Whether the consideration of Domestic Incidence
Report is mandatory before initiating the proceedings
under Domestic Violence Act, 2005 in order to invoke
substantive provisions of Sections 18 to 20 and 22 of
the said Act?”
It is held that Section 12 does not make it mandatory for a
Magistrate to consider a Domestic Incident Report filed by a
Protection Officer or service provider before passing any order
under the D.V. Act. It is clarified that even in the absence of a
Domestic Incident Report, a Magistrate is empowered to pass both
ex parte or interim as well as a final order under the provisions of
the D.V. Act.
Whether it is mandatory for the aggrieved person to
reside with those persons against whom the allegations
have been levied at the point of commission of violence?”
held that
It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household
Whether there should be a subsisting domestic
relationship between the aggrieved person and the
person against whom the relief is claimed?”
held that
It is held that there should be a subsisting domestic
relationship between the aggrieved person and the person against
whom the relief 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 relationship
should be subsisting. In other words, even if an aggrieved person
is not in a domestic relationship with the respondent in a shared
household at the time of filing of an application under Section 12
of the D.V. Act but has at any point of time lived so or had the
right to live and has been subjected to domestic violence or is later
subjected to domestic violence on account of the domestic
relationship, is entitled to file an application under Section 12 of
the D.V. Act.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 511 OF 2022
PRABHA TYAGI …….APPELLANT(S)
VS.
KAMLESH DEVI …….RESPONDENT(S)
J U D G M E N T
NAGARATHNA J.
The aggrieved person, being the appellant herein, who had
filed Miscellaneous Case No. 78 of 2007 on the file of the Court of
Special Judicial Magistrate- I, Dehradun, has assailed judgment
dated 23rd July, 2019 passed by the High Court of Uttarakhand
at Nainital, in Criminal Revision No. 186 of 2014, by which the
judgment dated 11th July, 2014 passed by the Vth Additional
Sessions Judge, Dehradun, in Criminal Appeal No. 53 of 2011
setting aside the order passed by the Special Judicial
Magistrate-I, was sustained.
2
2. For the sake of convenience, the parties herein shall be
referred to in terms of their rank and status before the Trial Court.
Factual Background:
3. According to the aggrieved person, her marriage with
Kuldeep Tyagi (since deceased) son of late Vishnudutt Tyagi was
solemnized on 18th June, 2005 at Haridwar District, Uttarakhand
as per Hindu rites and rituals and in connection with the
marriage, the family members of the aggrieved person had given
dowry to the family of her deceased husband and Stridhana to the
aggrieved person. For the period immediately following 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 husband and the respondents in village Jhabreda. That
Kuldeep Tyagi, husband of the aggrieved person died on 15th July,
2005 in a car accident and after the Terhanvi ceremony of her
husband, the aggrieved person was constrained to reside initially
at Delhi, at her father’s house. That immediately prior to the death
of her husband, the aggrieved person had conceived a child.
4. That on 30th March, 2006 the aggrieved person gave birth to
a daughter and owing to the misbehavior and torture meted out
3
to her by her matrimonial family after her husband’s death, she
moved to Dehradun, Uttarakhand with her daughter, where she
began working as a teacher to support herself and her child. That
the Stridhana given to her at the time of her wedding was never
allowed to be enjoyed by her and even following her exit from her
matrimonial home, the Stridhana was being used by her in-laws,
respondent nos. 1 to 6. That the aggrieved person had sent a legal
notice dated 22nd November, 2006, requesting them to return the
articles of Stridhana, however, there was no response to the same.
5. That the father of the aggrieved person had gifted her a
Maruti (Alto) car, at the time of her wedding and the same was
registered in the name of her deceased husband. Owing to the
accident that her husband had met with, resulting in his death,
the said car had also been damaged. That the aggrieved person’s
mother-in-law had submitted an application before the insurance
company, National Insurance Company which was processing the
claim for damage caused to the car, stating therein that she was
the mother of the deceased and was the only legal heir of the
deceased and therefore any compensation may be made in her
favour.
6. That there exists a land in village Jhabreda to which the
deceased husband of the aggrieved person had right and title.
4
That respondent no. 1- mother-in-law, on being instigated by the
other respondents objected to the recording of the aggrieved
persons’ name in the revenue records of the said property.
Respondent no. 1 objected by stating that the child borne by
aggrieved person was not Kuldeep Tyagi’s daughter. Owing to
such objection, the Court of Tehsildar passed an order of status
quo with respect to the said property.
7. That the respondents, on several occasions threatened the
aggrieved person that she would face dire consequences if she
ever attempted to claim any right over her husband’s property.
That the respondents, having no sympathy towards the aggrieved
person who had, while pregnant, lost her husband in a fatal
accident, tortured her mentally by denying that her child was the
daughter of Kuldeep Tyagi.
8. With the aforesaid averments, the aggrieved person
approached the Court of the Special Judicial Magistrate under
Section 12 and sought protection orders, residence orders and
compensation orders to be passed under various provisions of the
Protection of Women from Domestic Violence Act, 2005 (for short,
the ‘D.V. Act’). Further, prayers were also made for monetary
reliefs under Section 22 of the D.V. Act.
5
9. In response to the aforesaid application filed by the
aggrieved person, the respondents filed a joint written statement
to the effect that the marriage of the aggrieved person with
Kuldeep Tyagi was solemnized at a simple ceremony in Haridwar,
on 18th June, 2005. That no dowry or articles of Stridhana were
handed over to the respondents at the time of the ceremony,
therefore, the question of returning the same to the aggrieved
person by the respondents would not arise. That the aggrieved
person could not have conceived a child through the deceased in
a span of twenty-eight days from the date of the marriage and as
such a claim was not only false but unnatural.
10. That the respondents had, in no way, tortured the aggrieved
person. That her statement to the effect that she was residing in
the ancestral home of her husband, during the period
immediately following her wedding, was untrue as she only stayed
with the respondents for one night after her marriage.
11. As regards the Maruti (Alto) car, it was stated that the same
was not a part of the Stridhana given in favour of the aggrieved
person, but was purchased by Kuldeep Tyagi, after borrowing
money for this purpose from respondent no. 1.
That the aggrieved person had, by presenting false facts had
got her name entered as the legal heir of Kuldeep Tyagi in relation
6
to a land owned by him. That in the said application dated 31st
March, 2006, she had stated that Kuldeep Tyagi had no issue or
heirs. That an order of status quo was obtained by respondent no.
1 by presenting the correct facts before the Tehsildar.
It was averred that the respondents had not committed any
acts of domestic violence. In that background, the respondents
prayed before the Trial Court that the application filed by the
aggrieved person-victim be dismissed.
12. The Special Judicial Magistrate- I, Dehradun, by judgment
dated 12th May, 2011 partly allowed the application filed by the
aggrieved person and directed the respondents to pay Rs.10,000/-
as monetary compensation for insulting and maligning the
aggrieved person. The articles of Stridhana mentioned in the list
enclosed with the application, except the Maruti (Alto) Car, were
to be made available to the aggrieved person at her Dehradun
residence. It was also directed that the respondents shall not
obstruct the aggrieved person and her daughter from 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 effect
that it was unnatural that the aggrieved person was
impregnated within twenty-eight days was unnatural, the
7
Trial Court observed that there was an absolute possibility
of such fact. In holding so, the Trial Court relied on the
submission of the respondents to the effect that the
aggrieved person left their ancestral home on 20th June,
2005 to live independently with her husband. In light of the
said submission, the Trial Court noted that the aggrieved
person lived with her husband till the day of his death and
therefore there was nothing unnatural about her pregnancy
and therefore, the contention of the respondents that the
daughter was not Kuldeep Tyagi’s, was baseless.
ii) That no adverse inference could be drawn from the fact
that the aggrieved person had wrongly stated in the
application filed before the Tehsildar to the effect that
Kuldeep 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 aggrieved
person’s daughter was likely to have caused emotional
harm to her, thereby also affecting her profession as a
teacher. In that light, it was observed the aggrieved person
was a victim of domestic violence under Section 1 (d) (iii)
of the D.V. Act. A symbolic amount of Rs.10,000/- was
awarded to compensate the victim for emotional loss
suffered.
8
iv) That the victim left her matrimonial home thirteen days
after her husband died, owing to repeated taunts and
abuses by the respondents. That no cross examination was
conducted by the respondents to controvert this fact.
Therefore, it was established that the victim did not leave
her matrimonial home of her own will, but because of
conduct of the respondents.
v) That the aggrieved person had not re-married, following
the death of Kuldeep Tyagi. Therefore, she continued to
remain the daughter-in-law of the respondents’ family and
had rights over the property of her deceased husband.
Relief was granted under Section 19 of the D.V. Act, for
independent residence with liberty to visit her husband’s
house since there was no evidence to show that the
matrimonial home of the victim was in the sole ownership
of the mother-in-law of the victim. That she would be
entitled to enjoy the same facilities as enjoyed by her
deceased husband during his lifetime. The respondents
were restrained from disturbing the rights of the victim to
her husband’s property. However, it was clarified that the
Judicial Magistrate had no jurisdiction to pass any orders
in relation to getting the name of the victim entered in the
revenue records.
9
vi) That no evidence was put forth by the respondents which
would establish that no Stridhana was given at the time of
the marriage. Therefore, all articles of Stridhana as listed
in the list annexed with the application filed before the
Magistrate, were directed to be returned to the victim.
13. Being aggrieved, respondent no. 1, mother-in-law of the
aggrieved person, preferred Criminal Appeal No. 53 of 2011 before
the Vth Additional Sessions Judge, Dehradun. By judgment dated
11th July, 2014, the First Appellate Court set aside the judgment
of the Trial Court, dated 12th May, 2011.
The relevant findings of the First Appellate Court are
encapsulated as under:
i) That the aggrieved person never lived in the shared
household belonging to the respondents, situated in
Jhabreda, but lived in Roorkee with her husband. That the
aggrieved person maintained a house in Roorkee and used
to travel daily to Jhabreda for work, but never shared a
household with the respondents.
ii) Given that the aggrieved person never lived in Jhabreda with
the respondents, it was improbable that her family had
delivered the articles of Stridhana to the respondents in
Jhabreda. That the possession of Stridhana was not vested
10
with the respondents. Therefore, no question would arise as
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 to
establish that following the death of her husband, she had
lived in Jhabreda with the respondents for thirteen days.
That she continued to live at Roorkee even after the death of
her husband. That in the absence of any evidence to
demonstrate that the aggrieved person ever lived with the
respondents, no case was made out for domestic violence on
the part of the respondents. That the aggrieved person was
not entitled to any relief in terms of a residence order, till
such time as she is allotted a specific share following legal
partition of the property held in joint ownership of her
deceased husband and the respondents.
iv) That in the absence of any evidence as to the delivery of
Stridhana to the respondents, no orders could be passed for
restoration of possession of Stridhana articles in favour of
the aggrieved person.
