SATISH CHANDER AHUJA versus SNEHA AHUJA

[2020] 12 S.C.R. 189

SATISH CHANDER AHUJA

SNEHA AHUJA

(Civil Appeal No.3483 of 2020)

OCTOBER 15, 2020

[ASHOK BHUSHAN, R. SUBHASH REDDY AND

M. R. SHAH, JJ.]

Protection of Women from Domestic Violence Act, 2005: ss.12,19 – In complaint filed under s.12 of Act, 2005, an interim orderwas passed in favour of complainant directing the respondentarrayed in the complaint i.e. husband not to dispossess thecomplainant without orders of competent court – Suit filed byfather-in-law thereafter praying for mandatory and permanentinjunction in respect of suit property against the complainant-defendant – Maintainability of – Held: Suit filed in civil court formandatory and permanent injunction was fully maintainable – Theissues raised by the plaintiff as well as by the defendant claiming aright under s.19 were to be addressed and decided on the basis ofevidence led by the parties in the suit.

Protection of Women from Domestic Violence Act, 2005: s.26– Relief in suit or legal proceedings – As per s.26, any relief availableunder ss.18, 19, 20, 21 and 22 of the Act, 2005 may also be soughtin any legal proceeding, before civil court, family court or acriminal court being the aggrieved person – In suit for mandatoryand permanent injunction filed by the appellant (father-in-law) whererespondent (daughter-in-law) has pleaded and claimed that the suitproperty is shared household and she has right to live and it was onthat ground she was resisting the suit for mandatory injunction, thequestion that whether the suit property is shared household ornot becomes relevant and necessary and the said issue cannot beskipped on the ground that application under D.V. Act is pending –In the regular suit, which was filed by the appellant, plea ofdefendant that suit property is her shared household and she hasright to residence could have been very well gone into by virtue ofs.26 of Act, 2005.

AProtection of Women from Domestic Violence Act, 2005: s.19– Pendency of proceedings under the Act, 2005 or any order interimor final, passed u/s.19 regarding right of residence is not an embargofor initiating/continuing any civil proceedings, which relate to subjectmatter of order interim or final passed in proceedings under theAct.B

Protection of Women from Domestic Violence Act, 2005: s.2(s)– Shared household – Definition of – Held: The definition of sharedhousehold in s.2(s) is an exhaustive definition – s.2(s) uses both theexpressions “means and includes” – The first part of definitionbegins with expression “means” which is undoubtedly an exhaustiveCdefinition and second part of definition, which begins with word“includes” is explanatory of what was meant by the definition –The use of both the expressions “means and includes” in s.2(s),thus, clearly indicate the legislative intent that the definition isexhaustive and shall cover only those which fall within the purviewDof definition and no other.

Protection of Women from Domestic Violence Act, 2005: s.2(s)– Expression “where the person aggrieved has lived or at any stagehas lived in domestic relationship” – Meaning of – The words“lives or at any stage has lived in domestic relationship” have toEbe given its normal and purposeful meaning – The living of womanin household has to refer to living which has some permanency

– Mere fleeting or casual living at different places shall not makea shared household.

Protection of Women from Domestic Violence Act, 2005: s.2(s)F– Interpretation of – It is not requirement of law that aggrievedperson may either own the premises jointly or singly or by tenantingit jointly or singly; the household may belong to joint family ofwhich the respondent is member irrespective of whether therespondent or the aggrieved person has any right, title or interestin the shared household; and the shared household may either beGowned or tenanted by the respondent singly or jointly.

Protection of Women from Domestic Violence Act, 2005: s.2(q)– Who can be respondent – To treat person as “respondent” forpurposes of s.2(q), it has to be proved that person arrayed asrespondent has committed an act of domestic violence on theHaggrieved person – For grant of any relief to the defendant or for

successful resisting the suit of the plaintiff, necessary conditionsfor grant of relief as prescribed under the Act, 2005 has to be pleadedand proved by the defendant, only then the relief can be granted bythe Civil Court to the defendant – Thus, for granting any relief bythe Civil Court under s.19, it has to be proved that the respondent iscommitting or has committed an act of domestic violence on theaggrieved person.

Protection of Women from Domestic Violence Act, 2005: s.17– Right to residence – Every woman in domestic relationship shallhave the right to reside in the shared household, whether or not shehas any right, title or beneficial interest in the same – This right hasbeen expressly granted to every woman in domestic relationship tofulfill the purpose and objective of the Act – Although under thestatute regulating personal law, the woman has right to maintenance,every wife has right of maintenance which may include right ofresidence, the right recognized by sub-section (1) of s.17 is newand higher right conferred on every woman.

Protection of Women from Domestic Violence Act, 2005:s.17(2) – Whether apart from powers of Magistrate under s.25(2)of the Act, 2005, the Act, 2005 contemplates any other eventualitywhen despite the order of residence under s.19 an aggrieved personcan be evicted or dispossessed – Held: The right to reside in sharedhousehold as granted by s.17 itself contemplates an exception inexpress words, i.e., “save in accordance with the procedureestablished by law”.

Protection of Women from Domestic Violence Act, 2005:s.17(2) – Embargo under – Held: In case, the shared household ofa woman is tenanted/allotted/licensed accommodation wheretenancy/allotment/license is in the name of husband, father-in-lawor any other relative, the Act, 2005 does not operate against thelandlord/lessor/licensor in initiating an appropriate proceedings foreviction of the tenant/allottee/licensee qua the shared household –However, in case the proceedings are due to any collusion betweenthe two, the woman, who is living in the shared household has rightto resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings – The embargo unders.17(2) of Act, 2005 of not to be evicted or excluded save inaccordance with the procedure established by law operates only

Aagainst the “respondent”, i.e., one who is respondent within themeaning of s.2(q) of Act, 2005.

Protection of Women from Domestic Violence Act, 2005: s.19– Residence order – Held: The right to residence under s.19 is notan indefeasible right of residence in shared household especiallyBwhen the daughter-in-law is pitted against aged father-in-law andmother-in-law – The senior citizens in the evening of their life arealso entitled to live peacefully not haunted by marital discordbetween their son and daughter-in-law – Therefore, while grantingrelief both in application under s.12 of Act, 2005 or in any civilproceedings, the Court has to balance the rights of both the parties.CProtection of Women from Domestic Violence Act, 2005: ss.17and 19 – Proper party – In the present case, although plaintiff hasnot claimed any relief against his son, the husband of the respondent,hence, he was not necessary party but in view of the fact thatrespondent has pleaded her right of residence in shared householdDrelying on ss.17 and 19 of the Act, 2005 and one of the rights whichcan be granted under s.19 is right of alternate accommodation, thehusband is proper party – The right of maintenance as per theprovisions of Hindu Adoption and Maintenance Act, 1956 is againstthat of the husband, hence he may be proper party in cases whenEthe Court is to consider the claim of respondent under ss.17 and 19read with s.26 of the Act, 2005 – Party/Parties – Necessary party.

Code of Civil Procedure, 1908: Or.I r.10 empowers the Courtat any stage of the proceedings either on an application or suomoto to add party either as plaintiff or defendant, whose presenceFbefore the Court may be necessary in order to enable the Courteffectively and completely adjudicate upon and settle all thequestions involved in the suit – In the instant case, High Court issueddirections that the matters be remanded back to trial court and atthe first instance, in all cases where the respondent’s son/theappellant’s husband has not been impleaded, trial court shall directGhis impleadment by invoking its suo motu powers under Or.I r.10 –The said direction is little wide and preemptory – In event, theHigh Court was satisfied that impleadment of husband of defendantwas necessary, the High Court itself could have invoked the powerunder Or.I r.10 and directed for such impleadment – When the matterHis remanded back to trial court, trial court’s discretion ought not to

have been fettered by issuing such general direction – Protectionof Women from Domestic Violence Act, 2005.

Code of Civil Procedure, 1908: Or.XII r.6 – Power under,scope – Held: Power under Or.XII r.6 is discretionary and cannotbe claimed as matter of right.

Res judicata: Principle of, applicability when orders ofcriminal courts are pitted against proceedings in civil court – Held:There can be no applicability of principle of res judicata when ordersof criminal courts are pitted against proceedings in civil court –With regard to criminal proceedings, Code of Criminal Procedurealso contains provision that person who has once been tried by aCourt of competent jurisdiction for an offence and convicted oracquitted of such offence shall, while such conviction or acquittalremains in force, not be liable to be tried again for the same offencenor on the same facts for any other offence – The principleenumerated in s.300 Cr.P.C. may be relevant with respect to twocriminal proceedings against same accused, which might have norelevance in reference to one criminal proceeding and one civilproceeding.

Protection of Women from Domestic Violence Act, 2005: ss.12,25, 26 – Domestic Incident Report – Held: Before any order is passedunder s.12, the magistrate has to take into consideration anydomestic incident report received by him from the protection officeror the service provider – That does not mean that magistrate canpass orders solely relying upon the domestic incident report receivedby him from the protection officer or the service provider – Even asper s.36 of the D.V. Act, the provisions of the D.V. Act shall be inaddition to, and not in derogation of the provisions of any otherlaw, for the time being in force – Magistrate can also pass an interimorder as per s.23 of the D.V. Act.

Protection of Women from Domestic Violence Act, 2005:s.19(1)(b) – Order under clause (b) of s.19(1) against woman –Held: While passing order of residence under s.19, more particularlyunder sub-s.19(1)(b) as per the proviso to s.19(1), no order underclause (b) shall be passed against any person who is woman.

Protection of Women from Domestic Violence Act, 2005:ss.12(2), 17, 19, 20, 22, 23, 25, 26 and 28 – The proceedings under

Athe D.V. Act and proceedings before civil court, family court or acriminal court, as mentioned in s.26 of the D.V. Act are independentproceedings, like the proceedings under s.125 of the Cr. P.C. formaintenance before the Magistrate and/or family court and theproceedings for maintenance before civil court/ family court forthe reliefs under the Hindu Adoption and Maintenance Act –BHowever, the findings/orders passed by the one forum has to beconsidered by another forum.

Evidence Act, 1872: ss.40 to 43 – Order passed under theAct, 2005 – Relevancy and admissibility in civil proceedings – Thereis no embargo in referring to or relying on an admissible evidence,Cbe of civil court or criminal court both in civil or criminalproceedings – The judgment or order of criminal court granting aninterim or final relief under s.19 of D.V. Act, 2005 are relevant withinthe meaning of s.43 of the Evidence Act and can be referred to andlooked into by the civil court – Protection of Women from DomesticDViolence Act, 2005.

Words and phrases: Meaning and extent of expression “savein accordance with the procedure established by law” in s.17 ofProtection of Women from Domestic Violence Act, 2005.

Dismissing the appeal, the CourtE

HELD: 1.1 The use of both the expressions “means andincludes” in Section 2(s) of Act, 2005 clearly indicate thelegislative intent that the definition is exhaustive and shall coveronly those which fall within the purview of definition and no other.The first condition to be fulfilled for shared household is thatFperson aggrieved lives or at any stage has lived in domesticrelationship. The second part sub-divided in two parts is- (a)includes such household whether owned or tenanted eitherjointly by the aggrieved person and the respondent and ownedor tenanted by either of them in respect of which either theGaggrieved person or the respondent or both jointly or singly haveany right, title, interest or equity and (b) includes such householdwhich may belong to the joint family of which the respondent is amember, irrespective of whether the respondent or the aggrievedperson has any right, title or interest in the shared household. Inthe above definition, two expressions, namely, “aggrievedHperson” and “respondent” have occurred. From the above

definition, following is clear:- (i) it is not requirement of law thataggrieved person may either own the premises jointly or singlyor by tenanting it jointly or singly; (ii) the household may belongto joint family of which the respondent is member irrespectiveof whether the respondent or the aggrieved person has any right,title or interest in the shared household; and (iii) the sharedhousehold may either be owned or tenanted by the respondentsingly or jointly. [Paras 54, 55][230-D-H; 231-A-B]

1.2 Shared household referred to in Section 2(s) is theshared household of aggrieved person where she was living atthe time when application was filed or in the recent past had beenexcluded from the use or she is temporarily absent. The words“lives or at any stage has lived in domestic relationship” haveto be given its normal and purposeful meaning. The living ofwoman in household has to refer to living which has somepermanency. The intention of the parties and the nature of livingincluding the nature of household have to be looked into to findout as to whether the parties intended to treat the premises asshared household or not. [Paras 62, 63][233-G-H; 234-A-B; 234-G-H]1.3 This Court in paragraph 29 of the judgment in *S.R.Batra Vs. Taruna Batra held that wife is only entitled to claim aright to residence in shared household and shared householdwould only mean the house belonging to or taken on rent by thehusband, or the house which belongs to the joint family of whichthe husband is member. The definition of shared household asnoticed in Section 2(s) does not indicate that shared householdshall be one which belongs to or taken on rent by the husband.The respondent in proceeding under Domestic Violence Actcan be any relative of the husband. In event, the shared householdbelongs to any relative of the husband with whom in domesticrelationship the woman has lived, the conditions mentioned inSection 2(s) are satisfied and the said house will become sharedhousehold. This court in *S.R. Batra Vs. Taruna Batra althoughnoticed the definition of shared household as given in Section2(s) but did not advert to different parts of the definition whichmakes it clear that for shared household there is no suchrequirement that the house may be owned singly or jointly by the

Ahusband or taken on rent by the husband. The definition of sharedhousehold is clear and exhaustive definition. The object andpurpose of the Act was to grant right to aggrieved person, awoman of residence in shared household. The interpretation whichis put by this Court in *S.R. Batra Vs. Taruna Batra if acceptedshall clearly frustrate the object and purpose of the Act.B[Para 64][235-C-H]

*S.R. Batra and Anr. v. Taruna Batra, (2007) 3 SCC169 : [2006] 10 Suppl. SCR 1206 – not correct law.

Vimlaben Ajitbhai Patel v. Vatsalben Ashokbhai PatelCand Ors., (2008) 4 SCC 649 : [2008] 4 SCR 1077 –held inapplicable.

1.4 In the suit filed by the appellant where respondent haspleaded and claimed that it is shared household and she has rightto live and it was on that ground she was resisting the suit forDmandatory injunction, the question that whether the suit propertyis shared household or not becomes relevant and necessaryand the said issue cannot be skipped on the ground that applicationunder D.V. Act is pending. In the regular suit, which has beenfiled by the appellant, the plea of defendant that suit property isher shared household and she has right to residence could haveEbeen very well gone into by virtue of Section 26. [Para 82][244-G-H; 245-A]

1.5 The right to residence under Section 19 is not anindefeasible right of residence in shared household especiallywhen the daughter-in-law is pitted against aged father-in-law andFmother-in-law. The senior citizens in the evening of their life arealso entitled to live peacefully not haunted by marital discordbetween their son and daughter-in-law. While granting relief bothin application under Section 12 of Act, 2005 or in any civilproceedings, the Court has to balance the rights of both theGparties. The directions issued by High court in paragraph 56adequately balances the rights of both the parties. [Para 83][245-B-C]

2. The power under Order XII Rule 6 is discretionary andcannot be claimed as matter of right. In the facts of the presentcase, the Trial Court ought not to have given judgment underH

Order XII Rule 6 on the admission of the defendant as containedin her application filed under Section 12 of the D.V. Act. Thus,there are more than one reason for not approving the course ofaction adopted by Trial Court in passing the judgment under OrderXII Rule 6. [Para 98][253-A-B]

Hiral P. Harsora and others v. Kusum NarottamdasHarsora and others, (2016) 10 SCC 165 : [2016]9 SCR 515; Vaishali Abhimanyu Joshi v. NanasahebGopal Joshi, (2017) 14 SCC 373 : [2017] SCR 488;Eveneet Singh v. Prashant Chaudhri, (2010) SCConline Delhi 4507; Eveneet Singh v. PrashantChaudhari, (2011) SCC online Delhi 4651; Preeti Satijav. Raj Kumari and Anr., (2014) SCC online Delhi 188;B. R. Mehta v. Atma Devi and Ors., (1987) 4 SCC183 : [1987] 3 SCR 1184; Kunapareddy AliasNookalaShanka Balaji v. Kunapareddy Swarna Kumariand Anr., (2016) 11 SCC 774 : [2016] 2 SCR 608;Captain Ramesh Chander Kaushal v. Mrs. VeenaKaushal and Ors., (1978) 4 SCC 70 : [1978] 3 SCR 782; Manmohan Attavar v. Neelam Manmohan Attavar,(2017) 8 SCC 550 : [2017] 6 SCR 356; Bharat Coop.Bank (Mumbai) Ltd. v. Coop. Bank Employees Union,(2007) 4 SCC 685 : [2007] 4 SCR 347; Pioneer UrbanLand and Infrastructure Limited and Anr. v. Union ofIndia and Ors., (2019) 8 SCC 416 : [2019] 10 SCR 381;The South Gujarat Roofing Tiles ManufacturersAssociation and Anr. v. The State of Gujarat and Anr.,(1976) 4 SCC 601 : [1977] 1 SCR 878; KarnatakaPower Transmission Corporation and Anr. v. Ashok IronWorks Private Limited, (2009) 3 SCC 240 : [2009]1 SCR 1109 – referred to

3.1 The question whether the suit premises is sharedhousehold of the defendant and she has right in the sharedhousehold so as the decree before the Trial Court can besuccessfully resisted were required to be determined by the TrialCourt. When in the suit, defendant has pleaded to resist the decreeon the ground of her right of residence in the suit property it wasfor her to prove her claim in the suit both by pleadings andevidence. [Para 102][254-C-D]

A3.2 One of the conditions to treat person as respondentis that “against whom the aggrieved person has sought any reliefunder the Act”. The defendant in her pleadings having claimedthat she has right of residence in the suit property, she forsuccessful resisting the suit has to plead and prove that she wassubjected to any act of domestic violence by the respondent, whichBis implicit in the definition of the aggrieved person itself as givenin the Section 2(a) of the Act, 2005. Although the Magistratepassed an interim order in the application filed by the defendantunder Section 12 on 26.11.2016 but said order was interim orderwhich was passed on the satisfaction of the Magistrate that “theCapplication prima facie disclosed that the respondent iscommitting or has committed an act of domestic violence”. Forgranting any relief by the Civil Court under Section 19, it has tobe proved that the respondent is committing or has committedan act of domestic violence on the aggrieved person. Thus, forthe purposes of determination of right of defendant under SectionsD17 and 19 read with Section 26 in the suit in question, the plaintiffcan be treated as “respondent”, but for the grant of any relief tothe defendant or for successful resisting the suit of the plaintiff,necessary conditions for grant of relief as prescribed under theAct, 2005 has to be pleaded and proved by the defendant, onlyEthen the relief can be granted by the Civil Court to the defendant.[Paras 103, 104][254-D-G; 254-G-H; 255-A]4.1 Section 17 of the Act has two sub-sections which engrafttwo independent rights. According to sub-section (1),notwithstanding anything contained in any other law for the timeFbeing in force, every woman in domestic relationship shall havethe right to reside in the shared household, whether or not shehas any right, title or beneficial interest in the same. This righthas been expressly granted to every woman in domesticrelationship to fulfill the purpose and objective of the Act.

