V.D.Bhanot vs Savita Bhanot

1. The Special Leave Petition is directed against

the judgment and order dated 22nd March, 2010,

passed by the Delhi High Court in Cr.M.C.No.3959 of

2009 filed by the Respondent wife, Mrs. Savita

Bhanot, questioning the order passed by the learned

Additional Sessions Judge on 18th September, 2009,

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dismissing the appeal filed by her against the

order of the Metropolitan Magistrate dated 11th May,

2009.

2. There is no dispute that marriage between the

parties was solemnized on 23rd August, 1980 and till

4th July, 2005, they lived together. Thereafter,

for whatever reason, there were misunderstandings

between the parties, as a result whereof, on 29th

November, 2006, the Respondent filed a petition

before the Magistrate under Section 12 of the

Protection of Women from Domestic Violence Act,

2005, hereinafter referred to as the "PWD Act",

seeking various reliefs. By his order dated 8th

December, 2006, the learned Magistrate granted

interim relief to the Respondent and directed the

Petitioner to pay her a sum of Rs.6,000/- per

month. By a subsequent order dated 17th February,

2007, the Magistrate passed a protection/residence

order under Sections 18 and 19 of the above Act,

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protecting the right of the Respondent wife to

reside in her matrimonial home in Mathura. The

said order was challenged before the Delhi High

Court, but such challenge was rejected.

3. In the meantime, the Petitioner, who was a

member of the Armed Forces, retired from service on

6th December, 2007, and on 26th February, 2008, he

filed an application for the Respondent's eviction

from the Government accommodation in Mathura

Cantonment. The learned Magistrate directed the

Petitioner herein to find an alternative

accommodation for the Respondent who had in the

meantime received an eviction notice requiring her

to vacate the official accommodation occupied by

her. By an order dated 11th May, 2009, the learned

Magistrate directed the Petitioner to let the

Respondent live on the 1st Floor of House No.D-279,

Nirman Vihar, New Delhi, which she claimed to be

her permanent matrimonial home. The learned

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Magistrate directed that if this was not possible,

a reasonable accommodation in the vicinity of

Nirman Vihar was to be made available to the

Respondent wife. She further directed that if the

second option was also not possible, the Petitioner

would be required to pay a sum of Rs.10,000/- per

month to the Respondent as rental charges, so that

she could find a house of her choice.

4. Being dissatisfied with the order passed by the

learned Metropolitan Magistrate, the Respondent

preferred an appeal, which came to be dismissed on

18th September, 2009, by the learned Additional

Sessions Judge, who was of the view that since the

Respondent had left the matrimonial home on 4th

July, 2005, and the Act came into force on 26th

October, 2006, the claim of a woman living in

domestic relationship or living together prior to

26th October, 2006, was not maintainable. The

learned Additional Sessions Judge was of the view

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that since the cause of action arose prior to

coming into force of the PWD Act, the Court could

not adjudicate upon the merits of the Respondent's

case.

5. Before the Delhi High Court, the only question

which came up for determination was whether the

petition under the provisions of the PWD Act, 2005,

was maintainable by a woman, who was no longer

residing with her husband or who was allegedly

subjected to any act of domestic violence prior to

the coming into force of the PWD Act on 26th

October, 2006. After considering the constitutional

safeguards under Article 21 of the Constitution,

vis-`-vis, the provisions of Sections 31 and 33 of

the PWD Act, 2005, and after examining the

statement of objects and reasons for the enactment

of the PWD Act, 2005, the learned Judge held that

it was with the view of protecting the rights of

women under Articles 14, 15 and 21 of the

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Constitution that the Parliament enacted the PWD

Act, 2005, in order to provide for some effective

protection of rights guaranteed under the

Constitution to women, who are victims of any kind

of violence occurring within the family and matters

connected therewith and incidental thereto, and to

provide an efficient and expeditious civil remedy

to them. The learned Judge accordingly held that a

petition under the provisions of the PWD Act, 2005,

is maintainable even if the acts of domestic

violence had been committed prior to the coming

into force of the said Act, notwithstanding the

fact that in the past she had lived together with

her husband in a shared household, but was no more

living with him, at the time when the Act came into

force. The learned Judge, accordingly, set aside

the order passed by the Additional Sessions Judge

and directed him to consider the appeal filed by

the Respondent wife on merits.

7 6. As indicated hereinbefore, the Special Leave

Petition is directed against the said order dated

22nd March, 2010, passed by the Delhi High Court and

the findings contained therein.