14. Aggrieved by the judgment of the First Appellate Court, the
aggrieved person preferred a criminal revision petition before the
High Court of Uttarakhand at Dehradun. By judgment dated 23rd
11
July, 2019, the criminal revision petition was dismissed and the
judgment of the Vth Additional Sessions Judge, Dehradun was
sustained.
The following findings were recorded by the High Court in
the impugned judgment:
i) That as per the provisions of Section 12 (1) of the D.V. Act,
a Domestic Incident Report is required to be mandatorily
filed by a Protection Officer or a service provider before the
Magistrate and the Magistrate may take cognizance of an
offence under the D.V. Act on the basis of such report. That
in the present case, the aggrieved person had only filed an
application alleging domestic violence and since the same
was not accompanied by a report, the conditions of Section
12 (1) of the D.V. Act were not satisfied.
ii) That in order to establish that the respondents had
committed violence as contemplated under the D.V. Act, it
is required that the aggrieved person was sharing a
household with the respondents and there was a domestic
relationship between the parties. That the aggrieved person
was residing separately from the respondents from the day
of her marriage. That there was no domestic relationship
between the aggrieved person and the respondents,
12
therefore, no relief could be granted under the provisions of
the D.V. Act.
iii) That it could not be accepted that all articles of Stridhana
which were purchased in Roorkee as per the bills presented
in this regard, were delivered to the respondents in
Jhabreda.
The aggrieved appellant has approached this Court
challenging the judgments of the First Appellate Court and the
High Court.
Submissions:
15. We have heard Shri Gaurav Agrawal, learned amicus curiae
on behalf of the appellant-aggrieved person and Shri K.K.
Srivastava, learned counsel appearing on behalf of the
respondent. We have perused the material on record.
16. The submissions of Shri Gaurav Agrawal, learned amicus
curiae, are as under:
(i) At the outset, he contended that the High Court and the
First Appellate Court had erred in setting aside the
judgment of the Court of the Special Judicial Magistrate- I,
Dehradun, dated 12th May, 2011 on the primary ground that
aggrieved person was not sharing a household with the
13
respondents and there was no domestic relationship
between the parties and therefore, no relief could be granted
under the provisions of the D.V. Act. Elaborating on the said
contention, learned amicus curiae for the appellantaggrieved person referred to Sections 2 (f) and 2 (s) of the
D.V. Act to contend that an aggrieved person has to be in a
‘domestic relationship’ as defined under the D.V. Act in
order to attract the provisions of the D.V. Act. If such a
person is living, or has at any point of time lived together in
a ‘shared household’ with the persons against whom
allegations of domestic violence have been made, the
provisions of the D.V. Act would apply. That in the present
case, the aggrieved person, had, following the death of her
husband on 15th July, 2005, resided in the family home of
the respondents at Ulheda and resided there for a period of
thirteen days. That such residence could not continue owing
to the conduct of the respondents who subjected the
aggrieved person to mental abuse, causing her to leave the
shared household. That attempts made by the aggrieved
person to re-enter the shared household were obstructed by
the respondents. Having regard to the short span of her
marital life owing to the death of her husband and the fact
that she was denied entry and residence at the shared
14
household following her husband’s death, the length of the
period during which household was shared by the parties,
ought not be a consideration having the effect of denying the
protection of the D.V. Act to the aggrieved person.
(ii) It was next contended that the death of the aggrieved
person’s husband would not result in cessation of the
domestic relationship. That the appellant-aggrieved person
would continue to be related to the respondents by virtue of
her marriage. That the only factor disabling the aggrieved
person from continuing in a domestic relationship with the
respondents was the conduct of the respondents.
Nevertheless, she would be eligible to claim protection under
the D.V. Act because the definition of ‘domestic relationship’
as provided under Section 2 (s) of the D.V. Act which
includes not only a relationship between two people who
presently live together in a shared household, but also
extends to persons who have, at any point of time lived
together in a shared household. That the short period,
following the death of her husband, during which the
aggrieved person shared a household with the respondents
would qualify as a period during which the aggrieved person
and the respondents were in a ‘domestic relationship’.
15
(iii) It was submitted that it is not mandatory for the aggrieved
person to reside, at the point of time when commission of
violence, with those persons against whom the allegations
of violence have been levelled. In this context, reference was
made to the decision of this Court in Satish Chander
Ahuja vs. Sneha Ahuja – [(2021) 1 SCC 414] wherein the
phrase ‘lives or at any stage has lived’, as appearing in
Section 2 (s) of the D.V. Act was interpreted to mean such
household which the aggrieved person shared with the
respondents, at the time of filing the application under the
D.V. Act or a household which the aggrieved person had
been excluded from in the recent past. In light of the said
decision, it was urged that it is not necessary that the
respondents must have been living with the aggrieved
person at the time when the alleged acts of domestic
violence were perpetuated as there is no statutory
requirement to this effect. That subject to the caveat that an
aggrieved person, has, at some point, shared a household
with the persons who have allegedly committed acts of
domestic violence, then any act of domestic violence
committed by such persons during the period in which the
parties were living in the shared household, or even
16
subsequent to such period, would entitle the aggrieved
person to approach a competent Court under Section 12 of
the D.V. Act.
(iv) It was urged that the provisions of the D.V. Act must be
interpreted in a manner, so as to, ensure that the protection
granted to women under the D.V. Act is made available to
them in the widest amplitude. That restricting the scope of
domestic violence cases, only to matters wherein domestic
violence was committed against the aggrieved person, while
she was residing at the shared household, would not
sufficiently achieve the objects of the enactment.
(v) Learned amicus curiae, Shri Gaurav Agrawal, next
contended that the High Court had erred in holding that a
Domestic Incident Report is required to be mandatorily filed
by a Protection Officer before the Magistrate and it is only
on the basis of such report that the Magistrate may take
cognizance of the commission of domestic violence. Learned
amicus curiae for the appellant-aggrieved person referred to
Rule 5 of the Protection of Women from Domestic Violence
Rules, 2006 (for short, the ‘D.V. Rules’) which requires a
Protection Officer to prepare a Domestic Incident Report on
receiving a complaint of domestic violence and submit the
17
same to the Magistrate and forward copies of the Report to
a police officer in charge of the police station having
jurisdiction over the area were the alleged acts of domestic
violence have taken place, and to the service providers in
the area. Having regard to the said Rule, it was contended
that the requirement to prepare a Domestic Incident Report
arises only in cases where a complaint has been made by an
aggrieved person, to a Protection Officer. That a Magistrate
who entertains an application submitted under Section 12
of the D.V. Act, is not required by any statutory provision,
to call for a Domestic Incident Report. That an application
under Section 12, may be disposed of even without requiring
a Domestic Incident Report to be submitted. That the only
requirement of Section 12, is that, in the event that a
complaint is made to a Protection Officer and such officer
has submitted a report, the Magistrate shall consider the
same. That in cases where a complaint is not made by a
Protection Officer, there arises no reason to specifically call
for and consider a Domestic Incident Report.
(vi) In this context, reference was made to Section 12 of the D.V.
Act which enables an aggrieved person or a Protection
Officer to make an application before the Magistrate seeking
reliefs under the D.V. Act. It was submitted that in cases
18
where an aggrieved person independently makes an
application before the Magistrate, there would be no
requirement on the part of the Magistrate to consider or call
for a Domestic Incident Report. However, in cases where the
application has been made by a Protection Officer, the same
shall be mandatorily accompanied by a Domestic Incident
Report and when such report is submitted, the Magistrate
is required to consider the same.
(vii) It was submitted that the statutory intention could not be
to the effect that the Magistrate shall not entertain
proceedings or grant relief under Sections 18 to 20 and
Section 22 of the D.V. Act in the absence of the Domestic
Incident Report. That such an interpretation would defeat
the purposes of the D.V. Act as it would act as a bar against
the Magistrate to pass orders in the absence of the report.
(viii) It was contended that the High Court and the First Appellate
Court had failed to view the matter in the true and correct
perspective, having regard to the purpose of enactment of
the D.V. Act. In the above backdrop, it was prayed that the
judgments of the High Court and the First Appellate Court
may be set aside and the judgment of the Trial Court may
be restored.
19
17. Per contra, learned counsel for the respondent supported the
impugned judgments of the High Court and the First Appellate
Court and contended that the said judgments are justified and
hence, do not call for interference by this Court by submitting as
under :
(i) It was denied that the aggrieved person was in a domestic
relationship with the respondents. It was submitted that the
aggrieved person, following her marriage with Kuldeep
Tyagi, was residing with him in Roorkee District, Haridwar
and not with the respondents, in Jhabreda. That her place
of residence, had been recorded as Roorkee, in the
application filed under the D.V. Act before the Magistrate,
as well as in the application submitted before the revenue
authorities for mutation of her name in the revenue records
pertaining to the property belonging to her deceased
husband. That even following the death of Kuldeep Tyagi,
the aggrieved person did not reside with the respondents.
That the aggrieved person was working as a teacher and
there was no evidence led to establish that she had taken
leave from her job and resided in Jhabreda for thirteen days
following the death of her husband.
It was contended that in view of the said facts, it could
not be held that a ‘domestic relationship’ subsisted between
20
the parties, on the basis of which relief could be claimed
under the D.V. Act. That based on the very nomenclature of
the D.V. Act, any violence alleged under the D.V. Act must
always be in relation to a ‘domestic relationship’ and
therefore, subsistence of a domestic relationship would be a
precondition to invoke Section 12 of the D.V. Act and grant
reliefs contemplated under Section 18 to 20 and Section 22
of the D.V. Act.
(ii) It was submitted that the facts, as narrated by the aggrieved
person in the application made before the Magistrate are
inaccurate and provide a fabricated version of events.
(iii) It was next contended that the aggrieved person had failed
to prove that her family had delivered possession of articles
of Stridhana to the respondents. That the receipts of the
articles purchased, would show that the articles were
purchased in Roorkee and therefore, it would be rather
improbable that the same were delivered to the respondents
at their residence in Jhabreda. It was therefore urged that
no assumption could be made that the Stridhana stood in
the custody of the in-laws of the aggrieved person.
(iv) It was further urged that in the absence of a Domestic
Incident Report, the Magistrate could not have taken
21
cognizance of the matter. That Section 12 (1) casts a
mandatory duty on the Magistrate to consider the Domestic
Incident Report submitted under the D.V. Act for initiation
of proceedings, and it is only after consideration of the same
that the substantive provisions of the Sections 18 to 20 and
Section 22 of the D.V. Act may be applied to extend benefit
of the same to an aggrieved person. In support of this
contention, Shri K.K. Srivastava referred to the language of
Section 12 (1) to contend that the phrase used in the proviso
is ‘shall take into consideration any Domestic Incident Report’
thereby suggesting that the requirement to consider a
Domestic Incident Report is a mandatory one, irrespective
of whether or not a complainant was made before the
Protection Officer prior to filing an application before the
Magistrate. That non-consideration of the Domestic Incident
Report would strike at the very root of the matter and such
irregularity would render the decision of the Magistrate, a
nullity.
