SATISH CHANDER AHUJA versus SNEHA AHUJA
[2020] 12 S.C.R. 189, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Issues
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SATISH CHANDER AHUJA
v.
SNEHA AHUJA
(Civil Appeal No.3483 of 2020)
OCTOBER 15, 2020
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ.]
Protection of Women from Domestic Violence Act, 2005: ss.12,
19 – In a complaint filed under s.12 of Act, 2005, an interim order
was passed in favour of complainant directing the respondent
arrayed in the complaint i.e. husband not to dispossess the
complainant without orders of a competent court – Suit filed by
father-in-law thereafter praying for a mandatory and permanent
injunction in respect of suit property against the complainant-
defendant – Maintainability of – Held: Suit filed in civil court for
mandatory and permanent injunction was fully maintainable – The
issues raised by the plaintiff as well as by the defendant claiming a
right under s.19 were to be addressed and decided on the basis of
evidence led by the parties in the suit.
Protection of Women from Domestic Violence Act, 2005: s.26
– Relief in suit or legal proceedings – As per s.26, any relief available
under ss.18, 19, 20, 21 and 22 of the Act, 2005 may also be sought
in any legal proceeding, before a civil court, family court or a
criminal court being the aggrieved person – In a suit for  mandatory
and permanent injunction filed by the appellant (father-in-law) where
respondent (daughter-in-law) has pleaded and claimed that the suit
property is shared household and she has right to live and it was on
that ground she was resisting the suit for
mandatory injunction, the
question that whether the suit property is a shared household or
not becomes relevant and necessary and the said issue cannot be
skipped on the ground that application under D.V. Act is pending –
In the regular suit, which was filed by the appellant, plea of
defendant that suit property is her shared household and she has
right to residence could have been very well gone into by virtue of
s.26 of Act, 2005.
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Protection of Women from Domestic Violence Act, 2005: s.19
– Pendency of proceedings under the Act, 2005 or any order interim
or final, passed u/s.19 regarding right of residence is not an embargo
for initiating/continuing any civil proceedings, which relate to subject
matter of order interim or final passed in proceedings under the
Act.
Protection of Women from Domestic Violence Act, 2005: s.2(s)
– Shared household – Definition of – Held: The definition of shared
household in s.2(s) is an exhaustive definition – s.2(s) uses both the
expressions “means and includes” – The first part of definition
begins with expression “means” which is undoubtedly an exhaustive
definition and second part of definition, which begins with word
“includes” is explanatory of what was meant by the definition –
The use of both the expressions “means and includes” in s.2(s),
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.
Protection of Women from Domestic Violence Act, 2005: s.2(s)
– Expression “where the person aggrieved has lived or at any stage
has lived in a domestic relationship” – Meaning of – 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.
Protection of Women from Domestic Violence Act, 2005: s.2(s)
– Interpretation of – It is not requirement of law that aggrieved
person may either own the premises jointly or singly or by tenanting
it jointly or singly; 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 the shared household may either be
owned or tenanted by the respondent singly or jointly.
Protection of Women from Domestic Violence Act, 2005: s.2(q)
– Who can be respondent – To treat a person as “respondent” for
purposes of s.2(q), it has to be proved that person arrayed as
respondent has committed an act of domestic violence on the
aggrieved person – For grant of any relief to the defendant or for
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successful resisting the suit of the plaintiff, necessary conditions
for grant of relief as prescribed under the Act, 2005 has to be pleaded
and proved by the defendant, only then the relief can be granted by
the Civil Court to the defendant – Thus, for granting any relief by
the Civil Court under s.19, it has to be proved that the respondent is
committing or has committed an act of domestic violence on the
aggrieved person.
Protection of Women from Domestic Violence Act, 2005: s.17
– Right to residence – 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 s.17 is new
and higher right conferred on every woman.
Protection of Women from Domestic Violence Act, 2005:
s.17(2) – Whether apart from powers of Magistrate under s.25(2)
of the Act, 2005, the Act, 2005 contemplates any other eventuality
when despite the order of residence under s.19 an aggrieved person
can be evicted or dispossessed – Held: The right to reside in shared
household as granted by s.17 itself contemplates an exception in
express words, i.e.,
“save in accordance with the procedure
established by law”.
Protection of Women from Domestic Violence Act, 2005:
s.17(2) – Embargo under – Held: 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 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
s.17(2) of Act, 2005 of not to be evicted or excluded save in
accordance with the procedure established by law operates only
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against the “respondent”, i.e., one who is respondent within the
meaning of s.2(q) of Act, 2005.
Protection of Women from Domestic Violence Act, 2005: s.19
– Residence order – Held: The right to residence under s.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 – Therefore, while granting
relief both in application under s.12 of Act, 2005 or in any civil
proceedings, the Court has to balance the rights of both the parties.
Protection of Women from Domestic Violence Act, 2005: ss.17
and 19 – Proper party – In the present case, although plaintiff has
not claimed any relief against his son, the husband of the respondent,
hence, he was not a necessary party but in view of the fact that
respondent has pleaded her right of residence in shared household
relying on ss.17 and 19 of the Act, 2005 and one of the rights which
can be granted under s.19 is right of alternate accommodation, the
husband is a proper party – The right of maintenance as per the
provisions of Hindu Adoption and Maintenance Act, 1956 is against
that of the husband,  hence he may be a proper party in cases when
the Court is to consider the claim of respondent under ss.17 and 19
read with s.26 of
the Act, 2005 – Party/Parties – Necessary party.
Code of Civil Procedure, 1908: Or.I r.10 empowers the Court
at any stage of the proceedings either on an application or suo
moto to add a party either as plaintiff or defendant, whose presence
before the Court may be necessary in order to enable the Court
effectively and completely adjudicate upon and settle all the
questions involved in the suit – In the instant case, High Court issued
directions that the matters be remanded back to trial court and at
the first instance, in all cases where the respondent’s son/the
appellant’s husband has not been impleaded, trial court shall direct
his impleadment by invoking its suo motu powers under Or.I r.10 –
The said direction is a little wide and preemptory – In event, the
High Court was satisfied that impleadment of husband of defendant
was necessary, the High Court itself could have invoked the power
under Or.I r.10 and directed for such impleadment – When the matter
is remanded back to trial court, trial court’s discretion ought not to
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have been fettered by issuing such a general direction – Protection
of Women from Domestic Violence Act, 2005.
Code of Civil Procedure, 1908: Or.XII r.6 – Power under,
scope – Held: Power under Or.XII r.6 is discretionary and cannot
be claimed as a matter of right.
Res judicata: Principle of, applicability when orders of
criminal courts are pitted against proceedings in civil court – Held:
There can be no applicability of principle of res judicata when orders
of criminal courts are pitted against proceedings in civil court –
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 s.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.
Protection of Women from Domestic Violence Act, 2005: ss.12,
25, 26 – Domestic Incident Report – Held: Before any order is passed
under s.12, the magistrate has to 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 s.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 – Magistrate can also pass an interim
order as per s.23 of the D.V. Act.
Protection of Women from Domestic Violence Act, 2005:
s.19(1)(b) – Order under clause (b) of s.19(1) against a woman –
Held: While passing order of residence under s.19, more particularly
under sub-s.19(1)(b) as per the proviso to s.19(1), no order under
clause (b) shall be passed against any person who is a woman.
Protection of Women from Domestic Violence Act, 2005:
ss.12(2), 17, 19, 20, 22, 23, 25, 26 and 28 – The proceedings under
SATISH CHANDER AHUJA v. SNEHA AHUJA
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the D.V. Act and proceedings before a civil court, family court or a
criminal court, as mentioned in s.26 of the D.V. Act are independent
proceedings, like the proceedings under s.125 of the Cr. P.C. for
maintenance before the Magistrate and/or family court and the
proceedings for maintenance before a civil court/ family court for
the reliefs under the Hindu Adoption and Maintenance Act –
However, the findings/orders passed by the one forum has to be
considered by another forum.
Evidence Act, 1872: ss.40 to 43 – Order passed under the
Act, 2005 – Relevancy and admissibility in civil proceedings – 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 – The judgment or order of criminal court granting an
interim or final relief under s.19 of D.V. Act, 2005 are relevant within
the meaning of s.43 of the Evidence Act and can be referred to and
looked into by the civil court – Protection of Women from Domestic
Violence Act, 2005.
Words and phrases: Meaning and extent of expression “save
in accordance with the procedure established by law” in s.17 of
Protection of Women from Domestic Violence Act, 2005.
Dismissing the appeal, the Court
HELD: 1.1 The use of both the expressions “means and
includes” in Section 2(s) of Act, 2005 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.
The 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
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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. [Paras 54, 55][230-D-H; 231-A-B]
1.2 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. 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. 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. [Paras 62, 63][233-G-H; 234-A-B; 234-
G-H]
1.3 This Court in paragraph 29 of the judgment in *S.R.
Batra Vs. Taruna Batra held that wife is only entitled to claim a
right to residence in a shared household and a shared household
would only mean the house belonging to or taken on rent by the
husband, or the house
which belongs to the joint family of which
the husband is a member. 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.
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. This court in *S.R. Batra Vs. Taruna Batra  although
noticed the definition of shared household as given in Section
2(s) but did not advert to different parts of the definition which
makes it clear that for a shared household there is no such
requirement that the house may be owned singly or jointly by the
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husband or taken on rent by the husband. The definition of shared
household is clear and exhaustive definition. The object and
purpose of the Act was to grant a right to aggrieved person, a
woman of residence in shared household. The interpretation which
is put by this Court in *S.R. Batra Vs. Taruna Batra if accepted
shall clearly frustrate the object and purpose of the Act.
[Para 64][235-C-H]
*S.R. Batra and Anr. v. Taruna Batra, (2007) 3 SCC
169 : [2006] 10 Suppl. SCR 1206 – not correct law.
Vimlaben Ajitbhai Patel v. Vatsalben Ashokbhai Patel
and Ors., (2008) 4 SCC 649 : [2008] 4 SCR 1077 –
held inapplicable.
1.4  In the suit filed by the appellant where respondent has
pleaded and claimed that it is shared household and she has right
to live and it was on that ground she was resisting the suit for
mandatory injunction, the question that whether the suit property
is a shared household or not becomes relevant and necessary
and the said issue cannot be skipped on the ground that application
under D.V. Act is pending. In the regular suit, which has been
filed by the appellant, the plea of defendant that suit property is
her shared household and she has right to residence could have
been very well gone into by virtue of Section 26. [Para 82][244-
G-H; 245-A]
1.5 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. The directions issued by High court in paragraph 56
adequately balances the rights of both the parties. [Para 83][245-
B-C]
2. The power under Order XII Rule 6 is discretionary and
cannot be claimed as a matter of right. In the facts of the present
case, the Trial Court ought not to have given judgment under
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Order XII Rule 6 on the admission of the defendant as contained
in her application filed under Section 12 of the D.V. Act. Thus,
there are more than one reason for not approving the course of
action adopted by Trial Court in passing the judgment under Order
XII Rule 6. [Para 98][253-A-B]
Hiral P. Harsora and others v. Kusum Narottamdas
Harsora and others, (2016) 10 SCC 165 : [2016]
9 SCR 515; Vaishali Abhimanyu Joshi v. Nanasaheb
Gopal Joshi, (2017) 14 SCC 373 : [2017] SCR 488;
Eveneet Singh v. Prashant Chaudhri, (2010) SCC
online Delhi 4507; Eveneet Singh v. Prashant
Chaudhari, (2011) SCC online Delhi 4651; Preeti Satija
v. Raj Kumari and Anr., (2014) SCC online Delhi 188;
B. R. Mehta v. Atma Devi and Ors., (1987) 4 SCC
183 : [1987] 3 SCR 1184; Kunapareddy Alias
NookalaShanka Balaji v. Kunapareddy Swarna Kumari
and Anr., (2016) 11 SCC 774 : [2016] 2 SCR 608;
Captain Ramesh Chander Kaushal v. Mrs. Veena
Kaushal and Ors., (1978) 4 SCC 70 : [1978] 3 SCR 
782; Manmohan Attavar v. Neelam Manmohan Attavar,
(2017) 8 SCC 550 : [2017] 6 SCR 356; Bharat Coop.
Bank (Mumbai) Ltd. v. Coop. Bank Employees Union,
(2007) 4 SCC 685 : [2007] 4 SCR 347; Pioneer Urban
Land and Infrastructure Limited and Anr. v. Union of
India and Ors., (2019) 8 SCC 416 : [2019] 10 SCR 381;
The South Gujarat Roofing Tiles Manufacturers
Association and Anr. v. The State of Gujarat and Anr.,
(1976) 4 SCC 601 : [1977] 1 SCR  878; Karnataka
Power Transmission Corporation and Anr. v. Ashok Iron
Works Private Limited, (2009) 3 SCC 240 : [2009]
1 SCR 1109 – referred to
3.1 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. 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][254-C-D]
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3.2 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 was
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 Act, 2005. Although the Magistrate
passed an interim order in the application filed by the defendant
under Section 12 on 26.11.2016 but said order was interim order
which was passed on the satisfaction of the Magistrate that “the
application prima facie disclosed that the respondent is
committing or has committed an act of domestic violence”. 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. Thus, for
the purposes of determination of right of defendant under Sections
17 and 19 read with Section 26 in the suit in question, the plaintiff
can be treated as “respondent”, but for the grant of any relief to
the defendant or for successful resisting the suit of the plaintiff,
necessary conditions for grant of relief as prescribed under the
Act, 2005 has to be pleaded and proved by the defendant, only
then the relief can
be granted by the Civil Court to the defendant.
[Paras 103, 104][254-D-G; 254-G-H; 255-A]
4.1 Section 17 of the Act 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. 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
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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. [Paras 105, 106][255-B-
E]
4.2 Section 25(2) itself contemplates an eventuality when
order passed under the Act can be altered, modified or revoked.
The right to reside in shared household as granted by Section 17
itself contemplates an exception in express words, i.e., “save in
accordance with the procedure established by law”. The
procedure prescribed for proceedings under Section 19 as
provided in Section 28 of the Act is as per the provisions of the
Code of Criminal Procedure, 1973. The rules have been framed
under the Act, 2005, namely “The Protection of Women from
Domestic Violence Rules, 2006”. Rule 5 deals with Domestic
Incident Report which is to be submitted by protection officer in
Form I. Form-II is again part of Rule which contains various
details including orders required, residence orders, under Section
19, monetary relief under Section 20, details of previous litigation,
if any, and other details to enable the Magistrate to take
appropriate decision. Rule 6 sub-Rule (4) provides that for
obtaining an interim ex-parte order under Section 23, an affidavit
is to be filed in Form-III. The Form-III is an affidavit of an
aggrieved person or the person
filing affidavit on behalf of his
ward, daughter, etc. The Act and the Rules thus provide for a
procedure and manner of filing an application for obtaining a relief
under Act, 2005. [Paras 107, 109, 110,  111][256-D-H; 257-A-C]
4.3 Section 145 of Cr.P.C. provides for procedure where
dispute concerning land or water is likely to cause breach of peace.
Under Section 145 Cr.P.C., in case Magistrate is satisfied that a
dispute likely to cause a breach of the peace exists, he may require
the parties to attend the Court and to decide whether any and
which of the parties was, at the date of the order made by him
under sub-section (1), in possession of the subject of dispute.
