Full Citation: Priya Parameswaran Pillai Vs. Union of India and Ors., 2015VIIAD(Delhi)10

PREFATORY FACTS

1.1 The petitioner (hereinafter referred to as Ms. Pillai) chose to travel to the United Kingdom, in the early hours of the morning of 11.01.2015, by an Air India flight bearing no. AI-115.

1.2 [The] concerned immigration officer proceeded to endorse, Ms. Pillai’s passport with an annotation “off load”. Having not been supplied with any reasons, an indignant Ms. Pillai shot off … a letter of even date i.e., 11.01.2015 to the Secretary, Government of India (GOI), Ministry of Home Affairs seeking to know the reasons which had impelled the authorities concerned to detain her at the airport. Though there was no official response to her communication dated 11.01.2015, the media was rife with reports, that a Look-Out-Circular (LOC) had been issued qua her. Resultantly, Ms Pillai dispatched yet another letter dated 12.01.2015 to the same officer, seeking to know, inter alia, as to whether, what was being bandied about, in the press, was factually correct.

1.3. Ms. Pillai’s communications received no response.

2. Being aggrieved, Ms. Pillai has moved this court under Article 226 of the Constitution.

2.1. The broad plank of her challenge is pivoted on the assertion that these actions of the respondents are violative of her fundamental rights. Article 19(1)(a), 19(1)(g) and 21 have been invoked by Ms. Pillai, to assail the actions of the respondents, which she categorises, if one were to sum her submissions, as egregiously illegal.

3. Ms. Pillai … is a civil rights activist, who works in public spaces. Her core area of work relates to environmental issues. She is a lawyer by profession; and is currently employed with Greenpeace India Society, as a Policy Officer.

4. It appears of late she has been working in Mahan in the Singrauli Coal belt, in the State of Madhya Pradesh. As an activist working in Mahan, it appears, she has associated herself with the local tribal communities, which according to her, seek to resist the possibility of a coal mine being operated in the area. … a company by the name of Mahan Coal Ltd. seeks to open a coal mine in the concerned area.

4.1 Mahan Coal Ltd. [is owned by] ESSAR Energy; a company incorporated and registered in United Kingdom (in short, U.K.).

4.2 The assertion made in the writ petition is that opening of a mine in Mahan had the potentiality of displacing the forest/tribal communities, which in turn, could impact lives of thousands of people who, depend on forest produce. There is also an assertion that such an activity could, also degrade, the existing wild life found in the area and lead to water and air pollution in the region.

4.3. It is to talk on these aspects with British Parliamentarians that, Ms. Pillai was invited by Greenpeace U.K. Accordingly, a request for visa was sent by Greenpeace U.K., on 27.11.2014, on behalf of Ms. Pillai.

4.4. Consequent thereto, Ms. Pillai was issued a visa by the British High Commission, for a period of 6 months.

4.5. Based on the above, Ms. Pillai’s air ticket was booked with Air India. Her seat was confirmed by the Airline

5. Ms. Pillai was detained at the airport, just before she was to board her flight. She was accosted by Mr. V.K. Ojha, an Immigration Officer employed with respondent no. 2 i.e., Bureau of Immigration.

5.1. It is averred that Mr. Ojha after consultations with the officers at the Special Assistance Counter asked Ms. Pillai to accompany him to another place for further confabulations; albeit within the airport complex. It is at this point in time that Ms. Pillai was informed that she could not travel out of India. Resultantly, her baggage was retrieved from the aircraft and an endorsement to the effect, “off load” was made on her passport.

5.2. On Ms. Pillai seeking information as to why she had been detained, she was asked to speak to Mr. V.K. Ojha’s superior, one, Ms. Sushma Sharma. It is averred that Ms. Sushma Sharma received a fax from an unknown source, whereupon she confirmed that Ms. Pillai had been detained since her name stood included in the “data base” of individuals, who are not allowed to leave the country. Apparently, no further information was supplied to Ms. Pillai as to why and how her name got included in the said data base.

5.3. Being unhappy with her situation, Ms. Pillai, as indicated above, wrote a letter on that very date i.e., 11.01.2015 to the Secretary, Ministry of Home Affairs wherein, she recounted her ordeal.

5.4. The said communication was followed by a letter dated 12.01.2015 whereby, she sought clarification from Secretary, Ministry of Home Affairs, as to whether an LOC had been issued in her name. This clarification was sought as media reports were suggestive of the fact that this was the precise reason which the “official sources” had trotted out, for her detention at the airport.

5.5. In addition, Ms. Pillai, by this very communication, most emphatically sought the details of the LOC, if any, issued, along with information, as to the authority which had directed its issuance and, the reasons, which had led to its issuance. Ms. Pillai, briefly, also touched upon the fact that she had not been convicted in any criminal case, and all that she proposed to do, was to give a speech to the Members of the British Parliament.

5.6. None of the aforementioned communications of Ms. Pillai received a response. Resultantly, the captioned petition came to be moved on 28.01.2015 when, notice was issued in the matter.

SUBMISSION OF COUNSELS

6. On behalf of Ms Pillai, arguments were advanced by Ms. Indira Jaising … Respondents were represented by Mr. Sanjay Jain.

7. Ms. Jaising’s submissions can be briefly paraphrased as follows :-

(i). The LOC issued in the matter which, as per the counter affidavit, is dated 10.01.2015, has been issued without due authority of law. There being no restriction imposed upon Ms. Pillai to travel outside India by any court, she could not be prevented from travelling outside the country for the stated purpose, which was to meet the British Parliamentarians with respect to work carried out by her with tribal communities, in Mahan.

(ii). The detention of Ms. Pillai, on 11.01.2015, had violated her fundamental right to travel, free speech and expression and to practice her profession and/or occupation. Consequently, the action of the respondents contravened her fundamental rights under Article 21, 19(1)(a) and 19(1)(g) of the Constitution.

(iii). The only legal recourse open to the respondents whereby, if at all, they could have lawfully prevented Ms. Pillai from exercising her constitutional right of free travel, was to exercise powers conferred under the provisions of: The Passports Act, 1967 (in short the Passports Act).

(iii)(a) This power could if, at all, be exercised by the constituted authority or the Central Government or the designated officer perhaps only in terms of and in consonance with the provisions of Section 10 of the Passports Act.

(iii)(b) Apart from the powers contained in the aforementioned Section, which includes the power to vary, impound or revoke the passport, emergent power is found in Section 10A of the Passports Act to suspend the passport or travel documents. … The suspension can be carried out by the Passport Authority, only if it deems it necessary to do so in the interest of the sovereignty and integrity of India, security of India, friendly relations of India with any foreign country, or in the interest of the general public.

(iii)(c) Even in such situations, the affected party has to be given an opportunity of hearing within a period not exceeding eight (8) weeks, reckoned from the date of passing of such an order. In other words, fetter, if any, on the constitutional right of a citizen to travel abroad can be imposed by a duly constituted authority and, that too, only in accordance with the aforementioned provisions1.

(iv). The ostensible basis on which LOCs generally and, in particular, in this case, have been issued by the respondents, is sourced in O.M. dated 27.10.2010 (in short 2010 O.M.)

(iv)(a) The power to issue an LOC should be rooted in a substantive law, such as, the provisions of Section 41 of the Code of Criminal Procedure, 1973 (in short the Cr. PC). In other words, the 2010 O.M. is not backed by authority of law.

(v). The respondents by their own admission have invoked the provisions of clause 8(j) of the 2010 O.M. which, empowers them to issue an LOC; albeit in exceptional cases, “without complete” or even in cases where no details are available, only against persons falling in the following categories: “counter intelligence suspects, terrorists, anti-national elements, etc. in larger public interest”. Therefore, in such like cases, the safeguards contained in the 2010 O.M., can, in a sense, be side-stepped provided the person against whom an LOC is issued, falls in the categories prescribed therein.

(v)(a) Ms. Pillai has been categorized as one indulging in anti-national activities. The recourse to clause 8(j) of the 2010 O.M. is flawed as the expression, ‘anti-national’ has to be interpreted in the context of those expressions preceding it, that is, in consonance with, the principle of ejusdem generis.