(v) It was lastly submitted that proceedings under the D.V. Act
were ill-motivated, misconceived and were initiated with the
sole intention to harass the respondents and more
specifically, respondent no. 1, being the mother-in-law of
the aggrieved person, aged over 80 years. That the High
22
Court and First Appellate Court rightly set aside the
decision of the Magistrate and held that no relief could be
granted to the aggrieved person under the D.V. Act. That the
judgments of the High Court and First Appellate Court are
based on a true and correct appreciation of the law, as
applicable to the facts of the present case and the same may
not be interfered with by this Court.
18. Learned counsel for the respective parties have relied upon
certain judgments of this Court and various High Courts in
support of their submissions. The same shall be referred to later.
Points for Consideration:
19. The submissions of the learned amicus curiae /counsel for
the respective sides were on the following points for consideration
which were raised vide order dated 11th February, 2022:
“(i) Whether the consideration of Domestic Incident
Report is mandatory before initiating the proceedings
under D.V. Act, in order to invoke substantive
provisions of Sections 18 to 20 and 22 of the said Act?
(ii) Whether it is mandatory for the aggrieved person to
reside with those persons against whom the allegations
have been levelled at the point of commission of
violence?
(iii) Whether there should be a subsisting domestic
relationship between the aggrieved person and the
person against whom the relief is claimed?”
23
Legal Framework:
20. For an easy and immediate reference, the following
provisions of the Protection of Women from D.V. Act are extracted
as under:
“2. Definitions.—In this Act, unless the context
otherwise requires,—
(a) ‘aggrieved person’ means any woman who
is, or has been, in a domestic relationship with
the respondent and who alleges to have been
subjected to any act of domestic violence by the
respondent;
x x x
(e) ‘domestic incident report’ means a report made
in the prescribed form on receipt of a complaint
of domestic violence from an aggrieved person;
(f) ‘domestic relationship’ means a relationship
between two persons who live or have, at any
point of time, lived together in a shared
household, when they are related by
consanguinity, marriage, or through a
relationship in the nature of marriage, adoption
or are family members living together as a joint
family;
x x x
(s) ‘shared household’ means a household where
the person aggrieved lives or at any stage has
lived in a domestic relationship either singly or
along with the respondent and includes such a
house hold whether owned or tenanted either
jointly by the aggrieved person and the
respondent, or owned or tenanted by either of
them in respect of which either the aggrieved
person or the respondent or both jointly or singly
have any right, title, interest or equity and
includes such a household which may belong to
the joint family of which the respondent is a
member, irrespective of whether the respondent
or the aggrieved person has any right, title or
interest in the shared household.”
24
“3. Definition of domestic violence.—For the
purposes of this Act, any act, omission or
commission or conduct of the respondent shall
constitute domestic violence in case it—
(a) harms or injures or endangers the health,
safety, life, limb or well-being, whether mental or
physical, of the aggrieved person or 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 person with a view to coerce her or any
other person related to her to meet any unlawful
demand for any dowry or other property or
valuable security; or
(c) has the effect of threatening the aggrieved
person or any person related to her by any
conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether
physical or mental, to the aggrieved person.
Explanation I.—For the purposes of this
section,—
(i) ‘physical abuse’ means any act or conduct
which is of such a nature as to cause bodily pain,
harm, or danger to life, limb, or health or impair
the health or development of the aggrieved person
and includes assault, criminal intimidation and
criminal force;
(ii) ‘sexual abuse’ includes any conduct of a
sexual nature that abuses, humiliates, degrades
or otherwise violates the dignity of woman;
(iii) ‘verbal and emotional abuse’ includes-
(a) insults, ridicule, humiliation, name calling
and insults or ridicule specially with regard to not
having a child or a male child; and
(b) repeated threats to cause physical pain to any
person in whom the aggrieved person is
interested;
(iv) ‘economic abuse’ includes—
(a) deprivation of all or any economic or financial
resources to which the aggrieved person is
entitled under any law or custom whether
payable under an order of a court or otherwise or
which the aggrieved person requires out of
necessity including, but not limited to, house
25
hold necessities for the aggrieved person and her
children, if any, Stridhana, property, jointly or
separately owned by the aggrieved person,
payment of rental related to the shared house
hold and maintenance;
(b) disposal of household effects, any alienation of
assets whether movable or immovable, valuables,
shares, securities, bonds and the like or other
property in which the aggrieved person has an
interest or is entitled to use by virtue of the
domestic relationship or which may be
reasonably required by the aggrieved person or
her children or her Stridhana or any other
property jointly or separately held by the
aggrieved person; and
(c) prohibition or restriction to continued access
to resources or facilities which the aggrieved
person is entitled to use or enjoy by virtue of the
domestic relationship including access to the
shared household.
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 and
circumstances of the case shall be taken into
consideration.”
x x x
“12. Application to Magistrate.—(1) An
aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person
may present an application to the Magistrate
seeking one or more reliefs under this Act:
Provided that before passing any order on such
application, the Magistrate shall take into
consideration any Domestic Incident Report
received by him from the Protection Officer or the
service provider.
(2) The relief sought for under Sub-Section (1)
may include a relief for issuance of an order for
payment of compensation or damages without
prejudice to the right of such person to institute
a suit for compensation or damages for the
injuries caused by the acts of domestic violence
committed by the respondent:
Provided that where a decree for any amount as
compensation or damages has been passed by
26
any court in favour of the aggrieved person, the
amount, if any, paid or payable in pursuance of
the order made by the Magistrate under this Act
shall be set off against the amount payable under
such decree and the decree shall,
notwithstanding anything contained in the Code
of Civil Procedure, 1908 (5 of 1908), or any other
law for the time being in force, be executable for
the balance amount, if any, left after such set off.
(3) Every application under Sub-Section (1) shall
be in such form and contain such particulars as
may be prescribed or as nearly as possible
thereto.
(4) The Magistrate shall fix the first date of
hearing, which shall not ordinarily be beyond
three days from the date of receipt of the
application by the court.
(5) The Magistrate shall Endeavour to dispose of
every application made under Sub-Section (1)
within a period of sixty days from the date of its
first hearing.”
x x x
“17. Right to reside in a shared household.—
(1) Notwithstanding anything contained in any
other law for the time being in force, every woman
in a domestic relationship shall have the right to
reside in the shared household, whether or not
she has any right, title or beneficial interest in the
same.
(2) The aggrieved person shall not be evicted or
excluded from the shared household or any part
of it by the respondent save in accordance with
the procedure established by law.”
x x x
“23. Power to grant interim and ex parte
orders.—(1) In any proceeding before him under
this Act, the Magistrate may pass such interim
order as he deems just and proper.
(2) If the Magistrate is satisfied that an
application prima facie discloses that the
respondent is committing, or has committed an
act of domestic violence or that there is a
likelihood that the respondent may commit an act
of domestic violence, he may grant an ex parte
order on the basis of the affidavit in such form, as
may be prescribed, of the aggrieved person under
27
section18, section 19, section 20, section 21 or,
as the case may be, section 22 against the
respondent.”
21. Before proceeding further, it would be useful to refer to the
following relevant judgments of this Court wherein this Court has
interpreted various provisions of the D.V. Act :
a) In Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and
Another – [(2014) 10 SCC 736], this Court while
interpreting the definition of aggrieved person under Section
2(a) of the D.V. Act held that apart from the woman who is
in a domestic relationship, any woman who has been in a
domestic relationship with the respondent, if alleged to have
been subjected to any act of domestic violence by the
respondent comes within the meaning of aggrieved person.
Further, Section 2(f) of the D.V. Act states that a person
aggrieved (widow herein) who, at any point of time has lived
together with the husband in a shared household is covered
by the meaning of domestic relationship. Also, Section 2(s)
of the D.V. Act states that if the person aggrieved at any
stage has lived in a domestic relationship with the
respondent in a house, can claim a right in a shared
household.
After analysing the relevant provisions of the D.V. Act,
this Court while referring to V.D. Bhanot vs. Savita
28
Bhanot – [(2012) 3 SCC 183], held that the conduct of the
parties even prior to coming into force of the D.V. Act could
be taken into consideration while passing an order under
Sections 18, 19 and 20 thereof. The wife who had shared a
household in the past but was no longer residing with her
husband can file a petition under section 12 if subjected to
domestic violence. It was further observed that where an act
of domestic violence is once committed, then a subsequent
decree of divorce will not absolve the liability of the
respondent from the offence committed or to deny the
benefit to which the aggrieved person is entitled to.
b) In the case of Krishna Bhattacharjee vs. Sarathi
Choudhury and Another - [(2016) 2 SCC 705], this Court
held that a claim for recovery of Stridhana, two years after a
decree of judicial separation is maintainable. The Court held
that judicial separation does not change the status of a wife
as an aggrieved person under Section 2(a) read with Section
12 of the D.V. Act and does not end the domestic
relationship under Section 2(f) of the D.V. Act. It was further
held that a judicial separation was a mere suspension of
husband-wife relationship and not a complete severance of
relationship as in the case of a divorce. Moreover, an
29
application filed under section 12 of the D.V. Act by the wife
is not barred by any limitation.
In the said case, this Court referred to Saraswathy
vs. Babu – [(2014) 3 SCC 712].
Further, Dipak Misra J. (as His Lordship then was)
while speaking for the Two-Judge Bench held that the
definition of domestic relationship under Section 2 (f) of the
D.V. Act is very wide and protection under the said provision
would be given to a wife even if she is judicially separated,
by observing thus :
“18. The core issue that is requisite to be
addressed is whether the Appellant has ceased to
be an ‘aggrieved person’ because of the decree of
judicial separation. Once the decree of divorce is
passed, the status of the parties becomes
different, but that is not so when there is a decree
for judicial separation. A three-Judge Bench in
Jeet Singh and Ors. v. State of U.P. and Ors. (1993)
1 SCC 325 though in a different context, adverted
to the concept of judicial separation and ruled
that the judicial separation creates rights and
obligations. A decree or an order for judicial
separation permits the parties to live apart. There
would be no obligation for either party to cohabit
with the other. Mutual rights and obligations
arising out of a marriage are suspended. The
decree however, does not sever or dissolve the
marriage. It affords an opportunity for
reconciliation and adjustment. Though judicial
separation after a certain period may become a
ground for divorce, it is not necessary and the
parties are not bound to have recourse to that
remedy and the parties can live keeping their
status as wife and husband till their lifetime.”
30
While referring to the case of Rashmi Kumar vs.
Mahesh Kumar Bhada – [(1997) 2 SCC 397], this Court
held that Stridhana property is the exclusive property of the
wife on proof that she entrusted the property or dominion
over the Stridhana property to her husband or any other
member of the family. There is no need to establish further
any special agreement to prove that the property was given
to the husband or other member of the family.