Although under the statute regulating personal law, the womanGhas right to maintenance, every wife has right of maintenancewhich may include right of residence, the right recognized bysub-section (1) of Section 17 is new and higher right conferredon every woman. The right is to be implemented by an orderunder Section 19, on an application filed under sub-section (1) ofHSection 12. Sub-section (2) of Section 17, however, contains an

exception in the right granted by sub-section (2), i.e., “save inaccordance with the procedure established by law”. Sub-section(2) of Section 17, thus, contemplates that aggrieved person canbe evicted or excluded from the shared household in accordancewith the procedure established by law. [Paras 105, 106][255-B-E]

4.2 Section 25(2) itself contemplates an eventuality whenorder passed under the Act can be altered, modified or revoked.The right to reside in shared household as granted by Section 17itself contemplates an exception in express words, i.e., “save inaccordance with the procedure established by law”. Theprocedure prescribed for proceedings under Section 19 asprovided in Section 28 of the Act is as per the provisions of theCode of Criminal Procedure, 1973. The rules have been framedunder the Act, 2005, namely “The Protection of Women fromDomestic Violence Rules, 2006”. Rule 5 deals with DomesticIncident Report which is to be submitted by protection officer inForm I. Form-II is again part of Rule which contains variousdetails including orders required, residence orders, under Section19, monetary relief under Section 20, details of previous litigation,if any, and other details to enable the Magistrate to takeappropriate decision. Rule 6 sub-Rule (4) provides that forobtaining an interim ex-parte order under Section 23, an affidavitis to be filed in Form-III. The Form-III is an affidavit of anaggrieved person or the person filing affidavit on behalf of hisward, daughter, etc. The Act and the Rules thus provide for aprocedure and manner of filing an application for obtaining reliefunder Act, 2005. [Paras 107, 109, 110, 111][256-D-H; 257-A-C]

4.3 Section 145 of Cr.P.C. provides for procedure wheredispute concerning land or water is likely to cause breach of peace.Under Section 145 Cr.P.C., in case Magistrate is satisfied that adispute likely to cause breach of the peace exists, he may requirethe parties to attend the Court and to decide whether any andwhich of the parties was, at the date of the order made by himunder sub-section (1), in possession of the subject of dispute.Sub-section (6) of Section 145 Cr.P.C. contemplates issuance ofthe order by the Magistrate declaring such party to be entitled

Ato such possession. Sub-section (6), however, contemplates thatthe parties to be entitled to possession thereof until evictedtherefrom in due course of law. The eviction in due course of lawwas contemplated to be by competent court. This Court hadoccasion to consider the expression “until evicted therefrom indue course of law” as occurring in Section 145(6) in **ShantiBKumar Panda Vs. Shakuntala Devi. This Court held in the abovecase that the purpose of provisions of Section 145 Cr.P.C. is toprovide speedy and summary remedy so as to prevent breachof the peace by submitting the dispute to the ExecutiveMagistrate for resolution as between the parties disputing theCquestion of possession over the property. This Court held thatthe unsuccessful party in proceedings under Section 145 Cr.P.C.ought to sue for recovery of possession seeking decree or orderfor restoration of possession. This Court further held that findingrecorded by the Magistrate under Section 145 Cr.P.C. does notbind when the matter comes for adjudication before competentDcourt. This Court explained expression “until evicted therefromin due course of law” mean “any court which has jurisdictionalcompetence to decide the question of title or rights to the propertyor entitlement to possession”. [Paras 112, 113, 114][257-C-H;258-D-E]E

**Shanti Kumar Panda v. Shakuntala Devi, (2004) 1SCC 438 : [2003] 5 Suppl. SCR 98 – relied on

4.4 Drawing the analogy from **Shanti Kumar Panda case,the expression “save in accordance with the procedure establishedby law”, in Section 17(2) of the Act, 2005 contemplates theFproceedings in court of competent jurisdiction. Thus, suit formandatory and permanent injunction/eviction or possession bythe owner of the property is maintainable before CompetentCourt. In sub-section (2), the injunction is “shall not be evictedor excluded from the shared household save in accordance withGprocedure established by law”. Thus, the provision itselfcontemplates adopting of any procedure established by law bythe respondent for eviction or exclusion of the aggrieved personfrom the shared household. Thus, in appropriate case, thecompetent court can decide the claim in properly instituted

suit by the owner as to whether the women need to be excludedor evicted from the shared household. [Para 116][260-B-E]

4.5 In case, the shared household of woman is tenanted/allotted/licensed accommodation, where tenancy/ allotment/license is in the name of husband, father-in-law or any otherrelative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for evictionof the tenant/allottee/licensee qua the shared household.However, in case the proceedings are due to any collusionbetween the two, the woman, who is living in the shared householdhas right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. Theembargo under Section 17(2) of Act, 2005 of not to be evicted orexcluded save in accordance with the procedure established bylaw operates only against the “respondent”, i.e., one who isrespondent within the meaning of Section 2(q) of Act, 2005.[Para 117][260-G-H; 261-A-B]

5.1 In the present case, although plaintiff has not claimedany relief against his son, the husband of the respondent, hence,he was not necessary party but in view of the fact thatrespondent has pleaded her right of residence in sharedhousehold relying on Sections 17 and 19 of the Act, 2005 and oneof the rights which can be granted under Section 19 is right ofalternate accommodation, the husband is proper party. The rightof maintenance as per the provisions of Hindu Adoption andMaintenance Act, 1956 is against that of the husband, hence hemay be proper party in cases when the Court is to consider theclaim of respondent under Sections 17 and 19 read with Section26 of the Act, 2005. [Para 119][262-B-D]5.2 Civil Procedure Code, Order I Rule 10 empowers theCourt at any stage of the proceedings either on an application orsuo moto to add party either as plaintiff or defendant, whosepresence before the Court may be necessary in order to enablethe Court effectively and completely adjudicate upon and settleall the questions involved in the suit. The High Court in paragraph56(i) directed to remand the matters back to the Trial Court forfresh adjudication in accordance with the directions that at the

Afirst instance, in all cases where the respondent’s son/theappellant’s husband has not been impleaded, the Trial Court shalldirect his impleadment by invoking its suo motu powers underOrder I Rule 10 CPC. This direction is little wide andpreemptory. If the High Court was satisfied that impleadment ofhusband of defendant was necessary, it could have invoked theBpower itself under Order I Rule 10 and directed for suchimpleadment. The direction in paragraph 56(i) should not betreated as general direction to the Courts to implead in all casesthe husband of an aggrieved person and it is trial court which isto exercise the jurisdiction under Order I Rule 10. [Paras 120,C121][262-D-G; 263-B]

6.1 There can be no applicability of principle of res judicatawhen orders of Criminal Courts are pitted against proceedingsin Civil Court. With regard to criminal proceedings, Code ofCriminal Procedure also contains provision that person whoDhas once been tried by Court of competent jurisdiction for anoffence and convicted or acquitted of such offence shall, whilesuch conviction or acquittal remains in force, not be liable to betried again for the same offence nor on the same facts for anyother offence. The principle enumerated in Section 300 Cr.P.C.may be relevant with respect to two criminal proceedings against

Esame accused, which might have no relevance in reference toone criminal proceeding and one civil proceeding.[Para 126][264-E-G]

6.2 Section 40 renders admissible judgments which operateas placing any bar on suit or trial as plea of res judicata orFotherwise under some rule of law. The scheme of D.V. Act, 2005does not contemplate that any judgment and order passed underSection 19 of the said Act prevents any court from takingcognizance of suit or holding of trial; Section 41 deals withrelevancy of certain judgments in probate, matrimonial, admiralityGand insolvency jurisdiction which are conclusive not only againstparty but against all the world. This Section enumerates fourclasses of judgments. decree of Civil Court in exercise ofmatrimonial jurisdiction is also one of the judgments which hadbeen held to be relevant under Section 41. The orders passedunder Act, 2005 cannot be held to be orders or judgments passedH

in exercise of any matrimonial jurisdiction by the Court. The Act,2005 is special act on the subject of providing for effectiveprotection of the rights of women who are victims of violence ofany kind. [Paras 127, 128][266-C-F]

6.3 Section 42 deals with admissibility of judgments relevantto matters of public nature though not between the parties andprivy but such judgments, orders or decree are not conclusiveproof of that they state. Section 43 says that judgment other thanthose mentioned in Sections 40 to 42 are irrelevant unless theexistence of judgment, order or decree is fact in issue or isrelevant under some other provisions of the Act. In the facts ofthis case, where there are pleadings in suit in question regardingproceeding under Section 12, the existence of orders passedunder Act, 2005 are relevant and admissible in Civil Proceedings.[Para 129][266-F-H]7.1 The proceedings under D.V. Act, 2005 are proceedingswhich are to be governed by Code of Criminal Procedure, 1973.The procedure to be followed by the magistrate is provided underSection 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 andoffences under Section 31 shall be governed by the provisions ofthe Code of Criminal Procedure, 1973. Even sub-section (2) ofSection 28 provides that the magistrate can lay down its ownprocedure for disposal of an application under Section 12 or undersub-section (2) of Section 23. However, for other proceedings,the procedure is to be followed as per the provisions of the Codeof Criminal Procedure, 1973. The procedure to be followed underSection 125 shall be as per Section 126 of the Cr.P.C. whichincludes permitting the parties to lead evidence. Therefore, beforepassing any orders under the D.V. Act, the parties may bepermitted to lead evidence. However, before any order is passedunder Section 12, the magistrate shall take into considerationany domestic incident report received by him from the protectionofficer or the service provider. That does not mean thatmagistrate can pass orders solely relying upon the domesticincident report received by him from the protection officer orthe service provider. Even as per Section 36 of the D.V. Act, theprovisions of the D.V. Act shall be in addition to, and not in

Aderogation of the provisions of any other law, for the time beingin force. Even the magistrate can also pass an interim order asper Section 23 of the D.V. Act. [Paras 130, 131][266-H; 267-A-E]

7.2 Considering Section 12(2) and Section 26(3), read withSection 25(2), even the Legislature envisaged the twoBindependent proceedings, one before the magistrate under theD.V. Act and another proceeding other than the proceedings underthe D.V. Act. Even the Civil Court has to take into considerationthe relief already granted by the Magistrate in the proceedingsunder the D.V. Act and vice versa.However, at the same time, ina case any relief available under Sections 18, 19, 20, 21 and 22 isCsought by aggrieved person in any legal proceedings before acivil court, family court or criminal court including the residenceorder, the aggrieved person has to satisfy by leading evidencethat domestic violence has taken place and only on the basis ofthe evidence led on being satisfied that the domestic violenceDhas taken place, the relief available under Section 19 can begranted. [Paras 132, 133, 134][267-E-H]

7.3 While passing the order of residence under Section 19,more particularly under sub-section 19(1)(b) as per the provisoto Section 19(1), no order under clause(b) shall be passed againstEany person who is woman. Therefore, on conjoint reading ofSections 12(2), 17, 19, 20, 22, 23, 25, 26 and 28 of the D.V. Act, itcan safely be said that the proceedings under the D.V. Act andproceedings before civil court, family court or criminal court,as mentioned in Section 26 of the D.V. Act are independentproceedings, like the proceedings under Section 125 of theFCr. P.C. for maintenance before the Magistrate and/or family courtand the proceedings for maintenance before civil court/ familycourt for the reliefs under the Hindu Adoption and MaintenanceAct. However, the findings/orders passed by the one forum hasto be considered by another forum. [Para 136][268-A-D]GNavneet Arora v. Surender Kaur and Ors., (2014) SCCOnline Del 7617; Maria Margarida SequeiraFernandes and Ors. v. Erasmo Jack De Sequeira, (2012)5 SCC 370 : [2012] 3 SCR 841; Himani Alloys Limited

SATISH CHANDER AHUJA v. SNEHA AHUJA

v. Tata Steel Limited, (2011) 15 SCC 273 : [2011]A7 SCR 60; S. M. Asif v. Virender Kumar Bajaj, (2015)9 SCC 287 : [2015] 9 SCR 179; Razia Begum v.Sahebzadi Anwar Begum and others, AIR 1958 SC 886: [1959] SCR 1111; Ramesh Hirachand Kundanmal v.Municipal Corporation of Greater Bombay and others,B(1992) 2 SCC 524 : [1992] 2 SCR 1; M. S. Sheriff andAnr. v. State of Madras and Ors., AIR 1954 SC 397 :[1954] SCR 1144; S. M. Jakati and Anr. v. S. M. Borkarand Ors., AIR 1959 SC 282 : [1959] SCR 1384;G. Premshankar v. Inspector of Police and Anr., (2002)8 SCC 87 : [2002] 2 Suppl. SCR 350; Iqbal SinghCMarwah and Anr. v. Meenakshi Marwah and Anr.,(2005) 4 SCC 370 : [2005] 2 SCR 708; Seth RamdayalJat v. Laxmi Prasad, (2009) 11 SCC 545 : [2009]7 SCR 17; Vishnu Dutt Sharma v. Daya Sapra, (2009)13 SCC 729 : [2009] 7 SCR 977; Kishan Singh (Dead)DThrough LRs. v. Gurpal Singh and Ors., (2010) 8 SCC775 : [2010] 10 SCR 16; K. Subramani v. Director ofAnimal Husbandry, Chennai, (2009) 1 MLJ 363 –referred to.

From the Judgment and Order dated 18.12.2019 of the High CourtEof Delhi at New Delhi in R.F.A. No. 381 of 2019.

Nidhesh Gupta, Sr. Adv. Prabhjit Jauhar, Ms. Tulika Bhatnagar,Mr. S. S. Jauhar, Mohit Paul, Prashant Mehta, Himanshu Kapoor,Ms. Prachi Mehta, Prateek Dhanda, Ms. Sunaina Phul, Madhav Gupta,Advs. for the appearing parties.FThe Judgment of the Court was delivered by

ASHOK BHUSHAN, J.

1. Leave granted.

2. This appeal raises important questions of law pertaining to theGinterpretation and working of the Protection of Women from DomesticViolence Act, 2005 (hereinafter referred to as “Act, 2005”).

3. This appeal has been filed by Satish Chander Ahuja, the plaintiffquestioning the judgment of Delhi High Court dated 18.12.2019 in RFANo.381/2019 by which judgment Delhi High Court has set aside theHdecree 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 plaintifffor mandatory and permanent injunction. The High Court after settingaside the decree of the Trial Court has remanded the matter back to theTrial Court for fresh adjudication in accordance with the directions givenby the High Court. The plaintiff aggrieved by the judgment of the HighCourt has come up in this appeal.

4. We may notice the brief facts of the case and relevant pleadingsof the parties for determining the questions which have arisen forconsideration in this appeal.

5. The appellant by deed dated 12.01.1983 purchased propertybearing No.D-1077, New Friends Colony, New Delhi. The son of theappellant, Raveen Ahuja was married to the respondent, Sneha Ahujaon 04.03.1995. After marriage the respondent started living in the firstfloor of the house No.D-1077, Friends Colony, New Delhi along withher husband. There being marital discord between Raveen and Sneha,in July, 2014, Raveen moved out of the first floor and started staying inthe guest room of the ground floor. In the year 2004 separate kitchenwas started by the respondent in the first floor of the house. Raveen, thehusband of the respondent filed Divorce Petition on 28.11.2014 underSection 13(1)(ia) and (iii) of Hindu Marriage Act, 1955 for decree ofdivorce on the ground of cruelty against the respondent, Sneha Ahujawhich 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 applicationunder Section 12 of Act, 2005 impleading Raveen Ahuja as respondentNo.1, Shri Satish Ahuja, respondent No.2 and Dr. Prem KantaAhuja(mother-in-law of the respondent), respondent No.3. In thecomplaint it was alleged that Sneha Ahuja has been subjected to severeemotional and mental abuse by the respondents. In the applicationrespondent prayed for several orders under Act, 2005. The learned ChiefMetropolitan Magistrate before whom the complaint was filed passedan interim order on 26.11.2016 to the following effect:“The respondents shall not alienate the alleged shared householdnor would they dispossess the complainant or their children fromthe same without Orders of Competent Court. These directionsshall continue till next date.”

6. The appellant filed Suit No.792/2017 impleading therespondent as sole-defendant for mandatory and permanent injunctionand also for recovery of damages/mesne profit. Plaintiff’s case in the

Asuit was that he is senior citizen of 76 years old, the defendant is inoccupation of two bed rooms with attached dressing and bath roomsand kitchen on the first floor of the property bearing No. D-1077, NewFriends Colony, New Delhi. Plaintiff pleaded that he is heart patientand has undergone angioplasty twice and suffers from hypertension andhigh blood pressure. Plaintiff pleads that the defendant has filed falseBand frivolous cases against the plaintiff and his wife and hence he praysfor removal of the defendant from the suit property so as he may livepeaceful life. Plaintiff further pleaded that the plaintiff acquired the housefrom the previous owner, namely, Kulbhushan Jain on 12.01.1983. Healso pleaded that the property has been converted into free hold videCconveyance deed executed in his favour dated 14.07.2003 which isregistered. Plaintiff pleaded that his elder son was married with thedefendant on 04.03.1995. The plaintiff further pleaded that wife of theplaintiff has been subjected to various threats and violence in the handsof the defendant on several occasions. The mention of the DivorcePetition filed by Raveen was made in the plaint and it was pleaded thatDthe defendant as counter blast has filed the complaint case under theProtection of Women from Domestic Violence Act, 2005 in which interimorder directing the plaintiff not to alienate and not to dispossess thedefendant without order of the competent court has been passed.

7. Plaintiff claimed that he and his wife has become victim ofEdomestic violence on the part of the defendant. Plaintiff pleaded that thestatus of occupation of defendant as daughter-in-law during subsistenceof marriage with the son could be said to be permissive in nature anddefendant is not entitled to claim right of residence against the plaintiff,i.e., her father-in-law who has no obligation to maintain her during theFlifetime of her husband. Plaintiff in the suit prayed for decree formandatory injunction against the defendant to remove herself and herbelonging from the first floor of the property and decree of permanentinjunction in favour of the plaintiff and against the defendant therebyrestraining the defendants, her agents, employees, representatives, etc.

from in any manner creating interference or obstruction of the right ofGthe plaintiff in the suit property and restrain her from causing interferencein the peaceful occupation of the plaintiff in the ground floor of theproperty. Decree of recovery of damages/mesne profit was also askedfor the use and occupation of the suit property of Rs.1 lac from the dateof filing of the suit till the defendant is removed from the suit property.H

8. written statement was filed by the defendant pleading thathouse property was acquired by the plaintiff through joint family fundsand not his self-acquired property. It was pleaded in the written statementthat the plaintiff has suppressed the true and material facts regardingcausing physical and mental torture to the defendant on account ofdomestic violence etc. by the plaintiff, his wife and their elder son.

9. The defendant also referred to filing of complaint case undersection 12 of Act, 2005. The defendant claimed that the suit property isa shared household as per provision of Section 2(s) of the Act, 2005, thedefendant has right to stay/reside in the shared household. The plaintiffhas filed suit in the collusion of his son Raveen Ahuja to deprive the legalright of the residence of the defendant and her daughters in the suitproperty. It was pleaded further that the defendant has been subjectedto severe emotional and mental abuse by the plaintiff, his wife and theirelder son. The defendant further pleads that since marriage defendant isstaying in the shared household of the first floor which is matrimonialhome of the defendant. The interim order passed in complaint case dated16.07.2016 and 26.11.2016 has been also referred to.

10. Plaintiff filed an application under Order XII Rule 6 CPC on05.01.2018 read with Section 151 CPC for passing decree on the basisof admissions made by the defendant in the application under Section 12of Act, 2005. Plaintiff pleaded that property in question is self-acquiredproperty of the plaintiff by agreement to sell dated 12.01.1983 followedby registered conveyance deed dated 14.07.2003. The defendant hasherself in her pleadings filed in the domestic violence case admitted theplaintiff to be the owner of the suit property, hence, decree of mandatoryinjunction in favour of the plaintiff be granted.

11. The defendant filed an application on 23.09.2017 under OrderXI Rules 12 and 14 CPC for production of documents. In paragraph 7 ofthe application, the defendant referred to various documents whichaccording to the defendant were relevant for deciding the suit. By theapplication documents were sought to be produced by the plaintiff. TheTrial Court vide its order dated 20.03.2018 directed the plaintiff to file anaffidavit and documents as sought for in the application under Order XIRule 13 which are in his custody with advance copy to the oppositeparty. reply was filed by the defendant on 15.02.2018 to the applicationfiled by the plaintiff under Order XII Rule 6 CPC. The defendant againreiterated that the shared household was acquired by the plaintiff throughjoint-family business and the house is not his self-acquired property.

