PRABHA TYAGI versus KAMLESH DEVI

[2022] 5 S.C.R. 970

[2022] 5 S.C.R.

PRABHA TYAGI

KAMLESH DEVI

(Criminal Appeal No. 511 of 2022)

BMAY 12, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Protection of Women from Domestic Violence Act, 2005:

ss.12, 17, 19, 22 – Domestic violence – Allegations of, by theCaggrieved person-wife – Death of the husband within one month ofthe marriage in car accident – Birth of daughter within year ofmarriage – After the husband’s death, aggrieved person torturedand harassed by her mother-in-law and her matrimonial family, andwas forced to leave her matrimonial home – She started working tosupport herself and her child – Issuance of notice to the respondentsDto return her stridhana but there was no response – Aggrieved personthen filed an application u/s. 12 before the Magistrate seekingprotection orders, residence orders and compensation orders as alsomonetary reliefs – Magistrate partly allowed the application directingthe respondents to pay Rs.10,000/- as monetary compensation forEinsulting and maligning the aggrieved person; that the articles ofStridhana mentioned in the list, except the Maruti (Alto) Car, to begiven to the aggrieved person; and that the respondents would notobstruct the aggrieved person and her daughter from enjoying theproperty of her husband – First appellate court set aside the orderof the trial court – High Court upheld the same – Sustainability ofF– Held: Not sustainable – Order passed by the trial court restored.

ss. 12, 18-20 and 22 – Consideration of the Domestic IncidentReport filed by Protection Officer or service provider by theMagistrate before passing orders under the D.V. Act, if mandatory– Held: s. 12 does not make it mandatory for Magistrate toGconsider Domestic Incident Report filed by Protection Officeror service provider before passing any order under the D.V. Act –Even in the absence of Domestic Incident Report, Magistrate isempowered to pass both ex parte or interim as well as final orderunder the provisions of the D.V. Act – Aggrieved person can directlyHmake an application to the jurisdictional Magistrate by herself or

by engaging the services of an Advocate - Although, the expression‘shall’ is used in the proviso to s.12, it is restricted to only thosecases where Protection Officer or service provider files anyDomestic Incident Report.

ss. 12 and 17 – Allegations of domestic violence by aggrievedperson – Relief under the DV Act - Requirement of such aggrievedperson to reside with those persons against whom the allegationshave been levelled at the point of commission of violence, ifmandatory – Held: It is not mandatory for the aggrieved person,when she is related by consanguinity, marriage or through arelationship in the nature of marriage, adoption or are familymembers living together as joint family, to actually reside withthose persons against whom the allegations have been levelled atthe time of commission of domestic violence – If woman has theright to reside in the shared household u/s.17 and such womanbecomes an aggrieved person, she can seek reliefs under theprovisions of D.V. Act including enforcement of her right to live in ashared household.s. 12 – Relief sought under the DV Act by the aggrieved person– Requisite relationship between the aggrieved person and theperson against whom the relief is claimed – Held: There should bea subsisting domestic relationship between the aggrieved personand the person against whom the relief is claimed vis-à-vis allegationof domestic violence – However, it is not necessary that at the timeof filing of an application by an aggrieved person, the domesticrelationship should be subsisting – Even if an aggrieved person isnot in domestic relationship with the respondent in sharedhousehold at the time of filing of an application u/s. 12 but has atany point of time lived so or had the right to live and has beensubjected to domestic violence or is later subjected to domesticviolence on account of the domestic relationship, is entitled to filean application u/s 12 of the Act.

Object and purpose of the D. V. Act – Explained.

Interpretation of statutes: Proviso of the main provision –Construction and interpretation of – General principles – Explained.

Words and Phrases:

ABCD

Expression ‘aggrieved person’ – Meaning of, in the contextof s. 2(a) of the Protection of Women from Domestic Violence Act,2005.

Expression ‘domestic relationship’ – Meaning of, in the contextof s. 2(f) of the Protection of Women from Domestic Violence Act,B2005.

Expression ‘shared household’ – Meaning of, in the contextof s. 2(s) of the Protection of Women from Domestic Violence Act,2005.

Expression ‘family members’ – Meaning of, in the context ofCthe Protection of Women from Domestic Violence Act, 2005.

Allowing the appeal, the Court

HELD: 1.1 Section 12 of the Protection of Women fromDomestic Violence Act, 2005 does not make it mandatory for aDMagistrate to consider Domestic Incident Report filed by aProtection Officer or service provider before passing any orderunder the D.V. Act. It is clarified that even in the absence of aDomestic Incident Report, Magistrate is empowered to passboth ex parte or interim as well as final order under theprovisions of the D.V. Act. [Para 52][1031-G-H; 1032-A]

1.2 It is not mandatory for the aggrieved person, when sheis related by consanguinity, marriage or through relationship inthe nature of marriage, adoption or are family members livingtogether as joint family, to actually reside with those personsagainst whom the allegations have been levelled at the time ofFcommission of domestic violence. If woman has the right toreside in the shared household under Section 17 of the D.V. Actand such woman becomes an aggrieved person or victim ofdomestic violence, she can seek reliefs under the provisions ofD.V. Act including enforcement of her right to live in sharedhousehold. [Para 52][1032-B-D]G

1.3 There should be subsisting domestic relationshipbetween the aggrieved person and the person against whom therelief is claimed vis-à-vis allegation of domestic violence.However, it is not necessary that at the time of filing of an

application by an aggrieved person, the domestic relationshipshould be subsisting. In other words, even if an aggrieved personis not in domestic relationship with the respondent in sharedhousehold at the time of filing of an application under Section 12of the D.V. Act but has at any point of time lived so or had theright to live and has been subjected to domestic violence or islater subjected to domestic violence on account of the domesticrelationship, is entitled to file an application under Section 12 ofthe Act. [Para 52][1032-E-F]2. The D. V. Act is piece of Civil Code which is applicableto every woman in India irrespective of her religious affiliationand/or social background for more effective protection of herrights guaranteed under the Constitution and in order to protectwomen victims of domestic violence occurring in domesticrelationship. Therefore, the expression ‘joint family’ cannot meanas understood in Hindu Law. Thus, the expression ‘familymembers living together as joint family’, means the membersliving jointly as family. In such an interpretation, even girlchild/children who is/are cared for as foster children also have aright to live in shared household and are conferred with theright under Sub-Section (1) of Section 17 of the D.V. Act. Whensuch girl child or woman becomes an aggrieved person, theprotection of Sub-Section (2) of Section 17 comes into play. [Para36][1011-C-E]

Smt. Bharati Naik v. Shri Ravi Ramnath Halarnkar andAnother 2010 SCC Online Bom 243; Vandhana v.T. Srikanth and Krishnamachari 2007 SCC Online Mad553 – referred to.

3. As regards, the issue ‘whether it is mandatory for theaggrieved person to reside with those persons against whom theallegations have been levelled’, it is not mandatory for theaggrieved person to have actually lived or resided with thosepersons against whom the allegations have been levelled at thetime of seeking relief. If woman has the right to reside in ashared household, she can accordingly enforce her right underSection 17(1) of the D.V. Act. If woman becomes an aggrievedperson or victim of domestic violence, she can seek relief underthe provisions of the D.V. Act including her right to live or reside

Ain the shared household under Section 17 read with Section 19 ofthe D.V. Act. Thus, the appellant had the right to live in sharedhousehold i.e., her matrimonial home and being victim ofdomestic violence could enforce her right to live or reside in theshared household under the provisions of the D.V. Act and toseek any other appropriate relief provided under the D.V. Act.BThis is irrespective of whether she actually lived in the sharedhousehold. [Paras 40 and 41][1014-B-D]

4.1 As regards, the issue ‘whether there should be asubsisting domestic relationship between the aggrieved personand the person against whom the relief is claimed’, the expressionC‘domestic relationship’ is an expansive one and means therelationship between two persons who live or have at any pointof time lived together in shared household when they are relatedby consanguinity; marriage; through relationship in the natureof marriage; adoption; are family members living together as aDjoint family. The expressions ‘consanguinity’,‘marriage’ and‘adoption’ are well understood concepts both in common law aswell as in the respective personal law applicable to the parties.However, it is relevant to note the expression ‘marriage’ alsoencompasses relationship in the nature of marriage. Secondly,the expression ‘adoption’ also takes into consideration familyEmembers living together as joint family. [Para 42][1014-E-G]

D. Velu Samy v. D. Patchaiammal (2010) 10 SCC 469 :[2010] 13 SCR 706; Indra Sarma v. V. K. V. Sarma(2013) 15 SCC 755 : [2013] 14 SCR 1019 – referredto.

4.2 The expression ‘family members living together as ajoint family’ is not relatable only to relationship throughconsanguinity, marriage or adoption. The expression ‘joint family’does not mean joint family as understood in Hindu Law. It wouldmean persons living together jointly as family. It would includeGnot only family members living together when they are relatedby consanguinity, marriage or adoption but also those personswho are living together or jointly as joint family such as fosterchildren who live with other members who are related byconsanguinity, marriage or by adoption. Therefore, when any

woman is in domestic relationship, is subjected to any act ofdomestic violence and becomes an aggrieved person, she isentitled to avail the remedies under the D.V. Act. [Para 43][1017-C-E]

4.3 Relationships noted in the DV Act are as under:

(i) Any relationship by consanguinity is lifelongrelationship.

(ii) Marriage is also lifelong relationship unless aseparation by decree of divorce is ordered by competentauthority of law.

(a) If there is judicial separation ordered by court of law,that does not put an end to marriage and hence the domesticrelationship continues between the spouses even though theymay not be actually living together.

(b) In the event of divorce, marriage would be no longerbe subsisting, but if woman (wife) is subjected to any domesticviolence either during marriage or even subsequent to divorcedecree being passed but relatable to the period of domesticrelationship, the provisions of this D.V. Act would come to therescue of such divorced woman also.

(c) That is why, the expression ‘domestic relationship’ hasbeen defined in an expansive manner to mean relationshipbetween two persons who live or have at any point of time livedtogether in shared household when they are related by marriage.The word ‘live’ or‘lived’ has been interpretedin the context ofright to reside in Sub-Section (1) of Section 17. The right to livein the shared household, even when the domestic relationshipmay have been severed for instance when woman has beenwidowed owing to the death of her husband, entitles her to haveremedies under the D.V. Act.

(d) Even when the marital ties cease and there is nosubsisting domestic relationship between the aggrieved womanand the respondent against whom relief is claimed but the acts ofdomestic violence are related to the period of domesticrelationship, even in such circumstances, the aggrieved womanwho was subjected to domestic violence has remedies under theD.V. Act.

A(iii) Even in the case of relationship in the nature ofmarriage, during which period the woman suffered domesticviolence and is thus an aggrieved person can seek remediessubsequent to the cessation of the relationship, the only pre-condition is that the allegation of domestic violence must relateto the period of the subsistence of relationship in the nature ofBmarriage.

(iv) In the same way, when girl child is fostered by familymembers living together as joint family and lives or at any pointof time has lived together in shared household or has the rightto reside in the shared household being member living togetherCas joint family and has been ousted in any way or has been avictim of domestic violence has remedies under the D.V. Act.[Para 43][1017-F-H; 1018-A-H]

4.4 The question raised about subsisting domesticrelationship between the aggrieved person and the person againstDwhom the relief is claimed must be interpreted in broad andexpansive way, so as to encompass not only subsisting domesticrelationship in presentia but also past domestic relationship.Therefore, the Parliament has intentionally used the expression‘domestic relationship’ to mean relationship between twoEpersons who not only live together in the shared household butalso between two persons who ‘have at any point of time livedtogether’ in shared household. [Para 43][1019-A-B]4.5 The appellant was married to the respondent’s son andwithin month of marriage, he died in car accident. AccordingFto the appellant, the respondent and her family members startedharassing the appellant and forced her to leave the matrimonialhome. She started working as teacher at Dehradun in order tosupport herself. That Stridhana was given at the time of herwedding and that was used by the respondent and her family andthe legal notice demanding return of the articles of Stridhana didGnot receive any response from the respondent and her family.Even though as on the date of filing of the application before theMagistrate under Section 12 of the D.V. Act the appellant wasnot actually living in the shared household; she nevertheless livedin domestic relationship with her husband and further had theHright to reside in shared household as daughter-in-law. The

appellant-aggrieved person had to leave the shared householdon account of harassment and mental torture given to her byrespondent - mother-in-law and her family. She had to leave thesame and fend for herself. Thus, as an aggrieved person, theappellant could not have been excluded from the shared householdas there was no valid reason to do so. As the appellant had rightto reside in the shared household as she was in domesticrelationship with her husband till he died in the accident and hadlived together with him therefore she also had right to reside inthe shared household despite the death of her husband in roadaccident. The aggrieved person continued to have subsistingdomestic relationship owing to her marriage and she being thedaughter-in-law had the right to reside in the shared household.[Para 44][1019-C-G]

5.1 Clause (e) of Section 2 defines Domestic IncidentReport to be report made in the prescribed form on receipt ofa complaint of domestic violence from an aggrieved person. Asnoted from Section 12, an aggrieved person or Protection Officeror any other person on behalf of the aggrieved person includingthe service provider vide Sub-Section (1) of Section 10 of theD.V. Act, may present an application to the Magistrate seekingone or more reliefs under the D.V. Act. Proviso to Sub-Section(1) of Section 12 states that before passing any order on such anapplication, the Magistrate shall take into consideration anyDomestic Incident Report received by him from the ProtectionOfficer or the service provider. Protection Officer as defined inClause (n) of Section 2, means an officer appointed by the StateGovernment under SubSection (1) of Section 8. Sub-Section (2)of Section 8 states that the Protection Officers shall, as far aspossible, be women and shall possess such qualifications andexperience as may be prescribed. [Para 46][1020-B-D]