While considering the issue of limitation and/or
‘continuing offence’/ ‘continuing cause of action’, this Court
held:
“32. Regard being had to the aforesaid statement
of law, we have to see whether retention of
Stridhana by the husband or any other family
members is a continuing offence or not. There can
be no dispute that wife can file a suit for
realization of the Stridhana but it does not debar
her to lodge a criminal complaint for criminal
breach of trust………. The concept of ‘continuing
offence’ gets attracted from the date of deprivation
of Stridhana, for neither the husband nor any
other family members can have any right over the
Stridhana and they remain the custodians. For
the purpose of the 2005 Act, she can submit an
application to the Protection Officer for one or
more of the reliefs under the 2005 Act.”
c) We could also allude to the exposition of this Court in Ajay
Kumar vs. Lata alias Sharuti and Others – [(2019) 15
SCC 352], wherein the husband of the respondent therein
had died, and maintenance was claimed from the brother of
31
the deceased husband. The Court held that at a prima facie
stage, a case for grant of maintenance was made out since
the respondent and her deceased husband resided in the
same house and the appellant therein (brother of deceased
person) also resided in the same household.
d) Further in Satish Chander Ahuja vs. Sneha Ahuja –
[(2021) 1 SCC 414], a Three-Judge Bench of this Court,
wherein one of us (Shah, J.) was a member, considered the
expressions ‘lives or have at any point of time lived’
appearing in Section 2 (s) of the D.V. Act. This Court while
considering the correctness of the law laid down in S.R.
Batra vs. Taruna Batra – [(2007) 3 SCC 169], concluded
that the said case had not correctly interpreted Section 2(s)
of the D.V. Act and that the said judgment does not lay down
a correct law and observed as under :
“66. ……….The expression ‘at any stage has lived’
occurs in Section 2(s) after the words ‘where the
person aggrieved lives’. The use of the expression
‘at any stage has lived’ immediately after words
‘person aggrieved lives’ has been used for object
different to what has been apprehended by this
Court in paragraph 26. The expression ‘at any
stage has lived’ has been used to protect the
women from denying the benefit of right to live in
a shared household on the ground that on the
date when application is filed, she was excluded
from possession of the house or temporarily
absent. The use of the expression ‘at any stage
has lived’ is for the above purpose and not with
the object that wherever the aggrieved person has
lived with the relatives of husband, all such
houses shall become shared household, which is
32
not the legislative intent. The shared household
is contemplated to be the household, which is a
dwelling place of aggrieved person in present
time………………
67. ……………. The entire Scheme of the Act is to
provide immediate relief to the aggrieved person
with respect to the shared household where the
aggrieved person lives or has lived. As observed
above, the use of the expression ‘at any stage has
lived’ was only with intent of not denying the
protection to aggrieved person merely on the
ground that aggrieved person is not living as on
the date of the application or as on the date when
Magistrate concerned passes an order under
Section 19. The apprehension expressed by this
Court in paragraph 26 in S.R. Batra v. Taruna
Batra (supra), thus, was not true apprehension
and it is correct that in event such interpretation
is accepted, it will lead to chaos and that was
never the legislative intent. We, thus, are of the
considered opinion that shared household
referred to in Section 2(s) is the shared
household of aggrieved person where she was
living at the time when application was filed or
in the recent past had been excluded from the
use or she is temporarily absent.
68. The words ‘lives or at any stage has lived in
a domestic relationship’ have to be given its
normal and purposeful meaning. The living of
woman in a household has to refer to a living
which has some permanency. Mere fleeting or
casual living at different places shall not make a
shared household. The intention of the parties
and the nature of living including the nature of
household have to be looked into to find out as
to whether the parties intended to treat the
premises as shared household or not. As noted
above, Act 2005 was enacted to give a higher
right in favour of woman. The Act, 2005 has been
enacted to provide for more effective protection
of the rights of the woman who are victims of
violence of any kind occurring within the family.
The Act has to be interpreted in a manner to
effectuate the very purpose and object of the Act.
Section 2(s) read with Sections 17 and 19 of Act,
2005 grants an entitlement in favour of the
33
woman of the right of residence under the shared
household irrespective of her having any legal
interest in the same or not.
69. ………… The definition of shared household
as noticed in Section 2(s) does not indicate that
a shared household shall be one which belongs
to or taken on rent by the husband. We have
noticed the definition of ‘Respondent’ under the
Act. The Respondent in a proceeding under
Domestic Violence Act can be any relative of the
husband. In the event, the shared household
belongs to any relative of the husband with
whom in a domestic relationship the woman has
lived, the conditions mentioned in Section 2(s)
are satisfied and the said house will become a
shared household.”
Analysis:
22. Section 12 of the D.V. Act states that an aggrieved person
or a Protection Officer or any other person on behalf of the
aggrieved person may present an application to the Magistrate
seeking one or more reliefs under the D.V. Act. The proviso,
however, states that before passing any order on such an
application, the Magistrate shall take into consideration any
Domestic Incident Report received by him from the Protection
Officer or the service provider. The expression ‘aggrieved person’
as defined under Section 2(a) means any woman who is, or has
been, in a domestic relationship with the respondent and who
alleges to have been subjected to any act of domestic violence by
the respondent. Domestic relationship as defined in Section 2(f),
means a relationship between two persons who live or have, at
any point of time, lived together in a shared household, when they
34
are related by consanguinity, marriage, or through a relationship
in the nature of marriage, adoption or are family members living
together as a joint family. Domestic violence has the same
meaning as assigned to it in Section 3.
23. The expression ‘shared household’ in relation to the
definition of domestic relationship as per the definition in Section
2(s) means a household where the person aggrieved lives or at any
stage has lived in a domestic relationship either singly or along
with the respondent and includes such a household whether
owned or tenanted either jointly by the aggrieved person and the
respondent, or owned or tenanted by either of them in respect of
which either the aggrieved person or the respondent or both
jointly or singly have any right, title, interest or equity and
includes such a household which may belong to the joint family
of which the respondent is a member, irrespective of whether the
respondent or the aggrieved person has any right, title or interest
in the shared household. The definition of shared household is
thus an inclusive one.
24. Section 17 speaks of right to reside in a shared household
while Section 19 deals with residence orders which could be
passed by a Magistrate while disposing of an application under
Sub-Section (1) of Section 12, on being satisfied that domestic
35
violence has taken place in a shared household. Thus, while
Section 19 deals with residence orders, the right to reside in a
shared household is dealt with in Section 17 of the D.V. Act. SubSection (1) of Section 17, which begins with a non-obstante clause
states that notwithstanding anything contained in any other law
for the time being in force, every woman in a domestic relationship
shall have the right to reside in the shared household, whether or
not she has any right, title or beneficial interest in the same. SubSection (2) states that an aggrieved person shall not be evicted or
excluded from the shared household or any part of it by the
respondent save in accordance with the procedure established by
law.
25. While Section 19 deals with a multitude of directions or
orders which may be passed against the respondent vis-à-vis the
shared household in favour of an aggrieved person, Section 17
confers a right on every woman in a domestic relationship to
reside in the shared household irrespective of whether she has
any right, title or beneficial interest in the same. This right to
reside in a shared household which is conferred on every woman
in a domestic relationship is a vital and significant right. It is an
affirmation of the right of every woman in a domestic relationship
to reside in a shared household. Sub-Section (2) of Section 17
36
protects an aggrieved person from being evicted or excluded from
the shared household or any part of it by the respondent save in
accordance with the procedure established by law. The distinction
between Sub-Section (1) and Sub-Section (2) of Section 17 is also
to be noted. While Sub-Section (2) deals with an aggrieved person
which is defined in Section 2(a) of the D.V. Act in the context of
domestic violence, Sub-Section (1) of Section 17 is a right
conferred on every woman in a domestic relationship irrespective
of whether she is an aggrieved person or not. In other words, every
woman in a domestic relationship has a right to reside in the
shared household even in the absence of any act of domestic
violence by the respondent.
26. It is necessary to appreciate the importance and significance
of the right of every woman in a domestic relationship to reside in
a shared household. As already noted, the expression ‘shared
household’ is expansively defined in Section 2(s) of the D.V. Act
but the expression contained in Section 17 namely, ‘every woman
in a domestic relationship shall have the right to reside in the
shared household irrespective whether she has any right, title or
beneficial interest in same’, requires an expansive interpretation.
In this context, Harbhajan Singh vs. Press Council of India -
(AIR 2002 SC 1351) could be relied upon wherein, Cross on
37
“Statutory Interpretation” (Third Edition, 1995) has been relied
upon as follows:-
“Thus, an ‘ordinary meaning’ or ‘grammatical meaning’
does not imply that the Judge attributes a meaning to
the words of a statute independently of their context or
of the purpose of the statute, but rather that he adopts
a meaning which is appropriate in relation to the
immediately obvious and unresearched context and
purpose in and for which they are used.”
27. While the object and purpose of the D.V. Act is to protect a
woman from domestic violence, the salutary object of Sub-Section
(1) of Section 17 is to confer a right on every woman in a domestic
relationship to have the right to reside in a shared household.
Hence, the said provision commences with a non-obstante clause.
28. For a better understanding of the said right, it would also
be useful to relate it to the societal and familial context in India.
29. As already noted, a domestic relationship means a
relationship between two persons who live or have at any point of
time, lived together in a shared household. The relationship may
be by (i) consanguinity, (ii) marriage or, (iii) through a relationship
in the nature of a marriage, (iv) adoption or (v) are family members
living together as a joint family. The expression ‘domestic
relationship’ is a comprehensive one. Hence, every woman in a
domestic relationship in whatever manner the said relationship
may be founded as stated above has a right to reside in a shared
38
household, whether or not she has any right, title or beneficial
interest in the same. Thus, a daughter, sister, wife, mother,
grand-mother or great grand-mother, daughter-in-law, motherin-law or any woman having a relationship in the nature of
marriage, an adopted daughter or any member of joint family has
the right to reside in a shared household.
30. Further, though, the expression ‘shared household’ is
defined in the context of a household where the person aggrieved
lives or has lived in a domestic relationship either singly or along
with respondent, in the context of Sub-Section (1) of Section17,
the said expression cannot be restricted only to a household
where a person aggrieved resides or at any stage, resided in a
domestic relationship. In other words, a woman in a domestic
relationship who is not aggrieved, in the sense that who has not
been subjected to an act of domestic violence by the respondent,
has a right to reside in a shared household. Thus, a mother,
daughter, sister, wife, mother-in-law and daughter-in-law or such
other categories of women in a domestic relationship have the
right to reside in a shared household de hors a right, title or
beneficial interest in the same.
Therefore, the right of residence of the aforesaid categories
of women and such other categories of women in a domestic
39
relationship is guaranteed under Sub-Section (1) of Section 17
and she cannot be evicted, excluded or thrown out from such a
household even in the absence of there being any form of domestic
violence. By contrast, Sub-Section (2) of section 17 deals with a
narrower right in as much as an aggrieved person who is
inevitably a woman and who is subjected to domestic violence
shall not be evicted or excluded from the shared household or any
part of it by the respondent except in accordance with the
procedure established by law. Thus, the expression ‘right to reside
in a shared household’ has to be given an expansive
interpretation, in respect of the aforesaid categories of women
including a mother-in-law of a daughter-in-law and other
categories of women referred to above who have the right to reside
in a shared household.
