VAISHALI ABHIMANYU JOSHI versus NANASAHEB GOPAL JOSHI
[2017] 5 S.C.R. 488, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
A 
B 
[2017] 5 S.C.R. 488 
VAISHALI ABHIMANYU JOSHI 
v. 
NANASAHEB GOPAL JOSHI 
(Civil Appeal No. 6448 of2017) 
MAY09,2017 
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.] 
Protection of Women from Dome,stic Violence Act, 2005: 
ss. 19 and 26 - Suit filed by father-in-law (respondent) against 
C. daughter-in-law (appellant) - Before Small Causes Court - Seeking 
possession of the suit flat from his daughter-in-law - Claiming 
himself to be licensor and the appellant as gratuitous licensee :____ 
Counter-claim by the appellant seeking order of residence in the 
suit flat u/s. 19 of 2005 Act - Entertainability of the counter-claim 
- Held: Small Causes Court is a Civil court and proceedings before 
D it are legal proceedings - On the strength of s. 26 of 2005 Act, any 
relief available u/ss. 18 to 22 of 2005 Act can be sought by aggrieved 
person - Order L of CPC does not bar filing of counter-claim (under 
Or. VIII, r. 6A CPC) before Small Causes Court - 2005 Act was 
E 
F 
G 
enacted to secure a social purpose - s. 26 thereof has to be 
interpreted in a mannerto effectuate the ve1y purpose and object 
of the Act - Court not to read in a bar, unless any order as 
contemplated under 2005 Act is expressly barred from consideration 
by a civil court- Right of residence as claimed by the appellant in 
her counter-claim is inter-connected with determination of issue in 
the suit filed before civil court - Denial of consideration of the 
counter-claim shall amount to denial of consideration
of claim as 
contemplated by s.26 of 2005 Act and would lead to multiplicity of 
proceedings, which- cannot be the object and purpose of 2005 Act 
- Provincial Small Causes Court Act, 1887 - ss. 15 and 26 (as 
amended by Maharashtra Act 24 of 1984) - Code of Civil Procedure, 
1908 - Or. VIII, r. 6A and Or. L. 
Allowing the appeal, the Court 
HELD: 1. The Provincial Small Cause Courts Act, 1887 
was enacted to consolidate and amend the law relating to Courts 
of Small Causes established beyond the Presidency-towns. 
H Section 15 deals with jurisdiction of Court of Small Causes. 
488
VAISHALI ABHIMANYU JOSHI v. NANASAHEB GOPAL 
489 
JOSHI 
. 
' 
Section 15 refers to Schedule II. Sched·ule II enumerates the A 
category of suits which are excepted from the cognizance of Court 
of Small Causes. [Paras 13 and 15] [496-E-F; 497-C-D] 
2. The Protection of Women froin Domestic Violence Act, 
2005 has been enacted to provide for more effective protection 
of the rights of women guaranteed under the Constitution who 
B 
are victims of violence of any kind occurring within the family 
and for matters co'nnected therewith or incidental thereto. Act, 
2005 was enacted by the Parliament to give effect to various 
international conventions. [Para 17] [498-D-E] 
Kunapareddy alias Nookala Shanka Balaji v. 
c 
Kunapareddy Swarna Kumari & Another [2016] 2 SCR 
608 : (2016) 11 sec 774 - referred to. 
3. Section 26 of the Act is a special provision which has 
been enacted in the Domestic Violence Act. Although, Chapter 
IV of the Act containing Section 12 to Section 29 contains the D 
· procedure for obtaining orders of reliefs by making application 
before the Magistrate whereas steps taken by the Magistrate 
and different categories of reliefs could be granted as noted in 
Section 18 to 22 and certain other provisions. Section 26 provides 
that any relief available under Section 18 to 22 may also be sought 
in any legal proceedings, before a civil court, family court or a 
criminal court, affecting the aggrieved person and the responden(. 
The appellant has set up her
counter-claim on the basis of this 
Section before the Judge, Small Causes Court. [Para 19) [500-G-
H; 501"A-B] 
E 
4. There cannot be any dispute that proceeding before the 
F 
Judge, Small Causes Court is a legal proceeding and the Judge, 
Small Causes Court is a civil court. On the' strength of Section 
26 any relief availabl!! under Section 18 to 22 of Act, 2005, thus, 
can als.o .be sough~ by the aggrieved person. [Para 20][501-E-F] 
5. Order VIII rule 6A of CPC provides for counter-claim 
G 
by defendant. Order L of CPC enumerates the provisions which 
shall not extend to the Provincial Small Cause Court. The 
provisions which have been excepted from applicability of the 
Small Causes Court do no include Order VIII, thus, eounter claim 
can· very well be filed by the defendant in a suit before the Small 
H
490 
SUPREME COURT REPORTS 
(2017] 5 S.C.R. 
A 
Causes Court. (Paras 21, 22) (501-F; 502-D] 
B 
c 
D 
E 
F 
6. The Act, 1887 has been amended in the State of 
Maharashtra by Maharashtra Act 24 of 1984 w.e.f. 1.1.1985. 