A12. The plaintiff also filed an affidavit and documents under OrderXI Rule 13 CPC in compliance of the order of the Trial Court dated20.03.2018.

13. The Trial Court proceeded to decide the application underOrder XII Rule 6 CPC filed by the plaintiff. By judgment dated 08.04.2019BTrial Court decreed the suit in the following manner:

“26. In the light of aforesaid discussion and the observations, thisCourt is of the considered opinion that there are sufficient admissionto pass decree in favour of the plaintiff. Consequently, suit ofthe plaintiff is decreed for the relief of mandatory and permanentCinjunction as prayed for. The defendant is directed to hand overthe vacant and physical possession of the suit property to theplaintiff within 15 days. At the time of announcement of the order,this Court asked plaintiff whether he wants to pursue his suit forthe relief of damages to which he agreed to waive off the saidrelief. Accordingly, statement of the plaintiff was also recorded toDthis effect. Accordingly, the relief of damages stands withdrawn.Decree sheet be prepared for the relief of permanent andmandatory injunction accordingly. There is no order as to costs.File be consigned to record room. As requested, copy of thisjudgment be given dasti.”

14. Aggrieved with the judgment of Trial Court the defendantfiled RFA No.381 of 2019 in the High Court of Delhi. The Delhi HighCourt heard the RFA filed by the respondent along with five other RFAsand by common judgment dated 18.12.2019 set aside the decree of theTrial Court and remanded the matter to the Trial Court for freshFadjudication in accordance with the directions given in paragraph 56 ofthe judgment.

15. The High Court noticed the facts of the different appeals andsubmissions made by the learned counsel. The High Court opined thatthe real point of determination in the appeal is not as to whether suitGpremises is shared household or not and since the domestic violenceproceedings initiated by the daughter-in-law are pending adjudication,determination of this issue in suit proceedings would result in causingserious prejudice to the claim of the applicant in the domestic violenceproceedings. The High Court observed that it had consciously refrainedfrom determining the question as to whether the suit premises is sharedH

household or not. The High Court was of the view that the decisionscited have not considered the effect of the pending domestic violenceapplication instituted by daughter-in-law upon the civil suit. The HighCourt, however, held that suit for possession instituted cannot be said tobe non-maintainable since necessary answer falls within the term“procedure established by law”. The High Court has further observedthat question is whether the suit could be simply decreed by the TrialCourt on the basis of the title without weighing the effect of the statutoryright in favour of the appellant. The High Court in paragraph 33 madefollowing observation:

“33……………Thus, I find that the DV Act has aspired to bringin sea change in the rights of persons affected by domesticviolence by ensuring that irrespective of the ownership of the suitpremises where the aggrieved person resided, she would still retainthe right to reside therein as long as she was able to prove thatshe had endured domestic violence while being in domesticrelationship with the owner of such premises.”

16. The High Court opined that the Trial Court erroneouslyproceeded to pass decree under Order XII Rule 6 CPC by not impleadingthe husband and failing to appreciate the specific submission of theappellant while admitting the title of the respondent that the suit premiseswas the joint family property but also losing the site of the DV Act. Thedirections given by the High Court are contained in the paragraph 56 tothe following effect:

“56. In these circumstances, the impugned judgments cannot besustained and are accordingly set aside. The matters are remandedback to the Trial Court for fresh adjudication in accordance withthe directions given hereinbelow:

(i)At the first instance, in all cases where the respondent’sson/the appellant’s husband has not been impleaded, the TrialCourt shall direct his impleadment by invoking its suo motupowers under Order I Rule 10 CPC.

(ii) The Trial Court will then consider whether the appellanthad made any unambiguous admission about the respondent’sownership rights in respect of the suit premises; if she has andher only defence to being dispossessed there from is her rightof residence under the DV Act, then the Trial Court shall, before

passing decree of possession on the wife premise ofownership rights, ensure that in view of the subsisting rights ofthe appellant under the DV Act, she is provided with an alternateaccommodation as per Section 19(1)(f) of the DV Act, whichwill continue to be provided to her till the subsistence of hermatrimonial relationship.

(iii) In cases where the appellant specifically disputes theexclusive ownership rights of the respondents over the suitpremises notwithstanding the title documents in their favour,the Trial Court, while granting her an opportunity to leadevidence in support of her claim, will be entitled to pass interimorders on applications moved by the respondents, directing theappellant to vacate the suit premises subject to the provision ofa suitable alternate accommodation to her under Section19(1)(f) of the DV Act, which direction would also be subjectto the final outcome of the suit.

(iv) While determining as to whether the appellant’s husbandor the in-laws bears the responsibility of providing suchalternate accommodation to the appellant, if any, the Trial Courtmay be guided by paragraph 46 of the decision in Vinay Verma(supra).

(v) The Trial Court shall ensure that adequate safeguards areput in place to ensure that the direction for alternateaccommodation is not rendered meaningless and that shelteris duly secured for the appellant, during the subsistence of hermatrimonial relationship.

(vi) This exercise of directing the appellant to vacate the suitpremises by granting her alternate accommodation will becompleted expeditiously and not later than 6 months fromtoday.”

17. The plaintiff-appellant aggrieved by the judgment of the HighGCourt dated 18.12.2019 has come up in this appeal.

18. We have heard Shri Prabhjit Jauhar, learned counsel for theappellant. Shri Nidhesh Gupta, learned senior counsel has appeared forthe respondent. We have also heard Ms. Geeta Luthra, learned seniorcounsel and Shri Jayant Bhushan, learned senior counsel in the connected

SLP (C) No.9415 of 2020 in which parties are stated to have enteredinto settlement.

19. Shri Prabhjit Jauhar, learned counsel for appellant contendsthat suit property which is exclusively owned by the appellant is not ashared household. The son of the appellant, Raveen has no right in theproperty and the son as well as respondent-daughter-in-law were onlygratuitous licencees of the appellant. The appellant purchased theproperty in the year 1983, at that time the son of the appellant was only14 years old. It is submitted that the respondent can claim right to resideonly in house which is either joint family property or the husband of therespondent has share in it. In the property belonging to father of thehusband, she has no right to reside. Learned counsel for the appellanthas relied on judgment of this Court in S.R. Batra and Anr. Vs. TarunaBatra, (2007) 3 SCC 169, where two-Judge Bench of this Court heldthat the wife is entitled only to claim right under Section 17(1) toresidence in shared household and shared household would onlymean the house belonging to or taken on rent by the husband, or thehouse which belongs to the joint family of which the husband is member.20. It is submitted that the complaint under the Act, 2005 filed bythe respondent was only counter blast to the Divorce Petition dated28.11.2014 filed by the husband of the respondent. It is submitted thatSections 17 and 19 of the Act, 2005 do not contemplate proprietary orownership right in the shared household for the aggrieved person. ShriJauhar further submits that her claim for alternate accommodation canbe made qua husband and not qua the father-in-law because herrelationship in the household emanates pursuant to the marriage andfather-in-law cannot be under statutory obligation to provide for theresidence and maintenance of daughter-in-law. Shri Jauhar submits thatunless the definition of shared household under Section 2(s) is notinterpreted in manner confining the definition of shared household tojoint family or the property where the husband has share it will createchaos in the society. It is submitted that extensive interpretation of sharedhousehold would lead the chaos in the society which needs to be avoidedfor protecting peace and harmony in the society. He submitted thatharmonious construction by interpretation in the suit is to be adopted sothat the right of the parties are balanced. Shri Jauhar submits that in herapplication filed under Section 12 of Act, 2005, the respondent has askedfor alternate accommodation.

A21. Shri Jauhar submits that the High Court committed error innot following the binding precedence of Delhi High Court itself. ShriJauhar submits that the respondent never filed counter claim in the suitfiled by the appellant-owner, nor filed suit for declaration of her claimof property being joint family property. Shri Jauhar submits that the HighCourt has not adverted to facts of different appeals and all appeals wereBdecided by common judgment without referring to evidence andpleadings in each appeal separately. The finding of the Trial Court hasnot been overruled by the High Court in the appellant’s case. Shri Jauharfurther submits that husband is not necessary party in suit filed bythe father-in-law. Shri Jauhar submits that the Trial Court has rightlyCdecreed the suit under Order XII Rule 6 CPC relying on the admissionmade by the respondent in her application under Section 12 of the Act,2005. The High Court has not followed the binding judgment of thisCourt in S. R. Batra Vs. Taruna Batra which was binding on the HighCourt under Article 141 of the Constitution of India. Shri Jauhar submitsthat rights of wife in other statutes like Hindu Marriage Act, 1955 andDHindu Adoption and Maintenance Act, 1956 are only against the husband.22. Shri Nidhesh Gupta, learned senior counsel appearing for therespondent refuting the submission of the learned counsel for the appellantsupports the judgment of the High Court. Shri Gupta submits that Act,2005 granted protection and security of residence to woman. Shri GuptaEreferring to definition of domestic relationship under Section 2(f) contendsthat respondent was in domestic relationship with the appellant and theappellant was respondent within the meaning of Section 2(q) againstwhom allegation of domestic violence was made in petition under Section12. Shri Gupta referring to definition of shared household under SectionF2(s) submits that factum of residence and domestic relationship with therespondent are the only qualification to fall within the ambit of definitionof shared household. Shri Gupta submits that second part of the definitionof the shared household is extensive in nature which gives certain examplebut cannot be said to be exhaustive looking at scheme of the Act. Hesubmits that when ‘includes’ is used after the term “means” it is extensiveGand not exhaustive in nature. The respondent being in domestic relationshipwith the appellant living in the suit property since her marriage andcontinues to do so till date, the property is shared household where theappellant is staying. It is submitted that for shared household it is notnecessary that aggrieved person should have any right, title or interest.HIt 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 submittedthat protection under Section 17 is available in all legal proceedingsincluding the suit filed by the appellant.

23. Referring to Section 26 of the Act, 2005 Shri Gupta submitsthat relief under Section 19 was very well available in Civil ProcedureCode. The plea taken by the respondent in her pleadings in the civil suitwould constitute the counter claim which warranted exercise of powerof Trial Court under Section 26 of the Act, 2005. Referring to the judgmentof this Court in S.R.Batra Vs. Taruna Batra, Shri Gupta submits thatthe said judgment is distinguishable on facts. He submits that the saidcase was pre-Act, 2005 case and secondly Taruna Batra admitted thatshe had shifted to her parents’ residence at the time of institution of thesuit. It is submitted that the injunction was denied since Taruna Batrawas not residing in the house which finding was not liable to be interferedwith 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. Batracase 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 relativesof the husband who have treated the aggrieved person with domesticviolence can be arrayed as respondent. There is no reason to extenddefinition of shared household only to property in which the husband hasa share. It is submitted that S.R. Batra has not appreciated that secondpart of the definition of shared household is merely illustration and notexhaustive. S.R.Batra also erred in holding that alternativeaccommodation under Section 19 can only be enforced against thehusband. Shri Gupta submits that the judgment of S.R. Batra does notcorrectly interpret provisions of Act, 2005. Referring two subsequentjudgments 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 havetaken view contrary to law lay down in S.R. Batra case. Shri Guptasubmits that present was not case of granting any decree under OrderXII Rule 6, the respondent having categorically pleaded in the writtenstatement that the suit property was purchased from the joint familyfund. Shri Gupta referred to various documents which were brought onthe record before the Trial Court indicating that joint family fund wasutilised for purchasing the suit property.

A24. Shri Jayant Bhushan, learned senior counsel supporting thesubmission of the learned counsel for the appellant contends that rightsof 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 termhousehold, Shri Bhushan referred to definition as given by Census ofBIndia where common kitchen is pre-requisite of household.

25. Ms. Geeta Luthra supporting the submission of Shri NidheshGupta contends that household of father-in-law will be shared householdof daughter-in-law where she is living since marriage. Ms. Luthra relieson the judgment of Delhi Court in Eveneet Singh Vs. PrashantCChaudhri, 2010 SCC online Delhi 4507, Division Bench judgmentof Delhi High Court in Eveneet Singh Vs. Prashant Chaudhari, 2011SCC online Delhi 4651 and Division Bench judgment of the DelhiHigh Court in Preeti Satija Vs. Raj Kumari and Anr., 2014 SCConline Delhi 188.

D26. Learned counsel for the parties have also referred to variousjudgments of this Court and Delhi High Court which we will considerwhile considering the submissions of the parties in detail.

27. From the submissions of the learned counsel for the partiesfollowing 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 canonly be that household which is household of joint family orin which husband of the aggrieved person has share?

(2)Whether judgment of this Court in S.R. Batra and Anr.Vs. Taruna Batra, (2007) 3 SCC 169 has not correctlyinterpreted the provision of Section 2(s) of Protection ofWomen from Domestic Violence Act, 2005 and does notlay down correct law?

(3)Whether the High Court has rightly come to the conclusionthat suit filed by the appellant could not have been decreedunder Order XII Rule 6 CPC?

(4)Whether, when the defendant in her written statementpleaded that suit property is her shared household and sheH

has right to residence therein, the Trial Court could havedecreed the suit of the plaintiff without deciding such claimof defendant which was permissible to be decided as perSection 26 of the Act, 2005?

(5)Whether the plaintiff in the suit giving rise to this appealcan be said to be the respondent as per definition of SectionB2(q) of Act, 2005 ?

(6)What is the meaning and extent of the expression “save inaccordance with the procedure established by law” asoccurring in Section 17(2) of Act, 2005 ?

(7)Whether the husband of aggrieved party (defendant) isnecessary party in the suit filed by the plaintiff against thedefendant?

(8)What is the effect of orders passed under Section 19 of theAct, 2005 whether interim or final passed in the proceedingsinitiated in civil court of competent jurisdiction?

28. Before we consider the questions as noted above, we need tonotice the Statutory Scheme of the Protection of Women from DomesticViolence Act, 2005.

29. The progress of any society depends on its ability to protectand promote the rights of its women. Guaranteeing equal rights andprivileges to women by the Constitution of India had marked the steptowards the transformation of the status of the women in this country.

30. The domestic violence in this country is rampant and severalwomen encounter violence in some form or the other or almost everyday, however, it is the least reported form of cruel behavior. womanresigns her fate to the never ending cycle of enduring violence anddiscrimination as daughter, sister, wife, mother, partner or asingle woman in her lifetime. This non-retaliation by women coupledwith the absence of laws addressing women’s issues, ignorance of theexisting laws enacted for women and societal attitude makes the womenvulnerable. The reason why most cases of domestic violence are neverreported is due to the social stigma of the society and the attitude of thewomen themselves, where women are expected to be subservient, notjust to their male counterparts but also to the male’s relatives.

A31. Till the year 2005, the remedies available to victim of domesticviolence were limited. The women either had to go to the civil court fora decree of divorce or initiate prosecution in the criminal court for theoffence punishable under Section 498-A of the IPC. In both theproceedings, no emergency relief/reliefs is/are available to the victim.Also, the relationships outside the marriage were not recognized. ThisBset of circumstances ensured that majority of women preferred tosuffer in silence, not out of choice but of compulsion.

32. The enactment of Act, 2005 is milestone for protection ofwomen in this country. The Statement of Objects and Reasons of theProtection of Women from Domestic Violence Bill, 2005 marks theCobjective which was sought to be achieved by the enactment. It is usefulto reproduce the Statement of Objects and Reasons, which are in thefollowing words:-

“4. The Bill, inter alia, seeks to provide for the following ==

D(i)It covers those women who are or have been ina relationship with the abuser where both parties havelived together in shared household and are related byconsanguinity, marriage or through relationship in thenature of marriage or adoption. In addition, relationshipswith family members living together as joint familyEare also included. Even those women who are sisters,widows, mothers, single women, or living with the abuserare entitled to legal protection under the proposedlegislation. However, whereas the Bill enables the wifeor the female living in relationship in the nature ofFmarriage to file complaint under the proposedenactment against any relative of the husband or themale partner, it does not enable any female relative ofthe husband or the male partner to file complaint againstthe wife or the female partner.

XXXXXXXXXXXXXXXXXX

(iii) It provides for the rights of women to secure housing. Italso provides for the right of woman to reside in hermatrimonial home or shared household, whether or notshe has any title or rights in such home or household.

This right is secured by residence order, which is passedby the Magistrate.

XXXXXXXXXXXXXXXXXXX”

33. The Statement of Objects and Reasons refers to threeInternational Conventions where recommendations were made to theparties States to take measures including Legislation to protect womenagainst violence including occurring within the family. GeneralRecommendation No.XII of the United Nations Committee on Conventionon Elimination of All Forms of discrimination against women stated:-

“General Recommendation No. 12

(Eighth session, 1989)

Violence against women

The Committee on the Elimination of Discrimination againstWomen.

Considering that Articles 2, 5, 11, 12 and 16 of the Conventionrequire the States parties to act to protect women against violenceof any kind occurring within the family, at the work place or inany other area of social life.”

34. Even before the Act, 2005 was enacted, Justice SabyasachiMukharji in B.R. Mehta Vs. Atma Devi and Ors., (1987) 4 SCC183 has noted that right of occupation in matrimonial home which isgranted under Matrimonial Homes Act, 1967 in England are not grantedin India though it may be that with the change of situation and complexproblems arising, it is high time to give the wife or the spouse right ofoccupation. In paragraph 6 following was laid down:-

“6. ……………….In England the rights of the spouses beit the husband or the wife to the matrimonial home are nowgoverned by the provisions of Matrimonial Homes Act, 1967.Halsbury’s Laws of England, Fourth Edition, Vol. 22 page 650deals with the rights of occupation in matrimonial home andparagraph 1047 deals with and provides that where one spouse isentitled to occupy dwelling house by virtue of any estate orinterest or contract or by virtue of any enactment giving him orher the right to remain in occupation, and the other spouse is notso entitled, then the spouse not so entitled has the certain rights

A(known as “rights of occupation”) that is to say if in occupation, aright not to be evicted or excluded from the dwelling house or anypart of it by the other spouse except with the leave of the courtgiven by an order, if not in occupation, right with the leave of thecourt so given to enter into and occupy the dwelling house. Butsuch rights are not granted in India though it may be that withBchange of situation and complex problems arising it is high time togive the wife or the spouse right of occupation in trulymatrimonial home, in case of marriage breaking up or in case ofstrained relationship between the husband and thewife………………………….”

35. In the laws of United Kingdom, the rights of husband or wifeto occupy dwelling house, which has been the matrimonial home, wasincluded in Matrimonial Homes Act, 1967. Section 1(1) of the Actprovides:-

“Protection against eviction, etc., from matrimonialDhome of spouse not entitled by virtue of estate, etc., tooccupy if

1. -(1)Where one spouse is entitled to occupy dwellinghouse by virtue of any estate or interest or contract or by virtue ofany enactment giving him or her the right to remain in occupation,Eand the other spouse is not so entitled, then, subject to the provisionsof this Act, the spouse not so entitled shall have the followingrights (in this Act referred to as “rights of occupation”)—

(a) if in occupation, right not to be evicted or excluded fromthe dwelling house or any part thereof by the other spouseFexcept with the leave of the court given by an order under thissection;

(b) if not in occupation, right with the leave of the court sogiven to enter into and occupy the dwelling house.”

36. By subsequent enactment, Matrimonial Homes Act, 1983Galthough Matrimonial Homes Act, 1967 was repealed, same protectionwas continued to occupy the matrimonial home and the said right wascontinued by virtue of Section 1(1), which was to the same effect. TheFamily Law Act, 1996 was enacted in the United Kingdom where aseparate chapter “Chapter IV – Family Homes and Domestic Violence”Hwas enacted. Section 30 of which provision is as follows:-

“30 Rights concerning home where one spouse or civilpartner has no estate, etc.