Sub-section (6) of Section 145 Cr.P.C. contemplates issuance of
the order by the Magistrate declaring such party to be entitled
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to such possession. Sub-section (6), however, contemplates that
the parties to be entitled to possession thereof until evicted
therefrom in due course of law. The eviction in due course of law
was contemplated to be by a competent court. This Court had
occasion to consider the expression “until evicted therefrom in
due course of law” as occurring in Section 145(6) in **Shanti
Kumar Panda Vs. Shakuntala Devi. This Court held in the above
case that the purpose of provisions of Section 145 Cr.P.C. is to
provide a speedy and summary remedy so as to prevent a breach
of the peace by submitting the dispute to the Executive
Magistrate for resolution as between the parties disputing the
question of possession over the property. This Court held that
the unsuccessful party in proceedings under Section 145 Cr.P.C.
ought to sue for recovery of possession seeking a decree or order
for restoration of possession. This Court further held that finding
recorded by the Magistrate under Section 145 Cr.P.C. does not
bind when the matter comes for adjudication before competent
court. This Court explained expression “until evicted therefrom
in due course of law” mean “any court which has jurisdictional
competence to decide the question of title or rights to the property
or entitlement to possession”. [Paras 112, 113, 114][257-C-H;
258-D-E]
**Shanti Kumar Panda v. Shakuntala Devi, (2004) 1
SCC 438 : [2003] 5 Suppl. SCR 98 – relied on
4.4
Drawing the analogy from **Shanti Kumar Panda case,
the expression “save in accordance with the procedure established
by law”, in Section 17(2) of the Act, 2005 contemplates the
proceedings in court of competent jurisdiction. Thus, suit for
mandatory and permanent injunction/eviction or possession by
the owner of the property is maintainable before a Competent
Court. 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
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suit by the owner as to whether the women need to be excluded
or evicted from the shared household. [Para 116][260-B-E]
4.5 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 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 Act, 2005 of not to be evicted or
excluded save in accordance with the procedure established by
law operates only against the “respondent”, i.e., one who is
respondent within the meaning of Section 2(q) of Act, 2005.
[Para 117][260-G-H; 261-A-B]
5.1 In the present case, although plaintiff has not claimed
any relief against his son, the husband of the respondent, hence,
he was not a necessary party but in view of the fact that
respondent has pleaded her right of residence in shared
household relying on Sections 17 and 19 of the 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. The right
of maintenance as per the
provisions of Hindu Adoption and
Maintenance Act, 1956 is against that of the husband, hence he
may be a proper party in cases when the Court is to consider the
claim of respondent under Sections 17 and 19 read with Section
26 of the Act, 2005. [Para 119][262-B-D]
5.2 Civil Procedure Code, Order I Rule 10 empowers the
Court at any stage of the proceedings either on an application or
suo moto to add a party either as plaintiff or defendant, whose
presence before the Court may be necessary in order to enable
the Court effectively and completely adjudicate upon and settle
all the questions involved in the suit. The High Court in paragraph
56(i) directed to remand the matters back to the Trial Court for
fresh adjudication in accordance with the directions that at the
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first instance, in all cases where the respondent’s son/the
appellant’s husband has not been impleaded, the Trial Court shall
direct his impleadment by invoking its suo motu powers under
Order I Rule 10 CPC. This direction is a little wide and
preemptory. If the High Court was satisfied that impleadment of
husband of defendant was necessary, it could have invoked the
power itself under Order I Rule 10 and directed for such
impleadment. The  direction in paragraph 56(i) should not be
treated as a general direction to the Courts to implead in all cases
the husband of an aggrieved person and it is trial court which is
to exercise the jurisdiction under Order I Rule 10. [Paras 120,
121][262-D-G; 263-B]
6.1 There can be no applicability of principle of res judicata
when orders of Criminal Courts are pitted against proceedings
in Civil Court. 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][264-
E-G]
6.2 Section 40 renders admissible judgments which operate
as placing any bar on a suit or trial as plea of res judicata or
otherwise under some rule of law. 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 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
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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. [Paras 127, 128][266-C-F]
6.3  Section 42 deals with admissibility of judgments relevant
to matters of public nature though not between the parties and
privy but such judgments, orders or decree are not conclusive
proof of that they state. Section 43 says that judgment other than
those mentioned in Sections 40 to 42 are irrelevant unless the
existence of judgment, order or decree is fact in issue or is
relevant under some other provisions of the Act. In the facts of
this case, where there are pleadings in suit in question regarding
proceeding under Section 12, the existence of orders passed
under Act, 2005 are relevant and admissible in Civil Proceedings.
[Para 129][266-F-H]
7.1 The proceedings under D.V. Act, 2005 are proceedings
which are to be governed by Code of Criminal Procedure, 1973.
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
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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. [Paras 130, 131][266-H; 267-A-E]
7.2 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. 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.However, at the same time, 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. [Paras 132, 133, 134][267-E-H]
7.3 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. 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, the findings/orders passed by the one forum has
to be considered by another forum. [Para 136][268-A-D]
Navneet Arora v. Surender Kaur and Ors., (2014) SCC
Online Del 7617; Maria Margarida Sequeira
Fernandes and Ors. v. Erasmo Jack De Sequeira, (2012)
5 SCC 370 : [2012] 3 SCR 841; Himani Alloys Limited
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E
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205
v. Tata Steel Limited, (2011) 15 SCC 273 : [2011]
7 SCR 60; S. M. Asif v. Virender Kumar Bajaj, (2015)
9 SCC 287 : [2015] 9 SCR 179; Razia Begum v.
Sahebzadi Anwar Begum and others, AIR 1958 SC 886
: [1959] SCR 1111; Ramesh Hirachand Kundanmal v.
Municipal Corporation of Greater Bombay and others,
(1992) 2 SCC 524 : [1992] 2 SCR 1; M. S. Sheriff and
Anr. v. State of Madras and Ors., AIR 1954 SC 397 :
[1954] SCR 1144; S. M. Jakati and Anr. v. S. M. Borkar
and Ors., AIR 1959 SC 282 : [1959] SCR 1384;
G. Premshankar v. Inspector of Police and Anr., (2002)
8 SCC 87 : [2002] 2 Suppl. SCR 350; Iqbal Singh
Marwah and Anr. v. Meenakshi Marwah and Anr.,
(2005) 4 SCC 370 : [2005] 2 SCR 708; Seth Ramdayal
Jat v. Laxmi Prasad, (2009) 11 SCC 545 : [2009]
7 SCR 17; Vishnu Dutt Sharma v. Daya Sapra, (2009)
13 SCC 729 : [2009] 7 SCR 977; Kishan Singh (Dead)
Through LRs. v. Gurpal Singh and Ors., (2010) 8 SCC
775 : [2010] 10 SCR 16; K. Subramani v. Director of
Animal Husbandry, Chennai, (2009) 1 MLJ 363 –
referred to.
Case Law Reference
[2016] 9 SCR 515
referred to
Para 23
[1987] 3 SCR 1184
referred to
Para 34
[2016] 2 SCR 608
referred to
Para 37
[1978] 3 SCR 782
referred to
Para 39
[2017] 6 SCR 356
referred to
Para 40
[2007] 4 SCR 347
referred to
Para 49
[2019] 10 SCR 381
referred to
Para 50
[1977] 1 SCR 878
referred to
Para 51
[2009] 1 SCR 1109
referred to
Para 52
[2006] 10 Suppl. SCR 1206
not correct law
Para 64
[2008] 4 SCR 1077
held inapplicable
Para 65
[2012] 3 SCR
84
referred to
Para 79
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[2011] 7 SCR 60
referred to
Para 86
[2015] 9 SCR 179
referred to
Para 86
[2017] 5 SCR 488
referred to
Para 93
[2003] 5 Suppl. SCR 98
relied on
Para 113
[1959] SCR 1111
referred to
Para 118
[1992] 2 SCR 1
referred to
Para 118
[1954] SCR 1144
referred to
Para 139
[1959] SCR 1384
referred to
Para 142
[2002] 2 Suppl. SCR 350
referred to
Para 143
[2005] 2 SCR 708
referred to
Para 148
[2009] 7 SCR 17
referred to
Para 149
[2009] 7 SCR 977 
referred to
Para 151
[2010] 10 SCR 16
referred to
Para 152
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3483
of 2020.
From the Judgment and Order dated 18.12.2019 of the High Court
of Delhi at New Delhi in R.F.A. No. 381 of 2019.
Nidhesh Gupta, Sr. Adv. Prabhjit Jauhar, Ms. Tulika Bhatnagar,
Mr. S. S. Jauhar, Mohit Paul, Prashant Mehta, Himanshu Kapoor,
Ms. Prachi Mehta, Prateek Dhanda, Ms. Sunaina Phul, Madhav Gupta,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted.
2. This appeal raises important questions of law pertaining to the
interpretation and working of the Protection of Women from Domestic
Violence Act, 2005 (hereinafter referred to as “Act, 2005”).
3. This appeal has been filed by Satish Chander Ahuja, the plaintiff
questioning the judgment of Delhi High Court dated 18.12.2019 in RFA
No.381/2019 by which judgment Delhi High Court has set aside the
decree granted in favour of the plaintiff dated 08.04.2019 under

Order
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XII Rule 6 of Civil Procedure Code, decreeing the suit filed by the plaintiff
for mandatory and permanent injunction. The High Court after setting
aside the decree of the Trial Court has remanded the matter back to the
Trial Court for fresh adjudication in accordance with the directions given
by the High Court. The plaintiff aggrieved by the judgment of the High
Court has come up in this appeal.
4. We may notice the brief facts of the case and relevant pleadings
of the parties for determining the questions which have arisen for
consideration in this appeal.
5. The appellant by deed dated 12.01.1983 purchased property
bearing No.D-1077, New Friends Colony, New Delhi. The son of the
appellant, Raveen Ahuja was married to the respondent, Sneha Ahuja
on 04.03.1995. After marriage the respondent started living in the first
floor of the house No.D-1077, Friends Colony, New Delhi along with
her husband. There being marital discord between Raveen and Sneha,
in July, 2014, Raveen moved out of the first floor and started staying in
the guest room of the ground floor. In the year 2004 a separate kitchen
was started by the respondent in the first floor of the house. Raveen, the
husband of the respondent filed a Divorce Petition on 28.11.2014 under
Section 13(1)(ia) and (iii) of Hindu Marriage Act, 1955 for decree of
divorce on the ground of cruelty against the respondent, Sneha Ahuja
which proceeding is said to be still pending. The respondent, Sneha Ahuja,
on
20.11.2015, i.e., after filing of the Divorce Petition, filed an application
under Section 12 of Act, 2005 impleading Raveen Ahuja as respondent
No.1, Shri Satish Ahuja, respondent No.2 and Dr. Prem Kanta
Ahuja(mother-in-law of the respondent), respondent No.3. In the
complaint it was alleged that Sneha Ahuja has been subjected to severe
emotional and mental abuse by the respondents. In the application
respondent prayed for several orders under Act, 2005. The learned Chief
Metropolitan Magistrate before whom the complaint was filed passed
an interim order on 26.11.2016 to the following effect:
“The respondents shall not alienate the alleged shared household
nor would they dispossess the complainant or their children from
the same without Orders of a Competent Court. These directions
shall continue till next date.”
6. The appellant filed a Suit No.792/2017 impleading the
respondent as sole-defendant for mandatory and permanent injunction
and also for recovery of damages/mesne profit. Plaintiff’s case in the
SATISH CHANDER AHUJA v. SNEHA AHUJA
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suit was that he is a senior citizen of 76 years old, the defendant is in
occupation of two bed rooms with attached dressing and bath rooms
and a kitchen on the first floor of the property bearing No. D-1077, New
Friends Colony, New Delhi. Plaintiff pleaded that he is a heart patient
and has undergone angioplasty twice and suffers from hypertension and
high blood pressure. Plaintiff pleads that the defendant has filed false
and frivolous cases against the plaintiff and his wife and hence he prays
for removal of the defendant from the suit property so as he may live
peaceful life. Plaintiff further pleaded that the plaintiff acquired the house
from the previous owner, namely, Kulbhushan Jain on 12.01.1983. He
also pleaded that the property has been converted into free hold vide
conveyance deed executed in his favour dated 14.07.2003 which is
registered. Plaintiff pleaded that his elder son was married with the
defendant on 04.03.1995. The plaintiff further pleaded that wife of the
plaintiff has been subjected to various threats and violence in the hands
of the defendant on several occasions. The mention of the Divorce
Petition filed by Raveen was made in the plaint and it was pleaded that
the defendant as a counter blast has filed the complaint case under the
Protection of Women from Domestic Violence Act, 2005 in which interim
order directing the plaintiff not to alienate and not to dispossess the
defendant without
order of the competent court has been passed.
7. Plaintiff claimed that he and his wife has become victim of
domestic violence on the part of the defendant. Plaintiff pleaded that the
status of occupation of defendant as a daughter-in-law during subsistence
of marriage with the son could be said to be permissive in nature and
defendant is not entitled to claim a right of residence against the plaintiff,
i.e., her father-in-law who has no obligation to maintain her during the
lifetime of her husband. Plaintiff in the suit prayed for decree for
mandatory injunction against the defendant to remove herself and her
belonging from the first floor of the property and a decree of permanent
injunction in favour of the plaintiff and against the defendant thereby
restraining the defendants, her agents, employees, representatives, etc.
from in any manner creating interference or obstruction of the right of
the plaintiff in the suit property and restrain her from causing interference
in the peaceful occupation of the plaintiff in the ground floor of the
property. Decree of recovery of damages/mesne profit was also asked
for the use and occupation of the suit property of Rs.1 lac from the date
of filing of the suit till the defendant is removed from the suit property.
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8. A written statement was filed by the defendant pleading that
house property was acquired by the plaintiff through joint family funds
and not his self-acquired property. It was pleaded in the written statement
that the plaintiff has suppressed the true and material facts regarding
causing physical and mental torture to the defendant on account of
domestic violence etc. by the plaintiff, his wife and their elder son.
9. The defendant also referred to filing of complaint case under
section 12 of Act, 2005. The defendant claimed that the suit property is
a shared household as per provision of Section 2(s) of the Act, 2005, the
defendant has right to stay/reside in the shared household. The plaintiff
has filed suit in the collusion of his son Raveen Ahuja to deprive the legal
right of the residence of the defendant and her daughters in the suit
property. It was pleaded further that the defendant has been subjected
to severe emotional and mental abuse by the plaintiff, his wife and their
elder son. The defendant further pleads that since marriage defendant is
staying in the shared household of the first floor which is a matrimonial
home of the defendant. The interim order passed in complaint case dated
16.07.2016 and 26.11.2016 has been also referred to.
10. Plaintiff filed an application under Order XII Rule 6 CPC on
05.01.2018 read with Section 151 CPC for passing a decree on the basis
of admissions made by the defendant in the application under Section 12
of Act, 2005. Plaintiff pleaded that property in question is self-acquired
property of the plaintiff by agreement to sell dated 12.01.1983 followed
by a registered conveyance deed dated 14.07.2003. The defendant has
herself in her pleadings filed in the domestic violence case admitted the
plaintiff to be the owner of the suit property, hence, decree of mandatory
injunction in favour of the plaintiff be granted.
11. The defendant filed an application on 23.09.2017 under Order
XI Rules 12 and 14 CPC for production of documents. In paragraph 7 of
the application, the defendant referred to various documents which
according to the defendant were relevant for deciding the suit. By the
application documents were sought to be produced by the plaintiff. The
Trial Court vide its order dated 20.03.2018 directed the plaintiff to file an
affidavit and documents as sought for in the application under Order XI
Rule 13 which are in his custody with advance copy to the opposite
party. A reply was filed by the defendant on 15.02.2018 to the application
filed by the plaintiff under Order XII Rule 6 CPC. The defendant again
reiterated that the shared household was acquired by the plaintiff through
joint-family business and the house is not his self-acquired property.
SATISH CHANDER AHUJA v. SNEHA AHUJA
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12. The plaintiff also filed an affidavit and documents under Order
XI Rule 13 CPC in compliance of the order of the Trial Court dated
20.03.2018.
13. The Trial Court proceeded to decide the application under
Order XII Rule 6 CPC filed by the plaintiff. By judgment dated 08.04.2019
Trial Court decreed the suit in the following manner:
“26. In the light of aforesaid discussion and the observations, this
Court is of the considered opinion that there are sufficient admission
to pass a decree in favour of the plaintiff. Consequently, suit of
the plaintiff is decreed for the relief of mandatory and permanent
injunction as prayed for. The defendant is directed to hand over
the vacant and physical possession of the suit property to the
plaintiff within 15 days. At the time of announcement of the order,
this Court asked plaintiff whether he wants to pursue his suit for
the relief of damages to which he agreed to waive off the said
relief. Accordingly, statement of the plaintiff was also recorded to
this effect. Accordingly, the relief of damages stands withdrawn.
Decree sheet be prepared for the relief of permanent and
mandatory injunction accordingly. There is no order as to costs.
File be consigned to record room. As requested, copy of this
judgment be given dasti.”