(vi). Expression of opinion on economic activities of the Government or investment decisions of a particular multinational corporation qua coal mines in India to the extent it impacts tribal communities of the area or, the environment cannot be construed as an anti- national activity, if read, in the context of the preceding expressions; obtaining in clause 8(j). The logical corollary of which, is that, anti- national activities can only be construed as those activities which impinge upon sovereignty or integrity of India. The two examples given in clause 8(j) of the 2010 O.M., such as, counter intelligence suspects and terrorists, fall in this category.

(vi)(a) This argument was, however, advanced dehors the submission that an LOC is an administrative instruction not backed by authority of law, and that, the grounds set out therein, whereby restrictions on travel could perhaps be imposed, had to abide by the mandate of Article 19(2) of the Constitution. Since the expression, ‘anti-national’ or ‘national interest’ does not find mention in Article 19(2) of the Constitution, the last category in clause 8(j) of 2010 O.M. being: “anti-national elements, etc. in larger national interest”-does not qualify as a “reasonable restriction” within the meaning of Article 19(2) of the Constitution3.

(vii). The respondents had failed to show as to how the purpose of Ms. Pillai’s visit which, involved speaking with British Parliamentarians qua rights of tribal communities, in Mahan, would constitute a threat to the sovereignty and integrity of India. Espousing a cause of particular section of people could not be considered as anti- national or creating disaffection amongst people at large4.

(viii). The right to travel abroad is a fundamental right which, stands subsumed in the right to life and personal liberty guaranteed under Article 21 of the Constitution. No citizen of the country can be deprived of this right except according to the procedure established by law5.

(ix). Ms. Pillai has a fundamental right to express her opinion on crucial economic policies of the Government which may differ from the dominant opinion and would include the right to propagate an alternative opinion. This opinion can be expressed at seminars, by publishing articles and including, in the manner, sought to be done in the instant case by meeting with parliamentarians of foreign countries. Ms. Pillai had proposed to travel to the U.K. to highlight the role of a British company, i.e., Essar Energy. Such a meeting could, by no stretch of imagination, have had an impact on the friendly relations between India and Britain as it pertained to a contestation between a British Company and the local population situate in Mahan; none of which impinged upon the relationship between Britain and India.

(xiii). The fundamental right to free speech can only be restricted by a duly enacted law which must pass muster of the test of reasonable restrictions, as contained in Article 19(2) of the Constitution7.

(xiv). The ostensible reason given by the respondents for preventing Ms. Pillai from travelling outside India, and thus, in effect, articulating her views to British Parliamentarians is that it would create “negative image” of India overseas, which in effect would whittle down Foreign Direct Investment (FDI), in India, so very much needed, in manufacturing and infrastructure sectors and, in addition, could also lead to sanctions. None of these reasons can be classified as anti-national activities.

(xvi). The maintenance of a secret data base by respondent no. 3 i.e., the Intelligence Bureau, amounts to unlawful surveillance and, is thus, violative of right to privacy guaranteed under Article 21 of the Constitution8.

(xvii). The stand of the respondents that Ms. Pillai would be allowed to travel if, she were to furnish an undertaking that she will not speak on the subject matter referred to above, to British Parliamentarians, amounts to pre-publication censorship and, in that sense, is an unconstitutional condition attached to her otherwise constitutional right to travel abroad, which is guaranteed under Article 21 of the Constitution9.

(xviii). It is not understood as to the basis on which it is asserted by the deponent that Ms. Pillai was acting contrary to national interest. The affidavit filed on behalf of the respondents thus deserves to be ignored.

8. On the other hand, Mr. Sanjay Jain, learned ASG, defended the stand of the respondents:-

(ii) As regards the recent incident, whereby [Ms Pillai] was detained at the airport on 11.01.2015, a numbered LOC was opened by the Assistant Director of I.B., on 10.01.2015. The purpose with which the said LOC was issued, was to prevent Ms Pillai from leaving India since, she proposed to testify before the All Party Parliamentary Group (APPG) on Tribal People, comprising of British Parliamentarians, which without doubt, would have “negatively” projected the image of the Government of India.

(iii) The investigating agencies have, from time to time, issued LOCs either against persons who are involved in crime, or against those, whose activities are found to be prejudicial in national interest … she was detained, as the purpose of her visit was to depose before a formal committee of the British Parliament, with a defined motive of impacting India’s image abroad, at a time, when it was looking to attract FDI, in infrastructure and manufacturing sector.

(iv) Greenpeace International U.K. office, has taken keen interest in fomenting ground level protest via Greenpeace India, because of which at least 13 foreign activists working for Greenpeace International have been blacklisted … These protests have marred India’s energy security interest.

(v) The main objective of the foreign and Indian activists associated with Greenpeace International and Greenpeace India, is to step up agitations in coal producing regions, such as Mahan, in Singrauli district, in the State of Madhya Pradesh. For this purpose, a front, in the form of an entity by the name of, Mahan Sangharsh Samiti (MSS) was created, which is funded by Greenpeace India and that Ms Pillai has been posted there to organize the villagers.

(vi) Greenpeace India’s funding was curtailed by Ministry of Home Affairs in 2014, based on specific intelligence inputs. The inputs received show that Greenpeace India plans to “take- down” nearly 40000 MW thermal projects. These protests are funded through foreign sources.

(vii) The funding pattern of Greenpeace International is opaque, as it claims that it collected donation in small amounts from persons of different nationalities located all over the world. It is because of this reason, and its activities, that it has been placed in the proscribed list of donors under Section 46 of the FCRA; in other words, in respect of each foreign donation, Greenpeace International would have to seek permission of MHA. It is thus, placed in a category which is known as “Prior Reference Category”.

(viii) The Indian arm of Greenpeace International, i.e., Greenpeace India and Greenpeace Environment Trust, having violated Indian income tax laws, have been issued notices by the authorities under the Income Tax Act, which involve amounts equivalent to Rs. 3.8 crores.

(ix) Since, Greenpeace India’s funding had been curtailed, and prior clearance is required for donations received by Greenpeace International, Greenpeace, UK has been used to engineer protests in Mahan. As a part of this plan, in the first instance, steps were taken to garner funds and organize [Ms Pillai’s visit].

(x) APPG is headed by, one, Mr. Martin Horwood and co-chaired by a person of Indian origin, by the name of Virendra Sharma, who is the chair of APPG, on Indo-British relations. Both persons are the members of the British Parliament … As would be evident, APPG is a formal committee of a foreign Parliament. The decision of Ms Pillai to depose before such a committee, with respect to the concerns of tribal communities, in Mahan, would only damage the country’s image and consequently hamper its economic interest. Unlike other prominent civil rights activists, Ms Pillai has taken a decision to vent her ire and/or articulate her views against State policy before a Committee, comprising of British Parliamentarians; an act which can only be construed as an anti-national activity.

(xi) It has been a core foreign policy objective of countries, such as, the USA, UK and other European countries to issue annual reports, of their assessments, of specific human rights violation in other countries. In preparation of these reports, the testimonies of global NGOs and think-tank experts are recorded, including testimonies of human rights activists, originating from the country concerned. Reports, incorporating such testimonies, are prepared on religious freedom, as well as tribal and indigenous people.

(xi)(a) The United States has in place, a statute, titled as: International Religious Freedom Act, 1998, which empowers its government to impose sanctions against a Country of Particular Concerns (CPC). India has come perilously close to being declared a CPC, in the reports generated by the US Commission on International Religious Freedom and the US State Department, of April and July, 2014 respectively. These reports have in fact rated India one notch above the CPC level.

(xi)(b) Similarly, the APPGs of the British Parliament have directed their focus on tribal people since, 2012. As a matter of fact, the UK APPG report on religious freedom, issued in 2014, alleges a violation of religious freedom in India. Similarly, the European Parliaments’ Working Group Report on Religious Freedom of February, 2014, places India in the lowest category as a CPC alongside Pakistan. Within the CPC, India has been labelled as, a serious violator of religion and belief. There are indications that UK Parliament’s APPG report will use Ms Pillai’s testimony to rate India, at a low level, exposing it to the potentiality of being governed by a sanction regime.

