of the past. If there is a

relationship which has legal sanction, a woman in that

relationship gets a right to live in the shared household.

Therefore, she would be entitled to protection under

Section 17 of the Act, even if she did not live in the

shared household at the time of institution of the

proceedings or had never lived in the shared household

at any point of time in the past. Her right to protection

under Section 17 of the Act, co-exists with her right to live

in the shared household and it does not depend upon

whether she had marked her physical presence in the

shared household or not. A marriage which is valid and

subsisting on the relevant date, automatically confers a

right upon the wife to live in the shared household as an

equal partner in the joint venture of running a family. If

she has a right to live in the shared household, on

account of a valid and subsisting marriage, she is

definitely in ‘domestic relationship’ within the meaning

of Section 2(f) of the Act and her bodily presence or

absence from the shared household cannot belittle her

relationship as anything other than a domestic

relationship. Therefore, irrespective of the fact whether

the applicant/plaintiff in this case ever lived in the

house of the first respondent/first defendant after

7.2.2007 or not, her marriage to the first

respondent/first defendant on 7.2.2007 has conferred

a right upon her to live in the shared household.

Therefore, the question as to whether the

applicant/plaintiff ever lived in the shared household at

any point of time during the period from 7.2.2007 to

13.6.2007 or not, is of little significance.”

40. Bearing in mind the aforesaid discussion, question no. 2,

namely, ‘whether it is mandatory for the aggrieved person to reside

with those persons against whom the allegations have been

levelled’ is accordingly answered. It is held that it is not

mandatory for the aggrieved person to have actually lived or

resided with those persons against whom the allegations have

been levelled at the time of seeking relief. If a woman has the right

to reside in a shared household, she can accordingly enforce her

right under Section 17(1) of the D.V. Act. If a woman becomes an

aggrieved person or victim of domestic violence, she can seek relief

under the provisions of the D.V. Act including her right to live or

reside in the shared household under Section 17 read with

Section 19 of the D.V. Act.

41. Hence, the appellant herein had the right to live in a shared

household i.e., her matrimonial home and being a victim of

domestic violence could enforce her right to live or reside in the

shared household under the provisions of the D.V. Act and to seek

any other appropriate relief provided under the D.V. Act. This is

irrespective of whether she actually lived in the shared household.

42. This takes us to the next question raised for consideration

being ‘whether there should be a subsisting domestic relationship

between the aggrieved person and the person against whom the

relief is claimed’. As already noted, the expression ‘domestic

relationship’ is an expansive one and means the relationship

between two persons who live or have at any point of time lived

together in a shared household when they are related by (i)

consanguinity; (ii) marriage; (iii) through a relationship in the

nature of marriage; (iv) adoption; (v) are family members living

together as a joint family. The expressions ‘consanguinity’,

‘marriage’ and ‘adoption’ do not require elaboration as they are

well understood concepts both in common law as well as in the

respective personal law applicable to the parties. However, it is

relevant to note the expression ‘marriage’ also encompasses a

relationship in the nature of marriage. Secondly, the expression

‘adoption’ also takes into consideration family members living

together as a joint family. The aforesaid aspects require

elaboration.

It would be useful to refer to the following judgments of this

Court which have been taken into consideration relationship in

the nature of marriage :

(a) In D. Velu Samy v. D. Patchaiammal - [(2010) 10 SCC

469], this Court discussed the concept of “relationship in

the nature of marriage” in the context of the DV Act, and it

was held to be akin to a common law marriage. It was held

that the parties must have lived together in a ‘shared

household’ as defined in Section 2(s) of the DV Act. It was

opined that not all live-in relationships would amount to a

relationship in the nature of marriage to get the benefit of

D.V. Act, but only to such relationships, which qualify as

common law marriages. The requirements prescribed under

law in order for a relationship to be recognized as a common

law marriage were adumbrated as follows:

(i) The couple must hold themselves out to society

as being akin to spouses;

(ii) They must be of legal age to marry;

(iii) They must be otherwise qualified to enter into a

legal marriage;

(iv) They must have voluntarily cohabited and held

themselves out to the world as being akin to

spouses for a significant period of time.

