Satish Chander Ahuja vs Sneha Ahuja

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

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

SATISH CHANDER AHUJA ...APPELLANT(S)

VERSUS

SNEHA AHUJA ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. This appeal raises important questions of law

pertaining to the interpretation and working of the

Protection of Women from Domestic Violence Act, 2005

(hereinafter referred to as “Act, 2005”).

3. This appeal has been filed by Satish Chander Ahuja,

the plaintiff questioning the judgment of Delhi High

Court Signature Not Verified dated 18.12.2019 in RFA No.381/2019 by which Digitally signed by MEENAKSHI KOHLI Date: 2020.10.15 16:30:20 IST Reason: judgment Delhi High Court has set aside the decree

granted in favour of the plaintiff dated 08.04.2019 2

under Order XII Rule 6 of Civil Procedure Code,

decreeing the suit filed by the plaintiff for mandatory

and permanent injunction. The High Court after setting

aside the decree of the Trial Court has remanded the

matter back to the Trial Court for fresh adjudication

in accordance with the directions given by the High

Court. The plaintiff aggrieved by the judgment of the

High Court has come up in this appeal.

4. We may notice the brief facts of the case and

relevant pleadings of the parties for determining the

questions which have arisen for consideration in this

appeal.

5. The appellant by deed dated 12.01.1983 purchased

property bearing No.D-1077, New Friends Colony, New

Delhi. The son of the appellant, Raveen Ahuja was

married to the respondent, Sneha Ahuja on 04.03.1995.

After marriage the respondent started living in the

first floor of the house No.D-1077, Friends Colony, New

Delhi along with her husband. There being marital 3

discord between Raveen and Sneha, in July, 2014, Raveen

moved out of the first floor and started staying in the

guest room of the ground floor. In the year 2004 a

separate kitchen was started by the respondent in the

first floor of the house. Raveen, the husband of the

respondent filed a Divorce Petition on 28.11.2014 under

Section 13(1)(ia) and (iii) of Hindu Marriage Act, 1955

for decree of divorce on the ground of cruelty against

the respondent, Sneha Ahuja which proceeding is said to

be still pending. The respondent, Sneha Ahuja, on

20.11.2015, i.e., after filing of the Divorce Petition,

filed an application under Section 12 of Act, 2005

impleading Raveen Ahuja as respondent No.1, Shri Satish

Ahuja, respondent No.2 and Dr. Prem Kanta Ahuja(mother-

in-law of the respondent), respondent No.3. In the

complaint it was alleged that Sneha Ahuja has been

subjected to severe emotional and mental abuse by the

respondents. In the application respondent prayed for

several orders under Act, 2005. The learned Chief

Metropolitan Magistrate before whom the complaint was 4

filed passed an interim order on 26.11.2016 to the

following effect:

“The respondents shall not alienate the alleged shared household nor would they dispossess the complainant or their children from the same without Orders of a Competent Court. These directions shall continue till next date.”

6. The appellant filed a Suit No.792/2017 impleading

the respondent as sole-defendant for mandatory and

permanent injunction and also for recovery of

damages/mesne profit. Plaintiff’s case in the suit was

that he is a senior citizen of 76 years old, the

defendant is in occupation of two bed rooms with

attached dressing and bath rooms and a kitchen on the

first floor of the property bearing No. D-1077, New

Friends Colony, New Delhi. Plaintiff pleaded that he is

a heart patient and has undergone angioplasty twice and

suffers from hypertension and high blood pressure.

Plaintiff pleads that the defendant has filed false and

frivolous cases against the plaintiff and his wife and

hence he prays for removal of the defendant from the 5

suit property so as he may live peaceful life.

Plaintiff further pleaded that the plaintiff acquired

the house from the previous owner, namely, Kulbhushan

Jain on 12.01.1983. He also pleaded that the property

has been converted into free hold vide conveyance deed

executed in his favour dated 14.07.2003 which is

registered. Plaintiff pleaded that his elder son was

married with the defendant on 04.03.1995. The plaintiff

further pleaded that wife of the plaintiff has been

subjected to various threats and violence in the hands

of the defendant on several occasions. The mention of

the Divorce Petition filed by Raveen was made in the

plaint and it was pleaded that the defendant as a

counter blast has filed the complaint case under the

Protection of Women from Domestic Violence Act, 2005 in

which interim order directing the plaintiff not to

alienate and not to dispossess the defendant without

order of the competent court has been passed. 6

7. Plaintiff claimed that he and his wife has become

victim of domestic violence on the part of the

defendant. Plaintiff pleaded that the status of

occupation of defendant as a daughter-in-law during

subsistence of marriage with the son could be said to

be permissive in nature and defendant is not entitled

to claim a right of residence against the plaintiff,

i.e., her father-in-law who has no obligation to

maintain her during the lifetime of her husband.

Plaintiff in the suit prayed for decree for mandatory

injunction against the defendant to remove herself and

her belonging from the first floor of the property and

a decree of permanent injunction in favour of the

plaintiff and against the defendant thereby restraining

the defendants, her agents, employees, representatives,

etc. from in any manner creating interference or

obstruction of the right of the plaintiff in the suit

property and restrain her from causing interference in

the peaceful occupation of the plaintiff in the ground

floor of the property. Decree of recovery of 7

damages/mesne profit was also asked for the use and

occupation of the suit property of Rs.1 lac from the

date of filing of the suit till the defendant is

removed from the suit property.

8. A written statement was filed by the defendant

pleading that house property was acquired by the

plaintiff through joint family funds and not his self-

acquired property. It was pleaded in the written

statement that the plaintiff has suppressed the true

and material facts regarding causing physical and

mental torture to the defendant on account of domestic

violence etc. by the plaintiff, his wife and their

elder son.

9. The defendant also referred to filing of complaint

case under section 12 of Act, 2005. The defendant

claimed that the suit property is a shared household as

per provision of Section 2(s) of the Act, 2005, the

defendant has right to stay/reside in the shared

household. The plaintiff has filed suit in the 8

collusion of his son Raveen Ahuja to deprive the legal

right of the residence of the defendant and her

daughters in the suit property. It was pleaded further

that the defendant has been subjected to severe

emotional and mental abuse by the plaintiff, his wife

and their elder son. The defendant further pleads that

since marriage defendant is staying in the shared

household of the first floor which is a matrimonial

home of the defendant. The interim order passed in

complaint case dated 16.07.2016 and 26.11.2016 has been

also referred to.

10. Plaintiff filed an application under Order XII Rule

6 CPC on 05.01.2018 read with Section 151 CPC for

passing a decree on the basis of admissions made by the

defendant in the application under Section 12 of Act,

2005. Plaintiff pleaded that property in question is

self-acquired property of the plaintiff by agreement to

sell dated 12.01.1983 followed by a registered

conveyance deed dated 14.07.2003. The defendant has

herself in her pleadings filed in the domestic violence 9

case admitted the plaintiff to be the owner of the suit

property, hence, decree of mandatory injunction in

favour of the plaintiff be granted.

11. The defendant filed an application on 23.09.2017

under Order XI Rules 12 and 14 CPC for production of

documents. In paragraph 7 of the application, the

defendant referred to various documents which according

to the defendant were relevant for deciding the suit.

By the application documents were sought to be produced

by the plaintiff. The Trial Court vide its order dated

20.03.2018 directed the plaintiff to file an affidavit

and documents as sought for in the application under

Order XI Rule 13 which are in his custody with advance

copy to the opposite party. A reply was filed by the

defendant on 15.02.2018 to the application filed by the

plaintiff under Order XII Rule 6 CPC. The defendant

again reiterated that the shared household was acquired

by the plaintiff through joint-family business and the

house is not his self-acquired property. 10

12. The plaintiff also filed an affidavit and documents

under Order XI Rule 13 CPC in compliance of the order

of the Trial Court dated 20.03.2018.

13. The Trial Court proceeded to decide the application

under Order XII Rule 6 CPC filed by the plaintiff. By

judgment dated 08.04.2019 Trial Court decreed the suit

in the following manner:

“26. In the light of aforesaid discussion and the observations, this Court is of the considered opinion that there are sufficient admission to pass a decree in favour of the plaintiff. Consequently, suit of the plaintiff is decreed for the relief of mandatory and permanent injunction as prayed for. The defendant is directed to hand over the vacant and physical possession of the suit property to the plaintiff within 15 days. At the time of announcement of the order, this Court asked plaintiff whether he wants to pursue his suit for the relief of damages to which he agreed to waive off the said relief. Accordingly, statement of the plaintiff was also recorded to this effect. Accordingly, the relief of damages stands withdrawn. Decree sheet be prepared for the relief of permanent and mandatory injunction accordingly. There is no order as to costs. File be consigned to record room. As requested, copy of this judgment be given dasti.” 11

14. Aggrieved with the judgment of Trial Court the

defendant filed RFA No.381 of 2019 in the High Court of

Delhi. The Delhi High Court heard the RFA filed by the

respondent along with five other RFAs and by a common

judgment dated 18.12.2019 set aside the decree of the

Trial Court and remanded the matter to the Trial Court

for fresh adjudication in accordance with the

directions given in paragraph 56 of the judgment.

15. The High Court noticed the facts of the different

appeals and submissions made by the learned counsel.

The High Court opined that the real point of

determination in the appeal is not as to whether suit

premises is a shared household or not and since the

domestic violence proceedings initiated by the

daughter-in-law are pending adjudication, determination

of this issue in suit proceedings would result in

causing serious prejudice to the claim of the applicant

in the domestic violence proceedings. The High Court

observed that it had consciously refrained from

determining the question as to whether the suit 12

premises is shared household or not. The High Court was

of the view that the decisions cited have not

considered the effect of the pending domestic violence

application instituted by daughter-in-law upon the

civil suit. The High Court, however, held that suit for

possession instituted cannot be said to be non-

maintainable since necessary answer falls within the

term “procedure established by law”. The High Court has

further observed that question is whether the suit

could be simply decreed by the Trial Court on the basis

of the title without weighing the effect of the

statutory right in favour of the appellant. The High

Court in paragraph 33 made following observation:

“33……………Thus, I find that the DV Act has aspired to bring in a sea change in the rights of persons affected by domestic violence by ensuring that irrespective of the ownership of the suit premises where the aggrieved person resided, she would still retain the right to reside therein as long as she was able to prove that she had endured domestic violence while being in a domestic relationship with the owner of such premises.” 13

16. The High Court opined that the Trial Court

erroneously proceeded to pass decree under Order XII

Rule 6 CPC by not impleading the husband and failing to

appreciate the specific submission of the appellant

while admitting the title of the respondent that the

suit premises was the joint family property but also

losing the site of the DV Act. The directions given by

the High Court are contained in the paragraph 56 to the

following effect:

“56. In these circumstances, the impugned judgments cannot be sustained and are accordingly set aside. The matters are remanded back to the Trial Court for fresh adjudication in accordance with the directions given hereinbelow:

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

(ii) The Trial Court will then consider whether the appellant had made any unambiguous admission about the respondent’s ownership rights in respect of the suit premises; if she has and her only defence to being dispossessed there 14

from is her right of residence under the DV Act, then the Trial Court shall, before passing a decree of possession on the wife premise of ownership rights, ensure that in view of the subsisting rights of the appellant under the DV Act, she is provided with an alternate accommodation as per Section 19(1)(f) of the DV Act, which will continue to be provided to her till the subsistence of her matrimonial relationship.

(iii) In cases where the appellant specifically disputes the exclusive ownership rights of the respondents over the suit premises notwithstanding the title documents in their favour, the Trial Court, while granting her an opportunity to lead evidence in support of her claim, will be entitled to pass interim orders on applications moved by the respondents, directing the appellant to vacate the suit premises subject to the provision of a suitable alternate accommodation to her under Section 19(1)(f) of the DV Act, which direction would also be subject to the final outcome of the suit.

(iv) While determining as to whether the appellant’s husband or the in-laws bears the responsibility of providing such alternate accommodation to the appellant, if any, the Trial Court may be guided by paragraph 46 of 15

the decision in Vinay Verma (supra).

(v) The Trial Court shall ensure that adequate safeguards are put in place to ensure that the direction for alternate accommodation is not rendered meaningless and that a shelter is duly secured for the appellant, during the subsistence of her matrimonial relationship.

(vi) This exercise of directing the appellant to vacate the suit premises by granting her alternate accommodation will be completed expeditiously and not later than 6 months from today.”

17. The plaintiff-appellant aggrieved by the judgment

of the High Court dated 18.12.2019 has come up in this

appeal.

18. We have heard Shri Prabhjit Jauhar, learned

counsel for the appellant. Shri Nidhesh Gupta, learned

senior counsel has appeared for the respondent. We have

also heard Ms. Geeta Luthra, learned senior counsel and

Shri Jayant Bhushan, learned senior counsel in the

connected SLP (C) No.9415 of 2020 in which parties are

stated to have entered into a settlement.

16 19. Shri Prabhjit Jauhar, learned counsel for appellant

contends that suit property which is exclusively owned

by the appellant is not a shared household. The son of

the appellant, Raveen has no right in the property and

the son as well as respondent-daughter-in-law were only

gratuitous licencees of the appellant. The appellant

purchased the property in the year 1983, at that time

the son of the appellant was only 14 years old. It is

submitted that the respondent can claim right to reside

only in house which is either joint family property or

the husband of the respondent has a share in it. In the

property belonging to father of the husband, she has no

right to reside. Learned counsel for the appellant has

relied on judgment of this Court in S.R. Batra and Anr.

Vs. Taruna Batra, (2007) 3 SCC 169, where two-Judge

Bench of this Court held that the wife is entitled only

to claim a right under Section 17(1) to residence in a

shared household and a shared household would only mean

the house belonging to or taken on rent by the husband, 17

or the house which belongs to the joint family of which

the husband is a member.

20. It is submitted that the complaint under the Act,

2005 filed by the respondent was only a counter blast

to the Divorce Petition dated 28.11.2014 filed by the

husband of the respondent. It is submitted that

Sections 17 and 19 of the Act, 2005 do not contemplate

a proprietary or ownership right in the shared

household for the aggrieved person. Shri Jauhar further

submits that her claim for alternate accommodation can

be made qua husband and not qua the father-in-law

because her relationship in the household emanates

pursuant to the marriage and father-in-law cannot be

under a statutory obligation to provide for the

residence and maintenance of daughter-in-law. Shri

Jauhar submits that unless the definition of shared

household under Section 2(s) is not interpreted in a

manner confining the definition of shared household to

joint family or the property where the husband has a

share it will create chaos in the society. It is 18

submitted that extensive interpretation of shared

household would lead the chaos in the society which

needs to be avoided for protecting peace and harmony in

the society. He submitted that harmonious construction

by interpretation in the suit is to be adopted so that

the right of the parties are balanced. Shri Jauhar

submits that in her application filed under Section 12

of Act, 2005, the respondent has asked for alternate

accommodation.

