Smt. N. S. Leelavathi vs Smt. Dr. R. Shilpa Brunda

22. We have to first examine whether the appellant was involved in a domestic relationship with the respondent. Section 2(f) refers to five categories of relationship, such as, related by consanguinity, marriage, relationship in the nature of marriage, adoption, family members living together as a joint family, of which we are, in this case, concerned with an alleged relationship in the nature of marriage.

Relationship in the nature of marriage

34. Modern Indian society through the DV Act recognises in reality, various other forms of familial relations, shedding the idea that such relationship can only be through some acceptable modes hitherto understood. Section 2(f), as already indicated, deals with a

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relationship between two persons (of the opposite sex) who live or have lived together in a shared household when they are related by:

(a) Consanguinity

(b) Marriage

(c) Through a relationship in the nature of marriage

(d) Adoption

(e) Family members living together as joint family.

35. The definition clause mentions only five categories of relationships which exhausts itself since the expression "means", has been used. When a definition clause is defined to "mean" such and such, the definition is prima facie restrictive and exhaustive. Section 2(f) has not used the expression "include" so as to make the definition exhaustive. It is in that context we have to examine the meaning of the expression "relationship in the nature of marriage".

13. On going through the said decision of the Hon'ble

Apex Court it makes it clear that domestic relationship

arises in respect of an aggrieved person, if the aggrieved

person has lived together with the petitioners in a shared

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household, but this living together can be either soon

before filing of petition or at any point of time. The problem

arises with the meaning of phrase "at any point of time".

That does not mean that living together at any stage in the

past would give right to a person to become aggrieved

person to claim domestic relationship. At any point of time,

indicates that the aggrieved person has been continuously

living in the shared household as a matter of right, but if

for some reason if the aggrieved person has to leave the

house temporarily and when she returns she is not allowed

to enjoy her right to live in the property. Where a family

member leaves the shared household to establish his or

her own household, he or she cannot claim to have a right

to move an application under Section 12 of the DV Act on

the basis of domestic relationship. This proposition of law

came up before the Delhi High Court in the case of Vijay

Verma Vs. State (NCT) of Delhi and another reported in

2010 SCC Online DEL 2723, wherein at paragraph No.6 it

has been observed as under:

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6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or 'at any point of time'. The problem arises with the meaning of phrase "at any point of time". Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that "at any point of time" under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, "at any point of time"

cannot be defined as "at any point of time in the past" whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together,

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decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in- law, son-in-law, if they have any right in the property say because of coparcenary or

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because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase 'at any point of time', say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise

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and takes a job lives in some other city or country, enjoys life there, settles home there.

He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc. survives but the domestic relationship of living in a joint household would not survive & comes to an end.

14. A perusal of this provision makes it clear that

domestic relationship arises in respect of an aggrieved

person if the aggrieved person had lived together with the

respondent in a shared household. The term who is an

aggrieved person came up before the Division Bench of this

Court in the case of Smt.Leelavathi S. Vs. Sri.Murgesh

and Others reported in ILR 2010 KAR 4673. In the said

decision it has been held that an aggrieved person is a

woman in a domestic relationship with the respondent in

the past or at present who are subjected to domestic

violence by the respondent.

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15. Section 2(s) of the DV Act defines the shared

household. The Hon'ble Apex Court in the case of

D.Velusamy Vs. D. Patchaiammal reported in (2010) 10

SCC 469 defines the expression "domestic relationship" as,

it includes not only the relationship of marriage but also

the relationship "in the nature of marriage". But

subsequently, a Co-ordinate Bench of this Court in the

case of Mrs.G.A. Ferris Vs. Svetlana Alexandrovna

Dobrochasova Ferris and Another reported in (2014) 2

KCCR 1797, while interpreting Section 2(s) of the DV Act

held that house owned by the mother-in-law if it is her

exclusive property and same cannot be treated as shared

household as defined under Section 2(s) of the DV Act.

Wherein at paragraphs No.15 and 16 it has been observed

as under:

15. On going through the impugned order, it is clearly seen that an attempt is made by 1st respondent--wife, who is complainant before the Learned Magistrate to stake a claim in the house exclusively

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belonging to her mother-in-law as a shared house. None of the judgments, which are relied upon by Learned Counsel for 1st respondent would in any way relate to the facts on hand in the present case. On the contrary, the judgment rendered by the Apex Court in the matter of S.R. Batra (referred supra) relied upon by the petitioner squarely applies on all fours to the facts of the case on hand in accepting that the house owned by the petitioner herein is her exclusive property and same cannot be treated as shared house as defined under Section 2(s) of the Act.

16. Though the attempt made by Learned Counsel appearing for the 1st respondent--complainant is commendable, in the facts and circumstances, this Court cannot deviate itself to accommodate a wife, who is said to be in pitiable circumstances by permitting her to stay in the house exclusively belonging to her aged mother-in-law against her wish. The petitioner is aged 82 years and is in the evening of her life. Merely because husband of 1st respondent is the son of the petitioner, she cannot be burdened to provide

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accommodation to her daughter-in-law against her wish. Even if the submission on the part of the 1st respondent--complainant in trying to appeal to the conscience of this Court to the effect that each set of facts will have to be assessed based on the merits of the same is given due consideration, the application filed by 1st respondent- complainant under Section 23(2) read with Section 19(1)(a) of the Act, cannot be considered, on any count.

