SC: Reliefs u/ss 18-21 of D.V. Act may also be sought in a civil court

The Hon’ble Supreme Court, on 15th October 2020, in the matter of Satish Chaander Ahuja v. Sneha Ahuja pronounced that any relief available under Sections 18, 19, 20, 21 and 22 of D.V. Act may also be sought in any legal proceedings, before a Civil Court.

Questions before the Hon’ble Supreme Court:

Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?

What is the meaning and extent of the expression “save in accordance with the procedure established by law” as occurring in Section 17(2) of Protection of Women from Domestic Violence Act, 2005 ?

What is the effect of orders passed under Section 19 of the Protection of Women from Domestic Violence Act, 2005 whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction?

Hon’ble Supreme Court’s observations:

The progress of any society depends on its ability to protect and promote the rights of its women. Guaranteeing equal rights and privileges to women by the Constitution of India had marked the step towards the transformation of the status of the women in this country. (Para 29)

The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime. This non-retaliation by women coupled with the absence of laws addressing women’s issues, ignorance of the existing laws enacted for women and societal attitude makes the women vulnerable. The reason why most cases of domestic violence are never reported is due to the social stigma of the society and the attitude of the women themselves, where women are expected to be subservient, not just to their male counterparts but also to the male’s relatives. (Para 30)

Till the year 2005, the remedies available to a victim of domestic violence were limited. The women either had to go to the civil court for a decree of divorce or initiate prosecution in the criminal court for the offence punishable under Section 498-A of the IPC. In both the proceedings, no emergency relief/reliefs is/are available to the victim. Also, the relationships outside the marriage were not recognized. This set of circumstances ensured that a majority of women preferred to suffer in silence, not out of choice but of compulsion. (Para 31)

The enactment of Protection of Women from Domestic Violence Act, 2005 is a milestone for protection of women in this country. The Statement of Objects and Reasons of the Protection of Women from Domestic Violence Bill, 2005 marks the objective which was sought to be achieved by the enactment. (Para 32)

The definition of shared household given under Section 2(s) of Protection of Women from Domestic Violence Act, 2005 beginning with expression “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……………. The section uses both the expressions “means and includes”. (Para 48)

Section 2(s), which uses both the expressions “means and includes” and looking to the context, we are of the view that the definition of shared household in Section 2(s) is an exhaustive definition. The first part of definition begins with expression “means” which is undoubtedly an exhaustive definition and second part of definition, which begins with word “includes” is explanatory of what was meant by the definition. (Para 53)

The use of both the expressions “means and includes” in Section 2(s) of Protection of Women from Domestic Violence Act, 2005 , thus, clearly indicate the legislative intent that the definition is exhaustive and shall cover only those which fall within the purview of definition and no other. (Para 54)

Now, reverting back to the definition of Section 2(s), the definition can be divided in two parts, first, which follows the word “means” and second which follows the word “includes”. The second part which follows “includes” can be further sub-divided in two parts. The first part reads “shared household means a household where the person aggrieved has lived or at any stage has lived in a domestic relationship either singly or along with the respondent”. Thus, first condition to be fulfilled for a shared household is that person aggrieved lives or at any stage has lived in a domestic relationship. The second part sub- divided in two parts is- (a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and (b)includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. In the above definition, two expressions, namely, “aggrieved person” and “respondent” have occurred. From the above definition, following is clear:- (i) it is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly; (ii) the household may belong to a 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; and (iii) the shared household may either be owned or tenanted by the respondent singly or jointly. (Para 55)

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. When we look into the different kinds of orders or reliefs, which can be granted on an application filed by aggrieved person, all orders contemplate providing protection to the women in reference to the premises in which aggrieved person is or was in possession. (Para 62)

Shared household referred to in Section 2(s) of Protection of Women from Domestic Violence Act, 2005 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. (Para 62)

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. (Para 63)

Section 2(s) read with Sections 17 and 19 of Protection of Women from Domestic Violence 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. (Para 63)

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. (Para 64)

The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household. (Para 64)

The right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. (Para 83)