31. Further, the expression ‘the right to reside in a shared
household’ cannot be restricted to actual residence. In other
words, even in the absence of actual residence in the shared
household, a woman in a domestic relationship can enforce her
right to reside therein. The aforesaid interpretation can be
explained by way of an illustration. If a woman gets married then
she acquires the right to reside in the household of her husband
which then becomes a shared household within the meaning of
40
the D.V. Act. In India, it is a societal norm for a woman, on her
marriage to reside with her husband, unless due to professional,
occupational or job commitments, or for other genuine reasons,
the husband and wife decide to reside at different locations. Even
in a case where the woman in a domestic relationship is residing
elsewhere on account of a reasonable cause, she has the right to
reside in a shared household. Also a woman who is, or has been,
in a domestic relationship has the right to reside not only in the
house of her husband, if it is located in another place which is
also a shared household but also in the shared household which
may be in a different location in which the family of her husband
resides.
32. If a woman in a domestic relationship seeks to enforce her
right to reside in a shared household, irrespective of whether she
has resided therein at all or not, then the said right can be
enforced under Sub-Section (1) of Section 17 of the D.V. Act. If
her right to reside in a shared household is resisted or restrained
by the respondent(s) then she becomes an aggrieved person and
she cannot be evicted, if she has already been living in the shared
household or excluded from the same or any part of it if she is not
actually residing therein. In other words, the expression ‘right to
reside in the shared household’ is not restricted to only actual
41
residence, as, irrespective of actual residence, a woman in a
domestic relationship can enforce her right to reside in the shared
household. Thus, a woman cannot be excluded from the shared
household even if she has not actually resided therein that is why
the expression ‘shall not be evicted or excluded from the shared
household’ has been intentionally used in Sub-Section (2) of
Section 17. This means if a woman in a domestic relationship is
an aggrieved person and she is actually residing in the shared
household, she cannot be evicted except in accordance with the
procedure established by law. Similarly, a woman in a domestic
relationship who is an aggrieved person cannot be excluded from
her right to reside in the shared household except in accordance
with the procedure established by law. Therefore, the expression
‘right to reside in the shared household’ would include not only
actual residence but also constructive residence in the shared
household i.e., right to reside therein which cannot be excluded
vis-à-vis an aggrieved person except in accordance with the
procedure established by law. If a woman is sought to be evicted
or excluded from the shared household she would be an aggrieved
person in which event Sub-Section (2) of Section 17 would apply.
33. In support of this interpretation, another example may be
noted. A woman on getting married, along with her husband may
42
proceed overseas on account of professional or job commitments.
Such a woman may not have had an opportunity of residing in
the shared household after her marriage. If, for any reason, such
a woman becomes an aggrieved person and is forced to return
from overseas then she has the right to reside in the shared
household of her husband irrespective of whether her husband
(respondent) or the aggrieved person (wife) has any right, title or
beneficial interest in the shared household. In such
circumstances, parents-in-law of the woman who has returned
from overseas and who is an aggrieved person cannot exclude her
from the shared household or any part of it except in accordance
with the procedure established by law.
Another situation is a case where, immediately after
marriage, the wife actually resided in the shared household while
her husband proceeded overseas. When such a woman is
subjected to domestic violence, she cannot be evicted from the
shared household except in accordance with the procedure
established by law.
34. There may also be cases where soon after marriage, the
husband goes to another city owing to a job commitment and his
wife remains in her parental home and nevertheless is a victim of
domestic violence. She has the right to remain in her parental
43
home as she would be in a domestic relationship by
consanguinity. Also in cases where a woman remains in her
parental home soon after marriage and is subjected to domestic
violence and is therefore an aggrieved person, she also has the
right to reside in the shared household of her husband which
could be the household of her in-laws. Further, if her husband
resides in another location then an aggrieved person has the right
to reside with her husband in the location in which he resides
which would then become the shared household or reside with his
parents, as the case may be, in a different location. There could
be a multitude and a variety of situations and circumstances in
which a woman in a domestic relationship can enforce her right
to reside in a shared household irrespective of whether she has
the right, title or beneficial interest in the same. Also, such a right
could be enforced by every woman in a domestic relationship
irrespective of whether she is an aggrieved person or not.
35. In the Indian societal context, the right of a woman to reside
in the shared household is of unique importance. The reasons for
the same are not far to see. In India, most women are not educated
nor are they earning; neither do they have financial independence
so as to live singly. She may be dependent for residence in a
domestic relationship not only for emotional support but for the
44
aforesaid reasons. The said relationship may be by consanguinity,
marriage or through a relationship in the nature of marriage,
adoption or is a part of or is living together in a joint family. A
majority of women in India do not have independent income or
financial capacity and are totally dependent vis-à-vis their
residence on their male or other female relations who may have a
domestic relationship with her.
36. In our view, the D.V. Act is a piece of Civil Code which is
applicable to every woman in India irrespective of her religious
affiliation and/or social background for a more effective protection
of her rights guaranteed under the Constitution and in order to
protect women victims of domestic violence occurring in a
domestic relationship. Therefore, the expression ‘joint family’
cannot mean as understood in Hindu Law. Thus, the expression
‘family members living together as a joint family’, means the
members living jointly as a family. In such an interpretation, even
a girl child/children who is/are cared for as foster children also
have a right to live in a shared household and are conferred with
the right under Sub-Section (1) of Section 17 of the D.V. Act.
When such a girl child or woman becomes an aggrieved person,
the protection of Sub-Section (2) of Section 17 comes into play.
45
37. In order to give an expansive interpretation to the expression
‘every woman in a domestic relationship shall have the right to
reside in shared household’, certain examples by way of
illustrations have been discussed above. However, those
illustrations are not exhaustive and there could be several
situations and circumstances and every woman in a domestic
relationship can enforce her right to reside in a shared household
irrespective of whether she has any right, title or beneficial
interest in the same and the said right could be enforced by any
woman under the said provision as an independent right in
addition to the orders that could be passed under Section 19 of
the D.V. Act; also an aggrieved woman who has the right to reside
in the shared household is protected by Sub-Section (2) of the
Section 17 of the D.V. Act.
38. In the case of Smt. Bharati Naik vs. Shri Ravi Ramnath
Halarnkar and Another – [2010 SCC Online Bom 243], the
High Court of Bombay at Goa held that the words ‘has been’ and
‘have lived’ appearing in the definition of ‘aggrieved person’ and
‘respondent’ in the D.V. Act are plain and clear. The Court held
that the aforesaid words take in their sweep even a past
relationship. The words have been purposefully used to show the
past relationship or experience between the concerned parties. It
46
was further observed that the said D.V. Act has been enacted to
protect a woman from domestic violence and there cannot be any
fetter which can come in the way by interpreting the provisions in
a manner to mean that unless the domestic relationship
continues on the date of the application, the provisions of the D.V.
Act cannot be invoked.
39. In a 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) and 17 of the D.V. Act ought to be given the
widest interpretation possible. The Court, after observing various
instances and situations, held that many a woman may not even
enter into the matrimonial home immediately after marriage.
Therefore, it was concluded that a healthy and correct
interpretation to Sections 2(f) and 2(s) of the D.V. Act would be
that the words ‘live’ or ‘have at any point of time lived’ would
include in its purview ‘the right to live’ as interpreted above. It
would be useful to quote from the said judgment as under:-
“20. In a society like ours, there are very many
situations, in which a woman may not enter into her
matrimonial home immediately after marriage. A couple
leaving for honeymoon immediately after the marriage
and whose relationship gets strained even during
honeymoon, resulting in the wife returning to her
parental home straight away, may not stand the test of
the definition of domestic relationship under Section 2(f)
of the Act, if it is strictly construed. A woman in such a
47
case, may not live or at any point of time lived either
singly or together with the husband in the ‘shared
household’, despite a legally valid marriage followed
even by its consummation. It is not uncommon in our
society, for a woman in marriage to be sent to her
parental home even before consummation of marriage,
on account of certain traditional beliefs, say for
example, the intervention of the month of Aadi. If such
a woman is held to be not entitled to the benefit of
Section 17 of the Act, on account of a strict
interpretation to Section 2(f) of the Act that she did not
either live or at any point of time lived together in the
shared household, such a woman will be left remediless
despite a valid marriage. One can think of innumerable
instances of the same aforesaid nature, where the
woman might not live at the time of institution of the
proceedings or might not have lived together with the
husband even for a single day in the shared household.
A narrow interpretation to Sections 2(f), 2(s) and 17 of
the Act, would leave many a woman in distress, without
a remedy. Therefore, in my considered view a healthy
and correct interpretation to Sections 2(f) and 2(s) would
be that the words ‘live’ or ‘have at any point of time lived’
would include within their purview ‘the right to live’. In
other words, it is not necessary for a woman to establish
her physical act of living in the shared household, either
at the time of institution
of the proceedings or as a thing of the past. If there is a
relationship which has legal sanction, a woman in that
relationship gets a right to live in the shared household.
Therefore, she would be entitled to protection under
Section 17 of the Act, even if she did not live in the
shared household at the time of institution of the
proceedings or had never lived in the shared household
at any point of time in the past. Her right to protection
under Section 17 of the Act, co-exists with her right to live
in the shared household and it does not depend upon
whether she had marked her physical presence in the
shared household or not. A marriage which is valid and
subsisting on the relevant date, automatically confers a
right upon the wife to live in the shared household as an
equal partner in the joint venture of running a family. If
she has a right to live in the shared household, on
account of a valid and subsisting marriage, she is
definitely in ‘domestic relationship’ within the meaning
of Section 2(f) of the Act and her bodily presence or
absence from the shared household cannot belittle her
relationship as anything other than a domestic
relationship. Therefore, irrespective of the fact whether
48
the applicant/plaintiff in this case ever lived in the
house of the first respondent/first defendant after
7.2.2007 or not, her marriage to the first
respondent/first defendant on 7.2.2007 has conferred
a right upon her to live in the shared household.
Therefore, the question as to whether the
applicant/plaintiff ever lived in the shared household at
any point of time during the period from 7.2.2007 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
with those persons against whom the allegations have been
levelled’ is accordingly answered. It is held that it is not
mandatory for the aggrieved person to have actually lived or
resided with those persons against whom the allegations have
been levelled at the time of seeking relief. If a woman has the right
to reside in a shared household, she can accordingly enforce her
right under Section 17(1) of the D.V. Act. If a woman becomes an
aggrieved person or victim of domestic violence, she can seek relief
under the provisions of the D.V. Act including her right to live or
reside in the shared household under Section 17 read with
Section 19 of the D.V. Act.
41. Hence, the appellant herein had the right to live in a shared
household i.e., her matrimonial home and being a victim of
domestic violence could enforce her right to live or reside in the
shared household under the provisions of the D.V. Act and to seek
49
any other appropriate relief provided under the D.V. Act. This is
irrespective of whether she actually lived in the shared household.