21. Shri Jauhar submits that the High Court committed

error in not following the binding precedence of Delhi

High Court itself. Shri Jauhar submits that the

respondent never filed a counter claim in the suit

filed by the appellant-owner, nor filed a suit for

declaration of her claim of property being joint family

property. Shri Jauhar submits that the High Court has

not adverted to facts of different appeals and all

appeals were decided by a common judgment without

referring to evidence and pleadings in each appeal

separately. The finding of the Trial Court has not been 19

overruled by the High Court in the appellant’s case.

Shri Jauhar further submits that husband is not a

necessary party in a suit filed by the father-in-law.

Shri Jauhar submits that the Trial Court has rightly

decreed the suit under Order XII Rule 6 CPC relying on

the admission made by the respondent in her application

under Section 12 of the Act, 2005. The High Court has

not followed the binding judgment of this Court in S.

R. Batra Vs. Taruna Batra which was binding on the High

Court under Article 141 of the Constitution of India.

Shri Jauhar submits that rights of wife in other

statutes like Hindu Marriage Act, 1955 and Hindu

Adoption and Maintenance Act, 1956 are only against the

husband.

22. Shri Nidhesh Gupta, learned senior counsel

appearing for the respondent refuting the submission of

the learned counsel for the appellant supports the

judgment of the High Court. Shri Gupta submits that

Act, 2005 granted protection and security of residence

to woman. Shri Gupta referring to definition of 20

domestic relationship under Section 2(f) contends that

respondent was in domestic relationship with the

appellant and the appellant was respondent within the

meaning of Section 2(q) against whom allegation of

domestic violence was made in petition under Section

12. Shri Gupta referring to definition of shared

household under Section 2(s) submits that factum of

residence and domestic relationship with the respondent

are the only qualification to fall within the ambit of

definition of shared household. Shri Gupta submits that

second part of the definition of the shared household

is extensive in nature which gives certain example but

cannot be said to be exhaustive looking at scheme of

the Act. He submits that when 'includes' is used after

the term “means” it is extensive and not exhaustive in

nature. The respondent being in domestic relationship

with the appellant living in the suit property since

her marriage and continues to do so till date, the

property is shared household where the appellant is

staying. It is submitted that for shared household it 21

is not necessary that aggrieved person should have any

right, title or interest. It is further submitted that

it is also not necessary that the husband of the woman

should have any right, title or interest in the house.

It is submitted that protection under Section 17 is

available in all legal proceedings including the suit

filed by the appellant.

23. Referring to Section 26 of the Act, 2005 Shri Gupta

submits that relief under Section 19 was very well

available in Civil Procedure Code. The plea taken by

the respondent in her pleadings in the civil suit would

constitute the counter claim which warranted exercise

of power of Trial Court under Section 26 of the Act,

2005. Referring to the judgment of this Court in

S.R.Batra Vs. Taruna Batra, Shri Gupta submits that the

said judgment is distinguishable on facts. He submits

that the said case was pre-Act, 2005 case and secondly

Taruna Batra admitted that she had shifted to her

parents’ residence at the time of institution of the

suit. It is submitted that the injunction was denied 22

since Taruna Batra was not residing in the house which

finding was not liable to be interfered with by the

High Court under Article 226 or 227 as held by this

Court. Shri Gupta further submits that the judgment of

this Court in S.R. Batra case does not lay down correct

law. He submits that the definition of “shared

household” has not been correctly analysed in S.R.

Batra case. The definition of respondent does not

include only husband. The relatives of the husband who

have treated the aggrieved person with domestic

violence can be arrayed as respondent. There is no

reason to extend definition of shared household only to

property in which the husband has a share. It is

submitted that S.R. Batra has not appreciated that

second part of the definition of shared household is

merely illustration and not exhaustive. S.R.Batra also

erred in holding that alternative accommodation under

Section 19 can only be enforced against the husband.

Shri Gupta submits that the judgment of S.R. Batra does

not correctly interpret provisions of Act, 2005. 23 Referring two subsequent judgments of this Court,

namely Hiral P. Harsora and others Vs. Kusum

Narottamdas Harsora and others, (2016) 10 SCC 165, and

Vaishali Abhimanyu Joshi Vs. Nanasaheb Gopal Joshi,

(2017) 14 SCC 373, Shri Gupta submits that the above

two judgments have taken a view contrary to law lay

down in S.R. Batra case. Shri Gupta submits that

present was not a case of granting any decree under

Order XII Rule 6, the respondent having categorically

pleaded in the written statement that the suit property

was purchased from the joint family fund. Shri Gupta

referred to various documents which were brought on the

record before the Trial Court indicating that joint

family fund was utilised for purchasing the suit

property.

24. Shri Jayant Bhushan, learned senior counsel

supporting the submission of the learned counsel for

the appellant contends that rights of daughter-in-law

are only to the extent of right of the

husband/respondent. He submits that in the definition 24

in Section 2(s) the word ‘includes’ has to be read

“means and includes”. Referring to term household, Shri

Bhushan referred to definition as given by Census of

India where common kitchen is a pre-requisite of a

household.

25. Ms. Geeta Luthra supporting the submission of Shri

Nidhesh Gupta contends that household of father-in-law

will be shared household of daughter-in-law where she

is living since marriage. Ms. Luthra relies on the

judgment of Delhi Court in Eveneet Singh Vs. Prashant

Chaudhri, 2010 SCC online Delhi 4507, Division Bench

judgment of Delhi High Court in Eveneet Singh Vs.

Prashant Chaudhari, 2011 SCC online Delhi 4651 and

Division Bench judgment of the Delhi High Court in

Preeti Satija Vs. Raj Kumari and Anr., 2014 SCC online

Delhi 188.

26. Learned counsel for the parties have also referred

to various judgments of this Court and Delhi High Court 25

which we will consider while considering the

submissions of the parties in detail.

27. From the submissions of the learned counsel for the

parties following questions arise for determination in

this appeal:

(1) Whether definition of shared household under

Section 2(s) of the Protection of Women from

Domestic Violence Act, 2005 has to be read to

mean that shared household can only be that

household which is household of joint family or

in which husband of the aggrieved person has a

share?

(2) Whether judgment of this Court in S.R. Batra and

Anr. Vs. Taruna Batra, (2007) 3 SCC 169 has not

correctly interpreted the provision of Section

2(s) of Protection of Women from Domestic

Violence Act, 2005 and does not lay down a

correct law?

26 (3) Whether the High Court has rightly come to the

conclusion that suit filed by the appellant could

not have been decreed under Order XII Rule 6 CPC?

(4) Whether, when the defendant in her written

statement pleaded that suit property is her

shared household and she has right to residence

therein, the Trial Court could have decreed the

suit of the plaintiff without deciding such claim

of defendant which was permissible to be decided

as per Section 26 of the Act, 2005?

(5) Whether the plaintiff in the suit giving rise to

this appeal can be said to be the respondent as

per definition of Section 2(q) of Act, 2005 ?

(6) What is the meaning and extent of the expression

“save in accordance with the procedure

established by law” as occurring in Section 17(2)

of Act, 2005 ?

(7) Whether the husband of aggrieved party

(defendant) is necessary party in the suit filed

by the plaintiff against the defendant?

27 (8) What is the effect of orders passed under Section

19 of the Act, 2005 whether interim or final

passed in the proceedings initiated in a civil

court of competent jurisdiction?

28. Before we consider the questions as noted above, we

need to notice the Statutory Scheme of the Protection

of Women from Domestic Violence Act, 2005.

29. The progress of any society depends on its ability

to protect and promote the rights of its women.

Guaranteeing equal rights and privileges to women by

the Constitution of India had marked the step towards

the transformation of the status of the women in this

country.

30. The domestic violence in this country is rampant

and several women encounter violence in some form or

the other or almost every day, however, it is the least

reported form of cruel behavior. A woman resigns her

fate to the never ending cycle of enduring violence and

discrimination as a daughter, a sister, a wife, a

mother, a partner or a single woman in her lifetime. 28

This non-retaliation by women coupled with the absence

of laws addressing women’s issues, ignorance of the

existing laws enacted for women and societal attitude

makes the women vulnerable. The reason why most cases

of domestic violence are never reported is due to the

social stigma of the society and the attitude of the

women themselves, where women are expected to be

subservient, not just to their male counterparts but

also to the male’s relatives.

31. Till the year 2005, the remedies available to a

victim of domestic violence were limited. The women

either had to go to the civil court for a decree of

divorce or initiate prosecution in the criminal court

for the offence punishable under Section 498-A of the

IPC. In both the proceedings, no emergency

relief/reliefs is/are available to the victim. Also,

the relationships outside the marriage were not

recognized. This set of circumstances ensured that a

majority of women preferred to suffer in silence, not

out of choice but of compulsion.

29

32. The enactment of Act, 2005 is a milestone for

protection of women in this country. The Statement of

Objects and Reasons of the Protection of Women from

Domestic Violence Bill, 2005 marks the objective which

was sought to be achieved by the enactment. It is

useful to reproduce the Statement of Objects and

Reasons, which are in the following words:-

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

(i) It covers those women who are or have been in a relation-

ship with the abuser where both parties have lived together in a shared household and are re-

lated by consanguinity, mar-

riage or through a relation-

ship in the nature of marriage or adoption. In addition, rela-

tionships with family members living together as a joint fam-

ily are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation.

However, whereas the Bill en-

ables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative 30

of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.

XXXXXXXXXXXXXXXXXX

(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.

XXXXXXXXXXXXXXXXXXX”

33. The Statement of Objects and Reasons refers to

three International Conventions where recommendations

were made to the parties States to take measures

including Legislation to protect women against violence

including occurring within the family. General

Recommendation No.XII of the United Nations Committee

on Convention on Elimination of All Forms of

discrimination against women stated:- 31 “General Recommendation No. 12

(Eighth session, 1989)

Violence against women

The Committee on the Elimination of Discrimination against Women.

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

34. Even before the Act, 2005 was enacted, Justice

Sabyasachi Mukharji in B.R. Mehta Vs. Atma Devi and

Ors., (1987) 4 SCC 183 has noted that right of

occupation in matrimonial home which is granted under

Matrimonial Homes Act, 1967 in England are not granted

in India though it may be that with the change of

situation and complex problems arising, it is high time

to give the wife or the spouse a right of occupation.

In paragraph 6 following was laid down:-

“6. ……………….In England the rights of the spouses be it the husband or the wife to the matrimonial home are now governed by the provisions of Matrimonial Homes Act, 1967.

32 Halsbury's Laws of England, Fourth Edition, Vol. 22 page 650 deals with the rights of occupation in matrimonial home and paragraph 1047 deals with and provides that where one spouse is entitled to occupy a dwelling house by virtue of any estate or interest or contract or by virtue of any enactment giving him or her the right to remain in occupation, and the other spouse is not so entitled, then the spouse not so entitled has the certain rights (known as "rights of occupation") that is to say if in occupation, a right not to be evicted or excluded from the dwelling house or any part of it by the other spouse except with the leave of the court given by an order, if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling house. But such rights are not granted in India though it may be that with change of situation and complex problems arising it is high time to give the wife or the spouse a right of occupation in a truly matrimonial home, in case of marriage breaking up or in case of strained relationship between the husband and the wife………………………….”

35. In the laws of United Kingdom, the rights of

husband or wife to occupy a dwelling house, which has

been the matrimonial home, was included in Matrimonial

Homes Act, 1967. Section 1(1) of the Act provides:-

“Protection against eviction, etc., from matrimonial home of spouse not entitled by virtue of estate, etc., to occupy if 33

1. -(1)Where one spouse is entitled to occupy a dwelling house by virtue of any estate or interest or contract or by virtue of any enactment giving him or her the right to remain in occupation, and the other spouse is not so entitled, then, subject to the provisions of this Act, the spouse not so entitled shall have the following rights (in this Act referred to as "rights of occupation")—

(a)if in occupation, a right not to be evicted or excluded from the dwelling house or any part thereof by the other spouse except with the leave of the court given by an order under this section;

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

36. By subsequent enactment, Matrimonial Homes Act,

1983 although Matrimonial Homes Act, 1967 was repealed,

same protection was continued to occupy the matrimonial

home and the said right was continued by virtue of

Section 1(1), which was to the same effect. The Family

Law Act, 1996 was enacted in the United Kingdom where a

separate chapter “Chapter IV – Family Homes and 34

Domestic Violence” was enacted. Section 30 of which

provision is as follows:-

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

(1)This section applies if—

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

house by virtue of—

(i)a beneficial estate or interest or contract; or

(ii)any enactment giv-

ing the right to remain in occupation; and

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

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

(a)if in occupation, a right not to be evicted or excluded from the dwelling-house or any part of it by except with the leave of the court given by an order under sec-

tion 33;

(b)if not in occupation, a right with the leave of the court so given 35

to enter into and occupy the dwelling-house.

(3)If is entitled under this section to oc- cupy a dwelling-house or any part of a dwelling-house, any payment or tender made or other thing done by in or towards satisfaction of any liability of in respect of rent, mort- gage payments or other outgoings affecting the dwelling-house is, whether or not it is made or done in pursuance of an order under section 40, as good as if made or done by .

XXXXXXXXXXXXXXXX”

37. The right of occupation of matrimonial home, which

was not so far part of the statutory law in India came

to be included in Act, 2005. Need of such legislation

as noticed by Justice Sabyasachi Mukharji has been

fulfilled by enactment of Act, 2005.

38. As noticed above, from the Statement of Objects and

Reasons, the Act was enacted to fulfill the definite

objectives for protection of women. This Court had

occasion to examine the purpose of enactment of Act,

2005 in Kunapareddy Alias NookalaShanka Balaji Vs.

Kunapareddy Swarna Kumari and Anr., (2016) 11 SCC 774

wherein paragraph 12 following was stated:- 36

“12.In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence Under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the Scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality…………………”

39. The Act, 2005 is a further step to secure social

justice by legislation. There has been several earlier

measures for protection of women like Section 125

Cr.P.C. and 498-A of India Penal Code. Justice Krishna

Iyer in Captain Ramesh Chander Kaushal Vs. Mrs. Veena

Kaushal and Ors., (1978) 4 SCC 70 noted the objectives

of enacting Section 125 Cr.P.C. in following words in

paragraph 9:-

37

“9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause--the cause of the derelicts.

40. Enactment of Act, 2005 is another step in the same

direction. This Court in Manmohan Attavar Vs. Neelam

Manmohan Attavar, (2017) 8 SCC 550 noticed that Act,

2005 has been enacted to create an entitlement in

favour of the woman of the right of residence. In

paragraph 15, following was observed:-

“15. A reading of the aforesaid provisions shows that it creates an entitlement in favour of the woman of the right of residence under the "shared household" irrespective of her having any legal interests in the same. The direction, inter alia, can include an order restraining dispossession or a direction to remove himself on being satisfied that domestic violence had taken place.” 38

41. Now, we proceed to notice certain provisions of

Act, 2005, which are relevant for determination of the

issues as arisen in the present appeal. According to

Section 2(a) ”aggrieved person” means any person, who

is, or has been, in a domestic relationship with the

respondent and who alleges to have been subjected to

any act of domestic violence by the respondent.