Chapter IVA has been inserted in Act, 1887 containing Section 
26, 26A, 26B and 26C. Item No.4 of Second Schedule which 
included "a suit for the possession of immovable property or for 
the recovery of an interest in such property" had been deleted 
by Maharashtra Act, 24 of 1984. Section 26 of 1887 Act begins 
with 'non obstante' clause which shall override all contrary 
provisions contained in Act, 1887. Maharashtra Act 24 of 1984 
has been brought by inserting Section 26 and by deleting Item 
No. 4 of Second Schedule only to make suit between licensor and 
licensee. to be filed before the Judge, Small Causes Court. The 
suit filed by the plaintiff is virtually a suit for possession of the 
suit flat from the appellant who is occupying the same. (Paras 25, 
28] (502-F-G; 504-A-C] 
7. "Notwithstanding anything contained elsewhere in this 
Act" as used in Section 26(1) of Act, 1887, are words of 
expression of the widest amplitude engulfing the contrary 
provisions contained in the Act. The suit in question has been 
filed by the plaintiff for enforcement of his right as a licensor 
after allegedly terminating the gratuitous licence of the appellant. 
Item No.11 of Schedule II covers determination or enforcement 
.of any such right or interest in immovable
property. But by virtue 
of Section 26 sub-Section (1) as applicable in State ofMaharast,tra, 
Item No.11 of Schedule 2 has to give way to section 26(1) and a 
suit between licensor and licensee which is virtually a suit for· 
recovery of immovable property is fully maintainable in Judge, 
Small Causes Court that is why the suit has been instituted by 
the plaintiff in the Judge, Small Causes Court claiming the right 
and interest in the immovable property. (Para 29) (504-D-F] 
8. When the suit filed by the plaintiff for determination or 
G enforcement of his right as a licensor can be taken cognizance 
by Judge, Small Causes Court, the relief claimed by the appellant 
in the Court of Small Causes within the meaning of Section 26 of 
Act, 2005 can also be considered by the Judge, Small Causes 
Court. In the facts of the present case, the bar and embargo 
H under Item No.11 of Schedule II read with Section 15 of Act,
VAISHALI ABHIMANYU JOSHI v. NANASAHEB GOPAL 
491 
JOSHI 
1887 stand whittled down and engulfed by virtue of Section 26 A 
sub-Section (1) as applicable in Maharashtra. A statutory provision 
containing non obstante clause has to be given full effect. [Paras 
30 and 31) (504-F-HJ 
Union of India and another v. G.M. Kokil and others 
1984 (Supp) SCC 196 : (1984] SCR 292 - relied on. 
B 
9. 2005 Act was enacted to secure a social purpose. The 
provisions of the Act have to be construed widely. Section 26 of 
the Act, 2005 has to be interpreted in a manner to effectuate the 
very purpose and object of the Act. Unless the determination of 
claim by an aggrieved person seeking any order as contemplated 
by Act, 2005 is expressly barred from consideration by a civil 
courl, this Court shall be loath to read in bar in consideration of 
any such claim in any legal proceeding before the civil court. When 
c 
the proceeding initiated by plaintiff in the Judge, Small Causes 
Court alleged termination of gratuitous licence of the appellant 
and prays for restraining the appellant from using the suit flat 
D 
and permit the plaintiff to enter and use the flat, the right of 
residence as claimed by the appellant is inter-connected with such 
determination and refusal of consideration of claim of the appellant 
as raised in her counter claim shall be nothing but denying 
consideration of claim as contemplated by Section 26 of the Act, 
2005 which shall lead to multiplicitY of proceeding,
which can not 
be the object and purpose of Act, 2005. The counter claim filed 
by the appellant before Judge, Small Causes Court was fuUy-
entertainable and courts below committed error in refusing to 
consider such claim. [Paras 35, 36 and 37] [506-D; 507-B-EJ 
Hirai P. Harsora and others v. Kusum Narottamdas 
Harsora and others 2016 (10) SCC 165 - relied on. 
Allahabad Bank v. Canara Bank 2000 (4) SCC 406 : 
[2000] 2 SCR 1102; Solidaire India Ltd. v. Fair Growth 
E 
F 
Financial Services Ltd. .& ors. 2001 (3) SCC 71 : (2001) 
G 
1 SCR 932; Bank of India v. Ketan Parekh 2008 (8) 
sec 148 : (20081 9 scR 346 - cited. 
Case Law Reference 
[2016) 2 SCR 608 
referred to 
Para 17 
H
492 
A 
B 
SUPREME COURT REPORTS 
(1984) SCR 292 
[2000) 2 SCR 1102 
[2001) 1 SCR 932 
(2008) 9 SCR 346 
2016 (10) sec 165 
relied on 
cited 
cited 
cited 
relied on 
[2017] 5 S.C.R. 
Para 31 
Para35 
Para 35 
Para 35 
Para35 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6448 
of2017. 
From the Judgment and Order dated 07 .07.2016 of the High Court 
C 
of Judicature at Bombay, in Civil Appellate Jurisdiction in Writ Petition 
No. 1550of2016. 
D 
Nikhil Majithia, Adv. for the Appellant. 
Vinay Navare, Ms. Gwen Karthika, Dr. Raindra Chingale, Ms. 
Abha R. Sharma, Advs. for the Respondent. 
The Judgment of the Court was delivered by 
ASHOK BHUSHAN, J. 1. Leave granted. 
2. This appeal raises an important question pertaining to 
interpretation of Section 26 of the Protection of Women from Domestic 
E 
Violence Act, 2005 (hereinafter ~eferred to as "Act, 2005") qua the 
Provincial Small Cause Courts Act, I 887(hereinafter to referred to as 
"Act, 1887") as amended in the State of Maharashtra. The question is 
as to whether counter claim by the appellant seeking right under Section 
19 of Act, 2005 can be entertained in a suit filed against her under Section 
26 of Act, 1887 seeking a -mandatory injunction directing her to stop 
F 
using the suit flat and to remove her belongings therefrom. 