5.2 On conjoint reading of the said provisions, it is clearthat an aggrieved person on her own or any other person on behalfof the aggrieved person may present an application to theMagistrate seeking one or more reliefs under the D.V. Act butthe proviso states that when Domestic Incident Reported isreceived by the Magistrate from the Protection Officer or the

Aservice provider, in such case, the same shall be taken intoconsideration. Therefore, when an aggrieved person files anapplication by herself or with the assistance of an advocate andnot with the assistance of the Protection Officer or serviceprovider, in such case, the role of the Protection Officer or aservice provider is not envisaged. Obviously, there would be noBDomestic Incident Report received by Magistrate from theProtection Officer or service provider. The intention of theproviso is not that in the absence of Domestic Incident Report,the Magistrate cannot pass any order under the D.V. Actparticularly when an application is filed before the Magistrate byCthe aggrieved person by herself or through legal counsel.Although, the expression ‘shall’ is used in the proviso, it isrestricted to only those cases where Protection Officer filesany Domestic Incident Report or, as the case may be, the serviceprovider files such report. When Domestic Incident Reportis filed by Protection Officer or service provider, in such aDcase the Magistrate has to take into consideration the said reportreceived by him. But if such report has not been filed on behalfof the aggrieved person then he is not bound to consider anysuch report. Therefore, the expression ‘shall’ has to be read inthe context of Domestic Incident Report received by aEMagistrate from the Protection Officer or the service provideras the case may be in which case, it is mandatory for the Magistrateto consider the report. But, if no such report is received by theMagistrate then the Magistrate is naturally not to consider anysuch Domestic Incident Report before passing any order on theapplication. This could be in case where an aggrieved personFherself approaches the Magistrate or the services of an advocateis engaged to present an application seeking one or more reliefsunder the D.V. Act or for valid acceptable cause/reason aDomestic Incident Report has not been filed by ProtectionOfficer or service provider, as the case may be.[Para 47][1020-GD-H; 1021-A-D]

5.3 The High Court was not right in holding that theapplication filed by the appellant was not accompanied by aDomestic Incident Report and therefore under the proviso toSub-Section (1) of Section 12 of the D.V. Act, the Magistrate had

no authority to issue orders and directions in favour of theappellant. [Para 48][1021-D-E]

5.4 If Domestic Incident Report has been received by theMagistrate either from the Protection Officer or the serviceprovider then it becomes obligatory on the part of the Magistrateto take note of the said report before passing an order on theapplication filed by the aggrieved party, but if no complaint orapplication of domestic violence is received by the Magistratefrom the Protection Officer or the service provider, the questionof considering such report does not arise at all. The D.V. Actdoes not make it mandatory for an aggrieved person to make anapplication before Magistrate only through the Protection Officeror service provider. An aggrieved person can directly make anapplication to the jurisdictional Magistrate by herself or byengaging the services of an Advocate. In such case, the filing ofa Domestic Incident Report by Protection Officer or serviceprovider does not arise. In such circumstances, it cannot be heldthat the Magistrate is not empowered to make any order interimor final, under the provisions of the D.V. Act, granting reliefs tothe aggrieved persons. The Magistrate can take cognizance ofthe complaint or application filed by the aggrieved person andissue notice to the respondent under Section 12 of the D.V. Acteven in the absence of Domestic Incident Report under Rule 5.Thus, the Magistrate has jurisdiction to take cognizance of thecomplaint under Section 12 of the D.V. Act in the absence of aDomestic Incident Report under Rule 5 when the complaint isnot filed on behalf of the aggrieved person through ProtectionOfficer or service provider. Such purposeful interpretation hasto be given bearing in mind the fact that the immediate reliefwould have to be given to an aggrieved person and hence theproviso cannot be interpreted in manner which would becontrary to the object of the D.V. Act which renders Section 12bereft of its object and purpose.[Para 49][1025-G; 1026-A-E]

Nayanakumar v. State of Karnataka ILR 2009 Kar4295; Abhiram Gogoi v. Rashmi Rekha Gogoi (2011) 4Gauhati Law Reports 276; Md. Basit v. State of Assamand Others (2012) 1 Gauhati Law Reports 747; Rahul

ASoorma v. State of Himachal Pradesh (2012) SCCOnline HP 2574; A.Vidya Sagar v. State of AndhraPradesh 2014 SCC Online Hyd 715; Ravi KumarBajpai v. Renu Awasthi Bajpai ILR (2016) MP 302;Shambhu Prasad Singh v. Manjari 190 (2012) DLT647; Rakesh Choudhary v. Vandana Choudhary 2019BSCC Online J&K 512; Vijay Maruti Gaikwad v. SavitaVijay Gaikward 2018 (1) HLR 295; Suraj Sharma v.Bharti Sharma 2016 SCC Online Chh 1825 –approved.

Rama Singh v. Maya Singh (2012) 4 MPLJ 612; RaviCDutta v. Kiran Dutta and Another 208 (2014) DLT 61

– disapproved.

5.5 The principles that govern the interpretation to be givento proviso in the context of main provision are the normal functionof proviso is to except something out of the provision or toDqualify something enacted therein which, but for the proviso,would be within the purview of the provision. As general rule, aproviso is added to an enactment to qualify or create an exceptionto what is in the enactment and ordinarily, proviso is notinterpreted as stating general rule. In other words, provisoEqualifies the generality of the main enactment by providing anexception and taking out as it were, from the main enactment, aportion which, but for the proviso would fall within the mainprovision. Further, proviso cannot be construed as nullifyingthe provision or as taking away completely right conferred bythe enactment. Certain rules are that firstly, proviso is not toFbe construed as excluding or adding something by implicationi.e., when on fair construction, the principal provision is clear, aproviso cannot expand or limit it. Secondly, proviso has to beconstrued in relation to which it is appended i.e., normally, aproviso does not travel beyond the provision to which it is aGproviso. proviso carves out an exception to the main provisionto which it has been enacted as proviso and to no other. However,if proviso in statute does not form part of section but is itselfenacted as separate section, then it becomes necessary todetermine as to which section the proviso is enacted as anexception or qualification. Sometimes, proviso is used as guideH

to construction of the main section. Thirdly, when there are twopossible construction of words to be found in the section, theproviso could be looked into to interpret the main section.However, when the main provision is clear, it cannot be watereddown by the proviso. Thus, where the main section is not clear,the proviso can be looked into to ascertain the meaning and scopeof the main provision. The proviso should not be so construed asto make it redundant. In certain cases, “the legislative device ofthe exclusion is adopted only to exclude part from the whole,which, but for the exclusion, continues to be part of it”, andwords of exclusion are presumed to have some meaning and arenot readily recognized as mere surplusage. As corollary, it isstated that proviso must be so construed that the mainenactment and the proviso should not become redundant orotiose. This is particularly so, where the object of provisosometimes is only by way of abundant caution, particularly whenthe operative words of the enactment are abundantly clear. Inother words, the purpose of proviso in such case is to removeany doubt. There are also instances where proviso is in thenature of an independent enactment and not merely, an exceptionor qualifying what has been stated before. In other words, if thesubstantive enactment is worded in the form of proviso, it wouldbe an independent legislative provision concerning different setof circumstances than what is worded before or what is statedbefore. Sometimes, proviso is to make distinction of specialcases from the general enactment and to provide it specially. [Para50][1026-E-H; 1027-A-H; 1028-A-B]

Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai AIR1966 SC 459 : [1966] SCR 367; Kaviraj Pandit DurgaDutt Sharma v. Navaratna Pharmaceutical LaboratoriesAIR 1965 SC 980 : [1965] SCR 737; Kedarnath JuteManufacturing Co. Ltd. v. The Commercial Tax Officerand Others AIR 1966 SC 12 : [1965] SCR 626;Dattatraya Govind Mahajan and Others v. The State ofMaharashtra and Another AIR 1977 SC 915 : [1977]2 SCR 790; S. Sundaram Pillai, etc, v. V. R.Pattabiraman AIR 1985 SC 582 : [1985] 2 SCR 643;M. Pentiah v. Muddala Veeramallappa AIR 1961 SC1107 : [1961] SCR 295; Superintendent &

982SUPREME COURT REPORTS

ARemembrancer of Legal Affairs to Govt. of West Bengalv. Abani Maity AIR 1979 SC 1029 : [1979] 3 SCR 472– referred to.

Justice G.P. Singh“Principles of StatutoryInterpretation”, 15th Edition – referred to.

B5.6 In the instant case, when the proviso is read in thecontext of the main provision which begins with the words ‘anaggrieved person or Protection Officer or any other person onbehalf of the aggrieved person may present an application to theMagistrate seeking one or more reliefs under the D.V. Act’ wouldCclearly indicate that the aggrieved person can by herself orthrough her advocate approach the Magistrate for seeking anyof the reliefs under the D.V. Act. In such an event, the filing of aDomestic Incident Report does not arise. The use of theexpression ‘shall’ in the proviso has to be read contextually i.e.,the Magistrate is obliged to take into consideration any DomesticDIncident Report received by him when the same has been filedfrom the Protection Officer or the service provider in case wherethe application is made to the Magistrate on behalf of the aggrievedperson through Protection Officer or service provider. If theintention of the Parliament had been that filing of the Report bythe Protection Officer is condition precedent for the MagistrateEto act upon the complaint filed by an aggrieved person even whenshe files it by herself or through her advocate then it would havebeen so expressed. But conjoint reading of Sub-Section (1) ofSection 12 with the proviso does not indicate such an intention.Thus, the plenitude of power under Section 12 of the D.V. Act isFaccordingly interpreted and pre-requisite for issuing notice tothe respondent on an application filed by the aggrieved personwithout the assistance of Protection Officer or service providerand thus there being an absence of Domestic Incident Report,does not arise. If contrary interpretation is to be given then theopening words of Sub-Section (1) of Section 12 would be renderedGotiose and it would be incumbent for every aggrieved person tofirst approach Protection Officer or service provider, as thecase may be, and get Domestic Incident Report prepared andthereafter to approach the Magistrate for reliefs under the D.V.Act, which is not the intention of the Parliament. [Para 51][1030-G-H; 1031-A-E]H

6. The judgment passed by the High Court as well as theby the Sessions Judge are set aside and the order passed by theJudicial Magistrate is affirmed. [Para 53][1032-G-H]

Satish Chander Ahuja v. Sneha Ahuja (2021) 1 SCC414; Juveria Abdul Majid Patni v. Atif Iqbal Mansooriand Another (2014) 10 SCC 736 : [2014] 10 SCR 479;V. D. Bhanot v. Savita Bhanot (2012) 3 SCC 183 :[2012] 1 SCR 867; Krishna Bhattacharjee v. SarathiChoudhury and Another (2016) 2 SCC 705 : [2015]14 SCR 65; Saraswathy v. Babu (2014) 3 SCC 712 :[2013] 12 SCR 914; Rashmi Kumar v. Mahesh KumarBhada (1997) 2 SCC 397 : [1996] 10 Suppl. SCR 347;Ajay Kumar v. Lata alias Sharuti and Others (2019) 15SCC 352 : [2019] 6 SCR 283; Satish Chander Ahujav. Sneha Ahuja (2021) 1 SCC 414; S. R. Batra v. TarunaBatra (2007) 3 SCC 169 : [2006] 10 Suppl. SCR 1206;Harbhajan Singh v. Press Council of India AIR 2002SC 1351 : [2002] 2 SCR – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.511 of 2022.

CFrom the Judgment and Order dated 23.07.2019 of the High Courtof Uttarakhand at Nainital in Criminal Revision No. 186 of 2014.

Dr. Vinod Kumar Tewari, Gaurav Agrawal, Advs. for the Appellant.

K. K. Srivastava, Kumar Rajeev, S. K. Verma, Advs. for theRespondent.D

The Judgment of the Court was delivered by

NAGARATHNA, J.

The aggrieved person, being the appellant herein, who had filedMiscellaneous Case No. 78 of 2007 on the file of the Court of SpecialEJudicial Magistrate-I, Dehradun, has assailed judgment dated 23[rd] July,2019 passed by the High Court of Uttarakhand at Nainital, in CriminalRevision No. 186 of 2014, by which the judgment dated 11[th] July, 2014passed by the Vth Additional Sessions Judge, Dehradun, in CriminalAppeal No. 53 of 2011 setting aside the order passed by the SpecialFJudicial Magistrate-I, was sustained.

2. For the sake of convenience, the parties herein shall be referredto in terms of their rank and status before the Trial Court.

Factual Background:

3. According to the aggrieved person, her marriage with KuldeepGTyagi (since deceased) son of late Vishnudutt Tyagi was solemnized on18[th] June, 2005 at Haridwar District, Uttarakhand as per Hindu rites andrituals and in connection with the marriage, the family members of theaggrieved person had given dowry to the family of her deceased husbandand Stridhana to the aggrieved person. For the period immediatelyHfollowing the wedding, the aggrieved person was residing at the ancestral

home of the respondents along with her mother-in-law-respondent no.1,two brothers-in-law, wife of her husband’s elder brother and six sisters-in-law. Thereafter, the aggrieved person began living with her husbandand the respondents in village Jhabreda. That Kuldeep Tyagi, husbandof the aggrieved person died on 15[th] July, 2005 in car accident andafter the Terhanvi ceremony of her husband, the aggrieved person wasconstrained to reside initially at Delhi, at her father’s house. Thatimmediately prior to the death of her husband, the aggrieved person hadconceived child.

4. That on 30[th] March, 2006 the aggrieved person gave birth to adaughter and owing to the misbehavior and torture meted out to her byher matrimonial family after her husband’s death, she moved to Dehradun,Uttarakhand with her daughter, where she began working as teacherto support herself and her child. That the Stridhana given to her at thetime of her wedding was never allowed to be enjoyed by her and evenfollowing her exit from her matrimonial home, the Stridhana was beingused by her in-laws, respondent nos. 1 to 6. That the aggrieved personhad sent legal notice dated 22[nd] November, 2006, requesting them toreturn the articles of Stridhana, however, there was no response to thesame.