(1) This section applies if—

(a) one spouse or civil partner is entitled to occupy

dwelling-house by virtue of—

(i) beneficial estate or interest or contract; or

(ii) any enactment giving the right to remain inoccupation; and

(b) the other spouse or civil partner is not so entitled.

(2) Subject to the provisions of this Part, has the followingrights “home rights”—

(a) if in occupation, right not to be evicted or excludedfrom the dwelling-house or any part of it by except with the leaveof the court given by an order under section 33;

(b) if not in occupation, right with the leave of the courtso given to enter into and occupy the dwelling-house.

(3) If is entitled under this section to occupy dwelling-house or any part of dwelling-house, any payment or tendermade or other thing done by in or towards satisfaction of anyliability of in respect of rent, mortgage payments or other outgoingsaffecting the dwelling-house is, whether or not it is made or donein pursuance of an order under section 40, as good as if made ordone by .

XXXXXXXXXXXXXXXX”

37. The right of occupation of matrimonial home, which was notso 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 hasbeen 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 ofwomen. This Court had occasion to examine the purpose of enactmentof Act, 2005 in Kunapareddy Alias NookalaShanka Balaji Vs.Kunapareddy Swarna Kumari and Anr., (2016) 11 SCC 774 whereinparagraph 12 following was stated:-

A“12. In fact, the very purpose of enacting the DV Act wasto provide for remedy which is an amalgamation of civil rightsof the complainant i.e. aggrieved person. Intention was to protectwomen against violence of any kind, especially that occurring withinthe family as the civil law does not address this phenomenon in itsentirety. It is treated as an offence Under Section 498-A of theBPenal Code, 1860. The purpose of enacting the law was to providea remedy in the civil law for the protection of women from beingvictims of domestic violence and to prevent the occurrence ofdomestic violence in the society. It is for this reason, that theScheme of the Act provides that in the first instance, the orderCthat would be passed by the Magistrate, on complaint by theaggrieved person, would be of civil nature and if the said orderis violated, it assumes the character of criminality………………”

39. The Act, 2005 is further step to secure social justice bylegislation. There has been several earlier measures for protection ofDwomen like Section 125 Cr.P.C. and 498-A of India Penal Code. JusticeKrishna Iyer in Captain Ramesh Chander Kaushal Vs. Mrs. VeenaKaushal and Ors., (1978) 4 SCC 70 noted the objectives of enactingSection 125 Cr.P.C. in following words in paragraph 9:-

“9. This provision is measure of social justice and speciallyEenacted to protect women and children and falls within theconstitutional sweep of Article 15(3) reinforced by Article 39. Wehave no doubt that sections of statutes calling for construction byCourts are not petrified print but vibrant words with social functionsto fulfil. The brooding presence of the constitutional empathy forthe weaker sections like women and children must informFinterpretation if it has to have social relevance. So viewed, it ispossible to be selective in picking out that interpretation out oftwo alternatives which advance the cause—the cause of thederelicts.

40. Enactment of Act, 2005 is another step in the same direction.GThis Court in Manmohan Attavar Vs. Neelam Manmohan Attavar,(2017) 8 SCC 550 noticed that Act, 2005 has been enacted to createan entitlement in favour of the woman of the right of residence. Inparagraph 15, following was observed:-

“15. reading of the aforesaid provisions shows that it createsHan entitlement in favour of the woman of the right of residence

under the “shared household” irrespective of her having any legalinterests in the same. The direction, inter alia, can include an orderrestraining dispossession or direction to remove himself on beingsatisfied that domestic violence had taken place.”

41. Now, we proceed to notice certain provisions of Act, 2005,which are relevant for determination of the issues as arisen in the presentappeal. According to Section 2(a) “aggrieved person” means any person,who is, or has been, in domestic relationship with the respondent andwho alleges to have been subjected to any act of domestic violence bythe respondent. “Domestic Relationship” has been defined in Section2(f) in following words:-

“(f) “domestic relationship” means relationship betweentwo persons who live or have, at any point of time, lived togetherin shared household, when they are related by consanguinity,marriage, or through relationship in the nature of marriage,adoption or are family members living together as joint family;”

42. The expression “respondent” is defined in Section 2 (q) infollowing words:-

“(q) “respondent” means any adult male person who is, orhas been, in domestic relationship with the aggrieved personand against whom the aggrieved person has sought any reliefunder this Act:

Provided that an aggrieved wife or female living in arelationship in the nature of marriage may also file complaintagainst relative of the husband or the male partner;”

43. The words “adult male” as occurring in Section 2(q) has beenstruck down by this Court in Hiral P. Harsora and Ors. Vs. KusumNarottamdas Harsora and Ors., (2016) 10 SCC 165. Consequently,the respondent can also be female in domestic relationship with theaggrieved person. The next definition, which is relevant to be noticed isSection 2(s), which defines shared household. Shared household isdefined in following words:-

“(s) “shared household” means household where theperson aggrieved lives or at any stage has lived in domesticrelationship either singly or along with the respondent and includessuch household whether owned or tenanted either jointly by the

aggrieved person and the respondent, or owned or tenanted byeither of them in respect of which either the aggrieved person orthe respondent or both jointly or singly have any right, title, interestor equity and includes such household which may belong to thejoint family of which the respondent is member, irrespective ofwhether the respondent or the aggrieved person has any right,title or interest in the shared household;”

44. Section 3 defines “domestic violence”. Sections 4 to 11occurring in Chapter III deals with powers and duties of protectionofficers, service providers etc. Section 12 occurring in Chapter IV –“Procedure for obtaining orders of reliefs” deals with details of applicationCto Magistrate. Section 12 is as follows:-

“12.Application to Magistrate.-(1) An aggrieved personor Protection Officer or any other person on behalf of theaggrieved person may present an application to the Magistrateseeking one or more reliefs under this Act:

Provided that before passing any order on such application,the Magistrate shall take into consideration any domestic incidentreport received by him from the Protection Officer or the serviceprovider.

(2) The relief sought for under sub-section (1) may includea relief for issuance of an order for payment of compensation ordamages without prejudice to the right of such person to institutea suit for compensation or damages for the injuries caused by theacts of domestic violence committed by the respondent:

FProvided that where decree for any amount ascompensation or damages has been passed by any court in favourof the aggrieved person, the amount, if any, paid or payable inpursuance of the order made by the Magistrate under this Actshall be set off against the amount payable under such decreeand the decree shall, notwithstanding anything contained in theGCode of Civil Procedure, 1908 (5 of 1908), or any other law forthe time being in force, be executable for the balance amount, ifany, left after such set off.

(3) Every application under sub-section (1) shall be in suchform and contain such particulars as may be prescribed or asnearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, whichshall not ordinarily be beyond three days from the date of receiptof the application by the court.

(5) The Magistrate shall Endeavour to dispose of everyapplication made under sub-section (1) within period of sixtydays from the date of its first hearing.”

45. Section 17 provides that every woman in domestic relationshipshall have the right to reside in the shared household. Section 17 is asfollows:-

“17. Right to reside in shared household.-(1)Notwithstanding anything contained in any other law for the timebeing in force, every woman in domestic relationship shall havethe right to reside in the shared household, whether or not she hasany right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excludedfrom the shared household or any part of it by the respondentsave in accordance with the procedure established by law.”

46. Section 18 deals with protection orders. Section 19 deals withresidence orders. Section 20 deals with monetary reliefs. Section 23deals with power to grant interim and ex parte orders. Section 26 dealswith relief in other suits and legal proceedings.

47. After briefly noticing the outline of Act, 2005, we, now, proceedto consider the questions noted above.

Questions Nos. 1 and 2

48. Both the above questions being inter-related are being takentogether. We may recapitulate the facts of the present case in referenceto shared household. The suit property was purchased by appellant inthe year 1983 in his name. The respondent got married to the son ofappellant on 04.03.1995 and after marriage she was living in first floorof suit property. Till July, 2004, the husband of respondent also lived infirst floor whereafter due to marital discord, he shifted in the guest roomon the ground floor. In the suit filed by the appellant for mandatory andpermanent injunction, appellant pleaded that he is the sole owner of thehouse and prayed for removal of respondent, his daughter-in-law fromthe first floor of the house. The respondent had filed written statementin the suit and claimed that the suit property is shared household where

Athe respondent had right to reside. The submission of learned counselfor the appellant is that the premises is not shared household since thehusband of the respondent neither has any share in the suit premises norsuit premises is joint family property. In support of his submission, herelies on judgment of this Court in S. R. Batra and Ors. Vs. TarunaBatra (supra).B

49. The definition of shared household given under Section 2(s)as noticed above beginning with expression “shared household means ahousehold where the person aggrieved lives or at any stage has lived ina domestic relationship either singly or along with the respondent andincludes……………. The section uses both the expressions “meansCand includes”. Three Judge bench judgment of this Court in BharatCoop. Bank (Mumbai) Ltd. Vs. Coop. Bank Employees Union,(2007) 4 SCC 685 had occasion to consider Section 2(bb) of IndustrialDisputes Act, 1947, which section used both the words “means andincludes”. Explaining both the expressions, following was laid down inDparagraph 23:-“23. ……………………………………………….It is trite tosay that when in the definition clause given in any statute theword “means” is used, what follows is intended to speakexhaustively. When the word “means” is used in the definition, toEborrow the words of Lord Esher, M.R. in Gough v. Gough [(1891)2 QB 665] it is “hard-and-fast” definition and no meaning otherthan that which is put in the definition can be assigned to thesame. (Also see P. Kasilingam v. P.S.G. College ofTechnology [1995 Supp (2) SCC 348 : AIR 1995 SC 1395].) Onthe other hand, when the word “includes” is used in the definition,Fthe legislature does not intend to restrict the definition: it makesthe definition enumerative but not exhaustive. That is to say, theterm defined will retain its ordinary meaning but its scope wouldbe extended to bring within it matters, which in its ordinary meaningmay or may not comprise. Therefore, the use of the word “means”Gfollowed by the word “includes” in Section 2(bb) of the ID Act isclearly indicative of the legislative intent to make the definitionexhaustive and would cover only those banking companies whichfall within the purview of the definition and no other.”

50. We may notice another judgment of this Court in PioneerUrban Land and Infrastructure Limited and Anr. Vs. Union ofH

India and Ors., (2019) 8 SCC 416 where this Court had occasion toconsider both the expressions, i.e., “means and includes”. In paragraph82, this Court laid down:-

“82. ………………………In fact, in Jagir Singh v. Stateof Bihar [(1976) 2 SCC 942] , SCC paras 11 and 19 to 21and 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) SCC348]), this Court set out definition sections where the expression“means” was followed by some words, after which came theexpression “and includes” followed by other words, just as in KrishiUtpadan Mandi Samiti case [Krishi Utpadan MandiSamiti v. Shankar Industries, 1993 Supp (3) SCC 361 (2)] . Intwo other recent judgments, Bharat Coop. Bank (Mumbai)Ltd. v. Employees Union [(2007) 4 SCC 685], SCC paras 12 and23 and State of W.B. v. Associated Contractors [State ofW.B. v. Associated Contractors, (2015) 1 SCC 32], SCC para14, this Court has held that wherever the expression “means” isfollowed by the expression “and includes” whether with or withoutadditional words separating “means” from “includes”, theseexpressions indicate that the definition provision is exhaustive asa matter of statutory interpretation. It has also been held that theexpression “and includes” is an expression which extends thedefinition contained in words which follow the expression“means”……………………………”

51. We may notice two more judgments relied by Shri JayantBhushan, learned senior counsel, i.e., The South Gujarat Roofing TilesManufacturers Association and Anr. Vs. The State of Gujarat andAnr., (1976) 4 SCC 601. Shri Bhushan’s submission is that use ofexpression “includes” in Section 2(s) has to be read as means. He placedreliance on following observations made by this Court in paragraph 5:-

“5. XXXXXXXXXXXXXXXX

………………………….Though “include” is generally used ininterpretation clauses as word of enlargement, in some casesthe context might suggest different intention. Pottery is anexpression of very wide import, embracing all objects made ofclay and hardened by heat. If it had been the legislature’s intention

Ato bring within the entry all possible articles of pottery, it was quiteunnecessary to add an explanation. We have found that theexplanation could not possibly have been introduced to extend themeaning of potteries industry or the articles listed therein added exabundanti cautela. It seems to us therefore that the legislature didnot intend everything that the potteries industry turns out to beBcovered by the entry. What then could be the purpose of theexplanation. The explanation says that, for the purpose of Entry22, potteries industry “includes” manufacture of the nine articlesof pottery named therein. It seems to us that the word “includes”has been used here in the sense of ‘means’; this is the onlyCconstruction that the word can bear in the context. In that sense itis not word of extension, but limitation; it is exhaustive of themeaning which must be given to potteries industry for the purposeof Entry 22. The use of the word “includes” in the restrictivesense is not unknown. The observation of Lord Watsonin Dilworth v. Commissioner of Stamps which is usually referredDto on the use of “include” as word of extension, is followed bythese lines:

“But the word ‘include’ is susceptible of anotherconstruction, which may become imperative, if the context ofthe Act is sufficient to show that it was not merely employedfor the purpose of adding to the natural significance of thewords or expressions defined. It may be equivalent to ‘meanand include’, and in that case it may afford an exhaustiveexplanation of the meaning which, for the purposes of the Act,must invariably be attached to these words or expressions.”

52. Next judgment relied by Shri Bhushan is Karnataka PowerTransmission Corporation and Anr. Vs. Ashok Iron Works PrivateLimited, (2009) 3 SCC 240. In the above case also submission wasmade before this court that in the definition of person given in section2(m) of Consumer Protection Act, the expression “includes” should beGread as “means”. This Court laid down that interpretation of word orexpression must depend on the text and the context. In paragraphs 14 to17, following was laid down:-

“14. The learned counsel also submitted that the word“includes” must be read as “means”. In this regard, the learnedcounsel placed reliance upon two decisions of this Court, namely;

(1) South Gujarat Roofing Tiles Manufacturers Assn. v. Stateof Gujarat [(1976) 4 SCC 601] and (2) RBI v. Peerless GeneralFinance and Investment Co. Ltd. [(1987) 1 SCC 424].

15. Lord Watson in Dilworth v. Stamps Commr. [1899 AC99] made the following classic statement: (AC pp. 105-06)

“… The word ‘include’ is very generally used ininterpretation clauses in order to enlarge the meaning of wordsor phrases occurring in the body of the statute; and when it isso used these words or phrases must be construed ascomprehending, not only such things as they signify accordingto their natural import, but also those things which theinterpretation clause declares that they shall include. But theword ‘include’ is susceptible of another construction, whichmay become imperative, if the context of the Act is sufficientto show that it was not merely employed for the purpose ofadding to the natural significance of the words or expressionsdefined. It may be equivalent to ‘mean and include’, and inthat case it may afford an exhaustive explanation of themeaning which, for the purposes of the Act, must invariably beattached to these words or expressions.”16. Dilworth [1899 AC 99] and few other decisionscame up for consideration in Peerless General Finance andInvestment Co. Ltd. [(1987) 1 SCC 424] and this Courtsummarised the legal position that (Peerless case [(1987) 1SCC 424], SCC pp. 449-50, para 32) inclusive definition by thelegislature is used:

“32. … (1) to enlarge the meaning of words orphrases so as to take in the ordinary, popular and naturalsense of the words and also the sense which the statutewishes to attribute to it; (2) to include meanings about whichthere might be some dispute; or (3) to bring under onenomenclature all transactions possessing certain similarfeatures but going under different names.”

17. It goes without saying that interpretation of word orexpression must depend on the text and the context. The resort tothe word “includes” by the legislature often shows the intentionof the legislature that it wanted to give extensive and enlarged

Ameaning to such expression. Sometimes, however, the contextmay suggest that word “includes” may have been designed tomean “means”. The setting, context and object of an enactmentmay provide sufficient guidance for interpretation of the word“includes” for the purposes of such enactment.”

B53. After noticing the ratio of above judgments, Section 2(s), whichuses 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 withexpression “means” which is undoubtedly an exhaustive definition andsecond part of definition, which begins with word “includes” is explanatoryCof what was meant by the definition. Shri Nidhesh Gupta, learned seniorcounsel for the appellant submits that even if it is accepted that thedefinition of Section 2(s) is exhaustive, his case is fully covered in boththe parts of the definition.

54. The use of both the expressions “means and includes” inDSection 2(s) of Act, 2005, thus, clearly indicate the legislative intent thatthe definition is exhaustive and shall cover only those which fall withinthe purview of definition and no other.

55. Now, reverting back to the definition of Section 2(s), thedefinition can be divided in two parts, first, which follows the wordE“means” and second which follows the word “includes”. The secondpart which follows “includes” can be further sub-divided in two parts.The first part reads “shared household means household where theperson aggrieved has lived or at any stage has lived in domesticrelationship either singly or along with the respondent”. Thus, firstFcondition to be fulfilled for shared household is that person aggrievedlives or at any stage has lived in domestic relationship. The secondpart sub-divided in two parts is- (a) includes such household whetherowned or tenanted either jointly by the aggrieved person and therespondent and owned or tenanted by either of them in respect of whicheither the aggrieved person or the respondent or both jointly or singlyGhave any right, title, interest or equity and (b) includes such householdwhich may belong to the joint family of which the respondent is member,irrespective of whether the respondent or the aggrieved person has anyright, title or interest in the shared household. In the above definition,two expressions, namely, “aggrieved person” and “respondent” haveHoccurred. From the above definition, following is clear:- (i) it is not

requirement of law that aggrieved person may either own the premisesjointly or singly or by tenanting it jointly or singly; (ii) the household maybelong to joint family of which the respondent is member irrespectiveof whether the respondent or the aggrieved person has any right, title orinterest in the shared household; and (iii) the shared household may eitherbe owned or tenanted by the respondent singly or jointly.

56. Now, we revert back to the submission of the learned counselfor the appellant that the shared household is that household which belongsto joint family of which husband is member or husband has share in theshared household. He finds support for his submission by the judgmentof 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 needsto be noticed in detail. In the above case, the respondent was marriedwith the son of appellant on 14.04.2000. Respondent started living withher husband in the house of appellant No.2 on the second floor. It wasnot disputed that house belonged to appellant No.2 and her son, i.e.,husband of respondent had no share. Husband had filed divorce petitionagainst respondent whereas respondent filed criminal case underSections 406, 498A, 506 and 34 of Indian Penal Code. Respondent shiftedto her parents’ residence because of the dispute with her husband. Shewhen later tried to enter the house, she found the main entrance lockedhence, she filed suit No. 87 of 2003 to grant mandatory injunction toenable her to enter the house. The Trial Court granted temporary injunctionin favour of the respondent. The appellant filed the appeal, which wasallowed by dismissing the temporary injunction. Respondent filed WritPetition under Article 227 of the Constitution, which was allowed bylearned Single Judge holding that the appellant is entitled to reside in thesecond floor as that was her matrimonial home. The appellant aggrievedagainst the judgment of the High Court had filed an appeal. This Court inParagraph 18 observed that since the house belongs to mother-in-law ofthe respondent and does not belong to the husband, hence, she cannotclaim any right to live in the said house. Following was observed inparagraph 18:-

“18. Here, the house in question belongs to the mother-in-law ofSmt Taruna Batra and it does not belong to her husband AmitBatra. Hence, Smt Taruna Batra cannot claim any right to live inthe said house.”

A58. Before this Court, in the above case, the provisions of Act,2005 were relied. This Court held that the respondent was not residingin the premises in question, finding of fact recorded by the court belowwhich ought not to be interfered by the High Court under Articles 226 or227. After taking the aforesaid view, this Court observed that house inquestion cannot be said to be shared household. In paragraph 22, thisBCourt held:-

“22. Apart from the above, we are of the opinion that thehouse in question cannot be said to be “shared household” withinthe meaning of Section 2(s) of the Protection of Women fromDomestic Violence Act, 2005 (hereinafter referred to as “theCAct”).”

