Two women filed complaints under several provisions of the Protection of Women from Domestic Violence Act, 2005 (PWDVA) against a man referred to as “PNH” and three of his female relatives. The petitioners were the mother and sister of PNH, and they alleged that he, his wife, and his two sisters were committing acts of domestic violence against them.
The three female respondents claimed that holding them as respondents in the present case was a misuse of the PWDVA, as PWDVA was intended to provide recourse to married women against their husband and husband’s relatives. One of the female respondents further claimed that she should not be held as a respondent because she did not technically live in their household and thus could not commit acts of “domestic violence.” On these grounds, the female respondents petitioned to have their names dropped from the complaint.
Rather than maintain a strict definition of “respondent,” the court chose to focus on the intention behind the PWDVA to protect women from domestic violence and thus held that all four of the respondents should remain respondents on the complaint.
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.
[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. … 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 or the brothers and sisters of the male respondent.
Navneet Arora was living with her husband and daughter in a household shared with several of her in-laws. The house was legally owned by Navneet Arora’s mother-in-law, Surender Kaur, when Navneet’s husband died.
Surender Kaur filed a suit for mandatory injunction against Navneet Arora. In an order dated March 21, 2014, the judge ruled in Surender Kaur’s favor, citing several Supreme Court 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.
Navneet Arora filed an appeal, claiming that under Section 2 of the Protection of Women from Domestic Violence Act 2005, her living situation with her in-laws qualifies as a “shared household,” and thus she has the right to reside there.
The Supreme Court pointed to the fact that all of the residents of the residence in question shared a common kitchen and ate meals together from a joint income, and that they all lived on the same floor in commensality. It further pointed out that Navneet Arora continued to reside their with her daughter after her husband’s death. They thus ruled in Navneet Arora’s favor, stating that this does legally qualify as a “shared household,” and thus she has a right to reside there.
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:-
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.
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. …[T]he 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.
Ms. Taruna Batra married Amit Batra on April 14, 2000, who is the son of the two appellants Mr. and Mrs. S.R. Batra. After the marriage, Taruna and her husband started residing together as husband and wife on the second floor of B-135, Ashok Vihar, Phase-I, Delhi, while S.R. Batra and his wife resided separately on the ground floor of the same property. The entire property was exclusively owned by Taruna Batra’s mother-in-law, Mrs. S.R. Batra.
Amit Batra filed for divorce, after which Taruna Batra lodged an FIR against her husband, father-in-law, mother-in-law, and sister-in-law. They were all arrested and granted bail after three days. As a result of the rising tensions, Taruna Batra shifted to her parent’s residence. Amit Batra, too, moved out of the residence and into his own flat in Ghaziabad. Later on, Taruna Batra tried to return to her old home at B-135, Ashok Vihar, Phase-I, Delhi, but found it locked. She filed a suit seeking mandatory injunction to enable her to enter the house but, before any order could be passed, she forcibly broke into the residence.
In back-and-forth appeals, a central question arose: Should the second floor of this property be considered Taruna Batra’s matrimonial home? The issue reached the Supreme Court, and became a landmark judgment clarifying the legal definition of “shared household.” The Supreme Court determined that in order for a home to be considered a “shared household”, the husband must either own the property, he must pay rent on the property, or the house must belong to a joint family of which the husband is a member. The court therefore ruled that the property in question does not count as a “shared household.”
Full Citation: S.R. Batra and Anr. vs. Smt. Taruna Batra, (2007)3SCC169
Sandhya Manoj Wankhade moved in with Manoj Bhimrao Wankhade and his mother and sister following their marriage in 2005. About a year later, she began experiencing abuses from the three of them, for which she filed complaints under several articles of the Protection of Women from Domestic Violence Act, 2005 (PWDVA).
There were back-and-forth applications and petitions for appeals from both sides, and a central question arose: is it lawful for a woman to lodge complaints against female relatives of her husband under the PWDVA? The language of the law was unclear.