(b) In Indra Sarma v. V.K.V. Sarma - [(2013) 15 SCC 755],

the question as to whether disruption of a live-in

relationship by failure to maintain a woman involved in

such a relationship amounted to “domestic violence” within

the meaning of Section 3 of the D.V. Act, was considered. It

was held that entering into a marriage either under the

Hindu Marriage Act or Special Marriage Act or any other

personal law applicable to the parties, is entering into a

relationship of public significance, since marriage, being a

social institution, many rights and liabilities flow out of that

relationship. Thus, the concept of marriage gives rise to civil

rights. This Court referred to the following guidelines, which

would determine whether a relationship between persons

was in the nature of marriage, to ultimately hold that the

DV Act had been enacted to cover a couple who had a

relationship in the nature of marriage, so as to provide a

remedy in Civil Law for protection of women in relationships,

which are in the nature of marriage as per paragraph 56

which is extracted as under :

“56. We may, on the basis of above discussion cull

out some guidelines for testing under what

circumstances, a live-in relationship will fall within

the expression “relationship in the nature of

marriage” under Section 2(f) of the D.V. Act. The

guidelines, of course, are not exhaustive, but will

definitely give some insight to such relationship :

56.1. Duration of period of relationship. – Section

2(f) of the D.V. Act has used the expression “at any

point of time”, which means a reasonable period of

time to maintain and continue a relationship which

may vary from case to case, depending upon the fact

situation.

56.2. Shared household.- The expression has been

defined under Section 2(s) of the D.V. Act and,

hence, needs no further elaboration.

56.3. Pooling of resources and financial

arrangements.- Supporting each other, or any one

of them, financially, sharing bank accounts,

acquiring immovable properties in joint names or in

the name of the woman, long-term investments in

business, shares in separate and joint names, so as

to have a long-standing relationship, may be a

guiding factor.

56.4. Domestic arrangements.- Entrusting the

responsibility, especially on the woman to run the

home, do the household activities like cleaning,

cooking, maintaining or upkeeping the house, etc.,

is an indication of a relationship in the nature of

marriage.

56.5. Sexual relationship.- Marriage-like

relationship refers to sexual relationship, not just for

pleasure, but for emotional and intimate

relationship, for procreation of children, so as to give

emotional support, companionship and also material

affection, caring, etc.

56.6. Children.- Having children is a strong

indication of a relationship in the nature of marriage.

The parties, therefore, intend to have a long-standing

relationship. Sharing the responsibility for bringing

up and supporting them is also a strong indication.

56.7. Socialisation in public.- Holding out to the

public and socialising with friends, relations and

others, as if they are husband and wife is a strong

circumstance to hold the relationship is in the

nature of marriage.

56.8. Intention and conduct of the parties.-

Common intention of the parties as to what their

relationship is to be and to involve, and as to their

respective roles and responsibilities, primarily

determines the nature of that relationship.”

43. Further, the expression ‘family members living together as

a joint family’ is not relatable only to relationship through

consanguinity, marriage or adoption. As observed above, the

expression ‘joint family’ does not mean a joint family as

understood in Hindu Law. It would mean persons living together

jointly as a family. It would include not only family members living

together when they are related by consanguinity, marriage or

adoption but also those persons who are living together or jointly

as a joint family such as foster children who live with other

members who are related by consanguinity, marriage or by

adoption. Therefore, when any woman is in a domestic

relationship as discussed above, is subjected to any act of

domestic violence and becomes an aggrieved person, she is

entitled to avail the remedies under the D.V. Act.

The further question is, whether, such a domestic

relationship should be subsisting between the aggrieved person

and the respondent against whom relief is claimed at the time of

claiming the relief. Before answering the same, it would be useful

to analyse the relationships noted in the D.V. Act as under:

(a) Any relationship by consanguinity is a lifelong relationship.

(b) Marriage is also a lifelong relationship unless a separation

by a decree of divorce is ordered by a competent authority

of law.

(i) If there is judicial separation ordered by a court of law,

that does not put an end to marriage and hence the

domestic relationship continues between the spouses even

though they may not be actually living together.