42. This takes us to the next question raised for consideration
being ‘whether there should be a subsisting domestic relationship
between the aggrieved person and the person against whom the
relief is claimed’. As already noted, the expression ‘domestic
relationship’ is an expansive one and means the relationship
between two persons who live or have at any point of time lived
together in a shared household when they are related by (i)
consanguinity; (ii) marriage; (iii) through a relationship in the
nature of marriage; (iv) adoption; (v) are family members living
together as a joint family. The expressions ‘consanguinity’,
‘marriage’ and ‘adoption’ do not require elaboration as they are
well understood concepts both in common law as well as in the
respective personal law applicable to the parties. However, it is
relevant to note the expression ‘marriage’ also encompasses a
relationship in the nature of marriage. Secondly, the expression
‘adoption’ also takes into consideration family members living
together as a joint family. The aforesaid aspects require
elaboration.
50
It would be useful to refer to the following judgments of this
Court which have been taken into consideration relationship in
the nature of marriage :
(a) In D. Velu Samy v. D. Patchaiammal - [(2010) 10 SCC
469], this Court discussed the concept of “relationship in
the nature of marriage” in the context of the DV Act, and it
was held to be akin to a common law marriage. It was held
that the parties must have lived together in a ‘shared
household’ as defined in Section 2(s) of the DV Act. It was
opined that not all live-in relationships would amount to a
relationship in the nature of marriage to get the benefit of
D.V. Act, but only to such relationships, which qualify as
common law marriages. The requirements prescribed under
law in order for a relationship to be recognized as a common
law marriage were adumbrated as follows:
(i) The couple must hold themselves out to society
as being akin to spouses;
(ii) They must be of legal age to marry;
(iii) They must be otherwise qualified to enter into a
legal marriage;
(iv) They must have voluntarily cohabited and held
themselves out to the world as being akin to
spouses for a significant period of time.
51
(b) In Indra Sarma v. V.K.V. Sarma - [(2013) 15 SCC 755],
the question as to whether disruption of a live-in
relationship by failure to maintain a woman involved in
such a relationship amounted to “domestic violence” within
the meaning of Section 3 of the D.V. Act, was considered. It
was held that entering into a marriage either under the
Hindu Marriage Act or Special Marriage Act or any other
personal law applicable to the parties, is entering into a
relationship of public significance, since marriage, being a
social institution, many rights and liabilities flow out of that
relationship. Thus, the concept of marriage gives rise to civil
rights. This Court referred to the following guidelines, which
would determine whether a relationship between persons
was in the nature of marriage, to ultimately hold that the
DV Act had been enacted to cover a couple who had a
relationship in the nature of marriage, so as to provide a
remedy in Civil Law for protection of women in relationships,
which are in the nature of marriage as per paragraph 56
which is extracted as under :
“56. We may, on the basis of above discussion cull
out some guidelines for testing under what
circumstances, a live-in relationship will fall within
the expression “relationship in the nature of
marriage” under Section 2(f) of the D.V. Act. The
guidelines, of course, are not exhaustive, but will
definitely give some insight to such relationship :
52
56.1. Duration of period of relationship. – Section
2(f) of the D.V. Act has used the expression “at any
point of time”, which means a reasonable period of
time to maintain and continue a relationship which
may vary from case to case, depending upon the fact
situation.
56.2. Shared household.- The expression has been
defined under Section 2(s) of the D.V. Act and,
hence, needs no further elaboration.
56.3. Pooling of resources and financial
arrangements.- Supporting each other, or any one
of them, financially, sharing bank accounts,
acquiring immovable properties in joint names or in
the name of the woman, long-term investments in
business, shares in separate and joint names, so as
to have a long-standing relationship, may be a
guiding factor.
56.4. Domestic arrangements.- Entrusting the
responsibility, especially on the woman to run the
home, do the household activities like cleaning,
cooking, maintaining or upkeeping the house, etc.,
is an indication of a relationship in the nature of
marriage.
56.5. Sexual relationship.- Marriage-like
relationship refers to sexual relationship, not just for
pleasure, but for emotional and intimate
relationship, for procreation of children, so as to give
emotional support, companionship and also material
affection, caring, etc.
56.6. Children.- Having children is a strong
indication of a relationship in the nature of marriage.
The parties, therefore, intend to have a long-standing
relationship. Sharing the responsibility for bringing
up and supporting them is also a strong indication.
56.7. Socialisation in public.- Holding out to the
public and socialising with friends, relations and
others, as if they are husband and wife is a strong
circumstance to hold the relationship is in the
nature of marriage.
56.8. Intention and conduct of the parties.-
Common intention of the parties as to what their
relationship is to be and to involve, and as to their
respective roles and responsibilities, primarily
determines the nature of that relationship.”
53
43. Further, the expression ‘family members living together as
a joint family’ is not relatable only to relationship through
consanguinity, marriage or adoption. As observed above, the
expression ‘joint family’ does not mean a joint family as
understood in Hindu Law. It would mean persons living together
jointly as a family. It would include not only family members living
together when they are related by consanguinity, marriage or
adoption but also those persons who are living together or jointly
as a joint family such as foster children who live with other
members who are related by consanguinity, marriage or by
adoption. Therefore, when any woman is in a domestic
relationship as discussed above, is subjected to any act of
domestic violence and becomes an aggrieved person, she is
entitled to avail the remedies under the D.V. Act.
The further question is, whether, such a domestic
relationship should be subsisting between the aggrieved person
and the respondent against whom relief is claimed at the time of
claiming the relief. Before answering the same, it would be useful
to analyse the relationships noted in the D.V. Act as under:
(a) Any relationship by consanguinity is a lifelong relationship.
(b) Marriage is also a lifelong relationship unless a separation
by a decree of divorce is ordered by a competent authority
of law.
54
(i) If there is judicial separation ordered by a court of law,
that does not put an end to marriage and hence the
domestic relationship continues between the spouses even
though they may not be actually living together.
(ii) In the event of a divorce, marriage would be no longer
be subsisting, but if a woman (wife) is subjected to any
domestic violence either during marriage or even
subsequent to a divorce decree being passed but relatable
to the period of domestic relationship, the provisions of this
D.V. Act would come to the rescue of such a divorced woman
also.
(iii) That is why, the expression ‘domestic relationship’ has
been defined in an expansive manner to mean a relationship
between two persons who live or have at any point of time
lived together in a shared household when they are related
by marriage. We have also interpreted the word ‘live’ or
‘lived’ in the context of right to reside in Sub-Section (1) of
Section 17. The right to live in the shared household, even
when the domestic relationship may have been severed for
instance when a woman has been widowed owing to the
death of her husband, entitles her to have remedies under
the D.V. Act.
(iv) Therefore, even when the marital ties cease and there
is no subsisting domestic relationship between the
aggrieved woman and the respondent against whom relief is
claimed but the acts of domestic violence are related to the
period of domestic relationship, even in such
circumstances, the aggrieved woman who was subjected to
domestic violence has remedies under the D.V. Act.
55
(c) Even in the case of relationship in the nature of marriage,
during which period the woman suffered domestic violence
and is thus an aggrieved person can seek remedies
subsequent to the cessation of the relationship, the only
pre-condition is that the allegation of domestic violence
must relate to the period of the subsistence of relationship
in the nature of marriage.
(d) In the same way, when a girl child is fostered by family
members living together as a joint family as interpreted
above and lives or at any point of time has lived together in
a shared household or has the right to reside in the shared
household being a member living together as a joint family
and has been ousted in any way or has been a victim of
domestic violence has remedies under the D.V. Act.
In our view, the question raised about a subsisting domestic
relationship between the aggrieved person and the person against
whom the relief is claimed must be interpreted in a broad and
expansive way, so as to encompass not only a subsisting domestic
relationship in presentia but also a past domestic relationship.
Therefore, the Parliament has intentionally used the expression
‘domestic relationship’ to mean a relationship between two
persons who not only live together in the shared household but
56
also between two persons who ‘have at any point of time lived
together’ in a shared household.
44. Applying the aforesaid discussion to the facts of the case at
hand, the appellant was married to the respondent’s son Kuldeep
Tyagi on 18th June, 2005 and shortly thereafter, on 15th July,
2005, he died in a car accident. According to the appellant, the
respondent and her family members started harassing the
appellant and forced her to leave the matrimonial home. She
started working as a teacher at Dehradun in order to support
herself. That Stridhana was given at the time of her wedding and
that was used by the respondent and her family and the legal
notice dated 22nd November, 2006 demanding return of the
articles of Stridhana did not receive any response from the
respondent and her family. Even though as on the date of filing of
the application before the Magistrate under Section 12 of the D.V.
Act the appellant was not actually living in the shared household;
she nevertheless lived in a domestic relationship with her
husband and further had the right to reside in a shared household
as a daughter-in-law. The appellant-aggrieved person had to leave
the shared household on account of harassment and mental
torture given to her by respondent - mother-in-law and her family.
She had to leave the same and fend for herself. Thus, as an
57
aggrieved person, the appellant could not have been excluded
from the shared household as there was no valid reason to do so.
As the appellant had a right to reside in the shared household as
she was in a domestic relationship with her husband till he died
in the accident and had lived together with him therefore she also
had a right to reside in the shared household despite the death of
her husband in a road accident. The aggrieved person continued
to have a subsisting domestic relationship owing to her marriage
and she being the daughter-in-law had the right to reside in the
shared household.
45. This takes us to the first question which has been raised by
us namely, ‘whether the consideration of domestic incident report
is mandatory before initiating the proceedings under the D.V. Act in
order to invoke substantive provisions of Sections 18 to 20 and 22
of the said D.V. Act?’.
46. Clause (e) of Section 2 defines a Domestic Incident Report to
be a report made in the prescribed form on receipt of a complaint
of domestic violence from an aggrieved person. As noted from
Section 12, an aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person including the
service provider vide Sub-Section (1) of Section 10 of the D.V. Act,
may present an application to the Magistrate seeking one or more
58
reliefs under the D.V. Act. Proviso to Sub-Section (1) of Section 12
states that before passing any order on such an application, the
Magistrate shall take into consideration any Domestic Incident
Report received by him from the Protection Officer or the service
provider. Protection Officer as defined in Clause (n) of Section 2,
means an officer appointed by the State Government under SubSection (1) of Section 8. Sub-Section (2) of Section 8 states that
the Protection Officers shall, as far as possible, be women and
shall possess such qualifications and experience as may be
prescribed.