(xi)(e) In 2006, European Parliament has already passed six (6) resolutions against India on dalit rights and one on violence against women. The content of these resolutions is suggestive of the fact that Government of India and the Parliament of India have not been able to protect dalits and women, and therefore, a call is made to European Union to factor in these aspects in their trade negotiation with India and Indian companies. These reports are used as instruments of foreign policy to impede India’s growth prospects at a time when it is actively pursuing economic growth and development, which requires a massive flow of FDI.

(xii) The testimony of Ms Pillai, before a formal Committee of British Parliament, would have a cascading effect, globally, which would only serve the foreign policy interest of other nations.

(xii)(a) Ms Pillai’s deposition would thus, be prejudicial to “national interest”. Therefore, the LOC issued qua Ms Pillai is directed “not to limit all her freedoms but was focussed only on the proposed activity”, which involved deposition before a foreign parliament.

REASONS

10. In view of the aforesaid facts, the following issues arise for consideration:

(i) Whether the right to travel abroad is a fundamental right protected by Article 21 of the Constitution? And if so, could the violation of that right impact the freedom of speech and expression of a citizen protected under Article 19(1)(a) of the Constitution?

(ii) Whether the 2010 O.M. would constitute a “law” within the meaning of Article 13(3)(a) of the Constitution?

(iii) Whether the issuance of an LOC qua Ms Pillai was justified in the given facts and circumstances?

(iv) Whether the consequent detention of Ms Pillai on 11.01.2015, at the airport, resulted in violation of her fundamental right, under Article 21, and 19(1)(a) of the Constitution?

ISSUE NO. (I)

11. In so far as the first issue is concerned, the answer to the same is fairly simple, in view of the law laid down by the Supreme Court, both pre and post, the enactment of the Passports Act, i.e., the 1967 Act.

11.3. As regards its view with regard to the decision rendered in Satwant Singh Sawhney case, the learned judges opined as follows:

“…. The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held by this Court in Satwant Singh’s case that ‘personal liberty’ within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law … It will be seen at once from the language of Article 21 that the protection it secures is a limited one … no person can be deprived of his right to, go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports, Act, 1967 that is lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so …”

11.4. Having regard to the above, it is quite clear, that it can no longer be argued that the right to travel abroad is not a fundamental right. It is, as a matter of fact, a second generation right which flows from the right to life and personal liberty conferred on the citizens, under Article 21, which can be taken away only by procedure, as established in law. While, it may be true that the right to go abroad is not included the right to freedom of speech and expression-in some cases, the curtailment of right to travel abroad could impact, a citizen’s right of free speech and expression.

ISSUE No. (II), (III) and (IV)

12.6. The stand of the respondents that they had prevented Ms Pillai from leaving the country as she intended to testify before an APPG of British Parliamentarians, which in turn, would have “negatively” impacted the image of India-in my view, is a stand, which is completely untenable.

12.7. The reasons for the same are as follows: First and foremost, Ms Pillai has clearly contested this attribution vis-a-vis her, which is that, she intended to testify before a formal Committee of British Parliamentarians.

12.8. This conversation, Ms Pillai says she needed to have with the British Parliamentarians, so that they could call upon Essar Energy, a British company, having a major financial stake in Mahan Coal Ltd., to fall in line with the legal regime of our country.

12.9. There is nothing on record to show that Ms Pillai intended to do anything more than this. The argument of the respondents that Greenpeace U.K. and Greenpeace International were fomenting protests in the country with respect to various public projects, especially, in the field of thermal and nuclear power generation, is not backed with actionable material.

12.10. [The] alleged violation of tax laws, which I am informed is contested, would not, in my opinion by itself, be demonstrative of the fact that the activities carried out by Greenpeace India, via its employees, agents and servants, is inimical to the economic interest of the country.

12.11. The sense that I get, upon perusal of the stand taken by the respondents in their pleadings, is that, they do not approve of the view expressed by civil right activists, in forums outside the country, which tend to portray, according to them, an inaccurate picture of the state of human rights in the country. In other words, the respondents are concerned by the fact that such portrayal generates an atmosphere, which retards investment of foreign funds, in vital infrastructural projects.

13. Whether this concern of the respondents is valid or not, in my opinion, is not the issue … The advancement in knowledge base, and the ability of common citizen to access information vis-a-vis public projects, has only made dissent more strident and vigorous. Whether one model of development has to be rolled out as against the other, is an on-going debate. This debate impinges upon all kinds of developmental projects, which includes project, such as, mining, setting up of nuclear plants, construction of roads through forests, acquisition of land for housing projects/industries, construction of highways, roads, dams and bridges etc.-none of which have stopped if, the executive of the day, is convinced of their need and necessity.

13.1. The mere fact that such debates obtain, or such debates metamorphose into peaceful protests, cannot be the reason for curtailing a citizen’s fundamental rights. In this case, Ms Pillai’s right to travel abroad and interact with relevant stake holders (i.e., the British Parliamentarians), to persuade them, to have entities incorporated in their country, to fall in line, with the developmental ethos, which is close to her ideology and belief, cannot be impeded only because it is not in sync with policy perspective of the executive.

13.2. Ms Pillai, as the facts in this case would reveal, believes that the rights of tribal communities residing in Mahan would get impacted if, a coal mine, were to be opened in that area. This, is a view, which the executive may or may not agree with. That by itself, cannot be a reason to prevent Ms Pillai from exercising her fundamental right to travel abroad and, thereby, in effect, disable her from expressing her views on the subject.

13.5. The core aspect of democracy is the freedom of an individual to be able to freely operate, within the framework of the laws enacted by the Parliament. The individual should be able to order his or her life any way he or she pleases, as long as it is not violative of the law or constitutes an infraction of any order or direction of a duly constituted court, tribunal or any statutory authority for that matter. Amongst the varied freedoms conferred on an individual (i.e., the citizen), is the right of free speech and expression, which necessarily includes the right to criticise and dissent. Criticism, by an individual, may not be palatable; even so, it cannot be muzzled. Many civil right activists believe that they have the right, as citizens, to bring to the notice of the State the incongruity in the developmental policies of the State. The State may not accept the views of the civil right activists, but that by itself, cannot be a good enough reason to do away with dissent.

13.8. Therefore, .. in my view, there was no basis for the respondents to issue an LOC qua the petitioner. That being so, the decision taken to detain the petitioner at the airport on 11.01.2015, in my opinion, was illegal being violative of the Ms Pillai’s right under Article 21 and 19(1)(a) of the Constitution.

15.1. It was therefore asserted before me that Ms. Pillai could be categorized as an “anti-national element” in the larger national interest. According to Mr. Jain, since the intended activity of Ms Pillai had the potentiality of degrading the image of India in the eyes of foreign nations, leading to a regression in the country’s economic activities and endeavours, her journey out of the country could legitimately be interdicted to prevent her from espousing views which were against national interest or, in other words, views which impinged upon the security of the State.

15.2. The difficulty in accepting this argument is three-fold. First, reasonable restrictions spoken of in clause (2) of Article 19 do not advert to anti-national activities.

15.3. [There] may be disparate views amongst persons who form the nation. The diversity of views may relate to, not only, the static symbols, such as, the National Flag and National anthem, etc. but may also pertain to the tradition and heritage of the Nation and the manner in which they are to be taken forward. Contrarian views held by a section of people on these aspects cannot be used to describe such section or class of people as anti-national.

15.4. For anti-national activities to be brought within the limitation of clause (2) of Article 19, it would have to have a close nexus with the security of the State.

15.5. [The] action of the respondents, in issuing an LOC qua Ms. Pillai with the object of preventing her from propagating and disseminating her views on developmental activities in the Mahan coal block area, cannot be construed as a reasonable restriction, which would pass muster of the provisions of clause (2) of Article 19 of the Constitution. That the right to freedom of speech and expression includes the right to propagate ones views, which cannot be stifled or impeded, except on grounds alluded to in clause (2) of Article 19, is a constitutional principle recognized by our courts in a long line of judgments19. It is a right so well entrenched in our Constitution that, it cannot be dislodged, at this point in time of our nation’s history.