(ii) In the event of a divorce, marriage would be no longer

be subsisting, but if a woman (wife) is subjected to any

domestic violence either during marriage or even

subsequent to a divorce decree being passed but relatable

to the period of domestic relationship, the provisions of this

D.V. Act would come to the rescue of such a divorced woman

also.

(iii) That is why, the expression ‘domestic relationship’ has

been defined in an expansive manner to mean a relationship

between two persons who live or have at any point of time

lived together in a shared household when they are related

by marriage. We have also interpreted the word ‘live’ or

‘lived’ in the context of right to reside in Sub-Section (1) of

Section 17. The right to live in the shared household, even

when the domestic relationship may have been severed for

instance when a woman has been widowed owing to the

death of her husband, entitles her to have remedies under

the D.V. Act.

(iv) Therefore, even when the marital ties cease and there

is no subsisting domestic relationship between the

aggrieved woman and the respondent against whom relief is

claimed but the acts of domestic violence are related to the

period of domestic relationship, even in such

circumstances, the aggrieved woman who was subjected to

domestic violence has remedies under the D.V. Act.

during which period the woman suffered domestic violence

and is thus an aggrieved person can seek remedies

subsequent to the cessation of the relationship, the only

pre-condition is that the allegation of domestic violence

must relate to the period of the subsistence of relationship

in the nature of marriage.

(d) In the same way, when a girl child is fostered by family

members living together as a joint family as interpreted

above and lives or at any point of time has lived together in

a shared household or has the right to reside in the shared

household being a member living together as a joint family

and has been ousted in any way or has been a victim of

domestic violence has remedies under the D.V. Act.

In our view, 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.

44. Applying the aforesaid discussion to the facts of the case at

hand, the appellant was married to the respondent’s son Kuldeep

Tyagi on 18th June, 2005 and shortly thereafter, on 15th July,

2005, he died in a car accident. According to the appellant, the

respondent and her family members started harassing the

appellant and forced her to leave the matrimonial home. She

started working as a teacher at Dehradun in order to support

herself. That Stridhana was given at the time of her wedding and

that was used by the respondent and her family and the legal

notice dated 22nd November, 2006 demanding return of the

articles of Stridhana did not receive any response from the

respondent and her family. Even though as on the date of filing of

the application before the Magistrate under Section 12 of the D.V.

Act the appellant was not actually living in the shared household;

she nevertheless lived in a domestic relationship with her

husband and further had the right to reside in a shared household

as a daughter-in-law. The appellant-aggrieved person had to leave

the shared household on account of harassment and mental

torture given to her by respondent - mother-in-law and her family.

She had to leave the same and fend for herself. Thus, as an

aggrieved person, the appellant could not have been excluded

from the shared household as there was no valid reason to do so.

As the appellant had a right to reside in the shared household as

she was in a domestic relationship with her husband till he died

in the accident and had lived together with him therefore she also

had a right to reside in the shared household despite the death of

her husband in a road accident. The aggrieved person continued

to have a subsisting domestic relationship owing to her marriage

and she being the daughter-in-law had the right to reside in the

shared household.

45. This takes us to the first question which has been raised by

us namely, ‘whether the consideration of domestic incident report

is mandatory before initiating the proceedings under the D.V. Act in

order to invoke substantive provisions of Sections 18 to 20 and 22

of the said D.V. Act?’.

46. Clause (e) of Section 2 defines a Domestic Incident Report to

be a report made in the prescribed form on receipt of a complaint

of domestic violence from an aggrieved person. As noted from

Section 12, an aggrieved person or a Protection Officer or any

other person on behalf of the aggrieved person including the

service provider vide Sub-Section (1) of Section 10 of the D.V. Act,

may present an application to the Magistrate seeking one or more

reliefs under the D.V. Act. Proviso to Sub-Section (1) of Section 12

states that before passing any order on such an application, the

Magistrate shall take into consideration any Domestic Incident

Report received by him from the Protection Officer or the service

provider. Protection Officer as defined in Clause (n) of Section 2,

means an officer appointed by the State Government under SubSection (1) of Section 8. Sub-Section (2) of Section 8 states that

the Protection Officers shall, as far as possible, be women and

shall possess such qualifications and experience as may be

prescribed.

