Residence Order is not an embargo for initiating or continuing civil proceedings in relation to same subject matter

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2483 of 2020
(Arising out of SLP(C)No.1048 of 2020)

SATISH CHANDER AHUJA …APPELLANT(S)

VERSUS

SNEHA AHUJA …RESPONDENT(S)

J U D G M E N T
ASHOK BHUSHAN, J.
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 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(motherin-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 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.

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 selfacquired 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.

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 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 nonmaintainable 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 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 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.

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 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.

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 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.

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
30
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. 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:-
31
“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.
32
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
(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
33
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
34
Domestic Violence” was enacted. Section 30 of which
provision is as follows:-
“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 dwellinghouse 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
35
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:-
36
“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:-
37
“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 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.”
38
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:
39
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 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
40
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 subsection (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
41
person, the amount, if any, paid or payable in
pursuance of the order made by the Magistrate
under this Act shall be set off against the
amount payable under such decree and the decree
shall, notwithstanding anything contained in
the Code of Civil Procedure, 1908 (5 of 1908),
or any other law for the time being in force,
be executable for the balance amount, if any,
left after such set off.
(3) Every application under sub-section
(1) shall be in such form and contain such
particulars as may be prescribed or as nearly
as possible thereto.
(4) The Magistrate shall fix the first
date of hearing, which shall not ordinarily be
beyond three days from the date of receipt of
the application by the court.
(5) The Magistrate shall Endeavour to
dispose of every application made under subsection (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.
42
(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,
43
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 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
44
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
45
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 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
46
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
47
the legislature’s intention 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
48
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; (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)
49
“… 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
50
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 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
51
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
52
in a domestic relationship. The second part subdivided in two parts is- (a) includes such a household
whether owned or tenanted either jointly by the
aggrieved person and the respondent and owned or
tenanted by either of them in respect of which either
the aggrieved person or the respondent or both jointly
or singly have any right, title, interest or equity and
(b)includes such a household which may belong to the
joint family of which the respondent is a member,
irrespective of whether the respondent or the aggrieved
person has any right, title or interest in the shared
household. In the above definition, two expressions,
namely, “aggrieved person” and “respondent” have
occurred. From the above definition, following is
clear:- (i) it is not requirement of law that aggrieved
person may either own the premises jointly or singly or
by tenanting it jointly or singly; (ii) the household
may belong to a joint family of which the respondent is
a member irrespective of whether the respondent or the
aggrieved person has any right, title or interest in
53
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
54
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:-
55
“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.”
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
56
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
57
the past. Such a view would lead to chaos and
would be absurd.
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.”
58
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 from denying the
59
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
60
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
61
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 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
62
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
63
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 happily
worded 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
64
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.
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
65
(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 fatherin-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
66
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 subjectmatter 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 not for an owner of the
property to establish that it is his selfacquired 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-inlaw.”
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.”
67
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
68
should bestow serious consideration of disposing of the same, as expeditiously as possible.
(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
69
(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
70
has any right, title or interest in the shared
household”
(emphasis supplied).
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 subsection 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.”
71
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, 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)
72
(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
73
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-inlaw (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.”
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
74
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.
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:-
75
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
76
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
77
Fernandes and Ors. Vs. Erasmo Jack De Sequeira, (2012)
5 SCC 370. Shri Jauhar placed 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 whatso
78
ever 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 the suit property. Undoubtedly,
the appellant has a valid title to the property
which is clearly proved from the pleadings and
documents on record.
79
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
80
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
81
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, 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.
82
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
83
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 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
84
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
85
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 – 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
86
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.D1077, 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.”
87
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:-
“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
88
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 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.”
89
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).
90
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, she
91
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.
92
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………………”
93
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 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 subsection (1) may be sought for in
addition to and along with any other
94
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
95
Act is expressly barred from consideration by a
civil court, this Court shall be loath to read
in bar in consideration of any such claim in
any legal proceeding before the civil court.
When the proceeding initiated by 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
96
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.”
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.
97
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
98
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
99
Sections 18, 19, 20, 21 and 22 may also be sought 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
100
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
101
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 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
102
105. Section 17 of the Act has two sub-sections which
engraft two independent rights. According to subsection (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
103
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
104
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.
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.”
105
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
106
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
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.
107
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
108
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:
“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
109
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
110
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 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
111
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
112
would be on the evidence adduced
before the court, the order of the
Magistrate is only one out of several
pieces of evidence.
(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
113
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 nonmaintainable 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
114
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.
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
115
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
116
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 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
117
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”
118
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 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
119
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
120
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.
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
121
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
122
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.
123
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:
“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—
124
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.
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,
125
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
126
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.

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 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 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:-

“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 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
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-andfast 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 consider the earlier
decision of the Constitution Bench in M.S.
Sheriff case [AIR 1954 SC 397] as well as
Sections 40 to 43 of the Evidence Act.
34. In the present case, after remand by the
High Court, civil proceedings as well as
criminal proceedings are required to be decided
on the evidence, which may be brought on record
by the parties.”