15.6. Second, even if I were to accept that respondents could have issued an LOC for the stated purpose, by sourcing its power under clause 8(j) of 2010 O.M., the exercise of the power in Ms Pillai’s case was fatally flawed. A plain reading of clause 8(j) would show that the expression “anti-national” takes colour from the preceding term and/or expressions found in clause 8(j). The clause by itself shows that it is a power which is exercisable by the State in exceptional cases, where it is entitled to side-step even the guidelines and parameters laid down in the O.M. itself. The power vested on respondents being rare and exceptional it, necessarily, is required to be confined to persons falling in specific categories, such as counter intelligence suspects, terrorists, and anti-national elements. The expression anti-national is followed by the abbreviated form of the word etcetera. Therefore, quite clearly the word anti-national, contextually can only take colour from the words preceding it. To rule otherwise would result in allowing for a situation where any and every activity could be brought within the purview of clause 8(j). This being an exceptional power conferred on the State, which is to be exercised in the larger national interest, it cannot be given a meaning wider than the purpose for which the power is vested in the State functionaries.

15.7. Therefore, to my mind, a person falling in the category of an anti-national element, in the absence of any other guideline contained in the 2010 O.M., can only be that person, who projects, a present and imminent danger to the national interest. Travelling abroad and espousing views, without any criminal intent of the kind adverted to above, cannot, in my opinion, put Ms Pillai in the category of an anti- national element.

15.8. Third, what inhibits me from accepting the submission advanced on behalf of the ASG, is that, if the view advanced on behalf of the respondents is accepted, it would result in conferring un-canalised and arbitrary power in the executive, which could, based on its subjective view, portray any activity as anti- national. Such a situation, in a truly democratic country, which is governed by rule of law, is best avoided.

15.10. In my view, monitoring and regulation of funds received by Greenpeace International by itself cannot lead to any conclusion, at least at this stage, of alleged illegality having been committed by the said organization. Therefore, one cannot conclude that Greenpeace India has committed any illegality. Thus the attempt to inveigle Ms Pillai, in the illegality argument, via this route, must fail.

16. Respondent no. 2 shall expunge the endorsement “off-load” made on Ms Pillai’s passport. Furthermore, respondents shall also remove Ms Pillai’s name from the “data base” maintained by them, pertaining to those individuals, who are not allowed to leave the country.

17. The writ petition and the pending application are disposed of in the aforementioned terms. The costs will follow the result of the petition.

Full Citation: Arnesh Kumar Vs. State of Bihar, (2014)8SCC273

1. The Petitioner apprehends his arrest in a case Under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as Indian Penal Code) and Section 4 of the Dowry Prohibition Act, 1961.

2. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition.

3. Leave granted.

4. In sum and substance, allegation levelled by the wife against the Appellant is that demand of Rupees eight lacs, a maruti car, an air- conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the Appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to non-fulfilment of the demand of dowry.

5. Denying these allegations, the Appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.

6. The rate of charge-sheeting in cases Under Section 498A, Indian Penal Code is as high as 93.6%, while the conviction rate is only 15% … As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

7. Arrest brings humiliation, curtails freedom and casts scars forever … The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result.

8. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Code of Criminal Procedure which is relevant for the purpose reads as follows:

41. When police may arrest without warrant.-
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –
(a) x x x x x x

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:

(i) x x x x x

(ii) the police officer is satisfied that such arrest is necessary –

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making
such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this Sub-section, record the reasons in writing for not making the arrest.

9. An accused arrested without warrant by the police has the constitutional right Under Article 22(2) of the Constitution of India and Section 57, Code of Criminal Procedure to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours … During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power Under Section 167 Code of Criminal Procedure … when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest Under Section 41 Code of Criminal Procedure has been satisfied and it is only thereafter that he will authorise the detention of an accused.

10. Another provision i.e. Section 41A Code of Criminal Procedure aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised.

11. Aforesaid provision makes it clear that in all cases where the arrest of a person is not required Under Section 41(1), Code of Criminal Procedure, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged Under Section 41 Code of Criminal Procedure has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.

12. We are of the opinion that if the provisions of Section 41, Code of Criminal Procedure which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce.

13. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

(1) All the State Governments to instruct its police officers not to automatically arrest when a case Under Section 498-A of the Indian Penal Code is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Code of Criminal Procedure;

(2) All police officers be provided with a checklist containing specified sub-clauses Under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Code of Criminal Procedure be served on the accused within two weeks from the date of institution of the case, which may be extended
by the Superintendent of Police of the District for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

14. We hasten to add that the directions aforesaid shall not only apply to the cases Under Section 498-A of the Indian Penal Code or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

15. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.

16. By order dated 31st of October, 2013, this Court had granted provisional bail to the Appellant on certain conditions. We make this order absolute.

17. In the result, we allow this appeal, making our aforesaid order dated 31st October, 2013 absolute; with the directions aforesaid.

Full Citation: Kusum Narottam Harsora Vs. Union of India; Writ Petition No. 300 of 2013

1. By this petition under Article 226 of the Constitution, the petitioners sister and mother of P.N.H. (respondent no. 1 in complaint before the Magistrate’s Court) have challenged the constitutional validity of the provisions of section2(q)of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the DV Act”).

2. The petitioners had earlier filed Misc. Case No. 31/M of 2007 in the Court of Metropolitan Magistrate, 18th Court at Girgaum, Mumbai against Mr.PNH (respondent no. 1 in the complaint), his wife H. (respondent no. 2 in the complaint) and his two sisters A and C (respondent nos.3 and 4 in the complaint). The petitioners will now be referred to by their status in the original complaint. The case was filed under the provisions of the DV Act on 3 April 2007 praying for various reliefs for dealing with the respondents in accordance with law and to direct the respondents to pay damages to the tune of Rs. 5,55,00,000/- under section20 of the DV Act and monetary compensation to the extent of Rs. 5,00,00,000/- under section 22 of the DV Act. The complaint was filed on the basis that respondent no. 1 in the complaint had caused and was causing physical abuse, verbal and emotional abuse and economic abuse as defined under section 3 of the DV Act. The petitioners alleged that there was domestic relationship between the parties as the petitioners are related to respondent nos.1, 3 and 4 by consanguinity and that respondent no. 2 being wife of respondent no. 1, they are all family members who were living together in a shared household and were also living with respondent nos.1, 2 and 3 in a shared household as a joint family. It appears that the petitioners thereafter prayed for permission to withdraw the said case on the ground that several relevant material facts were not properly stated or mentioned in the complaint and that therefore the petitioners be allowed to withdraw the complaint with liberty to file a fresh complaint on the same facts and cause of action. The said application for withdrawal filed on 27 June 2007 was allowed to be withdrawn by the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Mumbai, with liberty as prayed for.

3. It appears that thereafter there were attempts between the parties for settlement of their disputes and since those efforts did not fructify, the petitioners filed two separate cases against the same four respondents praying for substantially same reliefs, but for higher monetary reliefs under section 20 of the DV Act and for higher compensation amount under section 22 of the DV Act.

4. On 11 February 2011, applications were filed by the Respondents in the complaint seeking discharge on the ground that the petitioners being mother and sister do not fall within the definition of “aggrieved person” and that only a wife or a female partner in a marital relationship can invoke the provisions of the DV Act. By an order dated 5 January 2012, the learned Metropolitan Magistrate rejected the application for discharge and, therefore, respondent nos.2, 3 and 4 being lady members of the family filed Criminal Writ Petition Nos. 187 and 188 of 2012 challenging the above order dated 5 January 2012 essentially contending that no case can be filed under the DV Act against female relatives of respondent no. 1. The criminal writ petitions came to be disposed of by a learned Single Judge of this Court by judgment and order dated 15 February 2012. The learned Single Judge allowed the criminal writ petitions to the extent of discharging respondent nos.2, 3 and 4 from the proceedings filed by the petitioners under the DV Act and allowed only the proceedings against respondent no. 1 PNH to continue. It appears that the judgment was based on the concession made by the learned counsel for the respondents in the said criminal writ petitions, who are petitioners in this writ petition, that in view of definition of the term “respondent” in section 2(q) of the DV Act, the proceedings under the DV Act cannot be initiated against female relatives.