47. On a conjoint reading of the aforesaid provisions, it is clear

that an aggrieved person on her own 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 but the

proviso states that when a Domestic Incident Reported is received

by the Magistrate from the Protection Officer or the service

provider, in such a case, the same shall be taken into

consideration. Therefore, when an aggrieved person files an

application by herself or with the assistance of an advocate and

not with the assistance of the Protection Officer or a service

provider, in such a case, the role of the Protection Officer or a

service provider is not envisaged. Obviously, there would be no

Domestic Incident Report received by a Magistrate from the

Protection Officer or a service provider. Can it be said that in the

absence of a Domestic Incident Report, the Magistrate cannot

pass any order under the D.V. Act particularly when an

application is filed before the Magistrate by the aggrieved person

by herself or through a legal counsel? In our view, that is not the

intention of the proviso. Although, the expression ‘shall’ is used

in the proviso, it is restricted to only those cases where a

Protection Officer files any Domestic Incident Report or, as the

case may be, the service provider files such a report. When a

Domestic Incident Report is filed by a Protection Officer or a

service provider, in such a case the Magistrate has to take into

consideration the said report received by him. But if such a report

has not been filed on behalf of the aggrieved person then he is not

bound to consider any such report. Therefore, the expression

‘shall’ has to be read in the context of a Domestic Incident Report

received by a Magistrate from the Protection Officer or the service

provider as the case may be in which case, it is mandatory for the

Magistrate to consider the report. But, if no such report is received

by the Magistrate then the Magistrate is naturally not to consider

any such Domestic Incident Report before passing any order on

the application. As already noted, this could be in a case where

an aggrieved person herself approaches the Magistrate or the

services of an advocate is engaged to present an application

seeking one or more reliefs under the D.V. Act or for a valid

acceptable cause/reason a Domestic Incident Report has not been

filed by a Protection Officer or a service provider, as the case may

be.

48. We are, therefore, of the view that the High Court was not

right in holding that the application filed by the appellant herein

was not accompanied by a Domestic Incident Report and therefore

under the proviso to Sub-Section (1) of Section 12 of the D.V. Act,

the Magistrate had no authority to issue orders and directions in

favour of the appellant.

(i) Following are the judgments where the High Courts have

held that the Domestic Incident Report is not a sine qua non

for entertaining or deciding the application under Section 12

of the D.V. Act by the learned Magistrate.

a) In Nayanakumar vs. State of Karnataka – [ILR 2009

Kar 4295], the High Court of Karnataka (Kalaburagi

Bench) while dealing with Section 12 of the D.V. Act, held

that in case a Domestic Incident Report is received by the

Magistrate either from the Protection Officer or from the

Service Provider, then it becomes obligatory on the part

of the Magistrate to take note of the said Domestic

Incident Report before passing an order on the

application filed by the aggrieved party. It was further

clarified that the scheme of the D.V. Act makes it clear

that it is left to the choice of the aggrieved person to go

before the service provider or the Protection Officer or to

approach the Magistrate under Section 12 of the D.V.

Act.

b) In Abhiram Gogoi vs. Rashmi Rekha Gogoi – [(2011) 4

Gauhati Law Reports 276], the Gauhati High Court

held that Section 9(1)(b) of the D.V. Act makes it clear

that it is the duty of the Protection Officer to make a

Domestic Incident Report to the Magistrate upon receipt

of a complaint of domestic violence and forward copies

thereof to the police officer-in-charge of the police station

within the local limits of whose jurisdiction domestic

violence is alleged to have been committed and to the

service providers in that area.

c) In the case of Md. Basit vs. State of Assam and Others

– [(2012) 1 Gauhati Law Reports 747], the Gauhati

High Court differed with the view taken by the Madhya

Pradesh and Jharkhand High Courts and held that

Section 12 only contemplates as to who can file a

complaint under Section 12 of the D.V. Act, what relief

may be sought for, what the contents of the complaint

must be and how the complaint ought to be examined.