146. We have noticed above judgment of this Court in Shanti Kumar Panda (supra) while considering the provisions under Sections 145 and 146 Cr.P.C. in context of suit filed in a court of competent jurisdiction in paragraphs 15 and 21 following was laid down:-

“15. It is well settled that a decision by
a criminal court does not bind the civil court
while a decision by the civil court binds the
criminal court. (See Sarkar on Evidence, 15th
Edn., p. 845.) A decision given under Section
145 of the Code has relevance and is admissible
in evidence to show: (i) that there was a
dispute relating to a particular property; (ii)
that the dispute was between the particular
parties; (iii) that such dispute led to the
passing of a preliminary order under Section
145(1) or an attachment under Section 146(1),
on the given date; and (iv) that the Magistrate
found one of the parties to be in possession or
fictional possession of the disputed property
on the date of the preliminary order. The
reasoning recorded by the Magistrate or other
findings arrived at by him have no relevance
and are not admissible in evidence before the
competent court and the competent court is not
bound by the findings arrived at by the
Magistrate even on the question of possession
though, as between the parties, the order of
the Magistrate would be evidence of possession.
The finding recorded by the Magistrate does not
bind the court. The competent court has
jurisdiction and would be justified in arriving
at a finding inconsistent with the one arrived
at by the Executive Magistrate even on the
question of possession. Sections 145 and 146
only provide for the order of the Executive
Magistrate made under any of the two provisions
being superseded by and giving way to the order
or decree of a competent court. The effect of
the Magistrate’s order is that burden is thrown
on the unsuccessful party to prove its
possession or entitlement to possession before
the competent court.

21. The order of the Magistrate under
Sections 145/146 of the Code is not only an
order passed by the criminal court but is also
one based on summary enquiry. The competent
court in any subsequent proceedings is free to
arrive at its own findings based on the
evidence adduced before it on all the issues
arising for decision before it. At the stage of
judgment by the civil court the order of the
Magistrate shall have almost no relevance
except for the purpose of showing that an
enquiry held by the Magistrate had resulted
into the given declaration being made on a
particular date. The competent court would be
free to record its own findings based on the
material before it even on the question of
possession which may be inconsistent with or
contrary to the findings arrived at by the
Magistrate.“

147. We may observe that the observations made by this Court in Shanti Kumar Panda (supra) were in reference to statutory scheme under Sections 145 and 146 Cr.P.C. and had to be read in reference to statutory scheme which came for consideration before this Court.

148. We may notice a Constitution Bench judgment of this Court in Iqbal Singh Marwah and Anr. Vs. Meenakshi Marwah and Anr., (2005) 4 SCC 370 where the Constitution Bench laid down that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. In paragraph 32, following was laid down:-

“32. Coming to the last contention that an
effort should be made to avoid conflict of
findings between the civil and criminal courts,
it is necessary to point out that the standard
of proof required in the two proceedings are
entirely different. Civil cases are decided on
the basis of preponderance of evidence while in
a criminal case the entire burden lies on the
prosecution and proof beyond reasonable doubt
has to be given. There is neither any statutory
provision nor any legal principle that the
findings recorded in one proceeding may be
treated as final or binding in the other, as
both the cases have to be decided on the basis
of the evidence adduced therein………………
XXXXXXXXXXXXXXXX“

149. In Seth Ramdayal Jat Vs. Laxmi Prasad, (2009) 11 SCC 545, this Court had occasion to consider the provisions of Sections 41 to 43 of Indian Evidence Act where this Court laid down that a judgment in a criminal court is admissible for a limited purpose. After noticing the provisions of Sections 40 to 43 of Indian Evidence Act, this Court laid down following in paragraph 13:-

“13. XXXXXXXXXXXXXX

A judgment in a criminal case, thus, is
admissible for a limited purpose. Relying only
on or on the basis thereof, a civil proceeding
cannot be determined, but that would not mean
that it is not admissible for any purpose
whatsoever.”

150. It was further held that a decision in a criminal case is not binding in a civil case. In paragraph 15, following was laid down:-

“15. A civil proceeding as also a criminal
proceeding may go on simultaneously. No statute
puts an embargo in relation thereto. A decision
in a criminal case is not binding on a civil
court. In M.S. Sheriff v. State of Madras [AIR
1954 SC 397], a Constitution Bench of this
Court was seized with a question as to whether
a civil suit or a criminal case should be
stayed in the event both are pending. It was
opined that the criminal matter should be given
precedence. In regard to the possibility of
conflict in decisions, it was held 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, such as sentence
or damages. It was held that the only relevant
consideration was the likelihood of
embarrassment.”