The high court ruled in favor of the husband’s female relatives, thus blocking them from certain charges outlined in the PWDVA. The issue went to the Supreme Court, who ruled in Sandhya Manoj Wankhade’s favor saying that it is in fact permissible to hold female relatives as respondents under the act.
Full Citation: Sou. Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade and Ors., (2011)3SCC650
V.D. Bhanot and Savita Bhanot were married in 1980 and lived together until 2005. In 2006, Savita Bhanot filed a petition for various reliefs under the Protection of Women from Domestic Violence Act, 2005 (PWDVA). She sought monetary relief from her husband, and the protection of her right to reside in her matrimonial home, both of which she was entitled to under PWDVA.
The main question that arose in this petition was whether or not Savita Bhanot was entitled to maintain a petition under the provisions of PWDVA if the act of domestic violence in question occurred before PWDVA was enacted. In consideration of the intention behind PWDVA, the Delhi High Court held that she was in fact eligible for the benefits it provides, despite the fact that the relevant act of domestic violence occurred before its enactment.
This case is also notable for the fact that the court interpreted “domestic violence” liberally in favor of Savita Bhanot. Specifically, it held that forcing Savita Bhanot to live alone in rented accommodation that she did not feel safe in constituted an act of domestic violence, and thus was considered illegal in view of PWDVA.
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, 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. … [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, protecting the right of the Respondent wife to reside in her matrimonial home in Mathura.
3. [On] 26th February, 2008, [the petitioner] 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 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 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-à-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 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.
10. In our view, the situation comes squarely within the ambit of Section 3 of the PWD Act, 2005, 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 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 … 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.
Juveria Abdul Majid Patni and Atif Iqbal Mansoori got married according to Muslim rites and rituals in May 2015. The appellant experienced various abuses from the respondent, for which she lodged an FIR against him in 2007. The appellant claimed that she obtained an ex parte Khula from Mufti under the Muslim Personal Law in May 2008, but whether or not the couple legally completed the divorce process was contested. In September 2009, the appellant filed a petition under the Protection of Women from Domestic Violence Act, 2005 (PWDVA) for abuses that had occurred prior to their divorce.
Two main questions arose in this case: first, did the couple complete the divorce process in 2008? And second, can a divorced woman seek reliefs against her ex-husband under Sections 18 to 23 of the PWDVA?
The court determined that the couple’s divorce effectively took place in May 2008. It further determined that once an act of domestic violence has been committed, a subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or deny the benefit to which the aggrieved person is entitled under the PWDVA.
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:
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:
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.
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.
Smt. B.P. Achala Anand had been living in a tenanted apartment under her estranged husband’s name for several years when the landlord initiated proceedings for eviction. Smt. Achala’s husband, H.S. Anand, appeared in court to defend the suit, but it appears that he was not invested in defending his claim to remain on the property considering that he had a strained relationship with his wife and was no longer living there.
Smt. Achala decided to take matters into her own hands and filed an appeal to defend against the eviction. The landlord filed a petition contesting Smt. Achala’s right to be involved in the suit as it was a landlord-tenant dispute, and she was not the written tenant. While this matter was pending in the High Court, Smt. Achala and H.S. Anand got divorced.
The Supreme Court ruled that wives of tenants have the right to join as party to such eviction proceedings and to defend their right to remain in their matrimonial home. However, in this particular case, Smt. Achala was not permitted to prosecute the appeal and defend her right against the claim for eviction, as the property was no longer considered her matrimonial home by the end of the proceedings on account of the divorce.
2. The appellant Smt. B.P. Achala Anand (hereinafter ‘Smt. Achala’ for short) was the legally wedded wife of H.S. Anand-respondent No. 2. Their relationship got estranged so much so that in the year 1983 H.S. Anand deserted his wife Smt. Achala. The matrimonial home was a tenanted premises owned by respondent No. 1. H.S. Anand left behind his wife with the children in the tenanted premises and walked away to reside in a lodge. In the year 1991, proceedings for dissolution of marriage by decree of divorce seem to have been initiated between the estranged couple. On 3/12/1998 the marriage stood dissolved by a decree of divorce based on mutual consent.
