Miss Lucy
← All judgments

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

Karnataka High Court11 December 2019

Ratio decidendi

The rule this decision rests on

A woman who has left the shared household to establish her own separate household with her husband cannot claim to be in a domestic relationship with her parents or other family members for the purposes of the Protection of Women from Domestic Violence Act, 2005, and therefore cannot maintain an application under Section 12 of that Act seeking protection on the basis of a domestic relationship that has ceased. A domestic relationship within the meaning of Section 2(f) of the Protection of Women from Domestic Violence Act, 2005, requires that the parties currently live or have continuously lived together in a shared household as a matter of right; temporary or compelled absences do not preserve the relationship, but permanent departure to establish a separate household ends it, and thereafter only the relationship of relatives survives. A property that is the exclusive property of a parent or grandparent, not belonging to the respondent (husband), not taken on rent by the respondent, and not a joint family property of which the respondent is a member, cannot constitute a "shared household" within the meaning of Section 2(s) of the Act, and therefore a woman cannot claim residence rights in such a property under the Act.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURURDATED THIS THE 11TH DAY OF DECEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL REVISION PETITION No.1146/2019
BETWEEN:
1. Smt. N.S.LeelavathiW/o late S.Renuka PrasadAged about 62 years
2. Sri R.Shiva PrathapS/o late S.Renuka PrasadAged about 37 years
Both are R/at No.50/1,1st Cross, NehrunagarSeshadripuramBengaluru-560 020....Petitioners(By Sri Rajashekar S., Advocate)
AND:
Smt. Dr.R.Shilpa BrundaAlso Known As Ayesha ZubairW/o Dr. Zubair KhanAged about 41 yearsR/at No.50/1, 1st CrossNehrunagar, SeshadripuramBengaluru-560 020.-2-
Presently residing at No.8,Ground Floor, 3rd Main,6th Cross, V.R.Puram,Palace Guttahalli,Bengaluru-560 003....Respondent(By Sri Mohammed Tahir, Advocate)
This Criminal Revision Petition is filed under Section397 r/w 401 of Cr.P.C praying to set aside the order dated07.03.2019 passed by the MMTC-IV, Bengaluru inCrl.Misc.No.113/2018 and set aside the order dated19.08.2019 passed by the LX Additional City Civil andSessions Judge, Bengaluru in Criminal AppealNo.615/2019 and dismiss the complaint filed by therespondent herein under Section 12 of D.V.Act inCrl.Misc.No.113/2018 on the file of MMTC-IV, Bengaluruby allowing the present Criminal Revision Petition.
This Criminal Revision Petition having been heardand reserved on 02.12.2019 coming on for pronouncementof Orders this day the Court made the following:-
ORDER
This petition has been filed by petitioners No.1 and 2
challenging the order passed by LX Additional City Civil
and Sessions Judge, Bengaluru, in Criminal Appeal
No.615/2019 dated 19.8.2019 whereunder the order dated
7.3.2019 passed by IV Metropolitan Magistrate Traffic-3-
Court, Bengaluru in Crl.Misc. No.113/2018 was confirmed
by dismissing the appeal.
2. The factual matrix of the case are that petitioner
No.1 is the mother of respondent, petitioner No.2 is the
brother of respondent. Respondent is working as a Doctor
by profession and her marriage was performed with one
Mr.Manohar during the year 2002. Thereafter, she started
residing in the house of in-laws at Delhi. She stayed there
for few months, thereafter she eloped with Dr.Zubair Khan
and the marriage with Mr.Manohar ended by way of decree
of divorce. Immediately, she changed her name as Ayesha
Zubair and converted herself to Muslim religion and she
got married with Dr.Zubair Khan, in her matrimonial
home. Subsequently they shifted to UAE and settled down
there permanently and there she has given birth to two
children. It is further stated that the grandmother of
petitioner No.2 one Smt.Savithramma was the absolute
owner of property bearing No.50 and 50/1 at
Sheshadripuram, Bengaluru. The said property was gifted-4-
in favour of the second petitioner. It is further contended
that in the first week of October, 2018, respondent came to
the house of the petitioners and demanded to give the
property to her. When her demand was refused, she picked
up quarrel and even went to the extent of causing injury to
her parents as well as petitioner No.2. So in this behalf a
complaint was also registered against respondent in Crime
No.106/2018. As a counterblast, respondent has also filed
complaint against both the petitioners and wife of second
petitioner before the jurisdictional police. Her complaint is
registered in Crime No.105/2018. In that background
respondent filed a complaint under Section 12 of Domestic
Violence Act (hereinafter called as 'DV Act', for short).
Thereafter, after service of notice an application was filed
by the petitioners with regard to maintainability of such
complaint. The trial Court dismissed the said application.
Appellate Court confirmed the same. Challenging the same
the petitioners are before this Court.-5-
3. I have heard the learned counsel appearing for the
petitioners and respondent.
4. The main grounds urged by the learned counsel