5. As regards the case against PNH (respondent no. 1 in the complaint), the learned Single Judge recorded that it was conceded on behalf of PNH that complaint could be filed against him, but on merits it was sought to be contended that the allegations were for the period prior to coming into force of the DV Act and, therefore, the complaint was not maintainable. It was further contended that the alleged act did not fall within the meaning of domestic violence and, therefore, he was also required to be discharged. The learned Single Judge, however, did not accept the said contentions and held that proof of such allegations is a question to be decided at the stage of trial in the Court of the Metropolitan Magistrate and such threadbare analysis of allegations was not warranted at the stage of discharge. The learned Single judge accordingly disposed of the criminal writ petitions by directing discharge of present respondent nos.3, 4 and 5 (Respondent nos.2, 3 and 4 in the complaint) from the proceedings under the DV Act initiated by the present petitioners.

6. In view of the above judgment, the petitioners have filed the present petition challenging the constitutional validity of provisions of section 2(q) of the DV Act.

7. In response to the notice issued by this Court, the Union of India has appeared and filed affidavit in reply dated 20 February 2014. It is stated in the reply affidavit that the provisions of section 2(q) of the DV Act do not restrict the definition of “respondent” to adult male partners and that the proviso thereto permits relatives of the husband or male partner to be joined as respondents. The affidavit further states that all women are covered under the DV Act and any woman, who is living in a domestic relationship with the perpetrator can file a case for reliefs under the DV Act.

9. The petitioners appearing as parties in person have submitted that when maintainability of the complaint against PNH (respondent no. 1 in the complaint) is not disputed, the maintainability of complaint against his relatives cannot be challenged because the cause of action against all the parties is a common cause of action as they are acting in concert to harass the petitioners. It is stated that both the petitioners had initially filed a joint complaint but subsequently they were advised to withdraw the same to file a fresh complaint which were filed by the petitioners separately. The petitioners have now preferred to have both the complaints tried jointly and, therefore, they may be permitted to proceed with the trial of the original complaint filed in the year 2007 and the subsequent complaint may be read as further pleading in the original complaint.

10. It is submitted by the petitioners that since the complaint against PNH is maintainable, it would be discriminatory to deny the petitioners remedies against the wife of PNH and sisters of PNH, who are relatives of PNH by marriage/consanguinity and in a domestic relationship with the petitioners and who are instigating PNH to harass the petitioners and they are themselves also harassing the petitioners.

11. Learned counsel for the private respondents has submitted that the complaint could be filed under the DV Act by a married woman against her husband and husband’s relatives, but in the instant case, PNH is not the husband of any of the petitioners (complainants).

12. At the hearing of this writ petition, our attention has been invited to the decision in the case of Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade and Ors. MANU/SC/0081/2011
: 2011-Cri.L.J.- 1687decided by the Supreme Court on 31 January 2011 taking taking the view that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the DV Act. … The Supreme Court thus made it clear that no restrictive meaning has been given to the word “relative”.

13. Our attention has been invited by learned counsel for the Government of India to the decision of the Delhi High Court in Kusum Lata Sharma vs. State (Government of NCT of Delhi) and Ors in Criminal M.C.No. 725 of 2011 dated 2 September 2011 laying down that mother-in- law is also entitled to file a complaint against daughter-in-law under the provisions of the DV Act.

14. Learned counsel for the Union of India submits that, in view of the aforesaid judgment of the Delhi High Court, … it is open to a mother-in-law to file a complaint against her son as well as against her daughter-in-law and other relatives of the son, including his sisters, i.e. daughters of the complainant.

15. Learned counsel for the private respondents submitted that respondent no. 4 in the complaint Mrs. CBD was married 30 years back and is living separately in a separate household and only occasionally visits the house of respondent no. 1 and, therefore, it cannot be said that respondent no. 5 is living as a member of the joint family.

17. The learned counsel for the private respondents would contend that the definition of “domestic violence” is aimed at acts of physical abuse, sexual abuse, verbal and emotional abuse and economic abuse which generally husband is accused of committing and, therefore, the definition of “respondent” in proviso to section 2(q) should not be interpreted as including any relatives of son or brother.

18. Though the provisions of section 3 may prima facie indicate that most of the acts of domestic violence referred to in section 3 may be committed by a husband, the expression “domestic violence” is very widely defined in section 3 and acts of violence could be committed by any person in domestic relationship with the complainant when the abuser and complainant the and who are living together. Such acts of domestic violence could also be committed by a sister or a daughter of the complainant.

22. Similarly, since petitioner no. 1 has made allegations that all the four respondents in the complaint i.e. brother, brother’s wife and two sisters, are acting jointly, there is no reason why the definition of “respondent” should be interpreted in such a manner that a sister cannot file a complaint against her brother, who is an adult male person in domestic relationship with the complainant and against wife of such male person and against other relatives of male person.

23. Of course, the interpretation canvassed by the private female respondents is that as per definition of “respondent” in section 2(q), a complaint could be filed against a male or female relative only of the husband or male or female relative only of “the male partner” and that the expression “male partner” would mean “male partner of a female living in a relationship in the nature of a marriage”. However, such restricted definition of “respondent” would be inconsistent with the wide definition of “aggrieved person”; “domestic relationship”; and “shared household.”

26. [We] are inclined to hold that … the provisions of “respondent” in section 2(q) of the DV Act is not to be read in isolation but has to be read as a part of the scheme of the DV Act, and particularly along with the definitions of “aggrieved person”, “domestic relationship” and “shared household” in clauses (a), (f) and (s) of section 2 of the DV Act. If so read, the complaint alleging acts of domestic violence is maintainable not only against an adult male person who is son or brother, who is or has been in a domestic relationship with the aggrieved complainant- mother or sister, but the complaint can also be filed against a relative of the son or brother including wife of the son / wife of the brother and sisters of the male respondent.

28. The writ petition is accordingly allowed in the above terms.

Full Citation: Navneet Arora vs. Surender Kaur, 2015(3)JCC2009

1. Late Sh. Harpal Singh Arora was the registered owner of property bearing municipal No. B- 44, Vishal Enclave Rajouri Garden, New Delhi. He acquired ownership under a perpetual lease dated June 07, 1974 executed in his favour by the Municipal Corporation of Delhi. When he purchased the property on perpetual lease-hold basis, it consisted of only the ground floor. He constructed two floors above and sold them during his lifetime. He lived in the ground floor with his family comprising his wife Ms. Surinder Kaur and two sons named Raman Pal Singh and Gurpreet Singh and a daughter Sherry, who upon her marriage left the house.

2. Gurpreet Singh was married to Navneet Arora on May 15, 2001 and out of the wedlock a daughter was born to the couple on March 17, 2008. On a date not disclosed, Raman Pal Singh got married to Ms. Neetu. The family comprising Harpal Singh Arora, his wife Surinder Kaur, two sons Gurpreet Singh and Raman Pal Singh together with their wives resided together as one family, with one kitchen, on the ground floor of B-44, Vishal Enclave.

3. Harpal Singh died intestate on June 01, 2008 and was survived by his wife, two sons and daughter as the legal heirs. Each one inherited one forth share in the said property and other assets of the deceased Harpal Singh. On June 13, 2008 the three siblings executed a relinquishment deed in favour of their mother and thus in the official records Surinder Kaur became the owner of the property.

4. Tragedy struck the family when Gurpreet Singh died on May 20, 2012. Unfortunately, difference cropped between Surinder Kaur and her daughter-in-law Navneet Arora wife of Gurpreet Singh. Navneet Arora and her daughter were occupying one out of the three bed rooms on the ground floor. One room was occupied by Raman Pal Singh and Neetu Arora. The third by Surinder Kaur.

5. Surinder Kaur filed a suit for permanent and mandatory injunction against Navneet Arora, Raman Pal Singh and his wife Neetu Arora. It related to the ground floor.

6. As was to be expected, Raman Pal Singh and Neetu Arora, obviously collusively, informed the Court that they would move out of the room occupied by them, but we take on record the fact that the two continue to reside on the ground floor of the property.