16. The same issue has also came up before the

Hon'ble Apex Court in the Case of S.R.Batra and Another

Vs. Taruna Batra (Smt.) reported in (2007) 3 SCC 169,

there also Section 2(s) has been defined and it has been

held that house which exclusively belongs to mother-in-law

of the woman wherein she only lived with her husband for

some time in the past after their marriage is not a shared

household. It is further held that in order to claim such

right the property should belong to her husband or it

should have been taken for rent by her husband or it

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should have been a joint family property in which her

husband was a member. Therein also the said property

was belonging to mother-in-law. Hence, it was held that

the respondent cannot claim any right to live in that

house. At paragraph No.29 it has been observed as under:

"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".

17. As the same issue coming up often before the

Court, the Hon'ble Apex Court in the case of Indra Sarma

Vs. V.K.V. Sarma quoted supra, it has held as to how the

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definition of the domestic relationship has to be

interpreted. In the said decision it has been observed that

when a definition clause has been defined as "mean" such

and such, the definition is prima facie restrictive and

exhaustive interpretation of the statutes. Section 2(f) of the

DV Act has not used the expression "include" so as to

make the definition exhaustive. At paragraph 35 it has

been observed as under:

35. The definition clause mentions only five categories of relationships which exhausts itself since the expression "means", has been used. When a definition clause is defined to "mean" such and such, the definition is prima facie restrictive and exhaustive. Section 2(f) has not used the expression "include" so as to make the definition exhaustive. It is in that context we have to examine the meaning of the expression "relationship in the nature of marriage".

18. It is well settled proposition of law that any

interpretation which leads to absurdity should not be

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accepted. By relying upon the decision in the case of

S.R.Batra and Another quoted supra, the Delhi High

Court reiterated the said principle in the case of Sunita

Gangwal Vs. Chottey Lal reported in 2018 SCC Online

Del 6708. At paragraph 7(ii) of the said decision it has

been observed as under:

7(ii) The relevant observations of the Supreme Court in the S.R. Batra case (supra) are paras 21 to 30 and these paras read as under:--

"21. It may be noticed that the finding of the learned Senior Civil Judge that in fact Smt. Taruna Batra as not residing in the premises in question is a finding of fact which cannot be interfered with either under Article 226 or 227 of the Constitution. Hence, Smt. Taruna Batra cannot claim any injunction restraining the appellants from dispossessing her from the property in question for the simple reason that she was not in possession at all of the said property and hence the question of dispossession does not arise.

22. Apart from the above, we are of the opinion that the house in question cannot be

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said to be a 'shared household' within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'Act'). Section 2(s) states:

"2(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 aggrieved person has any right, title or interest in the shared household.

23. Learned Counsel for the respondent Smt. Taruna Batra has relied upon Sections 17 and 19(1) of the aforesaid Act, which state:

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

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

xxxx

19(1) 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 a residence order-

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

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(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate 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:

Provided that no order under Clause (b) shall be passed against any person who is a woman.

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

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respondent had lived in the property in question in the past, hence the said property is her shared household.

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 grand parents, 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 the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.

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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 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 No. 2, mother of Amit Batra. Hence it cannot be called a 'shared household'.

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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."

19. Keeping in view the ratio laid down in the above

said decisions, I am of the considered opinion that in the

instant case admittedly the respondent daughter left the

house and got married with Dr.Zubair Khan and she

established her residence at Dubai and there is no material

to show that she has left the company of Dr.Zubair Khan

and came over to Bengaluru and started residing with the

petitioners i.e., mother and brother. It is the specific

contention of the petitioners that she came only to see her

ailing father, at that time she stayed in a hotel and after

the death of her father she came and stayed in the house

of the petitioners for a few days and as such she is not the

resident. As observed by the decision in the case of Vijay

Verma quoted supra where the family member leaves the

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shared household to establish her own household, she

cannot claim to have a right to move an application under

Section 12 of the DV Act. The said principle is squarely

applicable to the present facts of the case on hand. If at all

she is having any right over the property, she can file a

suit for partition. In this case it is not going to be

adjudicated. During the course of argument it has been

brought to the notice of this Court that she had already

filed a suit for partition in O.S.8796/2018.

20. Leave apart that it is the specific case of the

petitioners that the said property is the absolute and

exclusive property of Smt.Savithramma-grand mother of

first petitioner and the same has been gifted to the second

petitioner by a registered gift deed. Under such

circumstances, the said property is neither a joint family

property nor the property of the husband of

Smt.Savithramma. Then under such circumstances also

the respondent is not entitled to the shared household and

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she cannot file an application under Section 12 of the DV

Act.

21. Taking into consideration the above said factual

matrix of the case and the ratio laid down in the above

decisions, I am of the considered opinion that, the

respondent has not made out any good grounds so as to

take any of the reliefs as stated in the DV Act.

22. I have carefully and cautiously gone through the

order and judgment of the Courts below. Both the Courts

below without looking into the said facts have come to a

wrong conclusion and have held that the petition is

maintainable.

23. Taking into consideration the above said factual

matrix of the case the petition is allowed and the impugned

order passed by LX Additional City Civil and Sessions

Judge, Bengaluru, in Criminal Appeal No.615/2019 dated

19.8.2019 is set aside and it is held that the petition filed

by the respondent under the DV Act is not maintainable.

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In view of the disposal of the main petition, I.A.

No.2/2019 does not survive for consideration and the

same is accordingly disposed of.

Sd/-

JUDGE

AP*