14. Aggrieved with the judgment of Trial Court the defendant
filed RFA No.381 of 2019 in the High Court of Delhi. The Delhi High
Court heard the RFA filed by
the respondent along with five other RFAs
and by a common judgment dated 18.12.2019 set aside the decree of the
Trial Court and remanded the matter to the Trial Court for fresh
adjudication in accordance with the directions given in paragraph 56 of
the judgment.
15. The High Court noticed the facts of the different appeals and
submissions made by the learned counsel. The High Court opined that
the real point of determination in the appeal is not as to whether suit
premises is a shared household or not and since the domestic violence
proceedings initiated by the daughter-in-law are pending adjudication,
determination of this issue in suit proceedings would result in causing
serious prejudice to the claim of the applicant in the domestic violence
proceedings. The High Court observed that it had consciously refrained
from determining the question as to whether the suit premises is shared
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household or not. The High Court was of the view that the decisions
cited have not considered the effect of the pending domestic violence
application instituted by daughter-in-law upon the civil suit. The High
Court, however, held that suit for possession instituted cannot be said to
be non-maintainable since necessary answer falls within the term
“procedure established by law”. The High Court has further observed
that question is whether the suit could be simply decreed by the Trial
Court on the basis of the title without weighing the effect of the statutory
right in favour of the appellant. The High Court in paragraph 33 made
following observation:
“33……………Thus, I find that the DV Act has aspired to bring
in a sea change in the rights of persons affected by domestic
violence by ensuring that irrespective of the ownership of the suit
premises where the aggrieved person resided, she would still retain
the right to reside therein as long as she was able to prove that
she had endured domestic violence while being in a domestic
relationship with the owner of such premises.”
16. The High Court opined that the Trial Court erroneously
proceeded to pass decree under Order XII Rule 6 CPC by not impleading
the husband and failing to appreciate the specific submission of the
appellant while admitting the title of the respondent that the suit premises
was the joint family property but also losing the site of the DV Act. The
directions given by the High Court are
contained in the paragraph 56 to
the following effect:
“56. In these circumstances, the impugned judgments cannot be
sustained and are accordingly set aside. The matters are remanded
back to the Trial Court for fresh adjudication in accordance with
the directions given hereinbelow:
(i)At the first instance, in all cases where the respondent’s
son/the appellant’s husband has not been impleaded, the Trial
Court shall direct his impleadment by invoking its suo motu
powers under Order I Rule 10 CPC.
(ii) The Trial Court will then consider whether the appellant
had made any unambiguous admission about the respondent’s
ownership rights in respect of the suit premises; if she has and
her only defence to being dispossessed there from is her right
of residence under the DV Act, then the Trial Court shall, before
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passing a decree of possession on the wife premise of
ownership rights, ensure that in view of the subsisting rights of
the appellant under the DV Act, she is provided with an alternate
accommodation as per Section 19(1)(f) of the DV Act, which
will continue to be provided to her till the subsistence of her
matrimonial relationship.
(iii) In cases where the appellant specifically disputes the
exclusive ownership rights of the respondents over the suit
premises notwithstanding the title documents in their favour,
the Trial Court, while granting her an opportunity to lead
evidence in support of her claim, will be entitled to pass interim
orders on applications moved by the respondents, directing the
appellant to vacate the suit premises subject to the provision of
a suitable alternate accommodation to her under Section
19(1)(f) of the DV Act, which direction would also be subject
to the final outcome of the suit.
(iv) While determining as to whether the appellant’s husband
or the in-laws bears the responsibility of providing such
alternate accommodation to the appellant, if any, the Trial Court
may be guided by paragraph 46 of the decision in Vinay Verma
(supra).
(v) The Trial Court shall ensure that adequate safeguards are
put in place to ensure that the direction for alternate
accommodation is not rendered meaningless and that a shelter
is duly secured for the appellant, during the subsistence of her
matrimonial
relationship.
(vi) This exercise of directing the appellant to vacate the suit
premises by granting her alternate accommodation will be
completed expeditiously and not later than 6 months from
today.”
17. The plaintiff-appellant aggrieved by the judgment of the High
Court dated 18.12.2019 has come up in this appeal.
18. We have heard Shri Prabhjit Jauhar, learned  counsel for the
appellant. Shri Nidhesh Gupta, learned senior counsel has appeared for
the respondent. We have also heard Ms. Geeta Luthra, learned senior
counsel and Shri Jayant Bhushan, learned senior counsel in the connected
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SLP (C) No.9415 of 2020 in which parties are stated to have entered
into a settlement.
19. Shri Prabhjit Jauhar, learned counsel for appellant contends
that suit property which is exclusively owned by the appellant is not a
shared household. The son of the appellant, Raveen has no right in the
property and the son as well as respondent-daughter-in-law were only
gratuitous licencees of the appellant. The appellant purchased the
property in the year 1983, at that time the son of the appellant was only
14 years old. It is submitted that the respondent can claim right to reside
only in house which is either joint family property or the husband of the
respondent has a share in it. In the property belonging to father of the
husband, she has no right to reside. Learned counsel for the appellant
has relied on judgment of this Court in S.R. Batra and Anr. Vs. Taruna
Batra, (2007) 3 SCC 169, where two-Judge Bench of this Court held
that the wife is entitled only to claim a right under Section 17(1) to
residence in a shared household and a shared household would only
mean the house belonging to or taken on rent by the husband, or the
house which belongs to the joint family of which the husband is a member.
20. It is submitted that the complaint under the Act, 2005 filed by
the respondent was only a counter blast to the Divorce Petition dated
28.11.2014 filed by the husband of the respondent. It is submitted that
Sections 17 and 19 of the Act, 2005 do not contemplate
a proprietary or
ownership right in the shared household for the aggrieved person. Shri
Jauhar further submits that her claim for alternate accommodation can
be made qua husband and not qua the father-in-law because her
relationship in the household emanates pursuant to the marriage and
father-in-law cannot be under a statutory obligation to provide for the
residence and maintenance of daughter-in-law. Shri Jauhar submits that
unless the definition of shared household under Section 2(s) is not
interpreted in a manner confining the definition of shared household to
joint family or the property where the husband has a share it will create
chaos in the society. It is submitted that extensive interpretation of shared
household would lead the chaos in the society which needs to be avoided
for protecting peace and harmony in the society. He submitted that
harmonious construction by interpretation in the suit is to be adopted so
that the right of the parties are balanced. Shri Jauhar submits that in her
application filed under Section 12 of Act, 2005, the respondent has asked
for alternate accommodation.
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21. Shri Jauhar submits that the High Court committed error in
not following the binding precedence of Delhi High Court itself. Shri
Jauhar submits that the respondent never filed a counter claim in the suit
filed by the appellant-owner, nor filed a suit for declaration of her claim
of property being joint family property. Shri Jauhar submits that the High
Court has not adverted to facts of different appeals and all appeals were
decided by a common judgment without referring to evidence and
pleadings in each appeal separately. The finding of the Trial Court has
not been overruled by the High Court in the appellant’s case. Shri Jauhar
further submits that husband is not a necessary party in a suit filed by
the father-in-law. Shri Jauhar submits that the Trial Court has rightly
decreed the suit under Order XII Rule 6 CPC relying on the admission
made by the respondent in her application under Section 12 of the Act,
2005. The High Court has not followed the binding judgment of this
Court in S. R. Batra Vs. Taruna Batra which was binding on the High
Court under Article 141 of the Constitution of India. Shri Jauhar submits
that rights of wife in other statutes like Hindu Marriage Act, 1955 and
Hindu Adoption and Maintenance Act, 1956 are only against the husband.
22. Shri Nidhesh Gupta, learned senior counsel appearing for the
respondent refuting the submission of the learned counsel for the appellant
supports the
judgment of the High Court. Shri Gupta submits that Act,
2005 granted protection and security of residence to woman. Shri Gupta
referring to definition of domestic relationship under Section 2(f) contends
that respondent was in domestic relationship with the appellant and the
appellant was respondent within the meaning of Section 2(q) against
whom allegation of domestic violence was made in petition under Section
12. Shri Gupta referring to definition of shared household under Section
2(s) submits that factum of residence and domestic relationship with the
respondent are the only qualification to fall within the ambit of definition
of shared household. Shri Gupta submits that second part of the definition
of the shared household is extensive in nature which gives certain example
but cannot be said to be exhaustive looking at scheme of the Act. He
submits that when ‘includes’ is used after the term “means” it is extensive
and not exhaustive in nature. The respondent being in domestic relationship
with the appellant living in the suit property since her marriage and
continues to do so till date, the property is shared household where the
appellant is staying. It is submitted that for shared household it is not
necessary that aggrieved person should have any right, title or interest.
It is further submitted that it is also not necessary that the husband of the
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woman should have any right, title or interest in the house. It is submitted
that protection under Section 17 is available in all legal proceedings
including the suit filed by the appellant.
23. Referring to Section 26 of the Act, 2005 Shri Gupta submits
that relief under Section 19 was very well available in Civil Procedure
Code. The plea taken by the respondent in her pleadings in the civil suit
would constitute the counter claim which warranted exercise of power
of Trial Court under Section 26 of the Act, 2005. Referring to the judgment
of this Court in S.R.Batra Vs. Taruna Batra, Shri Gupta submits that
the said judgment is distinguishable on facts. He submits that the said
case was pre-Act, 2005 case and secondly Taruna Batra admitted that
she had shifted to her parents’ residence at the time of institution of the
suit. It is submitted that the injunction was denied since Taruna Batra
was not residing in the house which finding was not liable to be interfered
with by the High Court under Article 226 or 227 as held by this Court.
Shri Gupta further submits that the judgment of this Court in S.R. Batra
case does not lay down correct law. He submits that the definition of
“shared household” has not been correctly analysed in S.R. Batra case.
The definition of respondent does not include only husband. The relatives
of the husband who have treated the aggrieved person with domestic
violence can be arrayed as respondent. There is no reason to extend
definition of shared household only to property in which the husband has
a share. It is submitted that S.R. Batra has not appreciated that second
part of the definition of shared household is merely illustration and not
exhaustive. S.R.Batra also erred in holding that alternative
accommodation under Section 19 can only be enforced against the
husband. Shri Gupta submits that the judgment of S.R. Batra does not
correctly interpret provisions of Act, 2005. Referring two subsequent
judgments of this Court, namely Hiral P. Harsora and others Vs.
Kusum Narottamdas Harsora and others, (2016) 10 SCC 165,
and Vaishali Abhimanyu Joshi Vs. Nanasaheb Gopal Joshi, (2017)
14 SCC 373, Shri Gupta submits that the above two judgments have
taken a view contrary to law lay down in S.R. Batra case. Shri Gupta
submits that present was not a case of granting any decree under Order
XII Rule 6, the respondent having categorically pleaded in the written
statement that the suit property was purchased from the joint family
fund. Shri Gupta referred to various documents which were brought on
the record before the Trial Court indicating that joint family fund was
utilised for purchasing the suit property.
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24. Shri Jayant Bhushan, learned senior counsel supporting the
submission of the learned counsel for the appellant contends that rights
of daughter-in-law are only to the extent of right of the husband/
respondent. He submits that in the definition in Section 2(s) the word
‘includes’ has to be read “means and includes”. Referring to term
household, Shri Bhushan referred to definition as given by Census of
India where common kitchen is a pre-requisite of a household.
25. Ms. Geeta Luthra supporting the submission of Shri Nidhesh
Gupta contends that household of father-in-law will be shared household
of daughter-in-law where she is living since marriage. Ms. Luthra relies
on the judgment of Delhi Court in Eveneet Singh Vs. Prashant
Chaudhri, 2010 SCC online Delhi 4507, Division Bench judgment
of Delhi High Court in Eveneet Singh Vs. Prashant Chaudhari, 2011
SCC online Delhi 4651 and Division Bench judgment of the Delhi
High Court in Preeti Satija Vs. Raj Kumari and Anr., 2014 SCC
online Delhi 188.
26. Learned counsel for the parties have also referred to various
judgments of this Court and Delhi High Court which we will consider
while considering the submissions of the parties in detail.
27. From the submissions of the learned counsel for the parties
following questions arise for determination in this appeal:
(1)
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?
(2)
Whether judgment of this Court in S.R. Batra and Anr.
Vs. Taruna Batra, (2007) 3 SCC 169 has not correctly
interpreted the provision of Section 2(s) of Protection of
Women from Domestic Violence Act, 2005 and does not
lay down a correct law?
(3)
Whether the High Court has rightly come to the conclusion
that suit filed by the appellant could not have been decreed
under Order XII Rule 6 CPC?
(4)
Whether, when the defendant in her written statement
pleaded that suit property is her shared household and she
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has right to residence therein, the Trial Court could have
decreed the suit of the plaintiff without deciding such claim
of defendant which was permissible to be decided as per
Section 26 of the Act, 2005?
(5)
Whether the plaintiff in the suit giving rise to this appeal
can be said to be the respondent as per definition of Section
2(q) of Act, 2005 ?
(6)
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 Act, 2005 ?
(7)
Whether the husband of aggrieved party (defendant) is
necessary party in the suit filed by the plaintiff against the
defendant?
(8)
What is the effect of orders passed under Section 19 of the
Act, 2005 whether interim or final passed in the proceedings
initiated in a civil court of competent jurisdiction?
28. Before we consider the questions as noted above, we need to
notice the Statutory Scheme of the Protection of Women from Domestic
Violence Act, 2005.
29. 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.
30. 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.
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31. 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.
32. The enactment of 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. It is useful
to reproduce the Statement of Objects and Reasons, which are in the
following words:-
“4.  The Bill, inter alia, seeks to provide for the following ==
(i)
It covers those women who are or have been in
a relationship with the abuser where both parties have
lived together in a shared household and are related by
consanguinity, marriage or through a relationship in the
nature of marriage or adoption. In addition, relationships
with family members living together as a joint family
are also included. Even those women who are sisters,
widows, mothers, single women, or living with the abuser
are entitled to legal protection
under the proposed
legislation. However, whereas the Bill enables the wife
or the female living in a relationship in the nature of
marriage to file a complaint under the proposed
enactment against any relative of the husband or the
male partner, it does not enable any female relative of
the husband or the male partner to file a complaint against
the wife or the female partner.
XXXXXXXXXXXXXXXXXX
(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.
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This right is secured by a residence order, which is passed
by the Magistrate.
XXXXXXXXXXXXXXXXXXX”
33. The Statement of Objects and Reasons refers to three
International Conventions where recommendations were made to the
parties States to take measures including Legislation to protect women
against violence including occurring within the family. General
Recommendation No.XII of the United Nations Committee on Convention
on Elimination of All Forms of discrimination against women stated:-
“General Recommendation No. 12
(Eighth session, 1989)
Violence against women
The Committee on the Elimination of Discrimination against
Women.
Considering that Articles 2, 5, 11, 12 and 16 of the Convention
require the States parties to act to protect women against violence
of any kind occurring within the family, at the work place or in
any other area of social life.”
34. Even before the Act, 2005 was enacted, Justice Sabyasachi
Mukharji in B.R. Mehta Vs. Atma Devi and Ors., (1987) 4 SCC
183 has noted that right of occupation in matrimonial home which is
granted under Matrimonial Homes Act, 1967 in England are not granted
in India though it may be that with the change of situation and complex
problems arising, it is high time to give the wife or the spouse a right of
occupation.  In paragraph 6 following was laid down:-
“6. ……………….In England the rights of the spouses be
it the husband or the wife to the matrimonial home are now
governed by the provisions of Matrimonial
Homes Act, 1967.
Halsbury’s Laws of England, Fourth Edition, Vol. 22 page 650
deals with the rights of occupation in matrimonial home and
paragraph 1047 deals with and provides that where one spouse is
entitled to occupy a dwelling house by virtue of any estate or
interest or contract or by virtue of any enactment giving him or
her the right to remain in occupation, and the other spouse is not
so entitled, then the spouse not so entitled has the certain rights
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(known as “rights of occupation”) that is to say if in occupation, a
right not to be evicted or excluded from the dwelling house or any
part of it by the other spouse except with the leave of the court
given by an order, if not in occupation, a right with the leave of the
court so given to enter into and occupy the dwelling house. But
such rights are not granted in India though it may be that with
change of situation and complex problems arising it is high time to
give the wife or the spouse a right of occupation in a truly
matrimonial home, in case of marriage breaking up or in case of
strained relationship between the husband and the
wife………………………….”