That if the complaint conforms to the said pre-conditions,

the same may be taken cognizance of. The High Court

noted that an application under Section 12(1) of the D.V.

Act may be filed either by an aggrieved person herself, or

by a Protection Officer. The Court went on to hold that

the provision does not require a Magistrate to specifically

call for a Domestic Incident Report. That it would only be

mandatory to consider such report, if the same had been

filed by the Protection Officer before the Magistrate. The

Gauhati High Court differed with the view taken by the

Madhya Pradesh and Jharkhand High Courts, to the

extent that the latter Courts observed that the Magistrate

would not be obligated to consider the Domestic Incident

Report even if the same was filed by the Protection

Officer.

d) Delving on the same issue, the High Court of Himachal

Pradesh in Rahul Soorma vs. State of Himachal

Pradesh – [(2012) SCC Online HP 2574], held that the

purpose of the D.V. Act is to give immediate relief to the

aggrieved person; therefore, it was wrong to suggest that

the Magistrate has no jurisdiction to take cognizance of

the application under Section 12 of the D.V. Act before

the receipt of a Domestic Incident Report by the

Protection Officer or the service provider.

e) Further, the High Court of Andhra Pradesh in A. Vidya

Sagar vs. State of Andhra Pradesh – [2014 SCC

Online Hyd 715], rejected the contention of the

petitioner therein that a domestic violence case can be

instituted and taken cognizance of on the basis of the

Domestic Incident Report only and not otherwise.

f) In its judgment in the case of Ravi Kumar Bajpai vs.

Renu Awasthi Bajpai – [ILR (2016) MP 302], the High

Court of Madhya Pradesh speaking through J.K.

Maheshwari, J., while discussing on the legislative intent

of the D.V. Act, held that if the legislative intent was to

call for a report from the Protection Officer as a precondition by the Magistrate to act upon a complaint of

aggrieved person, then it would have expressed that

intention emphasizing the words in the main section. The

High Court relied on various judgments pertaining to the

interpretation of a provision and proviso thereof.

g) The Division Bench of the High Court of Delhi in

Shambhu Prasad Singh vs. Manjari – [190 (2012) DLT

647] speaking through Ravindra Bhat, J. dealt with the

conflicting views of the two Single Judges on the question

whether a Magistrate can act straightaway on the

complaint made by an aggrieved person under the D.V.

Act. It was held that Section 12(1) of the D.V. Act does

not mandate that an application seeking relief under the

said D.V. Act must be accompanied with a Domestic

Incident Report or even that it should be moved by a

Protection Officer. So also, Rule 6 which stipulates the

form and manner of making an application to a

Magistrate does not require that the Domestic Incident

Report must accompany an application for relief under

Section 12.

It was further held that an obligation to submit a

Domestic Incident Report is imposed only on the

Protection Officers under Section 9 of the D.V. Act and

upon the service providers under Section 10 of the D.V.

Act and the learned Magistrate ‘shall’ take into

consideration, the Domestic Incident Report if it is filed

and not otherwise.

h) In Rakesh Choudhary vs. Vandana Choudhary –

[2019 SCC Online J&K 512], the High Court of Jammu

and Kashmir rejected the argument of the petitioner

therein that the report of the Protection Officer is sine qua

non for issuing process in a petition under Section 12 of

the D.V. Act. The Court held that the proviso to Section

12(1) of the D.V. Act only stipulates that the learned

Magistrate shall take into consideration the Domestic

Incident Report filed by the Protection Officer or the

Service Provider, but it does not stipulate that a report

‘shall be called for’ before any relief could be granted.

i) Further, the High Court of Bombay at Aurangabad

Bench, while dealing with a criminal writ petition in the

case of Vijay Maruti Gaikwad vs. Savita Vijay

Gaikward – [2018 (1) HLR 295], observed that if the

matter is before the Court and the wife preferred not to

approach the Protection Officer, the Court is not bound

to call the report of Protection Officer.

j) Lastly, in the case of Suraj Sharma vs. Bharti Sharma

– [2016 SCC Online Chh 1825], the High Court of

Chhattisgarh while expressing its view on Section 12 of

the D.V. Act also held that the Domestic Incident Report

shall not be conclusive material for making any order.