3. This appeal has been filed challenging the judgment dated 7'h 
July, 2016 of High Court ofJudicature at Bombay in Writ Petition No.1550 
of2016 by which the writ petition filed by the
appellant questioning the 
judgment and order of 51h Additional Judge, Small Causes Court dated 
G 
5•h November, 2014 and order passed by the District Judge, Pune dated 
l 71h December, 2015 was dismissed. 
H 
4. Necessary facts of the case need to be noted for deciding the 
issue raised are: 
The appellant got married with oneAbhimanyu who is son of the·
VAISHALI ABHIMANYU JOSHI v. NANASAHEB GOPAL 
493 
JOSHI [ASHOK BHUSHAN, J.] 
respondent on l 0.02.2000. The appellant started residing in the suit flat 
A 
No.4, 4514, Arati Society Shilavihar Colony, Paud Fata, Pune since 2004 
alongwith her husband. The flat was alloted ~o the respondent by the 
Society in the year 1971. On 13th June, 2011, the husband of appellant 
left her at the suit flat and shifted to live with his parent at Mrutunjay 
Society. A daughter, namely, lshwari was born from the wedlock of the 
appellant and the Abhimanyu, who was about 9 years in the year 2014. 
The respondent along with his wife had be~n residing in another flat 
nearby. The appellant was treated with cruelty by her husband and other 
members of the family. A suit for divorce on the basis of cruelty being 
0 
P.A.No. 23/2011 was filed by the appellant against her husband. A notice 
was sent on behalf of the respondent to the appellant on 23:01.2013 
revoking the gratuitous licence and asking the appellant to stop the use 
and occupation of the suit flat. The appellant replied the notice. The 
resp0ndent filed Suit No. 77/2013 in the Small Causes Court, Pune seeking 
for following reliefs: 
B 
c 
"A. By an order of mandatory injunction the defendant may D 
be directed to stop the use and occupation of the suit flat and 
remove her belongings therefrom. 
B. The defendant may be restrained by an qrder of perpetual 
prohibitory injunction from using/occupying the suit flat. 
C. The defendant
may be restrained by an order of perpetual 
prohibitory injunction from obstructing the plai11tiff a11d his . 
family members to possess, use and occupy the suit flat. 
D. Interim orders in terms of ctause. A,B,C above may be. 
passed. 
E. Costs of the suit may be awarded to the plaintiff from the 
defendant. 
R Any other just and other equitable orders in the interest of 
justice may please be passed. " 
E 
F 
S. The appellant filed a written statement in the suit pleading that 
G 
she was residing in the suit flat since 26.01.2004 along with her husband 
and daughter. Her husband who was also.residing along with her left 
her on 13.Q6.2011 to live with the respondent. It was pleaded that suit 
flat was intended to be used by the joint family as a joint family property 
and although the agreement of purchase of the suit flat bears the name 
H
494 
SUPREME COURT REPORTS 
[2017] 5 S.C.R. 
A 
of the respondent, the suit flat has been used as joint family property. 
The allegation that respondent is the sole owner of the flat was denied. 
In her written statement a counter claim was also laid by the appellant. 
In the counter claim following reliefs have been claimed by the appellant: 
"i. The suit & injunctionapplication at Exh.5 of the plaintiff 
B 
may kindly be dismissed with heavy costs. 
c 
D 
E 
F 
ii. It may be declared that the suit flat is the shared household. 
iii. The plaintiff. his agents, representatives, relatives or anyone 
claiming through him may kindly be restrained by an 
injunction from dispossessing, disturbing the possession 
of the defendant in any manner from the suit flat, as per 
S.19 of D. V. Act. 
iv. The plaintiff. his agents, representatives, relatives or 
anyone claiming through him may kindly be restrained by 
an injunction from entering in the suit flat as per S.19 of 
DV Act. 
v. The plaintiff. his agents, representatives, relatives or anyone 
claiming through him may kindly be restrained by an 
injunction from alienating, disposing off, encumbering the 
suit flat and/or creating any of third party right, title and 
interest in the suit flat, or renouncing the rights in the suit 
flat as per S.19 of DV Act. 
vi. Any other order in the interest of justice and equity may 
kindlybe passed in favour of the defendant and oblige. " 
6. In the counter claim the appellant prayed for an
order of 
residence in suit flat under Section 19 of the Act, 2005. 
7. The respondent who was the plaintiff in the suit has filed an 
application dated 14.07.2014 under Section 9A(Maharashtra 
Amendment) of the Code of Civil Procedure, 1908. In the application, 
the respondent .claimed that declaration sought by the appellant in the 
G . suit is not maintainable, hence, a preliminary issue under Section 9A of 
CPC be framed. The application was objected by the appellant by filing 
objection on 16.08.2014. The appellant claimed that since she has been 
subjected to domestic violence she is entitled for the reliefs sought by 
way of counter claim as provided in the Act, 2005. It was contended
VAISHALI ABHIMANYU JOSHI v. NANASAHEB GOPAL 
495 
JOSHI [ASHOK BHUSHAN, J.] 
that the reliefs sought by way of counter claim are not barred as per A 
Section 15 of Act, 1887. The trial court framed preliminary issue "as to 
whether the Court has jurisdiction to ente1iain the counter claim''. Judge 
Small Causes Court by its judgment and order dated 05.11.2014 held 
that Court has no jurisdiction to entertain the counter claim. Revision 
was filed against the order passed by the Small Causes Court before the 
District Judge. The District Judge rejected the revision on 17.12.2015 
which order was challenged by the appellant by means of writ petition 
which has been dismissed by judgment dated 07 .07.2016. The High Court 
B 
has held that in view of the express language in Section 15 as also the 
Second Schedule of Act, 1887, the Small Causes Court constituted under 
Act, 1887 cannot entertain and try the counter claim. Aggrieved by the 
C 
order of the High Court, the appellant has come up in this appeal. 