59. This Court also noticed Sections 17 and 19 and the argumentof respondent that household is shared household since aggrieved personhad lived there in domestic relationship. Argument of the respondentwas noticed in paragraph 24 in following words:-D

“24. Learned counsel for the respondent Smt Taruna Batrastated that the definition of shared household includes householdwhere the person aggrieved lives or at any stage had lived in adomestic relationship. He contended that since admittedly therespondent had lived in the property in question in the past, henceEthe said property is her shared household.”

60. This court expressed its dis-agreement with the submissionand made following observations in paragraphs 25 to 30:-

“25. We cannot agree with this submission.

F26. If the aforesaid submission is accepted, then it will meanthat wherever the husband and wife lived together in the past thatproperty becomes shared household. It is quite possible that thehusband and wife may have lived together in dozens of placese.g. with the husband’s father, husband’s paternal grandparents,his maternal parents, uncles, aunts, brothers, sisters, nephews,Gnieces, etc. If the interpretation canvassed by the learned counselfor the respondent is accepted, all these houses of the husband’srelatives will be shared households and the wife can well insist inliving in all these houses of her husband’s relatives merely becauseshe had stayed with her husband for some time in those houses inHthe past. Such view would lead to chaos and would be absurd.

27. It is well settled that any interpretation which leads toabsurdity should not be accepted.

28. Learned counsel for the respondent Smt Taruna Batrahas relied upon Section 19(1)(f) of the Act and claimed that sheshould be given an alternative accommodation. In our opinion, theclaim for alternative accommodation can only be made againstthe husband and not against the husband’s (sic) in-laws or otherrelatives.

29. As regards Section 17(1) of the Act, in our opinion thewife is only entitled to claim right to residence in sharedhousehold, and shared household would only mean the housebelonging to or taken on rent by the husband, or the house whichbelongs to the joint family of which the husband is member. Theproperty in question in the present case neither belongs to AmitBatra nor was it taken on rent by him nor is it joint family propertyof which the husband Amit Batra is member. It is the exclusiveproperty of Appellant 2, mother of Amit Batra. Hence it cannotbe called “shared household”.

30. No doubt, the definition of “shared household” in Section2(s) of the Act is not very happily worded, and appears to be theresult of clumsy drafting, but we have to give it an interpretationwhich is sensible and which does not lead to chaos in society.”

61. In paragraph 26, this Court observed “if the aforesaid submissionis accepted, then it will mean that wherever the husband and wife livedtogether in the past that property becomes 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 theexpression “person aggrieved lives or at any stage has lived”. This Courtobserved in paragraph 26 that if the interpretation canvassed by learnedcounsel for the respondent is accepted that the house of the husband’srelative where respondent resided shall become shared household, shalllead to chaos and would be absurd. The expression “at any stage haslived” occurs in Section 2(s) after the words “where the person aggrievedlives”. The use of the expression “at any stage has lived” immediatelyafter words “person aggrieved lives” has been used for object differentto what has been apprehended by this Court in paragraph 26. Theexpression “at any stage has lived” has been used to protect the women

Afrom denying the benefit of right to live in shared household on theground that on the date when application is filed, she was excluded frompossession 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 objectthat wherever the aggrieved person has lived with the relatives of husband,all such houses shall become shared household, which is not the legislativeBintent. The shared household is contemplated to be the household, whichis dwelling place of aggrieved person in present time. When we lookinto the different kinds of orders or reliefs, which can be granted on anapplication filed by aggrieved person, all orders contemplate providingprotection to the women in reference to the premises in which aggrievedCperson is or was in possession. Our above conclusion is further fortifiedby statutory scheme as delineated by Section 19 of the Act, 2005. Inevent, the definition of shared household as occurring in Section 2(s) isread to mean that all houses where the aggrieved person has lived in adomestic relationship alongwith the relatives of the husband shall becomeshared household, there will be number of shared household, which wasDnever contemplated by the legislative scheme. The entire Scheme of theAct is to provide immediate relief to the aggrieved person with respectto 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 personEmerely on the ground that aggrieved person is not living as on the date ofthe application or as on the date when Magistrate concerned passes anorder under Section 19. The apprehension expressed by this Court inparagraph 26 in S.R. Batra Vs. Taruna Batra (supra), thus, was nottrue apprehension and it is correct that in event such interpretation isaccepted, it will lead to chaos and that was never the legislative intent.FWe, thus, are of the considered opinion that shared household referredto in Section 2(s) is the shared household of aggrieved person where shewas living at the time when application was filed or in the recent pasthad been excluded from the use or she is temporarily absent.

63. The words “lives or at any stage has lived in domesticGrelationship” have to be given its normal and purposeful meaning. Theliving of woman in household has to refer to living which has somepermanency. Mere fleeting or casual living at different places shall notmake shared household. The intention of the parties and the nature ofliving including the nature of household have to be looked into to find outHas to whether the parties intended to treat the premises as shared

household or not. As noted above, Act 2005 was enacted to give higherright in favour of woman. The Act, 2005 has been enacted to provide formore effective protection of the rights of the woman who are victims ofviolence of any kind occurring within the family. The Act has to beinterpreted in manner to effectuate the very purpose and object of theAct. Section 2(s) read with Sections 17 and 19 of Act, 2005 grants anentitlement in favour of the woman of the right of residence under theshared household irrespective of her having any legal interest in thesame 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 right toresidence in shared household and shared household would onlymean the house belonging to or taken on rent by the husband, or thehouse which belongs to the joint family of which the husband is member.The definition of shared household as noticed in Section 2(s) does notindicate that shared household shall be one which belongs to or takenon rent by the husband. We have noticed the definition of “respondent”under the Act. The respondent in proceeding under Domestic ViolenceAct can be any relative of the husband. In event, the shared householdbelongs to any relative of the husband with whom in domestic relationshipthe woman has lived, the conditions mentioned in Section 2(s) are satisfiedand the said house will become shared household. We are of the viewthat this court in S.R. Batra Vs. Taruna Batra (supra) although noticedthe definition of shared household as given in Section 2(s) but did notadvert to different parts of the definition which makes it clear that for ashared household there is no such requirement that the house may beowned 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 happilywordedand it has to be interpreted, which is sensible and does not lead to chaosin the society also does not commend us. The definition of sharedhousehold is clear and exhaustive definition as observed by us. The objectand purpose of the Act was to grant right to aggrieved person, womanof residence in shared household. The interpretation which is put by thisCourt in S.R. Batra Vs. Taruna Batra (supra) if accepted shall clearlyfrustrate the object and purpose of the Act. We, thus, are of the opinionthat the interpretation of definition of shared household as put by thisCourt in S.R. Batra Vs. Taruna Batra (supra) is not correctinterpretation and the said judgment does not lay down the correct law.

A65. The learned counsel for the appellant has placed reliance onanother Two Judge Bench judgment of this Court in Vimlaben AjitbhaiPatel Vs. Vatsalben Ashokbhai Patel and Ors.,(2008) 4 SCC 649.In the above case, this Court had occasion to consider the provisions ofAct, 2005. The question which came for consideration in the above casehas been noticed in paragraph 14 of the judgment, which is to the followingBeffect:-

“14. The questions which arise for consideration are:

(i) Whether in the facts and circumstances of the case, theproperty of Appellant 1 could have been sold in auction? andC

(ii) Whether in case of this nature, the bail granted to theappellants should have been directed to be cancelled?”

66. In the above case, the complaint was filed by third respondentagainst her husband and appellant’s father-in-law and mother-in-law underSections 406 and 114 of Indian Penal Code. The bail granted to theDappellants was cancelled. Proceedings under Section 82 Cr.P.C. wereinitiated attaching the properties of the appellant. The learnedMetropolitan Magistrate asked the District Magistrate to auction theattached properties. The properties of the appellant was auctioned andthis Court in the above case has held that the provisions of the HinduEAdoptions and Maintenance Act, 1956 that maintenance of wife, duringsubsistence of marriage, is on the husband and on the applicant to maintainthe daughter-in-law arises only when the husband has died. In paragraphs21 and 22 following was laid down:-“21. Maintenance of married wife, during subsistence ofFmarriage, is on the husband. It is personal obligation. Theobligation to maintain daughter-in-law arises only when thehusband has died. Such an obligation can also be met from theproperties of which the husband is co-sharer and not otherwise.For invoking the said provision, the husband must have share inthe property. The property in the name of the mother-in-law canGneither be subject-matter of attachment nor during the lifetimeof the husband, his personal liability to maintain his wife can bedirected to be enforced against such property.

22. Wholly uncontentious issues have been raised beforeus on behalf of Sonalben (wife). It is well settled that apparentHstate 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 self-acquired property and the onus would be on the one, who pleadscontra. Sonalben might be entitled to maintenance from herhusband. An order of maintenance might have been passed but inview of the settled legal position, the decree, if any, must beexecuted against her husband and only his properties could beattached therefor but not of her mother-in-law.”

67. In paragraph 27, this Court further held:-

“27. The Domestic Violence Act provides for higher rightin favour of wife. She not only acquires right to be maintainedbut also thereunder acquires right of residence. The right ofresidence is higher right. The said right as per the legislationextends to joint properties in which the husband has share.”

68. In paragraph 28, this court noticed the judgment of this Courtin S.R. Batra Vs. Taruna Batra (supra).

69. In the facts of the above case, this Court held that the HighCourt 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 thiscase we are of the opinion that the interest of justice shall besubserved if the impugned judgments are set aside with thefollowing directions:

(i) The property in question shall be released fromattachment.

(ii) The 3rd respondent shall refund the sum of Rs 1 lakh tothe respondent with interest @ 6% per annum.

(iii) The amount of Rs 4 lakhs deposited by the 1strespondent shall be refunded to him immediately with interestaccrued thereon.

(iv) The 3rd respondent should be entitled to pursue herremedies against her husband in accordance with law.

(v) The learned Magistrate before whom the cases filed bythe 3rd respondent are pending should bestow seriousconsideration of disposing of the same, as expeditiously as possible.

(vi) The 3rd respondent shall bear the costs of the appellantwhich 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 theBmarried life is on the husband. The question which fell for considerationbefore this Court in above case was as to whether the property of theappellant could have been sold in auction and the bail granted to theappellants should have been cancelled as noted in paragraph 14. Noissue regarding right to reside in shared household had arisen in theabove case and the above case is entirely different from the presentCcase, the above case arose out of criminal proceedings on the basis ofcomplaint filed by the respondent against the appellant. The abovejudgment in no manner supports the case of the appellant. Further in theabove case, this Court relied on judgment of S.R. Batra Vs. TarunaBatra (supra), we have observed above that S.R. Mehta does not layDdown correct law.71. Learned counsel for the respondent has relied on fewjudgments of Delhi High Court in support of his submission. Delhi HighCourt in Eveneet Singh Vs. Prashant Chaudhri, 2010 SCC OnlineDel 4507 had considered the provisions of Act, 2005 and also theEdefinition of shared household. In paragraphs 16 and 17 following waslaid down:-

“16. The definition of “shared household” emphasizes thefactum of domestic relationship and no investigation into theownership of the said household is necessary, as per the definition.Even if an inquiry is made into the aspect of ownership of theFhousehold, the definition casts wide enough net. It is couched ininclusive terms and is not in any way, exhaustive(S. Prabhakaran v. State of Kerala, 2009 (2) RCR (Civil) 883). Itstates that ”…includes such household whether owned ortenanted either jointly by the aggrieved person and the respondent,Gor owned or tenanted by either of them in respect of which eitherthe aggrieved person or the respondent or both jointly or singlyhave any right, title, interest or equity and includes such householdwhich may belong to the joint family of which the respondent is amember, irrespective of whether the respondent or the aggrievedperson has any right, title or interest in the shared household”H

(emphasis supplied).

17. It would not be out of place to notice here that the useof the term “respondent” is unqualified in the definition nor isthere any qualification to it under Sections 12, 17 or 19. Therefore,there is no reason to conclude that the definition does not extendto house which is owned by mother-in-law or any other femalerelative, since they are encompassed under the definition of‘respondent’ under Section 2(q).”

72. The Division Bench of the Delhi High Court affirmed thejudgment in Eveneet Singh Vs. Prashant Chaudhari, 2011 SCCOnline Del 4651 of the learned Single Judge as noted above. Inparagraph 14, the Division Bench laid down following:-

“14. It is apparent that clause (f) of sub-section 1 of Section 19 ofthe Act is intended to strike balance between the rights of adaughter-in-law and her in-laws, if claim to shared residenceby the daughter-in-law pertains to building in which thematrimonial home was set up belongs to her mother-in-law orfather-in-law.”

73. Another judgment which need to be noticed of Delhi HighCourt is Preeti Satija Vs. Raj Kumari and Anr., 2014 SCC OnlineDel 188. In paragraphs 20 and 21, the Division Bench laid down following:-

“20. Crucially, Parliament’s intention by the 2005 Act wasto secure the rights of aggrieved persons in the shared household,which could be tenanted by the Respondent (including relative ofthe husband) or in respect of which the Respondent had jointly orsingly any right, title, interest, or “equity”. For instance, widow(or as in this case, daughter in law, estranged from her husband)living with mother-in-law, in premises owned by the latter, fallswithin “domestic relationship”. The obligation not to disturb theright to residence in the shared household would continue even ifthe mother-in-law does not have any right, title or interest, but is atenant, or entitled to “equity” (such as an equitable right topossession) in those premises. This is because the premises wouldbe “shared household”. The daughter-in-law, in thesecircumstances is entitled to protection from dispossession, thoughher husband never had any ownership rights in the premises. Theright is not dependent on title, but the mere factum of residence.Thus, even if the mother-in-law is tenant, then, on that ground,

or someone having equity, she can be injuncted from dispossessingthe daughter in law. In case the mother in law is the owner, theobligation to allow the daughter in law to live in the sharedhousehold, as long as the matrimonial relationship between herand the husband subsists, continues. The only exception is theproviso to 19(1)(b), which exempts women from being directedto remove themselves from the shared household. No suchexception has been carved out for the other reliefs under Section19, especally in respect of protection orders. Had the Parliamentintended to create another exception in favor of women, it wouldhave done so. This omission was deliberate and in consonancewith the rest of the scheme of the Act. There can be other casesof domestic relationships such as an orphaned sister, or widowedmother, living in her brother’s or son’s house. Both are coveredby the definition of domestic relationship, as the brother is clearlya Respondent. In such case too, if the widowed mother or sisteris threatened with dispossession, they can secure reliefs underthe Act, notwithstanding exclusive ownership of the property bythe son or brother. Thus, excluding the right of residence againstproperties where the husband has no right, share, interest or title,would severely curtail the extent of the usefulness of the right toresidence.

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 womenguaranteed under the Constitution who are victims of violence ofany kind occurring within the family”. The right to residence andcreation of mechanism to enforce is ground breaking measure,which Courts should be alive to. Restricting the scope of theremedies, including in respect of the right to reside in sharedhousehold, would undermine the purpose of this enactment. It is,therefore, contrary to the scheme and the objects of the Act, asalso the unambiguous text of Section 2(s), to restrict the applicationof the 2005 Act to only such cases where the husband alone ownssome property or has share in it. Crucially, the mother-in-law(or father-in-law, or for that matter, “a relative of the husband”)can also be Respondent in the proceedings under the 2005 Actand remedies available under the same Act would necessarilyneed 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 DelhiHigh Court in Navneet Arora Vs. Surender Kaur and Ors., 2014SCC Online Del 7617 had considered the various aspects of Act,2005. Dealing with right of residence in paragraphs 58 to 60, followingwas held:-

“58. It may be highlighted that the Act does not confer anytitle or proprietary rights in favour of the aggrieved person asmisunderstood by most, but merely secures ‘right of residence’in the ‘shared household’. Section 17(2) clarifies that the aggrievedperson may be evicted from the ‘shared household’ but only inaccordance with the procedure established by law. The legislaturehas taken care to calibrate and balance the interests of the familymembers of the respondent and mitigated the rigour by expresslyproviding under the provisio to Section 19(1) that whilst adjudicatingan application preferred by the aggrieved person it would not beopen to the Court to pass directions for removing female memberof the respondents family from the “shared household”.Furthermore, in terms of Section 19(1)(f), the Court may directthe respondent to secure same level of accommodation for theaggrieved person as enjoyed by her in the “shared household” orto pay rent for the same, if the circumstances so require.

59. The seemingly ‘radical’ provisions comprised in theProtection of Women from Domestic Violence Act, 2005 must beunderstood and appreciated in light of the prevalent culture andethos in our society.

60. The broad and inclusive definition of the term ‘sharedhousehold’ in the Protection of Women from Domestic ViolenceAct, 2005 is in consonance with the family patterns in India, wheremarried couple continue to live with their parents in homes ownedby parents.”

75. The Delhi High Court in the above case has rightly consideredthe concept of shared household as occurring in Section 2(s) of the Act,2005.

A76. We also need to notice several judgments of Delhi High Courtand other High Courts, which have been relied by Shri Jauhar. Thejudgments of Delhi High Court relied by Shri Jauhar are:-

77. All these judgments of Delhi High Court relies on S.R. BatraVs. Taruna Batra (supra). We having already held that judgment ofDS.R. Batra Vs. Taruna Batra (supra) insofar as it interpret the definitionof 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 learnedcounsel for the appellant. Shri Jauhar has also placed reliance on fewjudgments of other High Courts namely:-

78. The above judgments of the High Courts have again relied onGjudgment of S.R. Batra Vs. Taruna Batra (supra), hence, they alsodo not support the claim of the appellant.

79. Shri Jauhar also relied on Judgment of Three Judge Benchof this Court in Maria Margarida Sequeira Fernandes and Ors. Vs.Erasmo Jack De Sequeira, (2012) 5 SCC 370. Shri Jauhar placedH

reliance on paragraph 97 of the judgment, which enumerates fewprinciples of law. Paragraph 97 is as follows:-

“97. Principles of law which emerge in this case arecrystallised as under:

(1) No one acquires title to the property if he or she wasallowed to stay in the premises gratuitously. Even by longpossession of years or decades such person would not acquireany right or interest in the said property.

(2) Caretaker, watchman or servant can never acquireinterest in the property irrespective of his long possession. Thecaretaker or servant has to give possession forthwith on demand.

(3) The courts are not justified in protecting the possessionof caretaker, servant or any person who was allowed to live inthe premises for some time either as friend, relative, caretakeror as servant.

(4) The protection of the court can only be granted orextended 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 principalonly on behalf of the principal. He acquires no right or interestwhatsoever for himself in such property irrespective of his longstay or possession.”

80. There cannot be any dispute to the preposition of law as laiddown by this Court in above case. The above case arose out of suitfiled by the respondent for permanent injunction and mandatory injunctionagainst the appellant. The respondent was brother of the appellant. Suitwas decreed by the Trial Court, and appeal against which judgment wasalso dismissed. Appellant case was that the respondent has no right, titleor interest in the property and the respondent was permitted to live in thepremises since the appellant being wife of Navy Officer was most ofthe period out of Goa and she has permitted her brother to occupy thepremises. This Court made following observations in paragraphs 91 and92:-

“91. We have heard the learned counsel for the parties atlength and perused the relevant judgments cited at the Bar. In theinstant case, admittedly, the respondent did not claim any title to

Athe suit property. Undoubtedly, the appellant has valid title to theproperty which is clearly proved from the pleadings and documentson record.

92. The respondent has not been able to establish the familyarrangement by which this house was given to the respondent forBhis residence. The courts below have failed to appreciate that thepremises in question was given by the appellant to her brother, therespondent herein as caretaker. The appellant was married to anaval officer who was transferred from time to time outside Goa.Therefore, on the request of her brother she gave possession ofthe premises to him as caretaker. The caretaker holds theCproperty of the principal only on behalf of the principal.”