47. On a conjoint reading of the aforesaid provisions, it is clear
that an aggrieved person on her own or any other person on behalf
of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under the D.V. Act but the
proviso states that when a Domestic Incident Reported is received
by the Magistrate from the Protection Officer or the service
provider, in such a case, the same shall be taken into
consideration. Therefore, when an aggrieved person files an
application by herself or with the assistance of an advocate and
not with the assistance of the Protection Officer or a service
provider, in such a case, the role of the Protection Officer or a
service provider is not envisaged. Obviously, there would be no
59
Domestic Incident Report received by a Magistrate from the
Protection Officer or a service provider. Can it be said that in the
absence of a Domestic Incident Report, the Magistrate cannot
pass any order under the D.V. Act particularly when an
application is filed before the Magistrate by the aggrieved person
by herself or through a legal counsel? In our view, that is not the
intention of the proviso. Although, the expression ‘shall’ is used
in the proviso, it is restricted to only those cases where a
Protection Officer files any Domestic Incident Report or, as the
case may be, the service provider files such a report. When a
Domestic Incident Report is filed by a Protection Officer or a
service provider, in such a case the Magistrate has to take into
consideration the said report received by him. But if such a report
has not been filed on behalf of the aggrieved person then he is not
bound to consider any such report. Therefore, the expression
‘shall’ has to be read in the context of a Domestic Incident Report
received by a Magistrate from the Protection Officer or the service
provider as the case may be in which case, it is mandatory for the
Magistrate to consider the report. But, if no such report is received
by the Magistrate then the Magistrate is naturally not to consider
any such Domestic Incident Report before passing any order on
the application. As already noted, this could be in a case where
an aggrieved person herself approaches the Magistrate or the
60
services of an advocate is engaged to present an application
seeking one or more reliefs under the D.V. Act or for a valid
acceptable cause/reason a Domestic Incident Report has not been
filed by a Protection Officer or a service provider, as the case may
be.
48. We are, therefore, of the view that the High Court was not
right in holding that the application filed by the appellant herein
was not accompanied by a Domestic Incident Report and therefore
under the proviso to Sub-Section (1) of Section 12 of the D.V. Act,
the Magistrate had no authority to issue orders and directions in
favour of the appellant.
(i) Following are the judgments where the High Courts have
held that the Domestic Incident Report is not a sine qua non
for entertaining or deciding the application under Section 12
of the D.V. Act by the learned Magistrate.
a) In Nayanakumar vs. State of Karnataka – [ILR 2009
Kar 4295], the High Court of Karnataka (Kalaburagi
Bench) while dealing with Section 12 of the D.V. Act, held
that in case a Domestic Incident Report is received by the
Magistrate either from the Protection Officer or from the
Service Provider, then it becomes obligatory on the part
of the Magistrate to take note of the said Domestic
Incident Report before passing an order on the
61
application filed by the aggrieved party. It was further
clarified that the scheme of the D.V. Act makes it clear
that it is left to the choice of the aggrieved person to go
before the service provider or the Protection Officer or to
approach the Magistrate under Section 12 of the D.V.
Act.
b) In Abhiram Gogoi vs. Rashmi Rekha Gogoi – [(2011) 4
Gauhati Law Reports 276], the Gauhati High Court
held that Section 9(1)(b) of the D.V. Act makes it clear
that it is the duty of the Protection Officer to make a
Domestic Incident Report to the Magistrate upon receipt
of a complaint of domestic violence and forward copies
thereof to the police officer-in-charge of the police station
within the local limits of whose jurisdiction domestic
violence is alleged to have been committed and to the
service providers in that area.
c) In the case of Md. Basit vs. State of Assam and Others
– [(2012) 1 Gauhati Law Reports 747], the Gauhati
High Court differed with the view taken by the Madhya
Pradesh and Jharkhand High Courts and held that
Section 12 only contemplates as to who can file a
complaint under Section 12 of the D.V. Act, what relief
may be sought for, what the contents of the complaint
62
must be and how the complaint ought to be examined.
That if the complaint conforms to the said pre-conditions,
the same may be taken cognizance of. The High Court
noted that an application under Section 12(1) of the D.V.
Act may be filed either by an aggrieved person herself, or
by a Protection Officer. The Court went on to hold that
the provision does not require a Magistrate to specifically
call for a Domestic Incident Report. That it would only be
mandatory to consider such report, if the same had been
filed by the Protection Officer before the Magistrate. The
Gauhati High Court differed with the view taken by the
Madhya Pradesh and Jharkhand High Courts, to the
extent that the latter Courts observed that the Magistrate
would not be obligated to consider the Domestic Incident
Report even if the same was filed by the Protection
Officer.
d) Delving on the same issue, the High Court of Himachal
Pradesh in Rahul Soorma vs. State of Himachal
Pradesh – [(2012) SCC Online HP 2574], held that the
purpose of the D.V. Act is to give immediate relief to the
aggrieved person; therefore, it was wrong to suggest that
the Magistrate has no jurisdiction to take cognizance of
the application under Section 12 of the D.V. Act before
63
the receipt of a Domestic Incident Report by the
Protection Officer or the service provider.
e) Further, the High Court of Andhra Pradesh in A. Vidya
Sagar vs. State of Andhra Pradesh – [2014 SCC
Online Hyd 715], rejected the contention of the
petitioner therein that a domestic violence case can be
instituted and taken cognizance of on the basis of the
Domestic 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], the High
Court of Madhya Pradesh speaking through J.K.
Maheshwari, J., while discussing on the legislative intent
of the D.V. Act, held that if the legislative intent was to
call for a report from the Protection Officer as a precondition by the Magistrate to act upon a complaint of
aggrieved person, then it would have expressed that
intention emphasizing the words in the main section. The
High Court relied on various judgments pertaining to the
interpretation of a provision and proviso thereof.
g) The Division Bench of the High Court of Delhi in
Shambhu Prasad Singh vs. Manjari – [190 (2012) DLT
647] speaking through Ravindra Bhat, J. dealt with the
conflicting views of the two Single Judges on the question
64
whether a Magistrate can act straightaway on the
complaint made by an aggrieved person under the D.V.
Act. It was held that Section 12(1) of the D.V. Act does
not mandate that an application seeking relief under the
said D.V. Act must be accompanied with a Domestic
Incident Report or even that it should be moved by a
Protection Officer. So also, Rule 6 which stipulates the
form and manner of making an application to a
Magistrate does not require that the Domestic Incident
Report must accompany an application for relief under
Section 12.
It was further held that an obligation to submit a
Domestic Incident Report is imposed only on the
Protection Officers under Section 9 of the D.V. Act and
upon the service providers under Section 10 of the D.V.
Act and the learned Magistrate ‘shall’ take into
consideration, the Domestic Incident Report if it is filed
and not otherwise.
h) In Rakesh Choudhary vs. Vandana Choudhary –
[2019 SCC Online J&K 512], the High Court of Jammu
and Kashmir rejected the argument of the petitioner
therein that the report of the Protection Officer is sine qua
non for issuing process in a petition under Section 12 of
65
the D.V. Act. The Court held that the proviso to Section
12(1) of the D.V. Act only stipulates that the learned
Magistrate shall take into consideration the Domestic
Incident Report filed by the Protection Officer or the
Service Provider, but it does not stipulate that a report
‘shall be called for’ before any relief could be granted.
i) Further, the High Court of Bombay at Aurangabad
Bench, while dealing with a criminal writ petition in the
case of Vijay Maruti Gaikwad vs. Savita Vijay
Gaikward – [2018 (1) HLR 295], observed that if the
matter is before the Court and the wife preferred not to
approach the Protection Officer, the Court is not bound
to call the report of Protection Officer.
j) Lastly, in the case of Suraj Sharma vs. Bharti Sharma
– [2016 SCC Online Chh 1825], the High Court of
Chhattisgarh while expressing its view on Section 12 of
the D.V. Act also held that the Domestic Incident Report
shall not be conclusive material for making any order.
49. On the contrary, the following judgments of High Courts
have observed that the Proviso to Section 12 is mandatory and an
order passed by the learned Magistrate on an application under
66
Section 12 of the D.V. Act, without having a report of the
Protection Officer is liable to be quashed.
a) In Rama Singh vs. Maya Singh – [(2012) 4 MPLJ 612]
1,
the High Court of Madhya Pradesh, in the facts and
circumstances of the said case, while quashing the petition
under Section 482 of the Code of Criminal Procedure, 1973,
held that the impugned order therein was passed without
taking into consideration, the report prepared by the
Protection Officer and proviso to Section 12 of the D.V. Act
was ignored. The Court went on to hold that the proviso
ordinarily carves out an exception from the general rule
enacted in the main provision. The Court emphasized that
the word ‘any’ in the proviso would mean one or more out of
several and includes all. Therefore, even an interlocutory
order directing issuance of notice would not be excluded
from 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 reiterated
that non-consideration of Domestic Incident Report by the
Trial Court while deciding an application under Section 12
of the D.V. Act violates the mandate of the said provision
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.
67
and therefore the order passed by the Trial Court was held
to be unsustainable.
On an analysis of the aforesaid judgments from various High
Courts, we find that the High Courts of Andhra Pradesh, Bombay,
Delhi, Gauhati, Himachal Pradesh, Jammu & Kashmir,
Karnataka, and Madhya Pradesh, are right in holding that if
Domestic Incident Report has been received by the Magistrate
either from the Protection Officer or the service provider then it
becomes obligatory on the part of the Magistrate to take note of
the said report before passing an order on the application filed by
the aggrieved party, but if no complaint or application of domestic
violence is received by the Magistrate from the Protection Officer
or the service provider, the question of considering such a report
does not arise at all. As already discussed, the D.V. Act does not
make it mandatory for an aggrieved person to make an application
before a Magistrate only through the Protection Officer or a service
provider. An aggrieved person can directly make an application
to the jurisdictional Magistrate by herself or by engaging the
services of an Advocate. In such a case, the filing of a Domestic
Incident Report by a Protection Officer or service provider does not
arise. In such circumstances, it cannot be held that the
Magistrate is not empowered to make any order interim or final,
under the provisions of the D.V. Act, granting reliefs to the
68
aggrieved persons. The Magistrate can take cognizance of the
complaint or application filed by the aggrieved person 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 complaint
under Section 12 of the D.V. Act in the absence of a Domestic
Incident Report under Rule 5 when the complaint is not filed on
behalf of the aggrieved person through a Protection Officer or
service provider. Such a purposeful interpretation has to be given
bearing in mind the fact that the immediate relief would have to
be given to an aggrieved person and hence the proviso cannot be
interpreted in a manner which would be contrary to the object of
the D.V. Act which renders Section 12 bereft of its object and
purpose.
50. In this context, it would be useful to adumbrate on the
principles that govern the interpretation to be given to proviso in
the context of main provision.
(a) The normal function of a proviso is to except something out
of the provision or to qualify something enacted therein
which, but for the proviso, would be within the purview of
the provision. As a general rule, a proviso is added to an
enactment to qualify or create an exception to what is in the
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enactment and ordinarily, a proviso is not interpreted as
stating a general rule. In other words, a proviso qualifies the
generality of the main enactment by providing an exception
and taking out as it were, from the main enactment, a
portion which, but for the proviso would fall within the main
provision. Further, a proviso cannot be construed as
nullifying the provision or as taking away completely a right
conferred by the enactment.