8. We have heard Shri Nikhil Majithia, learned counsel for the 
appellant and Shri Vinay Navare, learned counsel for the respondent. 
9. Shri Nikhil Majithia, learned counsel for the appellant submitted 
that courts below erred in law in taking the view that counter claim of D 
the appellant is barred by the Act, 1887. He submits that Act, 2005 is a 
special Act which has been enacted to provide various remedies and the 
special Act shall have overriding effect over Act,
1887. He submits that 
courts below erred in law in not adverting to this aspect of the matter. 
Learned counsel has further placed reliance on Section 3(c) of the Act, 
1887. It is submitted that Section 3(c) itself saves applicability of local 
E 
law or any special law and the Act, 2005 being a special law it will have 
to be given full effect and Section 3(c) itself carves out an exception. It 
F 
is submitted that in the event of conflict between a general statute and a 
special statute, special statutes always have overriding effect on a general 
statute. He further submits that even if both are treated to be a special 
statute, latter in point of time shall override the Act, 1887 and he further 
referring to the Section 26 of Act, 2005 contends that a relief under 
Sections 18 to 22 of Act, 2005 can be sought in any legal proceeding 
before a Civil Court, Family Court and Criminal Court. He submits that 
Court of Provincial Small Cause being a civil Court remedy under Section 
G 
26 is fully available to the appellant. 
I 0. Shri Vinay Navare, learned counsel for the respondent refuting 
the submission oflearned counsel for the appellant contends that counter 
claim of the appellant is clearly barred by Section 15 read with Schedule 
II of the Act, 1887. He has referred to Item Nos.11, 17 and 19. He 
H
496 
SUPREME COURT REPORTS 
[2017] 5 S.C.R. 
A 
submits that Provincial Small Cause Court is a Court which has limited 
jurisdiction. Referring to provisions of Order L of Civil Procedure Code 
he submits that only limited provisions of Civil Procedure Code have 
been made applical>le which indicates that no substantive issue can be 
decided by Provincial Small Cause Court. Learned counsel further made 
8 
reference to Section 12 and Section 18 of Act, 1887, by which, according 
to him, the Registrar, who is a Chief Ministerial Officer of the Court, is 
empowered to try certain suits which the Judge, Provincial Small Cause 
Court by general or special order directs. He submits that power given 
to Registrar to decide certain issues also militate against the idea that 
c 
D 
substantive issues can be decided by a Judge, Small Causes Court. 
11. Learned counsel for the parties relied on various decisions of 
this Court and Bombay High Court which shall be referred to while 
considering submissions in detail. 
12. We have considered the above submissions of the parties and 
perused the record. 
13. As noted above, the only question to be answered in this appeal 
is as to whether the counter claim filed by the appellant seeking right of 
residence in accordance with Section 19 of Act, 2005 in a suit filed by 
the respondent, her father~in-law under the Provincial Small Cause Courts 
Act, 1887 is entertainable or not. Whether the provisions of the Act, 
E 
1887 bar entertainment
of such counter claim, is the moot question to be 
answered. The Provincial Small Cause Courts Act, 1887 was enacted 
to consolidate and amend the law relating to Courts of Small Causes 
established beyond the Presidency-towns. Under Section 5, the State 
Government is empowered to establish Court of Small Causes. Section 
F 
15 deals with jurisdiction of Court of Small Causes. Section 15 which is 
relevant for the present purposes is extracted below: 
"Section 15. Cognizance of suits by Courts of Small Causes.-
(!) A Court of Small Causes shall not take cognizance of the 
suits specifieain the Second Schedule as suits expected from 
G 
the cognizance ofa Court of Small Causes. 
H 
(2) Subject to the exceptions specified in that Schedule and . 
to the provisions of any enactment for the time being in force, 
all suits of a civil nature of which the value does not exceed 
five hundred rupees shall be cognizable by a Court of Small
VAISHALI ABHIMANYU JOSHI v. NANASAHEB GOPAL 
497 
JOSHI [ASHOK BHUSHAN, J.] 
Causes. 
A 
(3) Subject as aforesaid, the [State Government] may, by .order 
in writing, direct that all suits of a civil nature of which the 
value does not exceed one thousand rupees shall be 
cognizable by a Court of Small Causes mentioned in the 
order." 
B 
14. Section 17 provides that the procedure prescribed in the Civil 
Procedure Code, shall save in ·so far as is otherwise provided by that 
Code or by 1887 Act, be the procedure followed in a Court of Small 
Causes, in all suits cognizable by it and in all proceedings arising out of 
such suits. 