49. On the contrary, the following judgments of High Courts

have observed that the Proviso to Section 12 is mandatory and an

order passed by the learned Magistrate on an application under

Section 12 of the D.V. Act, without having a report of the

Protection Officer is liable to be quashed.

a) In Rama Singh vs. Maya Singh – [(2012) 4 MPLJ 612]

the High Court of Madhya Pradesh, in the facts and

circumstances of the said case, while quashing the petition

under Section 482 of the Code of Criminal Procedure, 1973,

held that the impugned order therein was passed without

taking into consideration, the report prepared by the

Protection Officer and proviso to Section 12 of the D.V. Act

was ignored. The Court went on to hold that the proviso

ordinarily carves out an exception from the general rule

enacted in the main provision. The Court emphasized that

the word ‘any’ in the proviso would mean one or more out of

several and includes all. Therefore, even an interlocutory

order directing issuance of notice would not be excluded

from the rigour of the proviso.

b) In the case of Ravi Dutta vs. Kiran Dutta and Another –

[208 (2014) DLT 61]

2, the High Court of Delhi reiterated

that non-consideration of Domestic Incident Report by the

Trial Court while deciding an application under Section 12

of the D.V. Act violates the mandate of the said provision

1 This judgment was explained in later decision of Ravi Kumar Bajpai (supra).

2 This judgment did not consider the earlier judgment in Shambhu Prasad Singh (supra) passed by the Delhi

High Court itself.

and therefore the order passed by the Trial Court was held

to be unsustainable.

On an analysis of the aforesaid judgments from various High

Courts, we find that the High Courts of Andhra Pradesh, Bombay,

Delhi, Gauhati, Himachal Pradesh, Jammu & Kashmir,

Karnataka, and Madhya Pradesh, are right in holding that if

Domestic Incident Report has been received by the Magistrate

either from the Protection Officer or the service provider then it

becomes obligatory on the part of the Magistrate to take note of

the said report before passing an order on the application filed by

the aggrieved party, but if no complaint or application of domestic

violence is received by the Magistrate from the Protection Officer

or the service provider, the question of considering such a report

does not arise at all. As already discussed, the D.V. Act does not

make it mandatory for an aggrieved person to make an application

before a Magistrate only through the Protection Officer or a service

provider. An aggrieved person can directly make an application

to the jurisdictional Magistrate by herself or by engaging the

services of an Advocate. In such a case, the filing of a Domestic

Incident Report by a Protection Officer or service provider does not

arise. In such circumstances, it cannot be held that the

Magistrate is not empowered to make any order interim or final,

under the provisions of the D.V. Act, granting reliefs to the

aggrieved persons. The Magistrate can take cognizance of the

complaint or application filed by the aggrieved person and issue

notice to the respondent under Section 12 of the D.V. Act even in

the absence of Domestic Incident Report under Rule 5. Thus, the

Magistrate has jurisdiction to take cognizance of the complaint

under Section 12 of the D.V. Act in the absence of a Domestic

Incident Report under Rule 5 when the complaint is not filed on

behalf of the aggrieved person through a Protection Officer or

service provider. Such a purposeful interpretation has to be given

bearing in mind the fact that the immediate relief would have to

be given to an aggrieved person and hence the proviso cannot be

interpreted in a manner which would be contrary to the object of

the D.V. Act which renders Section 12 bereft of its object and

purpose.

50. In this context, it would be useful to adumbrate on the

principles that govern the interpretation to be given to proviso in

the context of main provision.

(a) The normal function of a proviso is to except something out

of the provision or to qualify something enacted therein

which, but for the proviso, would be within the purview of

the provision. As a general rule, a proviso is added to an

enactment to qualify or create an exception to what is in the

enactment and ordinarily, a proviso is not interpreted as

stating a general rule. In other words, a proviso qualifies the

generality of the main enactment by providing an exception

and taking out as it were, from the main enactment, a

portion which, but for the proviso would fall within the main

provision. Further, a proviso cannot be construed as

nullifying the provision or as taking away completely a right

conferred by the enactment.