5. That the father of the aggrieved person had gifted her Maruti(Alto) car, at the time of her wedding and the same was registered in thename of her deceased husband. Owing to the accident that her husbandhad met with, resulting in his death, the said car had also been damaged.That the aggrieved person’s mother-in-law had submitted an applicationbefore the insurance company, National Insurance Company which wasprocessing the claim for damage caused to the car, stating therein thatshe was the mother of the deceased and was the only legal heir of thedeceased and therefore any compensation may be made in her favour.

6. That there exists land in village Jhabreda to which thedeceased husband of the aggrieved person had right and title. Thatrespondent no. 1- mother-in-law, on being instigated by the otherrespondents objected to the recording of the aggrieved persons’ name inthe revenue records of the said property. Respondent no. 1 objected bystating that the child borne by aggrieved person was not Kuldeep Tyagi’sdaughter. Owing to such objection, the Court of Tehsildar passed anorder of status quo with respect to the said property.

7. That the respondents, on several occasions threatened theaggrieved person that she would face dire consequences if she everattempted to claim any right over her husband’s property. That therespondents, having no sympathy towards the aggrieved person whohad, while pregnant, lost her husband in fatal accident, tortured hermentally by denying that her child was the daughter of Kuldeep Tyagi.

8. With the aforesaid averments, the aggrieved person approachedthe Court of the Special Judicial Magistrate under Section 12 and soughtprotection orders, residence orders and compensation orders to be passedunder various provisions of the Protection of Women from DomesticViolence Act, 2005 (for short, the ‘D.V. Act’). Further, prayers wereCalso made for monetary reliefs under Section 22 of the D.V. Act.

9. In response to the aforesaid application filed by the aggrievedperson, the respondents filed joint written statement to the effect thatthe marriage of the aggrieved person with Kuldeep Tyagi was solemnizedat simple ceremony in Haridwar, on 18[th] June, 2005. That no dowry orDarticles of Stridhana were handed over to the respondents at the timeof the ceremony, therefore, the question of returning the same to theaggrieved person by the respondents would not arise. That the aggrievedperson could not have conceived child through the deceased in spanof twenty-eight days from the date of the marriage and as such claimEwas not only false but unnatural.

10. That the respondents had, in no way, tortured the aggrievedperson. That her statement to the effect that she was residing in theancestral home of her husband, during the period immediately followingher wedding, was untrue as she only stayed with the respondents forFone night after her marriage.

11. As regards the Maruti (Alto) car, it was stated that the samewas not part of the Stridhana given in favour of the aggrieved person,but was purchased by Kuldeep Tyagi, after borrowing money for thispurpose from respondent no. 1.

GThat the aggrieved person had, by presenting false facts had gother name entered as the legal heir of Kuldeep Tyagi in relation to landowned by him. That in the said application dated 31[st] March, 2006, shehad stated that Kuldeep Tyagi had no issue or heirs. That an order ofstatus quo was obtained by respondent no. 1 by presenting the correctfacts before the Tehsildar.H

It was averred that the respondents had not committed any actsof domestic violence. In that background, the respondents prayed beforethe Trial Court that the application filed by the aggrieved person-victimbe dismissed.

12. The Special Judicial Magistrate- I, Dehradun, by judgmentdated 12[th ]May, 2011 partly allowed the application filed by the aggrievedperson and directed the respondents to pay Rs.10,000/- as monetarycompensation for insulting and maligning the aggrieved person. Thearticles of Stridhana mentioned in the list enclosed with the application,except the Maruti (Alto) Car, were to be made available to the aggrievedperson at her Dehradun residence. It was also directed that therespondents shall not obstruct the aggrieved person and her daughterfrom enjoying the property of late Kuldeep Tyagi.

The salient findings of the Trial Court are as under:

i)As regards the contention of the respondents to the effectthat it was unnatural that the aggrieved person wasimpregnated within twenty-eight days was unnatural, theTrial Court observed that there was an absolute possibilityof such fact. In holding so, the Trial Court relied on thesubmission of the respondents to the effect that theaggrieved person left their ancestral home on 20[th] June,2005 to live independently with her husband. In light of thesaid submission, the Trial Court noted that the aggrievedperson lived with her husband till the day of his death andtherefore there was nothing unnatural about her pregnancyand therefore, the contention of the respondents that thedaughter was not Kuldeep Tyagi’s, was baseless.ii)That no adverse inference could be drawn from the factthat the aggrieved person had wrongly stated in theapplication filed before the Tehsildar to the effect thatKuldeep Tyagi had no heirs other than the aggrieved person,as she had no knowledge of such statement.

iii)That allegation pertaining to the paternity of the aggrievedperson’s daughter was likely to have caused emotional harmto her, thereby also affecting her profession as teacher.In that light, it was observed the aggrieved person was avictim of domestic violence under Section 1 (d) (iii) of the

D.V. Act. symbolic amount of Rs.10,000/- was awardedto compensate the victim for emotional loss suffered.

iv)That the victim left her matrimonial home thirteen days afterher husband died, owing to repeated taunts and abuses bythe respondents. That no cross examination was conductedBby the respondents to controvert this fact. Therefore, it wasestablished that the victim did not leave her matrimonialhome of her own will, but because of conduct of therespondents.

v)That the aggrieved person had not re-married, followingCthe death of Kuldeep Tyagi. Therefore, she continued toremain the daughter-in-law of the respondents’ family andhad rights over the property of her deceased husband. Reliefwas granted under Section 19 of the D.V. Act, forindependent residence with liberty to visit her husband’shouse since there was no evidence to show that theDmatrimonial home of the victim was in the sole ownershipof the mother-in-law of the victim. That she would be entitledto enjoy the same facilities as enjoyed by her deceasedhusband during his lifetime. The respondents were restrainedfrom disturbing the rights of the victim to her husband’sEproperty. However, it was clarified that the JudicialMagistrate had no jurisdiction to pass any orders in relationto getting the name of the victim entered in the revenuerecords.

vi)That no evidence was put forth by the respondents whichFwould establish that no Stridhana was given at the time ofthe marriage. Therefore, all articles of Stridhana as listedin the list annexed with the application filed before theMagistrate, were directed to be returned to the victim.

13. Being aggrieved, respondent no. 1, mother-in-law of theGaggrieved person, preferred Criminal Appeal No. 53 of 2011 before theVth Additional Sessions Judge, Dehradun. By judgment dated 11[th] July,2014, the First Appellate Court set aside the judgment of the Trial Court,dated 12[th ]May, 2011.

The relevant findings of the First Appellate Court are encapsulatedas under:H

[B. V. NAGARATHNA, J.]

i)That the aggrieved person never lived in the sharedhousehold belonging to the respondents, situated in Jhabreda,but lived in Roorkee with her husband. That the aggrievedperson maintained house in Roorkee and used to traveldaily to Jhabreda for work, but never shared householdwith the respondents.

ii)Given that the aggrieved person never lived in Jhabredawith the respondents, it was improbable that her family haddelivered the articles of Stridhana to the respondents inJhabreda. That the possession of Stridhana was not vestedwith the respondents. Therefore, no question would ariseas to the respondents disturbing or using the Stridhana,which in fact, was never in their possession.

iii)That the aggrieved person had not led any evidence toestablish that following the death of her husband, she hadlived in Jhabreda with the respondents for thirteen days.That she continued to live at Roorkee even after the deathof her husband. That in the absence of any evidence todemonstrate that the aggrieved person ever lived with therespondents, no case was made out for domestic violenceon the part of the respondents. That the aggrieved personwas not entitled to any relief in terms of residence order,till such time as she is allotted specific share followinglegal partition of the property held in joint ownership of herdeceased husband and the respondents.iv)That in the absence of any evidence as to the delivery ofStridhana to the respondents, no orders could be passedfor restoration of possession of Stridhana articles in favourof the aggrieved person.

14. Aggrieved by the judgment of the First Appellate Court, theaggrieved person preferred criminal revision petition before the HighCourt of Uttarakhand at Dehradun. By judgment dated 23[rd] July, 2019,the criminal revision petition was dismissed and the judgment of the VthAdditional Sessions Judge, Dehradun was sustained.

The following findings were recorded by the High Court in theimpugned judgment:

BCDEF

990SUPREME COURT REPORTS

Ai)That as per the provisions of Section 12 (1) of the D.V.Act, Domestic Incident Report is required to bemandatorily filed by Protection Officer or serviceprovider before the Magistrate and the Magistrate may takecognizance of an offence under the D.V. Act on the basisof such report. That in the present case, the aggrievedBperson had only filed an application alleging domesticviolence and since the same was not accompanied by areport, the conditions of Section 12 (1) of the D.V. Actwere not satisfied.

ii)That in order to establish that the respondents had committedCviolence as contemplated under the D.V. Act, it is requiredthat the aggrieved person was sharing household with therespondents and there was domestic relationship betweenthe parties. That the aggrieved person was residingseparately from the respondents from the day of herDmarriage. That there was no domestic relationship betweenthe aggrieved person and the respondents, therefore, norelief could be granted under the provisions of the D.V.Act.

iii)That it could not be accepted that all articles of StridhanaEwhich were purchased in Roorkee as per the bills presentedin this regard, were delivered to the respondents inJhabreda.

The aggrieved appellant has approached this Court challengingthe judgments of the First Appellate Court and the High Court.FSubmissions:

15. We have heard Shri Gaurav Agrawal, learned amicus curiaeon behalf of the appellant-aggrieved person and Shri K.K. Srivastava,learned counsel appearing on behalf of the respondent. We have perusedthe material on record.G16. The submissions of Shri Gaurav Agrawal, learned amicuscuriae, are as under:

(i)At the outset, he contended that the High Court and theFirst Appellate Court had erred in setting aside the judgmentof the Court of the Special Judicial Magistrate-I, Dehradun,H

dated 12[th ]May, 2011 on the primary ground that aggrievedperson was not sharing household with the respondentsand there was no domestic relationship between the partiesand therefore, no relief could be granted under the provisionsof the D.V. Act. Elaborating on the said contention, learnedamicus curiae for the appellant-aggrieved person referredto Sections 2 (f) and 2 (s) of the D.V. Act to contend thatan aggrieved person has to be in ‘domestic relationship’as defined under the D.V. Act in order to attract theprovisions of the D.V. Act. If such person is living, or hasat any point of time lived together in ‘shared household’with the persons against whom allegations of domesticviolence have been made, the provisions of the D.V. Actwould apply. That in the present case, the aggrieved person,had, following the death of her husband on 15[th] July, 2005,resided in the family home of the respondents at Ulhedaand resided there for period of thirteen days. That suchresidence could not continue owing to the conduct of therespondents who subjected the aggrieved person to mentalabuse, causing her to leave the shared household. Thatattempts made by the aggrieved person to re-enter theshared household were obstructed by the respondents.Having regard to the short span of her marital life owing tothe death of her husband and the fact that she was deniedentry and residence at the shared household following herhusband’s death, the length of the period during whichhousehold was shared by the parties, ought not be aconsideration having the effect of denying the protection ofthe D.V. Act to the aggrieved person.

(ii)It was next contended that the death of the aggrievedperson’s husband would not result in cessation of thedomestic relationship. That the appellant-aggrieved personwould continue to be related to the respondents by virtue ofher marriage. That the only factor disabling the aggrievedperson from continuing in domestic relationship with therespondents was the conduct of the respondents.Nevertheless, she would be eligible to claim protection underthe D.V. Act because the definition of ‘domestic relationship’as provided under Section 2 (s) of the D.V. Act which

includes not only relationship between two people whopresently live together in shared household, but also extendsto persons who have, at any point of time lived together ina shared household. That the short period, following thedeath of her husband, during which the aggrieved personshared household with the respondents would qualify asa period during which the aggrieved person and therespondents were in ‘domestic relationship’.

(iii)It was submitted that it is not mandatory for the aggrievedperson to reside, at the point of time when commission ofviolence, with those persons against whom the allegationsof violence have been levelled. In this context, referencewas made to the decision of this Court in Satish ChanderAhuja vs. Sneha Ahuja – [(2021) 1 SCC 414] whereinthe phrase ‘lives or at any stage has lived’, as appearing inSection 2 (s) of the D.V. Act was interpreted to mean suchhousehold which the aggrieved person shared with therespondents, at the time of filing the application under theD.V. Act or household which the aggrieved person hadbeen excluded from in the recent past. In light of the saiddecision, it was urged that it is not necessary that therespondents must have been living with the aggrieved personat the time when the alleged acts of domestic violence wereperpetuated as there is no statutory requirement to thiseffect. That subject to the caveat that an aggrieved person,has, at some point, shared household with the personswho have allegedly committed acts of domestic violence,

then any act of domestic violence committed by such personsduring the period in which the parties were living in theshared household, or even subsequent to such period, wouldentitle the aggrieved person to approach competent Courtunder Section 12 of the D.V. Act.

G(iv)It was urged that the provisions of the D.V. Act must beinterpreted in manner, so as to, ensure that the protectiongranted to women under the D.V. Act is made available tothem in the widest amplitude. That restricting the scope ofdomestic violence cases, only to matters wherein domesticviolence was committed against the aggrieved person, while

she was residing at the shared household, would notsufficiently achieve the objects of the enactment.