81. For the above reasons, the Court allowed the appeal and laiddown the preposition of law as noted above in paragraph 97 of thejudgment. The ratio as laid down in the above case of this Court isnothing to do with the issues, which have arisen in the present appealDand the reliance on the above judgment by learned counsel for theappellant 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 theErespondent where she was residing in first floor since her marriage. Thefact that respondent is residing in first floor of the premises is not matterof dispute. Even if the house is in the name of the appellant and thateven if we accept the case of the appellant that appellant’s son Raveenhas no share in the house belonging to appellant, with whom the respondentFwas living in the domestic relationship, whether the respondent is entitledto reside in the premises in question as shared household is the questionto be answered. In the impugned judgment, Delhi High Court hasrefrained from deciding the point as to whether suit property is sharedhousehold on the ground that the application filed under Section 12 ofAct, 2005 by the respondent is pending. In the suit filed by the appellantGwhere respondent has pleaded and claimed that it is shared householdand she has right to live and it was on that ground she was resisting thesuit for mandatory injunction, the question that whether the suit propertyis shared household or not becomes relevant and necessary and thesaid issue cannot be skipped on the ground that application under D.V.HAct 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 shehas right to residence could have been very well gone into by virtue ofSection 26, which we shall further deal little later.

83. Before we close our discussion on Section 2(s), we need toobserve that the right to residence under Section 19 is not an indefeasibleright of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The seniorcitizens in the evening of their life are also entitled to live peacefully nothaunted by marital discord between their son and daughter-in-law. Whilegranting relief both in application under Section 12 of Act, 2005 or in anycivil proceedings, the Court has to balance the rights of both the parties.The directions issued by High court in paragraph 56 adequately balancesthe rights of both the parties.

84. In view of the foregoing discussions, we answer issue Nos. 1and 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 bethat household which is household of the joint family of whichhusband is member or in which husband of the aggrievedperson has 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 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, whetherthe learned Trial Court was justified in passing the decree on allegedadmission under Order XII Rule 6 of the CPC or not. What is requiredto be considered is what constitutes the admission warranting thejudgment on admission in exercise of powers under Order XII Rule 6,CPC. This Court had occasion to consider above in decisions; HimaniAlloys Limited Vs. Tata Steel Limited, (2011) 15 SCC 273 andS.M. Asif Vs. Virender Kumar Bajaj, (2015) 9 SCC 287.

87. In Himani Alloys Limited (supra), this Court had an occasionto consider the scope and ambit of judgment on admission in exercise ofpowers under Order XII Rule 6, CPC. It is observed and held in

Aparagraph 11 that being an enabling provision, it is neither mandatory norpreemptory but discretionary for the Court to pass judgment on admissionin exercise of powers under Order XII Rule 6 CPC. It is observed thatthe Court, on examination of the facts and circumstances, has to exerciseits judicial discretion keeping in mind that judgment on admission is ajudgment without trial which permanently denies any remedy to theBdefendant by way of an appeal on merits. It is further observed that,therefore, unless the admission is clear, unambiguous and unconditional,the discretion of the Court should not be exercised to deny the valuableright of defendant to contest the claim. In short, the discretion shouldbe used only when there is clear “admission” which can be actedCupon. It is further observed and held that “admission” should becategorical. It should be conscious and deliberate act of the partymaking it, showing an intention to be bound by it.

88. similar view was expressed by this Court in the case ofS.M. Asif (supra). It is observed and held in paragraph 8 that expressionD“may” in Order XII Rule 6 CPC suggests that it is discretionary andcannot be claimed as of right. It is further observed that where defendantsraised objections which go to root of the case, it would not be appropriateto exercise discretion under Order XII Rule 6 CPC.

89. In this context, we need to notice few parts of pleadings ofEboth the parties as disclosed in plaint and the written statement. Theplaintiffs have filed the suit for mandatory and permanent injunctionclaiming to be absolute owner of the suit property where defendant wasadmitted to be in occupation of two bed rooms with few amenities onfirst floor of the property. The plaintiff pleaded that he is senior citizen,aged 76 years but wanted to live peaceful life and has terminated theFlicence of the defendant, who stayed in the first floor. The pleadings ofthe plaintiffs in paragraphs 1, 2, 3, 4 and 5 are as follows:-

“1. That the plaintiff is the absolute owner of the property bearingNo.D-1077 New Friends Colony, New Delhi – 110 025,admeasuring 492 sqyds. and is filing the present suit seekingGremoval of the defendant from the first floor of the property bearingNo.D-1077, New Friends Colony, New Delhi – 110 025.

2. That the defendant is in occupation of two bed rooms withattached dressing and bath rooms and kitchen on the first floorof property bearing No.D-1077, New Friends Colony, New Delhi

– 110 025 more particularly described in Red colour in the siteplan and hereinafter referred to as the suit premises.

3. That the plaintiff is senior citizen aged 76 years and is heartpatient and has undergone angioplasty twice in the arteries in theheart. The plaintiff suffers from hypertension and high bloodpressure and is on constant medication for the same. As such theplaintiff in his old age would like to live peaceful life and hasterminated the licence of the defendant to stay in the first floor ofthe suit property which is the exclusive property of the plaintiff.

4. That the plaintiff is aggrieved by the torturous acts of thedefendant in filing false and frivolous cases and attempting toimplicate the plaintiff and his aged wife in false cases, the plaintiffin his ripe old age prays for removal of the defendant from thesuit property so as to lead tension free life without hurling ofabuses and torture perpetrated by the defendant.

5. That the plaintiff is the sole and absolute owner of the suitproperty which was acquired by the plaintiff from its previousowner namely Shri Kulbhushan Jain vide agreement to sell dated12[th] January, 1983 for sum of Rs.2,77,000/- (Rupees Two lacsseventy seven thousand only) and after purchase of the saidproperty the plaintiff herein constructed the entire propertyincluding first floor of the suit property out of his own self acquiredfunds and the entire property bearing No.D-1077, New FriendsColony, New Delhi – 110 025 was converted into free hold videconveyance deed dated 14.07.2000 which was duly registeredwith the Sub Registrar of Assurances VII vide registration No.2500in Volume No.951 pages 54 to 56. As such, the plaintiff havingacquired the absolute ownership of the entire property bearingNo.D-1077, New Friends Colony, New Delhi – 110 025 is entitledand competent to file the present suit seeking removal of thedefendant from the portion of the first floor of the suit property.”

90. written statement was filed by the defendant where sheclaimed that after marriage of the defendant on 04.03.1995, she is residingin the house. It was further pleaded that the shared household wasacquired by the plaintiff through joint family funds and it is not his selfacquired property. Paragraphs 1, 4 and 7 of the written statement are asfollows:-

“1. That bare perusal of the documents filed alongwiththe plaint and even otherwise it is amply evident that the plaintiffas per his own version became the owner of the suit propertybearing No D-1077, New Friends Colony, New Delhi-110025 onlyin the year 2003. The marriage of the answering defendant wassolemnized on 4/3/1995 and the defendant started residing in thejoint shared household since then. Therefore the right of thedefendant is prior in point of time that of the plaintiff.

It is further submitted that the said shared household waspurportedly acquired by the plaintiff through joint family fundsand not his self acquired property. The plaintiff hereby called uponto disclose all income tax returns, bank statements, audited balancesheets etc. since 1982 till 2006. This may deemed to be noticed todiscover under provisions of Order XI Rule 12 CPC on the plaintiff.As separate application under relevant provision of CPC is alsobeing filed by the defendant for such discovery of documents. Inview of this, the present is not maintainable and is liable to bedismissed.4. That the suit filed by the plaintiff is directly in conflictwith the right of the defendant to reside in her matrimonialresidence/shared household granted to her by the Legislature andspecifically envisaged in section 17 and 19 of the Protection ofWomen from Domestic Violence Act, 2005 and as such is liableto be dismissed at the threshold. The defendant came to the suitproperty on 04.03.1995 as ‘Bahu’ of the plaintiff and legallywedded wife of his elder son Shri Raveen Ahuja. After the marriagethe defendant lived with the son of the plaintiff Shri Raveen Ahujain the joint family uninterruptedly and there was/is joint kitchen.The defendant has right to reside in the suit property whether ornot she has any right title or beneficial interest in the same. Theson of the plaintiff Shri Raveen Ahuja is residing with, the plaintiffon the ground floor of the suit premises. In view of this, the stilt ofthe plaintiff is not maintainable and is liable to be dismissed.

7. That the plaintiff has not approached to this Hon’ble Courtwith clean hands and suppressed the true and material factsregarding causing physical and mental torture to the defendant onaccount of domestic violence etc. by the plaintiff his wife andtheir elder son. They also hatched conspiracy against the

defendant in order to compel her to leave the matrimonial home ina deceit full manner. In view of this, the present suit is notmaintainable and is liable to be dismissed.”

91. The suit was filed by the plaintiff claiming to be sole owner ofthe house on the ground that he has terminated the gratuitous licencse ofthe defendant. Plaintiff also alleged that respondent (defendant) has filedfalse case implicating the plaintiff and his wife. Plaintiff further statedthat wife of the plaintiff has been subjected to various threats and violencein the hands of the defendant on several occasions. On the other hand,the defendant does not dispute that the house was recorded in the nameof the plaintiff and in her application filed under the Domestic ViolenceAct, she stated that plaintiff is the owner of the suit property but in thewritten statement filed in the suit, she pleaded that house has beenpurchased by joint family funds. The Trial Court on the basis of admissionmade by the defendant in her application filed under Section 12 of theD.V. Act before the Metropolitan Magistrate that the plaintiff is ownerof the house has decreed the suit under Section 12(6).

92. Even if for argument’s sake, we proceed on the basis that theplaintiff 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 CPCwithout adverting to the defence which was taken by the defendant toresist 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 forready reference:-

“26. Relief in other suits and legal proceedings.-(1)Any relief available under sections 18, 19, 20, 21 and 22 may alsobe sought in any legal proceeding, before civil court, family courtor criminal court, affecting the aggrieved person and therespondent whether such proceeding was initiated before or afterthe commencement of this Act.

(2) Any relief referred to in sub-section (1) may be soughtfor in addition to and along with any other relief that the aggrievedperson may seek in such suit or legal proceeding before civil orcriminal court.

(3) In case any relief has been obtained by the aggrievedperson in any proceedings other than proceeding under this Act,

250SUPREME COURT REPORTS

[2020] 12 S.C.R.

Ashe shall be bound to inform the Magistrate of the grant of suchrelief.”

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 civil court, family court or criminal court being the aggrievedBperson. Thus, the defendant is entitled to claim relief under Section 19 insuit, which has been filed by the plaintiff. Section 26 empowers theaggrieved person to claim above relief in Civil Courts also. In the presentsuit, it was defence of the defendant that the house being the sharedhousehold, she is entitled to reside in the house as per Section 17(1) ofAct, 2005. This Court had occasion to consider provision of Section 26Cin Vaishali Abhimanyu Joshi Vs. Nanasaheb Gopal Joshi, (2017)14 SCC 373. In the above case, the appellant was married with oneAbhimanyu with whom she was residing in suit Flat No.4, 45/4, AratiSociety, Shivvihar Colony, Paud Fata, Pune. The husband filed suit fordivorce against the appellant. The father-in-law filed suit in Small CauseDCourt for mandatory injunction praying that defendant be directed tostop the occupation and use of the suit flat. The appellant filed writtenstatement in the suit claiming that although the flat bears the name of therespondent but she is residing in the suit flat. She filed counter claimclaiming that flat is shared household and the suit be dismissed. Thecounter claim was rejected by the Judge, Small Cause Court, againstEwhich revision as well as the writ petition was dismissed. This Courtnoted the question, which arose for consideration in the above case inparagraph 16, which is to the following effect:-

“16. As noted above, the only question to be answered in thisappeal is as to whether the counter claim filed by the appellantFseeking right of residence in accordance with Section 19 of the2005 Act in suit filed by the respondent, her father-in-law underthe Provincial Small Cause Courts Act, 1887 is entertainable ornot. Whether the provisions of the 1887 Act bar entertainment ofsuch counterclaim, is the moot question to be answered…………”

G94. After noticing the provision of Section 26 of the Act, this Courtmade following observations in paragraphs 23 and 24:-

“23. Section 26 of the Act is special provision which hasbeen enacted in the enactment. Although, Chapter IV of the Actcontaining Section 12 to Section 29 contains the procedure forHobtaining orders of reliefs by making application before the

Magistrate whereas steps taken by the Magistrate and differentcategories of reliefs could be granted as noted in Sections 18 to22 and certain other provisions. Section 26 provides that any reliefavailable under Sections 18 to 22 may also be sought in any legalproceedings, before civil court, family court or criminal court,affecting the aggrieved person and the respondent. Section 26 ismaterial for the present case since the appellant has set up hercounterclaim on the basis of this section before the Judge, SmallCause 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 22may also be sought in any legal proceeding, before civil court,family court or criminal court, affecting the aggrieved personand the respondent whether such proceeding was initiatedbefore or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be soughtfor in addition to and along with any other relief that theaggrieved person may seek in such suit or legal proceedingbefore civil or criminal court.

(3) In case any relief has been obtained by the aggrievedperson in any proceedings other than proceeding under thisAct, she shall be bound to inform the Magistrate of the grantof such relief.”

24. There cannot be any dispute that proceeding beforethe Judge, Small Cause Court is legal proceeding and the Judge,Small Cause Court is 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 amanner to effectuate the purpose and object of the Act. This Court heldthat the determination of claim of the aggrieved person was necessaryin the suit to avoid multiplicity of proceedings. This court laid downfollowing in paragraphs 40 and 41:-

“40. Section 26 of the 2005 Act has to be interpreted in amanner to effectuate the very purpose and object of the Act.Unless the determination of claim by an aggrieved person seekingany order as contemplated by the 2005 Act is expressly barred

Afrom consideration by civil court, this Court shall be loath toread in bar in consideration of any such claim in any legalproceeding before the civil court. When the proceeding initiatedby the plaintiff in the Judge, Small Cause Court alleged terminationof gratuitous licence of the appellant and prays for restraining theappellant from using the suit flat and permit the plaintiff to enterBand use the flat, the right of residence as claimed by the appellantis interconnected with such determination and refusal ofconsideration of claim of the appellant as raised in her counterclaimshall be nothing but denying consideration of claim as contemplatedby Section 26 of the 2005 Act which shall lead to multiplicity ofCproceedings, which cannot be the object and purpose of the 2005Act.

41. We, thus, are of the considered opinion that thecounterclaim filed by the appellant before Judge, Small CauseCourt in Civil Suit No. 77 of 2013 was fully entertainable and theDcourts 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 shehas right to reside in the house ought to have been considered by theTrial Court and non-consideration of the claim/defence is nothing butEdefeating the right, which is protected by Act, 2005.

97. We have noticed the law laid down by this Court in S.M. AsifVs. Virender Kumar Bajaj (supra) where this Court in paragraph 8has laid down following:-

“8. The words in Order 12 Rule 6 CPC “may” and “makesuch order …” show that the power under Order 12 Rule 6 CPCis discretionary and cannot be claimed as matter of right.Judgment on admission is not matter of right and rather is amatter of discretion of the court. Where the defendants have raisedobjections which go to the root of the case, it would not beappropriate to exercise the discretion under Order 12 Rule 6 CPC.The said rule is an enabling provision which confers discretion onthe court in delivering quick judgment on admission and to theextent of the claim admitted by one of the parties of his opponent’sclaim.”

98. The power under Order XII Rule 6 is discretionary and cannotbe claimed as matter of right. In the facts of the present case, the TrialCourt ought not to have given judgment under Order XII Rule 6 on theadmission of the defendant as contained in her application filed underSection 12 of the D.V. Act. Thus, there are more than one reason fornot approving the course of action adopted by Trial Court in passing thejudgment under Order XII Rule 6. We, thus, concur with the view of theHigh Court that the judgment and decree of the Trial Court given underOrder 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 hasbeen, in domestic relationship with the aggrieved person andagainst whom the aggrieved person has sought any relief underthis Act:

Provided that an aggrieved wife or female living in arelationship in the nature of marriage may also file complaintagainst relative of the husband or the male partner;”

100. There are two conditions for person to be treated to berespondent within the meaning of Section 2(q), i.e., (i) in domesticrelationship with the aggrieved person, and (ii) against whom the aggrievedperson has sought any relief under Act, 2005. It is to be noticed that theexpression “any adult male person” occurring in Section 2(q) came forconsideration 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”. ThisCourt held that “adult male person” restricting the meaning of respondentin Section 2(q) to only “adult male person” is not based on any intelligibledifferentia having rational nexus with object sought to be achieved. ThisCourt struck down the word “adult male”. Hence, it is now permissibleunder definition of Section 2(q) to include females also.

101. The defendant in her application filed under Section 12 on20.11.2015 in the Court of Additional Chief Metropolitan Magistrateimpleaded Satish Chandra Ahuja as respondent No.2. Thus, in thedomestic violence proceedings initiated by the defendant, plaintiff wasthe respondent. As noted above, under Section 26 of the Act, 2005 anyrelief available under Sections 18, 19, 20, 21 and 22 may also be sought

Ain any legal proceedings, before Civil Court. The defendant in herwritten statement claimed that she is entitled to reside in the premises ofsuit property it being her shared household.

102. Learned counsel for the appellant submitted that in the suit inquestion the defendant has not sought for any relief under Section 19. ItBis true that no separate application or separate prayer has been made bythe defendant in the suit for grant of any relief under Section 19 but inher pleadings she has resisted the claim of plaintiff on the ground thatshe has right to reside in the suit property it being her shared household.Thus, the question whether the suit premises is shared household of thedefendant and she has right in the shared household so as the decreeCbefore the Trial Court can be successfully resisted were required to bedetermined by the Trial Court. We are further of the view that when inthe suit defendant has pleaded to resist the decree on the ground of herright of residence in the suit property it was for her to prove her claim inthe suit both by pleadings and evidence.D103. As noted above, one of the conditions to treat person as arespondent is that “against whom the aggrieved person has sought anyrelief under the Act”. The defendant in her pleadings having claimedthat she has right of residence in the suit property, she for successfulresisting the suit has to plead and prove that she has been subjected toEany act of domestic violence by the respondent, which is implicit in thedefinition of the aggrieved person itself as given in the Section 2(a) ofthe Act, 2005. It is, further, relevant to notice that although learnedMagistrate passed an interim order in the application filed by the defendantunder Section 12 on 26.11.2016 but said order was interim order whichwas passed on the satisfaction of the Magistrate that “the applicationFprima facie disclosed that the respondent is committing or has committedan act of domestic violence”. For granting any relief by the Civil Courtunder Section 19 it has to be proved that the respondent is committing orhas committed an act of domestic violence on the aggrieved person. Totreat person as the “respondent” for purposes of Section 2(q) it has toGbe proved that person arrayed as respondent has committed an act ofdomestic violence on the aggrieved person.

104. We, thus, are of the view that for the purposes of determinationof right of defendant under Sections 17 and 19 read with Section 26 inthe suit in question the plaintiff can be treated as “respondent”, but forHthe grant of any relief to the defendant or for successful resisting the

suit of the plaintiff necessary conditions for grant of relief as prescribedunder the Act, 2005 has to be pleaded and proved by the defendant, onlythen the relief can be granted by the Civil Court to the defendant.