for the petitioners are that complainant is not an aggrieved
person as contemplated under Section 2(a) of DV Act. It is
his further submission that the petition as against the
petitioners is not maintainable under Section 12 of the DV
Act. In order to maintain the petition there must be
domestic relationship as contemplated under Section 2(f) of
the DV Act. It is his further submission that the
respondent-complainant is not in a shared household. If all
these definitions are read together with reference to the
factual matrix of the case, no complaint can be entertained
under Section 12 of the DV Act. It is his further
submission that the respondent got married in the year
2002 and thereafter she has divorced the first husband
and got married to a person who is not belonging to her
religion and thereafter she is residing permanently at
Dubai. It is his further submission that she has filed a suit-6-
for partition for claiming partition in the property and she
is not a divorcee so as to take shelter under the DV Act.
The trial Court and appellate Court without considering the
said factual matrix and the proposition of law have come to
a wrong conclusion and have wrongly dismissed the
application. The application filed by the respondent is
nothing but abuse of process of law. It is his further
submission that domestic relationship comes to an end
once the respondent daughter moved out of the shared
household and established her own household with her
husband. In order to substantiate the said contention he
relied upon the decision in the case of Vijay Verma Vs.
State (NCT) of Delhi and Another reported in AIR 2011
(NOC) 171 (DEL.). Petitioner No.2 and respondent are real
brother and sister and respondent has filed a suit for
partition. In order to file complaint under the DV Act, there
should not be partition in the family. In order to attract the
provisions of the DV Act, the respondent daughter must be
lived together in a shared household. Continuously living-7-
in the shared household is must in order to attract the
provisions of DV Act. In order to substantiate his argument
he relied upon the decision of the Madhya Pradesh High
Court in M.Cr.C.No.9246/2014 disposed of on 22.9.2015
in the case of Rajkishore Shukla Vs. Asha Shukla. It is
his further submission that if the respondent resides
separately, then under such circumstances, there is no
domestic relationship between the petitioners and the
respondent. In this regard he relied upon the decision of
the Bombay High Court in the case of Anitha W/o Anand
Tambe Vs. Sri.Anand S/o Eknath Tambe. It is his further
submission that the aggrieved person cannot seek
protection under the DV Act. Though she is a female
member, she is entitled only when she satisfies the other
provisions of the DV Act. In order to substantiate his
argument he relied upon the decision in the case of Hiral
P. Harsora and Others Vs. Kusum Narottamdas Harsora
and Others reported in (2016) 10 SCC 165 and also
another decision of the Andhra Pradesh High Court in the-8-
case of Yadlapalli Mary Mani Vs. The State of Andhra
Pradesh. On these grounds he prayed to allow the petition
and to set aside the impugned order.
5. Per contra, the learned counsel for the respondent
vehemently argued and submitted that the respondent has
prayed relief under Sections 18, 19 and 22 of the DV Act.
She has come from Dubai about four months back and she
is residing in the said premises since four months. It is his
further submission that the maintainability cannot be
decided, it can be decided only after leading of the
evidence. It is his further submission that the petitioners
assaulted the respondent and at threshold it cannot be
held that she is not staying in the said house. It is his
further submission that the decisions quoted by the
learned counsel for the petitioners are not applicable to the
facts of the case on hand. When the parties are residing in
a joint family in a household or a shared household, then
under such circumstances, limited interpretation cannot
be made irrespective of the title of the respondent, a-9-
protection order can be made under Section 19(1)(a) of the
DV Ac. In order to substantiate his argument he relied
upon the decision in the case of Smt.Preeti Satija Vs.
Smt.Raj Kumari and Another reported in AIR 2014 Delhi
46. It is his further submission that the relationship is not
denied. Under such circumstances, the Court cannot now
adjudicate the rights at this juncture. The object of the law
if it is taken and if a woman is in a domestic relationship
and lived at any point of time together in a shared
household either by consanguinity, marriage or through
relationship in a joint family and if there is any domestic
violence, then the Court can give the relief . In this behalf
he relied upon the decision of Delhi High Court in the case
of Kusum Lata Sharma Vs. State and Another reported in
2011 SCC Online DEL 3710. It is his further submission
that a rental agreement has been entered into by the
respondent and she is not having residence, under such
circumstances a residential order has to be passed. On
these grounds he prayed to dismiss the petition.
- 10 -
6. I have carefully and cautiously gone through the
submissions made by the learned counsel appearing for
the parties and perused the records.