“Domestic Relationship” has been defined in Section

2(f) in following words:-

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

42. The expression “respondent” is defined in Section 2

(q) in following words:-

“(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

39 Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;”

43. The words “adult male” as occurring in Section 2(q)

has been struck down by this Court in Hiral P. Harsora

and Ors. Vs. Kusum narottamdas Harsora and Ors., (2016)

10 SCC 165. Consequently, the respondent can also be a

female in domestic relationship with the aggrieved

person. The next definition, which is relevant to be

noticed is Section 2(s), which defines shared

household. Shared household is defined in following

words:-

“(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the 40

aggrieved person has any right, title or interest in the shared household;”

44. Section 3 defines “domestic violence”. Sections 4

to 11 occurring in Chapter III deals with powers and

duties of protection officers, service providers etc.

Section 12 occurring in Chapter IV – “Procedure for

obtaining orders of reliefs” deals with details of

application to Magistrate. Section 12 is as follows:-

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

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

(2) The relief sought for under sub-

section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved 41

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

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

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

(5) The Magistrate shall Endeavour to dispose of every application made under sub-

section (1) within a period of sixty days from the date of its first hearing.”

45. Section 17 provides that every woman in a domestic

relationship shall have the right to reside in the

shared household. Section 17 is as follows:-

“17. Right to reside in a shared household.-(1) Notwithstanding anything

contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

42

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

46. Section 18 deals with protection orders. Section

19 deals with residence orders. Section 20 deals with

monetary reliefs. Section 23 deals with power to grant

interim and ex parte orders. Section 26 deals with

relief in other suits and legal proceedings.

47. After briefly noticing the outline of Act, 2005,

we, now, proceed to consider the questions noted above.

Questions Nos. 1 and 2

48. Both the above questions being inter-related are

being taken together. We may recapitulate the facts of

the present case in reference to shared household. The

suit property was purchased by appellant in the year

1983 in his name. The respondent got married to the

son of appellant on 04.03.1995 and after marriage she

was living in first floor of suit property. Till July, 43

2004, the husband of respondent also lived in first

floor whereafter due to marital discord, he shifted in

the guest room on the ground floor. In the suit filed

by the appellant for mandatory and permanent

injunction, appellant pleaded that he is the sole owner

of the house and prayed for removal of respondent, his

daughter-in-law from the first floor of the house. The

respondent had filed a written statement in the suit

and claimed that the suit property is a shared

household where the respondent had right to reside.

The submission of learned counsel for the appellant is

that the premises is not a shared household since the

husband of the respondent neither has any share in the

suit premises nor suit premises is a joint family

property. In support of his submission, he relies on

judgment of this Court in S.R. Batra and Ors. Vs.

Taruna Batra (supra).

49. The definition of shared household given under

Section 2(s) as noticed above beginning with expression

“shared household means a household where the person 44

aggrieved lives or at any stage has lived in a domestic

relationship either singly or along with the respondent

and includes……………. The section uses both the

expressions “means and includes”. A Three Judge bench

judgment of this Court in Bharat Coop. Bank (Mumbai)

Ltd. Vs. Coop. Bank Employees Union, (2007) 4 SCC 685

had occasion to consider Section 2(bb) of Industrial

Disputes Act, 1947, which section used both the words

“means and includes”. Explaining both the expressions,

following was laid down in paragraph 23:-

“23. ……………………………………………….It is trite to say that when in the definition clause given in any statute the word “means” is used, what follows is intended to speak exhaustively. When the word “means” is used in the definition, to borrow the words of Lord Esher, M.R. in Gough v. Gough [(1891) 2 QB 665] it is a “hard-and-fast” definition and no meaning other than that which is put in the definition can be assigned to the same. (Also see P. Kasilingam v. P.S.G. College of Technology [1995 Supp (2) SCC 348 : AIR 1995 SC 1395].) On the other hand, when the word “includes” is used in the definition, the legislature does not intend to restrict the definition: it makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or 45

may not comprise. Therefore, the use of the word “means” followed by the word “includes” in Section 2(bb) of the ID Act is clearly indicative of the legislative intent to make the definition exhaustive and would cover only those banking companies which fall within the purview of the definition and no other.”

50. We may notice another judgment of this Court in

Pioneer Urban Land and Infrastructure Limited and Anr.

Vs. Union of India and Ors., (2019) 8 SCC 416 where

this Court had occasion to consider both the

expressions, i.e., “means and includes”. In paragraph

82, this Court laid down:-

“82. …………………………In fact, in Jagir Singh v. State of Bihar [(1976) 2 SCC 942] , SCC paras 11 and 19 to 21 and Mahalakshmi Oil Mills v. State of A.P. [(1989) 1 SCC 164] , SCC paras 8 and 11 (which has been cited in P. Kasilingam [P. Kasilingam v. PSG College of Technology, 1995 Supp (2) SCC 348]), this Court set out definition sections where the expression “means” was followed by some words, after which came the expression “and includes” followed by other words, just as in Krishi Utpadan Mandi Samiti case [Krishi Utpadan Mandi Samiti v. Shankar Industries, 1993 Supp (3) SCC 361 (2)] . In two other recent judgments, Bharat Coop. Bank (Mumbai) Ltd. v. Employees Union [(2007) 4 SCC 685], SCC paras 12 and 23 and State of W.B. v. Associated Contractors [State of 46

W.B. v. Associated Contractors, (2015) 1 SCC 32] , SCC para 14, this Court has held that wherever the expression “means” is followed by the expression “and includes” whether with or without additional words separating “means” from “includes”, these expressions indicate that the definition provision is exhaustive as a matter of statutory interpretation. It has also been held that the expression “and includes” is an expression which extends the definition contained in words which follow the expression “means”……………………………”

51. We may notice two more judgments relied by Shri

Jayant Bhushan, learned senior counsel, i.e., The South

Gujarat Roofing Tiles Manufacturers Association and

Anr. Vs. The State of Gujarat and Anr., (1976) 4 SCC

601. Shri Bhushan’s submission is that use of

expression “includes” in Section 2(s) has to be read as

means. He placed reliance on following observations

made by this Court in paragraph 5:-

“5. XXXXXXXXXXXXXXXX

………………………….Though “include” is generally used in interpretation clauses as a word of enlarge- ment, in some cases the context might suggest a different intention. Pottery is an expression of very wide import, embracing all objects made of clay and hardened by heat. If it had been 47

the legislature's intention to bring within the entry all possible articles of pottery, it was quite unnecessary to add an explanation. We have found that the explanation could not pos- sibly have been introduced to extend the mean- ing of potteries industry or the articles listed therein added ex abundanti cautela. It seems to us therefore that the legislature did not intend everything that the potteries indus- try turns out to be covered by the entry. What then could be the purpose of the explanation. The explanation says that, for the purpose of Entry 22, potteries industry “includes” manu- facture of the nine articles of pottery named therein. It seems to us that the word “in- cludes” has been used here in the sense of ‘means’; this is the only construction that the word can bear in the context. In that sense it is not a word of extension, but limitation; it is exhaustive of the meaning which must be given to potteries industry for the purpose of Entry 22. The use of the word “includes” in the restrictive sense is not unknown. The observa- tion of Lord Watson in Dilworth v. Commissioner of Stamps which is usually referred to on the use of “include” as a word of extension, is followed by these lines:

“But the word ‘include’ is suscep- tible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural sig- nificance of the words or expressions defined. It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of 48

the Act, must invariably be attached to these words or expressions.”

52. Next judgment relied by Shri Bhushan is Karnataka

Power Transmission Corporation and Anr. Vs. Ashok Iron

Works Private Limited, (2009) 3 SCC 240. In the above

case also submission was made before this court that in

the definition of person given in section 2(m) of

Consumer Protection Act, the expression “includes”

should be read as “means”. This Court laid down that

interpretation of a word or expression must depend on

the text and the context. In paragraphs 14 to 17,

following was laid down:-

“14. The learned counsel also submitted that the word “includes” must be read as “means”. In this regard, the learned counsel placed reliance upon two decisions of this Court, namely; (1) South Gujarat Roofing Tiles Manufacturers Assn. v. State of Gujarat [(1976) 4 SCC 601] and (2) RBI v. Peerless General Finance and Investment Co. Ltd. [(1987) 1 SCC 424].

15. Lord Watson in Dilworth v. Stamps Commr. [1899 AC 99] made the following classic statement: (AC pp. 105-06) 49

“… The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.”

16. Dilworth [1899 AC 99] and few other decisions came up for consideration in Peerless General Finance and Investment Co.

Ltd. [(1987) 1 SCC 424] and this Court summarised the legal position that (Peerless case [(1987) 1 SCC 424], SCC pp. 449-50, para

32) inclusive definition by the legislature is used:

“32. … (1) to enlarge the meaning of words or phrases so as to take in the ordinary, popular and natural sense of the words and also the sense which the statute wishes to attribute to it; (2) to 50

include meanings about which there might be some dispute; or (3) to bring under one nomenclature all transactions possessing certain similar features but going under different names.”

17. It goes without saying that interpretation of a word or expression must depend on the text and the context. The resort to the word “includes” by the legislature often shows the intention of the legislature that it wanted to give extensive and enlarged meaning to such expression. Sometimes, however, the context may suggest that word “includes” may have been designed to mean “means”. The setting, context and object of an enactment may provide sufficient guidance for interpretation of the word “includes” for the purposes of such enactment.”

53. After noticing the ratio of above judgments,

Section 2(s), which uses both the expressions “means

and includes” and looking to the context, we are of the

view that the definition of shared household in Section

2(s) is an exhaustive definition. The first part of

definition begins with expression “means” which is

undoubtedly an exhaustive definition and second part of

definition, which begins with word “includes” is

explanatory of what was meant by the definition. Shri 51

Nidhesh Gupta, learned senior counsel for the appellant

submits that even if it is accepted that the definition

of Section 2(s) is exhaustive, his case is fully

covered in both the parts of the definition.

54. The use of both the expressions “means and

includes” in Section 2(s) of Act, 2005, thus, clearly

indicate the legislative intent that the definition is

exhaustive and shall cover only those which fall within

the purview of definition and no other.

55. Now, reverting back to the definition of Section

2(s), the definition can be divided in two parts,

first, which follows the word “means” and second which

follows the word “includes”. The second part which

follows “includes” can be further sub-divided in two

parts. The first part reads “shared household means a

household where the person aggrieved has lived or at

any stage has lived in a domestic relationship either

singly or along with the respondent”. Thus, first

condition to be fulfilled for a shared household is

that person aggrieved lives or at any stage has lived 52

in a domestic relationship. The second part sub-

divided in two parts is- (a) includes such a household

whether owned or tenanted either jointly by the

aggrieved person and the respondent and owned or

tenanted by either of them in respect of which either

the aggrieved person or the respondent or both jointly

or singly have any right, title, interest or equity and

(b)includes such a household which may belong to the

joint family of which the respondent is a member,

irrespective of whether the respondent or the aggrieved

person has any right, title or interest in the shared

household. In the above definition, two expressions,

namely, “aggrieved person” and “respondent” have

occurred. From the above definition, following is

clear:- (i) it is not requirement of law that aggrieved

person may either own the premises jointly or singly or

by tenanting it jointly or singly; (ii) the household

may belong to a joint family of which the respondent is

a member irrespective of whether the respondent or the

aggrieved person has any right, title or interest in 53

the shared household; and (iii) the shared household

may either be owned or tenanted by the respondent

singly or jointly.

56. Now, we revert back to the submission of the

learned counsel for the appellant that the shared

household is that household which belongs to joint

family of which husband is a member or husband has

share in the shared household. He finds support for

his submission by the judgment of this Court in S.R.

Batra Vs. Taruna Batra (supra).

57. The judgment of this court in S.R. Batra Vs. Taruna

Batra (supra), which is sheet anchor of the submission

of the appellant needs to be noticed in detail. In the

above case, the respondent was married with the son of

appellant on 14.04.2000. Respondent started living

with her husband in the house of appellant No.2 on the

second floor. It was not disputed that house belonged

to appellant No.2 and her son, i.e., husband of

respondent had no share. Husband had filed a divorce

petition against respondent whereas respondent filed a 54

criminal case under Sections 406, 498A, 506 and 34 of

Indian Penal Code. Respondent shifted to her parents’

residence because of the dispute with her husband. She

when later tried to enter the house, she found the main

entrance locked hence, she filed suit No. 87 of 2003 to

grant mandatory injunction to enable her to enter the

house. The Trial Court granted temporary injunction in

favour of the respondent. The appellant filed the

appeal, which was allowed by dismissing the temporary

injunction. Respondent filed a Writ Petition under

Article 227 of the Constitution, which was allowed by

learned Single Judge holding that the appellant is

entitled to reside in the second floor as that was her

matrimonial home. The appellant aggrieved against the

judgment of the High Court had filed an appeal. This

Court in Paragraph 18 observed that since the house

belongs to mother-in-law of the respondent and does not

belong to the husband, hence, she cannot claim any

right to live in the said house. Following was

observed in paragraph 18:-

55

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

58. Before this Court, in the above case, the

provisions of Act, 2005 were relied. This Court held

that the respondent was not residing in the premises in

question, a finding of fact recorded by the court below

which ought not to be interfered by the High Court

under Articles 226 or 227. After taking the aforesaid

view, this Court observed that house in question cannot

be said to be shared household. In paragraph 22, this

Court held:-

“22. Apart from the above, we are of the opinion that the house in question cannot be said to be a “shared household” within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 (here- inafter referred to as “the Act”).”

59. This Court also noticed Sections 17 and 19 and the

argument of respondent that household is a shared

household since aggrieved person had lived there in a 56

domestic relationship. Argument of the respondent was

noticed in paragraph 24 in following words:-

“24. Learned counsel for the respondent Smt Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household.”

60. This court expressed its dis-agreement with the

submission and made following observations in

paragraphs 25 to 30:-

“25. We cannot agree with this submission.

26. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces, etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in 57

the past. Such a view would lead to chaos and would be absurd.

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

28. Learned counsel for the respondent Smt Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's (sic) in-laws or other relatives.

29. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.

The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of Appellant 2, mother of Amit Batra. Hence it cannot be called a “shared household”.

30. No doubt, the definition of “shared household” in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.” 58

61. In paragraph 26, this Court observed “if the

aforesaid submission is accepted, then it will mean

that wherever the husband and wife lived together in

the past that property becomes a shared household”.