(b) In this regard, learned Author, Justice G.P. Singh, in

"Principles of Statutory Interpretation", 15th Edition, has

enunciated certain rules collated from judicial precedents.

Firstly, a proviso is not to be construed as excluding or

adding something by implication i.e., when on a fair

construction, the principal provision is clear, a proviso

cannot expand or limit it. Secondly, a proviso has to be

construed in relation to which it is appended i.e., normally,

a proviso does not travel beyond the provision to which it is

a proviso. A proviso carves out an exception to the main

provision to which it has been enacted as a proviso and to

no other. However, if a proviso in a statute does not form

part of a section but is itself enacted as a separate section,

then it becomes necessary to determine as to which section

the proviso is enacted as an exception or qualification.

Sometimes, a proviso is used as a guide to construction of

the main section. Thirdly, when there are two possible

construction of words to be found in the section, the proviso

could be looked into to interpret the main section. However,

when the main provision is clear, it cannot be watered down

by the proviso. Thus, where the main section is not clear,

the proviso can be looked into to ascertain the meaning and

scope of the main provision.

proviso should not be so construed as to make it redundant.

In certain cases, "the legislative device of the exclusion is

adopted only to exclude a part from the whole, which, but for

the exclusion, continues to be a part of it", and words of

exclusion are presumed to have some meaning and are not

readily recognized as mere surplusage. As a corollary, it is

stated that a proviso must be so construed that the main

enactment and the proviso should not become redundant or

otiose. This is particularly so, where the object of a proviso

sometimes is only by way of abundant caution, particularly

when the operative words of the enactment are abundantly

clear. In other words, the purpose of a proviso in such a case

is to remove any doubt. There are also instances where a

proviso is in the nature of an independent enactment and

not merely, an exception or qualifying what has been stated

before. In other words, if the substantive enactment is

worded in the form of a proviso, it would be an independent

legislative provision concerning different set of

circumstances than what is worded before or what is stated

before. Sometimes, a proviso is to make a distinction of

special cases from the general enactment and to provide it

specially.

(d) At this stage, the construction or interpretation of a proviso

could be discussed as gathered from various judgments of

this Court.

(i) In Ishverlal Thakorelal Almaula vs. Motibhai

Nagjibhai – [AIR 1966 SC 459], while dealing with the

Bombay Tenancy and Agricultural Lands Act, 1948, this

Court held, that a proper function of a proviso is to except

or qualify something enacted in the substantive clause,

which but for the proviso, would be within that clause.

(ii) In Kaviraj Pandit Durga Dutt Sharma vs. Navaratna

Pharmaceutical Laboratories – [AIR 1965 SC 980],

while considering the proviso to Section 6 of Trade Marks

Act, 1940, it was observed that it would not be a

reasonable construction for any statute, if a proviso

which in terms purports to create an exception and seeks

to confer certain special rights on a particular class of

cases included in it should be held to be otiose and to

have achieved nothing.

(iii) In Kedarnath Jute Manufacturing Co. Ltd. vs. The

Commercial Tax Officer and Others, [AIR 1966 SC

12], it was observed that "the effect of an excepting or

qualifying proviso, according to the ordinary rules of

construction, is to except out of the preceding portion of

the enactment or to qualify something enacted therein,

which, but for the proviso, would be within it". [See

"Craies" on Statute Law - 6th Edition - P. 217]. In this

case, the Court was considering Section 5(2) (a) (ii) of

Bengal Finance Sales Tax Act, 1941 and Rule 27-A of

Bengal Sales Tax Rules.

(iv) In Dattatraya Govind Mahajan and Others Vs. The

State of Maharashtra and another – [AIR 1977 SC

915], a Constitution Bench of the Apex Court, while

considering the amendment made to Maharashtra

Agricultural Lands (Ceiling on Holdings) Act, 1961, in

the context of Article 31B of the Constitution and the

second proviso thereto, reiterated what was stated in

Ishverlal's case, (supra).