3. H.S. Anand had taken the ground floor of [the premises forming part of dispute in the present litigation] on tenancy from the landlord-respondent No. 1. The rent of the premises was fixed at Rs. 300/- which was later on revised and enhanced to Rs. 600/-and then to Rs. 700/- … The tenant H.S. Anand resided in the premises with his family members including his wife Smt. Achala.
5. On 28/11/1991, the landlord served a notice upon the tenant H.S. Anand and initiated proceedings for eviction from the suit premises … The tenant was alleged to be in arrears of rent and was, therefore, called upon to clear the same within a period of two months … The tenant-H.S. Anand appeared in the Court of Small Causes and defended the suit. However, it seems that on account of strained relationship between him and his wife and, further as he had discontinued his residence in the tenanted premises, he was not serious in contesting the suit and consequently, in the event of a decree for eviction being passed, the family members including the appellant-Smt. Achala, the deserted wife, ran the risk of being thrown away from the tenanted premises which happened to be the matrimonial home. Briefly stating these facts, the appellant moved an application under Order I Rule 10 of the Code of Civil Procedure (for short “the Code”) seeking her own impleadment in the eviction proceedings so as to defend against the eviction. The trial court, by order dated 30.01.1993, rejected the application.
6. The appellant preferred a revision petition in the High Court. Obvious as it is, the revision petition preferred by the appellant was contested by the landlord-respondent No. 1 submitting that it being a landlord-tenant dispute, the appellant-wife had no right to be joined as a party to the proceedings and urther that the rent being substantially in arrears, the case for eviction was already made out and impleadment of the appellant would only prolong the proceedings … Legality or otherwise of the contentions raised by the parties in the High Court was left open, the revision petition was allowed and the trial court’s order dated 30/01/1993 was set aside. The appellant was permitted to be brought on record as defendant No. 2 in the original case subject to her depositing a sum of Rs. 10,000/- towards payment of arrears of rent. The High Court did not express any opinion as to the status of the appellant as tenant or otherwise which issue was left open to be decided by the trial court. The fact remains that the appellant did deposit an amount of Rs. 10,000/- towards the arrears of rent claimed by the landlord and it appears that the amount has been withdrawn by the landlord without prejudice to his rights. The appellant has, thereafter, contested the suit.
7. The trial court disposed of the suit on 04/12/1998. The trial court held that H.S. Anand- respondent No. 2 was the tenant. A case for eviction under Section 21(1)(a) of the Act was not made out in the opinion of the trial court. However, a case for partial eviction under Section 21(1)(h) was made out. The trial court directed partial eviction of the two defendants (i.e. H.S. Anand and his wife Smt. Achala)…[allowing] allowed the tenant to continue in the front portion [of the premises], namely, bedroom, hall, verandah, toilet etc.
8. Feeling aggrieved, the landlord preferred a revision petition in the High Court which has been disposed of by the judgment impugned herein … It may be noted that neither the tenant H.S. Anand nor Smt. Achala, the wife had challenged the order for partial eviction passed by the trial court and it became final.
10. The Karnataka Rent Control Act, 1961 has been enacted to provide for the control of rents and evictions and for the leasing of buildings amongst other things … For our purpose, it would suffice to notice that vide Clause (a) of Sub-section (1) of Section 21 of the Act, the tenant’s failure to pay or tender the whole of the arrears of the rent legally recoverable from him within two months of the date of service of notice of demand on him in this regard provides a ground for eviction. In spite of a ground for eviction having been made out within the meaning of the said provision entitling the landlord to initiate proceedings for eviction of the tenant, no order for the recovery of possession of any premises on that ground shall be made if the tenant deposits or pays to the landlord rent during the pendency of proceedings in the manner prescribed by Section 29 of the Act and satisfies the Court that there was a sufficient cause for the default to pay or tender the rent within the period referred to in Section 21(1)(a) and further pays to the landlord or deposits in the Court such further amount as may be determined and fixed by the Court within the meaning of Clause (iii) of Sub-section (2) of Section 21 of the Act.