62. The observation of this Court in S.R. Batra Vs.

Taruna Batra (supra) in paragraphs 24, 25 and 26 were

made while considering the expression “person aggrieved

lives or at any stage has lived”. This Court observed

in paragraph 26 that if the interpretation canvassed by

learned counsel for the respondent is accepted that the

house of the husband’s relative where respondent

resided shall become shared household, shall lead to

chaos and would be absurd. The expression “at any

stage has lived” occurs in Section 2(s) after the words

“where the person aggrieved lives”. The use of the

expression “at any stage has lived” immediately after

words “person aggrieved lives” has been used for object

different to what has been apprehended by this Court in

paragraph 26. The expression “at any stage has lived”

has been used to protect the women from denying the 59

benefit of right to live in a shared household on the

ground that on the date when application is filed, she

was excluded from possession of the house or

temporarily absent. The use of the expression “at any

stage has lived” is for the above purpose and not with

the object that wherever the aggrieved person has lived

with the relatives of husband, all such houses shall

become shared household, which is not the legislative

intent. The shared household is contemplated to be the

household, which is a dwelling place of aggrieved

person in present time. When we look into the

different kinds of orders or reliefs, which can be

granted on an application filed by aggrieved person,

all orders contemplate providing protection to the

women in reference to the premises in which aggrieved

person is or was in possession. Our above conclusion

is further fortified by statutory scheme as delineated

by Section 19 of the Act, 2005. In event, the

definition of shared household as occurring in Section

2(s) is read to mean that all houses where the 60

aggrieved person has lived in a domestic relationship

alongwith the relatives of the husband shall become

shared household, there will be number of shared

household, which was never contemplated by the

legislative scheme. The entire Scheme of the Act is to

provide immediate relief to the aggrieved person with

respect to the shared household where the aggrieved

person lives or has lived. As observed above, the use

of the expression “at any stage has lived” was only

with intent of not denying the protection to aggrieved

person merely on the ground that aggrieved person is

not living as on the date of the application or as on

the date when Magistrate concerned passes an order

under Section 19. The apprehension expressed by this

Court in paragraph 26 in S.R. Batra Vs. Taruna Batra

(supra), thus, was not true apprehension and it is

correct that in event such interpretation is accepted,

it will lead to chaos and that was never the

legislative intent. We, thus, are of the considered

opinion that shared household referred to in Section 61 2(s) is the shared household of aggrieved person where

she was living at the time when application was filed

or in the recent past had been excluded from the use or

she is temporarily absent.

63. The words “lives or at any stage has lived in a

domestic relationship” have to be given its normal and

purposeful meaning. The living of woman in a household

has to refer to a living which has some permanency.

Mere fleeting or casual living at different places

shall not make a shared household. The intention of

the parties and the nature of living including the

nature of household have to be looked into to find out

as to whether the parties intended to treat the

premises as shared household or not. As noted above,

Act 2005 was enacted to give a higher right in favour

of woman. The Act, 2005 has been enacted to provide

for more effective protection of the rights of the

woman who are victims of violence of any kind occurring

within the family. The Act has to be interpreted in a

manner to effectuate the very purpose and object of the 62

Act. Section 2(s) read with Sections 17 and 19 of Act,

2005 grants an entitlement in favour of the woman of

the right of residence under the shared household

irrespective of her having any legal interest in the

same or not.

64. In paragraph 29 of the judgment, this Court in S.R.

Batra Vs. Taruna Batra (supra) held that wife is only

entitled to claim a right to residence in a shared

household and a shared household would only mean the

house belonging to or taken on rent by the husband, or

the house which belongs to the joint family of which

the husband is a member. The definition of shared

household as noticed in Section 2(s) does not indicate

that a shared household shall be one which belongs to

or taken on rent by the husband. We have noticed the

definition of “respondent” under the Act. The

respondent in a proceeding under Domestic Violence Act

can be any relative of the husband. In event, the

shared household belongs to any relative of the husband

with whom in a domestic relationship the woman has 63

lived, the conditions mentioned in Section 2(s) are

satisfied and the said house will become a shared

household. We are of the view that this court in S.R.

Batra Vs. Taruna Batra (supra) although noticed the

definition of shared household as given in Section 2(s)

but did not advert to different parts of the definition

which makes it clear that for a shared household there

is no such requirement that the house may be owned

singly or jointly by the husband or taken on rent by

the husband. The observation of this Court in S.R.

Batra Vs. Taruna Batra (supra) that definition of

shared household in Section 2(s) is not very happily

worded and it has to be interpreted, which is sensible

and does not lead to chaos in the society also does not

commend us. The definition of shared household is

clear and exhaustive definition as observed by us. The

object and purpose of the Act was to grant a right to

aggrieved person, a woman of residence in shared

household. The interpretation which is put by this

Court in S.R. Batra Vs. Taruna Batra (supra) if 64

accepted shall clearly frustrate the object and purpose

of the Act. We, thus, are of the opinion that the

interpretation of definition of shared household as put

by this Court in S.R. Batra Vs. Taruna Batra (supra) is

not correct interpretation and the said judgment does

not lay down the correct law.

65. The learned counsel for the appellant has placed

reliance on another Two Judge Bench judgment of this

Court in Vimlaben Ajitbhai Patel Vs. Vatsalben

Ashokbhai Patel and Ors., (2008) 4 SCC 649. In the

above case, this Court had occasion to consider the

provisions of Act, 2005. The question which came for

consideration in the above case has been noticed in

paragraph 14 of the judgment, which is to the following

effect:-

“14. The questions which arise for consid- eration are:

(i) Whether in the facts and circumstances of the case, the property of Appellant 1 could have been sold in auction? and 65

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

66. In the above case, the complaint was filed by third

respondent against her husband and appellant’s father-

in-law and mother-in-law under Sections 406 and 114 of

Indian Penal Code. The bail granted to the appellants

was cancelled. Proceedings under Section 82 Cr.P.C.

were initiated attaching the properties of the

appellant. The learned Metropolitan Magistrate asked

the District Magistrate to auction the attached

properties. The properties of the appellant was

auctioned and this Court in the above case has held

that the provisions of the Hindu Adoptions and

Maintenance Act, 1956 that maintenance of a wife,

during subsistence of marriage, is on the husband and

on the applicant to maintain the daughter-in-law arises

only when the husband has died. In paragraphs 21 and

22 following was laid down:-

“21. Maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to 66

maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject- matter of attachment nor during the lifetime of the husband, his personal liability to maintain his wife can be directed to be enforced against such property.

22. Wholly uncontentious issues have been raised before us on behalf of Sonalben (wife).

It is well settled that apparent state of affairs of state shall be taken as real state of affairs. It is not for an owner of the property to establish that it is his self- acquired property and the onus would be on the one, who pleads contra. Sonalben might be entitled to maintenance from her husband. An order of maintenance might have been passed but in view of the settled legal position, the decree, if any, must be executed against her husband and only his properties could be attached therefor but not of her mother-in- law.”

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

“27. The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.” 67

68. In paragraph 28, this court noticed the judgment of

this Court in S.R. Batra Vs. Taruna Batra (supra).

69. In the facts of the above case, this Court held

that the High Court erred in cancelling the bail of the

appellants. Allowing the appeal, following directions

were issued in paragraph 51 of the judgment:-

“51. Having regard to the facts and cir- cumstances of this case we are of the opinion that the interest of justice shall be subserved if the impugned judgments are set aside with the following directions:

(i) The property in question shall be re-

leased from attachment.

(ii) The 3rd respondent shall refund the sum of Rs 1 lakh to the respondent with inter- est @ 6% per annum.

(iii) The amount of Rs 4 lakhs deposited by the 1st respondent shall be refunded to him im- mediately with interest accrued thereon.

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

(v) The learned Magistrate before whom the cases filed by the 3rd respondent are pending 68

should bestow serious consideration of dispos- ing of the same, as expeditiously as possible.

(vi) The 3rd respondent shall bear the costs of the appellant which are quantified at Rs 50,000 (Rupees fifty thousand) consoli- dated.”

70. In the above case, this Court has held that

property of mother-in-law cannot be attached since the

maintenance of wife during the married life is on the

husband. The question which fell for consideration

before this Court in above case was as to whether the

property of the appellant could have been sold in

auction and the bail granted to the appellants should

have been cancelled as noted in paragraph 14. No issue

regarding right to reside in a shared household had

arisen in the above case and the above case is entirely

different from the present case, the above case arose

out of criminal proceedings on the basis of complaint

filed by the respondent against the appellant. The

above judgment in no manner supports the case of the

appellant. Further in the above case, this Court

relied on judgment of S.R. Batra Vs. Taruna Batra 69

(supra), we have observed above that S.R. Mehta does

not lay down a correct law.

71. Learned counsel for the respondent has relied on

few judgments of Delhi High Court in support of his

submission. Delhi High Court in Eveneet Singh Vs.

Prashant Chaudhri, 2010 SCC Online Del 4507 had

considered the provisions of Act, 2005 and also the

definition of shared household. In paragraphs 16 and

17 following was laid down:-

“16. The definition of “shared household” emphasizes the factum of a domestic relation- ship and no investigation into the ownership of the said household is necessary, as per the definition. Even if an inquiry is made into the aspect of ownership of the household, the defi- nition casts a wide enough net. It is couched in inclusive terms and is not in any way, ex- haustive (S. Prabhakaran v. State of Kerala, 2009 (2) RCR (Civil) 883). It states that “…in- cludes such a household whether owned or ten- anted either jointly by the aggrieved person and the respondent, or owned or tenanted by ei- ther of them in respect of which either the ag- grieved person or the respondent or both jointly or singly have any right, title, inter- est or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person 70

has any right, title or interest in the shared household” (emphasis supplied).

17. It would not be out of place to notice here that the use of the term “respondent” is unqualified in the definition nor is there any qualification to it under Sections 12, 17 or

19. Therefore, there is no reason to conclude that the definition does not extend to a house which is owned by a mother-in-law or any other female relative, since they are encompassed un-

der the definition of ‘respondent’ under Sec- tion 2(q).”

72. The Division Bench of the Delhi High Court affirmed

the judgment in Eveneet Singh Vs. Prashant Chaudhari,

2011 SCC Online Del 4651 of the learned Single Judge as

noted above. In paragraph 14, the Division Bench laid

down following:-

“14. It is apparent that clause (f) of sub- section 1 of Section 19 of the Act is intended to strike a balance between the rights of a daughter-in-law and her in-laws, if a claim to a shared residence by the daughter-in-law pertains to a building in which the matrimonial home was set up belongs to her mother-in-law or father-in-law.” 71

73. Another judgment which need to be noticed of Delhi

High Court is Preeti Satija Vs. Raj Kumari and Anr.,

2014 SCC Online Del 188. In paragraphs 20 and 21, the

Division Bench laid down following:-

“20. Crucially, Parliament's intention by the 2005 Act was to secure the rights of ag- grieved persons in the shared household, which could be tenanted by the Respondent (including relative of the husband) or in respect of which the Respondent had jointly or singly any right, title, interest, or “equity”. For instance, a widow (or as in this case, a daughter in law, estranged from her husband) living with a mother-in-law, in premises owned by the latter, falls within a “domestic relationship”. The obligation not to disturb the right to resi- dence in the shared household would continue even if the mother-in-law does not have any right, title or interest, but is a tenant, or entitled to “equity” (such as an equitable right to possession) in those premises. This is because the premises would be a “shared house- hold”. The daughter-in-law, in these circum- stances is entitled to protection from dispos- session, though her husband never had any own- ership rights in the premises. The right is not dependent on title, but the mere factum of res- idence. Thus, even if the mother-in-law is a tenant, then, on that ground, or someone having equity, she can be injuncted from dispossessing the daughter in law. In case the mother in law is the owner, the obligation to allow the daughter in law to live in the shared house- hold, as long as the matrimonial relationship between her and the husband subsists, contin- ues. The only exception is the proviso to 19(1) 72

(b), which exempts women from being directed to remove themselves from the shared household. No such exception has been carved out for the other reliefs under Section 19, especally in respect of protection orders. Had the Parlia-

ment intended to create another exception in favor of women, it would have done so. This omission was deliberate and in consonance with the rest of the scheme of the Act. There can be other cases of domestic relationships such as an orphaned sister, or widowed mother, living in her brother's or son's house. Both are cov- ered by the definition of domestic relation- ship, as the brother is clearly a Respondent. In such a case too, if the widowed mother or sister is threatened with dispossession, they can secure reliefs under the Act, notwithstand- ing exclusive ownership of the property by the son or brother. Thus, excluding the right of residence against properties where the husband has no right, share, interest or title, would severely curtail the extent of the usefulness of the right to residence.

21. The other aspect, which this Court wishes to highlight, is that the 2005 Act applies to all communities, and was enacted “to provide more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family”. The right to residence and creation of mechanism to enforce is a ground breaking measure, which Courts should be alive to. Restricting the scope of the remedies, including in respect of the right to reside in shared household, would undermine the purpose of this enactment. It is, therefore, contrary to the scheme and the objects of the Act, as also the unambiguous text of Section 2(s), to restrict the 73

application of the 2005 Act to only such cases where the husband alone owns some property or has a share in it. Crucially, the mother-in- law (or a father-in-law, or for that matter, “a relative of the husband”) can also be a Respondent in the proceedings under the 2005 Act and remedies available under the same Act would necessarily need to be enforced against them.”

Against above judgment of Delhi High Court, Civil

Appeal No. 9723 of 2014 is pending in this Court.

74. In another elaborate judgment, the Division Bench

of Delhi High Court in Navneet Arora Vs. Surender Kaur

and Ors., 2014 SCC Online Del 7617 had considered the

various aspects of Act, 2005. Dealing with right of

residence in paragraphs 58 to 60, following was held:-

“58. It may be highlighted that the Act does not confer any title or proprietary rights in favour of the aggrieved person as misunderstood by most, but merely secures a ‘right of residence’ in the ‘shared household’. Section 17(2) clarifies that the aggrieved person may be evicted from the ‘shared household’ but only in accordance with the procedure established by law. The legislature has taken care to calibrate and balance the interests of the family members of the respondent and mitigated the rigour by expressly providing under the provisio to Section 19(1) that whilst 74

adjudicating an application preferred by the aggrieved person it would not be open to the Court to pass directions for removing a female member of the respondents family from the “shared household”. Furthermore, in terms of Section 19(1)(f), the Court may direct the respondent to secure same level of accommodation for the aggrieved person as enjoyed by her in the “shared household” or to pay rent for the same, if the circumstances so require.

59. The seemingly ‘radical’ provisions comprised in the Protection of Women from Domestic Violence Act, 2005 must be understood and appreciated in light of the prevalent culture and ethos in our society.

60. The broad and inclusive definition of the term ‘shared household’ in the Protection of Women from Domestic Violence Act, 2005 is in consonance with the family patterns in India, where married couple continue to live with their parents in homes owned by parents.”

75. The Delhi High Court in the above case has rightly

considered the concept of shared household as occurring

in Section 2(s) of the Act, 2005.