151. In Vishnu Dutt Sharma Vs. Daya Sapra, (2009) 13
SCC 729, this Court again reiterated that a judgment of
a criminal court in civil proceedings will have only a
limited application and finding in a criminal
proceeding by no stretch of imagination would be
binding in a civil proceeding. Referring to Section 40
of the Indian Evidence Act, this Court laid down
following in paragraph 23:-

“23. XXXXXXXXXXXXXXXXXXXX
This principle would, therefore, be applicable,
inter alia, if the suit is found to be barred
by the principle of res judicata or by reason
of the provisions of any other statute. It does
not lay down that a judgment of the criminal
court would be admissible in the civil court
for its relevance is limited. (See Seth
Ramdayal Jat v. Laxmi Prasad [(2009) 11 SCC
545]. The judgment of a criminal court in a
civil proceeding will only have limited
application viz. inter alia, for the purpose as
to who was the accused and what was the result
of the criminal proceedings. Any finding in a
criminal proceeding by no stretch of
imagination would be binding in a civil
proceeding.”

152. A Two Judge Bench of this Court in Kishan Singh
(Dead) Through LRs. Vs. Gurpal Singh and Ors., (2010) 8
SCC 775 after noticing the several earlier judgments
concluded that finding of fact recorded by the civil
court do not have any bearing so as the criminal case
is concerned and vice versa. In paragraph 18,
following was laid down:-

“18. Thus, in view of the above, the law on the
issue stands crystallised to the effect that
the findings of fact recorded by the civil
court do not have any bearing so far as the
criminal case is concerned and vice versa.
Standard of proof is different in civil and
criminal cases. In civil cases it is
preponderance of probabilities while in
criminal cases it is proof beyond reasonable
doubt. There is neither any statutory nor any
legal principle that findings recorded by the
court either in civil or criminal proceedings
shall be binding between the same parties while
dealing with the same subject-matter and both
the cases have to be decided on the basis of
the evidence adduced therein. However, there
may be cases where the provisions of Sections
41 to 43 of the Evidence Act, 1872, dealing
with the relevance of previous judgments in
subsequent cases may be taken into
consideration.”

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

154. By a written statement, the defendant is sure to
resist the suit on the ground that she had already
filed an application under Section 12 where plaintiff
Dr. Prem kant Ahuja(mother-in-law of the defendant) is
one of the respondent and she may also place reliance
on the interim order dated 26.11.2016 restraining the
respondents which included Dr. Prem Kant Ahuja from
dispossessing the applicant except without obtaining an
order of competent Court. The order dated 26.11.2016
which was passed by the Magistrate under D.V. Act,
2005, shall be relevant evidence and fully admissible
in the civil suit, but the above order shall only be
one of the evidence in the suit but shall neither
preclude the civil court to determine the issues raised
in the suit or to grant the relief claimed by the
plaintiff Dr. Prem Kant Ahuja. The Civil Court in such
suit can consider the issues and may grant relief if
the plaintiff is able to prove her case. The order
passed under D.V. Act whether interim or final shall be
relevant and have to be given weight as one of evidence
in the civil suit but the evidentiary value of such
evidence is limited. The findings arrived therein by
the magistrate are although not binding on the Civil
Court but the order having passed under the Act, 2005,
which is an special Act has to be given its due weight.
155. We need to observe that in event a judgment of
criminal court is relevant as per Sections 40 to 43 of
Evidence Act in civil proceedings, the judgment can
very well be taken note of and there is no embargo on
the civil court to place reliance upon it as a
corroborative material. We may notice a judgment of
Madras High Court in K. Subramani Vs. Director of
Animal Husbandry, Chennai, (2009) 1 MLJ 363 where
Madras High Court has made following observations in
paragraph 7:-

“7. A decision of the Criminal Court does not
have the effect of binding nature on the
proceedings before the Civil Court including
the Motor Accident Claims Tribunal for the
reason that the proof in both the Civil and
Criminal cases are having two different
categories of standards. In criminal cases,
guilt of the accused must be proved beyond
reasonable doubt, while in civil cases, the
rights of the parties or matter in issue shall
be decided on preponderance of probabilities.
If a party to the case relies upon a decision
of the criminal Court and insists the Civil
Court to give credence to the said decision, it
is incumbent upon the party to gather further
materials in the case, which would support the
observations and the decisions of the criminal
Court. If any material is available in the
case, which would corroborate or strengthen the
decision of the criminal Court, then, there is
no embargo for the Civil Court to place
reliance upon it.”

156. We are in full agreement with the above view. 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.

157. From the above discussions, we arrive at following conclusions:-

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

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

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

(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit. 158. In view of the foregoing discussions, we are of the considered opinion that High Court has rightly set aside the decree of the Trial Court and remanded the matter for fresh adjudication. With the observations as above, the appeal is dismissed. No Costs.

[ASHOK BHUSHAN]

[R. SUBHASH REDDY]

[M.R. SHAH]
NEW DELHI;
OCTOBER 15, 2020.

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