(b) In this regard, learned Author, Justice G.P. Singh, in
"Principles of Statutory Interpretation", 15th Edition, has
enunciated certain rules collated from judicial precedents.
Firstly, a proviso is not to be construed as excluding or
adding something by implication i.e., when on a fair
construction, the principal provision is clear, a proviso
cannot expand or limit it. Secondly, a proviso has to be
construed in relation to which it is appended i.e., normally,
a proviso does not travel beyond the provision to which it is
a proviso. A proviso carves out an exception to the main
provision to which it has been enacted as a proviso and to
no other. However, if a proviso in a statute does not form
part of a section but is itself enacted as a separate section,
then it becomes necessary to determine as to which section
the proviso is enacted as an exception or qualification.
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Sometimes, a proviso is used as a guide to construction of
the main section. Thirdly, when there are two possible
construction of words to be found in the section, the proviso
could be looked into to interpret the main section. However,
when the main provision is clear, it cannot be watered down
by the proviso. Thus, where the main section is not clear,
the proviso can be looked into to ascertain the meaning and
scope of the main provision.
(c) According to Justice G.P. Singh, the learned author, the
proviso should not be so construed as to make it redundant.
In certain cases, "the legislative device of the exclusion is
adopted only to exclude a part from the whole, which, but for
the exclusion, continues to be a part of it", and words of
exclusion are presumed to have some meaning and are not
readily recognized as mere surplusage. As a corollary, it is
stated that a proviso must be so construed that the main
enactment and the proviso should not become redundant or
otiose. This is particularly so, where the object of a proviso
sometimes is only by way of abundant caution, particularly
when the operative words of the enactment are abundantly
clear. In other words, the purpose of a proviso in such a case
is to remove any doubt. There are also instances where a
proviso is in the nature of an independent enactment and
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not merely, an exception or qualifying what has been stated
before. In other words, if the substantive enactment is
worded in the form of a proviso, it would be an independent
legislative provision concerning different set of
circumstances than what is worded before or what is stated
before. Sometimes, a proviso is to make a distinction of
special cases from the general enactment and to provide it
specially.
(d) At this stage, the construction or interpretation of a proviso
could be discussed as gathered from various judgments of
this Court.
(i) In Ishverlal Thakorelal Almaula vs. Motibhai
Nagjibhai – [AIR 1966 SC 459], while dealing with the
Bombay Tenancy and Agricultural Lands Act, 1948, this
Court held, that a proper function of a proviso is to except
or qualify something enacted in the substantive clause,
which but for the proviso, would be within that clause.
(ii) In Kaviraj Pandit Durga Dutt Sharma vs. Navaratna
Pharmaceutical Laboratories – [AIR 1965 SC 980],
while considering the proviso to Section 6 of Trade Marks
Act, 1940, it was observed that it would not be a
reasonable construction for any statute, if a proviso
which in terms purports to create an exception and seeks
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to confer certain special rights on a particular class of
cases included in it should be held to be otiose and to
have achieved nothing.
(iii) In Kedarnath Jute Manufacturing Co. Ltd. vs. The
Commercial Tax Officer and Others, [AIR 1966 SC
12], it was observed that "the effect of an excepting or
qualifying proviso, according to the ordinary rules of
construction, is to except out of the preceding portion of
the enactment or to qualify something 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 was considering Section 5(2) (a) (ii) of
Bengal Finance Sales Tax Act, 1941 and Rule 27-A of
Bengal Sales Tax Rules.
(iv) In Dattatraya Govind Mahajan and Others Vs. The
State of Maharashtra and another – [AIR 1977 SC
915], a Constitution Bench of the Apex Court, while
considering the amendment made to Maharashtra
Agricultural Lands (Ceiling on Holdings) Act, 1961, in
the context of Article 31B of the Constitution and the
second proviso thereto, reiterated what was stated in
Ishverlal's case, (supra).
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(v) In S. Sundaram Pillai, etc, vs. V.R. Pattabiraman –
[AIR 1985 SC 582], while dealing with the scope of a
proviso and explanation to sub - section (2) of Section 10
of Tamil Nadu Buildings (Lease and Rent Control) Act,
1960, this Court held that a proviso may have three
separate functions. Normally, a proviso is meant to be an
exception to something within the main enactment or
qualifying some thing enacted therein which, but for the
proviso, would be within the purview of the enactment.
In other words, a proviso cannot be torn apart from the
main enactment, nor can it be used to nullify or set at
naught the real object of the main enactment.
Sometimes, a proviso may exceptionally have the effect of
a substantive enactment.
(e) After referring to several legal treatises and judgments, this
Court held in the above judgment as under:-
"43. We need not multiply authorities after
authorities on this point because the legal
position seems to be clearly and manifestly well
established. To sum up, a proviso may serve four
different purposes:
(1) qualifying or excepting certain provisions
from the main enactment;
(2) it may entirely change the very concept of
the intendment of the enactment by insisting on
certain mandatory conditions to be fulfilled in
order to make the enactment workable;
(3) it may be so embedded in the Act itself as
to become an integral part of the enactment and
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thus acquire the tenor and colour of the
substantive enactment itself; and
(4) it may be used merely to act as an optional
addenda to the enactment with the sole object of
explaining the real intendment of the statutory
provision."
(f) The approach to the construction and interpretation of a
proviso is enunciated in the following cases.
(i) In M. Pentiah vs. Muddala Veeramallappa – [AIR
1961 SC 1107], it was observed that while interpreting
a section or a proviso, if the choice is between two
interpretations, the narrower of which would fail to
achieve the manifest purpose of the legislation, one
should avoid a construction which would reduce the
legislation to futility and should rather accept the bolder
construction based on the view that Parliament would
legislate only for the purpose of bringing about an
effective result.
(ii) In Superintendent & Remembrancer of Legal Affairs
to Govt. of West Bengal vs. Abani Maity - [AIR 1979
SC 1029], this Court observed that the statute is not to
be interpreted merely from the lexicographer's angle. The
Court must give effect to the will and in-built policy of
the Legislature as discernible from the object and
scheme of the enactment and the language employed
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therein. The words in a statute often take their meaning
in the context of a statute as a whole. They are, therefore,
not to be construed in isolation.
51. In the instant case, when the proviso is read in the context
of the main provision which begins with the words ‘an aggrieved
person or a Protection Officer or any other person on behalf of the
aggrieved person may present an application to the Magistrate
seeking one or more reliefs under the D.V. Act’ would clearly
indicate that the aggrieved person can by herself or through her
advocate approach the Magistrate for seeking any of the reliefs
under the D.V. Act. In such an event, the filing of a Domestic
Incident Report does not arise. The use of the expression ‘shall’ in
the proviso has to be read contextually i.e., the Magistrate is
obliged to take into consideration any Domestic Incident Report
received by him when the same has been filed from the Protection
Officer or the service provider in a case where the application is
made to the Magistrate on behalf of the aggrieved person through
a Protection Officer or a service provider. If the intention of the
Parliament had been that filing of the Report by the Protection
Officer is a condition precedent for the Magistrate to act upon the
complaint filed by an aggrieved person even when she files it by
herself or through her advocate then it would have been so
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expressed. But a conjoint reading of Sub-Section (1) of Section 12
with the proviso does not indicate such an intention. Thus, the
plenitude of power under Section 12 of the D.V. Act is accordingly
interpreted and pre-requisite for issuing notice to the respondent
on an application filed by the aggrieved person without the
assistance of a Protection Officer or service provider and thus
there being an absence of Domestic Incident Report, does not
arise. If a contrary interpretation is to be given then the opening
words of Sub-Section (1) of Section 12 would be rendered otiose
and it would be incumbent for every aggrieved person to first
approach a Protection Officer or a service provider, as the case
may be, and get a Domestic Incident Report prepared and
thereafter to approach the Magistrate for reliefs under the D.V.
Act, which is not the intention of the Parliament. Hence, in our
view, the judgments of the Madhya Pradesh High Court in Rama
Singh vs. Maya Singh – [(2012) 4 MPLJ 612] and the Delhi High
Court in Ravi Dutta vs. Kiran Dutta and Another – [2018 (2014)
DLT 61], do not lay down the correct law and are hereby overruled
while we affirm all other judgments referred to supra which are in
consonance with the line of interpretation made above.
52. In view of the above discussion, the three questions raised
in this appeal are answered as under:
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“(i) Whether the consideration of Domestic Incidence
Report is mandatory before initiating the proceedings
under Domestic Violence Act, 2005 in order to invoke
substantive provisions of Sections 18 to 20 and 22 of
the said Act?”
It is held that Section 12 does not make it mandatory for a
Magistrate to consider a Domestic Incident Report filed by a
Protection Officer or service provider before passing any order
under the D.V. Act. It is clarified that even in the absence of a
Domestic Incident Report, a Magistrate is empowered to pass both
ex parte or interim as well as a final order under the provisions of
the D.V. Act.
“(ii) Whether it is mandatory for the aggrieved person to
reside with those persons against whom the allegations
have been levied at the point of commission of violence?”
It is held that it is not mandatory for the aggrieved person,
when she is related by consanguinity, marriage or through a
relationship in the nature of marriage, adoption or are family
members living together as a joint family, to actually reside with
those persons against whom the allegations have been levelled at
the time of commission of domestic violence. If a woman has the
right to reside in the shared household under Section 17 of the
D.V. Act and such a woman becomes an aggrieved person or
victim of domestic violence, she can seek reliefs under the
provisions of D.V. Act including enforcement of her right to live in
a shared household.
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“(iii) Whether there should be a subsisting domestic
relationship between the aggrieved person and the
person against whom the relief is claimed?”
It is held that there should be a subsisting domestic
relationship between the aggrieved person and the person against
whom the relief 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 relationship
should be subsisting. In other words, even if an aggrieved person
is not in a domestic relationship with the respondent in a shared
household at the time of filing of an application under Section 12
of the D.V. Act but has at any point of time lived so or had the
right to live and has been subjected to domestic violence or is later
subjected to domestic violence on account of the domestic
relationship, is entitled to file an application under Section 12 of
the D.V. Act.
53. Consequently, the judgment dated 23rd July, 2019 passed
by the High Court of Uttarakhand in Criminal Revision No. 186 of
2014 as well as the judgment dated 11th July, 2014 passed by the
Vth Additional Sessions Judge, Dehradun in Criminal Appeal No.
53 of 2011 are set aside and the order passed by the Special
Judicial Magistrate-I in Miscellaneous Case No. 78 of 2007,
Dehradun is affirmed.
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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
to the valuable services rendered by Shri Gaurav Agarwal, learned
amicus curiae, who has painstakingly researched all the relevant
judgments on the questions raised in this case arising from
various High Courts and has made his submission schematically
with particular reference to the facts of the case and all relevant
provisions of the D.V. Act.
……….………………..J.
(M.R. Shah)
…………..…………….J.
(B.V. Nagarathna)
New Delhi;
12th May, 2022