76. We also need to notice several judgments of Delhi

High Court and other High Courts, which have been

relied by Shri Jauhar. The judgments of Delhi High

Court relied by Shri Jauhar are:-

75

S.No. Particulars Citation 1. Deepika Kumar Vs. Medhavi MANU/DE/3859/2015 Kumar and Ors. 2. Sardar Malkiat Singh Vs. 168 (2010) DLT Knawaljit Kaur and Ors. 521 3. Neetu Mittal Vs. Kanta Mittal 2009 AIR (Del) 72 4. Sudha Mishra Vs. Surya Chand 2012 (3) AD Mishra (Delhi) 76

5. Sangeeta Vs. Om Parkash Balyan MANU/PH/1251/2015 and Ors.

6. Harish Chand Tandon Vs. Darpan MANU/DE/3200/2015 Tandon and Anr.

7. Ekta Arora Vs. Ajay Arora and AIR 2015 (Del) Anr. 180

8. Smt. Saloni Mahajn Vs. Shri 2014 SCC Online Madan Mohan Vig. (Del) 4931

77. All these judgments of Delhi High Court relies on

S.R. Batra Vs. Taruna Batra (supra). We having already

held that judgment of S.R. Batra Vs. Taruna Batra

(supra) insofar as it interpret the definition of

shared household of Section 2(s) does not lay down the

correct law, the above judgment of the High Court does

not come to rescue of learned counsel for the 76

appellant. Shri Jauhar has also placed reliance on few

judgments of other High Courts namely:-

S.No. Particulars Citation 1. Smt. Chanchal Agarwal Vs. 2014 SCC Online Jagdish Prasad Gupta and All 16019 Anr.. 2. A.R. Hashir Najyahouse and 2015 SCC Online Ors. Vs. Shima and Ors. Ker 9007 3. Richa Gaur Vs. Kamal Kishore 2019 SCC Online Gaur All 4084 4. Payal Sancheti (Smt.) and MANU/RH/08054/2008 Anr. Vs. Harshvardhan Sancheti

5. Kolli Babi Sarojini and Ors. 2014 SCC Online AP Vs. kolli Jayalaxmi and Anr. 414

6. N.S. Leelawati and Ors. Vs. MANU/KA/8874/2019 R. Shilpa Brunda

78. The above judgments of the High Courts have again

relied on judgment of S.R. Batra Vs. Taruna Batra

(supra), hence, they also do not support the claim of

the appellant.

79. Shri Jauhar also relied on a Judgment of Three

Judge Bench of this Court in Maria Margarida Sequeira 77

Fernandes and Ors. Vs. Erasmo Jack De Sequeira, (2012)

5 SCC 370. Shri Jauhar placed reliance on paragraph 97

of the judgment, which enumerates few principles of

law. Paragraph 97 is as follows:-

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

(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not ac-

quire any right or interest in the said prop- erty.

(2) Caretaker, watchman or servant can never acquire interest in the property irre- spective of his long possession. The caretaker or servant has to give possession forthwith on demand.

(3) The courts are not justified in pro- tecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

(4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agree- ment or licence agreement in his favour.

(5) The caretaker or agent holds property of the principal only on behalf of the princi- pal. He acquires no right or interest whatso- 78

ever for himself in such property irrespective of his long stay or possession.”

80. There cannot be any dispute to the preposition of

law as laid down by this Court in above case. The

above case arose out of a suit filed by the respondent

for permanent injunction and mandatory injunction

against the appellant. The respondent was brother of

the appellant. Suit was decreed by the Trial Court,

and appeal against which judgment was also dismissed.

Appellant case was that the respondent has no right,

title or interest in the property and the respondent

was permitted to live in the premises since the

appellant being wife of a Navy Officer was most of the

period out of Goa and she has permitted her brother to

occupy the premises. This Court made following

observations in paragraphs 91 and 92:-

“91. We have heard the learned counsel for the parties at length and perused the relevant judgments cited at the Bar. In the instant case, admittedly, the respondent did not claim any title to the suit property. Undoubtedly, the appellant has a valid title to the property which is clearly proved from the pleadings and documents on record.

79 92. The respondent has not been able to establish the family arrangement by which this house was given to the respondent for his residence. The courts below have failed to appreciate that the premises in question was given by the appellant to her brother, the respondent herein as a caretaker. The appellant was married to a naval officer who was transferred from time to time outside Goa.

Therefore, on the request of her brother she gave possession of the premises to him as a caretaker. The caretaker holds the property of the principal only on behalf of the principal.”

81. For the above reasons, the Court allowed the appeal

and laid down the preposition of law as noted above in

paragraph 97 of the judgment. The ratio as laid down

in the above case of this Court is nothing to do with

the issues, which have arisen in the present appeal and

the reliance on the above judgment by learned counsel

for the appellant is misplaced.

82. Now, coming back again to the facts of the present

case, there being specific pleading on behalf of the

respondent that the house, which is in the name of the

appellant is the matrimonial home of the respondent

where she was residing in first floor since her 80

marriage. The fact that respondent is residing in first

floor of the premises is not matter of dispute. Even

if the house is in the name of the appellant and that

even if we accept the case of the appellant that

appellant’s son Raveen has no share in the house

belonging to appellant, with whom the respondent was

living in the domestic relationship, whether the

respondent is entitled to reside in the premises in

question as shared household is the question to be

answered. In the impugned judgment, Delhi High Court

has refrained from deciding the point as to whether

suit property is a shared household on the ground that

the application filed under Section 12 of Act, 2005 by

the respondent is pending. In the suit filed by the

appellant where respondent has pleaded and claimed that

it is shared household and she has right to live and it

was on that ground she was resisting the suit for

mandatory injunction, the question that whether the

suit property is a shared household or not becomes

relevant and necessary and the said issue cannot be 81

skipped on the ground that application under D.V. Act

is pending. In the regular suit, which has been filed

by the appellant, the plea of defendant that suit

property is her shared household and she has right to

residence could have been very well gone into by virtue

of Section 26, which we shall further deal a little

later.

83. Before we close our discussion on Section 2(s), we

need to observe that the right to residence under

Section 19 is not an indefeasible right of residence in

shared household especially when the daughter-in-law is

pitted against aged father-in-law and mother-in-law.

The senior citizens in the evening of their life are

also entitled to live peacefully not haunted by marital

discord between their son and daughter-in-law. While

granting relief both in application under Section 12 of

Act, 2005 or in any civil proceedings, the Court has to

balance the rights of both the parties. The directions

issued by High court in paragraph 56 adequately

balances the rights of both the parties. 82

84. In view of the foregoing discussions, we answer

issue Nos. 1 and 2 in following manner:-

(i) The definition of shared household given in

Section 2(s) cannot be read to mean that

shared household can only be that household

which is household of the joint family of

which husband is a member or in which husband

of the aggrieved person has a share.

(ii) The judgment of this Court in S.R. Batra Vs.

Taruna Batra (supra) has not correctly inter-

preted Section 2(s) of Act, 2005 and the

judgment does not lay down a correct law.

Question Nos. 3 and 4

85. Both the issues being inter-connected are being

taken together.

86. The question which is posed for the consideration

is, whether the learned Trial Court was justified in

passing the decree on alleged admission under Order XII

Rule 6 of the CPC or not. What is required to be

considered is what constitutes the admission warranting 83

the judgment on admission in exercise of powers under

Order XII Rule 6, CPC. This Court had occasion to

consider above in decisions; Himani Alloys Limited Vs.

Tata Steel Limited, (2011) 15 SCC 273 and S.M. Asif Vs.

Virender Kumar Bajaj, (2015) 9 SCC 287.

87. In Himani Alloys Limited (supra), this Court had an

occasion to consider the scope and ambit of judgment on

admission in exercise of powers under Order XII Rule 6,

CPC. It is observed and held in paragraph 11 that

being an enabling provision, it is neither mandatory

nor preemptory but discretionary for the Court to pass

judgment on admission in exercise of powers under Order

XII Rule 6 CPC. It is observed that the Court, on

examination of the facts and circumstances, has to

exercise its judicial discretion keeping in mind that a

judgment on admission is a judgment without trial which

permanently denies any remedy to the defendant by way

of an appeal on merits. It is further observed that,

therefore, unless the admission is clear, unambiguous

and unconditional, the discretion of the Court should 84

not be exercised to deny the valuable right of a

defendant to contest the claim. In short, the

discretion should be used only when there is a clear

“admission” which can be acted upon. It is further

observed and held that “admission” should be

categorical. It should be a conscious and deliberate

act of the party making it, showing an intention to be

bound by it.

88. A similar view was expressed by this Court in the

case of S.M. Asif (supra). It is observed and held in

paragraph 8 that expression “may” in Order XII Rule 6

CPC suggests that it is discretionary and cannot be

claimed as of right. It is further observed that where

defendants raised objections which go to root of the

case, it would not be appropriate to exercise

discretion under Order XII Rule 6 CPC.

89. In this context, we need to notice a few parts of

pleadings of both the parties as disclosed in plaint

and the written statement. The plaintiffs have filed

the suit for mandatory and permanent injunction 85

claiming to be absolute owner of the suit property

where defendant was admitted to be in occupation of two

bed rooms with few amenities on first floor of the

property. The plaintiff pleaded that he is a senior

citizen, aged 76 years but wanted to live a peaceful

life and has terminated the licence of the defendant,

who stayed in the first floor. The pleadings of the

plaintiffs in paragraphs 1, 2, 3, 4 and 5 are as

follows:-

“1. That the plaintiff is the absolute owner of the property bearing No.D-1077 New Friends Colony, New Delhi – 110 025, admeasuring 492 sqyds. and is filing the present suit seeking removal of the defendant from the first floor of the property bearing No.D-1077, New Friends Colony, New Delhi – 110 025.

2. That the defendant is in occupation of two bed rooms with attached dressing and bath rooms and a kitchen on the first floor of property bearing No.D-1077, New Friends Colony, New Delhi – 110 025 more particularly described in Red colour in the site plan and hereinafter referred to as the suit premises.

3. That the plaintiff is a senior citizen aged 76 years and is a heart patient and has undergone angioplasty twice in the arteries in the heart. The plaintiff suffers from hypertension and high blood pressure and is on constant medication for the same. As such the 86

plaintiff in his old age would like to live a peaceful life and has terminated the licence of the defendant to stay in the first floor of the suit property which is the exclusive property of the plaintiff.

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

5. That the plaintiff is the sole and absolute owner of the suit property which was acquired by the plaintiff from its previous owner namely Shri Kulbhushan Jain vide th agreement to sell dated 12 January, 1983 for a sum of Rs.2,77,000/- (Rupees Two lacs seventy seven thousand only) and after purchase of the said property the plaintiff herein constructed the entire property including first floor of the suit property out of his own self acquired funds and the entire property bearing No.D-

1077, New Friends Colony, New Delhi – 110 025 was converted into free hold vide conveyance deed dated 14.07.2000 which was duly registered with the Sub Registrar of Assurances VII vide registration No.2500 in Volume No.951 pages 54 to 56. As such, the plaintiff having acquired the absolute ownership of the entire property bearing No.D-1077, New Friends Colony, New Delhi – 110 025 is entitled and competent to file the present suit seeking removal of the defendant from the portion of the first floor of the suit property.” 87

90. A written statement was filed by the defendant

where she claimed that after marriage of the defendant

on 04.03.1995, she is residing in the house. It was

further pleaded that the shared household was acquired

by the plaintiff through joint family funds and it is

not his self acquired property. Paragraphs 1, 4 and 7

of the written statement are as follows:-

“1. That a bare perusal of the documents filed alongwith the plaint and even otherwise it is amply evident that the plaintiff as per his own version became the owner of the suit property bearing No D-1077, New Friends Colony, New Delhi-110025 only in the year 2003 The marriage of the answering defendant was solemnized on 4/3/1995 and the defendant started residing in the joint shared household since then. Therefore the right of the defendant is prior in point of time that of the plaintiff.

It is further submitted that the said shared household was purportedly acquired by the plaintiff through joint family funds and not his self acquired property. The plaintiff hereby called upon to disclose all income tax returns, bank statements, audited balance sheets etc. since 1982 till 2006. This may deemed to be noticed to discover under provisions of Order XI Rule 12 CPC on the plaintiff. As separate application under relevant provision of CPC is also being filed by the defendant for such discovery of 88

documents. In view of this, the present is not maintainable and is liable to be dismissed.

4. That the suit filed by the plaintiff is directly in conflict with the right of the defendant to reside in her matrimonial residence/shared household granted to her by the Legislature and specifically envisaged in section 17 and 19 of the Protection of Women from Domestic Violence Act, 2005 and as such is liable to be dismissed at the threshold. The defendant came to the suit property on 04.03.1995 as a 'Bahu' of the plaintiff and legally wedded wife of his elder son Shri Raveen Ahuja. After the marriage the defendant lived with the son of the plaintiff Shri Raveen Ahuja in the joint family uninterruptedly and there was/is a joint kitchen. The defendant has a right to reside in the suit property whether or not she has any right title or beneficial interest in the same. The son of the plaintiff Shri Raveen Ahuja is residing with, the plaintiff on the ground floor of the suit premises. In view of this, the stilt of the plaintiff is not maintainable and is liable to be dismissed.

7. That the plaintiff has not approached to this Hon'ble Court with clean hands and suppressed the true and material facts regarding causing physical and mental torture to the defendant on account of domestic violence etc. by the plaintiff his wife and their elder son. They also hatched a conspiracy against the defendant in order to compel her to leave the matrimonial home in a deceit full manner. In view of this, the present suit is not maintainable and is liable to be dismissed.” 89

91. The suit was filed by the plaintiff claiming to be

sole owner of the house on the ground that he has

terminated the gratuitous licencse of the defendant.

Plaintiff also alleged that respondent (defendant) has

filed false case implicating the plaintiff and his

wife. Plaintiff further stated that wife of the

plaintiff has been subjected to various threats and

violence in the hands of the defendant on several

occasions. On the other hand, the defendant does not

dispute that the house was recorded in the name of the

plaintiff and in her application filed under the

Domestic Violence Act, she stated that plaintiff is the

owner of the suit property but in the written statement

filed in the suit, she pleaded that house has been

purchased by joint family funds. The Trial Court on

the basis of admission made by the defendant in her

application filed under Section 12 of the D.V. Act

before the Metropolitan Magistrate that the plaintiff

is owner of the house has decreed the suit under

Section 12(6).

90

92. Even if for argument’s sake, we proceed on the

basis that the plaintiff is the sole owner of the

house, whether on the aforesaid ground, the Trial Court

could have decreed the suit under Order XII Rule 6 CPC

without adverting to the defence which was taken by the

defendant to resist the suit is the question to be

considered. Section 26 of the Act, 2005 contains

heading “Reliefs in other suits and legal proceedings”.

Section 26, which is relevant for the present

discussion is extracted for ready reference:-

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

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she 91

shall be bound to inform the Magistrate of the grant of such relief.”

93. As per Section 26, any relief available under

Sections 18, 19, 20, 21 and 22 of the Act, 2005 may

also be sought in any legal proceeding, before a civil

court, family court or a criminal court being the

aggrieved person. Thus, the defendant is entitled to

claim relief under Section 19 in suit, which has been

filed by the plaintiff. Section 26 empowers the

aggrieved person to claim above relief in Civil Courts

also. In the present suit, it was defence of the

defendant that the house being the shared household,

she is entitled to reside in the house as per Section

17(1) of Act, 2005. This Court had occasion to consider

provision of Section 26 in Vaishali Abhimanyu Joshi Vs.