The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share. (Para 84(i))

The judgment in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169 has not correctly inter- preted Section 2(s) of Act, 2005 and the judgment does not lay down a correct law. (Para 84(ii))

The suit was filed by the plaintiff claiming to be sole owner of the house on the ground that he has terminated the gratuitous licencse of the defendant. On the other hand, the defendant does not dispute that the house was recorded in the name of the plaintiff and in her application filed under the Domestic Violence Act, she stated that plaintiff is the owner of the suit property but in the written statement filed in the suit, she pleaded that house has been purchased by joint family funds. The Trial Court on the basis of admission made by the defendant in her application filed under Section 12 of the D.V. Act before the Metropolitan Magistrate that the plaintiff is owner of the house has decreed the suit under Section 12(6). The claim of the defendant that suit property is shared household and she has right to reside in the house ought to have been considered by the Trial Court and non-consideration of the claim/defence is nothing but defeating the right, which is protected by Protection of Women from Domestic Violence Act, 2005. (Para 96)

The power under Order XII Rule 6 is discretionary and cannot be claimed as a matter of right. (Para 98)

There are two conditions for a person to be treated to be respondent within the meaning of Section 2(q), i.e., (i) in a domestic relationship with the aggrieved person, and (ii) against whom the aggrieved person has sought any relief under Protection of Women from Domestic Violence Act, 2005. It is to be noticed that the expression “any adult male person” occurring in Section 2(q) came for consideration before this Court in Hiral P. Harsora and others Vs. Kusum Narottamdas Harsora and others, (2016) 10 SCC 165, where this Court has struck down the expression “adult male”. This Court held that “adult male person” restricting the meaning of respondent in Section 2(q) to only “adult male person” is not based on any intelligible differentia having rational nexus with object sought to be achieved. This Court struck down the word “adult male”. Hence, it is now permissible under definition of Section 2(q) to include females also. (Para 100)

Any relief available under Sections 18, 19, 20, 21 and 22 of Protection of Women from Domestic Violence Act, 2005 may also be sought in any legal proceedings, before a Civil Court. (Para 101)

It is true that no separate application or separate prayer has been made by the defendant in the suit for grant of any relief under Section 19 but in her pleadings she has resisted the claim of plaintiff on the ground that she has a right to reside in the suit property it being her shared household. Thus, the question whether the suit premises is shared household of the defendant and she has right in the shared household so as the decree before the Trial Court can be successfully resisted were required to be determined by the Trial Court. We are further of the view that when in the suit defendant has pleaded to resist the decree on the ground of her right of residence in the suit property it was for her to prove her claim in the suit both by pleadings and evidence. (Para 102)

One of the conditions to treat a person as a respondent is that “against whom the aggrieved person has sought any relief under the Act”. The defendant in her pleadings having claimed that she has right of residence in the suit property, she for successful resisting the suit has to plead and prove that she has been subjected to any act of domestic violence by the respondent, which is implicit in the definition of the aggrieved person itself as given in the Section 2(a) of the Protection of Women from Domestic Violence Act, 2005. (Para 103)

For granting any relief by the Civil Court under Section 19 it has to be proved that the respondent is committing or has committed an act of domestic violence on the aggrieved person. To treat a person as the “respondent” for purposes of Section 2(q) it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved person. (Para 103)

For the purposes of determination of right of defendant under Sections 17 and 19 read with Section 26 of the Protection of Women from Domestic Violence Act, 2005. in the suit in question the plaintiff can be treated as “respondent”, but for the grant of any relief to the defendant or for successful resisting the suit of the plaintiff necessary conditions for grant of relief as prescribed under the Protection of Women from Domestic Violence Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant. (Para 104)

Section 17 of the Protection of Women from Domestic Violence Act, 2005 has two sub-sections which engraft two independent rights. According to sub- section (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. This right has been expressly granted to every woman in domestic relationship to fulfill the purpose and objective of the Act. Although under the statute regulating personal law the woman has right to maintenance, every wife has right of maintenance which may include right of residence, the right recognized by sub-section (1) of Section 17 is new and higher right conferred on every woman. (Para 105)