35. In the laws of United Kingdom, the rights of husband or wife
to occupy a dwelling house, which has been the matrimonial home, was
included in Matrimonial Homes Act, 1967. Section 1(1) of the Act
provides:-
“Protection against eviction, etc., from matrimonial
home of spouse not entitled by virtue of estate, etc., to
occupy if
1. -(1)Where one spouse is entitled to occupy a dwelling
house by virtue of any estate or interest or contract or by virtue of
any enactment giving him or her the right to remain in occupation,
and the other spouse is not so entitled, then, subject to the provisions
of this Act, the spouse not so entitled shall have the following
rights (in this Act referred to as “rights of occupation”)—
(a) if in occupation, a right not to be evicted or
excluded from
the dwelling house or any part thereof by the other spouse
except with the leave of the court given by an order under this
section;
(b) if not in occupation, a right with the leave of the court so
given to enter into and occupy the dwelling house.”
36. By subsequent enactment, Matrimonial Homes Act, 1983
although Matrimonial Homes Act, 1967 was repealed, same protection
was continued to occupy the matrimonial home and the said right was
continued by virtue of Section 1(1), which was to the same effect.  The
Family Law Act, 1996 was enacted in the United Kingdom where a
separate chapter “Chapter IV – Family Homes and Domestic Violence”
was enacted.  Section 30 of which provision is as follows:-
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“30  Rights concerning home where one spouse or civil
partner has no estate, etc.
(1) This section applies if—
(a) one spouse  or civil partner is entitled to occupy a
dwelling-house by virtue of—
(i) a beneficial estate or interest or contract; or
(ii) any enactment giving the right to remain in
occupation; and
(b) the other spouse or civil partner is not so entitled.
(2) Subject to the provisions of this Part, has the following
rights “home rights”—
(a) if in occupation, a right not to be evicted or excluded
from the dwelling-house or any part of it by  except with the leave
of the court given by an order under section 33;
(b) if not in occupation, a right with the leave of the court
so given to enter into and occupy the dwelling-house.
(3) If is entitled under this section to occupy a dwelling-
house or any part of a dwelling-house, any payment or tender
made or other thing done by  in or towards satisfaction of any
liability of in respect of rent, mortgage payments or other outgoings
affecting the dwelling-house is, whether or not it is made or done
in pursuance of an order under section 40, as good as if made or
done by .
XXXXXXXXXXXXXXXX”
37. The right of occupation of matrimonial home, which was not
so far part of the statutory law in India came to be included in Act, 2005.
Need of such legislation as noticed by Justice Sabyasachi Mukharji has
been fulfilled by enactment of Act, 2005.
38. As noticed above, from the Statement of Objects and Reasons,
the Act was enacted to fulfill the definite objectives for protection of
women. This Court had occasion to examine the purpose of enactment
of Act, 2005 in Kunapareddy Alias NookalaShanka Balaji Vs.
Kunapareddy Swarna Kumari and Anr., (2016) 11 SCC 774 wherein
paragraph 12 following was stated:-
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“12. In 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, especially 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 violated, it assumes the character of criminality………………”
39. The Act, 2005 is a further step to secure social justice by
legislation. There has been several earlier measures for protection of
women like Section 125 Cr.P.C. and 498-A of India Penal Code. Justice
Krishna Iyer in Captain Ramesh Chander Kaushal Vs. Mrs. Veena
Kaushal and Ors., (1978) 4 SCC 70 noted the objectives of enacting
Section 125 Cr.P.C. in following words in paragraph 9:-
“9. This provision is a measure of social justice and specially
enacted to protect women and children and falls within the
constitutional sweep of
Article 15(3) reinforced by Article 39. We
have no doubt that sections of statutes calling for construction by
Courts are not petrified print but vibrant words with social functions
to fulfil. The brooding presence of the constitutional empathy for
the weaker sections like women and children must inform
interpretation if it has to have social relevance. So viewed, it is
possible to be selective in picking out that interpretation out of
two alternatives which advance the cause—the cause of the
derelicts.
40. Enactment of Act, 2005 is another step in the same direction.
This Court in Manmohan Attavar Vs. Neelam Manmohan Attavar,
(2017) 8 SCC 550 noticed that Act, 2005 has been enacted to create
an entitlement in favour of the woman of the right of residence. In
paragraph 15, following was observed:-
“15. A reading of the aforesaid provisions shows that it creates
an entitlement in favour of the woman of the right of residence
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under the “shared household” irrespective of her having any legal
interests in the same. The direction, inter alia, can include an order
restraining dispossession or a direction to remove himself on being
satisfied that domestic violence had taken place.”
41. Now, we proceed to notice certain provisions of Act, 2005,
which are relevant for determination of the issues as arisen in the present
appeal. According to Section 2(a) “aggrieved person” means any person,
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” has been defined in Section
2(f) in following words:-
“(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;”
42. The expression “respondent” is defined in Section 2 (q) in
following words:-
“(q) “respondent” means any adult male person who is, or
has been, in a domestic relationship with the aggrieved person
and against whom the aggrieved person has sought any relief
under this Act:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file a complaint
against a relative of the husband or the male partner;”
43.
The words “adult male” as occurring in Section 2(q) has been
struck down by this Court in Hiral P. Harsora and Ors. Vs. Kusum
Narottamdas Harsora and Ors., (2016) 10 SCC 165. Consequently,
the respondent can also be a female in domestic relationship with the
aggrieved person. The next definition, which is relevant to be noticed is
Section 2(s), which defines shared household. Shared household is
defined in following words:-
“(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 household whether owned or tenanted either jointly by the
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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;”
44. Section 3 defines “domestic violence”. Sections 4 to 11
occurring in Chapter III deals with powers and duties of protection
officers, service providers etc.  Section 12 occurring in Chapter IV –
“Procedure for obtaining orders of reliefs” deals with details of application
to Magistrate. Section 12 is as follows:-
“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.
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(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.”
45. Section 17 provides that every woman in a domestic relationship
shall have the right to reside in the shared household. Section 17 is as
follows:-
“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.”
46. Section 18 deals with protection orders. Section 19 deals with
residence orders. Section 20 deals with monetary reliefs. Section 23
deals with power to grant interim and ex parte orders.  Section 26 deals
with relief in other suits and legal proceedings.
47. After briefly noticing the outline of Act, 2005, we, now, proceed
to consider the questions noted above.
Questions Nos. 1 and 2
48. Both the above questions being inter-related are being taken
together. We may recapitulate the facts of the present case in
reference
to shared household. The suit property was purchased by appellant in
the year 1983 in his name. The respondent got married to the son of
appellant on 04.03.1995 and after marriage she was living in first floor
of suit property. Till July, 2004, the husband of respondent also lived in
first floor whereafter due to marital discord, he shifted in the guest room
on the ground floor. In the suit filed by the appellant for mandatory and
permanent injunction, appellant pleaded that he is the sole owner of the
house and prayed for removal of respondent, his daughter-in-law from
the first floor of the house. The respondent had filed a written statement
in the suit and claimed that the suit property is a shared household where
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the respondent had right to reside. The submission of learned counsel
for the appellant is that the premises is not a shared household since the
husband of the respondent neither has any share in the suit premises nor
suit premises is a joint family property. In support of his submission, he
relies on judgment of this Court in S. R. Batra and Ors. Vs. Taruna
Batra (supra).
49. The definition of shared household given under Section 2(s)
as noticed above 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”.  A Three Judge bench judgment of this Court in Bharat
Coop. Bank (Mumbai) Ltd. Vs. Coop. Bank Employees Union,
(2007) 4 SCC 685 had occasion to consider Section 2(bb) of Industrial
Disputes Act, 1947, which section used both the words “means and
includes”.  Explaining both the expressions, following was laid down in
paragraph 23:-
“23. ……………………………………………….It is trite to
say that when in the definition clause given in any statute the
word “means” is used, what follows is intended to speak
exhaustively. When the word “means” is used in the definition, to
borrow the words of Lord Esher, M.R. in Gough v. Gough [(1891)
2 QB 665] it is a “hard-and-fast” definition and no meaning other
than that which is put in
the definition can be assigned to the
same. (Also see P. Kasilingam v. P.S.G. College of
Technology [1995 Supp (2) SCC 348 : AIR 1995 SC 1395].) On
the other hand, when the word “includes” is used in the definition,
the legislature does not intend to restrict the definition: it makes
the definition enumerative but not exhaustive. That is to say, the
term defined will retain its ordinary meaning but its scope would
be extended to bring within it matters, which in its ordinary meaning
may or may not comprise. Therefore, the use of the word “means”
followed by the word “includes” in Section 2(bb) of the ID Act is
clearly indicative of the legislative intent to make the definition
exhaustive and would cover only those banking companies which
fall within the purview of the definition and no other.”
50. We may notice another judgment of this Court in Pioneer
Urban Land and Infrastructure Limited and Anr. Vs. Union of
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India and Ors., (2019) 8 SCC 416 where this Court had occasion to
consider both the expressions, i.e., “means and includes”. In paragraph
82, this Court laid down:-
“82. ………………………In fact, in Jagir Singh v. State
of Bihar [(1976) 2 SCC 942] , SCC paras 11 and 19 to 21
and Mahalakshmi Oil Mills v. State of A.P. [(1989) 1 SCC 164],
SCC paras 8 and 11 (which has been cited in P. Kasilingam [P.
Kasilingam v. PSG College of Technology, 1995 Supp (2) SCC
348]), this Court set out definition sections where the expression
“means” was followed by some words, after which came the
expression “and includes” followed by other words, just as in Krishi
Utpadan Mandi Samiti case [Krishi Utpadan Mandi
Samiti v. Shankar Industries, 1993 Supp (3) SCC 361 (2)] . In
two other recent judgments, Bharat Coop. Bank (Mumbai)
Ltd. v. Employees Union [(2007) 4 SCC 685], SCC paras 12 and
23 and State of W.B. v. Associated Contractors [State of
W.B. v. Associated Contractors, (2015) 1 SCC 32], SCC para
14, this Court has held that wherever the expression “means” is
followed by the expression “and includes” whether with or without
additional words separating “means” from “includes”, these
expressions indicate that the definition provision is exhaustive as
a matter of statutory interpretation. It has also been held that the
expression “and includes” is an expression which extends the
definition contained in words which follow the expression
“means”……………………………”
51. We may notice two more
judgments relied by Shri Jayant
Bhushan, learned senior counsel, i.e., The South Gujarat Roofing Tiles
Manufacturers Association and Anr. Vs. The State of Gujarat and
Anr., (1976) 4 SCC 601. Shri Bhushan’s submission is that use of
expression “includes” in Section 2(s) has to be read as means. He placed
reliance on following observations made by this Court in paragraph 5:-
“5. XXXXXXXXXXXXXXXX
………………………….Though “include” is generally used in
interpretation clauses as a word of enlargement, in some cases
the context might suggest a different intention. Pottery is an
expression of very wide import, embracing all objects made of
clay and hardened by heat. If it had been the legislature’s intention
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to bring within the entry all possible articles of pottery, it was quite
unnecessary to add an explanation. We have found that the
explanation could not possibly have been introduced to extend the
meaning of potteries industry or the articles listed therein added ex
abundanti cautela. It seems to us therefore that the legislature did
not intend everything that the potteries industry turns out to be
covered by the entry. What then could be the purpose of the
explanation. The explanation says that, for the purpose of Entry
22, potteries industry “includes” manufacture of the nine articles
of pottery named therein. It seems to us that the word “includes”
has been used here in the sense of ‘means’; this is the only
construction that the word can bear in the context. In that sense it
is not a word of extension, but limitation; it is exhaustive of the
meaning which must be given to potteries industry for the purpose
of Entry 22. The use of the word “includes” in the restrictive
sense is not unknown. The observation of Lord Watson
in Dilworth v. Commissioner of Stamps which is usually referred
to on the use of “include” as a word of extension, is followed by
these lines:
“But the word ‘include’ is susceptible of another
construction, which may become imperative, if the context of
the Act is sufficient to show that it was not merely employed
for the purpose of adding to the natural significance of the
words or expressions
defined. It may be equivalent to ‘mean
and include’, and in that case it may afford an exhaustive
explanation of the meaning which, for the purposes of the Act,
must invariably be attached to these words or expressions.”
52. Next judgment relied by Shri Bhushan is Karnataka Power
Transmission Corporation and Anr. Vs. Ashok Iron Works Private
Limited, (2009) 3 SCC 240. In the above case also submission was
made before this court that in the definition of person given in section
2(m) of Consumer Protection Act, the expression “includes” should be
read as “means”. This Court laid down that interpretation of a word or
expression must depend on the text and the context. In paragraphs 14 to
17, following was laid down:-
“14. The learned counsel also submitted that the word
“includes” must be read as “means”. In this regard, the learned
counsel placed reliance upon two decisions of this Court, namely;
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(1) South Gujarat Roofing Tiles Manufacturers Assn. v. State
of Gujarat [(1976) 4 SCC 601] and (2) RBI v. Peerless General
Finance and Investment Co. Ltd. [(1987) 1 SCC 424].
15. Lord Watson in Dilworth v. Stamps Commr. [1899 AC
99] made the following classic statement: (AC pp. 105-06)
“… The word ‘include’ is very generally used in
interpretation clauses in order to enlarge the meaning of words
or phrases occurring in the body of the statute; and when it is
so used these words or phrases must be construed as
comprehending, not only such things as they signify according
to their natural import, but also those things which the
interpretation clause declares that they shall include. But the
word ‘include’ is susceptible of another construction, which
may become imperative, if the context of the Act is sufficient
to show that it was not merely employed for the purpose of
adding to the natural significance of the words or expressions
defined. It may be equivalent to ‘mean and include’, and in
that case it may afford an exhaustive explanation of the
meaning which, for the purposes of the Act, must invariably be
attached to these words or expressions.”
16. Dilworth [1899 AC 99] and few other decisions
came up for consideration in Peerless General Finance and
Investment Co. Ltd. [(1987) 1 SCC 424] and this Court
summarised the legal position that (Peerless case [(1987) 1
SCC 424], SCC pp. 449-50, para 32) inclusive definition by the
legislature is used:
“32. …
(1) to enlarge the meaning of words or
phrases so as to take in the ordinary, popular and natural
sense of the words and also the sense which the statute
wishes to attribute to it; (2) to include meanings about which
there might be some dispute; or (3) to bring under one
nomenclature all transactions possessing certain similar
features but going under different names.”
17. It goes without saying that interpretation of a word or
expression must depend on the text and the context. The resort to
the word “includes” by the legislature often shows the intention
of the legislature that it wanted to give extensive and enlarged
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meaning to such expression. Sometimes, however, the context
may suggest that word “includes” may have been designed to
mean “means”. The setting, context and object of an enactment
may provide sufficient guidance for interpretation of the word
“includes” for the purposes of such enactment.”
53. After noticing the ratio of above judgments, 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. Shri Nidhesh Gupta, learned senior
counsel for the appellant submits that even if it is accepted that the
definition of Section 2(s) is exhaustive, his case is fully covered in both
the parts of the definition.
54. The use of both the expressions “means and includes” in
Section 2(s) of Act, 2005, thus, clearly indicate the legislative intent that
the definition is exhaustive and shall cover only those which fall within
the purview of definition and no other.
55. 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
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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.
56. Now, we revert back to the submission of the learned counsel
for the appellant that the shared household is that household which belongs
to joint family of which husband is a member or husband has share in the
shared household. He finds support for his submission by the judgment
of this Court in S.R. Batra Vs. Taruna Batra (supra).