Nanasaheb Gopal Joshi, (2017) 14 SCC 373. In the above

case, the appellant was married with one Abhimanyu with

whom she was residing in suit Flat No.4, 45/4, Arati

Society, Shivvihar Colony, Paud Fata, Pune. The

husband filed a suit for divorce against the appellant. 92

The father-in-law filed a suit in Small Cause Court for

mandatory injunction praying that defendant be directed

to stop the occupation and use of the suit flat. The

appellant filed a written statement in the suit

claiming that although the flat bears the name of the

respondent but she is residing in the suit flat. She

filed a counter claim claiming that flat is a shared

household and the suit be dismissed. The counter claim

was rejected by the Judge, Small Cause Court, against

which revision as well as the writ petition was

dismissed. This Court noted the question, which arose

for consideration in the above case in paragraph 16,

which is to the following effect:-

“16. As noted above, the only question to be answered in this appeal is as to whether the counter claim filed by the appellant seeking right of residence in accordance with Section 19 of the 2005 Act in a suit filed by the respondent, her father-in-law under the Provincial Small Cause Courts Act, 1887 is entertainable or not. Whether the provisions of the 1887 Act bar entertainment of such counterclaim, is the moot question to be answered………………” 93

94. After noticing the provision of Section 26 of the

Act, this Court made following observations in

paragraphs 23 and 24:-

“23. Section 26 of the Act is a special provision which has been enacted in the enactment. Although, Chapter IV of the Act containing Section 12 to Section 29 contains the procedure for obtaining orders of reliefs by making application before the Magistrate whereas steps taken by the Magistrate and different categories of reliefs could be granted as noted in Sections 18 to 22 and certain other provisions. Section 26 provides that any relief available under Sections 18 to 22 may also be sought in any legal proceedings, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent. Section 26 is material for the present case since the appellant has set up her counterclaim on the basis of this section before the Judge, Small Cause Court. Section 26 is extracted below:

“26. Relief in other suits and legal proceedings.—(1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-

section (1) may be sought for in addition to and along with any other 94

relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.”

24. There cannot be any dispute that proceeding before the Judge, Small Cause Court is a legal proceeding and the Judge, Small Cause Court is a civil court. On the strength of Section 26, any relief available under Sections 18 to 22 of the 2005 Act, thus, can also be sought by the aggrieved person.”

95. This Court held that Section 26 has to be

interpreted in a manner to effectuate the purpose and

object of the Act. This Court held that the

determination of claim of the aggrieved person was

necessary in the suit to avoid multiplicity of

proceedings. This court laid down following in

paragraphs 40 and 41:-

“40. Section 26 of the 2005 Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by the 2005 95

Act is expressly barred from consideration by a civil court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the civil court. When the proceeding initiated by the plaintiff in the Judge, Small Cause Court alleged termination of gratuitous licence of the appellant and prays for restraining the appellant from using the suit flat and permit the plaintiff to enter and use the flat, the right of residence as claimed by the appellant is interconnected with such determination and refusal of consideration of claim of the appellant as raised in her counterclaim shall be nothing but denying consideration of claim as contemplated by Section 26 of the 2005 Act which shall lead to multiplicity of proceedings, which cannot be the object and purpose of the 2005 Act.

41. We, thus, are of the considered opinion that the counterclaim filed by the appellant before Judge, Small Cause Court in Civil Suit No. 77 of 2013 was fully entertainable and the courts below committed error in refusing to consider such claim.”

96. In view of the ratio laid down by this court in the

above case, the claim of the defendant that suit

property is shared household and she has right to

reside in the house ought to have been considered by

the Trial Court and non-consideration of the 96

claim/defence is nothing but defeating the right, which

is protected by Act, 2005.

97. We have noticed the law laid down by this Court in

S.M. Asif Vs. Virender Kumar Bajaj (supra) where this

Court in paragraph 8 has laid down following:-

“8. The words in Order 12 Rule 6 CPC “may” and “make such order …” show that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order 12 Rule 6 CPC. The said rule is an enabling provision which confers discretion on the court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim.”

98. The power under Order XII Rule 6 is discretionary

and cannot be claimed as a matter of right. In the

facts of the present case, the Trial Court ought not to

have given judgment under Order XII Rule 6 on the

admission of the defendant as contained in her

application filed under Section 12 of the D.V. Act. 97

Thus, there are more than one reason for not approving

the course of action adopted by Trial Court in passing

the judgment under Order XII Rule 6. We, thus, concur

with the view of the High Court that the judgment and

decree of the Trial Court given under Order XII rule 6

is unsustainable.

Question No.5

99. Section 2(q) defines the ‘respondent’ in following

words:

“2(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;”

100. There are two conditions for a person to be

treated to be respondent within the meaning of Section

2(q), i.e., (i) in a domestic relationship with the

aggrieved person, and (ii) against whom the aggrieved

person has sought any relief under Act, 2005. It is to 98

be noticed that the expression “any adult male person”

occurring in Section 2(q) came for consideration before

this Court in Hiral P. Harsora and others Vs. Kusum

Narottamdas Harsora and others, (2016) 10 SCC 165,

where this Court has struck down the expression “adult

male”. This Court held that “adult male person”

restricting the meaning of respondent in Section 2(q)

to only “adult male person” is not based on any

intelligible differentia having rational nexus with

object sought to be achieved. This Court struck down

the word “adult male”. Hence, it is now permissible

under definition of Section 2(q) to include females

also.

101. The defendant in her application filed under

Section 12 on 20.11.2015 in the Court of Additional

Chief Metropolitan Magistrate impleaded Satish Chandra

Ahuja as respondent No.2. Thus, in the domestic

violence proceedings initiated by the defendant,

plaintiff was the respondent. As noted above, under

Section 26 of the Act, 2005 any relief available under 99 Sections 18, 19, 20, 21 and 22 may also be sought in

any legal proceedings, before a Civil Court. The

defendant in her written statement claimed that she is

entitled to reside in the premises of suit property it

being her shared household.

102. Learned counsel for the appellant submitted that in

the suit in question the defendant has not sought for

any relief under Section 19. It is true that no

separate application or separate prayer has been made

by the defendant in the suit for grant of any relief

under Section 19 but in her pleadings she has resisted

the claim of plaintiff on the ground that she has a

right to reside in the suit property it being her

shared household. Thus, the question whether the suit

premises is shared household of the defendant and she

has right in the shared household so as the decree

before the Trial Court can be successfully resisted

were required to be determined by the Trial Court. We

are further of the view that when in the suit defendant

has pleaded to resist the decree on the ground of her 100

right of residence in the suit property it was for her

to prove her claim in the suit both by pleadings and

evidence.

103. As noted above, one of the conditions to treat a

person as a respondent is that “against whom the

aggrieved person has sought any relief under the Act”.

The defendant in her pleadings having claimed that she

has right of residence in the suit property, she for

successful resisting the suit has to plead and prove

that she has been subjected to any act of domestic

violence by the respondent, which is implicit in the

definition of the aggrieved person itself as given in

the Section 2(a) of the Act, 2005. It is, further,

relevant to notice that although learned Magistrate

passed an interim order in the application filed by the

defendant under Section 12 on 26.11.2016 but said order

was interim order which was passed on the satisfaction

of the Magistrate that “the application prima facie

disclosed that the respondent is committing or has

committed an act of domestic violence”. For granting 101

any relief by the Civil Court under Section 19 it has

to be proved that the respondent is committing or has

committed an act of domestic violence on the aggrieved

person. To treat a person as the “respondent” for

purposes of Section 2(q) it has to be proved that

person arrayed as respondent has committed an act of

domestic violence on the aggrieved person.

104. We, thus, are of the view that for the purposes of

determination of right of defendant under Sections 17

and 19 read with Section 26 in the suit in question the

plaintiff can be treated as “respondent”, but for the

grant of any relief to the defendant or for successful

resisting the suit of the plaintiff necessary

conditions for grant of relief as prescribed under the

Act, 2005 has to be pleaded and proved by the

defendant, only then the relief can be granted by the

Civil Court to the defendant.

Question No.6 102

105. Section 17 of the Act has two sub-sections which

engraft two independent rights. According to sub-

section (1) notwithstanding anything contained in any

other law for the time being in force, every woman in a

domestic relationship shall have the right to reside in

the shared household, whether or not she has any right,

title or beneficial interest in the same. This right

has been expressly granted to every woman in domestic

relationship to fulfill the purpose and objective of

the Act. Although under the statute regulating personal

law the woman has right to maintenance, every wife has

right of maintenance which may include right of

residence, the right recognized by sub-section (1) of

Section 17 is new and higher right conferred on every

woman.

106. The right is to be implemented by an order under

Section 19, on an application filed under sub-section

(1) of Section 12. Sub-section (2) of Section 17,

however, contains an exception in the right granted by

sub-section (2), i.e., “save in accordance with the 103

procedure established by law”. Sub-section (2) of

Section 17, thus, contemplates that aggrieved person

can be evicted or excluded from the shared household in

accordance with the procedure established by law. What

is the meaning and extent of expression “save in

accordance with the procedure established by law” is a

question which has come up for consideration in this

appeal. Whether the suit filed by the plaintiff for

mandatory and permanent injunction against the

defendant in the Civil Court is covered by the

expression “save in accordance with the procedure

established by law”. We may further notice that the

learned Magistrate while passing the interim order on

26.11.2016 in favour of the defendant on her

application filed under Section 12 has directed that

“the respondent shall not alienate the alleged shared

household nor would they dispossess the complainant or

their children from the same without orders of a

Competent Court”. The Magistrate, thus, has provided

that without the orders of Competent Court the 104

applicant (respondent herein) should not be

dispossessed. In the present case, interim order

specifically contemplates that it is only by the order

of the Competent Court respondent shall be

dispossessed.

107. We may take an example, where a final order has

been passed by the Magistrate under Section 12. What is

the nature and life of the said order? Section 25(2)

itself contemplates an eventuality when order passed

under the Act can be altered, modified or revoked.

Section 25(2) provides:

“Section 25. Duration and alteration of orders.-

(1) xxx xxx xxx

(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.” 105

108. Whether apart from powers of Magistrate under

Section 25(2) of the Act, 2005, the Act, 2005

contemplates any other eventuality when despite the

order of residence under Section 19 an aggrieved person

can be evicted or dispossessed.

109. The right to reside in shared household as granted

by Section 17 itself contemplates an exception in

express words, i.e., “save in accordance with the

procedure established by law”.

110. The procedure prescribed for proceedings under

Section 19 as provided in Section 28 of the Act is as

per the provisions of the Code of Criminal Procedure,

1973. Section 28 of the Act, 2005, provides as

follows:-

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

(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure 106

for disposal of an application under section 12 or under sub-section (2) of section 23.”

111. The rules have been framed under the Act, 2005,

namely “The Protection of Women from Domestic Violence

Rules, 2006”. Rule 5 deals with Domestic Incident

Report which is to be submitted by protection officer

in Form I. The Form I is part of Rule which contains

details in various columns to enable the Magistrate to

take appropriate decision. Rule 6 provides that every

application of the aggrieved person under Section 12

shall be in Form-II or as nearly as possible thereto.

Form-II is again part of Rule which contains various

details including orders required, residence orders,

under Section 19, monetary relief under Section 20,

details of previous litigation, if any, and other

details to enable the Magistrate to take appropriate

decision. Rule 6 sub-Rule (4) provides that for

obtaining an interim ex-parte order under Section 23,

an affidavit is to be filed in Form-III. The Form-III

is an affidavit of an aggrieved person or the person

filing affidavit on behalf of his ward, daughter, etc. 107 The Act and the Rules thus provide for a procedure and

manner of filing an application for obtaining a relief

under Act, 2005. The Act, 2005, is an special Act which

provides for manner and procedure for obtaining relief

by an aggrieved person.

112. The provision of Section 145 of Cr.P.C. in this

context may be noticed. Section 145 of Cr.P.C. provides

for procedure where dispute concerning land or water is

likely to cause breach of peace. Under Section 145

Cr.P.C. in case Magistrate is satisfied that a dispute

likely to cause a breach of the peace exists, he may

require the parties to attend the Court and to decide

whether any and which of the parties was, at the date

of the order made by him under sub-section (1), in

possession of the subject of dispute. Sub-section (6)

of Section 145 Cr.P.C. contemplates issuance of the

order by the Magistrate declaring such party to be

entitled to such possession. Sub-section (6), however,

contemplates that the parties to be entitled to

possession thereof until evicted therefrom in due 108

course of law. The eviction in due course of law was

contemplated to be by a competent court.

113. This Court had occasion to consider the expression

“until evicted therefrom in due course of law” as

occurring in Section 145(6) in Shanti Kumar Panda Vs.

Shakuntala Devi, (2004) 1 SCC 438. This Court held in

the above case that the purpose of provisions of

Section 145 Cr.P.C. is to provide a speedy and summary

remedy so as to prevent a breach of the peace by

submitting the dispute to the Executive Magistrate for

resolution as between the parties disputing the

question of possession over the property. This Court

held that the unsuccessful party in proceedings under

Section 145 Cr.P.C. ought to sue for recovery of

possession seeking a decree or order for restoration of

possession. In paragraph 12 following was laid down:

“12. What is an eviction "in due course of law"

within the meaning of Sub-section (6) of Section 145 of the Code? Does it mean a suit or proceedings directing restoration of possession between the parties respectively unsuccessful and successful in proceedings under Section 145 or any order of competent court which though 109

not expressly directing eviction of successful party, has the effect of upholding the possession or entitlement to possession of the unsuccessful party as against the said successful party. In our opinion, which we would buttress by reasons stated shortly hereinafter, ordinarily a party unsuccessful in proceedings under Section 145 ought to sue for recovery of possession seeking a decree or order for restoration of possession. However, a party though unsuccessful in proceedings under Section 145 may still be able to successfully establish before the competent court that it was actually in possession of the property and is entitled to retain the same by making out a strong case demonstrating the finding of the Magistrate to be apparently incorrect.”

114. This Court further held that finding recorded by

the Magistrate under Section 145 Cr.P.C. does not bind

when the matter comes for adjudication before competent

court. This Court explained expression “until evicted

therefrom in due course of law” mean “any court which

has jurisdictional competence to decide the question of

title or rights to the property or entitlement to

possession”. In paragraph 17 of the judgment following

was observed:

“17………………The words 'until evicted therefrom in due course of law' as occurring in Sub-section (6) of Section 145' mean the 110

eviction of the party successful before the Magistrate, consequent upon the adjudication of title or right to possession by a competent court; that does not necessarily mean a decree of eviction. The party unsuccessful before the Magistrate may dispute the correctness of the finding arrived at by the Magistrate and is at liberty to show before the competent court that it had not dispossessed the successful party or that it is the unsuccessful party and not the successful party who was actually in possession and the finding to the contrary arrived at by the Magistrate was wholly or apparently erroneous and unsustainable in law.”

115. Summarising the law in the context of Sections 145

and 146 Cr.P.C. the effects of the order of Magistrate

were recorded by this Court in paragraph 23, relevant

part of which for the present case is as follows:

“23. For the purpose of legal proceedings initiated before a competent court subsequent to the order of an Executive Magistrate under Sections 145/146 of the Code of Criminal Procedure, the law as to the effect of the order of the Magistrate may be summarized as under:-

(1) The words 'competent court' as used in Sub-section (1) of Section 146 of the code do not necessarily mean a civil court only. A competent court is one which has the jurisdictional competence to determine the question of title or the rights of the parties with regard to the entitlement as to 111

possession over the property forming subject matter of proceedings before the Executive Magistrate;

(2) A party unsuccessful in an order under Section 145(1) would initiate proceedings in a competent court to establish its entitlement to possession over the disputed property against the successful party, Ordinarily, a relief of recovery of possession would be appropriate to be sought for. In legal proceedings initiated before a competent court consequent upon attachment under Section 146(1) of the Code it is not necessary to seek relief of recovery of possession. As the property is held custodia legis by the Magistrate for and on behalf of the party who would ultimately succeed from the court it would suffice if only determination of the rights with regard to the entitlement to the possession is sought for. Such a suit shall not be bad for not asking for the relief of possession.