(v)Learned amicus curiae, Shri Gaurav Agrawal, nextcontended that the High Court had erred in holding that aDomestic Incident Report is required to be mandatorily filedby Protection Officer before the Magistrate and it is onlyon the basis of such report that the Magistrate may takecognizance of the commission of domestic violence. Learnedamicus curiae for the appellant-aggrieved person referredto Rule 5 of the Protection of Women from DomesticViolence Rules, 2006 (for short, the ‘D.V. Rules’) whichrequires Protection Officer to prepare Domestic IncidentReport on receiving complaint of domestic violence andsubmit the same to the Magistrate and forward copies ofthe Report to police officer in charge of the police stationhaving jurisdiction over the area were the alleged acts ofdomestic violence have taken place, and to the serviceproviders in the area. Having regard to the said Rule, itwas contended that the requirement to prepare DomesticIncident Report arises only in cases where complaint hasbeen made by an aggrieved person, to Protection Officer.That Magistrate who entertains an application submittedunder Section 12 of the D.V. Act, is not required by anystatutory provision, to call for Domestic Incident Report.That an application under Section 12, may be disposed ofeven without requiring Domestic Incident Report to besubmitted. That the only requirement of Section 12, is that,in the event that complaint is made to Protection Officerand such officer has submitted report, the Magistrate shallconsider the same. That in cases where complaint is notmade by Protection Officer, there arises no reason tospecifically call for and consider Domestic IncidentReport.(vi)In this context, reference was made to Section 12 of theD.V. Act which enables an aggrieved person or ProtectionOfficer to make an application before the Magistrateseeking reliefs under the D.V. Act. It was submitted that incases where an aggrieved person independently makes an

Aapplication before the Magistrate, there would be norequirement on the part of the Magistrate to consider orcall for Domestic Incident Report. However, in caseswhere the application has been made by Protection Officer,the same shall be mandatorily accompanied by DomesticIncident Report and when such report is submitted, theBMagistrate is required to consider the same.

(vii)It was submitted that the statutory intention could not be tothe effect that the Magistrate shall not entertain proceedingsor grant relief under Sections 18 to 20 and Section 22 of theD.V. Act in the absence of the Domestic Incident Report.CThat such an interpretation would defeat the purposes ofthe D.V. Act as it would act as bar against the Magistrateto pass orders in the absence of the report.

(viii) It was contended that the High Court and the First AppellateCourt had failed to view the matter in the true and correctDperspective, having regard to the purpose of enactment ofthe D.V. Act. In the above backdrop, it was prayed that thejudgments of the High Court and the First Appellate Courtmay be set aside and the judgment of the Trial Court maybe restored.

17. Per contra, learned counsel for the respondent supported theimpugned judgments of the High Court and the First Appellate Courtand contended that the said judgments are justified and hence, do notcall for interference by this Court by submitting as under :

(i)It was denied that the aggrieved person was in domesticFrelationship with the respondents. It was submitted that theaggrieved person, following her marriage with KuldeepTyagi, was residing with him in Roorkee District, Haridwarand not with the respondents, in Jhabreda. That her placeof residence, had been recorded as Roorkee, in theGapplication filed under the D.V. Act before the Magistrate,as well as in the application submitted before the revenueauthorities for mutation of her name in the revenue recordspertaining to the property belonging to her deceasedhusband. That even following the death of Kuldeep Tyagi,the aggrieved person did not reside with the respondents.

That the aggrieved person was working as teacher andthere was no evidence led to establish that she had takenleave from her job and resided in Jhabreda for thirteen daysfollowing the death of her husband.

It was contended that in view of the said facts, itcould not be held that ‘domestic relationship’ subsistedbetween the parties, on the basis of which relief could beclaimed under the D.V. Act. That based on the verynomenclature of the D.V. Act, any violence alleged underthe D.V. Act must always be in relation to ‘domesticrelationship’ and therefore, subsistence of domesticrelationship would be precondition to invoke Section 12of the D.V. Act and grant reliefs contemplated under Section18 to 20 and Section 22 of the D.V. Act.

(ii)It was submitted that the facts, as narrated by the aggrievedperson in the application made before the Magistrate areinaccurate and provide fabricated version of events.

(iii)It was next contended that the aggrieved person had failedto prove that her family had delivered possession of articlesof Stridhana to the respondents. That the receipts of thearticles purchased, would show that the articles werepurchased in Roorkee and therefore, it would be ratherimprobable that the same were delivered to the respondentsat their residence in Jhabreda. It was therefore urged thatno assumption could be made that the Stridhana stood inthe custody of the in-laws of the aggrieved person.(iv)It was further urged that in the absence of DomesticIncident Report, the Magistrate could not have takencognizance of the matter. That Section 12 (1) casts amandatory duty on the Magistrate to consider the DomesticIncident Report submitted under the D.V. Act for initiationof proceedings, and it is only after consideration of the samethat the substantive provisions of the Sections 18 to 20 andSection 22 of the D.V. Act may be applied to extend benefitof the same to an aggrieved person. In support of thiscontention, Shri K.K. Srivastava referred to the languageof Section 12 (1) to contend that the phrase used in the

Aproviso is ‘shall take into consideration any DomesticIncident Report’ thereby suggesting that the requirementto consider Domestic Incident Report is mandatory one,irrespective of whether or not complainant was madebefore the Protection Officer prior to filing an applicationbefore the Magistrate. That non-consideration of theBDomestic Incident Report would strike at the very root ofthe matter and such irregularity would render the decisionof the Magistrate, nullity.

(v)It was lastly submitted that proceedings under the D.V. Actwere ill-motivated, misconceived and were initiated withthe sole intention to harass the respondents and morespecifically, respondent no. 1, being the mother-in-law ofthe aggrieved person, aged over 80 years. That the HighCourt and First Appellate Court rightly set aside the decisionof the Magistrate and held that no relief could be granted tothe aggrieved person under the D.V. Act. That the judgmentsof the High Court and First Appellate Court are based on atrue and correct appreciation of the law, as applicable tothe facts of the present case and the same may not beinterfered with by this Court.

E18. Learned counsel for the respective parties have relied uponcertain judgments of this Court and various High Courts in support oftheir submissions. The same shall be referred to later.

Points for Consideration:

19. The submissions of the learned amicus curiae /counsel forFthe respective sides were on the following points for consideration whichwere raised vide order dated 11[th] February, 2022:

“(i) Whether the consideration of Domestic Incident Report ismandatory before initiating the proceedings under D.V. Act, inorder to invoke substantive provisions of Sections 18 to 20 and 22Gof the said Act?

(ii) Whether it is mandatory for the aggrieved person to residewith those persons against whom the allegations have been levelledat the point of commission of violence?

(iii) Whether there should be subsisting domestic relationshipbetween the aggrieved person and the person against whom therelief is claimed?”

Legal Framework:

20. For an easy and immediate reference, the following provisionsof the Protection of Women from D.V. Act are extracted as under:

“2. Definitions.—In this Act, unless the context otherwiserequires,—

(a) ‘aggrieved person’ means any woman who is, or has been, ina domestic relationship with the respondent and who alleges tohave been subjected to any act of domestic violence by therespondent;

(e) ‘domestic incident report’ means report made in the prescribedform on receipt of complaint of domestic violence from anaggrieved person;

(f) ‘domestic relationship’ means relationship between twopersons who live or have, at any point of time, lived together in ashared 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;

(s) ‘shared household’ means household where the personaggrieved lives or at any stage has lived in domestic relationshipeither singly or along with the respondent and includes such ahouse hold whether owned or tenanted either jointly by theaggrieved 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.”

A“3. Definition of domestic violence.—For the purposes of thisAct, any act, omission or commission or conduct of the respondentshall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb orwell-being, whether mental or physical, of the aggrieved personBor tends to do so and includes causing physical abuse, sexual abuse,verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved personwith view to coerce her or any other person related to her tomeet any unlawful demand for any dowry or other property orCvaluable security; or

(c) has the effect of threatening the aggrieved person or any personrelated to her by any conduct mentioned in clause (a) or clause(b); or

(d) otherwise injures or causes harm, whether physical or mental,Dto the aggrieved person. Explanation I.—For the purposes of thissection,—

(i) ‘physical abuse’ means any act or conduct which is of such anature as to cause bodily pain, harm, or danger to life, limb, orhealth or impair the health or development of the aggrieved personEand includes assault, criminal intimidation and criminal force;

(ii) ‘sexual abuse’ includes any conduct of sexual nature thatabuses, humiliates, degrades or otherwise violates the dignity ofwoman;

(iii) ‘verbal and emotional abuse’ includes-F(a) insults, ridicule, humiliation, name calling and insults or ridiculespecially with regard to not having child or male child; and

(b) repeated threats to cause physical pain to any person in whomthe aggrieved person is interested;

G(iv) ‘economic abuse’ includes—

(a) deprivation of all or any economic or financial resources towhich the aggrieved person is entitled under any law or customwhether payable under an order of court or otherwise or whichthe aggrieved person requires out of necessity including, but not

limited to, house hold necessities for the aggrieved person and herchildren, if any, Stridhana, property, jointly or separately ownedby the aggrieved person, payment of rental related to the sharedhouse hold and maintenance;

(b) disposal of household effects, any alienation of assets whethermovable or immovable, valuables, shares, securities, bonds andthe like or other property in which the aggrieved person has aninterest or is entitled to use by virtue of the domestic relationshipor which may be reasonably required by the aggrieved person orher children or her Stridhana or any other property jointly orseparately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources orfacilities which the aggrieved person is entitled to use or enjoy byvirtue of the domestic relationship including access to the sharedhousehold.

Explanation II.—For the purpose of determining whether any act,omission, commission or conduct of the respondent constitutes‘domestic violence’ under this section, the overall facts andcircumstances of the case shall be taken into consideration.”

“12. Application to Magistrate.—(1) An aggrieved person ora Protection Officer or any other person on behalf of the aggrievedperson may present an application to the Magistrate seeking oneor more reliefs under this Act:

Provided that before passing any order on such application, theMagistrate 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 include arelief 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:

Provided that where decree for any amount as compensation ordamages has been passed by any court in favour of the aggrievedperson, the amount, if any, paid or payable in pursuance of the

order made by the Magistrate under this Act shall be set off againstthe amount payable under such decree and the decree shall,notwithstanding anything contained in the Code of Civil Procedure,1908 (5 of 1908), or any other law for the time being in force, beexecutable for the balance amount, if any, left after such set off.

B(3) Every application under Sub-Section (1) shall be in such formand contain such particulars as may be prescribed or as nearly aspossible thereto.

(4) The Magistrate shall fix the first date of hearing, which shallnot ordinarily be beyond three days from the date of receipt of theCapplication by the court.

(5) The Magistrate shall Endeavour to dispose of every applicationmade under Sub-Section (1) within period of sixty days fromthe date of its first hearing.”

“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 excluded fromthe shared household or any part of it by the respondent save inaccordance with the procedure established by law.”

“23. Power to grant interim and ex parte orders.—(1) Inany proceeding before him under this Act, the Magistrate maypass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima faciediscloses that the respondent is committing, or has committed anGact of domestic violence or that there is likelihood that therespondent may commit an act of domestic violence, he may grantan ex parte order on the basis of the affidavit in such form, asmay be prescribed, of the aggrieved person under section18, section19, section 20, section 21 or, as the case may be, section 22 againstthe respondent.”

21. Before proceeding further, it would be useful to refer to thefollowing relevant judgments of this Court wherein this Court hasinterpreted various provisions of the D.V. Act :

a)In Juveria Abdul Majid Patni vs. Atif Iqbal Mansooriand Another – [(2014) 10 SCC 736], this Court whileinterpreting the definition of aggrieved person under Section2(a) of the D.V. Act held that apart from the woman whois in domestic relationship, any woman who has beenin domestic relationship with the respondent, if allegedto have been subjected to any act of domestic violence bythe respondent comes within the meaning of aggrievedperson. Further, Section 2(f) of the D.V. Act states that aperson aggrieved (widow herein) who, at any point of timehas lived together with the husband in shared householdis covered by the meaning of domestic relationship. Also,Section 2(s) of the D.V. Act states that if the personaggrieved at any stage has lived in domestic relationshipwith the respondent in house, can claim right in sharedhousehold.

After analysing the relevant provisions of the D.V.Act, this Court while referring to V.D. Bhanot vs. SavitaBhanot – [(2012) 3 SCC 183], held that the conduct ofthe parties even prior to coming into force of the D.V. Actcould be taken into consideration while passing an orderunder Sections 18, 19 and 20 thereof. The wife who hadshared household in the past but was no longer residingwith her husband can file petition under section 12 ifsubjected to domestic violence. It was further observed thatwhere an act of domestic violence is once committed, thena subsequent decree of divorce will not absolve the liabilityof the respondent from the offence committed or to denythe benefit to which the aggrieved person is entitled to.

b)In the case of Krishna Bhattacharjee vs. SarathiChoudhury and Another - [(2016) 2 SCC 705], this Courtheld that claim for recovery of Stridhana, two years aftera decree of judicial separation is maintainable. The Courtheld that judicial separation does not change the status of awife as an aggrieved person under Section 2(a) read with

Section 12 of the D.V. Act and does not end the domesticrelationship under Section 2(f) of the D.V. Act. It was furtherheld that judicial separation was mere suspension ofhusband-wife relationship and not complete severance ofrelationship as in the case of divorce. Moreover, anapplication filed under section 12 of the D.V. Act by thewife is not barred by any limitation.

In the said case, this Court referred to Saraswathyvs. Babu – [(2014) 3 SCC 712].

Further, Dipak Misra J. (as His Lordship then was)while speaking for the Two-Judge Bench held that thedefinition of domestic relationship under Section 2 (f) ofthe D.V. Act is very wide and protection under the saidprovision would be given to wife even if she is judiciallyseparated, by observing thus :

“18. The core issue that is requisite to be addressed iswhether the Appellant has ceased to be an ‘aggrievedperson’ because of the decree of judicial separation. Oncethe decree of divorce is passed, the status of the partiesbecomes different, but that is not so when there is decreefor judicial separation. three-Judge Bench in Jeet Singhand Ors. v. State of U.P. and Ors. (1993) 1 SCC 325though in different context, adverted to the concept ofjudicial separation and ruled that the judicial separationcreates rights and obligations. decree or an order forjudicial separation permits the parties to live apart. Therewould be no obligation for either party to cohabit with theother. Mutual rights and obligations arising out of marriageare suspended. The decree however, does not sever ordissolve the marriage. It affords an opportunity forreconciliation and adjustment. Though judicial separationafter certain period may become ground for divorce, itis not necessary and the parties are not bound to haverecourse to that remedy and the parties can live keepingtheir status as wife and husband till their lifetime.”