57. The judgment of this court in S.R. Batra Vs. Taruna Batra
(supra), which is sheet anchor of the submission of the appellant needs
to be noticed in detail. In the above case, the respondent was married
with the son of appellant on 14.04.2000. Respondent started living with
her husband in the house of appellant No.2 on the second floor. It was
not disputed that house belonged to appellant No.2 and her son, i.e.,
husband of respondent had no share. Husband had filed a divorce petition
against respondent whereas respondent filed a criminal case under
Sections 406, 498A, 506 and 34 of Indian Penal Code. Respondent shifted
to her parents’ residence because of the dispute with her husband. She
when later
tried to enter the house, she found the main entrance locked
hence, she filed suit No. 87 of 2003 to grant mandatory injunction to
enable her to enter the house. The Trial Court granted temporary injunction
in favour of the respondent. The appellant filed the appeal, which was
allowed by dismissing the temporary injunction. Respondent filed a Writ
Petition under Article 227 of the Constitution, which was allowed by
learned Single Judge holding that the appellant is entitled to reside in the
second floor as that was her matrimonial home. The appellant aggrieved
against the judgment of the High Court had filed an appeal. This Court in
Paragraph 18 observed that since the house belongs to mother-in-law of
the respondent and does not belong to the husband, hence, she cannot
claim any right to live in the said house.  Following was observed in
paragraph 18:-
“18. Here, the house in question belongs to the mother-in-law of
Smt Taruna Batra and it does not belong to her husband Amit
Batra. Hence, Smt Taruna Batra cannot claim any right to live in
the said house.”
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58. Before this Court, in the above case, the provisions of Act,
2005 were relied. This Court held that the respondent was not residing
in the premises in question, a finding of fact recorded by the court below
which ought not to be interfered by the High Court under Articles 226 or
227. After taking the aforesaid view, this Court observed that house in
question cannot be said to be shared household. In paragraph 22, this
Court held:-
“22. Apart from the above, we are of the opinion that the
house in question cannot be said to be a “shared household” within
the meaning of Section 2(s) of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as “the
Act”).”
59. This Court also noticed Sections 17 and 19 and the argument
of respondent that household is a shared household since aggrieved person
had lived there in a domestic relationship. Argument of the respondent
was noticed in paragraph 24 in following words:-
“24. Learned counsel for the respondent Smt Taruna Batra
stated that the definition of shared household includes a household
where the person aggrieved lives or at any stage had lived in a
domestic relationship. He contended that since admittedly the
respondent had lived in the property in question in the past, hence
the said property is her shared household.”
60. This court expressed its dis-agreement with the submission
and made following observations in paragraphs 25 to 30:-
“25.
We cannot agree with this submission.
26. If the aforesaid submission is accepted, then it will mean
that wherever the husband and wife lived together in the past that
property becomes a shared household. It is quite possible that the
husband and wife may have lived together in dozens of places
e.g. with the husband’s father, husband’s paternal grandparents,
his maternal parents, uncles, aunts, brothers, sisters, nephews,
nieces, etc. If the interpretation canvassed by the learned counsel
for the respondent is accepted, all these houses of the husband’s
relatives will be shared households and the wife can well insist in
living in all these houses of her husband’s relatives merely because
she had stayed with her husband for some time in those houses in
the past. Such a view would lead to chaos and would be absurd.
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27. It is well settled that any interpretation which leads to
absurdity should not be accepted.
28. Learned counsel for the respondent Smt Taruna Batra
has relied upon Section 19(1)(f) of the Act and claimed that she
should be given an alternative accommodation. In our opinion, the
claim for alternative accommodation can only be made against
the husband and not against the husband’s (sic) in-laws or other
relatives.
29. As regards Section 17(1) of the Act, in our opinion the
wife is only entitled to claim a right to residence in a shared
household, and a shared household would only mean the house
belonging to or taken on rent by the husband, or the house which
belongs to the joint family of which the husband is a member. The
property in question in the present case neither belongs to Amit
Batra nor was it taken on rent by him nor is it a joint family property
of which the husband Amit Batra is a member. It is the exclusive
property of Appellant 2, mother of Amit Batra. Hence it cannot
be called a “shared household”.
30. No doubt, the definition of “shared household” in Section
2(s) of the Act is not very happily worded, and appears to be the
result of clumsy drafting, but we have to give it an interpretation
which is sensible and which does not lead to chaos in society.”
61. In paragraph 26, this Court observed “if the aforesaid submission
is accepted, then it will mean that wherever the husband and wife lived
together in the past that property becomes a
shared household”.
62. The observation of this Court in S.R. Batra Vs. Taruna Batra
(supra) in paragraphs 24, 25 and 26 were made while considering the
expression “person aggrieved lives or at any stage has lived”. This Court
observed in paragraph 26 that if the interpretation canvassed by learned
counsel for the respondent is accepted that the house of the husband’s
relative where respondent resided shall become shared household, shall
lead to chaos and would be absurd. 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
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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. Our above conclusion is further fortified
by statutory scheme as delineated by Section 19 of the Act, 2005.  In
event, the definition of shared household as occurring in Section 2(s) is
read to mean that all houses where the aggrieved person has lived in a
domestic relationship alongwith the relatives of the husband shall become
shared household, there will be number of shared household, which was
never contemplated by the legislative scheme. 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 Vs. 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.
63. 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
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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.
64. In paragraph 29 of the judgment, this Court in S.R. Batra Vs.
Taruna Batra (supra) held that wife is only entitled to claim a right to
residence in a shared household and a shared household would only
mean the house belonging to or taken on rent by the husband, or the
house which belongs to the joint family of which the husband is a member.
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 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. We are of the view
that this court in S.R. Batra Vs. Taruna Batra (supra) although noticed
the definition of shared household as given in Section 2(s) but did not
advert to different parts of the definition which makes it clear that for a
shared household there is no such requirement that the house may be
owned singly or jointly by the husband or taken on rent by the husband.
The observation of this Court in S.R. Batra Vs. Taruna Batra (supra)
that definition of shared household in Section 2(s) is not very happilyworded
and it has to be interpreted, which is sensible and does not lead to chaos
in the society also does not commend us. The definition of shared
household is clear and exhaustive definition as observed by us. The object
and purpose of the Act was to grant a right to aggrieved person, a woman
of residence in shared household. The interpretation which is put by this
Court in S.R. Batra Vs. Taruna Batra (supra) if accepted shall clearly
frustrate the object and purpose of the Act.  We, thus, are of the opinion
that the interpretation of definition of shared household as put by this
Court in S.R. Batra Vs. Taruna Batra (supra) is not correct
interpretation and the said judgment does not lay down the correct law.
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65. The learned counsel for the appellant has placed reliance on
another Two Judge Bench judgment of this Court in Vimlaben Ajitbhai
Patel Vs. Vatsalben Ashokbhai Patel and Ors.,(2008) 4 SCC 649.
In the above case, this Court had occasion to consider the provisions of
Act, 2005. The question which came for consideration in the above case
has been noticed in paragraph 14 of the judgment, which is to the following
effect:-
“14. The questions which arise for consideration are:
(i) Whether in the facts and circumstances of the case, the
property of Appellant 1 could have been sold in auction? and
(ii) Whether in a case of this nature, the bail granted to the
appellants should have been directed to be cancelled?”
66. In the above case, the complaint was filed by third respondent
against her husband and appellant’s father-in-law and mother-in-law under
Sections 406 and 114 of Indian Penal Code. The bail granted to the
appellants was cancelled. Proceedings under Section 82 Cr.P.C. were
initiated attaching the properties of the appellant. The learned
Metropolitan Magistrate asked the District Magistrate to auction the
attached properties. The properties of the appellant was auctioned and
this Court in the above case has held that the provisions of the Hindu
Adoptions and Maintenance Act, 1956 that maintenance of a wife, during
subsistence of marriage, is on the husband and on the applicant to maintain
the daughter-in-law
arises only when the husband has died.  In paragraphs
21 and 22 following was laid down:-
“21. Maintenance of a married wife, during subsistence of
marriage, is on the husband. It is a personal obligation. The
obligation to maintain a daughter-in-law arises only when the
husband has died. Such an obligation can also be met from the
properties of which the husband is a co-sharer and not otherwise.
For invoking the said provision, the husband must have a share in
the property. The property in the name of the mother-in-law can
neither be a subject-matter of attachment nor during the lifetime
of the husband, his personal liability to maintain his wife can be
directed to be enforced against such property.
22. Wholly uncontentious issues have been raised before
us on behalf of Sonalben (wife). It is well settled that apparent
state of affairs of state shall be taken as real state of affairs. It is
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not for an owner of the property to establish that it is his self-
acquired property and the onus would be on the one, who pleads
contra. Sonalben might be entitled to maintenance from her
husband. An order of maintenance might have been passed but in
view of the settled legal position, the decree, if any, must be
executed against her husband and only his properties could be
attached therefor but not of her mother-in-law.”
67. In paragraph 27, this Court further held:-
“27. The Domestic Violence Act provides for a higher right
in favour of a wife. She not only acquires a right to be maintained
but also thereunder acquires a right of residence. The right of
residence is a higher right. The said right as per the legislation
extends to joint properties in which the husband has a share.”
68. In paragraph 28, this court noticed the judgment of this Court
in S.R. Batra Vs. Taruna Batra (supra).
69. In the facts of the above case, this Court held that the High
Court erred in cancelling the bail of the appellants. Allowing the appeal,
following directions were issued in paragraph 51 of the judgment:-
“51. Having regard to the facts and circumstances of this
case we are of the opinion that the interest of justice shall be
subserved if the impugned judgments are set aside with the
following directions:
(i) The property in question shall be released from
attachment.
(ii) The 3rd respondent shall refund the sum of Rs 1 lakh to
the respondent with interest @ 6% per
annum.
(iii) The amount of Rs 4 lakhs deposited by the 1st
respondent shall be refunded to him immediately with interest
accrued thereon.
(iv) The 3rd respondent should be entitled to pursue her
remedies against her husband in accordance with law.
(v) The learned Magistrate before whom the cases filed by
the 3rd respondent are pending should bestow serious
consideration of disposing of the same, as expeditiously as possible.
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(vi) The 3rd respondent shall bear the costs of the appellant
which are quantified at Rs 50,000 (Rupees fifty thousand)
consolidated.”
70. In the above case, this Court has held that property of mother-
in-law cannot be attached since the maintenance of wife during the
married life is on the husband. The question which fell for consideration
before this Court in above case was as to whether the property of the
appellant could have been sold in auction and the bail granted to the
appellants should have been cancelled as noted in paragraph 14. No
issue regarding right to reside in a shared household had arisen in the
above case and the above case is entirely different from the present
case, the above case arose out of criminal proceedings on the basis of
complaint filed by the respondent against the appellant. The above
judgment in no manner supports the case of the appellant. Further in the
above case, this Court relied on judgment of S.R. Batra Vs. Taruna
Batra (supra), we have observed above that S.R. Mehta does not lay
down a correct law.
71. Learned counsel for the respondent has relied on few
judgments of Delhi High Court in support of his submission. Delhi High
Court in Eveneet Singh Vs. Prashant Chaudhri, 2010 SCC Online
Del 4507 had considered the provisions of Act, 2005 and also the
definition of shared household. In paragraphs 16 and 17 following was
laid down:-
“16. The definition of “shared household”
emphasizes the
factum of a domestic relationship and no investigation into the
ownership of the said household is necessary, as per the definition.
Even if an inquiry is made into the aspect of ownership of the
household, the definition casts a wide enough net. It is couched in
inclusive terms and is not in any way, exhaustive
(S. Prabhakaran v. State of Kerala, 2009 (2) RCR (Civil) 883). It
states that ”…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”
(emphasis supplied).
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17. It would not be out of place to notice here that the use
of the term “respondent” is unqualified in the definition nor is
there any qualification to it under Sections 12, 17 or 19. Therefore,
there is no reason to conclude that the definition does not extend
to a house which is owned by a mother-in-law or any other female
relative, since they are encompassed under the definition of
‘respondent’ under Section 2(q).”
72. The Division Bench of the Delhi High Court affirmed the
judgment in Eveneet Singh Vs. Prashant Chaudhari, 2011 SCC
Online Del 4651 of the learned Single Judge as noted above.  In
paragraph 14, the Division Bench laid down following:-
“14. It is apparent that clause (f) of sub-section 1 of Section 19 of
the Act is intended to strike a balance between the rights of a
daughter-in-law and her in-laws, if a claim to a shared residence
by the daughter-in-law pertains to a building in which the
matrimonial home was set up belongs to her mother-in-law or
father-in-law.”
73. Another judgment which need to be noticed of Delhi High
Court is Preeti Satija Vs. Raj Kumari and Anr., 2014 SCC Online
Del 188. In paragraphs 20 and 21, the Division Bench laid down following:-
“20. Crucially, Parliament’s intention by the 2005 Act was
to secure the rights of aggrieved persons in the shared household,
which could be tenanted by the Respondent (including relative of
the husband) or in respect of which the Respondent had jointly or
singly any right, title,
interest, or “equity”. For instance, a widow
(or as in this case, a daughter in law, estranged from her husband)
living with a mother-in-law, in premises owned by the latter, falls
within a “domestic relationship”. The obligation not to disturb the
right to residence in the shared household would continue even if
the mother-in-law does not have any right, title or interest, but is a
tenant, or entitled to “equity” (such as an equitable right to
possession) in those premises. This is because the premises would
be a “shared household”. The daughter-in-law, in these
circumstances is entitled to protection from dispossession, though
her husband never had any ownership rights in the premises. The
right is not dependent on title, but the mere factum of residence.
Thus, even if the mother-in-law is a tenant, then, on that ground,
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or someone having equity, she can be injuncted from dispossessing
the daughter in law. In case the mother in law is the owner, the
obligation to allow the daughter in law to live in the shared
household, as long as the matrimonial relationship between her
and the husband subsists, continues. The only exception is the
proviso to 19(1)(b), which exempts women from being directed
to remove themselves from the shared household. No such
exception has been carved out for the other reliefs under Section
19, especally in respect of protection orders. Had the Parliament
intended to create another exception in favor of women, it would
have done so. This omission was deliberate and in consonance
with the rest of the scheme of the Act. There can be other cases
of domestic relationships such as an orphaned sister, or widowed
mother, living in her brother’s or son’s house. Both are covered
by the definition of domestic relationship, as the brother is clearly
a Respondent. In such a case too, if the widowed mother or sister
is threatened with dispossession, they can secure reliefs under
the Act, notwithstanding exclusive ownership of the property by
the son or brother. Thus, excluding the right of residence against
properties where the husband has no right, share, interest or title,
would severely curtail the extent of the usefulness of the right to
residence.
21. The other aspect, which this Court wishes to highlight,
is that the
2005 Act applies to all communities, and was enacted
“to provide more effective protection of the rights of women
guaranteed under the Constitution who are victims of violence of
any kind occurring within the family”. The right to residence and
creation of mechanism to enforce is a ground breaking measure,
which Courts should be alive to. Restricting the scope of the
remedies, including in respect of the right to reside in shared
household, would undermine the purpose of this enactment. It is,
therefore, contrary to the scheme and the objects of the Act, as
also the unambiguous text of Section 2(s), to restrict the application
of the 2005 Act to only such cases where the husband alone owns
some property or has a share in it. Crucially, the mother-in-law
(or a father-in-law, or for that matter, “a relative of the husband”)
can also be a Respondent in the proceedings under the 2005 Act
and remedies available under the same Act would necessarily
need to be enforced against them.”
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Against above judgment of Delhi High Court, Civil Appeal No.
9723 of 2014 is pending in this Court.
74. In another elaborate judgment, the Division Bench of Delhi
High Court in Navneet Arora Vs. Surender Kaur and Ors., 2014
SCC Online Del 7617 had considered the various aspects of Act,
2005.  Dealing with right of residence in paragraphs 58 to 60, following
was held:-
“58. It may be highlighted that the Act does not confer any
title or proprietary rights in favour of the aggrieved person as
misunderstood by most, but merely secures a ‘right of residence’
in the ‘shared household’. Section 17(2) clarifies that the aggrieved
person may be evicted from the ‘shared household’ but only in
accordance with the procedure established by law. The legislature
has taken care to calibrate and balance the interests of the family
members of the respondent and mitigated the rigour by expressly
providing under the provisio to Section 19(1) that whilst adjudicating
an application preferred by the aggrieved person it would not be
open to the Court to pass directions for removing a female member
of the respondents family from the “shared household”.
Furthermore, in terms of Section 19(1)(f), the Court may direct
the respondent to secure same level of accommodation for the
aggrieved person as enjoyed by her in the “shared household” or
to pay rent for the same, if the circumstances so require.
59. The seemingly ‘radical’ provisions comprised in the
Protection of Women from
Domestic Violence Act, 2005 must be
understood and appreciated in light of the prevalent culture and
ethos in our society.