(3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and weight before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which 112

would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence.

(4) ..... ..... .....”

116. Drawing the analogy from the above case, we are of

the opinion that the expression “save in accordance

with the procedure established by law”, in Section

17(2) of the Act, 2005 contemplates the proceedings in

court of competent jurisdiction. Thus, suit for

mandatory and permanent injunction/eviction or

possession by the owner of the property is maintainable

before a Competent Court. We may further notice that in

sub-section (2) the injunction is “shall not be evicted

or excluded from the shared household save in

accordance with procedure established by law”. Thus,

the provision itself contemplates adopting of any

procedure established by law by the respondent for

eviction or exclusion of the aggrieved person from the

shared household. Thus, in appropriate case, the

competent court can decide the claim in a properly 113

instituted suit by the owner as to whether the women

need to be excluded or evicted from the shared

household. One most common example for eviction and

exclusion may be when the aggrieved person is provided

same level of alternate accommodation or payment of

rent as contemplated by Section 19 sub-section (f)

itself. There may be cases where plaintiff can

successfully prove before the Competent Court that the

claim of plaintiff for eviction of respondent is

accepted. We need not ponder for cases and

circumstances where eviction or exclusion can be

allowed or refused. It depends on facts of each case

for which no further discussion is necessary in the

facts of the present case. The High Court in the

impugned judgment has also expressed opinion that suit

filed by the plaintiff cannot be held to be non-

maintainable with which conclusion we are in agreement.

117. In case, the shared household of a woman is a

tenanted/allotted/licensed accommodation where tenancy/

allotment/license is in the name of husband, father-in- 114

law or any other relative, the Act, 2005 does not

operate against the landlord/lessor/licensor in

initiating an appropriate proceedings for eviction of

the tenant/allottee/licensee qua the shared household.

However, in case the proceedings are due to any

collusion between the two, the woman, who is living in

the shared household has right to resist the

proceedings on all grounds which the

tenant/lessee/licensee could have taken in the

proceedings. The embargo under Section 17(2) of Act,

2005 of not to be evicted or excluded save in

accordance with the procedure established by law

operates only against the “respondent”, i.e., one who

is respondent within the meaning of Section 2(q) of

Act, 2005.

Question No.7

118. Learned counsel for the appellant challenging the

direction issued by the High Court that the husband of

respondent be impleaded by the Trial Court by invoking 115

suo moto powers under Order I Rule 10 CPC, submits that

no relief having been claimed against the son of the

appellant, he (son) was neither necessary nor proper

party. Learned counsel for the appellant has relied on

the judgments of this Court in Razia Begum Vs.

Sahebzadi Anwar Begum and others, AIR 1958 SC 886 and

Ramesh Hirachand Kundanmal Vs. Municipal Corporation of

Greater Bombay and others, (1992) 2 SCC 524. Latter

judgment of this Court discussing judgment of Razia

Begum has laid down following in paragraphs 10 and 12:

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

12. Sinha, J. speaking for the majority said that a declaratory judgment in respect of a disputed status will be binding not only upon parties actually before the Court but also upon persons claiming through them respectively. The 116

Court laid down the law that in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation. Where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of presence of direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy. …………”

119. There can be no dispute with the preposition of

law as laid down by this Court in the above two cases.

In the present case, although plaintiff has not claimed

any relief against his son, Raveen Ahuja, the husband

of the respondent, hence, he was not a necessary party

but in view of the fact that respondent has pleaded her

right of residence in shared household relying on

Sections 17 and 19 of the Act, 2005 and one of the

rights which can be granted under Section 19 is right

of alternate accommodation, the husband is a proper

party. The right of maintenance as per the provisions

of Hindu Adoption and Maintenance Act, 1956 is that of

the husband, hence he may be a proper party in cases 117

when the Court is to consider the claim of respondent

under Sections 17 and 19 read with Section 26 of the

Act, 2005.

120. Civil Procedure Code, Order I Rule 10 empowers the

Court at any stage of the proceedings either on an

application or suo moto to add a party either as

plaintiff or defendant, whose presence before the Court

may be necessary in order to enable the Court

effectively and completely adjudicate upon and settle

all the questions involved in the suit. The High Court

in paragraph 56(i) has issued following directions:-

“56. In these circumstances, the impugned judgments cannot be sustained and are accordingly set aside. The matters are remanded back to the Trial Court for fresh adjudication in accordance with the directions given hereinbelow:

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

XXXXXXXXXXXXXXX” 118

121. The above direction is a little wide and

preemptory. In event, the High Court was satisfied

that impleadment of husband of defendant was necessary,

the High Court itself could have invoked the power

under Order I Rule 10 and directed for such

impleadment. When the matter is remanded back to the

Trial Court, Trial Court’s discretion ought not to have

been fettered by issuing such a general direction as

noted above. The general direction issued in paragraph

56(i) is capable of being misinterpreted. Whether the

husband of an aggrieved person in a particular case

needs to be added as plaintiff or defendant in the suit

is a matter, which need to be considered by the Court

taking into consideration all aspects of the matter.

We are, thus, of the view that direction in paragraph

56(i) be not treated as a general direction to the

Courts to implead in all cases the husband of an

aggrieved person and it is the Trial Court which is to

exercise the jurisdiction under Order I Rule 10. The

direction in paragraph 56(i) are, thus, need to be read 119

in the manner as indicated above.

122. Now, coming to the present case, we have already

observed that although husband of the defendant was not

a necessary party but in view of the pleadings in the

written statement, the husband was a proper party.

Question No.8

123. While noticing the facts and events of the present

case, we have noticed that in complaint filed by the

respondent under Section 12 of Act, 2005, an interim

order was passed in her favour directing the respondent

arrayed in the complaint not to dispossess the

applicant without orders of a competent court. Suit

giving rise to this appeal was filed thereafter praying

for a mandatory and permanent injunction against the

defendant-respondent. High Court in the impugned

judgment has observed that the effect of the pendency

of proceeding under D.V. Act, 2005 has not been taken

note of. With regard to various precedents, which were

relied before the High Court by learned counsel for the 120

appellant, similar observations were made by the High

Court that those judgments do not consider the effect

of initiation and pendency of proceedings under Act,

2005.

124. What is the effect of an interim order or a final

order passed under Section 19 of the Act, 2005 on a

civil proceeding initiated in a court of competent

jurisdiction, is a question, which need to be answered?

Whether in view of the pendency of proceedings under

the D.V. Act any proceedings could not have been

initiated in a Civil Court of competent jurisdiction or

whether the orders passed under D.V. Act giving right

of residence by interim or final order are binding in

Civil Court proceedings and Civil court could not have

taken any decision contrary to directions issued in

D.V. Act are the related questions to be considered.

125. Section 17(2) itself contemplates eviction or

exclusion of aggrieved person from a shared household

in accordance with the procedure established by law.

The conclusion is inescapable that a proceeding in a 121

competent court for eviction or exclusion is

contemplated by the Statutory Scheme of Act, 2005.

Thus, there is neither any express nor implied bar in

initiation of civil proceedings in a Court of competent

jurisdiction. Further, Section 26 also contemplate

grant of relief of right of residence under Section 19

in any legal proceedings before a Civil Court or Family

Court or Criminal Court affecting the aggrieved person.

The proceedings might be initiated by aggrieved person

or against the aggrieved person herself before or after

the commencement of Act, 2005. Thus, initiation of the

proceedings in Civil Court and relief available under

Section 19 of the Act, 2005 is contemplated by the

statutory scheme delineated by the Act, 2005. There

may be also instances where conflict may arise in the

orders issued under D.V. Act, 2005 as well as the

judgment of Civil Court. What is the effect of such

conflict in the decision is another related issue which

needs to be answered? Whether the principle of res

judicata can be pressed in respect to any decision 122

inter parties in respect to criminal and civil

proceedings?

126. The applicability of principle of res judicata is

well known and are governed by provisions of Section 11

C.P.C., which principle also has been held to be

applicable in other proceedings. There can be no

applicability of principle of res judicata when orders

of Criminal Courts are pitted against proceedings in

Civil Court. With regard to criminal proceedings Code

of Criminal Procedure also contains provision that a

person who has once been tried by a Court of competent

jurisdiction for an offence and convicted or acquitted

of such offence shall, while such conviction or

acquittal remains in force, not be liable to be tried

again for the same offence nor on the same facts for

any other offence. The principle enumerated in Section

300 Cr.P.C. may be relevant with respect to two

criminal proceedings against same accused, which might

have no relevance in reference to one criminal

proceeding and one civil proceeding.

123

127. Sections 40 to 44 of the Indian Evidence Act, 1872

which deal with “judgments of Courts of justice when

relevant” throw considerable light on the subject which

is under consideration before us. Sections 40 to 44 of

the Indian Evidence Act are as follows:

“Judgments of courts of justice when relevant

40. Previous judgments relevant to bar a second suit or trial.— The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.

41. Relevancy of certain judgments in probate, etc., jurisdiction.— A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof— 124

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

that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;

that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41.—Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.

43. Judgments, etc., other than those mentioned in Sections 40 to 42, when relevant.—Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, 125

is a fact in issue, or is relevant under some other provision of this Act.

44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.— Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.”

128. Section 40 renders admissible judgments which

operate as placing any bar on a suit or trial as plea

of res judicata or otherwise under some rule of law.

The scheme of D.V. Act, 2005 does not contemplate that

any judgment and order passed under Section 19 of the

said Act prevents any court from taking cognizance of a

suit or holding of trial; Section 41 deals with

relevancy of certain judgments in probate, matrimonial,

admirality and insolvency jurisdiction which are

conclusive not only against party but against all the

world. This Section enumerates four classes of

judgments. A decree of Civil Court in exercise of

matrimonial jurisdiction is also one of the judgments 126

which had been held to be relevant under Section 41.

The orders passed under Act, 2005 cannot be held to be

orders or judgments passed in exercise of any

matrimonial jurisdiction by the Court. The Act, 2005

is a special act on the subject of providing for

effective protection of the rights of women who are

victims of violence of any kind.

129. Section 42 deals with admissibility of judgments

relevant to matters of public nature though not between

the parties and privy but such judgments, orders or

decree are not conclusive proof of that they state.

Section 43 says that judgment other than those

mentioned in Sections 40 to 42 are irrelevant unless

the existence of judgment, order or decree is fact in

issue or is relevant under some other provisions of the

Act. In the facts of the present case, where there are

pleadings in the suit in question regarding proceeding

under Section 12 the existence of orders passed under

Act, 2005 are relevant and admissible in Civil

Proceedings.

127

130. The proceedings under D.V. Act, 2005 are

proceedings which are to be governed by Code of

Criminal Procedure, 1973.

131. The procedure to be followed by the magistrate is

provided under Section 28 of the D.V. Act and as per

Section 28 of the D.V. Act, all proceedings under

Sections 12, 18, 19, 20, 21, 22 and 23 and offences

under Section 31 shall be governed by the provisions of

the Code of Criminal Procedure, 1973. Even sub-section

(2) of Section 28 provides that the magistrate can lay

down its own procedure for disposal of an application

under Section 12 or under sub-section (2) of Section

23. However, for other proceedings, the procedure is to

be followed as per the provisions of the Code of

Criminal Procedure, 1973. The procedure to be followed

under Section 125 shall be as per Section 126 of the

Cr.P.C. which includes permitting the parties to lead

evidence. Therefore, before passing any orders under

the D.V. Act, the parties may be permitted to lead 128

evidence. However, before any order is passed under

Section 12, the magistrate shall take into

consideration any domestic incident report received by

him from the protection officer or the service

provider. That does not mean that magistrate can pass

orders solely relying upon the domestic incident report

received by him from the protection officer or the

service provider. Even as per Section 36 of the D.V.

Act, the provisions of the D.V. Act shall be in

addition to, and not in derogation of the provisions of

any other law, for the time being in force. Even the

magistrate can also pass an interim order as per

Section 23 of the D.V. Act.

132. Considering Section 12(2) and Section 26(3), read

with Section 25(2), even the Legislature envisaged the

two independent proceedings, one before the magistrate

under the D.V. Act and another proceeding other than

the proceedings under the D.V. Act.

133. Even the Civil Court has to take into 129

consideration the relief already granted by the

Magistrate in the proceedings under the D.V. Act and

vice versa.

134. However, at the same time, it is to be observed

that in a case any relief available under Sections 18,

19, 20, 21 and 22 is sought by aggrieved person in any

legal proceedings before a civil court, family court or

a criminal court including the residence order, the

aggrieved person has to satisfy by leading evidence

that domestic violence has taken place and only on the

basis of the evidence led on being satisfied that the

domestic violence has taken place, the relief available

under Section 19 can be granted as Section 19(1)

specifically provides that while disposing of an

application under sub-Section 1 of Section 12, the

magistrate may, on being satisfied, that domestic

violence has taken place, pass the residence order.

135. At this stage, it is also required to be noted

that while passing the order of residence under Section

19, more particularly under sub-section 19(1)(b) as per 130

the proviso to Section 19(1), no order under clause(b)

shall be passed against any person who is a woman.

136. Therefore, on conjoint reading of Sections 12(2),

17, 19, 20, 22, 23, 25, 26 and 28 of the D.V. Act, it

can safely be said that the proceedings under the D.V.

Act and proceedings before a civil court, family court

or a criminal court, as mentioned in Section 26 of the

D.V. Act are independent proceedings, like the

proceedings under Section 125 of the Cr. P.C. for

maintenance before the Magistrate and/or family court

and the proceedings for maintenance before a civil

court/ family court for the reliefs under the Hindu

Adoption and Maintenance Act. However, as observed

hereinabove, the findings/orders passed by the one

forum has to be considered by another forum.

137. Now, we proceed to examine effect of orders passed

under criminal proceedings, i.e., Act, 2005 on the

civil proceedings and consequence of any conflict in

proceedings under D.V. Act as well as civil 131

proceedings.

138. We make it clear that in the present case we are

called upon to examine the consequences and effect of

orders passed under Section 19 of D.V. Act, 2005 on

civil proceedings in a court of competent jurisdiction.

Thus, our consideration and exposition are limited qua

orders passed under Section 19 of D.V. Act only, i.e.,

a conflict between orders passed in a criminal

proceeding on a civil proceeding.