11. Under Section 30 of the Act, … the tenant in whose name the tenancy has been created is not the only one who is entitled to live in the residential premises; he has a right to live therein with his family wherein is included the spouse. In any litigation, based on landlord-tenant relationship, when the tenant enters upon defence, he does so not only for himself but also for protecting the interest of his family as its members do live and are entitled to live with him, because in the event of an order for eviction being made it is not only the tenant but also his family members who shall be liable to be evicted from the tenancy premises along with him.
12. Having said so generally, we may now deal with the right of a wife to reside in the matrimonial home under personal laws. In the factual context of the present case, we are confining ourselves to dealing with the personal law as applicable to Hindus as the parties are so. A Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence if by reason of the husband’s conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart from him. Right to residence is a part and parcel of wife’s right to maintenance … For the purpose of maintenance the term ‘wife’ includes a divorced wife.
13. The position of law which emerges on a conjoint reading of the Rent Control Legislation and Personal Laws providing for right to maintenance — which will include the right to residence of a wife, including a deserted or divorced wife, may be examined. The Rent Control Law makes provision for protection of the tenant not only for his own benefit but also for the benefit of all those residing or entitled to reside with him or for whose residence he must provide for. A decree or order for eviction would deprive not only the tenant of such protection but members of his family (including the spouse) will also suffer eviction. So long as the tenant defends himself, the interest of his family members merges with that of the tenant and they too are protected. The tenant cannot, by collusion or by deliberate prejudicial act, give up the protection of law to the detriment of his family members. So long as a decree for eviction has not been passed the members of the family are entitled to come to the court and seek leave to defend and thereby contest the proceedings and such leave may be granted by the court if the court is satisfied that the tenant was not defending — by collusion, connivance or neglect — or was acting to the detriment of such persons.
24. In Unnamalai Ammal v. F.W. Wilson and Ors., MANU/TN/0373/1927: AIR 1927 Mad 1187, it was stated that the maintenance of a wife by a husband is a personal obligation upon him arising from the existence of the relations.
26. A Single Bench decision of the Andhra Pradesh High Court in Bharat Heavy Plates and Vessles Ltd.,MANU/AP/0066/1985 : (1986)ILLJ145AP, is more near to the facts of the at hand. The husband was an employee in a company. He was allotted a company quarter in which he lived with his wife. The quarter was the matrimonial home. However, differences developed between the husband and wife, leading to their estrangement and finally the wife went to the Court, charging her husband with neglect to maintain her and her three minor children. The husband left the company quarter and it was occupied only by his wife and minor children. The husband also wrote to the company, terminating the lease which was in his favour. The hovering prospects of eviction led the wife to the Court for protection, seeking an injunction restraining the company from evicting the wife and her three minor children. The High Court upheld the order impugned before it, whereby the company was restrained from evicting the wife and her minor children. For forming this opinion, the Court took into consideration the facts that the quarter was meant to be used by the employee and the husband was under an obligation to provide shelter to the wife and children. The husband and the company had both recognized the quarter to be the matrimonial home wherein the wife too was residing. The amount of rent was directed to be deducted from the salary of the husband.
27. This Court in Kirtikant D. Vadodaria v. State of Gujarat and Anr., MANU/SC/1159/1996 : (1996)4SCC479, has held: “According to the law of land with regard to maintenance there is an obligation on the husband to maintain his wife which does not arise by reason of any contract – expressed or implied – but out of jural relationship of husband and wife consequent to the performance of marriage.