60. The broad and inclusive definition of the term ‘shared
household’ in the Protection of Women from Domestic Violence
Act, 2005 is in consonance with the family patterns in India, where
married couple continue to live with their parents in homes owned
by parents.”
75. The Delhi High Court in the above case has rightly considered
the concept of shared household as occurring in Section 2(s) of the Act,
2005.
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76. We also need to notice several judgments of Delhi High Court
and other High Courts, which have been relied by Shri Jauhar. The
judgments of Delhi High Court relied by Shri Jauhar are:-
S.No. 
Particulars 
Citation 
1. 
Deepika Kumar Vs. Medhavi Kumar and Ors. 
MANU/DE/3859/2015 
2. 
Sardar Malkiat Singh Vs. Knawaljit Kaur  and Ors. 
168 (2010) DLT 521 
3. 
Neetu Mittal Vs. Kanta Mittal 
2009 AIR (Del) 72 
4. 
Sudha Mishra Vs. Surya Chand Mishra 
2012 (3) AD (Delhi) 76 
5. 
Sangeeta Vs. Om Parkash Balyan and Ors. 
MANU/PH/1251/2015 
6. 
Harish Chand Tandon Vs. Darpan Tandon and Anr. 
MANU/DE/3200/2015 
7. 
Ekta Arora Vs. Ajay Arora and Anr. 
AIR 2015 (Del) 180 
8. 
Smt. Saloni Mahajn Vs. Shri Madan Mohan Vig. 
2014 SCC Online (Del) 4931 
77. All these judgments of Delhi High Court relies on S.R. Batra
Vs. Taruna Batra (supra). We having already held that judgment of
S.R. Batra Vs. Taruna Batra (supra) insofar as it interpret the definition
of shared household of Section 2(s) does not lay down the correct law,
the above judgment of the High Court does not come to rescue of learned
counsel for the appellant.  Shri Jauhar has also placed reliance on few
judgments of other High Courts namely:-
S.No.
Particulars
Citation
1. 
Smt. Chanchal Agarwal Vs. Jagdish Prasad Gupta and 
Anr.. 
2014 SCC Online All 16019 
2. 
A.R. Hashir Najyahouse and Ors. Vs. Shima and Ors.  
2015 SCC Online Ker 9007 
3. 
Richa Gaur Vs. Kamal
Kishore Gaur 
2019 SCC Online All 4084 
4. 
Payal Sancheti (Smt.) and Anr. Vs. Harshvardhan 
Sancheti 
MANU/RH/08054/2008 
5. 
Kolli Babi Sarojini and Ors. Vs. kolli Jayalaxmi and 
Anr. 
2014 SCC Online AP 414 
6.
N.S. Leelawati and Ors. Vs. R. Shilpa Brunda
MANU/KA/8874/2019
78. The above judgments of the High Courts have again relied on
judgment of S.R. Batra Vs. Taruna Batra (supra), hence, they also
do not support the claim of the appellant.
79. Shri Jauhar also relied on a Judgment of Three Judge Bench
of this Court in Maria Margarida Sequeira Fernandes and Ors. Vs.
Erasmo Jack De Sequeira, (2012) 5 SCC 370.  Shri Jauhar placed
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reliance on paragraph 97 of the judgment, which enumerates few
principles of law.  Paragraph 97 is as follows:-
“97. Principles of law which emerge in this case are
crystallised as under:
(1) No one acquires title to the property if he or she was
allowed to stay in the premises gratuitously. Even by long
possession of years or decades such person would not acquire
any right or interest in the said property.
(2) Caretaker, watchman or servant can never acquire
interest in the property irrespective of his long possession. The
caretaker or servant has to give possession forthwith on demand.
(3) The courts are not justified in protecting the possession
of a caretaker, servant or any person who was allowed to live in
the premises for some time either as a friend, relative, caretaker
or as a servant.
(4) The protection of the court can only be granted or
extended to the person who has valid, subsisting rent agreement,
lease agreement or licence agreement in his favour.
(5) The caretaker or agent holds property of the principal
only on behalf of the principal. He acquires no right or interest
whatsoever for himself in such property irrespective of his long
stay or possession.”
80. There cannot be any dispute to the preposition of law as laid
down by this Court in above case. The above case arose out of a suit
filed by the respondent for permanent injunction and mandatory injunction
against the appellant. The respondent was brother of the appellant. Suit
was
decreed by the Trial Court, and appeal against which judgment was
also dismissed. Appellant case was that the respondent has no right, title
or interest in the property and the respondent was permitted to live in the
premises since the appellant being wife of a Navy Officer was most of
the period out of Goa and she has permitted her brother to occupy the
premises.  This Court made following observations in paragraphs 91 and
92:-
“91. We have heard the learned counsel for the parties at
length and perused the relevant judgments cited at the Bar. In the
instant case, admittedly, the respondent did not claim any title to
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the suit property. Undoubtedly, the appellant has a valid title to the
property which is clearly proved from the pleadings and documents
on record.
92. The respondent has not been able to establish the family
arrangement by which this house was given to the respondent for
his residence. The courts below have failed to appreciate that the
premises in question was given by the appellant to her brother, the
respondent herein as a caretaker. The appellant was married to a
naval officer who was transferred from time to time outside Goa.
Therefore, on the request of her brother she gave possession of
the premises to him as a caretaker. The caretaker holds the
property of the principal only on behalf of the principal.”
81. For the above reasons, the Court allowed the appeal and laid
down the preposition of law as noted above in paragraph 97 of the
judgment. The ratio as laid down in the above case of this Court is
nothing to do with the issues, which have arisen in the present appeal
and the reliance on the above judgment by learned counsel for the
appellant is misplaced.
82. Now, coming back again to the facts of the present case,
there being specific pleading on behalf of the respondent that the house,
which is in the name of the appellant is the matrimonial home of the
respondent where she was residing in first floor since her marriage. The
fact that respondent is residing in first floor of the premises is not matter
of
dispute. Even if the house is in the name of the appellant and that
even if we accept the case of the appellant that appellant’s son Raveen
has no share in the house belonging to appellant, with whom the respondent
was living in the domestic relationship, whether the respondent is entitled
to reside in the premises in question as shared household is the question
to be answered. In the impugned judgment, Delhi High Court has
refrained from deciding the point as to whether suit property is a shared
household on the ground that the application filed under Section 12 of
Act, 2005 by the respondent is pending. In the suit filed by the appellant
where respondent has pleaded and claimed that it is shared household
and she has right to live and it was on that ground she was resisting the
suit for mandatory injunction, the question that whether the suit property
is a shared household or not becomes relevant and necessary and the
said issue cannot be skipped on the ground that application under D.V.
Act is pending. In the regular suit, which has been filed by the appellant,
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the plea of defendant that suit property is her shared household and she
has right to residence could have been very well gone into by virtue of
Section 26, which we shall further deal a little later.
83. Before we close our discussion on Section 2(s), we need to
observe that the right to residence under Section 19 is not an indefeasible
right of residence in shared household especially when the daughter-in-
law is pitted against aged father-in-law and mother-in-law. The senior
citizens in the evening of their life are also entitled to live peacefully not
haunted by marital discord between their son and daughter-in-law. While
granting relief both in application under Section 12 of Act, 2005 or in any
civil proceedings, the Court has to balance the rights of both the parties.
The directions issued by High court in paragraph 56 adequately balances
the rights of both the parties.
84. In view of the foregoing discussions, we answer issue Nos. 1
and 2 in following manner:-
(i)
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.
(ii)
The judgment of this Court in S.R. Batra Vs. Taruna Batra
(supra) has not correctly interpreted Section 2(s) of Act,
2005 and the judgment does not lay down a correct law.
Question Nos. 3 and 4
85. Both the issues being
inter-connected are being taken together.
86. The question which is posed for the consideration is, whether
the learned Trial Court was justified in passing the decree on alleged
admission under Order XII Rule 6 of the CPC or not. What is required
to be considered is what constitutes the admission warranting the
judgment on admission in exercise of powers under Order XII Rule 6,
CPC.  This Court had occasion to consider above in decisions; Himani
Alloys Limited Vs. Tata Steel Limited, (2011) 15 SCC 273 and
S.M. Asif Vs. Virender Kumar Bajaj, (2015) 9 SCC 287.
87. In Himani Alloys Limited (supra), this Court had an occasion
to consider the scope and ambit of judgment on admission in exercise of
powers under Order XII Rule 6, CPC. It is observed and held in
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paragraph 11 that being an enabling provision, it is neither mandatory nor
preemptory but discretionary for the Court to pass judgment on admission
in exercise of powers under Order XII Rule 6 CPC. It is observed that
the Court, on examination of the facts and circumstances, has to exercise
its judicial discretion keeping in mind that a judgment on admission is a
judgment without trial which permanently denies any remedy to the
defendant by way of an appeal on merits. It is further observed that,
therefore, unless the admission is clear, unambiguous and unconditional,
the discretion of the Court should not be exercised to deny the valuable
right of a defendant to contest the claim. In short, the discretion should
be used only when there is a clear “admission” which can be acted
upon. It is further observed and held that “admission” should be
categorical. It should be a conscious and deliberate act of the party
making it, showing an intention to be bound by it.
88. A similar view was expressed by this Court in the case of
S.M. Asif (supra). It is observed and held in paragraph 8 that expression
“may” in Order XII Rule 6 CPC suggests that it is discretionary and
cannot be claimed as of right. It is further observed that where defendants
raised objections which go to root of the case, it would not be appropriate
to exercise discretion under Order XII Rule 6 CPC.
89. In this context, we need to notice a few parts of
pleadings of
both the parties as disclosed in plaint and the written statement. The
plaintiffs have filed the suit for mandatory and permanent injunction
claiming to be absolute owner of the suit property where defendant was
admitted to be in occupation of two bed rooms with few amenities on
first floor of the property. The plaintiff pleaded that he is a senior citizen,
aged 76 years but wanted to live a peaceful life and has terminated the
licence of the defendant, who stayed in the first floor. The pleadings of
the plaintiffs in paragraphs 1, 2, 3, 4 and 5 are as follows:-
“1. That the plaintiff is the absolute owner of the property bearing
No.D-1077 New Friends Colony, New Delhi – 110 025,
admeasuring 492 sqyds. and is filing the present suit seeking
removal of the defendant from the first floor of the property bearing
No.D-1077, New Friends Colony, New Delhi – 110 025.
2. That the defendant is in occupation of two bed rooms with
attached dressing and bath rooms and a kitchen on the first floor
of property bearing No.D-1077, New Friends Colony, New Delhi
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– 110 025 more particularly described in Red colour in the site
plan and hereinafter referred to as the suit premises.
3. That the plaintiff is a senior citizen aged 76 years and is a heart
patient and has undergone angioplasty twice in the arteries in the
heart. The plaintiff suffers from hypertension and high blood
pressure and is on constant medication for the same. As such the
plaintiff in his old age would like to live a peaceful life and has
terminated the licence of the defendant to stay in the first floor of
the suit property which is the exclusive property of the plaintiff.
4. That the plaintiff is aggrieved by the torturous acts of the
defendant in filing false and frivolous cases and attempting to
implicate the plaintiff and his aged wife in false cases, the plaintiff
in his ripe old age prays for removal of the defendant from the
suit property so as to lead a tension free life without hurling of
abuses and torture perpetrated by the defendant.
5. That the plaintiff is the sole and absolute owner of the suit
property which was acquired by the plaintiff from its previous
owner namely Shri Kulbhushan Jain vide agreement to sell dated
12th January, 1983 for a sum of Rs.2,77,000/- (Rupees Two lacs
seventy seven thousand only) and after purchase of the said
property the plaintiff herein constructed the entire property
including first floor of the suit property out of his own self acquired
funds and the entire property bearing No.D-1077, New Friends
Colony, New Delhi – 110 025 was converted into free hold vide
conveyance deed dated 14.07.2000 which was duly registered
with the Sub Registrar of Assurances VII vide registration No.2500
in Volume No.951 pages 54 to 56. As such, the plaintiff having
acquired the absolute ownership of the entire property bearing
No.D-1077, New Friends Colony, New Delhi – 110 025 is entitled
and competent to file the present suit seeking removal of the
defendant from the portion of the first floor of the suit property.”
90. A written statement was filed by the defendant where she
claimed that after marriage of the defendant on 04.03.1995, she is residing
in the house. It was further pleaded that the shared household was
acquired by the plaintiff through joint family funds and it is not his self
acquired property. Paragraphs 1, 4 and 7 of the written statement are as
follows:-
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“1. That a bare perusal of the documents filed alongwith
the plaint and even otherwise it is amply evident that the plaintiff
as per his own version became the owner of the suit property
bearing No D-1077, New Friends Colony, New Delhi-110025 only
in the year 2003. The marriage of the answering defendant was
solemnized on 4/3/1995 and the defendant started residing in the
joint shared household since then. Therefore the right of the
defendant is prior in point of time that of the plaintiff.
It is further submitted that the said shared household was
purportedly acquired by the plaintiff through joint family funds
and not his self acquired property. The plaintiff hereby called upon
to disclose all income tax returns, bank statements, audited balance
sheets etc. since 1982 till 2006. This may deemed to be noticed to
discover under provisions of Order XI Rule 12 CPC on the plaintiff.
As separate application under relevant provision of CPC is also
being filed by the defendant for such discovery of documents. In
view of this, the present is not maintainable and is liable to be
dismissed.
4. That the suit filed by the plaintiff is directly in conflict
with the right of the defendant to reside in her matrimonial
residence/shared household granted to her by the Legislature and
specifically envisaged in section 17 and 19 of the Protection of
Women from Domestic Violence Act, 2005 and as such is liable
to be dismissed at the
threshold. The defendant came to the suit
property on 04.03.1995 as a ‘Bahu’ of the plaintiff and legally
wedded wife of his elder son Shri Raveen Ahuja. After the marriage
the defendant lived with the son of the plaintiff Shri Raveen Ahuja
in the joint family uninterruptedly and there was/is a joint kitchen.
The defendant has a right to reside in the suit property whether or
not she has any right title or beneficial interest in the same. The
son of the plaintiff Shri Raveen Ahuja is residing with, the plaintiff
on the ground floor of the suit premises. In view of this, the stilt of
the plaintiff is not maintainable and is liable to be dismissed.
7. That the plaintiff has not approached to this Hon’ble Court
with clean hands and suppressed the true and material facts
regarding causing physical and mental torture to the defendant on
account of domestic violence etc. by the plaintiff his wife and
their elder son. They also hatched a conspiracy against the
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defendant in order to compel her to leave the matrimonial home in
a deceit full manner. In view of this, the present suit is not
maintainable and is liable to be dismissed.”
91. 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. Plaintiff also alleged that respondent (defendant) has filed
false case implicating the plaintiff and his wife. Plaintiff further stated
that wife of the plaintiff has been subjected to various threats and violence
in the hands of the defendant on several occasions. 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).
92. Even if for argument’s sake, we proceed on the basis that the
plaintiff is the sole owner of the house, whether on the aforesaid ground,
the Trial Court could have decreed the suit under Order XII Rule 6 CPC
without adverting to the defence which was taken by the defendant to
resist the suit
is the question to be considered. Section 26 of the Act,
2005 contains heading “Reliefs in other suits and legal proceedings”.
Section 26, which is relevant for the present discussion is extracted for
ready reference:-
“26. Relief in other suits and legal proceedings.-(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 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
for in addition to and along with any other relief that the aggrieved
person may seek in such suit or legal proceeding before a civil or
criminal court.
(3) In case any relief has been obtained by the aggrieved
person in any proceedings other than a proceeding under this Act,
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she shall be bound to inform the Magistrate of the grant of such
relief.”