While referring to the case of Rashmi Kumar vs. Mahesh KumarBhada – [(1997) 2 SCC 397], this Court held that Stridhana propertyHis the exclusive property of the wife on proof that she entrusted the

property or dominion over the Stridhana property to her husband or anyother member of the family. There is no need to establish further anyspecial agreement to prove that the property was given to the husbandor other member of the family.

While considering the issue of limitation and/or ‘continuingoffence’/ ‘continuing cause of action’, this Court held:

“32. Regard being had to the aforesaid statement of law, we haveto see whether retention of Stridhana by the husband or anyother family members is continuing offence or not. There canbe no dispute that wife can file suit for realization of the Stridhanabut it does not debar her to lodge criminal complaint for criminalbreach of trust………. The concept of ‘continuing offence’ getsattracted from the date of deprivation of Stridhana, for neitherthe husband nor any other family members can have any rightover the Stridhana and they remain the custodians. For the purposeof the 2005 Act, she can submit an application to the ProtectionOfficer for one or more of the reliefs under the 2005 Act.”

c)We could also allude to the exposition of this Court in AjayKumar vs. Lata alias Sharuti and Others – [(2019) 15SCC 352], wherein the husband of the respondent thereinhad died, and maintenance was claimed from the brotherof the deceased husband. The Court held that at primafacie stage, case for grant of maintenance was made outsince the respondent and her deceased husband resided inthe same house and the appellant therein (brother ofdeceased person) also resided in the same household.

d)Further in Satish Chander Ahuja vs. Sneha Ahuja –[(2021) 1 SCC 414], Three-Judge Bench of this Court,wherein one of us (Shah, J.) was member, considered theexpressions ‘lives or have at any point of time lived’appearing in Section 2 (s) of the D.V. Act. This Court whileconsidering the correctness of the law laid down in S.R.Batra vs. Taruna Batra – [(2007) 3 SCC 169], concludedthat the said case had not correctly interpreted Section 2(s)of the D.V. Act and that the said judgment does not laydown correct law and observed as under :

“66. ……….The expression ‘at any stage has lived’ occurs inSection 2(s) after the words ‘where the person aggrieved lives’.The use of the expression ‘at any stage has lived’ immediatelyafter words ‘person aggrieved lives’ has been used for objectdifferent to what has been apprehended by this Court in paragraph26. The expression ‘at any stage has lived’ has been used to protectthe women from denying the benefit of right to live in sharedhousehold on the ground that on the date when application is filed,she was excluded from possession of the house or temporarilyabsent. The use of the expression ‘at any stage has lived’ is forthe above purpose and not with the object that wherever theaggrieved person has lived with the relatives of husband, all suchhouses shall become shared household, which is not the legislativeintent. The shared household is contemplated to be the household,which is dwelling place of aggrieved person in present

time………………

67. ……………. The entire Scheme of the Act is to provideimmediate relief to the aggrieved person with respect to the sharedhousehold where the aggrieved person lives or has lived. Asobserved above, the use of the expression ‘at any stage has lived’was only with intent of not denying the protection to aggrievedperson merely on the ground that aggrieved person is not living ason the date of the application or as on the date when Magistrateconcerned passes an order under Section 19. The apprehensionexpressed by this Court in paragraph 26 in S.R. Batra v. TarunaBatra (supra), thus, was not true apprehension and it is correctthat in event such interpretation is accepted, it will lead to chaosand that was never the legislative intent. We, thus, are of theconsidered opinion that shared household referred to in Section2(s) is the shared household of aggrieved person where she wasliving at the time when application was filed or in the recent pasthad been excluded from the use or she is temporarily absent.

68. The words ‘lives or at any stage has lived in domesticrelationship’ have to be given its normal and purposeful meaning.The living of woman in household has to refer to living whichhas some permanency. Mere fleeting or casual living at differentplaces shall not make shared household. The intention of theparties and the nature of living including the nature of household

have to be looked into to find out as to whether the parties intendedto treat the premises as shared household or not. As noted above,Act 2005 was enacted to give higher right in favour of woman.The Act, 2005 has been enacted to provide for more effectiveprotection of the rights of the woman who are victims of violenceof any kind occurring within the family. The Act has to beinterpreted in manner to effectuate the very purpose and objectof the Act. Section 2(s) read with Sections 17 and 19 of Act, 2005grants an entitlement in favour of the woman of the right ofresidence under the shared household irrespective of her havingany legal interest in the same or not.

69. ………… The definition of shared household as noticed inSection 2(s) does not indicate that shared household shall beone which belongs to or taken on rent by the husband. We havenoticed the definition of ‘Respondent’ under the Act. TheRespondent in proceeding under Domestic Violence Act can beany relative of the husband. In the 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.”

Analysis:

22. Section 12 of the D.V. Act states that an aggrieved person ora Protection Officer or any other person on behalf of the aggrievedperson may present an application to the Magistrate seeking one or morereliefs under the D.V. Act. The proviso, however, states that beforepassing any order on such an application, the Magistrate shall take intoconsideration any Domestic Incident Report received by him from theProtection Officer or the service provider. The expression ‘aggrievedperson’ as defined under Section 2(a) means any woman who is, or hasbeen, in domestic relationship with the respondent and who alleges tohave been subjected to any act of domestic violence by the respondent.Domestic relationship as defined in Section 2(f), means relationshipbetween two 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 familymembers living together as joint family. Domestic violence has thesame meaning as assigned to it in Section 3.

A23. The expression ‘shared household’ in relation to the definitionof domestic relationship as per the definition in Section 2(s) means ahousehold where the person aggrieved lives or at any stage has lived ina domestic relationship either singly or along with the respondent andincludes such household whether owned or tenanted either jointly bythe aggrieved person and the respondent, or owned or tenanted by eitherBof them in respect of which either the aggrieved person or the respondentor both jointly or singly have any right, title, interest or equity and includessuch household which may belong to the joint family of which therespondent is member, irrespective of whether the respondent or theaggrieved person has any right, title or interest in the shared household.CThe definition of shared household is thus an inclusive one.

24. Section 17 speaks of right to reside in shared householdwhile Section 19 deals with residence orders which could be passed bya Magistrate while disposing of an application under Sub-Section (1) ofSection 12, on being satisfied that domestic violence has taken place in aDshared household. Thus, while Section 19 deals with residence orders,the right to reside in shared household is dealt with in Section 17 of theD.V. Act. Sub-Section (1) of Section 17, which begins with non-obstanteclause states that notwithstanding anything contained in any other lawfor the time being in force, every woman in domestic relationship shallhave the right to reside in the shared household, whether or not she hasEany right, title or beneficial interest in the same. Sub-Section (2) statesthat an aggrieved person shall not be evicted or excluded from the sharedhousehold or any part of it by the respondent save in accordance withthe procedure established by law.25. While Section 19 deals with multitude of directions or ordersFwhich may be passed against the respondent vis-à-vis the sharedhousehold in favour of an aggrieved person, Section 17 confers righton every woman in domestic relationship to reside in the sharedhousehold irrespective of whether she has any right, title or beneficialinterest in the same. This right to reside in shared household which isGconferred on every woman in domestic relationship is vital andsignificant right. It is an affirmation of the right of every woman in adomestic relationship to reside in shared household. Sub-Section (2) ofSection 17 protects an aggrieved person from being evicted or excludedfrom the shared household or any part of it by the respondent save inaccordance with the procedure established by law. The distinctionHbetween Sub-Section (1) and Sub-Section (2) of Section 17 is also to benoted. While Sub-Section (2) deals with an aggrieved person which isdefined in Section 2(a) of the D.V. Act in the context of domestic violence,Sub-Section (1) of Section 17 is right conferred on every woman in adomestic relationship irrespective of whether she is an aggrieved personor not. In other words, every woman in domestic relationship has aright to reside in the shared household even in the absence of any act ofdomestic violence by the respondent.

26. It is necessary to appreciate the importance and significanceof the right of every woman in domestic relationship to reside in ashared household. As already noted, the expression ‘shared household’is expansively defined in Section 2(s) of the D.V. Act but the expressioncontained in Section 17 namely, ‘every woman in domesticrelationship shall have the right to reside in the shared householdirrespective whether she has any right, title or beneficial interest insame’, requires an expansive interpretation. In this context, HarbhajanSingh vs. Press Council of India - (AIR 2002 SC 1351) could berelied upon wherein, Cross on “Statutory Interpretation” (Third Edition,1995) has been relied upon as follows:-

“Thus, an ‘ordinary meaning’ or ‘grammatical meaning’ does notimply that the Judge attributes meaning to the words of statuteindependently of their context or of the purpose of the statute, butrather that he adopts meaning which is appropriate in relation tothe immediately obvious and unresearched context and purposein and for which they are used.”

27. While the object and purpose of the D.V. Act is to protect awoman from domestic violence, the salutary object of Sub-Section (1)of Section 17 is to confer right on every woman in domestic relationshipto have the right to reside in shared household. Hence, the said provisioncommences with non-obstante clause.

28. For better understanding of the said right, it would also beuseful to relate it to the societal and familial context in India.

29. As already noted, domestic relationship means relationshipbetween two persons who live or have at any point of time, lived togetherin shared household. The relationship may be by (i) consanguinity, (ii)marriage or, (iii) through relationship in the nature of marriage, (iv)adoption or (v) are family members living together as joint family. The

Aexpression ‘domestic relationship’ is comprehensive one. Hence, everywoman in domestic relationship in whatever manner the said relationshipmay be founded as stated above has right to reside in sharedhousehold, whether or not she has any right, title or beneficial interest inthe same. Thus, daughter, sister, wife, mother, grand-mother or greatgrand-mother, daughter-in-law, mother-in-law or any woman having aBrelationship in the nature of marriage, an adopted daughter or any memberof joint family has the right to reside in shared household.

30. Further, though, the expression ‘shared household’ is definedin the context of household where the person aggrieved lives or haslived in domestic relationship either singly or along with respondent, inCthe context of Sub-Section (1) of Section17, the said expression cannotbe restricted only to household where person aggrieved resides or atany stage, resided in domestic relationship. In other words, womanin domestic relationship who is not aggrieved, in the sense that whohas not been subjected to an act of domestic violence by the respondent,Dhas right to reside in shared household. Thus, mother, daughter,sister, wife, mother-in-law and daughter-in-law or such other categoriesof women in domestic relationship have the right to reside in sharedhousehold de hors right, title or beneficial interest in the same.Therefore, the right of residence of the aforesaid categories ofEwomen and such other categories of women in domestic relationshipis guaranteed under Sub-Section (1) of Section 17 and she cannot beevicted, excluded or thrown out from such household even in the absenceof there being any form of domestic violence. By contrast, Sub-Section(2) of section 17 deals with narrower right in as much as an aggrievedperson who is inevitably woman and who is subjected to domesticFviolence shall not be evicted or excluded from the shared household orany part of it by the respondent except in accordance with the procedureestablished by law. Thus, the expression ‘right to reside in sharedhousehold’ has to be given an expansive interpretation, in respect of theaforesaid categories of women including mother-in-law of daughter-Gin-law and other categories of women referred to above who have theright to reside in shared household.

31. Further, the expression ‘the right to reside in shared household’cannot be restricted to actual residence. In other words, even in theabsence of actual residence in the shared household, woman in aHdomestic relationship can enforce her right to reside therein. The aforesaid

interpretation can be explained by way of an illustration. If womangets married then she acquires the right to reside in the household of herhusband which then becomes shared household within the meaning ofthe D.V. Act. In India, it is societal norm for woman, on her marriageto reside with her husband, unless due to professional, occupational orjob commitments, or for other genuine reasons, the husband and wifedecide to reside at different locations. Even in case where the womanin domestic relationship is residing elsewhere on account of reasonablecause, she has the right to reside in shared household. Also womanwho is, or has been, in domestic relationship has the right to reside notonly in the house of her husband, if it is located in another place which isalso shared household but also in the shared household which may bein different location in which the family of her husband resides.

32. If woman in domestic relationship seeks to enforce herright to reside in shared household, irrespective of whether she hasresided therein at all or not, then the said right can be enforced underSub-Section (1) of Section 17 of the D.V. Act. If her right to reside in ashared household is resisted or restrained by the respondent(s) then shebecomes an aggrieved person and she cannot be evicted, if she hasalready been living in the shared household or excluded from the sameor any part of it if she is not actually residing therein. In other words, theexpression ‘right to reside in the shared household’ is not restricted toonly actual residence, as, irrespective of actual residence, woman in adomestic relationship can enforce her right to reside in the sharedhousehold. Thus, woman cannot be excluded from the shared householdeven if she has not actually resided therein that is why the expression‘shall not be evicted or excluded from the shared household’ has beenintentionally used in Sub-Section (2) of Section 17. This means if womanin domestic relationship is an aggrieved person and she is actuallyresiding in the shared household, she cannot be evicted except inaccordance with the procedure established by law. Similarly, womanin domestic relationship who is an aggrieved person cannot be excludedfrom her right to reside in the shared household except in accordancewith the procedure established by law. Therefore, the expression ‘rightto reside in the shared household’ would include not only actual residencebut also constructive residence in the shared household i.e., right to residetherein which cannot be excluded vis-à-vis an aggrieved person exceptin accordance with the procedure established by law. If woman issought to be evicted or excluded from the shared household she would

Abe an aggrieved person in which event Sub-Section (2) of Section 17would apply.