7. After hearing the learned counsel appearing for the
parties, it is not in dispute that petitioner No.1 is the
mother and petitioner No.2 is the brother of respondent. It
is also not in dispute that she got married in the year 2002
and subsequently she obtained a divorce and thereafter
she got married with one Dr.Zubair Khan and started
residing at Dubai. It is also not in dispute that respondent
filed a complaint under Section 12 of the DV Act for
protection.
8. The first question which remains for consideration
of this Court is that whether there exists a 'domestic
relationship' as contemplated under Section 2(f) of DV Act
between the petitioners and respondent and whether there
is a 'shared household' between the petitioners and the
- 11 -
respondent. For the purpose of brevity, I quote Section 2(f)
and (s) of the DV Act which reads as under:
2(f): "domestic relationship"
means a relationship between twopersons who live or have, at any pointof time, lived together in a sharedhousehold, when they are related byconsanguinity, marriage, or through arelationship in the nature of marriage,adoption or are family members livingtogether as a joint family."
2(s): "shared household"
means a household where the personaggrieved lives or at any stage haslived in a domestic relationship eithersingly or along with the respondentand includes such a householdwhether owned or tenanted eitherjointly by the aggrieved person andthe respondent, or owned or tenantedby either of them in respect of whicheither the aggrieved person or therespondent or both jointly or singlyhave any right, title, interest or equityand includes such a household which
- 12 -
may belong to the joint family of whichthe respondent is a member,irrespective of whether the respondentor the aggrieved person has any right,title or interest in the sharedhousehold."
9. Chapter IV of the DV Act deals with the procedure
for obtaining orders of reliefs. Section 12 provides for
presenting an application to the Magistrate by an aggrieved
person or by a Protection Officer or any other person on
behalf of the aggrieved person seeking one or more reliefs
provided under the Act as per Sections 17 to 22 of the DV
Act. The said provisions shall be governed by the
provisions of Code of Criminal Procedure.
10. Section 2(a) of the DV Act defines an aggrieved
person. An aggrieved person means any woman who is or
has been in a domestic relationship with the respondent
and who alleges to have been subjected to any act of
domestic violence by the respondent.
- 13 -
11. On perusal of the said definition it makes it clear
that only woman in a domestic relationship either in the
past or at present with the respondent, who has been
subjected to domestic violence by the respondent can seek
the reliefs provided under Chapter IV of the DV Act.
12. By reading of Section 2(f) along with Section 3 of
the DV Act, if any such act as mentioned in Section 3 of
the DV Act is committed, it amounts to domestic violence.
Domestic relationship means who have lived together or
who has lived in a shared household and 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. The said definition mentioned
therein categorizes certain categories of relationship. The
learned counsel for the respondent by contending that it is
a exhaustive definition and it includes the daughter who
has gone in marriage and has come and resides with the
parents will also include the domestic relation. But as
- 14 -
could be seen from the definition prima facie a restrictive
and exhaustive meaning has been given. This point of law
came up before the Hon'ble Apex Court in the case of Indra
Sarma Vs. V.K.V. Sarma reported in (2013) 15 SCC 755. At
paragraphs No.22, 34 and 35 it has been observed as
under:

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

- 15 -

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

- 16 -

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:

- 17 -

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,

- 18 -

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

- 19 -

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

- 20 -

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.

- 21 -

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

- 22 -

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

- 23 -

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

- 24 -

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

- 25 -

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

- 26 -

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

- 27 -

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:

- 28 -

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;

- 29 -

(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

- 30 -

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.

- 31 -

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'.

- 32 -

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

- 33 -

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

- 34 -

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.

- 35 -

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*

This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.

Research this judgment with Miss Lucy

Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.

Try Miss Lucy free