The right is to be implemented by an order under Section 19, on an application filed under sub-section (1) of Section 12. Sub-section (2) of Section 17, however, contains an exception in the right granted by sub-section (2), i.e., “save in accordance with the procedure established by law”. Sub-section (2) of Section 17, thus, contemplates that aggrieved person can be evicted or excluded from the shared household in accordance with the procedure established by law. (Para 106)

The expression “save in accordance with the procedure established by law”, in Section 17(2) of the Protection of Women from Domestic Violence Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a Competent Court. We may further notice that in sub-section (2) the injunction is “shall not be evicted or excluded from the shared household save in accordance with procedure established by law”. Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household. One most common example for eviction and exclusion may be when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself. There may be cases where plaintiff can successfully prove before the Competent Court that the claim of plaintiff for eviction of respondent is accepted. We need not ponder for cases and circumstances where eviction or exclusion can be allowed or refused. It depends on facts of each case for which no further discussion is necessary in the facts of the present case. (Para 116)

In case, the shared household of a woman is a tenanted/allotted/licensed accommodation where tenancy/ allotment/license is in the name of husband, father-in-law or any other relative, the Protection of Women from Domestic Violence Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. The embargo under Section 17(2) of Protection of Women from Domestic Violence Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent”, i.e., one who is respondent within the meaning of Section 2(q) of Protection of Women from Domestic Violence Act, 2005. (Para 117)

When the wife has pleaded her right of residence in shared household relying on Sections 17 and 19 of the Protection of Women from Domestic Violence Act, 2005 and one of the rights which can be granted under Section 19 is right of alternate accommodation, the husband is a proper party. (Para 119)

Section 17(2) itself contemplates eviction or exclusion of aggrieved person from a shared household in accordance with the procedure established by law. The conclusion is inescapable that a proceeding in a competent court for eviction or exclusion is contemplated by the Statutory Scheme of Protection of Women from Domestic Violence Act, 2005. Thus, there is neither any express nor implied bar in initiation of civil proceedings in a Court of competent jurisdiction. Further, Section 26 also contemplate grant of relief of right of residence under Section 19 in any legal proceedings before a Civil Court or Family Court or Criminal Court affecting the aggrieved person. The proceedings might be initiated by aggrieved person or against the aggrieved person herself before or after the commencement of Protection of Women from Domestic Violence Act, 2005. Thus, initiation of the proceedings in Civil Court and relief available under Section 19 of the Act, 2005 is contemplated by the statutory scheme delineated by the Act, 2005. (Para 125)

The applicability of principle of res judicata is well known and are governed by provisions of Section 11 C.P.C., which principle also has been held to be applicable in other proceedings. There can be no applicability of principle of res judicata when orders of Criminal Courts are pitted against proceedings in Civil Court. (Para 126)

With regard to criminal proceedings Code of Criminal Procedure also contains provision that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence. The principle enumerated in Section 300 Cr.P.C. may be relevant with respect to two criminal proceedings against same accused, which might have no relevance in reference to one criminal proceeding and one civil proceeding. (Para 126)

The scheme of D.V. Act, 2005 does not contemplate that any judgment and order passed under Section 19 of the said Act prevents any court from taking cognizance of a suit or holding of trial; Section 41 of the Indian Evidence Act, 1872 deals with relevancy of certain judgments in probate, matrimonial, admirality and insolvency jurisdiction which are conclusive not only against party but against all the world. This Section enumerates four classes of judgments. A decree of Civil Court in exercise of matrimonial jurisdiction is also one of the judgments which had been held to be relevant under Section 41. The orders passed under Act, 2005 cannot be held to be orders or judgments passed in exercise of any matrimonial jurisdiction by the Court. The Act, 2005 is a special act on the subject of providing for effective protection of the rights of women who are victims of violence of any kind. (Para 129)

The proceedings under D.V. Act, 2005 are proceedings which are to be governed by Code of Criminal Procedure, 1973. (Para 130)