139. We may first notice the judgment of Constitution

Bench of this Court in M.S. Sheriff and Anr. Vs. State

of Madras and Ors., AIR 1954 SC 397. In the above case,

the appellants were sought to be prosecuted for perjury

under Section 193 IPC, which was directed by High Court

after an inquiry. Appeal was filed against the order

of the High Court directing the filing of a complaint

for perjury. The complainant had also filed a suit for

damages for wrongful confinement against the

appellants, who were accused, who were alleged to have 132

illegally detained the complainant. One of the

questions, which arose for consideration before this

Court was that which proceeding should be stayed, i.e.,

prosecution under Section 193 or suit for damages for

wrongful confinement. In the above context, following

observations were made by the Constitution Bench in

paragraph 15:-

“15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.”

140. In the above case, this Court had observed that

possibility of conflicting decisions in the civil and

criminal courts was not a relevant consideration. This

Court had further observed that “The law envisages such

an eventuality when it expressly refrains from making 133

the decision of one court binding on the other, or even

relevant, except for certain limited purposes……….”

141. This Court in M.S. Sheriff (supra), directed that

civil suits should be stayed till the criminal

proceedings have finished. The issue before the

Constitution Bench was limited as of stay of one out of

two proceedings. In the present proceedings, we are not

faced with any question regarding stay of any of the

proceedings”, however, “factum of possibility of

conflicting decisions” was noticed by this Court qua

civil and criminal proceedings which is a possible and

probable consequence of decision taken in two

proceedings.

142. We may notice a judgment of this Court dealing

with Section 43 of the Indian Evidence Act, i.e., S.M.

Jakati and Anr. Vs. S.M. Borkar and Ors., AIR 1959 SC

282. This Court in the above case had occasion to

consider the relevancy of the effect and consequence of

an order passed by Deputy Registrar of Cooperative 134

Society in a suit filed for partition of joint family

property, which was sold in auction in consequence of

orders passed by the Deputy Registrar for the Society.

The relevancy of orders of Deputy Registrar under

Section 43 of the Evidence Act came to be considered

and this Court noticing the principle of Section 43 of

Evidence Act laid down following in paragraph 11:-

“11. In the case now before us the appellants have attempted to prove that the debt fell within the term Avyavaharika by relying upon the payment order and the findings given by the Deputy Registrar in the payment order where the liability was inter alia based on a breach of trust. Any opinion given in the order of the Deputy Registrar as to the nature of the liability of Defendant 1 M.B. Jakati cannot be used as evidence in the present case to determine whether the debt was Avyavaharika or otherwise. The order is not admissible to prove the truth of the facts therein stated and except that it may be relevant to prove the existence of the judgment itself, it will not be admissible in evidence. Section 43 of the Evidence Act, the principle of which is that judgments excepting those upon questions of public and general interest, judgment in rem or when necessary to prove the existence of a judgment, order or decree, which may be a fact in issue are irrelevant………………………” 135

143. We may notice a Three Judge Bench judgment of this

Court in K.G. Premshankar Vs. Inspector of Police and

Anr., (2002) 8 SCC 87 in which case this Court had

occasion to consider the effect of decision of civil

court on the criminal proceeding. This Court had also

occasion to consider Sections 40 to 43 of Indian

Evidence Act in the said judgment. The Three Judge

Bench was answering the reference made on 09.11.1998 by

which an earlier judgment of this Court in V.M. Shah

Vs. State of Maharashtra (1995) 5 SCC 767 required a

reconsideration. This Court in V.M. Shah’s case had

laid down that “the finding recorded by the criminal

court stands superseded by the finding recorded by the

civil court” thereby the finding of civil court got

precedence over the finding recorded by the criminal

court. Before this Court in K.G. Premshankar case

prosecution was launched against the appellants,

cognizance of which was taken by the Chief Judicial

Magistrate. Appellant filed a proceeding under Section

482 Cr.P.C. for quashing the prosecution, which was 136

rejected, against which matter was taken to this Court.

The complainant had also filed a suit for damages for

the alleged act before the civil court, which suit was

pending in the trial court at the stage of framing of

issues. Submission, which was raised before this court

was that the High Court ought to have dropped the

prosecution against the appellants as the civil court

has dismissed the suit, i.e., suit for damages filed

against the appellants. The submission of the

appellants was refuted by learned Additional Advocate

General, who relied on Sections 41, 42 and 43 of the

Evidence Act. It was contended that previous

proceedings are relevant only to limited extent and

criminal proceedings are not required to be dropped as

soon as a decree is passed in the civil suit. The

submission of learned Additional Advocate General has

been noticed in paragraph 15 of the judgment. This

Court accepted the submission of the learned Additional

Advocate General. Paragraphs 15 and 16 of the judgment

are as follows:-

137

“15. Learned Additional Solicitor-General Shri Altaf Ahmed appearing for the respondents submitted that the observation made by this Court in V.M. Shah case [(1995) 5 SCC 767 :

1995 SCC (Cri) 1077] that “the finding recorded by the criminal court, stands superseded by the finding recorded by the civil court and thereby the finding of the civil court gets precedence over the finding recorded by the criminal court” (SCC p. 770, para 11)

is against the law laid down by this Court in various decisions. For this, he rightly referred to the provisions of Sections 41, 42 and 43 of the Evidence Act and submitted that under the Evidence Act to what extent judgments given in the previous proceedings are relevant is provided and therefore it would be against the law if it is held that as soon as the judgment and decree is passed in a civil suit the criminal proceedings are required to be dropped if the suit is decided against the plaintiff who is the complainant in the criminal proceedings.

16. In our view, the submission of learned Additional Solicitor-General requires to be accepted. Sections 40 to 43 of the Evidence Act provide which judgments of courts of justice are relevant and to what extent. Section 40 provides for previous judgment, order or a decree which by law prevents any court while taking cognizance of a suit or holding a trial, to be a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial. Section 40 is as under:

“40. Previous judgments relevant to 138

bar a second suit or trial.—The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial.”

144. This Court noticing the Constitution Bench

judgment in M.S. Sheriff (supra) and few other

judgments had recorded its conclusion in paragraph 30

to the following effect:-

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

145. This Court ultimately held that civil proceedings

as well as criminal proceedings are required to be 139

decided on the facts and evidences brought on the

record by the parties. Paragraphs 32, 33 and 34, which

are relevant, are quoted below:-

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

“such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for limited purpose such as sentence or damages”.

33. Hence, the observation made by this Court in V.M. Shah case [(1995) 5 SCC 767] that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law.

Further, the general observations made in Karam Chand case [(1970) 3 SCC 694] are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case [AIR 1954 SC 397] as well as Sections 40 to 43 of the Evidence Act.

34. In the present case, after remand by the High Court, civil proceedings as well as criminal proceedings are required to be decided on the evidence, which may be brought on record by the parties.” 140

146. We have noticed above judgment of this Court in

Shanti Kumar Panda (supra) while considering the

provisions under Sections 145 and 146 Cr.P.C. in

context of suit filed in a court of competent

jurisdiction in paragraphs 15 and 21 following was laid

down:-

“15. It is well settled that a decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. (See Sarkar on Evidence, 15th Edn., p. 845.) A decision given under Section 145 of the Code has relevance and is admissible in evidence to show: (i) that there was a dispute relating to a particular property; (ii) that the dispute was between the particular parties; (iii) that such dispute led to the passing of a preliminary order under Section 145(1) or an attachment under Section 146(1), on the given date; and (iv) that the Magistrate found one of the parties to be in possession or fictional possession of the disputed property on the date of the preliminary order. The reasoning recorded by the Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before the competent court and the competent court is not bound by the findings arrived at by the Magistrate even on the question of possession though, as between the parties, the order of the Magistrate would be evidence of possession.

The finding recorded by the Magistrate does not bind the court. The competent court has jurisdiction and would be justified in arriving 141

at a finding inconsistent with the one arrived at by the Executive Magistrate even on the question of possession. Sections 145 and 146 only provide for the order of the Executive Magistrate made under any of the two provisions being superseded by and giving way to the order or decree of a competent court. The effect of the Magistrate's order is that burden is thrown on the unsuccessful party to prove its possession or entitlement to possession before the competent court.

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

147. We may observe that the observations made by this

Court in Shanti Kumar Panda (supra) were in reference

to statutory scheme under Sections 145 and 146 Cr.P.C.

and had to be read in reference to statutory scheme 142

which came for consideration before this Court.

148. We may notice a Constitution Bench judgment of this

Court in Iqbal Singh Marwah and Anr. Vs. Meenakshi

Marwah and Anr., (2005) 4 SCC 370 where the

Constitution Bench laid down that there is neither any

statutory provision nor any legal principle that the

findings recorded in one proceeding may be treated as

final or binding in the other, as both the cases have

to be decided on the basis of the evidence adduced

therein. In paragraph 32, following was laid down:-

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

XXXXXXXXXXXXXXXX“ 143

149. In Seth Ramdayal Jat Vs. Laxmi Prasad, (2009) 11

SCC 545, this Court had occasion to consider the

provisions of Sections 41 to 43 of Indian Evidence Act

where this Court laid down that a judgment in a

criminal court is admissible for a limited purpose.

After noticing the provisions of Sections 40 to 43 of

Indian Evidence Act, this Court laid down following in

paragraph 13:-

“13. XXXXXXXXXXXXXX

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

150. It was further held that a decision in a criminal

case is not binding in a civil case. In paragraph 15,

following was laid down:-

“15. A civil proceeding as also a criminal proceeding may go on simultaneously. No statute puts an embargo in relation thereto. A decision in a criminal case is not binding on a civil court. In M.S. Sheriff v. State of Madras [AIR 1954 SC 397], a Constitution Bench of this Court was seized with a question as to whether a civil suit or a criminal case should be 144

stayed in the event both are pending. It was opined that the criminal matter should be given precedence. In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the only relevant consideration was the likelihood of embarrassment.”

151. In Vishnu Dutt Sharma Vs. Daya Sapra, (2009) 13

SCC 729, this Court again reiterated that a judgment of

a criminal court in civil proceedings will have only a

limited application and finding in a criminal

proceeding by no stretch of imagination would be

binding in a civil proceeding. Referring to Section 40

of the Indian Evidence Act, this Court laid down

following in paragraph 23:-

“23. XXXXXXXXXXXXXXXXXXXX This principle would, therefore, be applicable, inter alia, if the suit is found to be barred by the principle of res judicata or by reason of the provisions of any other statute. It does not lay down that a judgment of the criminal court would be admissible in the civil court for its relevance is limited. (See Seth Ramdayal Jat v. Laxmi Prasad [(2009) 11 SCC 545]. The judgment of a criminal court in a civil proceeding will only have limited 145

application viz. inter alia, for the purpose as to who was the accused and what was the result of the criminal proceedings. Any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding.”

152. A Two Judge Bench of this Court in Kishan Singh

(Dead) Through LRs. Vs. Gurpal Singh and Ors., (2010) 8

SCC 775 after noticing the several earlier judgments

concluded that finding of fact recorded by the civil

court do not have any bearing so as the criminal case

is concerned and vice versa. In paragraph 18,

following was laid down:-

“18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing 146

with the relevance of previous judgments in subsequent cases may be taken into consideration.”

153. We take an example to further illustrate the

point. In the plaint of suit giving rise to this

appeal, the plaintiff has pleaded that the wife of the

plaintiff has been subjected to various threat and

violence in the hands of the defendant on several

occasions. In event, the suit is filed by wife of the

plaintiff against the defendant for permanent injection

and also praying for reliefs under Section 19[except

Section 19(1)(b)]. The suit be fully maintainable and

the prayers in the suit can be covered by the reliefs

as contemplated by Section 19 read with Section 26 of

the Act, 2005.

154. By a written statement, the defendant is sure to

resist the suit on the ground that she had already

filed an application under Section 12 where plaintiff

Dr. Prem kant Ahuja(mother-in-law of the defendant) is

one of the respondent and she may also place reliance 147

on the interim order dated 26.11.2016 restraining the

respondents which included Dr. Prem Kant Ahuja from

dispossessing the applicant except without obtaining an

order of competent Court. The order dated 26.11.2016

which was passed by the Magistrate under D.V. Act,

2005, shall be relevant evidence and fully admissible

in the civil suit, but the above order shall only be

one of the evidence in the suit but shall neither

preclude the civil court to determine the issues raised

in the suit or to grant the relief claimed by the

plaintiff Dr. Prem Kant Ahuja. The Civil Court in such

suit can consider the issues and may grant relief if

the plaintiff is able to prove her case. The order

passed under D.V. Act whether interim or final shall be

relevant and have to be given weight as one of evidence

in the civil suit but the evidentiary value of such

evidence is limited. The findings arrived therein by

the magistrate are although not binding on the Civil

Court but the order having passed under the Act, 2005,

which is an special Act has to be given its due weight. 148

155. We need to observe that in event a judgment of

criminal court is relevant as per Sections 40 to 43 of

Evidence Act in civil proceedings, the judgment can

very well be taken note of and there is no embargo on

the civil court to place reliance upon it as a

corroborative material. We may notice a judgment of

Madras High Court in K. Subramani Vs. Director of

Animal Husbandry, Chennai, (2009) 1 MLJ 363 where

Madras High Court has made following observations in

paragraph 7:-

“7. A decision of the Criminal Court does not have the effect of binding nature on the proceedings before the Civil Court including the Motor Accident Claims Tribunal for the reason that the proof in both the Civil and Criminal cases are having two different categories of standards. In criminal cases, guilt of the accused must be proved beyond reasonable doubt, while in civil cases, the rights of the parties or matter in issue shall be decided on preponderance of probabilities. If a party to the case relies upon a decision of the criminal Court and insists the Civil Court to give credence to the said decision, it is incumbent upon the party to gather further materials in the case, which would support the observations and the decisions of the criminal Court. If any material is available in the case, which would corroborate or strengthen the 149

decision of the criminal Court, then, there is no embargo for the Civil Court to place reliance upon it.”

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

There is no embargo in referring to or relying on an

admissible evidence, be of a civil court or criminal

court both in civil or criminal proceedings.

157. From the above discussions, we arrive at following

conclusions:-

(i) The pendency of proceedings under Act, 2005

or any order interim or final passed under

D.V. Act under Section 19 regarding right of

residence is not an embargo for initiating

or continuing any civil proceedings, which

relate to the subject matter of order in-

terim or final passed in proceedings under

D.V. Act, 2005.

(ii) The judgment or order of criminal court

granting an interim or final relief under

Section 19 of D.V. Act, 2005 are relevant 150

within the meaning of Section 43 of the Evi-

dence Act and can be referred to and looked

into by the civil court.

(iii) A civil court is to determine the issues in

civil proceedings on the basis of evidence,

which has been led by the parties before the

civil court.

(iv) In the facts of the present case, suit filed

in civil court for mandatory and permanent

injunction was fully maintainable and the

issues raised by the appellant as well as by

the defendant claiming a right under Section

19 were to be addressed and decided on the

basis of evidence, which is led by the par-

ties in the suit.

158. In view of the foregoing discussions, we are of

the considered opinion that High Court has rightly set

aside the decree of the Trial Court and remanded the

matter for fresh adjudication. With the observations as 151

above, the appeal is dismissed. No Costs.

......................J. [ASHOK BHUSHAN]

......................J. [R. SUBHASH REDDY]

......................J. [M.R. SHAH]

NEW DELHI;

OCTOBER 15, 2020.