7. During the pendency of the Special Leave

Petition, on 15th September, 2011, the Petitioner

appearing in-person submitted that the disputes

between him and the Respondent had been resolved

and the parties had decided to file an application

for withdrawal of the Special Leave Petition. The

matter was, thereafter, referred to the Supreme

Court Mediation Centre and during the mediation, a

mutual settlement signed by both the parties was

prepared so that the same could be filed in the

Court for appropriate orders to be passed

thereupon. However, despite the said settlement,

which was mutually arrived at by the parties, on

17th January, 2011, when the matter was listed for

orders to be passed on the settlement arrived at

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between the parties, an application filed by the

Petitioner was brought to the notice of the Court

praying that the settlement arrived at between the

parties be annulled. Thereafter, the matter was

listed in-camera in Chambers and we had occasion to

interact with the parties in order to ascertain the

reason for change of heart. We found that while

the wife was wanting to rejoin her husband's

company, the husband was reluctant to accept the

same. For reasons best known to the Petitioner, he

insisted that the mutual settlement be annulled as

he was not prepared to take back the Respondent to

live with him.

8. The attitude displayed by the Petitioner has

once again thrown open the decision of the High

Court for consideration. We agree with the view

expressed by the High Court that in looking into a

complaint under Section 12 of the PWD Act, 2005,

the conduct of the parties even prior to the coming

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into force of the PWD Act, could be taken into

consideration while passing an order under Sections

18, 19 and 20 thereof. In our view, the Delhi High

Court has also rightly held that even if a wife,

who had shared a household in the past, but was no

longer doing so when the Act came into force, would

still be entitled to the protection of the PWD Act,

2005.

9. On facts it may be noticed that the couple has

no children. Incidentally, the Respondent wife is

at present residing with her old parents, after she

had to vacate the matrimonial home, which she had

shared with the Petitioner at Mathura, being his

official residence, while in service. After more

than 31 years of marriage, the Respondent wife

having no children, is faced with the prospect of

living alone at the advanced age of 63 years,

without any proper shelter or protection and

without any means of sustenance except for a sum of

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Rs.6,000/- which the Petitioner was directed by the

Magistrate by order dated 8th December, 2006, to

give to the Respondent each month. By a subsequent

order dated 17th February, 2007, the Magistrate also

passed a protection-cum-residence order under

Sections 18 and 19 of the PWD Act, protecting the

rights of the Respondent wife to reside in her

matrimonial home in Mathura. Thereafter, on the

Petitioner's retirement from service, the

Respondent was compelled to vacate the

accommodation in Mathura and a direction was given

by the Magistrate to the Petitioner to let the

Respondent live on the 1st Floor of House No.D-279,

Nirman Vihar, New Delhi, and if that was not

possible, to provide a sum of Rs.10,000/- per month

to the Respondent towards rental charges for

acquiring an accommodation of her choice.

10. In our view, the situation comes squarely

within the ambit of Section 3 of the PWD Act, 2005,

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which defines "domestic violence" in wide terms,

and, accordingly, no interference is called for

with the impugned order of the High Court.

However, considering the fact that the couple is

childless and the Respondent has herself expressed

apprehension of her safety if she were to live

alone in a rented accommodation, we are of the view

that keeping in mind the object of the Act to

provide effective protection of the rights of women

guaranteed under the Constitution, who are victims

of violence of any kind occurring within the

family, the order of the High Court requires to be

modified. We, therefore, modify the order passed

by the High Court and direct that the Respondent be

provided with a right of residence where the

Petitioner is residing, by way of relief under

Section 19 of the PWD Act, and we also pass

protection orders under Section 18 thereof. As far

as any monetary relief is concerned, the same has

already been provided by the learned Magistrate and

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in terms of the said order, the Respondent is

receiving a sum of Rs.6,000/- per month towards her

expenses.

11. Accordingly, in terms of Section 19 of the PWD

Act, 2005, we direct the Petitioner to provide a

suitable portion of his residence to the Respondent

for her residence, together with all necessary

amenities to make such residential premises

properly habitable for the Respondent, within 29th

February, 2012. The said portion of the premises

will be properly furnished according to the choice

of the Respondent to enable her to live in dignity

in the shared household. Consequently, the sum of

Rs.10,000/- directed to be paid to the Respondent

for obtaining alternative accommodation in the

event the Petitioner was reluctant to live in the

same house with the Respondent, shall stand reduced

from Rs.10,000/- to Rs.4,000/-, which will be paid

to the Respondent in addition to the sum of

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Rs.6,000/- directed to be paid to her towards her

maintenance. In other words, in addition to

providing the residential accommodation to the

Respondent, the Petitioner shall also pay a total

sum of Rs.10,000/- per month to the Respondent

towards her maintenance and day-to-day expenses.

12. In the event, the aforesaid arrangement does

not work, the parties will be at liberty to apply

to this Court for further directions and orders.

The Special Leave Petition is disposed of

accordingly.

13. There shall, however, be no order as to costs.

...................................................J.

(ALTAMAS KABIR)

New Delhi ...................................................J.

Dated:07.02.2012 (J. CHELAMESWAR)