33. In support of this interpretation, another example may be noted.A woman on getting married, along with her husband may proceedoverseas on account of professional or job commitments. Such womanBmay not have had an opportunity of residing in the shared householdafter her marriage. If, for any reason, such woman becomes anaggrieved person and is forced to return from overseas then she has theright to reside in the shared household of her husband irrespective ofwhether her husband (respondent) or the aggrieved person (wife) hasany right, title or beneficial interest in the shared household. In suchCcircumstances, parents-in-law of the woman who has returned fromoverseas and who is an aggrieved person cannot exclude her from theshared household or any part of it except in accordance with the procedureestablished by law.

Another situation is case where, immediately after marriage,Dthe wife actually resided in the shared household while her husbandproceeded overseas. When such woman is subjected to domesticviolence, she cannot be evicted from the shared household except inaccordance with the procedure established by law.

34. There may also be cases where soon after marriage, theEhusband goes to another city owing to job commitment and his wiferemains in her parental home and nevertheless is victim of domesticviolence. She has the right to remain in her parental home as she wouldbe in domestic relationship by consanguinity. Also in cases where awoman remains in her parental homesoon after marriage and is subjectedFto domestic violence and is therefore an aggrieved person, she also hasthe right to reside in the shared household of her husband which couldbe the household of her in-laws. Further, if her husband resides in anotherlocation then an aggrieved person has the right to reside with her husbandin the location in which he resides which would then become the sharedhousehold or reside with his parents, as the case may be, in differentGlocation. There could be multitude and variety of situations andcircumstances in which woman in domestic relationship can enforceher right to reside in shared household irrespective of whether she hasthe right, title or beneficial interest in the same. Also, such right couldbe enforced by every woman in domestic relationship irrespective ofHwhether she is an aggrieved person or not.

35. In the Indian societal context, the right of woman to residein the shared household is of unique importance. The reasons for thesame are not far to see. In India, most women are not educated nor arethey earning; neither do they have financial independence so as to livesingly. She may be dependent for residence in domestic relationshipnot only for emotional support but for the aforesaid reasons. The saidrelationship may be by consanguinity, marriage or through relationshipin the nature of marriage, adoption or is part of or is living together ina joint family. majority of women in India do not have independentincome or financial capacity and are totally dependent vis-à-vis theirresidence on their male or other female relations who may have adomestic relationship with her.36. In our view, the D.V. Act is piece of Civil Code which isapplicable to every woman in India irrespective of her religious affiliationand/or social background for more effective protection of her rightsguaranteed under the Constitution and in order to protect women victimsof domestic violence occurring in domestic relationship. Therefore,the expression ‘joint family’ cannot mean as understood in Hindu Law.Thus, the expression ‘family members living together as joint family’,means the members living jointly as family. In such an interpretation,even girl child/children who is/are cared for as foster children alsohave right to live in shared household and are conferred with theright under Sub-Section (1) of Section 17 of the D.V. Act. When such agirl child or woman becomes an aggrieved person, the protection ofSub-Section (2) of Section 17 comes into play.

37. In order to give an expansive interpretation to the expression‘every woman in domestic relationship shall have the right to reside inshared household’, certain examples by way of illustrations have beendiscussed above. However, those illustrations are not exhaustive andthere could be several situations and circumstances and every womanin domestic relationship can enforce her right to reside in sharedhousehold irrespective of whether she has any right, title or beneficialinterest in the same and the said right could be enforced by any womanunder the said provision as an independent right in addition to the ordersthat could be passed under Section 19 of the D.V. Act; also an aggrievedwoman who has the right to reside in the shared household is protectedby Sub-Section (2) of the Section 17 of the D.V. Act.

A38. In the case of Smt. Bharati Naik vs. Shri Ravi RamnathHalarnkar and Another – [2010 SCC Online Bom 243], the HighCourt of Bombay at Goa held that the words ‘has been’ and ‘have lived’appearing in the definition of ‘aggrieved person’ and ‘respondent’ in theD.V. Act are plain and clear. The Court held that the aforesaid wordstake in their sweep even past relationship. The words have beenBpurposefully used to show the past relationship or experience betweenthe concerned parties. It was further observed that the said D.V. Acthas been enacted to protect woman from domestic violence and therecannot be any fetter which can come in the way by interpreting theprovisions in manner to mean that unless the domestic relationshipCcontinues on the date of the application, the provisions of the D.V. Actcannot be invoked.

39. In judgment of the High Court of Madras in Vandhana vs.T. Srikanth and Krishnamachari – [2007 SCC Online Mad 553],authored by Ramasubramanian, J., it was held that Sections 2(f), 2(s)Dand 17 of the D.V. Act ought to be given the widest interpretation possible.The Court, after observing various instances and situations, held thatmany woman may not even enter into the matrimonial homeimmediately after marriage. Therefore, it was concluded that healthyand correct interpretation to Sections 2(f) and 2(s) of the D.V. Act wouldbe that the words ‘live’ or ‘have at any point of time lived’ wouldEinclude in its purview ‘the right to live’ as interpreted above. It wouldbe useful to quote from the said judgment as under:-“20. In society like ours, there are very many situations, in whicha woman may not enter into her matrimonial home immediatelyafter marriage. couple leaving for honeymoon immediately afterFthe marriage and whose relationship gets strained even duringhoneymoon, resulting in the wife returning to her parental homestraight away, may not stand the test of the definition of domesticrelationship under Section 2(f) of the Act, if it is strictly construed.A woman in such case, may not live or at any point of time livedGeither singly or together with the husband in the ‘shared household’,despite legally valid marriage followed even by its consummation.It is not uncommon in our society, for woman in marriage to besent to her parental home even before consummation of marriage,on account of certain traditional beliefs, say for example, theintervention of the month of Aadi. If such woman is held to be

not entitled to the benefit of Section 17 of the Act, on account ofa strict interpretation to Section 2(f) of the Act that she did noteither live or at any point of time lived together in the sharedhousehold, such woman will be left remediless despite validmarriage. One can think of innumerable instances of the sameaforesaid nature, where the woman might not live at the time ofinstitution of the proceedings or might not have lived together withthe husband even for single day in the shared household. Anarrow interpretation to Sections 2(f), 2(s) and 17 of the Act,would leave many woman in distress, without aremedy. Therefore, in my considered view healthy and correctinterpretation to Sections 2(f) and 2(s) would be that the words‘live’ or ‘have at any point of time lived’ would include withintheir purview ‘the right to live’. In other words, it is not necessaryfor woman to establish her physical act of living in the sharedhousehold, either at the time of institution of the proceedings or asa thing of the past. If there is relationship which has legal sanction,a woman in that relationship gets right to live in the sharedhousehold. Therefore, she would be entitled to protection underSection 17 of the Act, even if she did not live in the sharedhousehold at the time of institution of the proceedings or had neverlived in the shared household at any point of time in the past. Herright to protection under Section 17 of the Act, co-exists withher right to live in the shared household and it does not dependupon whether she had marked her physical presence in theshared household or not. marriage which is valid andsubsisting on the relevant date, automatically confers rightupon the wife to live in the shared household as an equalpartner in the joint venture of running family. If she has aright to live in the shared household, on account of validand subsisting marriage, she is definitely in ‘domesticrelationship’ within the meaning of Section 2(f) of the Actand her bodily presence or absence from the shared householdcannot belittle her relationship as anything other than adomestic relationship. Therefore, irrespective of the fact whetherthe applicant/plaintiff in this case ever lived in the house of thefirst respondent/first defendant after 7.2.2007 or not, her marriageto the first respondent/first defendant on 7.2.2007 has conferreda right upon her to live in the shared household. Therefore, the

1014SUPREME COURT REPORTS

Aquestion as to whether the applicant/plaintiff ever lived in theshared household at any point of time during the period from7.2.2007 to 13.6.2007 or not, is of little significance.”

40. Bearing in mind the aforesaid discussion, question no. 2, namely,‘whether it is mandatory for the aggrieved person to reside withBthose persons against whom the allegations have been levelled’ isaccordingly answered. It is held that it is not mandatory for the aggrievedperson to have actually lived or resided with those persons against whomthe allegations have been levelled at the time of seeking relief. If womanhas the right to reside in shared household, she can accordingly enforceher right under Section 17(1) of the D.V. Act. If woman becomes anCaggrieved person or victim of domestic violence, she can seek reliefunder the provisions of the D.V. Act including her right to live or residein the shared household under Section 17 read with Section 19 of theD.V. Act.

41. Hence, the appellant herein had the right to live in sharedDhousehold i.e., her matrimonial home and being victim of domesticviolence could enforce her right to live or reside in the shared householdunder the provisions of the D.V. Act and to seek any other appropriaterelief provided under the D.V. Act. This is irrespective of whether sheactually lived in the shared household.

42. This takes us to the next question raised for considerationbeing ‘whether there should be subsisting domestic relationshipbetween the aggrieved person and the person against whom therelief is claimed’. As already noted, the expression ‘domesticrelationship’ is an expansive one and means the relationship betweenFtwo persons who live or have at any point of time lived together in ashared household when they are related by (i) consanguinity; (ii) marriage;(iii) through relationship in the nature of marriage; (iv) adoption; (v)are family members living together as joint family. The expressions‘consanguinity’, ‘marriage’ and ‘adoption’ do not require elaboration asthey are well understood concepts both in common law as well as in theGrespective personal law applicable to the parties. However, it is relevantto note the expression ‘marriage’ also encompasses relationship in thenature of marriage. Secondly, the expression ‘adoption’ also takes intoconsideration family members living together as joint family. Theaforesaid aspects require elaboration.

It would be useful to refer to the following judgments of this Courtwhich have been taken into consideration relationship in the nature ofmarriage :

(a)In D. Velu Samy v. D. Patchaiammal - [(2010) 10 SCC469], this Court discussed the concept of “relationship inthe nature of marriage” in the context of the DV Act, andBit was held to be akin to common law marriage. It washeld that the parties must have lived together in ‘sharedhousehold’ as defined in Section 2(s) of the DV Act. It wasopined that not all live-in relationships would amount to arelationship in the nature of marriage to get the benefit ofCD.V. Act, but only to such relationships, which qualify ascommon law marriages. The requirements prescribed underlaw in order for relationship to be recognized as commonlaw marriage were adumbrated as follows:

(i) The couple must hold themselves out to society as beingakin to spouses;

(ii) They must be of legal age to marry;

(iii)They must be otherwise qualified to enter into legalmarriage;

(iv)They must have voluntarily cohabited and heldthemselves out to the world as being akin to spouses fora significant period of time.

(b)In Indra Sarma v. V.K.V. Sarma - [(2013) 15 SCC 755],the question as to whether disruption of live-in relationshipby failure to maintain woman involved in such arelationship amounted to “domestic violence” within themeaning of Section 3 of the D.V. Act, was considered. Itwas held that entering into marriage either under the HinduMarriage Act or Special Marriage Act or any other personallaw applicable to the parties, is entering into relationshipof public significance, since marriage, being socialinstitution, many rights and liabilities flow out of thatrelationship. Thus, the concept of marriage gives rise tocivil rights. This Court referred to the following guidelines,which would determine whether relationship betweenpersons was in the nature of marriage, to ultimately hold

that the DV Act had been enacted to cover couple whohad relationship in the nature of marriage, so as to providea remedy in Civil Law for protection of women inrelationships, which are in the nature of marriage as perparagraph 56 which is extracted as under :

“56. We may, on the basis of above discussion cull out someguidelines for testing under what circumstances, live-inrelationship will fall within the expression “relationship in the natureof marriage” under Section 2(f) of the D.V. Act. The guidelines,of course, are not exhaustive, but will definitely give some insightto such relationship :

56.1. Duration of period of relationship. – Section 2(f) of theD.V. Act has used the expression “at any point of time”, whichmeans reasonable period of time to maintain and continue arelationship which may vary from case to case, depending uponthe fact situation.

56.2. Shared household.- The expression has been defined underSection 2(s) of the D.V. Act and, hence, needs no furtherelaboration.

56.3. Pooling of resources and financial arrangements.-Supporting each other, or any one of them, financially, sharingbank accounts, acquiring immovable properties in joint names orin the name of the woman, long-term investments in business,shares in separate and joint names, so as to have long-standingrelationship, may be guiding factor.

56.4. Domestic arrangements.- Entrusting the responsibility,especially on the woman to run the home, do the householdactivities like cleaning, cooking, maintaining or upkeeping the house,etc., is an indication of relationship in the nature of marriage.

56.5. Sexual relationship.- Marriage-like relationship refers tosexual relationship, not just for pleasure, but for emotional andintimate relationship, for procreation of children, so as to giveemotional support, companionship and also material affection,caring, etc.

56.6. Children.- Having children is strong indication of arelationship in the nature of marriage. The parties, therefore, intend

to have long-standing relationship. Sharing the responsibility forbringing up and supporting them is also strong indication.

56.7. Socialisation in public.- Holding out to the public andsocialising with friends, relations and others, as if they are husbandand wife is strong circumstance to hold the relationship is in thenature of marriage.

56.8. Intention and conduct of the parties.- Common intentionof the parties as to what their relationship is to be and to involve,and as to their respective roles and responsibilities, primarilydetermines the nature of that relationship.”

43. Further, the expression ‘family members living together as ajoint family’ is not relatable only to relationship through consanguinity,marriage or adoption. As observed above, the expression ‘joint family’does not mean joint family as understood in Hindu Law. It would meanpersons living together jointly as family. It would include not only familymembers living together when they are related by consanguinity, marriageor adoption but also those persons who are living together or jointly as ajoint family such as foster children who live with other members whoare related by consanguinity, marriage or by adoption. Therefore, whenany woman is in domestic relationship as discussed above, is subjectedto any act of domestic violence and becomes an aggrieved person, sheis entitled to avail the remedies under the D.V. Act.

The further question is, whether, such domestic relationship shouldbe subsisting between the aggrieved person and the respondent againstwhom relief is claimed at the time of claiming the relief. Before answeringthe same, it would be useful to analyse the relationships noted in theD.V. Act as under:

(a)Any relationship by consanguinity is lifelong relationship.