C 
15. Section 23 provides for return of plaint in suits involving 
questions of title. Section 15 refers to Schedule II. Schedule II 
enumerates the category of suits which are excepted from the cognizance 
of Court of Small Causes. For the purposes of this case Item Nos.4, 11, 
I 7 which may be relevant for the present case are extracted below: 
D 
"(4) a suit for the possession of immoveable property 
or for the recovery of an interest in such property; 
(11) a suit for the determination or enforcement of 
any other right to or interest in immoveable property; 
(17) a suit to obtain in injunction; " 
I 6. The submission which has been pressed by the learned counsel 
for the respondent is that the High Court for holding that Judge, Small 
Causes Court has no jurisdiction has relied on Section 15 read with clause 
(II) of Second Schedule. In
paragraph 14_ofthejudgment, the High 
Court gives the following reasoning for deciding against the appellant: 
"14. As noted earlier, c/ause(ll) of the Second Schedule of 
P.S.C.C. Act which is one of the excepted categories does not 
empower the Small Causes Court to entertain and try the suit 
E 
F 
for the determination or enforcement ofany other right lo or 
interest in immovable property. In the counter claim the 
G 
defendant has prayed for residence orders as provided in 
Section I 9 of D. V. Act as also for declaration that the suit flat 
is the shared household as per section l(s) of D. V. Act and 
also for injunction restraining the plaintiff (i) from 
H
498 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2017] 5 S.C.R. 
dispossessing her from the suit flat and disturbing her 
possession in any manner in the suit flat, (ii) from entering 
suit flat, and (iii) from creating third party interest as per 
Section 19 of D. V. Act. It is not in dispute and cannot be 
disputed that the counter claim is to be tried as a suit. The 
defendant seeks determination or enforcement of her right 
or interest in the suit flat i.e. immovable property. In view 
thereof, counter claim set up by the defendant cannot gone 
into by the Small Causes Court in view of express language 
of Section 15 and Second Schedule of P.S.C.C. Act. If the 
contention of Mr. Kulkarni is accepted, it will enlarge the 
jurisdiction of Small Causes Court and the same will be 
contrary to mandate of Section 15 and Second Schedule of 
P.S.C.C. Act." 
17. The Protection of Women from Domestic Violence Act, 2005 
has been enacted to provide for more effective protection of the rights 
of women guaranteed under the Constitution who are victims of violence 
of any kind occurring within the family and for matters connected 
therewith or incidental thereto. Act, 2005 was enacted by the Parliament 
to give effect to various international conventions. One of us (A.K. 
Sikri,J .) had occasion to consider the purposes of enacting the Act, 2005 
in Kunapareddy alias Nookala Shanka Balaji vs. Kunapareddy 
Swarna Kumari and anoteltr, (2016) 11 SCC 774. In paragraph 12 
of the
judgment following has been stated: 
"12. Jn fact, the very purpose of enacting the DV Act was to 
provide for a remedy which is an amalgamation of civil rights 
of the complainant i.e. aggrieved person. Intention was to 
protect women against violence of any kind. e~pecially that 
occurring within the family as the civil law does not address 
this phenomenon in its entirety. It is treated as an offence 
under Section 498-A of the Penal Code, 1860. The purpose 
of enacting the law was to provide a remedy in the civil law 
for the protection of women from being victims of domestic 
violence and to prevent the occurrence of domestic violence 
in the society. It is for this reason, that the scheme of the Act 
provides that in the first instance, the order that would be 
passed by the Magistrate, on a complaint by the aggrieved 
person, would be of a civil nature and if the said order is
VAISHALI ABHIMANYU JOSHI v. NANASAHEB GOPAL 
499 
JOSHI [ASHOK BHUSHAN, J.] 
violated, it assumes the character of criminality. In order to 
A 
demonstrate it, we may reproduce the introduction as well as 
relevant portions of the Statement of Objects and Reasons of 
the said Act, as follows: 
"Introduction 
The Vienna Accord of 1994 and the Beijing Declaration and B 
the Platform for Action (1995) have acknowledged that 
domestic violence is undoubtedly a human rights issue. The 
United Nations Committee on Convention on Elimination of 
All Forms of Discrimination Against Women in its General 
Recommendations has recommended that State parties should c 
act to protect women against violence of any kind, especially 
that occurring within the family. The phenomenon of domestic 
violence in India is widely prevalent but has remained invisible 
in the public domain. The civil law does not address this 
phenomenon in its entirety.· Presently, where a woman is 
subjected to cruelty by her husband or his relatives, it is an 
offence under Section 498-A of the Indian Penal Code. In 
order to provide a remedy in the civil law for the protection of 
women from being victims of domestic violence and to prevent 
the occurrence of domestic violence in the society the 
Protection of Women from Domestic Violence Bill was 
introduced in Parliament. 
Statement of Objects and Reasons 
D 
E 
I. Domestic violence is undoubtedly a human rights issue 
and serious deterrent to development. The
Vienna Accord of 
1994 and the Beijing Declaration and the Platform for Action 
F 
(1995) have acknowledged this. The United Nations 
Committee on Convention on Elimination of All Forms of 
Discrimination against Women (CEDAW) in its General 
Recommendation No. XII (1989) has recommended that State 
parties should act to protect women against violence of any 
G 
kind especially that occurring within the family. 
* 
* 
* 
3. It is, therefore, proposed to enact a law keeping in view 
the rights guaranteed under Articles 14, 15 and 21 of the 
H
500 
SUPREME COURT REPORTS 
[2017] S S.C.R. 
A 
Constitution to provide for a remedy under the civil law which 
is intended to protect the women from being victims of domestic 
violence and to prevent the occurrence of domestic violence 
in the society. 
B 
c 
D 
E 
F 
4. The Bill, inter a/ia, seeks to provide for the following-
* 
* 
* 
(ii) It defines the expression· "domestic violence" to' include 
actual abuse or threat or abuse that is physical, sexual, 
verbal, emotional or economic. Harassment by way of 
unlawful dowry demands to the woman or her relatives would 
also be covered under this definition. 