(v) In S. Sundaram Pillai, etc, vs. V.R. Pattabiraman –

[AIR 1985 SC 582], while dealing with the scope of a

proviso and explanation to sub - section (2) of Section 10

of Tamil Nadu Buildings (Lease and Rent Control) Act,

1960, this Court held that a proviso may have three

separate functions. Normally, a proviso is meant to be an

exception to something within the main enactment or

qualifying some thing enacted therein which, but for the

proviso, would be within the purview of the enactment.

In other words, a proviso cannot be torn apart from the

main enactment, nor can it be used to nullify or set at

naught the real object of the main enactment.

Sometimes, a proviso may exceptionally have the effect of

a substantive enactment.

(e) After referring to several legal treatises and judgments, this

Court held in the above judgment as under:-

"43. We need not multiply authorities after

authorities on this point because the legal

position seems to be clearly and manifestly well

established. To sum up, a proviso may serve four

different purposes:

(1) qualifying or excepting certain provisions

from the main enactment;

(2) it may entirely change the very concept of

the intendment of the enactment by insisting on

certain mandatory conditions to be fulfilled in

order to make the enactment workable;

(3) it may be so embedded in the Act itself as

to become an integral part of the enactment and

thus acquire the tenor and colour of the

substantive enactment itself; and

(4) it may be used merely to act as an optional

addenda to the enactment with the sole object of

explaining the real intendment of the statutory

provision."

(f) The approach to the construction and interpretation of a

proviso is enunciated in the following cases.

(i) In M. Pentiah vs. Muddala Veeramallappa – [AIR

1961 SC 1107], it was observed that while interpreting

a section or a proviso, if the choice is between two

interpretations, the narrower of which would fail to

achieve the manifest purpose of the legislation, one

should avoid a construction which would reduce the

legislation to futility and should rather accept the bolder

construction based on the view that Parliament would

legislate only for the purpose of bringing about an

effective result.

(ii) In Superintendent & Remembrancer of Legal Affairs

to Govt. of West Bengal vs. Abani Maity - [AIR 1979

SC 1029], this Court observed that the statute is not to

be interpreted merely from the lexicographer's angle. The

Court must give effect to the will and in-built policy of

the Legislature as discernible from the object and

scheme of the enactment and the language employed

therein. The words in a statute often take their meaning

in the context of a statute as a whole. They are, therefore,

not to be construed in isolation.

51. In the instant case, 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. Hence, in our

view, the judgments of the Madhya Pradesh High Court in Rama

Singh vs. Maya Singh – [(2012) 4 MPLJ 612] and the Delhi High

Court in Ravi Dutta vs. Kiran Dutta and Another – [2018 (2014)

DLT 61], do not lay down the correct law and are hereby overruled

while we affirm all other judgments referred to supra which are in

consonance with the line of interpretation made above.

52. In view of the above discussion, the three questions raised

in this appeal are answered as under:

“(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?”

It is held that 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. It is clarified that 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.

“(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 held that 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.

“(iii) Whether there should be a subsisting domestic

relationship between the aggrieved person and the

person against whom the relief is claimed?”

It is held that 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.

53. Consequently, the judgment dated 23rd July, 2019 passed

by the High Court of Uttarakhand in Criminal Revision No. 186 of

2014 as well as the judgment dated 11th July, 2014 passed by the

Vth Additional Sessions Judge, Dehradun in Criminal Appeal No.

53 of 2011 are set aside and the order passed by the Special

Judicial Magistrate-I in Miscellaneous Case No. 78 of 2007,

Dehradun is affirmed.

54. The appeal is allowed in the aforesaid terms.

55. Parties to bear their respective costs.

56. Before parting with this case, we express our appreciation

to the valuable services rendered by Shri Gaurav Agarwal, learned

amicus curiae, who has painstakingly researched all the relevant

judgments on the questions raised in this case arising from

various High Courts and has made his submission schematically

with particular reference to the facts of the case and all relevant

provisions of the D.V. Act.

……….………………..J.

(M.R. Shah)

…………..…………….J.

(B.V. Nagarathna)

New Delhi;

12th May, 2022

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PRABHA TYAGI VS KAMLESH DEVI Supreme Court Case 2022

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