7. Navneet Arora filed a written statement pointing out that she had filed a civil suit registered as number 203/2013 challenging the relinquishment deed executed by her husband in favour of Surinder Kaur which was pending before the Civil Judge, Tis Hazari Courts, Delhi. She pleaded that on the death of her husband his share would devolve upon her and her daughter and since the relinquishment deed was questioned by her, the suit filed by Surinder Kaur should await the decision in the suit filed by her. She claimed that she was living in her matrimonial house in her own right.

8. The learned Single Judge has held, vide impugned order dated March 21, 2014, that since Surinder was the owner of the property, it would not be a ‘shared household’ of in view of the law declared by the Supreme Court in the decision reported as MANU/SC/0007/2007 : (2007) 3 SCC 169 S.R. Batra & Anr. vs. Taruna Batra. The learned Single Judge has noted a few other decisions wherein it was held that an estranged daughter-in- law has no right to stay in the property owned by either her mother-in-law or her father-in-law. The learned Single Judge has held that at the old age of 60 Surinder Kaur would be entitled to a peaceful life.

11. Pithily stated, the question arising for the consideration of this Court revolves around the interpretation of the term ‘shared household’ as envisaged under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 and if the present case stands squarely covered by the authoritative pronouncement of the Supreme Court of India reported as MANU/SC/0007/2007 : (2007) 3 SCC 169 S.R. Batra & Anr. v. Taruna Batra (Smt.).

12. Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 reads as under:-

“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.”

14. Since Ms. Surinder Kaur has planked her submissions on the decision of the Supreme Court in Taruna Batra’s case (Supra) and we find that the conclusion expressed by the learned Single Judge in the impugned order is also essentially premised on the said decision, it would therefore be incumbent upon us to carefully examine the dictum in Taruna Batra’s case (Supra) with a view to ascertain the factual conspectus and the issues which fell for consideration of the Supreme Court, in order to appreciate the observations contained in the said judgment.

15. A microscopic analysis of the said decision would reveal that Ms. Taruna Batra was married to the son of S.R. Batra and his wife on April 14, 2000. After the marriage the couple started residing together as husband and wife at second floor, B-135, Ashok Vihar, Phase-I, Delhi. It was not in dispute that the said property exclusively belonged to S.R. Batra’s wife i.e. the mother-in-law of Taruna Batra. It would be pertinent to note that S.R. Batra and his wife resided separately on the ground floor of the said property. It was an admitted position that Ms. Taruna Batra had shifted to the residence of her parents owing to matrimonial acrimony with her husband. It was only much later that she sought to re-enter the suit property only to find a lock at the main entrance. In wake of such attending circumstances, she filed a suit seeking mandatory injunction to enable her to enter the house. It was the case of S.R. Batra and his wife before the Supreme Court and the Courts below that before any order came to be passed in the said suit, Ms. Taruna Batra along with her parents forcibly broke open the locks of the suit property. It was also contended by S.R. Batra and his wife that their son-Amit Batra, the husband of Taruna Batra, had shifted to his own flat at Mohan Nagar, Ghaziabad before the litigation between the parties had ensued.

16. Perusal of the judgment further reveals that the learned Trial Judge vide order dated March 04, 2003, had held that Ms. Taruna Batra was in possession of the suit property and consequently granted temporary injunction in her favour. The said order of the learned Trial Judge was assailed in appeal before the learned Senior Civil Judge, Delhi, who vide order dated September 17, 2004 held that Ms. Taruna Batra was not residing in the second floor of the suit premises and also observed that her husband-Amit Batra was not living in the suit property, therefore, the matrimonial home could not be said to be a place where only the wife was residing. Laying a challenge to the order of the Appellate Court, Ms. Taruna Batra invoked the supervisory jurisdiction of this Court by filing a petition under Article 227 of Constitution of India. The learned Single Judge of this Court was pleased to hold that the second floor of the suit property was the matrimonial home of Ms. Taruna Batra and the fact that her husband shifted to Ghaziabad later would not make Ghaziabad the matrimonial home.

17. The Supreme Court after taking into consideration the factual matrix highlighted above, was pleased to observe in paragraph 21 of its judgment that this Court fell in error by interfering with the findings of the learned Senior Civil Judge who had categorically held that Ms. Taruna Batra was not residing in the suit premises. The Supreme Court was of the considered view that findings of fact rendered by Courts below could not be upset in exercise of jurisdiction under Article226 and 227 of the Constitution.

18. We may notice that the provisions of Protection of Women from Domestic Violence Act, 2005 were not pressed into service or taken into consideration by the Courts below, for the simple reason that the said Act was not enacted at the relevant point of time. However, at the stage of arguments before the Supreme Court the said Act was in force and consequently the learned Senior Counsel appearing on behalf of Ms. Taruna Batra invited the attention of the Supreme Court to the provisions of the said Act, in order to contend that the definition of the ‘shared household’ in terms of Section 2(s) of the said Act includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship.

23. In paragraph 29 of the judgment the Supreme Court adverted their consideration to Section 17(1) of the Act and opined that the wife would only be entitled to claim a right of 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 Court proceeded to observe that the property in question neither belonged to the husband nor was it taken on rent by him and neither was the said property a joint family property of which the husband was a member. The said property was exclusively owned by the mother-in-law of Ms. Taruna Batra and thus could not be treated as a ‘shared household’.

27. As highlighted earlier, while deciding Taruna Batra’s case (Supra) the Supreme Court took into consideration the fact that after the marriage Ms. Taruna Batra and her husband-Amit Batra started living at the second floor of the suit premises, whereas the in-laws resided separately on the ground floor of the suit property. In view of the said state of affairs, it is palpably evident that Ms. Taruna Batra and her husband were not living together with Ms. Taruna Batra’s in-laws, as members of ‘joint family’ in the legal-sense and the second floor of the suit-property would not qualify as the ‘shared household’ in terms of Section 2(s) of the Act. The fact that the husband and wife resided on a separate floor altogether is indicative of the fact that they were not living as a ‘joint family’ with the in-laws of Ms. Taruna Batra.

28. It is a settled proposition that to constitute a ‘joint family’ the members thereof must not only reside together but partake meals prepared from a common kitchen, whereas it appears from the perusal of the judgment rendered in Taruna Batra’s case (Supra) that there was nothing to indicate that the kitchen was common.

38. It thus bears no reiteration that in Taruna Batra’s case (Supra), Ms. Taruna Batra and her husband-Amit Batra were not residing with the Appellants as members of ‘joint family’ in a ‘shared household’ as understood in the legalistic sense, the residence and kitchen being separate.

39. Thus, Ms. Taruna Batra could not derive any benefit from the provisions of the Protection of Women from Domestic Violence Act, 2005 as she or her husband, either singly or jointly, had no right, title, interest or equity in the second floor of the suit property and neither was the couple residing as members of ‘Joint Family’ with her in-laws and her mother-in-law was the exclusive owner of the suit property.

44. However, in the later eventuality, if a couple live as members of ‘joint family’ in a domestic relationship with the relatives of the husband in a premises owned by such relatives of the husband, statutory prescription would indeed enable the wife to claim ‘right of residence’ since it would fall within the realm of ‘shared household’ as contemplated under Section 2(s) of the Act irrespective of whether she or her husband has any right, title or interest in the ‘shared household’.

45. We may notice that Section 19(1)(a) of the Act clears the cloud, if any, as it mandates in unequivocal terms that a Magistrate disposing an application under sub-Section (1) of Section 12, may, on being satisfied that domestic violence has taken place, pass a residence order 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’.

58. On the first blush it may appear quite jarring to certain quarters of the society that by enacting the Protection of Women from Domestic Violence Act, 2005 the legislature has invested a ‘right of residence’ in favour of wives qua premises in which they or their husband admittedly have no right, title or interest and such premises are in fact owned by the relatives of the husband.

59. 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 provision to Section 19(1) that whilst 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.

60. 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.

61. 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.

84. With a view foster better understanding of the legislation, cognizance may be taken of the attending circumstances in wake of which the legislation was enacted. The Statement of Object and Reasons accompanying the Bill and the parliamentary debates that ensued on the floor of the House provide valuable insights and bring to fore the circumstances engulfing our nation which necessitated the legislation.