(iii) It provides for the rights of women to secure housing. It 
also provides for the right of a woman to reside in her 
matrimonial home or shared household, whether or not she 
has any title or rights in such home or household. This right 
is secured by a residence order, which is passed by the 
Magistrate. 
(iv) It empowers the Magistrate to pass protection orders in 
favour of the aggrieved person to prevent the respondent from 
aiding or committing an act of domestic violence or any other 
specified act, entering a workplace or any other p_lace 
frequented by the aggrieved person, attempting to 
communicate with her, isolating any assets used by both the 
parties and causing violence to the aggrieved person, her 
relatives or others who provide her assistance from the 
domestic violence. " 
18. Section 17 provides for right to reside in a shared household 
by
aggrieved person. Section 18 empowers the Magistrate to pass 
protection orders of different categories as enumerated in section itself. 
Section 19 provides for passing of a residence order in favour of an 
G aggrieved person who is subjected to domestic violence. 
H 
19. Section 26 of the Act is a special provision which has been 
enacted in the enactment. Although, Chapter IV of the Act containing 
Section 12 to Section 29 contains the procedure for obtaining orders of 
reliefs by making application before the Magistrate whereas steps taken 
by the Magistrate and different categories of reliefs could be granted as
VAISHALI ABHIMANYU JOSHI v. NANASAHEB GOPAL 
501 
JOSHI [ASHOK BHUSHAN, J.] 
noted in Section 18 to 22 and certain other provisions. Section 26 provides 
A 
that any relief available under Section 18 to 22 may also be sought in any 
legal proceedings, before a civil court, family court or a criminal court, 
affecting the aggrieved person and the respondent. Section 26 is material · 
for the present case since the appellant has set up her counter claim on 
the basis of this Section before the Judge, Small Causes Court. Section 
26 is extracted below: 
"26. Relief in other suits and legal proceedings.-
B 
(1) Any relief available under sections 18, 19, 20, 21 and 22 
may also be sought in any legal proceeding, before a civil 
court, family court or a criminal court, affecting the aggrieved c 
person and the respondent whether such proceeding was, 
initiated before or after the commencement of this Act. 
(2)Any relief referred to in.sub section (1) may be sought/or 
in addition to and along with any other relief that the 
aggrieved person may seek in such suit or legal proceeding D 
before a civil or criminal court. 
ill In case any relief has been obtained by the aggrieved 
person in any proceedings other than a proceeding under 
this Act, she shall be bound to inform the Magistrate of the 
grant of such relief " 
· 
20. There cannot be any dispute that proceeding before the Judge, 
Small Causes Court is a legal proceeding and the Judge, Small Causes 
Court is a civil court.
On the strength of Section 26 any relief available 
under Section 18 to 22 of Act, 2005, thus, can also be sought by the 
aggrieved person. 
21. Order VIII Rule 6A provides for counter claim by defendant. 
Order VIII Rule 6A of CPC is quoted below: 
"6A. Co11nter claim by defendant.- (1) A defendant in a suit 
may, in addition to his right of pleading a set off under rule 
E 
F 
6, set up, by way of counter claim against the claim of the 
G 
plaintiff, any right or claim in respect of a cause of action 
accruing to the. defendant against the plaintiff either before 
or after the filing of to suit but before the defendant has 
delivered his defence qr ~efore the time limited for delivering 
his defence has expired, whether such counter claim is in the 
H
502 
SUPREME COURT REPORTS 
[2017] 5 S.C.R. 
A 
nature of a claim for damages or not: 
B 
c 
Provided that such counter claim shall not exceed the 
pecuniary limits of the jurisdiction of the court. 
(2) Such counter claim shall have the same effect as a cross 
suit so as to enable the court to pronounce a final judgment 
in the same suit, both on the original claim and on the counter 
claim. 
(3) The plaintiff shall be at liberty to file a written statement 
in answer to the counter claim of the defendant within such 
period as may be fixed by the court. 
(4) The counter claim shall be treated as a plaint and governed 
by the rules applicable to plaints. •· 
22. Order L of CPC enumerates the provisions which shall not 
extend to the Provincial Small Cause Court. The provisions which have 
D 
been excepted from applicability of the Small Causes Court do not include 
Order VIII, thus, counter claim can very well be filed by the defendant 
in a suit before the Small Causes Court. 
E 
F 
G 
H 
23. We have noted above the reasons given by the High Court 
holding that Provincial Small Cause Court cannot entertain the counter 
claim filed by the defendant who is appellant before us. 
24. The High Court refers to Item No. I I of Second Schedule 
which is "a suit for the determination or enforcement of any other right 
to or interest in immovable property". It appears that the High Court 
had taken the view that the right under Section 26 of Act, 2005 as claimed 
by the appellant
involves the determination or enforcement of any right 
to or interest in immovable property. 
25. The Act, 1887 has been amended in the State of Maharashtra 
by Maharashtra Act 24of1984 w.e.f. 1.1.1985. Chapter IVA has been 
inserted in Act, 1887 containing Section 26, 26A, 26B and 26C. Section 
26 is quoted as below: 
"26. Suits or proceedings between licensors and licensees or 
landlords and tenants for recovery of possession of immovable 
property and licence fees or rent, except those to which other 
Acts apply, to lie in Court of Small Causes.-
VAISHALI ABHIMANYU JOSHI v. NANASAHEB GOPAL 
503 
JOSHI [ASHOK BHUSHAN, J.] 