93. As per Section 26, any relief available under Sections 18, 19,
20, 21 and 22 of the Act, 2005 may also be sought in any legal proceeding,
before a civil court, family court or a criminal court being the aggrieved
person. Thus, the defendant is entitled to claim relief under Section 19 in
suit, which has been filed by the plaintiff. Section 26 empowers the
aggrieved person to claim above relief in Civil Courts also.  In the present
suit, it was defence of the defendant that the house being the shared
household, she is entitled to reside in the house as per Section 17(1) of
Act, 2005. This Court had occasion to consider provision of Section 26
in Vaishali Abhimanyu Joshi Vs. Nanasaheb Gopal Joshi, (2017)
14 SCC 373. In the above case, the appellant was married with one
Abhimanyu with whom she was residing in suit Flat No.4, 45/4, Arati
Society, Shivvihar Colony, Paud Fata, Pune. The husband filed a suit for
divorce against the appellant. The father-in-law filed a suit in Small Cause
Court for mandatory injunction praying that defendant be directed to
stop the occupation and use of the suit flat. The appellant filed a written
statement in the suit claiming that although the flat bears the name of the
respondent but she is residing in the suit flat. She filed a counter claim
claiming that flat is a shared household and the suit be dismissed.
The
counter claim was rejected by the Judge, Small Cause Court, against
which revision as well as the writ petition was dismissed. This Court
noted the question, which arose for consideration in the above case in
paragraph 16, which is to the following effect:-
“16. 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 the
2005 Act 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 1887 Act bar entertainment of
such counterclaim, is the moot question to be answered…………”
94. After noticing the provision of Section 26 of the Act, this Court
made following observations in paragraphs 23 and 24:-
“23. 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
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Magistrate whereas steps taken by the Magistrate and different
categories of reliefs could be granted as noted in Sections 18 to
22 and certain other provisions. Section 26 provides that any relief
available under Sections 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
counterclaim on the basis of this section before the Judge, Small
Cause Court. Section 26 is extracted below:
“26. Relief in other suits and legal proceedings.—
(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 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
for in addition to and along with any other relief that the
aggrieved person may seek in such suit or legal proceeding
before a civil or criminal court.
(3) 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.”
24. There cannot be any dispute that proceeding before
the Judge, Small Cause Court is a legal proceeding and the Judge,
Small Cause Court is a
civil court. On the strength of Section 26,
any relief available under Sections 18 to 22 of the 2005 Act, thus,
can also be sought by the aggrieved person.”
95. This Court held that Section 26 has to be interpreted in a
manner to effectuate the purpose and object of the Act. This Court held
that the determination of claim of the aggrieved person was necessary
in the suit to avoid multiplicity of proceedings. This court laid down
following in paragraphs 40 and 41:-
“40. Section 26 of the 2005 Act 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 the 2005 Act is expressly barred
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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 the plaintiff in the Judge, Small Cause 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 use the flat, the right of residence as claimed by the appellant
is interconnected with such determination and refusal of
consideration of claim of the appellant as raised in her counterclaim
shall be nothing but denying consideration of claim as contemplated
by Section 26 of the 2005 Act which shall lead to multiplicity of
proceedings, which cannot be the object and purpose of the 2005
Act.
41. We, thus, are of the considered opinion that the
counterclaim filed by the appellant before Judge, Small Cause
Court in Civil Suit No. 77 of 2013 was fully entertainable and the
courts below committed error in refusing to consider such claim.”
96. In view of the ratio laid down by this court in the above case,
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 Act, 2005.
97. We have noticed the law laid down by this Court in S.M.
Asif
Vs. Virender Kumar Bajaj (supra) where this Court in paragraph 8
has laid down following:-
“8. The words in Order 12 Rule 6 CPC “may” and “make
such order …” show that the power under Order 12 Rule 6 CPC
is discretionary and cannot be claimed as a matter of right.
Judgment on admission is not a matter of right and rather is a
matter of discretion of the court. Where the defendants have raised
objections which go to the root of the case, it would not be
appropriate to exercise the discretion under Order 12 Rule 6 CPC.
The said rule is an enabling provision which confers discretion on
the court in delivering a quick judgment on admission and to the
extent of the claim admitted by one of the parties of his opponent’s
claim.”
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98. The power under Order XII Rule 6 is discretionary and cannot
be claimed as a matter of right. In the facts of the present case, the Trial
Court ought not to have given judgment under Order XII Rule 6 on the
admission of the defendant as contained in her application filed under
Section 12 of the D.V. Act. Thus, there are more than one reason for
not approving the course of action adopted by Trial Court in passing the
judgment under Order XII Rule 6. We, thus, concur with the view of the
High Court that the judgment and decree of the Trial Court given under
Order XII rule 6 is unsustainable.
Question No.5
99. Section 2(q) defines the ‘respondent’ in following words:
“2(q) “respondent” means any adult male person who is, or has
been, in a domestic relationship with the aggrieved person and
against whom the aggrieved person has sought any relief under
this Act:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file a complaint
against a relative of the husband or the male partner;”
100. 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 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.
101. The defendant in her application filed under Section 12 on
20.11.2015 in the Court of Additional Chief Metropolitan Magistrate
impleaded Satish Chandra Ahuja as respondent No.2. Thus, in the
domestic violence proceedings initiated by the defendant, plaintiff was
the respondent. As noted above, under Section 26 of the Act, 2005 any
relief available under Sections 18, 19, 20, 21 and 22 may also be sought
SATISH CHANDER AHUJA v. SNEHA AHUJA
[ASHOK BHUSHAN, J.]
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in any legal proceedings, before a Civil Court. The defendant in her
written statement claimed that she is entitled to reside in the premises of
suit property it being her shared household.
102. Learned counsel for the appellant submitted that in the suit in
question the defendant has not sought for any relief under Section 19. 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.
103. As noted above, 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 Act, 2005. It is, further, relevant to notice that although learned
Magistrate passed an interim order in the application filed by the defendant
under Section 12 on 26.11.2016 but said order was interim order which
was passed on the satisfaction of the Magistrate that “the application
prima facie disclosed that the respondent is committing or has committed
an act of domestic violence”. 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.
104. We, thus, are of the view that for the purposes of determination
of right of defendant under Sections 17 and 19 read with Section 26 in
the suit in question the plaintiff can be treated as “respondent”, but for
the grant of any relief to the defendant or for successful resisting the
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suit of the plaintiff necessary conditions for grant of relief as prescribed
under the Act, 2005 has to be pleaded and proved by the defendant, only
then the relief can be granted by the Civil Court to the defendant.
Question No.6
105. Section 17 of the Act 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.
106. 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. What is the
meaning
and extent of expression “save in accordance with the procedure
established by law” is a question which has come up for consideration in
this appeal. Whether the suit filed by the plaintiff for mandatory and
permanent injunction against the defendant in the Civil Court is covered
by the expression “save in accordance with the procedure established
by law”. We may further notice that the learned Magistrate while passing
the interim order on 26.11.2016 in favour of the defendant on her
application filed under Section 12 has directed that “the respondent shall
not alienate the alleged shared household nor would they dispossess the
complainant or their children from the same without orders of a
Competent Court”. The Magistrate, thus, has provided that without
the orders of Competent Court the applicant (respondent herein) should
not be dispossessed. In the present case, interim order specifically
contemplates that it is only by the order of the Competent Court respondent
shall be dispossessed.
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107. We may take an example, where a final order has been
passed by the Magistrate under Section 12. What is the nature and life
of the said order? Section 25(2) itself contemplates an eventuality when
order passed under the Act can be altered, modified or revoked. Section
25(2) provides:
“Section 25. Duration and alteration of orders.-
(1)
xxx
xxx
xxx
(2) If the Magistrate, on receipt of an application from the
aggrieved person or the respondent, is satisfied that there is a
change in the circumstances requiring alteration, modification or
revocation of any order made under this Act, he may, for reasons
to be recorded in writing pass such order, as he may deem
appropriate.”
108. Whether apart from powers of Magistrate under Section
25(2) of the Act, 2005, the Act, 2005 contemplates any other eventuality
when despite the order of residence under Section 19 an aggrieved person
can be evicted or dispossessed.
109. The right to reside in shared household as granted by Section
17 itself contemplates an exception in express words, i.e., “save in
accordance with the procedure established by law”.
110. The procedure prescribed for proceedings under Section 19
as provided in Section 28 of the Act is as per the provisions of the Code
of Criminal Procedure, 1973. Section 28 of the Act, 2005, provides as
follows:-
“28. Procedure.- (1) Save as otherwise provided in this 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(2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying
down its own procedure for disposal of an application under section
12 or under sub-section (2) of section 23.”
111. The rules have been framed under the Act, 2005, namely
“The Protection of Women from Domestic Violence Rules, 2006”. Rule
5 deals with Domestic Incident Report which is to be submitted by
protection officer in Form I. The Form I is part of Rule which contains
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details in various columns to enable the Magistrate to take appropriate
decision. Rule 6 provides that every application of the aggrieved person
under Section 12 shall be in Form-II or as nearly as possible thereto.
Form-II is again part of Rule which contains various details including
orders required, residence orders, under Section 19, monetary relief under
Section 20, details of previous litigation, if any, and other details to enable
the Magistrate to take appropriate decision. Rule 6 sub-Rule (4) provides
that for obtaining an interim ex-parte order under Section 23, an affidavit
is to be filed in Form-III. The Form-III is an affidavit of an aggrieved
person or the person filing affidavit on behalf of his ward, daughter, etc.
The Act and the Rules thus provide for a procedure and manner of filing
an application for obtaining a relief under Act, 2005. The Act, 2005, is an
special Act which provides for manner and procedure for obtaining relief
by an aggrieved person.
112. The provision of Section 145 of Cr.P.C. in this context may
be noticed. Section 145 of Cr.P.C. provides for procedure where dispute
concerning land or water is likely to cause breach of peace. Under Section
145 Cr.P.C. in case Magistrate is satisfied that a dispute likely to cause
a breach of the peace exists, he may require the parties to attend the
Court and to decide whether any and which of the parties was, at the
date of the order made by him under sub-section (1), in possession
of
the subject of dispute. Sub-section (6) of Section 145 Cr.P.C. contemplates
issuance of the order by the Magistrate declaring such party to be entitled
to such possession. Sub-section (6), however, contemplates that the
parties to be entitled to possession thereof until evicted therefrom in
due course of law. The eviction in due course of law was contemplated
to be by a competent court.
113. This Court had occasion to consider the expression “until
evicted therefrom in due course of law” as occurring in Section 145(6)
in Shanti Kumar Panda Vs. Shakuntala Devi, (2004) 1 SCC 438.
This Court held in the above case that the purpose of provisions of Section
145 Cr.P.C. is to provide a speedy and summary remedy so as to prevent
a breach of the peace by submitting the dispute to the Executive
Magistrate for resolution as between the parties disputing the question
of possession over the property. This Court held that the unsuccessful
party in proceedings under Section 145 Cr.P.C. ought to sue for recovery
of possession seeking a decree or order for restoration of possession.
In paragraph 12 following was laid down:
SATISH CHANDER AHUJA v. SNEHA AHUJA
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“12. What is an eviction “in due course of law” within the meaning
of Sub-section (6) of Section 145 of the Code? Does it mean a
suit or proceedings directing restoration of possession between
the parties respectively unsuccessful and successful in proceedings
under Section 145 or any order of competent court which though
not expressly directing eviction of successful party, has the effect
of upholding the possession or entitlement to possession of the
unsuccessful party as against the said successful party. In our
opinion, which we would buttress by reasons stated shortly
hereinafter, ordinarily a party unsuccessful in proceedings under
Section 145 ought to sue for recovery of possession seeking a
decree or order for restoration of possession. However, a party
though unsuccessful in proceedings under Section 145 may still
be able to successfully establish before the competent court that
it was actually in possession of the property and is entitled to
retain the same by making out a strong case demonstrating the
finding of the Magistrate to be apparently incorrect.”
114. This Court further held that finding recorded by the Magistrate
under Section 145 Cr.P.C. does not bind when the matter comes for
adjudication before competent court. This Court explained expression
“until evicted therefrom in due course of law” mean “any court which
has jurisdictional competence to decide the question of title or rights to
the
property or entitlement to possession”. In paragraph 17 of the
judgment following was observed:
“17………………The words ‘until evicted therefrom in due
course of law’ as occurring in Sub-section (6) of Section 145'
mean the eviction of the party successful before the Magistrate,
consequent upon the adjudication of title or right to possession by
a competent court; that does not necessarily mean a decree of
eviction. The party unsuccessful before the Magistrate may dispute
the correctness of the finding arrived at by the Magistrate and is
at liberty to show before the competent court that it had not
dispossessed the successful party or that it is the unsuccessful
party and not the successful party who was actually in possession
and the finding to the contrary arrived at by the Magistrate was
wholly or apparently erroneous and unsustainable in law.”
115. Summarising the law in the context of Sections 145 and 146
Cr.P.C. the effects of the order of Magistrate were recorded by this
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Court in paragraph 23, relevant part of which for the present case is as
follows:
“23. For the purpose of legal proceedings initiated before a
competent court subsequent to the order of an Executive
Magistrate under Sections 145/146 of the Code of Criminal
Procedure, the law as to the effect of the order of the Magistrate
may be summarized as under:-
(1) The words ‘competent court’ as used in Sub-section (1) of
Section 146 of the code do not necessarily mean a civil court
only. A competent court is one which has the jurisdictional
competence to determine the question of title or the rights of
the parties with regard to the entitlement as to possession over
the property forming subject matter of proceedings before the
Executive Magistrate;
(2) A party unsuccessful in an order under Section 145(1) would
initiate proceedings in a competent court to establish its
entitlement to possession over the disputed property against
the successful party, Ordinarily, a relief of recovery of
possession would be appropriate to be sought for. In legal
proceedings initiated before a competent court consequent upon
attachment under Section 146(1) of the Code it is not necessary
to seek relief of recovery of possession. As the property is
held custodia legis by the Magistrate for and on behalf of the
party who would ultimately succeed from the court it would
suffice if only determination of the rights with regard to the
entitlement to the possession is sought for. Such a suit
shall not
be bad for not asking for the relief of possession.
(3) A decision by a criminal court does not bind the civil court
while a decision by the civil court binds the criminal court. An
order passed by the Executive Magistrate in proceedings under
Sections 145/146 of the Code is an order by a criminal court
and that too based on a summary enquiry. The order is entitled
to respect and weight before the competent court at the
interlocutory stage. At the stage of final adjudication of rights,
which would be on the evidence adduced before the court, the
order of the Magistrate is only one out of several pieces of
evidence.
SATISH CHANDER AHUJA v. SNEHA AHUJA
[ASHOK BHUSHAN, J.]
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(4)
.....
.....
.....”
116. Drawing the analogy from the above case, we are of the
opinion that the expression “save in accordance with the procedure
established by law”, in Section 17(2) of the Act, 2005 contemplates the
proceedings in court of competent jurisdiction. Thus, 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. The High Court
in the impugned judgment has also expressed opinion that suit filed by
the plaintiff cannot be held to be non-maintainable with which conclusion
we are in agreement.
117. 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 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
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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 Act, 2005 of not to be evicted or excluded save in
accordance with the procedure established by law operates only against
the “respondent”, i.e., one who is respondent within the meaning of
Section 2(q) of Act, 2005.
Question No.7
118. Learned counsel for the appellant challenging the direction
issued by the High Court that the husband of respondent be impleaded
by the Trial Court by invoking suo moto powers under Order I Rule 10
CPC, submits that no relief having been claimed against the son of the
appellant, he (son) was neither necessary nor proper party. Learned
counsel for the appellant has relied on the judgments of this Court in
Razia Begum Vs. Sahebzadi Anwar Begum and others, AIR 1958
SC 886 and Ramesh Hirachand Kundanmal Vs. Municipal
Corporation of Greater Bombay and others, (1992) 2 SCC 524.
Latter judgment of this Court discussing judgment of Razia Begum has
laid down following in paragraphs 10 and 12:
“10. The power of the Court to add parties under Order I
Rule 10, CPC, came up for consideration before this Court in
Razia Begum (supra). In that case it was pointed out that the
Courts in India have not treated the matter of addition of parties
as raising any question of the initial jurisdiction of the Court and
that it is firmly established as a result of judicial decisions that
in
order that a person may be added as a party to a suit, he should
have a direct interest in the subject-matter of the litigation whether
it be the questions relating to moveable or Immovable property.
12. Sinha, J. speaking for the majority said that a declaratory
judgment in respect of a disputed status will be binding not only
upon parties actually before the Court but also upon persons
claiming through them respectively. The Court laid down the law
that in a suit relating to property in order that a person may be
added as a party, he should have a direct interest as distinguished
from a commercial interest in the subject-matter of the litigation.