93. [The] said Bill was introduced by Smt. Kanti Singh, the then Minister of State in the Ministry of Human Resource Development and it would be noteworthy to extract certain introductory remarks of her address to the Lok Sabha on 23.08.2005.

95. Attention of the members of the House was drawn to the fact that the Bill would cover relationships not merely restricted to matrimony but also take within its fold relations in the nature of marriage, consanguinity, adoption and family members living together as joint family.

97. A perusal of the debates palpably reveals that there was consensus across the party lines that the position of women in our society was unfortunately subservient and they were living in deplorable conditions. Independence had been attained from the foreign rulers, yet no efforts were made to strengthen democracy in the household.

99. Cognizance was also taken by the Parliament of the fact that women suffer immense hardships when they are thrown out of their marital home in middle of the night. In most cases, the victim suffers the pain and humiliation mutely for the fear of being rendered homeless.

100. Thus, we find that one of the crucial entitlements assured to the women under the said Bill was the right of residence i.e. the right not to be dispossessed from her marital home. However, owing to the wider scope of applicability of the Act the word ‘shared household’ has been employed and not ‘matrimonial household’.

101. Economic dependence of women on their husbands increases the vulnerability of women, who continue to be in violent relationships for fear of dispossession and destitution. The fear of being rendered shelterless is overwhelming, particularly for women in the urban setting, where housing is expensive and beyond the access of ordinary middle and low income groups.

115. The Bombay High Court, in its decision reported as II MANU/MH/0385/2011 : (2011) DMC 250Ishpal Singh Kahai v. Ramanjeet Kahai, while dealing with a case under the Protection of Women from Domestic Violence Act, 2005, was pleased to observe that it is not material to consider in whose name the matrimonial home stands…[The Court also] took into consideration various provisions of the Act, including Section 2(s), Section 17 and Section 19(1)(a) of the said Act to conclude that there was no place for proprietary rights in the scheme of Domestic Violence Act as it was an extension of the deeper and profounder principle of women’s right as a concomitants of human rights. The Court lodged a caveat that the Domestic Violence Act provided essentially a temporary remedy in the form of residence orders and such orders did not in any manner confer proprietary rights in the matrimonial home but merely protected occupation/possession.

116. We may however allay fears that if a couple lives with the relatives of the husband for a short duration as mere ‘guests/visitors’, in such an eventuality the fact that they live under the same roof and partake meals from the same kitchen along with the relatives of the husband (who own the premises and have extended their hospitality), would not be construed to imply that the couple lived as members of ‘joint family’, entitling the wife to claim a ‘right of residence’ therein.

118. A ‘guest or a visitor’ enjoys hospitality by partaking meals with the ‘family’ of the ‘host’ that are prepared from a ‘common kitchen’ and may with the consent of the ‘host’ also live in the same ‘household’ for a short-duration. However, such a ‘guest or visitor’ does not get subsumed as part of the ‘family’ of the ‘host’ in the legal sense as understood in the Protection of Women from the Domestic Violence Act, 2005 so as to constitute a ‘joint family’ and render such premises a ‘shared household’ for the purpose of the Act. Such a ‘guest or a visitor’ does not habitually reside in the household of the ‘host’ and this lack of continuity/permanence snaps the possibility of any legal obligation arising under law.

119. Reverting back to the facts of the instant case, before married Gurpreet Singh, he was living as one family with his parents Harpal Singh and Surinder Kaur. His brother Raman Pal Singh and his sister Sherry were also residing in the same house. The kitchen was one. The two sons and their father were joint in business and the kitchen used to be run from the income of the joint business. They were all living on the ground floor. Sherry got married and left the house. Navneet married Gurpreet. Raman Pal married Neetu. The two daughter-in- laws joined the company not only of their husbands but even of their in-laws in the same joint family house i.e. the ground floor of B-44, Vishal Enclave, Rajouri Garden, New Delhi. All lived in commensality. Navneet never left the joint family house. She was residing in the house when her husband died. She continued to reside there even till today. Under the circumstances her right to residence in the suit property cannot be denied, and as regards issues of title, we have already observed that the right of residence under the Protection of Women from Domestic Violence Act, 2005, the same would have no bearing. She may enforce it in civil proceedings. But her right of residence in the shared household cannot be negated.

120. We allow the appeal and set aside the impugned order dated March 21, 2014.

Full Citation: Juveria Abdul Majid Patni Vs.
 Atif Iqbal Mansoori, (2014)10SCC736

3. The case of the Appellant is that she got married to 1st Respondent according to Muslim rites and rituals on 13th May 2005. 1st Respondent was in the habit of harassing her. … For example, 1st Respondent acted with cruelty, harassed her and had banged her against a wall on her back and stomach on 5th January, 2006, due to which she suffered severe low back pain. The 1st Respondent refused her entry into the matrimonial house on 19th February, 2006 and asked her to stay with her parents. She delivered a baby boy at Breach Candy Hospital, Mumbai on 10th August, 2006 but the 1st Respondent never visited to see the new born baby. Later, the 1st Respondent filed a petition seeking custody of the minor child.

4. The Appellant lodged FIR No. 224 of 2007 on 6th September, 2007 before Agripada Police Station Under Section 498A, and 406 Indian Penal Code against the 1st Respondent, his mother and his sister. Against the same, a writ petition was filed by the 1st Respondent bearing Writ Petition No. 1961 of 2007 seeking quashing of the FIR. The High Court dismissed the said writ petition and the same was challenged by the 1st Respondent on which this Court issued notice. Subsequently, this Court by order dated July, 2008 remitted the matter to the High Court for hearing afresh Writ Petition No. 1961 of 2007. On 4th December, 2008, Writ Petition No. 1961 of 2007 was partly allowed by the High Court quashing the FIR against the 1st Respondent’s mother and sister with the observation that the prima facie case Under Section 498A was made out against the 1st Respondent.

5. According to the Appellant, she obtained an ex parte ‘Khula’ from Mufti under the Muslim Personal Law on 9th May, 2008. The 1st Respondent challenged the ‘Khula’ pronounced by-Mufti before the Family Court, Bandra vide M.J. Petition No. B-175 of 2008. He also filed a petition for restitution of conjugal right.

6. On 29th September, 2009, the Appellant filed a petition Under Section 12 of the Domestic Violence Act, 2005 against the 1st Respondent before the ACMM’s 46th Court, Mazgaon, Mumbai for relief Under Section18 to 23 of the Domestic Violence Act, 2005 alleging that he is not providing maintenance for herself as well as for the minor child. The 1st Respondent filed his reply to the said application which was followed by the rejoinder filed by the Appellant. The Protection Officer appointed by the Magistrate under Domestic Violence Act, 2005 filed his report, inter alia, stating that an act of domestic violence was committed by the 1st Respondent upon the Appellant. But the Magistrate was transferred, the Court fell vacant and no order was passed. Subsequently, the Appellant filed an application for interim maintenance and the Magistrate by order dated 4th February, 2012 allowed the application directing the 1st Respondent to pay interim maintenance of Rs. 25,000/-. Without paying the maintenance, the 1st Respondent preferred an appeal before the Sessions Court challenging the order of Magistrate dated 4th February, 2012. The Sessions Court, Sewree, Mumbai by order dated 3rd August, 2 012 condoned the delay in preferring the appeal and directed the 1st Respondent to deposit the entire amount of maintenance prior to the hearing of the appeal. As the 1st Respondent did not deposit the amount, the Appellant filed an application for issuance of distress warrant. Accordingly a notice was issued on 1st September, 2012. The counsel for the Respondent stated across the bar that the 1st Respondent had deposited the money before the Sessions Court and filed two applications on 3rd September, 2 012 for recalling the order dated 4th February, 2012 and for dismissal of the application on the ground that the domestic relationship did not exist between the Appellant and the 1st Respondent.

7. The Sessions Judge, Seweree, Mumbai by order dated 3rd November, 2012 observed and held as follows:

“… I am coming to a conclusion that as prima facie the application is itself not maintainable so applicant has no prima facie case and therefore, I told that impugned order is liable to be set aside straight away.”