(1) Notwithstanding anything contained elsewhere in this Act, 
A 
but subject to the provision of sub-section (2), the Court of 
Small Causes shall have jurisdiction to entertain and try all 
suits and proceedings between in licensor and licensee, or a 
landlord and tenants, relating to the recovery of possession 
of any immovable property situated in the area within the local 
B 
limits of.the jurisdiction of the Court of Small Causes, or 
relating to the recovery of the licence fee or charges or rent 
therefor, irrespective of the value of the subject matter of such 
suits or proceedings. 
(2) Nothing contained in sub-section (1) shall apply to suits 
C 
or proceedings for the recovery of possession of any 
immovable property or of licence fee or charges or rent 
thereof. to which the provisions of the Bombay Rents, Hotel 
and Lodging House Rates Control Act, 1947, the Bombay 
Government Premises (Eviction) Act, 1955, the Bombay 
Provincial Municipal Corporations Act, 1919 or the 
D 
Maharashtra Housing and Area Development Act, 1976, or 
any law for the time being in force, apply. " 
26. Section 26 sub-Section (1) begins with "notwithstanding 
anything contained elsewhere in this Act". In the suit. which was 
filed by the respondent before the Judge, Small Causes Court, the plaintiff E 
(respondent herein) has claimed himself to be licensor and appellant as 
gratuitous licensee. In paragraph 9 of
the plaint following has been pleaded 
by the plaintiff: 
"9. The Plaintiff submits that the Defendant has falsely stated 
. in the Marriage petition bearing PA No.2312011 that she is in 
F 
actual and physical possession of the suit flat even though 
she has been in use of the suit flat only as a gratuitous 
licensee. The plaintiff through his advocate served a notice 
to the Defendant on 23.01.2013, revoking the gratuitous 
license and asking the Defendant to stop the use and 
·occupation of the suit flat ... " 
G 
27. Although the relief which has been claimed by the plaintiff 
does not specifically contain any relief regarding recovery of possession 
from the appellant but the reliefs sought for indicate that the appellant is 
sought to be restrained from using the suit flat. 
H
504 
A 
B 
c 
SUPREME COURT REPORTS 
[2017] 5 S.C.R. 
28. It is relevant to note that Item No.4 of Second Schedule which 
included "a suit for the possession of immovable property or for the 
recovery of an interest in such property" had been deleted by Maharasthra 
Act 24 of 1984. Section 26 begins with 'non obstante' clause which 
shall override all contrary provisions contained in Act, 1887. Maharasthra 
Act 24of1984 has been brought by inserting Section 26 and by deleting 
Item No.4 of Second Schedule only to make suit between licensor and 
licensee to be filed before the Judge, Small Causes Court. The suit filed 
by the plaintiff is virtually a suit for possession of the suit flat from the 
appellant who is occupying the same. Plaintiff alleged in the plaint that 
the gratuitous licence of the appellant has been terminated on 23.01.2013' 
hence, appellant is not entitled to use the flat and is liable to remove her 
belongings. 
29. "Notwithstanding anything contained elsewhere in this Act" 
as used in Section 26( I) of Act, 1887 are words of expression of the 
widest amplitude engulfing the contrary provisions contained in the Act. 
D 
The suit in question has been filed by the plaintiff for enforcement of his 
right as a licensor after allegedly terminating the gratuitous licence of 
the appellant. On a plain reading Item No. I I of Schedule II covers 
determination or enforcement of any such right or interest in immovable 
property. But by virtue of Section 26
sub-Section (I) as applicable in 
E 
F 
State of Maharasthra, Item No.I I of Schedule 2 has to give way to 
Section 26(1) and a suit between licensor and licensee which is virtually 
a suit for recovery ofimmovable property is fully maintainable in Judge, 
Small Causes Court that is why the suit has been instituted by the plaintiff 
in the Judge, Small Causes Court claiming the right and interest in the 
immovable property. 
30. When the suit filed by the plaintiff for determination or 
enforcement of his right as a licensor can be taken cognizance by Judge, 
Small Causes Court we fail to see that why the relief claimed by the 
appellant in the Court of Small Causes within the meaning of Section 26 
of Act, 2005 cannot be considered by the Judge, Small Causes Court. In 
G 
facts of the present case, the bar and embargo under Item No. I I of 
Schedule II read_with Section 15 of Act, 1887 stand whittled down and 
engulfed by virtue of Section 26 sub-Section (I) as applicable in 
Maharashtra. 
31. A statutory provision containing 11011 obstante clause has to 
H 
be given full effect. This Court in Union of India and another vs.
VAISHALI ABHIMANYU JOSHI v. NANASAHEB GOPAL 
SOS 
JOSHI [ASHOK BHUSHAN, J.] 
GM. Kokil and otllers, 1984 (Supp) SCC 196 has laid down in 
A 
paragraph 11 as below: 
"11 .... It is well-known that a non obstante clause is a 
legislative device which is usually employed to give overriding 
effect to certain provisions over some contrary provisions that 
may be found either in the same enactment or some other 
B 
enactment, that is to say, to avoid the operation and effect of 
all contrary provisiOns. "Thus the non obstante clause in 
Section 70, namely, "notwithstanding anything contained in 
that Act" must mean notwithstanding anything to the contrary 
contained in that Act and as such it must refer to the exempting 
provisions which would be contrary to the general 
C 
applicability of the Act ... " 
32. Learned counsel for the appellant has placed reliance on a 
judgment of the Bombay High Court in Writ Petition No.5648of2015, 
Ambreen Aklroon vs. Aditya Aurn Paudwal and Ors. Decided on 41h 
August, 201S. The issue which was involved in the said case has been 
D 
noted in paragraph 2 which is to the following effect: 
"2. This Writ Petition involves a question of law as to whether 
any relief can be sought against the relative of the responde/lf 
husband in the proceedings filed under Section 26 of the 
Protection of Women from Domestic Violence Act before the 
E 
Family Court ? " 
33. After considering the provisions of Act, 200S and certain 
precedents, the Bombay High
Court has laid down following in paragraph 
18: 
"18. As a question of law is raised before this Court, the Court 
has restricted its finding only to that extent and answered 
that the relatives of the husband being respondents under 
Section 2(q) of the D V Act can be made party respondents 
before the Family Court if the proceedings specified under 
Section 26 of the D. V. Act are preferred. " 
34. In the present case, the issue which is raised is entirely different 
and pertains to the jurisdiction of Small Causes Court to entertain counter 
claim filed by the appellant seeking an order of residence. The above 
judgment is not relevant for answering the issue raised in the present 
case. 