Where the subject-matter of a litigation is a declaration as regards
status or a legal character, the rule of presence of direct interest
may be relaxed in a suitable case where the Court is of the opinion
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that by adding that party it would be in a better position effectually
and completely to adjudicate upon the controversy.…………”
119. There can be no dispute with the preposition of law as laid
down by this Court in the above two cases. In the present case, although
plaintiff has not claimed any relief against his son, Raveen Ahuja, the
husband of the respondent, hence, he was not a necessary party but in
view of the fact that respondent has pleaded her right of residence in
shared household relying on Sections 17 and 19 of the 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. The right of maintenance
as per the provisions of Hindu Adoption and Maintenance Act, 1956 is
that of the husband, hence he may be a proper party in cases when the
Court is to consider the claim of respondent under Sections 17 and 19
read with Section 26 of the Act, 2005.
120. Civil Procedure Code, Order I Rule 10 empowers the Court
at any stage of the proceedings either on an application or suo moto to
add a party either as plaintiff or defendant, whose presence before the
Court may be necessary in order to enable the Court effectively and
completely adjudicate upon and settle all the questions involved in the
suit. The High Court in paragraph 56(i) has issued following directions:-
“56. In these circumstances, the impugned judgments cannot be
sustained and
are accordingly set aside. The matters are remanded
back to the Trial Court for fresh adjudication in accordance with
the directions given hereinbelow:
(i) At the first instance, in all cases where the respondent’s
son/the appellant’s husband has not been impleaded, the Trial
Court shall direct his impleadment by invoking its suo motu
powers under Order I Rule 10 CPC.
XXXXXXXXXXXXXXX”
121. The above direction is a little wide and preemptory.  In event,
the High Court was satisfied that impleadment of husband of defendant
was necessary, the High Court itself could have invoked the power under
Order I Rule 10 and directed for such impleadment. When the matter is
remanded back to the Trial Court, Trial Court’s discretion ought not to
have been fettered by issuing such a general direction as noted above.
The general direction issued in paragraph 56(i) is capable of being
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misinterpreted. Whether the husband of an aggrieved person in a particular
case needs to be added as plaintiff or defendant in the suit is a matter,
which need to be considered by the Court taking into consideration all
aspects of the matter. We are, thus, of the view that direction in paragraph
56(i) be not treated as a general direction to the Courts to implead in all
cases the husband of an aggrieved person and it is the Trial Court which
is to exercise the jurisdiction under Order I Rule 10. The direction in
paragraph 56(i) are, thus, need to be read in the manner as indicated
above.
122. Now, coming to the present case, we have already observed
that although husband of the defendant was not a necessary party but in
view of the pleadings in the written statement, the husband was a proper
party.
Question No.8
123. While noticing the facts and events of the present case, we
have noticed that in complaint filed by the respondent under Section 12
of Act, 2005, an interim order was passed in her favour directing the
respondent arrayed in the complaint not to dispossess the applicant without
orders of a competent court. Suit giving rise to this appeal was filed
thereafter praying for a mandatory and permanent injunction against the
defendant-respondent. High Court in the impugned judgment has
observed that the effect of the pendency of proceeding under D.V. Act,
2005 has not been taken note of. With regard to various precedents,
which were relied before the
High Court by learned counsel for the
appellant, similar observations were made by the High Court that those
judgments do not consider the effect of initiation and pendency of
proceedings under Act, 2005.
124. What is the effect of an interim order or a final order passed
under Section 19 of the Act, 2005 on a civil proceeding initiated in a
court of competent jurisdiction, is a question, which need to be answered?
Whether in view of the pendency of proceedings under the D.V. Act
any proceedings could not have been initiated in a Civil Court of competent
jurisdiction or whether the orders passed under D.V. Act giving right of
residence by interim or final order are binding in Civil Court proceedings
and Civil court could not have taken any decision contrary to directions
issued in D.V. Act are the related questions to be considered.
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125. 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 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 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. There may be also instances where conflict
may arise in the orders issued under D.V. Act, 2005 as well as the
judgment of Civil Court. What is the effect of such conflict in the decision
is another related issue which needs to be answered? Whether the
principle of res judicata can be pressed in respect to any decision inter
parties in respect to criminal and civil proceedings?
126. 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. 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.
127. Sections 40 to 44 of the Indian Evidence Act, 1872 which
deal with “judgments of Courts of justice when relevant” throw
considerable light on the subject which is under consideration before us.
Sections 40 to 44 of the Indian Evidence Act are as follows:
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“Judgments of courts of justice when relevant
40. Previous judgments relevant to bar a second suit or
trial.—The existence of any judgment, order or decree which by
law prevents any Court from taking cognizance of a suit or holding
a trial, is a relevant fact when the question is whether such Court
ought to take cognizance of such suit or to hold such trial.
41. Relevancy of certain judgments in probate, etc.,
jurisdiction.— A final judgment, order or decree of a competent
Court, in the exercise of probate, matrimonial, admiralty or
insolvency jurisdiction, which confers upon or takes away from
any person any legal character, or which declares any person to
be entitled to any such character, or to be entitled to any specific
thing, not as against any specified person but absolutely, is relevant
when the existence of any such legal character, or the title of any
such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof—
that any legal character which it confers accrued at the time when
such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to
be entitled, accrued to that person at the time when such judgment,
order or decree declares it to have accrued to that person;
that any legal character which it takes away from any such person
ceased at the time from which such judgment, order or decree
declared that it had ceased or should cease;
and that anything to
which it declares any person to be so entitled
was the property of that person at the time from which such
judgment, order or decree declares that it had been or should be
his property.
42. Relevancy and effect of judgments, orders or decrees,
other than those mentioned in Section 41.—Judgments,
orders or decrees other than those mentioned in Section 41, are
relevant if they relate to matters of a public nature relevant to the
enquiry; but such judgments, orders or decrees are not conclusive
proof of that which they state.
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43. Judgments, etc., other than those mentioned in Sections
40 to 42, when relevant.—Judgments, orders or decrees, other
than those mentioned in Sections 40, 41 and 42, are irrelevant,
unless the existence of such judgment, order or decree, is a fact
in issue, or is relevant under some other provision of this Act.
44. Fraud or collusion in obtaining judgment, or
incompetency of Court, may be proved.— Any party to a suit
or other proceeding may show that any judgment, order or decree
which is relevant under Section 40, 41 or 42, and which has been
proved by the adverse party, was delivered by a Court not
competent to deliver it, or was obtained by fraud or collusion.”
128. Section 40 renders admissible judgments which operate as
placing any bar on a suit or trial as plea of res judicata or otherwise
under some rule of law. 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 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.
129. Section 42 deals with admissibility of judgments relevant to
matters of public nature though not between the parties and privy but
such judgments, orders or decree are not conclusive proof of that they
state. Section 43 says that judgment other than those mentioned in
Sections 40 to 42 are irrelevant unless the existence of judgment, order
or decree is fact in issue or is relevant under some other provisions of
the Act. In the facts of the present case, where there are pleadings in
the suit in question regarding proceeding under Section 12 the existence
of orders passed under Act, 2005 are relevant and admissible in Civil
Proceedings.
130. The proceedings under D.V. Act, 2005 are proceedings which
are to be governed by Code of Criminal Procedure, 1973.
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131. 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.
132. 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.
133. 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.
134. 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
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magistrate may, on being satisfied, that domestic violence has taken place,
pass the residence order.
135. 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.
136. 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.
137. Now, we proceed to examine effect of orders passed under
criminal proceedings, i.e., Act, 2005 on the civil proceedings and
consequence of any conflict in proceedings under D.V. Act as well as
civil proceedings.
138. We make it clear that in the present case we are called upon
to examine the consequences and effect of orders passed under Section
19 of D.V. Act, 2005 on civil
proceedings in a court of competent
jurisdiction.  Thus, our consideration and exposition are limited qua orders
passed under Section 19 of D.V. Act only, i.e., a conflict between orders
passed in a criminal proceeding on a civil proceeding.
139. We may first notice the judgment of Constitution Bench of
this Court in M.S. Sheriff and Anr. Vs. State of Madras and Ors.,
AIR 1954 SC 397. In the above case, the appellants were sought to be
prosecuted for perjury under Section 193 IPC, which was directed by
High Court after an inquiry. Appeal was filed against the order of the
High Court directing the filing of a complaint for perjury.  The complainant
had also filed a suit for damages for wrongful confinement against the
appellants, who were accused, who were alleged to have illegally detained
the complainant. One of the questions, which arose for consideration
before this Court was that which proceeding should be stayed, i.e.,
prosecution under Section 193 or suit for damages for wrongful
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confinement. In the above context, following observations were made
by the Constitution Bench in paragraph 15:-
“15. As between the civil and the criminal proceedings we are of
the opinion that the criminal matters should be given precedence.
There is some difference of opinion in the High Courts of India on
this point. No hard and fast rule can be laid down but we do not
consider that the possibility of conflicting decisions in the civil and
criminal courts is a relevant consideration. The law envisages
such an eventuality when it expressly refrains from making the
decision of one court binding on the other, or even relevant, except
for certain limited purposes, such as sentence or damages. The
only relevant consideration here is the likelihood of
embarrassment.”
140. In the above case, this Court had observed that  possibility of
conflicting decisions in the civil and criminal courts was not a relevant
consideration. This Court had further observed that “The law envisages
such an eventuality when it expressly refrains from making the decision
of one court binding on the other, or even relevant, except for certain
limited purposes……….”
141. This Court in M.S. Sheriff (supra), directed that civil suits
should be stayed till the criminal proceedings have finished. The issue
before the Constitution Bench was limited as of stay of one out of two
proceedings. In the present proceedings, we are not faced with any
question regarding stay of any of the
proceedings”, however, “factum of
possibility of conflicting decisions” was noticed by this Court qua civil
and criminal proceedings which is a possible and probable consequence
of decision taken in two proceedings.
142. We may notice a judgment of this Court dealing with Section
43 of the Indian Evidence Act, i.e., S.M. Jakati and Anr. Vs. S.M.
Borkar and Ors., AIR 1959 SC 282. This Court in the above case had
occasion to consider the relevancy of the effect and consequence of an
order passed by Deputy Registrar of Cooperative Society in a suit filed
for partition of joint family property, which was sold in auction in
consequence of orders passed by the Deputy Registrar for the Society.
The relevancy of orders of Deputy Registrar under Section 43 of the
Evidence Act came to be considered and this Court noticing the principle
of Section 43 of Evidence Act laid down following in paragraph 11:-
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“11. In the case now before us the appellants have attempted to
prove that the debt fell within the term Avyavaharika by relying
upon the payment order and the findings given by the Deputy
Registrar in the payment order where the liability was inter alia
based on a breach of trust. Any opinion given in the order of the
Deputy Registrar as to the nature of the liability of Defendant 1
M.B. Jakati cannot be used as evidence in the present case to
determine whether the debt was Avyavaharika or otherwise. The
order is not admissible to prove the truth of the facts therein stated
and except that it may be relevant to prove the existence of the
judgment itself, it will not be admissible in evidence. Section 43 of
the Evidence Act, the principle of which is that judgments excepting
those upon questions of public and general interest, judgment in
rem or when necessary to prove the existence of a judgment,
order or decree, which may be a fact in issue are
irrelevant………………………”
143. We may notice a Three Judge Bench judgment of this Court
in K.G. Premshankar Vs. Inspector of Police and Anr., (2002) 8
SCC 87 in which case this Court had occasion to consider the effect of
decision of civil court on the criminal proceeding. This Court had also
occasion to consider Sections 40 to 43 of Indian Evidence Act in the said
judgment. The Three Judge Bench was answering the reference made
on 09.11.1998 by which an earlier judgment of this
Court in V.M. Shah
Vs. State of Maharashtra (1995) 5 SCC 767 required a reconsideration.
This Court in V.M. Shah’s case had laid down that “the finding recorded
by the criminal court stands superseded by the finding recorded by the
civil court” thereby the finding of civil court got precedence over the
finding recorded by the criminal court. Before this Court in K.G.
Premshankar case prosecution was launched against the appellants,
cognizance of which was taken by the Chief Judicial Magistrate.
Appellant filed a proceeding under Section 482 Cr.P.C. for quashing the
prosecution, which was rejected, against which matter was taken to this
Court. The complainant had also filed a suit for damages for the alleged
act before the civil court, which suit was pending in the trial court at the
stage of framing of issues. Submission, which was raised before this
court was that the High Court ought to have dropped the prosecution
against the appellants as the civil court has dismissed the suit, i.e., suit
for damages filed against the appellants. The submission of the appellants
was refuted by learned Additional Advocate General, who relied on
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Sections 41, 42 and 43 of the Evidence Act. It was contended that previous
proceedings are relevant only to limited extent and criminal proceedings
are not required to be dropped as soon as a decree is passed in the civil
suit. The submission of learned Additional Advocate General has been
noticed in paragraph 15 of the judgment. This Court accepted the
submission of the learned Additional Advocate General. Paragraphs 15
and 16 of the judgment are as follows:-
“15. Learned Additional Solicitor-General Shri Altaf Ahmed
appearing for the respondents submitted that the observation made
by this Court in V.M. Shah case [(1995) 5 SCC 767 : 1995 SCC
(Cri) 1077] that
“the finding recorded by the criminal court, stands superseded
by the finding recorded by the civil court and thereby the finding
of the civil court gets precedence over the finding recorded by
the criminal court”
(SCC p. 770, para 11)
is against the law laid down by this Court in various decisions. For
this, he rightly referred to the provisions of Sections 41, 42 and 43
of the Evidence Act and submitted that under the Evidence Act to
what extent judgments given in the previous proceedings are
relevant is provided and therefore it would be against the law if it
is held that as soon as the judgment and decree is passed in a civil
suit the criminal proceedings are required to be dropped if the suit
is decided against the plaintiff who is the complainant in the criminal
proceedings.
16. In our view,
the submission of learned Additional Solicitor-
General requires to be accepted. Sections 40 to 43 of the Evidence
Act provide which judgments of courts of justice are relevant and
to what extent. Section 40 provides for previous judgment, order
or a decree which by law prevents any court while taking
cognizance of a suit or holding a trial, to be a relevant fact when
the question is whether such court ought to take cognizance of
such suit or to hold such trial. Section 40 is as under:
“40. Previous judgments relevant to bar a second suit or trial.—
The existence of any judgment, order or decree which by law
prevents any court from taking cognizance of a suit or holding
a trial, is a relevant fact when the question is whether such
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court ought to take cognizance of such suit or to hold such
trial.”
144. This Court noticing the Constitution Bench judgment in M.S.
Sheriff (supra) and few other judgments had recorded its conclusion in
paragraph 30 to the following effect:-
“30. What emerges from the aforesaid discussion is — (1) the
previous judgment which is final can be relied upon as provided
under Sections 40 to 43 of the Evidence Act; (2) in civil suits
between the same parties, principle of res judicata may apply;
(3) in a criminal case, Section 300 CrPC makes provision that
once a person is convicted or acquitted, he may not be tried again
for the same offence if the conditions mentioned therein are
satisfied; (4) if the criminal case and the civil proceedings are for
the same cause, judgment of the civil court would be relevant if
conditions of any of Sections 40 to 43 are satisfied, but it cannot
be said that the same would be conclusive except as provided in
Section 41. Section 41 provides which judgment would be
conclusive proof of what is stated therein.”
145. This Court ultimately held that civil proceedings as well as
criminal proceedings are required to be decided on the facts and evidences
brought on the record by the parties. Paragraphs 32, 33 and 34, which
are relevant, are quoted below:-
“32. In the present case, the decision rendered by the Constitution
Bench in M.S. Sheriff case [AIR 1954 SC 397] would be binding,
wherein it
has been specifically held that no hard-and-fast rule
can be laid down and that possibility of conflicting decision in civil
and criminal courts is not a relevant consideration. The law
envisages
“such an eventuality when it expressly refrains from making
the decision of one court binding on the other, or even relevant,
except for limited purpose such as sentence or damages”.
33. Hence, the observation made by this Court in V.M. Shah case
[(1995) 5 SCC 767] that the finding recorded by the criminal court
stands superseded by the finding recorded by the civil court is not
correct enunciation of law. Further, the general observations made
in Karam Chand case [(1970) 3 SCC 694] are in context of the
facts of the case stated above. The Court was not required to