Question No.6

105. Section 17 of the Act has two sub-sections which engrafttwo independent rights. According to sub-section (1) notwithstandinganything contained in any other law for the time being in force, everywoman in domestic relationship shall have the right to reside in theshared household, whether or not she has any right, title or beneficialinterest in the same. This right has been expressly granted to everywoman in domestic relationship to fulfill the purpose and objective of theAct. Although under the statute regulating personal law the woman hasright to maintenance, every wife has right of maintenance which mayinclude right of residence, the right recognized by sub-section (1) ofSection 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 bysub-section (2), i.e., “save in accordance with the procedure establishedby law”. Sub-section (2) of Section 17, thus, contemplates that aggrievedperson can be evicted or excluded from the shared household inaccordance with the procedure established by law. What is the meaningand extent of expression “save in accordance with the procedureestablished by law” is question which has come up for consideration inthis appeal. Whether the suit filed by the plaintiff for mandatory andpermanent injunction against the defendant in the Civil Court is coveredby the expression “save in accordance with the procedure establishedby law”. We may further notice that the learned Magistrate while passingthe interim order on 26.11.2016 in favour of the defendant on herapplication filed under Section 12 has directed that “the respondent shallnot alienate the alleged shared household nor would they dispossess thecomplainant or their children from the same without orders of aCompetent Court”. The Magistrate, thus, has provided that withoutthe orders of Competent Court the applicant (respondent herein) shouldnot be dispossessed. In the present case, interim order specificallycontemplates that it is only by the order of the Competent Court respondentshall be dispossessed.

A107. We may take an example, where final order has beenpassed by the Magistrate under Section 12. What is the nature and lifeof the said order? Section 25(2) itself contemplates an eventuality whenorder passed under the Act can be altered, modified or revoked. Section25(2) provides:B“Section 25. Duration and alteration of orders.-

(1)xxxxxxxxx

(2) If the Magistrate, on receipt of an application from theaggrieved person or the respondent, is satisfied that there is achange in the circumstances requiring alteration, modification orCrevocation of any order made under this Act, he may, for reasonsto be recorded in writing pass such order, as he may deemappropriate.”

108. Whether apart from powers of Magistrate under Section25(2) of the Act, 2005, the Act, 2005 contemplates any other eventuality

Dwhen despite the order of residence under Section 19 an aggrieved personcan be evicted or dispossessed.

109. The right to reside in shared household as granted by Section17 itself contemplates an exception in express words, i.e., “save inaccordance with the procedure established by law”.

110. The procedure prescribed for proceedings under Section 19as provided in Section 28 of the Act is as per the provisions of the Codeof Criminal Procedure, 1973. Section 28 of the Act, 2005, provides asfollows:-

“28. Procedure.- (1) Save as otherwise provided in this Act, allFproceedings under sections 12, 18,19,20,21,22 and 23 and offencesunder section 31 shall be governed by the provisions of the Codeof Criminal Procedure, 1973(2 of 1974).

(2) Nothing in sub-section (1) shall prevent the court from layingdown its own procedure for disposal of an application under sectionG12 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”. Rule5 deals with Domestic Incident Report which is to be submitted byprotection officer in Form I. The Form I is part of Rule which containsH

details in various columns to enable the Magistrate to take appropriatedecision. Rule 6 provides that every application of the aggrieved personunder Section 12 shall be in Form-II or as nearly as possible thereto.Form-II is again part of Rule which contains various details includingorders required, residence orders, under Section 19, monetary relief underSection 20, details of previous litigation, if any, and other details to enablethe Magistrate to take appropriate decision. Rule 6 sub-Rule (4) providesthat for obtaining an interim ex-parte order under Section 23, an affidavitis to be filed in Form-III. The Form-III is an affidavit of an aggrievedperson or the person filing affidavit on behalf of his ward, daughter, etc.The Act and the Rules thus provide for procedure and manner of filingan application for obtaining relief under Act, 2005. The Act, 2005, is anspecial Act which provides for manner and procedure for obtaining reliefby an aggrieved person.

112. The provision of Section 145 of Cr.P.C. in this context maybe noticed. Section 145 of Cr.P.C. provides for procedure where disputeconcerning land or water is likely to cause breach of peace. Under Section145 Cr.P.C. in case Magistrate is satisfied that dispute likely to causea breach of the peace exists, he may require the parties to attend theCourt and to decide whether any and which of the parties was, at thedate of the order made by him under sub-section (1), in possession ofthe subject of dispute. Sub-section (6) of Section 145 Cr.P.C. contemplatesissuance of the order by the Magistrate declaring such party to be entitledto such possession. Sub-section (6), however, contemplates that theparties to be entitled to possession thereof until evicted therefrom indue course of law. The eviction in due course of law was contemplatedto be by competent court.113. This Court had occasion to consider the expression “untilevicted 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 Section145 Cr.P.C. is to provide speedy and summary remedy so as to preventa breach of the peace by submitting the dispute to the ExecutiveMagistrate for resolution as between the parties disputing the questionof possession over the property. This Court held that the unsuccessfulparty in proceedings under Section 145 Cr.P.C. ought to sue for recoveryof possession seeking decree or order for restoration of possession.In paragraph 12 following was laid down:

A“12. What is an eviction “in due course of law” within the meaningof Sub-section (6) of Section 145 of the Code? Does it mean asuit or proceedings directing restoration of possession betweenthe parties respectively unsuccessful and successful in proceedingsunder Section 145 or any order of competent court which thoughnot expressly directing eviction of successful party, has the effectBof upholding the possession or entitlement to possession of theunsuccessful party as against the said successful party. In ouropinion, which we would buttress by reasons stated shortlyhereinafter, ordinarily party unsuccessful in proceedings underSection 145 ought to sue for recovery of possession seeking aCdecree or order for restoration of possession. However, partythough unsuccessful in proceedings under Section 145 may stillbe able to successfully establish before the competent court thatit was actually in possession of the property and is entitled toretain the same by making out strong case demonstrating thefinding of the Magistrate to be apparently incorrect.”D

114. This Court further held that finding recorded by the Magistrateunder Section 145 Cr.P.C. does not bind when the matter comes foradjudication before competent court. This Court explained expression“until evicted therefrom in due course of law” mean “any court whichhas jurisdictional competence to decide the question of title or rights toEthe property or entitlement to possession”. In paragraph 17 of thejudgment following was observed:

“17………………The words ‘until evicted therefrom in duecourse of law’ as occurring in Sub-section (6) of Section 145'mean the eviction of the party successful before the Magistrate,Fconsequent upon the adjudication of title or right to possession bya competent court; that does not necessarily mean decree ofeviction. The party unsuccessful before the Magistrate may disputethe correctness of the finding arrived at by the Magistrate and isat liberty to show before the competent court that it had notGdispossessed the successful party or that it is the unsuccessfulparty and not the successful party who was actually in possessionand the finding to the contrary arrived at by the Magistrate waswholly or apparently erroneous and unsustainable in law.”

115. Summarising the law in the context of Sections 145 and 146HCr.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 asfollows:

“23. For the purpose of legal proceedings initiated before acompetent court subsequent to the order of an ExecutiveMagistrate under Sections 145/146 of the Code of CriminalProcedure, the law as to the effect of the order of the Magistratemay be summarized as under:-

(1) The words ‘competent court’ as used in Sub-section (1) ofSection 146 of the code do not necessarily mean civil courtonly. competent court is one which has the jurisdictionalcompetence to determine the question of title or the rights ofthe parties with regard to the entitlement as to possession overthe property forming subject matter of proceedings before theExecutive Magistrate;

(2) party unsuccessful in an order under Section 145(1) wouldinitiate proceedings in competent court to establish itsentitlement to possession over the disputed property againstthe successful party, Ordinarily, relief of recovery ofpossession would be appropriate to be sought for. In legalproceedings initiated before competent court consequent uponattachment under Section 146(1) of the Code it is not necessaryto seek relief of recovery of possession. As the property isheld custodia legis by the Magistrate for and on behalf of theparty who would ultimately succeed from the court it wouldsuffice if only determination of the rights with regard to theentitlement to the possession is sought for. Such suit shall notbe bad for not asking for the relief of possession.

(3) decision by criminal court does not bind the civil courtwhile decision by the civil court binds the criminal court. Anorder passed by the Executive Magistrate in proceedings underSections 145/146 of the Code is an order by criminal courtand that too based on summary enquiry. The order is entitledto respect and weight before the competent court at theinterlocutory stage. At the stage of final adjudication of rights,which would be on the evidence adduced before the court, theorder of the Magistrate is only one out of several pieces ofevidence.

260SUPREME COURT REPORTS

[2020] 12 S.C.R.

116. Drawing the analogy from the above case, we are of theopinion that the expression “save in accordance with the procedureestablished by law”, in Section 17(2) of the Act, 2005 contemplates theproceedings in court of competent jurisdiction. Thus, suit for mandatoryand permanent injunction/eviction or possession by the owner of theCproperty is maintainable before Competent Court. We may furthernotice that in sub-section (2) the injunction is “shall not be evicted orexcluded from the shared household save in accordance with procedureestablished by law”. Thus, the provision itself contemplates adopting ofany procedure established by law by the respondent for eviction orDexclusion of the aggrieved person from the shared household. Thus, inappropriate case, the competent court can decide the claim in properlyinstituted suit by the owner as to whether the women need to be excludedor evicted from the shared household. One most common example foreviction and exclusion may be when the aggrieved person is providedsame level of alternate accommodation or payment of rent asEcontemplated by Section 19 sub-section (f) itself. There may be caseswhere plaintiff can successfully prove before the Competent Court thatthe claim of plaintiff for eviction of respondent is accepted. We need notponder for cases and circumstances where eviction or exclusion can beallowed or refused. It depends on facts of each case for which no furtherFdiscussion is necessary in the facts of the present case. The High Courtin the impugned judgment has also expressed opinion that suit filed bythe plaintiff cannot be held to be non-maintainable with which conclusionwe are in agreement.

117. In case, the shared household of woman is tenanted/Gallotted/licensed accommodation where tenancy/ allotment/license is inthe name of husband, father-in-law or any other relative, the Act, 2005does not operate against the landlord/lessor/licensor in initiating anappropriate proceedings for eviction of the tenant/allottee/licensee quathe shared household. However, in case the proceedings are due to anycollusion between the two, the woman, who is living in the sharedH

household has right to resist the proceedings on all grounds which thetenant/lessee/licensee could have taken in the proceedings. The embargounder Section 17(2) of Act, 2005 of not to be evicted or excluded save inaccordance with the procedure established by law operates only againstthe “respondent”, i.e., one who is respondent within the meaning ofSection 2(q) of Act, 2005.

Question No.7

118. Learned counsel for the appellant challenging the directionissued by the High Court that the husband of respondent be impleadedby the Trial Court by invoking suo moto powers under Order I Rule 10CPC, submits that no relief having been claimed against the son of theappellant, he (son) was neither necessary nor proper party. Learnedcounsel for the appellant has relied on the judgments of this Court inRazia Begum Vs. Sahebzadi Anwar Begum and others, AIR 1958SC 886 and Ramesh Hirachand Kundanmal Vs. MunicipalCorporation of Greater Bombay and others, (1992) 2 SCC 524.Latter judgment of this Court discussing judgment of Razia Begum haslaid down following in paragraphs 10 and 12:

“10. The power of the Court to add parties under Order IRule 10, CPC, came up for consideration before this Court inRazia Begum (supra). In that case it was pointed out that theCourts in India have not treated the matter of addition of partiesas raising any question of the initial jurisdiction of the Court andthat it is firmly established as result of judicial decisions that inorder that person may be added as party to suit, he shouldhave direct interest in the subject-matter of the litigation whetherit be the questions relating to moveable or Immovable property.

12. Sinha, J. speaking for the majority said that declaratoryjudgment in respect of disputed status will be binding not onlyupon parties actually before the Court but also upon personsclaiming through them respectively. The Court laid down the lawthat in suit relating to property in order that person may beadded as party, he should have direct interest as distinguishedfrom commercial interest in the subject-matter of the litigation.Where the subject-matter of litigation is declaration as regardsstatus or legal character, the rule of presence of direct interestmay be relaxed in suitable case where the Court is of the opinion

262SUPREME COURT REPORTS

Athat by adding that party it would be in better position effectuallyand completely to adjudicate upon the controversy.…………”

119. There can be no dispute with the preposition of law as laiddown by this Court in the above two cases. In the present case, althoughplaintiff has not claimed any relief against his son, Raveen Ahuja, theBhusband of the respondent, hence, he was not necessary party but inview of the fact that respondent has pleaded her right of residence inshared household relying on Sections 17 and 19 of the Act, 2005 and oneof the rights which can be granted under Section 19 is right of alternateaccommodation, the husband is proper party. The right of maintenanceas per the provisions of Hindu Adoption and Maintenance Act, 1956 isCthat of the husband, hence he may be proper party in cases when theCourt is to consider the claim of respondent under Sections 17 and 19read with Section 26 of the Act, 2005.120. Civil Procedure Code, Order I Rule 10 empowers the Courtat any stage of the proceedings either on an application or suo moto toDadd party either as plaintiff or defendant, whose presence before theCourt may be necessary in order to enable the Court effectively andcompletely adjudicate upon and settle all the questions involved in thesuit. The High Court in paragraph 56(i) has issued following directions:-

“56. In these circumstances, the impugned judgments cannot beEsustained and are accordingly set aside. The matters are remandedback to the Trial Court for fresh adjudication in accordance withthe directions given hereinbelow:

(i) At the first instance, in all cases where the respondent’sson/the appellant’s husband has not been impleaded, the TrialFCourt shall direct his impleadment by invoking its suo motupowers under Order I Rule 10 CPC.

XXXXXXXXXXXXXXX”

121. The above direction is little wide and preemptory. In event,the High Court was satisfied that impleadment of husband of defendantGwas necessary, the High Court itself could have invoked the power underOrder I Rule 10 and directed for such impleadment. When the matter isremanded back to the Trial Court, Trial Court’s discretion ought not tohave been fettered by issuing such general direction as noted above.The general direction issued in paragraph 56(i) is capable of beingH

misinterpreted. Whether the husband of an aggrieved person in particularcase needs to be added as plaintiff or defendant in the suit is matter,which need to be considered by the Court taking into consideration allaspects of the matter. We are, thus, of the view that direction in paragraph56(i) be not treated as general direction to the Courts to implead in allcases the husband of an aggrieved person and it is the Trial Court whichis to exercise the jurisdiction under Order I Rule 10. The direction inparagraph 56(i) are, thus, need to be read in the manner as indicatedabove.

122. Now, coming to the present case, we have already observedthat although husband of the defendant was not necessary party but inview of the pleadings in the written statement, the husband was properparty.

Question No.8

123. While noticing the facts and events of the present case, wehave noticed that in complaint filed by the respondent under Section 12of Act, 2005, an interim order was passed in her favour directing therespondent arrayed in the complaint not to dispossess the applicant withoutorders of competent court. Suit giving rise to this appeal was filedthereafter praying for mandatory and permanent injunction against thedefendant-respondent. High Court in the impugned judgment hasobserved 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 theappellant, similar observations were made by the High Court that thosejudgments do not consider the effect of initiation and pendency ofproceedings under Act, 2005.

124. What is the effect of an interim order or final order passedunder Section 19 of the Act, 2005 on civil proceeding initiated in acourt of competent jurisdiction, is question, which need to be answered?Whether in view of the pendency of proceedings under the D.V. Actany proceedings could not have been initiated in Civil Court of competentjurisdiction or whether the orders passed under D.V. Act giving right ofresidence by interim or final order are binding in Civil Court proceedingsand Civil court could not have taken any decision contrary to directionsissued in D.V. Act are the related questions to be considered.

A125. Section 17(2) itself contemplates eviction or exclusion ofaggrieved person from shared household in accordance with theprocedure established by law. The conclusion is inescapable that aproceeding in competent court for eviction or exclusion is contemplatedby the Statutory Scheme of Act, 2005. Thus, there is neither any expressnor implied bar in initiation of civil proceedings in Court of competentBjurisdiction. Further, Section 26 also contemplate grant of relief of rightof residence under Section 19 in any legal proceedings before CivilCourt or Family Court or Criminal Court affecting the aggrieved person.The proceedings might be initiated by aggrieved person or against theaggrieved person herself before or after the commencement of Act,C2005. Thus, initiation of the proceedings in Civil Court and relief availableunder Section 19 of the Act, 2005 is contemplated by the statutory schemedelineated by the Act, 2005. There may be also instances where conflictmay arise in the orders issued under D.V. Act, 2005 as well as thejudgment of Civil Court. What is the effect of such conflict in the decisionis another related issue which needs to be answered? Whether theDprinciple of res judicata can be pressed in respect to any decision interparties in respect to criminal and civil proceedings?

126. The applicability of principle of res judicata is well knownand are governed by provisions of Section 11 C.P.C., which principlealso has been held to be applicable in other proceedings. There can beEno applicability of principle of res judicata when orders of Criminal Courtsare pitted against proceedings in Civil Court. With regard to criminalproceedings Code of Criminal Procedure also contains provision that aperson who has once been tried by Court of competent jurisdiction foran offence and convicted or acquitted of such offence shall, while suchFconviction or acquittal remains in force, not be liable to be tried again forthe same offence nor on the same facts for any other offence. Theprinciple enumerated in Section 300 Cr.P.C. may be relevant with respectto two criminal proceedings against same accused, which might have norelevance in reference to one criminal proceeding and one civilproceeding.G

127. Sections 40 to 44 of the Indian Evidence Act, 1872 whichdeal with “judgments of Courts of justice when relevant” throwconsiderable 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 second suit ortrial.—The existence of any judgment, order or decree which bylaw prevents any Court from taking cognizance of suit or holdinga trial, is relevant fact when the question is whether such Courtought to take cognizance of such suit or to hold such trial.

41. Relevancy of certain judgments in probate, etc.,jurisdiction.— final judgment, order or decree of competentCourt, in the exercise of probate, matrimonial, admiralty orinsolvency jurisdiction, which confers upon or takes away fromany person any legal character, or which declares any person tobe entitled to any such character, or to be entitled to any specificthing, not as against any specified person but absolutely, is relevantwhen the existence of any such legal character, or the title of anysuch person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof—

that any legal character which it confers accrued at the time whensuch judgment, order or decree came into operation;

that any legal character, to which it declares any such person tobe 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 personceased at the time from which such judgment, order or decreedeclared that it had ceased or should cease;

and that anything to which it declares any person to be so entitledwas the property of that person at the time from which suchjudgment, order or decree declares that it had been or should behis 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, arerelevant if they relate to matters of public nature relevant to theenquiry; but such judgments, orders or decrees are not conclusiveproof of that which they state.

A43. Judgments, etc., other than those mentioned in Sections40 to 42, when relevant.—Judgments, orders or decrees, otherthan those mentioned in Sections 40, 41 and 42, are irrelevant,unless the existence of such judgment, order or decree, is factin issue, or is relevant under some other provision of this Act.

B44. Fraud or collusion in obtaining judgment, or—incompetency of Court, may be proved.Any party to suitor other proceeding may show that any judgment, order or decreewhich is relevant under Section 40, 41 or 42, and which has beenproved by the adverse party, was delivered by Court notcompetent to deliver it, or was obtained by fraud or collusion.”C

128. Section 40 renders admissible judgments which operate asplacing any bar on suit or trial as plea of res judicata or otherwiseunder some rule of law. The scheme of D.V. Act, 2005 does notcontemplate that any judgment and order passed under Section 19 of thesaid Act prevents any court from taking cognizance of suit or holdingDof trial; Section 41 deals with relevancy of certain judgments in probate,matrimonial, admirality and insolvency jurisdiction which are conclusivenot only against party but against all the world. This Section enumeratesfour classes of judgments. decree of Civil Court in exercise ofmatrimonial jurisdiction is also one of the judgments which had beenEheld to be relevant under Section 41. The orders passed under Act, 2005cannot be held to be orders or judgments passed in exercise of anymatrimonial jurisdiction by the Court. The Act, 2005 is special act onthe subject of providing for effective protection of the rights of womenwho are victims of violence of any kind.