The Sessions Judge by the aforesaid judgment allowed the appeal and set aside the interim order dated 4thFebruary, 2012 passed by the Additional Chief Metropolitan Magistrate, 46th Court at Mazgaon, Mumbai. By the impugned judgment, the High Court affirmed the aforesaid order.

8. Before this Court the parties have taken similar pleas as taken before lower courts. According to the Appellant the cause of action i.e. domestic violence took place much before the divorce, therefore, FIR was filed and hence the Appellant is entitled for the relief under the Domestic Violence Act, 2005.

9. On the other hand, according to the counsel for the 1st Respondent after dissolution of the marriage no relief can be granted under the Domestic Violence Act, 2005. In his support reliance was placed on the decision of this Court in Inderjit Singh Grewal v. State of Punjab and Anr. MANU/SC/0988/2011 : (2011) 12 SCC 588.

10. The questions arise for our consideration are:

(i) Whether divorce of the Appellant and the 1st Respondent has taken place on 9th May, 2008; and

(ii) Whether a divorced woman can seek for reliefs against her ex-husband Under Sections 18 to 23 of the Domestic Violence Act, 2005.

12. The Appellant had taken plea that she obtained an ex parte ‘Khula’ from Mufti under the Muslim Personal Law. But the 1st Respondent has not accepted the same and has challenged the ‘Khula’ obtained by the Appellant, before the Family Court, Bandra vide M.J. Petition No. B-175 of 2008. The Respondent has also filed a petition for restitution of conjugal rights.

13. The concept of dissolution of marriage under Muslim Personal Law was noticed and discussed by Single Judge of the High Court of Delhi in Masroor Ahmed v. State (NCT of Delhi) and Anr.MANU/DE/9441/2007: (2007) ILR 2 Delhi 1329. In the said case, the High Court noticed different modes of dissolution of marriage under the Muslim Personal Law (Shariat)

14. From the discussion [in the aforesaid judgment], what we find is that ‘Khula’ is a mode of dissolution of marriage when the wife does not want to continue with the marital tie. To settle the matter privately, the wife need only to consult a Mufti (juris consult) of her school. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. Further, if the wife does not want to continue with marital tie and takes mode of ‘Khula’ for dissolution of marriage, she is required to propose her husband for dissolution of marriage. This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The ‘Khula’ is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if the matter is carried to the point of litigation and cannot be settled privately then the Qazi (Judge) is required to deliver a qaza (judgment) based upon the Shariat.

15. In the present case, the Appellant stated that she has obtained an ex parte ‘Khula’ on 9th May, 2008 from Mufti under the Muslim Personal Law. Neither it is pleaded nor it is made clear by the Appellant or the 1st Respondent as to whether for such ‘Khula’ the Appellant made a proposal to husband-Ist Respondent for dissolution of marriage accompanied by an offer to give something in return. It has not been made clear that whether the Appellant gave up her claim to Mahr (dower). The husband, 1st Respondent has not accepted ‘Khula’ given by Mufti (jurisconsult) which is in the form of fatwa or advisory decision based on the Shariat. He, however, has not moved before the Qazi (Judge) to deliver a qaza (judgment) based upon the Shariat. Instead, he has moved before the Family Court, Bandra against the ‘Khula’ by filing petition-M.J. Petition No. B- 175 of 2008. He has also prayed for restitution of conjugal right. Therefore, with no certainty, it can be stated that the divorce was taken on 9th May, 2008.

18. In the present case, as noticed that there is no definite plea taken either by the Appellant or by the 1st Respondent that ‘Khula’ become effective in accordance with Muslim Personal Law (Shariat). Neither the Appellant nor the 1st Respondent placed any evidence in support of such divorce. No specific pleading was made that the Appellant proposed to her husband-1st Respondent for dissolution of marriage. On the other hand, it is clear that the ‘Khula’ was pronounced by the Mufti ex parte. For the said reason, the 1stRespondent challenged the same by filing M.J. Petition No. B-175 of 2008, before the Family Court, Bandra. In this background, we hold that the Sessions Judge, Sewree, Mumbai by order dated 3rd November, 2012 wrongly observed and held that the Appellant is no more wife of the 1st Respondent. The High Court has also failed to notice that no evidence was produced in support of the statement either made by the Appellant or by the 1st Respondent. It also failed to appreciate the fact that the ‘Khula’ was obtained from the Mufti and not from Qazi and the same was challenged by the 1st Respondent before the Family Court, Bandra, Mumbai and wrongly upheld the finding of the Sessions Judge. Therefore, with no certainty, it can be stated that the divorce has taken place on 9th May, 2008, in absence of pleading, evidence and finding.

19. Even if it is presumed that the Appellant has taken ‘Khula’ (divorce) on 9th May, 2008 and the 1st Respondent is no more the husband, the question arises that in such case whether the erstwhile-wife can claim one or other relief as prescribed Under Sections 18, 19, 20, 21, 22 and interim relief Under Section 23 of the Domestic violence Act, 2005, if domestic violence had taken place when the wife lived together in shared household with her husband through a relationship in the nature of marriage.

24. In the instant case, the Appellant sought relief Under Sections 18 to 23 of the Domestic Violence Act, 2005. It includes Protection order Under Section 18, Monetary relief Under Section 20, Custody orders Under Section 21, Compensation Under Section 22 and interim relief Under Section 23. … The Monetary relief as stipulated Under Section 20 is different from maintenance, which can be in addition to an order of maintenance Under Section 125 of the Code of Criminal Procedure or any other law. Such monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence, which is not dependent on the question whether the aggrieved person, on the date of filing of the application Under Section 12 is in a domestic relationship with the Respondent.

25. [It] is well within the jurisdiction of the Magistrate to grant the interim ex parte relief as he deems just and proper, if the Magistrate is satisfied that the application prima facie discloses that the Respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the Respondent may commit an act of domestic violence.

26. It is not necessary that relief available Under Sections 18, 19, 20, 21 and 22 can only be sought for in a proceeding under Domestic Violence Act, 2005. Any relief available under the aforesaid provisions may also be sought for in any legal proceeding even before a Civil Court and Family Court, apart from the Criminal Court, affecting the aggrieved person whether such proceeding was initiated before or after commencement of the Domestic Violence Act,

27. Appellant hap filed an F.I.R. against the 1st Respondent for the offence committed Under Section 498Aof Indian Penal Code The High Court refused to quash the F.I.R. qua 1st Respondent on the ground that prima facie case has been made out. Even before the Criminal Court where such case Under Section-498Ais pending, if allegation is found genuine, it is always open to the Appellant to ask for reliefs Under Sections 18 to 22 of the Domestic Violence Act and Interim relief Under Section 23 of the said Act.

30. In the present case, the alleged domestic violence took place between January, 2006 and 6th September, 2007 when FIR No. 224 of 2007 was lodged by the Appellant Under Section 498A and 406 Indian Penal Code against the 1st Respondent and his relatives. In a writ petition filed by 1st Respondent the High Court refused to quash the said FIR against him observing that prima facie case Under Section 498A was made out against him. Even if it is accepted that the Appellant during the pendency of the SLP before this Court has obtained ex parte Khula (divorce) under the Muslim Personal Law from the Mufti on 9th May, 2008, the petition Under Section 12 of the Domestic Violence Act, 2005 is maintainable.

31. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the Respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief Under Section 20, Child Custody Under Section 21, Compensation Under Section 22 and interim or ex parte order Under Section 23 of the Domestic Violence Act, 2005.

32. Both the Sessions Judge and the High Court failed to notice the aforesaid provisions of the Act and the fact that the FIR was lodged much prior to the alleged divorce between the parties and erred in holding that the petition Under Section 12 was not maintainable.

33. For the reasons aforesaid, we set aside the impugned judgment dated 23rd January, 2013 [and] the order dated 3rd November, 2012, … and uphold the order dated 4th February, 2012. … The 1st Respondent is directed to pay the amount, if not yet paid, in accordance with order passed by the Magistrate.

34. The appeal is allowed with aforesaid observations and directions.