(b)Marriage is also lifelong relationship unless separationby decree of divorce is ordered by competent authorityof law.

(i) If there is judicial separation ordered by court of law, thatdoes not put an end to marriage and hence the domestic relationshipcontinues between the spouses even though they may not beactually living together.

(ii) In the event of divorce, marriage would be no longer besubsisting, but if woman (wife) is subjected to any domesticviolence either during marriage or even subsequent to divorcedecree being passed but relatable to the period of domesticrelationship, the provisions of this D.V. Act would come to therescue of such divorced woman also.

(iii) That is why, the expression ‘domestic relationship’ has beendefined in an expansive manner to mean relationship betweentwo persons who live or have at any point of time lived together ina shared household when they are related by marriage. We havealso interpreted the word ‘live’ or ‘lived’ in the context of right toCreside in Sub-Section (1) of Section 17. The right to live in theshared household, even when the domestic relationship may havebeen severed for instance when woman has been widowedowing to the death of her husband, entitles her to have remediesunder the D.V. Act.

(iv) Therefore, even when the marital ties cease and there is nosubsisting domestic relationship between the aggrieved womanand the respondent against whom relief is claimed but the acts ofdomestic violence are related to the period of domestic relationship,even in such circumstances, the aggrieved woman who wasEsubjected to domestic violence has remedies under the D.V. Act.

(c)Even in the case of relationship in the nature of marriage,during which period the woman suffered domestic violenceand is thus an aggrieved person can seek remediessubsequent to the cessation of the relationship, the only pre-condition is that the allegation of domestic violence mustrelate to the period of the subsistence of relationship in thenature of marriage.

(d)In the same way, when girl child is fostered by familymembers living together as joint family as interpreted aboveGand lives or at any point of time has lived together in ashared household or has the right to reside in the sharedhousehold being member living together as joint familyand has been ousted in any way or has been victim ofdomestic violence has remedies under the D.V. Act.

In our view, the question raised about subsisting domesticrelationship between the aggrieved person and the person against whomthe relief is claimed must be interpreted in broad and expansive way,so as to encompass not only subsisting domestic relationship in presentiabut also past domestic relationship. Therefore, the Parliament hasintentionally used the expression ‘domestic relationship’ to mean arelationship between two persons who not only live together in the sharedhousehold but also between two persons who ‘have at any point oftime lived together’ in shared household.

44. Applying the aforesaid discussion to the facts of the case athand, the appellant was married to the respondent’s son Kuldeep Tyagion 18[th] June, 2005 and shortly thereafter, on 15[th] July, 2005, he died in acar accident. According to the appellant, the respondent and her familymembers started harassing the appellant and forced her to leave thematrimonial home. She started working as teacher at Dehradun inorder to support herself. That Stridhana was given at the time of herwedding and that was used by the respondent and her family and thelegal notice dated 22[nd] November, 2006 demanding return of the articlesof Stridhana did not receive any response from the respondent and herfamily. Even though as on the date of filing of the application before theMagistrate under Section 12 of the D.V. Act the appellant was not actuallyliving in the shared household; she nevertheless lived in domesticrelationship with her husband and further had the right to reside in ashared household as daughter-in-law. The appellant-aggrieved personhad to leave the shared household on account of harassment and mentaltorture given to her by respondent - mother-in-law and her family. Shehad to leave the same and fend for herself. Thus, as an aggrieved person,the appellant could not have been excluded from the shared householdas there was no valid reason to do so. As the appellant had right toreside in the shared household as she was in domestic relationshipwith her husband till he died in the accident and had lived together withhim therefore she also had right to reside in the shared householddespite the death of her husband in road accident. The aggrieved personcontinued to have subsisting domestic relationship owing to her marriageand she being the daughter-in-law had the right to reside in the sharedhousehold.

45. This takes us to the first question which has been raised by usnamely, ‘whether the consideration of domestic incident report is

Amandatory before initiating the proceedings under the D.V. Act inorder to invoke substantive provisions of Sections 18 to 20 and 22of the said D.V. Act?’.

46. Clause (e) of Section 2 defines Domestic Incident Report tobe report made in the prescribed form on receipt of complaint ofBdomestic violence from an aggrieved person. As noted from Section 12,an aggrieved person or Protection Officer or any other person onbehalf of the aggrieved person including the service provider vide Sub-Section (1) of Section 10 of the D.V. Act, may present an application tothe Magistrate seeking one or more reliefs under the D.V. Act. Provisoto Sub-Section (1) of Section 12 states that before passing any order onCsuch an application, the Magistrate shall take into consideration anyDomestic Incident Report received by him from the Protection Officeror the service provider. Protection Officer as defined in Clause (n) ofSection 2, means an officer appointed by the State Government underSub-Section (1) of Section 8. Sub-Section (2) of Section 8 states that theDProtection Officers shall, as far as possible, be women and shall possesssuch qualifications and experience as may be prescribed.

47. On conjoint reading of the aforesaid provisions, it is clearthat an aggrieved person on her own or any other person on behalf ofthe aggrieved person may present an application to the Magistrate seekingEone or more reliefs under the D.V. Act but the proviso states that whena Domestic Incident Reported is received by the Magistrate from theProtection Officer or the service provider, in such case, the same shallbe taken into consideration. Therefore, when an aggrieved person filesan application by herself or with the assistance of an advocate and notwith the assistance of the Protection Officer or service provider, inFsuch case, the role of the Protection Officer or service provider isnot envisaged. Obviously, there would be no Domestic Incident Reportreceived by Magistrate from the Protection Officer or service provider.Can it be said that in the absence of Domestic Incident Report, theMagistrate cannot pass any order under the D.V. Act particularly whenGan application is filed before the Magistrate by the aggrieved person byherself or through legal counsel? In our view, that is not the intention ofthe proviso. Although, the expression ‘shall’ is used in the proviso, it isrestricted to only those cases where Protection Officer files anyDomestic Incident Report or, as the case may be, the service providerfiles such report. When Domestic Incident Report is filed by aH

Protection Officer or service provider, in such case the Magistratehas to take into consideration the said report received by him. But ifsuch report has not been filed on behalf of the aggrieved person thenhe is not bound to consider any such report. Therefore, the expression‘shall’ has to be read in the context of Domestic Incident Reportreceived by Magistrate from the Protection Officer or the serviceprovider as the case may be in which case, it is mandatory for theMagistrate to consider the report. But, if no such report is received bythe Magistrate then the Magistrate is naturally not to consider any suchDomestic Incident Report before passing any order on the application.As already noted, this could be in case where an aggrieved personherself approaches the Magistrate or the services of an advocate isengaged to present an application seeking one or more reliefs under theD.V. Act or for valid acceptable cause/reason Domestic IncidentReport has not been filed by Protection Officer or service provider,as the case may be.48. We are, therefore, of the view that the High Court was notright in holding that the application filed by the appellant herein was notaccompanied by Domestic Incident Report and therefore under theproviso to Sub-Section (1) of Section 12 of the D.V. Act, the Magistratehad no authority to issue orders and directions in favour of the appellant.

(i)Following are the judgments where the High Courts haveheld that the Domestic Incident Report is not sine quanon for entertaining or deciding the application under Section12 of the D.V. Act by the learned Magistrate.

a)In Nayanakumar vs. State of Karnataka – [ILR2009 Kar 4295], the High Court of Karnataka(Kalaburagi Bench) while dealing with Section 12 ofthe D.V. Act, held that in case Domestic IncidentReport is received by the Magistrate either from theProtection Officer or from the Service Provider, thenit becomes obligatory on the part of the Magistrate totake note of the said Domestic Incident Report beforepassing an order on the application filed by the aggrievedparty. It was further clarified that the scheme of theD.V. Act makes it clear that it is left to the choice ofthe aggrieved person to go before the service provider

1022SUPREME COURT REPORTS

or the Protection Officer or to approach the Magistrateunder Section 12 of the D.V. Act.

b)In Abhiram Gogoi vs. Rashmi Rekha Gogoi –[(2011) 4 Gauhati Law Reports 276], the GauhatiHigh Court held that Section 9(1)(b) of the D.V. Actmakes it clear that it is the duty of the ProtectionOfficer to make Domestic Incident Report to theMagistrate upon receipt of complaint of domesticviolence and forward copies thereof to the policeofficer-in-charge of the police station within the locallimits of whose jurisdiction domestic violence is allegedto have been committed and to the service providers inthat area.

c)In the case of Md. Basit vs. State of Assam andOthers – [(2012) 1 Gauhati Law Reports 747], theGauhati High Court differed with the view taken bythe Madhya Pradesh and Jharkhand High Courts andheld that Section 12 only contemplates as to who canfile complaint under Section 12 of the D.V. Act, whatrelief may be sought for, what the contents of thecomplaint must be and how the complaint ought to beexamined. That if the complaint conforms to the saidpre-conditions, the same may be taken cognizance of.The High Court noted that an application under Section12(1) of the D.V. Act may be filed either by anaggrieved person herself, or by Protection Officer.The Court went on to hold that the provision does notrequire Magistrate to specifically call for DomesticIncident Report. That it would only be mandatory toconsider such report, if the same had been filed by theProtection Officer before the Magistrate. The GauhatiHigh Court differed with the view taken by the MadhyaPradesh and Jharkhand High Courts, to the extent thatthe latter Courts observed that the Magistrate wouldnot be obligated to consider the Domestic IncidentReport even if the same was filed by the ProtectionOfficer.

d)Delving on the same issue, the High Court of HimachalPradesh in Rahul Soorma vs. State of HimachalPradesh – [(2012) SCC Online HP 2574], held thatthe purpose of the D.V. Act is to give immediate reliefto the aggrieved person; therefore, it was wrong tosuggest that the Magistrate has no jurisdiction to takecognizance of the application under Section 12 of theD.V. Act before the receipt of Domestic IncidentReport by the Protection Officer or the serviceprovider.

e)Further, the High Court of Andhra Pradesh in A. VidyaSagar vs. State of Andhra Pradesh – [2014 SCCOnline Hyd 715], rejected the contention of thepetitioner therein that domestic violence case can beinstituted and taken cognizance of on the basis of theDomestic Incident Report only and not otherwise.

f)In its judgment in the case of Ravi Kumar Bajpai vs.Renu Awasthi Bajpai – [ILR (2016) MP 302], theHigh Court of Madhya Pradesh speaking through J.K.Maheshwari, J., while discussing on the legislative intentof the D.V. Act, held that if the legislative intent wasto call for report from the Protection Officer as apre-condition by the Magistrate to act upon complaintof aggrieved person, then it would have expressed thatintention emphasizing the words in the main section.The High Court relied on various judgments pertainingto the interpretation of provision and proviso thereof.

g)The Division Bench of the High Court of Delhi inShambhu Prasad Singh vs. Manjari – [190 (2012)DLT 647] speaking through Ravindra Bhat, J. dealtwith the conflicting views of the two Single Judges onthe question whether Magistrate can act straightawayon the complaint made by an aggrieved person underthe D.V. Act. It was held that Section 12(1) of theD.V. Act does not mandate that an application seekingrelief under the said D.V. Act must be accompaniedwith Domestic Incident Report or even that it shouldbe moved by Protection Officer. So also, Rule 6 which

stipulates the form and manner of making an applicationto Magistrate does not require that the DomesticIncident Report must accompany an application forrelief under Section 12.

It was further held that an obligation to submita Domestic Incident Report is imposed only on theProtection Officers under Section 9 of the D.V. Actand upon the service providers under Section 10 of theD.V. Act and the learned Magistrate ‘shall’ take intoconsideration, the Domestic Incident Report if it is filedand not otherwise.

h)In Rakesh Choudhary vs. Vandana Choudhary –[2019 SCC Online J&K 512], the High Court ofJammu and Kashmir rejected the argument of thepetitioner therein that the report of the ProtectionOfficer is sine qua non for issuing process in petitionunder Section 12 of the D.V. Act. The Court held thatthe proviso to Section 12(1) of the D.V. Act onlystipulates that the learned Magistrate shall take intoconsideration the Domestic Incident Report filed bythe Protection Officer or the Service Provider, but itdoes not stipulate that report ‘shall be called for’before any relief could be granted.

i)Further, the High Court of Bombay at AurangabadBench, while dealing with criminal writ petition inthe case of Vijay Maruti Gaikwad vs. Savita VijayGaikward – [2018 (1) HLR 295], observed that ifthe matter is before the Court and the wife preferrednot to approach the Protection Officer, the Court is notbound to call the report of Protection Officer.

j)Lastly, in the case of Suraj Sharma vs. BhartiSharma – [2016 SCC Online Chh 1825], the HighCourt of Chhattisgarh while expressing its view onSection 12 of the D.V. Act also held that the DomesticIncident Report shall not be conclusive material formaking any order.

49. On the contrary, the following judgments of High Courts haveobserved that the Proviso to Section 12 is mandatory and an order passedby the learned Magistrate on an application under Section 12 of the D.V.Act, without having report of the Protection Officer is liable to bequashed.

a)In Rama Singh vs. Maya Singh – [(2012) 4 MPLJ 612][1],the High Court of Madhya Pradesh, in the facts andcircumstances of the said case, while quashing the petitionunder Section 482 of the Code of Criminal Procedure, 1973,held that the impugned order therein was passed withouttaking into consideration, the report prepared by theProtection Officer and proviso to Section 12 of the D.V.Act was ignored. The Court went on to hold that the provisoordinarily carves out an exception from the general ruleenacted in the main provision. The Court emphasized thatthe word ‘any’ in the proviso would mean one or more outof several and includes all. Therefore, even an interlocutoryorder directing issuance of notice would not be excludedfrom the rigour of the proviso.

b)In the case of Ravi Dutta vs. Kiran Dutta and Another –[208 (2014) DLT 61][2], the High Court of Delhi reiteratedthat non-consideration of Domestic Incident Report by theTrial Court while deciding an application under Section 12of the D.V. Act violates the mandate of the said provisionand therefore the order passed by the Trial Court was heldto be unsustainable.