The procedure to be followed by the magistrate is provided under Section 28 of the D.V. Act and as per Section 28 of the D.V. Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Even sub-section (2) of Section 28 provides that the magistrate can lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23. However, for other proceedings, the procedure is to be followed as per the provisions of the Code of Criminal Procedure, 1973. The procedure to be followed under Section 125 shall be as per Section 126 of the Cr.P.C. which includes permitting the parties to lead evidence. Therefore, before passing any orders under the D.V. Act, the parties may be permitted to lead evidence. However, before any order is passed under Section 12, the magistrate shall take into consideration any domestic incident report received by him from the protection officer or the service provider. That does not mean that magistrate can pass orders solely relying upon the domestic incident report received by him from the protection officer or the service provider. Even as per Section 36 of the D.V. Act, the provisions of the D.V. Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force. Even the magistrate can also pass an interim order as per Section 23 of the D.V. Act. Considering Section 12(2) and Section 26(3), read with Section 25(2), even the Legislature envisaged the two independent proceedings, one before the magistrate under the D.V. Act and another proceeding other than the proceedings under the D.V. Act. (Para 132)

Even the Civil Court has to take into consideration the relief already granted by the Magistrate in the proceedings under the D.V. Act and vice versa. (Para 133)

However, at the same time, it is to be observed that in a case any relief available under Sections 18, 19, 20, 21 and 22 is sought by aggrieved person in any legal proceedings before a civil court, family court or a criminal court including the residence order, the aggrieved person has to satisfy by leading evidence that domestic violence has taken place and only on the basis of the evidence led on being satisfied that the domestic violence has taken place, the relief available under Section 19 can be granted as Section 19(1) specifically provides that while disposing of an application under sub-Section 1 of Section 12, the magistrate may, on being satisfied, that domestic violence has taken place, pass the residence order. (Para 134)

At this stage, it is also required to be noted that while passing the order of residence under Section 19, more particularly under sub-section 19(1)(b) as per the proviso to Section 19(1), no order under clause(b) shall be passed against any person who is a woman. (Para 135)

Therefore, on conjoint reading of Sections 12(2), 17, 19, 20, 22, 23, 25, 26 and 28 of the D.V. Act, it can safely be said that the proceedings under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section 26 of the D.V. Act are independent proceedings, like the proceedings under Section 125 of the Cr. P.C. for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/ family court for the reliefs under the Hindu Adoption and Maintenance Act. However, as observed hereinabove, the findings/orders passed by the one forum has to be considered by another forum. (Para 136)

In the plaint of suit giving rise to this appeal, the plaintiff has pleaded that the wife of the plaintiff has been subjected to various threat and violence in the hands of the defendant on several occasions. In event, the suit is filed by wife of the plaintiff against the defendant for permanent injection and also praying for reliefs under Section 19[except Section 19(1)(b)]. The suit be fully maintainable and the prayers in the suit can be covered by the reliefs as contemplated by Section 19 read with Section 26 of the Act, 2005. (Para 153)

The Civil Court in such suit can consider the issues and may grant relief if the plaintiff is able to prove her case. The order passed under D.V. Act whether interim or final shall be relevant and have to be given weight as one of evidence in the civil suit but the evidentiary value of such evidence is limited. The findings arrived therein by the magistrate are although not binding on the Civil Court but the order having passed under the Act, 2005, which is an special Act has to be given its due weight. (Para 154)

In event a judgment of criminal court is relevant as per Sections 40 to 43 of Evidence Act in civil proceedings, the judgment can very well be taken note of and there is no embargo on the civil court to place reliance upon it as a corroborative material. (Para 155)

There is no embargo in referring to or relying on an admissible evidence, be of a civil court or criminal court both in civil or criminal proceedings. (Para 156)

The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order in- terim or final passed in proceedings under D.V. Act, 2005. (Para 157(I))

The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evi- dence Act and can be referred to and looked into by the civil court. (Para 157(ii))

A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court. (Para 157(iii))

Copy of judgement: Judgement_15-Oct-2020

-Adv. Tushar Kaushik

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