F129. Section 42 deals with admissibility of judgments relevant tomatters of public nature though not between the parties and privy butsuch judgments, orders or decree are not conclusive proof of that theystate. Section 43 says that judgment other than those mentioned inSections 40 to 42 are irrelevant unless the existence of judgment, orderor decree is fact in issue or is relevant under some other provisions ofGthe Act. In the facts of the present case, where there are pleadings inthe suit in question regarding proceeding under Section 12 the existenceof orders passed under Act, 2005 are relevant and admissible in CivilProceedings.

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

131. The procedure to be followed by the magistrate is providedunder 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 offencesunder Section 31 shall be governed by the provisions of the Code ofCriminal Procedure, 1973. Even sub-section (2) of Section 28 providesthat the magistrate can lay down its own procedure for disposal of anapplication under Section 12 or under sub-section (2) of Section 23.However, for other proceedings, the procedure is to be followed as perthe provisions of the Code of Criminal Procedure, 1973. The procedureto be followed under Section 125 shall be as per Section 126 of theCr.P.C. which includes permitting the parties to lead evidence. Therefore,before passing any orders under the D.V. Act, the parties may bepermitted to lead evidence. However, before any order is passed underSection 12, the magistrate shall take into consideration any domesticincident report received by him from the protection officer or the serviceprovider. That does not mean that magistrate can pass orders solelyrelying upon the domestic incident report received by him from theprotection officer or the service provider. Even as per Section 36 of theD.V. Act, the provisions of the D.V. Act shall be in addition to, and notin derogation of the provisions of any other law, for the time being inforce. Even the magistrate can also pass an interim order as per Section23 of the D.V. Act.

132. Considering Section 12(2) and Section 26(3), read withSection 25(2), even the Legislature envisaged the two independentproceedings, one before the magistrate under the D.V. Act and anotherproceeding other than the proceedings under the D.V. Act.

133. Even the Civil Court has to take into consideration the reliefalready 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 caseany relief available under Sections 18, 19, 20, 21 and 22 is sought byaggrieved person in any legal proceedings before civil court, familycourt or criminal court including the residence order, the aggrievedperson has to satisfy by leading evidence that domestic violence hastaken place and only on the basis of the evidence led on being satisfiedthat the domestic violence has taken place, the relief available underSection 19 can be granted as Section 19(1) specifically provides thatwhile disposing of an application under sub-Section 1 of Section 12, the

Amagistrate 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 passingthe order of residence under Section 19, more particularly under sub-section 19(1)(b) as per the proviso to Section 19(1), no order underBclause(b) shall be passed against any person who is 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 theproceedings under the D.V. Act and proceedings before civil court,family court or criminal court, as mentioned in Section 26 of the D.V.CAct are independent proceedings, like the proceedings under Section125 of the Cr. P.C. for maintenance before the Magistrate and/or familycourt and the proceedings for maintenance before civil court/ familycourt for the reliefs under the Hindu Adoption and Maintenance Act.However, as observed hereinabove, the findings/orders passed by theone forum has to be considered by another forum.D

137. Now, we proceed to examine effect of orders passed undercriminal proceedings, i.e., Act, 2005 on the civil proceedings andconsequence of any conflict in proceedings under D.V. Act as well ascivil proceedings.

E138. We make it clear that in the present case we are called uponto examine the consequences and effect of orders passed under Section19 of D.V. Act, 2005 on civil proceedings in court of competentjurisdiction. Thus, our consideration and exposition are limited qua orderspassed under Section 19 of D.V. Act only, i.e., conflict between orderspassed in criminal proceeding on civil proceeding.F

139. We may first notice the judgment of Constitution Bench ofthis 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 beprosecuted for perjury under Section 193 IPC, which was directed byHigh Court after an inquiry. Appeal was filed against the order of theGHigh Court directing the filing of complaint for perjury. The complainanthad also filed suit for damages for wrongful confinement against theappellants, who were accused, who were alleged to have illegally detainedthe complainant. One of the questions, which arose for considerationbefore this Court was that which proceeding should be stayed, i.e.,prosecution under Section 193 or suit for damages for wrongfulH

confinement. In the above context, following observations were madeby the Constitution Bench in paragraph 15:-

“15. As between the civil and the criminal proceedings we are ofthe opinion that the criminal matters should be given precedence.There is some difference of opinion in the High Courts of India onthis point. No hard and fast rule can be laid down but we do notconsider that the possibility of conflicting decisions in the civil andcriminal courts is relevant consideration. The law envisagessuch an eventuality when it expressly refrains from making thedecision of one court binding on the other, or even relevant, exceptfor certain limited purposes, such as sentence or damages. Theonly relevant consideration here is the likelihood ofembarrassment.”

140. In the above case, this Court had observed that possibility ofconflicting decisions in the civil and criminal courts was not relevantconsideration. This Court had further observed that “The law envisagessuch an eventuality when it expressly refrains from making the decisionof one court binding on the other, or even relevant, except for certainlimited purposes……….”

141. This Court in M.S. Sheriff (supra), directed that civil suitsshould be stayed till the criminal proceedings have finished. The issuebefore the Constitution Bench was limited as of stay of one out of twoproceedings. In the present proceedings, we are not faced with anyquestion regarding stay of any of the proceedings”, however, “factum ofpossibility of conflicting decisions” was noticed by this Court qua civiland criminal proceedings which is possible and probable consequenceof decision taken in two proceedings.

142. We may notice judgment of this Court dealing with Section43 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 hadoccasion to consider the relevancy of the effect and consequence of anorder passed by Deputy Registrar of Cooperative Society in suit filedfor partition of joint family property, which was sold in auction inconsequence of orders passed by the Deputy Registrar for the Society.The relevancy of orders of Deputy Registrar under Section 43 of theEvidence Act came to be considered and this Court noticing the principleof Section 43 of Evidence Act laid down following in paragraph 11:-

A“11. In the case now before us the appellants have attempted toprove that the debt fell within the term Avyavaharika by relyingupon the payment order and the findings given by the DeputyRegistrar in the payment order where the liability was inter aliabased on breach of trust. Any opinion given in the order of theDeputy Registrar as to the nature of the liability of Defendant 1BM.B. Jakati cannot be used as evidence in the present case todetermine whether the debt was Avyavaharika or otherwise. Theorder is not admissible to prove the truth of the facts therein statedand except that it may be relevant to prove the existence of thejudgment itself, it will not be admissible in evidence. Section 43 ofCthe Evidence Act, the principle of which is that judgments exceptingthose upon questions of public and general interest, judgment inrem or when necessary to prove the existence of judgment,order or decree, which may be fact in issue areirrelevant………………………”

D143. We may notice Three Judge Bench judgment of this Courtin K.G. Premshankar Vs. Inspector of Police and Anr., (2002) 8SCC 87 in which case this Court had occasion to consider the effect ofdecision of civil court on the criminal proceeding. This Court had alsooccasion to consider Sections 40 to 43 of Indian Evidence Act in the saidjudgment. The Three Judge Bench was answering the reference madeEon 09.11.1998 by which an earlier judgment of this Court in V.M. ShahVs. State of Maharashtra (1995) 5 SCC 767 required reconsideration.This Court in V.M. Shah’s case had laid down that “the finding recordedby the criminal court stands superseded by the finding recorded by thecivil court” thereby the finding of civil court got precedence over theFfinding 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 proceeding under Section 482 Cr.P.C. for quashing theprosecution, which was rejected, against which matter was taken to thisCourt. The complainant had also filed suit for damages for the allegedGact before the civil court, which suit was pending in the trial court at thestage of framing of issues. Submission, which was raised before thiscourt was that the High Court ought to have dropped the prosecutionagainst the appellants as the civil court has dismissed the suit, i.e., suitfor damages filed against the appellants. The submission of the appellantsHwas refuted by learned Additional Advocate General, who relied on

Sections 41, 42 and 43 of the Evidence Act. It was contended that previousproceedings are relevant only to limited extent and criminal proceedingsare not required to be dropped as soon as decree is passed in the civilsuit. The submission of learned Additional Advocate General has beennoticed in paragraph 15 of the judgment. This Court accepted thesubmission of the learned Additional Advocate General. Paragraphs 15and 16 of the judgment are as follows:-

“15. Learned Additional Solicitor-General Shri Altaf Ahmedappearing for the respondents submitted that the observation madeby this Court in V.M. Shah case [(1995) 5 SCC 767 : 1995 SCC(Cri) 1077] that

“the finding recorded by the criminal court, stands supersededby the finding recorded by the civil court and thereby the findingof the civil court gets precedence over the finding recorded bythe criminal court”

(SCC p. 770, para 11)

is against the law laid down by this Court in various decisions. Forthis, he rightly referred to the provisions of Sections 41, 42 and 43of the Evidence Act and submitted that under the Evidence Act towhat extent judgments given in the previous proceedings arerelevant is provided and therefore it would be against the law if itis held that as soon as the judgment and decree is passed in civilsuit the criminal proceedings are required to be dropped if the suitis decided against the plaintiff who is the complainant in the criminalproceedings.16. In our view, the submission of learned Additional Solicitor-General requires to be accepted. Sections 40 to 43 of the EvidenceAct provide which judgments of courts of justice are relevant andto what extent. Section 40 provides for previous judgment, orderor decree which by law prevents any court while takingcognizance of suit or holding trial, to be relevant fact whenthe question is whether such court ought to take cognizance ofsuch suit or to hold such trial. Section 40 is as under:

“40. Previous judgments relevant to bar second suit or trial.—The existence of any judgment, order or decree which by lawprevents any court from taking cognizance of suit or holdinga trial, is relevant fact when the question is whether such

Acourt ought to take cognizance of such suit or to hold suchtrial.”

144. This Court noticing the Constitution Bench judgment in M.S.Sheriff (supra) and few other judgments had recorded its conclusion inparagraph 30 to the following effect:-B

“30. What emerges from the aforesaid discussion is — (1) theprevious judgment which is final can be relied upon as providedunder Sections 40 to 43 of the Evidence Act; (2) in civil suitsbetween the same parties, principle of res judicata may apply;(3) in criminal case, Section 300 CrPC makes provision thatConce person is convicted or acquitted, he may not be tried againfor the same offence if the conditions mentioned therein aresatisfied; (4) if the criminal case and the civil proceedings are forthe same cause, judgment of the civil court would be relevant ifconditions of any of Sections 40 to 43 are satisfied, but it cannotbe said that the same would be conclusive except as provided inDSection 41. Section 41 provides which judgment would beconclusive proof of what is stated therein.”

145. This Court ultimately held that civil proceedings as well ascriminal proceedings are required to be decided on the facts and evidencesbrought on the record by the parties. Paragraphs 32, 33 and 34, whichEare relevant, are quoted below:-

“32. In the present case, the decision rendered by the ConstitutionBench in M.S. Sheriff case [AIR 1954 SC 397] would be binding,wherein it has been specifically held that no hard-and-fast rulecan be laid down and that possibility of conflicting decision in civilFand criminal courts is not relevant consideration. The lawenvisages

“such an eventuality when it expressly refrains from makingthe 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 courtstands superseded by the finding recorded by the civil court is notcorrect enunciation of law. Further, the general observations madein Karam Chand case [(1970) 3 SCC 694] are in context of theHfacts 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 ofthe Evidence Act.

34. In the present case, after remand by the High Court, civilproceedings as well as criminal proceedings are required to bedecided on the evidence, which may be brought on record by theparties.”

146. We have noticed above judgment of this Court in ShantiKumar Panda (supra) while considering the provisions under Sections145 and 146 Cr.P.C. in context of suit filed in court of competentjurisdiction in paragraphs 15 and 21 following was laid down:-

“15. It is well settled that decision by criminal courtdoes not bind the civil court while decision by the civil courtbinds the criminal court. (See Sarkar on Evidence, 15th Edn., p.845.) decision given under Section 145 of the Code has relevanceand is admissible in evidence to show: (i) that there was disputerelating to particular property; (ii) that the dispute was betweenthe particular parties; (iii) that such dispute led to the passing of apreliminary order under Section 145(1) or an attachment underSection 146(1), on the given date; and (iv) that the Magistratefound one of the parties to be in possession or fictional possessionof the disputed property on the date of the preliminary order. Thereasoning recorded by the Magistrate or other findings arrived atby him have no relevance and are not admissible in evidence beforethe competent court and the competent court is not bound by thefindings arrived at by the Magistrate even on the question ofpossession though, as between the parties, the order of theMagistrate would be evidence of possession. The finding recordedby the Magistrate does not bind the court. The competent courthas jurisdiction and would be justified in arriving at findinginconsistent with the one arrived at by the Executive Magistrateeven on the question of possession. Sections 145 and 146 onlyprovide for the order of the Executive Magistrate made underany of the two provisions being superseded by and giving way tothe order or decree of competent court. The effect of theMagistrate’s order is that burden is thrown on the unsuccessfulparty to prove its possession or entitlement to possession beforethe competent court.

A21. The order of the Magistrate under Sections 145/146 ofthe Code is not only an order passed by the criminal court but isalso one based on summary enquiry. The competent court in anysubsequent proceedings is free to arrive at its own findings basedon the evidence adduced before it on all the issues arising fordecision before it. At the stage of judgment by the civil court theBorder of the Magistrate shall have almost no relevance except forthe purpose of showing that an enquiry held by the Magistratehad resulted into the given declaration being made on particulardate. The competent court would be free to record its own findingsbased on the material before it even on the question of possessionCwhich may be inconsistent with or contrary to the findings arrivedat by the Magistrate.”

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

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

“32. Coming to the last contention that an effort should bemade to avoid conflict of findings between the civil and criminalFcourts, it is necessary to point out that the standard of proof requiredin the two proceedings are entirely different. Civil cases aredecided on the basis of preponderance of evidence while in acriminal case the entire burden lies on the prosecution and proofbeyond reasonable doubt has to be given. There is neither anystatutory provision nor any legal principle that the findings recordedGin 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 evidenceadduced therein………………

XXXXXXXXXXXXXXXX”

149. In Seth Ramdayal Jat Vs. Laxmi Prasad, (2009) 11 SCC545, this Court had occasion to consider the provisions of Sections 41 to43 of Indian Evidence Act where this Court laid down that judgment ina criminal court is admissible for limited purpose. After noticing theprovisions of Sections 40 to 43 of Indian Evidence Act, this Court laiddown following in paragraph 13:-

“13. XXXXXXXXXXXXXX

judgment in criminal case, thus, is admissible for limitedpurpose. Relying only on or on the basis thereof, civil proceedingcannot be determined, but that would not mean that it is notadmissible for any purpose whatsoever.”

150. It was further held that decision in criminal case is notbinding in civil case. In paragraph 15, following was laid down:-

“15. civil proceeding as also criminal proceeding maygo on simultaneously. No statute puts an embargo in relationthereto. decision in criminal case is not binding on civilcourt. In M.S. Sheriff v. State of Madras [AIR 1954 SC 397], aConstitution Bench of this Court was seized with question as towhether civil suit or criminal case should be stayed in theevent both are pending. It was opined that the criminal mattershould be given precedence. In regard to the possibility of conflictin decisions, it was held that the law envisages such an eventualitywhen it expressly refrains from making the decision of one courtbinding on the other, or even relevant, except for certain limitedpurposes, such as sentence or damages. It was held that the onlyrelevant consideration was the likelihood of embarrassment.”

151. In Vishnu Dutt Sharma Vs. Daya Sapra, (2009) 13 SCC729, this Court again reiterated that judgment of criminal court incivil proceedings will have only limited application and finding in acriminal proceeding by no stretch of imagination would be binding in acivil proceeding. Referring to Section 40 of the Indian Evidence Act, thisCourt laid down following in paragraph 23:-

“23. XXXXXXXXXXXXXXXXXXXX

This principle would, therefore, be applicable, inter alia, if the suitis found to be barred by the principle of res judicata or by reasonof the provisions of any other statute. It does not lay down that

Ajudgment of the criminal court would be admissible in the civilcourt for its relevance is limited. (See Seth Ramdayal Jat v. LaxmiPrasad [(2009) 11 SCC 545]. The judgment of criminal court ina civil proceeding will only have limited application viz. inter alia,for the purpose as to who was the accused and what was theresult of the criminal proceedings. Any finding in criminalBproceeding by no stretch of imagination would be binding in civilproceeding.”

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

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

153. We take an example to further illustrate the point. In theplaint of suit giving rise to this appeal, the plaintiff has pleaded that thewife of the plaintiff has been subjected to various threat and violence inthe hands of the defendant on several occasions. In event, the suit isGfiled by wife of the plaintiff against the defendant for permanent injectionand 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 coveredby the reliefs as contemplated by Section 19 read with Section 26 of theAct, 2005.

154. By written statement, the defendant is sure to resist thesuit on the ground that she had already filed an application under Section12 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 interimorder dated 26.11.2016 restraining the respondents which includedDr. Prem Kant Ahuja from dispossessing the applicant except withoutobtaining an order of competent Court. The order dated 26.11.2016 whichwas passed by the Magistrate under D.V. Act, 2005, shall be relevantevidence and fully admissible in the civil suit, but the above order shallonly be one of the evidence in the suit but shall neither preclude the civilcourt to determine the issues raised in the suit or to grant the reliefclaimed by the plaintiff Dr. Prem Kant Ahuja. The Civil Court in suchsuit can consider the issues and may grant relief if the plaintiff is able toprove her case. The order passed under D.V. Act whether interim orfinal shall be relevant and have to be given weight as one of evidence inthe civil suit but the evidentiary value of such evidence is limited. Thefindings arrived therein by the magistrate are although not binding on theCivil Court but the order having passed under the Act, 2005, which is anspecial Act has to be given its due weight.155. We need to observe that in event judgment of criminalcourt is relevant as per Sections 40 to 43 of Evidence Act in civilproceedings, the judgment can very well be taken note of and there is noembargo on the civil court to place reliance upon it as corroborativematerial. We may notice judgment of Madras High Court inK. Subramani Vs. Director of Animal Husbandry, Chennai, (2009)1 MLJ 363 where Madras High Court has made following observationsin paragraph 7:-

“7. decision of the Criminal Court does not have theeffect of binding nature on the proceedings before the Civil Courtincluding the Motor Accident Claims Tribunal for the reason thatthe proof in both the Civil and Criminal cases are having twodifferent categories of standards. In criminal cases, guilt of theaccused must be proved beyond reasonable doubt, while in civilcases, the rights of the parties or matter in issue shall be decidedon preponderance of probabilities. If party to the case reliesupon decision of the criminal Court and insists the Civil Court togive credence to the said decision, it is incumbent upon the partyto gather further materials in the case, which would support the

Aobservations and the decisions of the criminal Court. If any materialis available in the case, which would corroborate or strengthenthe decision of the criminal Court, then, there is no embargo forthe Civil Court to place reliance upon it.”

156. We are in full agreement with the above view. There is noBembargo in referring to or relying on an admissible evidence, be of civilcourt or criminal court both in civil or criminal proceedings.157. From the above discussions, we arrive at followingconclusions:-

(i)The pendency of proceedings under Act, 2005 or any orderCinterim or final passed under D.V. Act under Section 19regarding right of residence is not an embargo for initiatingor continuing any civil proceedings, which relate to the subjectmatter of order interim or final passed in proceedings underD.V. Act, 2005.D(ii)The judgment or order of criminal court granting an interimor final relief under Section 19 of D.V. Act, 2005 are relevantwithin the meaning of Section 43 of the Evidence Act andcan be referred to and looked into by the civil court.

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

(iv) In the facts of the present case, suit filed in civil court formandatory and permanent injunction was fully maintainableand the issues raised by the appellant as well as by theFdefendant claiming right under Section 19 were to beaddressed and decided on the basis of evidence, which is ledby the parties in the suit.

158. In view of the foregoing discussions, we are of the consideredopinion that High Court has rightly set aside the decree of the TrialGCourt and remanded the matter for fresh adjudication. With theobservations as above, the appeal is dismissed. No Costs.

Devika Gujral