F 
G 
H
'.' 
506 
A 
B 
c 
. SUPREME COURT REPORTS 
[2017] 5 S.C.R. 
35. Learned counsel for the appellant has placed reliance. on 
judgments of this Court in Allahabad Bank vs. Canara Ba11k, 2000(4) 
SCC 406; Solidaire India Ltd. vs. Fair Growth Financial Services 
Ltd. & ors., 2001 (3) SCC 71 and Bank of India vs. Ketan Parekh, 
2008 (8) SCC 148 for the proposition that a special Act overrides a 
general Act and when a conflict is found in two special Acts, the special 
Act latter in point of time has to prevail. He further contends that dominant 
purpose oftheAct has to be looked into while deciding the question as to 
which of the Act shall prevail over other. In the facts of the present case 
especially Section 26 as inserted in the State of Maharashtra by 
MaharasthraAct 24of1984, it is not necessary to enter into the issue of 
conflict between Act, 1887 and Act, 2005. We have already observed 
above that the suit in the nature of present suit was cognizable before 
the Judge, Small Causes Court, hence, in the said suit determination of 
claim of the appellant seeking a right of residence under Section 19 is 
also not excluded from consideration. It is further to be noted that Act, 
D 
2005 was enacted to secure a social purpose. The provisions of the Act 
have to be construed widely. This Court in Hirai P. Harsora and others 
vs. Kusum Narottamdas Harsora and others, 2016 (JO) SCC 165 
had occasion to consider the ambit and scope of Act, 2005. In paragraph 
25 following has
been stated by this Court: 
E 
F 
G 
H 
"25. When we come to Section 26 of the Act, the sweep of 
the Act is such that all the innovative reliefs available under 
Sectio11s 18 to 22 may also be sought in any legal proceeding 
before a civil court, family court or criminal court affecting 
the aggrieved person and the responde11t. The proceeding in 
the civil court, family court or criminal court may well include 
female members of a family, and reliefs sought in those legal 
proceedings would not be restricted by the definition of 
"respondent" in the 2005 Act. Thus, an invidious 
discrimination will result, depending upon whether the 
aggrieved person chooses to institute proceedings under the 
2005 Act or chooses to add to the reliefs available in either a 
pending proceeding or a later proceeding in a civil court, 
family court or criminal court. It is clear that there is no 
intelligible differentia between a proceeding initiated under 
the 2005 Act and proceeding initiated in other fora under
VAISHALI ABHIMANYU JOSHI v. NANASAHEB GOPAL 
507 
JOSHI (ASHOK BHUSHAN, J.] 
other Acts, in which the selfsame reliefs grantable under this 
A 
Act, which are restricted to an adult male person, are grantable 
by the other fora also against female members of a family. .. " 
36. Section 26 of the Act, 2005 has to be interpreted in a manner 
to effectuate the very purpose and object of the Act. Unless the 
determination of claim by an aggrieved person seeking any order as 
B 
contemplated by Act, 2005 is expressly barred from consideration by a 
civil court, this Court shall be loath to read in bar in consideration of any 
such claim in any legal proceeding before the civil court. When the 
proceeding initiated by plaintiff in the Judge, Small Causes Court alleged 
termination of gratuitous licence of the appellant and prays for restraining 
the appellant from using the suit flat and permit the plaintiff to enter and 
C 
use the flat, the right of residence as claimed by the appellant is inter-
connected with such determination and refusal of consideration of claim 
of the appellant as raised in her counter claim shall be nothing but denying 
consideration of claim as contemplated by Section 26 of the Act, 2005 
which shall lead to multiplicity of proceeding, which can not be the object 
D 
and purpose of Act, 2005. 
37. We, thus, are of considered opinion that the counter claim 
filed by the appellant before Judge, Small Causes Court in Civil Suit 
NO. 77of2013 was fully
entertainable and courts below committed error 
in refusing to consider such claim. 
E 
38. We, however, make it clear that we have neither entered into 
the merits of the claim of the appellant nor shall be understoodto have 
expressed any opinion on the claim either way and the merits of the 
claim has to be considered by the court in accordance with law. 
39. In the result, the appeal is allowed, the judgment of the High 
F 
Court dated 07.07.2016, judgment and order dated 05.11.2014 of 5•h 
Additional Judge, Small Causes Court, Pune and judgment dated 
17.12.2015 of the District Judge, Pune are set aside. It is held that counter 
claim filed by the appellant in Civil Suit No. 77of2013 is fully entertainable 
by Judge, Small Causes Court and needs to be considered in accordance 
G 
with law. 
Kalpana K. Tripathy 
Appeal allowed.