On an analysis of the aforesaid judgments from various HighCourts, we find that the High Courts of Andhra Pradesh, Bombay, Delhi,Gauhati, Himachal Pradesh, Jammu & Kashmir, Karnataka, and MadhyaPradesh, are right in holding that if Domestic Incident Report has beenreceived by the Magistrate either from the Protection Officer or theservice provider then it becomes obligatory on the part of the Magistrateto take note of the said report before passing an order on the applicationfiled by the aggrieved party, but if no complaint or application of domesticviolence is received by the Magistrate from the Protection Officer or

1 This judgment was explained in later decision of Ravi Kumar Bajpai (supra).

2 This judgment did not consider the earlier judgment in Shambhu Prasad Singh (supra)passed by the Delhi High Court itself.

Athe service provider, the question of considering such report does notarise at all. As already discussed, the D.V. Act does not make it mandatoryfor an aggrieved person to make an application before Magistrate onlythrough the Protection Officer or service provider. An aggrieved personcan directly make an application to the jurisdictional Magistrate by herselfor by engaging the services of an Advocate. In such case, the filing ofBa Domestic Incident Report by Protection Officer or service providerdoes not arise. In such circumstances, it cannot be held that the Magistrateis not empowered to make any order interim or final, under the provisionsof the D.V. Act, granting reliefs to the aggrieved persons. The Magistratecan take cognizance of the complaint or application filed by the aggrievedCperson and issue notice to the respondent under Section 12 of the D.V.Act even in the absence of Domestic Incident Report under Rule 5.Thus, the Magistrate has jurisdiction to take cognizance of the complaintunder Section 12 of the D.V. Act in the absence of Domestic IncidentReport under Rule 5 when the complaint is not filed on behalf of theaggrieved person through Protection Officer or service provider. SuchDa purposeful interpretation has to be given bearing in mind the fact thatthe immediate relief would have to be given to an aggrieved person andhence the proviso cannot be interpreted in manner which would becontrary to the object of the D.V. Act which renders Section 12 bereftof its object and purpose.E50. In this context, it would be useful to adumbrate on the principlesthat govern the interpretation to be given to proviso in the context ofmain provision.(a)The normal function of proviso is to except something outof the provision or to qualify something enacted thereinFwhich, but for the proviso, would be within the purview ofthe provision. As general rule, proviso is added to anenactment to qualify or create an exception to what is inthe enactment and ordinarily, proviso is not interpreted asstating general rule. In other words, proviso qualifiesGthe generality of the main enactment by providing anexception and taking out as it were, from the mainenactment, portion which, but for the proviso would fallwithin the main provision. Further, proviso cannot beconstrued as nullifying the provision or as taking awaycompletely right conferred by the enactment.H

[B. V. NAGARATHNA, J.]

(b)In this regard, learned Author, Justice G.P. Singh, in“Principles of Statutory Interpretation”, 15[th] Edition, hasenunciated certain rules collated from judicial precedents.Firstly, proviso is not to be construed as excluding oradding something by implication i.e., when on fairconstruction, the principal provision is clear, proviso cannotexpand or limit it. Secondly, proviso has to be construedin relation to which it is appended i.e., normally, provisodoes not travel beyond the provision to which it is proviso.A proviso carves out an exception to the main provision towhich it has been enacted as proviso and to no other.However, if proviso in statute does not form part of asection but is itself enacted as separate section, then itbecomes necessary to determine as to which section theproviso is enacted as an exception or qualification.Sometimes, proviso is used as guide to construction ofthe main section. Thirdly, when there are two possibleconstruction of words to be found in the section, the provisocould be looked into to interpret the main section. However,when the main provision is clear, it cannot be watered downby the proviso. Thus, where the main section is not clear,the proviso can be looked into to ascertain the meaning andscope of the main provision.

(c)According to Justice G.P. Singh, the learned author, theproviso should not be so construed as to make it redundant.In certain cases, “the legislative device of the exclusion isadopted only to exclude part from the whole, which, butfor the exclusion, continues to be part of it”, and words ofexclusion are presumed to have some meaning and are notreadily recognized as mere surplusage. As corollary, it isstated that proviso must be so construed that the mainenactment and the proviso should not become redundant orotiose. This is particularly so, where the object of provisosometimes is only by way of abundant caution, particularlywhen the operative words of the enactment are abundantlyclear. In other words, the purpose of proviso in such acase is to remove any doubt. There are also instances wherea proviso is in the nature of an independent enactment andnot merely, an exception or qualifying what has been stated

Abefore. In other words, if the substantive enactment isworded in the form of proviso, it would be an independentlegislative provision concerning different set ofcircumstances than what is worded before or what is statedbefore. Sometimes, proviso is to make distinction ofspecial cases from the general enactment and to provide itBspecially.

(d)At this stage, the construction or interpretation of provisocould be discussed as gathered from various judgments ofthis Court.

C(i)In Ishverlal Thakorelal Almaula vs. MotibhaiNagjibhai – [AIR 1966 SC 459], while dealing withthe Bombay Tenancy and Agricultural Lands Act,1948, this Court held, that proper function of aproviso is to except or qualify something enacted inthe substantive clause, which but for the proviso,Dwould be within that clause.

(ii)In Kaviraj Pandit Durga Dutt Sharma vs.Navaratna Pharmaceutical Laboratories – [AIR1965 SC 980], while considering the proviso toSection 6 of Trade Marks Act, 1940, it was observedthat it would not be reasonable construction forany statute, if proviso which in terms purports tocreate an exception and seeks to confer certainspecial rights on particular class of cases includedin it should be held to be otiose and to have achievednothing.

(iii)In Kedarnath Jute Manufacturing Co. Ltd. vs. TheCommercial Tax Officer and Others, [AIR 1966SC 12], it was observed that “the effect of anexcepting or qualifying proviso, according to theordinary rules of construction, is to except out of thepreceding portion of the enactment or to qualifysomething enacted therein, which, but for the proviso,would be within it”. [See “Craies” on Statute Law -6th Edition - P. 217]. In this case, the Court wasconsidering Section 5(2) (a) (ii) of Bengal Finance

Sales Tax Act, 1941 and Rule 27-A of Bengal SalesTax Rules.

(iv)In Dattatraya Govind Mahajan and Others Vs.The State of Maharashtra and another – [AIR1977 SC 915], Constitution Bench of the ApexCourt, while considering the amendment made toBMaharashtra Agricultural Lands (Ceiling on Holdings)Act, 1961, in the context of Article 31B of theConstitution and the second proviso thereto, reiteratedwhat was stated in Ishverlal’s case, (supra).

(v)In S. Sundaram Pillai, etc, vs. V.R. PattabiramanC– [AIR 1985 SC 582], while dealing with the scopeof proviso and explanation to sub - section (2) ofSection 10 of Tamil Nadu Buildings (Lease and RentControl) Act, 1960, this Court held that proviso mayhave three separate functions. Normally, proviso isDmeant to be an exception to something within themain enactment or qualifying some thing enactedtherein which, but for the proviso, would be withinthe purview of the enactment. In other words, aproviso cannot be torn apart from the mainenactment, nor can it be used to nullify or set at naughtEthe real object of the main enactment. Sometimes, aproviso may exceptionally have the effect of asubstantive enactment.

(e)After referring to several legal treatises and judgments, thisCourt held in the above judgment as under:-

“43. We need not multiply authorities after authorities onthis point because the legal position seems to be clearly andmanifestly well established. To sum up, proviso may servefour different purposes:

(1) qualifying or excepting certain provisions from the mainenactment;

(2) it may entirely change the very concept of theintendment of the enactment by insisting on certainmandatory conditions to be fulfilled in order to make theenactment workable;

(3) it may be so embedded in the Act itself as to become anintegral part of the enactment and thus acquire the tenorand colour of the substantive enactment itself; and

(4) it may be used merely to act as an optional addenda tothe enactment with the sole object of explaining the realBintendment of the statutory provision.”

(f)The approach to the construction and interpretation of aproviso is enunciated in the following cases.

(i) In M. Pentiah vs. Muddala Veeramallappa – [AIR1961 SC 1107], it was observed that while interpretingCa section or proviso, if the choice is between twointerpretations, the narrower of which would fail toachieve the manifest purpose of the legislation, oneshould avoid construction which would reduce thelegislation to futility and should rather accept the bolderconstruction based on the view that Parliament wouldDlegislate only for the purpose of bringing about aneffective result.

(ii) In Superintendent & Remembrancer of LegalAffairs to Govt. of West Bengal vs. Abani Maity -E[AIR 1979 SC 1029], this Court observed that thestatute is not to be interpreted merely from thelexicographer’s angle. The Court must give effect tothe will and in-built policy of the Legislature asdiscernible from the object and scheme of the enactmentand the language employed therein. The words in aFstatute often take their meaning in the context of astatute as whole. They are, therefore, not to beconstrued in isolation.

51. In the instant case, when the proviso is read in the context ofthe main provision which begins with the words ‘an aggrieved person orGa Protection Officer or any other person on behalf of the aggrievedperson may present an application to the Magistrate seeking one or morereliefs under the D.V. Act’ would clearly indicate that the aggrievedperson can by herself or through her advocate approach the Magistratefor seeking any of the reliefs under the D.V. Act. In such an event, thefiling of Domestic Incident Report does not arise. The use of theH

expression ‘shall’ in the proviso has to be read contextually i.e., theMagistrate is obliged to take into consideration any Domestic IncidentReport received by him when the same has been filed from the ProtectionOfficer or the service provider in case where the application is madeto the Magistrate on behalf of the aggrieved person through ProtectionOfficer or service provider. If the intention of the Parliament had beenthat filing of the Report by the Protection Officer is condition precedentfor the Magistrate to act upon the complaint filed by an aggrieved personeven when she files it by herself or through her advocate then it wouldhave been so expressed. But conjoint reading of Sub-Section (1) ofSection 12 with the proviso does not indicate such an intention. Thus, theplenitude of power under Section 12 of the D.V. Act is accordinglyinterpreted and pre-requisite for issuing notice to the respondent on anapplication filed by the aggrieved person without the assistance of aProtection Officer or service provider and thus there being an absenceof Domestic Incident Report, does not arise. If contrary interpretationis to be given then the opening words of Sub-Section (1) of Section 12would be rendered otiose and it would be incumbent for every aggrievedperson to first approach Protection Officer or service provider, asthe case may be, and get Domestic Incident Report prepared andthereafter to approach the Magistrate for reliefs under the D.V. Act,which is not the intention of the Parliament. Hence, in our view, thejudgments of the Madhya Pradesh High Court in Rama Singh vs. MayaSingh – [(2012) 4 MPLJ 612] and the Delhi High Court in Ravi Duttavs. Kiran Dutta and Another – [2018 (2014) DLT 61], do not laydown the correct law and are hereby overruled while we affirm all otherjudgments referred to supra which are in consonance with the line ofinterpretation made above.

52. In view of the above discussion, the three questions raised inthis appeal are answered as under:

“(i) Whether the consideration of Domestic Incidence Report ismandatory before initiating the proceedings under DomesticViolence Act, 2005 in order to invoke substantive provisions ofSections 18 to 20 and 22 of the said Act?”

It is held that Section 12 does not make it mandatory for aMagistrate to consider Domestic Incident Report filed by ProtectionOfficer or service provider before passing any order under the D.V.Act. It is clarified that even in the absence of Domestic Incident Report,

Aa Magistrate is empowered to pass both ex parte or interim as well as afinal order under the provisions of the D.V. Act.

“(ii) Whether it is mandatory for the aggrieved person to residewith those persons against whom the allegations have been leviedat the point of commission of violence?”

It is held that it is not mandatory for the aggrieved person, whenshe is related by consanguinity, marriage or through relationship in thenature of marriage, adoption or are family members living together as ajoint family, to actually reside with those persons against whom theallegations have been levelled at the time of commission of domesticCviolence. If woman has the right to reside in the shared householdunder Section 17 of the D.V. Act and such woman becomes anaggrieved person or victim of domestic violence, she can seek reliefsunder the provisions of D.V. Act including enforcement of her right tolive in shared household.

D“(iii) Whether there should be subsisting domestic relationshipbetween the aggrieved person and the person against whom therelief is claimed?”

It is held that there should be subsisting domestic relationshipbetween the aggrieved person and the person against whom the relief isEclaimed vis-à-vis allegation of domestic violence. However, it is notnecessary that at the time of filing of an application by an aggrievedperson, the domestic relationship should be subsisting. In other words,even if an aggrieved person is not in domestic relationship with therespondent in shared household at the time of filing of an applicationunder Section 12 of the D.V. Act but has at any point of time lived so orFhad the right to live and has been subjected to domestic violence or islater subjected to domestic violence on account of the domesticrelationship, is entitled to file an application under Section 12 of the D.V.Act.

53. Consequently, the judgment dated 23[rd] July, 2019 passed byGthe High Court of Uttarakhand in Criminal Revision No. 186 of 2014 aswell as the judgment dated 11[th] July, 2014 passed by the Vth AdditionalSessions Judge, Dehradun in Criminal Appeal No. 53 of 2011 are setaside and the order passed by the Special Judicial Magistrate-I inMiscellaneous Case No. 78 of 2007, Dehradun is affirmed.H

54. The appeal is allowed in the aforesaid terms.

55. Parties to bear their respective costs.

56. Before parting with this case, we express our appreciation tothe valuable services rendered by Shri Gaurav Agarwal, learned amicuscuriae, who has painstakingly researched all the relevant judgments onthe questions raised in this case arising from various High Courts andhas made his submission schematically with particular reference to thefacts of the case and all relevant provisions of the D.V. Act.

Nidhi Jain

Appeal allowed.

(Assisted by : Tamana, LCRA)