28. Section 18 of the Hindu Adoption and Maintenance Act confers a right on a wife to be maintained by her husband during her life time. According to Mulla, the right of a wife for maintenance is an incident of the status or estate of matrimony and a Hindu is under a legal obligation to maintain his wife.
29. The Hindu Marriage Act provides for divorce. Section 15 indicates when divorced persons may marry again. Section 25 enables the court to pass an order for providing alimony and maintenance in favour of the divorced wife. Section 27 enables the court to make provisions in the decree in respect of a property that may belong to the wife or to both. On the status of wife being terminated by a decree for divorce under the Hindu Marriage Act, the rights of the divorced wife seem to be cribbed, confined and cabined by the provisions of the Hindu Marriage Act and to the rights available under Sections 25 and 27 of the Act.
30. In V.B. Jaganathan v. A.R. Srividhya, 1997 (2) MLJ 366, the Madras High Court has held that a court can pass an appropriate order under Section 27 of the Hindu Marriage Act even when one of the parties to a marriage claims the property as belonging to him exclusively thereby indicating that it might have been possible to make a provision regarding the tenanted premises, in the proceedings under the Hindu Marriage Act. How far that order would be binding on a landlord who is not a party is another question, but it would certainly give her a right to defend the proceedings for eviction.
32. In our opinion, a deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant subject to satisfying two conditions: first, that the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than that of the tenant himself. … So long as, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end.
33. We are also of the opinion that a deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of subletting. … The tenant having lost interest in protecting his tenancy rights as available to him under the law, the same right would devolve upon and inhere in the wife so long as she continues in occupation of the premises. Her rights and obligations shall not be higher or larger than those of the tenant himself. A suitable amendment in the legislation is called for to that effect. And, so long as that is not done, we, responding to the demands of social and gender justice, need to mould the relief and do complete justice by exercising our jurisdiction under Article 142 of the Constitution. We hasten to add that the purpose of our holding as above is to give the wife’s right to residence a meaningful efficacy as dictated by the needs of the times; we do not intend nor do we propose the landlord’s right to eviction against his tenant to be subordinated to wife’s right to residence enforceable against her husband. Let both the rights co-exist so long as they can.
34. We have dealt with all the above said aspects of the law as it was urged on behalf of the landlord — respondent No. 1 that Smt. Achala, the appellant has right to contest or defend herself in these proceedings nor a right to file and prosecute this as there is no privity of contract between the appellant and landlord and the appellant is neither a tenant nor so recognized ever by the respondent No. 1 — landlord. We cannot agree. We feel that the appellant was rightly — in the facts and circumstances of the case — permitted by the High Court to be joined as a party to the proceedings. She was also rightly allowed to contest the suit and deposit the rent in the court for payment to landlord for and on behalf of the tenant- husband.
35. So far as a deserted wife, whose status as wife has not come to an end by a decree of divorce or by decree for annulment of marriage, is concerned, we have made the position of law clear as above. However, the case of a divorced wife stands on a little different footing. Divorce is termination of matrimonial relationship and brings to an end the status of wife as such. Whether or not she has the right of residence in the matrimonial home, would depend on the terms and conditions in which the decree of divorce has been granted and provision for maintenance (including residence) has been made. In the event of the provision for residence of a divorced wife having been made by the husband in the matrimonial home situated in the tenanted premises, such divorced wife too would be entitled to defend, in the eviction proceedings, the tenancy rights and rights of occupation thereunder in the same manner in which the husband-tenant could have done and certainly not higher or larger than that. She would be liable to be evicted in the same manner in which her husband as tenant would have been liable to be evicted.
36. In the present case, it is admitted by the appellant that on 3.12.1998, that is, during the pendency of these proceedings and while the matter was pending in the High Court a decree for dissolution of marriage by divorce based on mutual consent has been passed. The terms and conditions of such settlement have not been brought on record by the appellant which she ought to have done. It is not the case of Smt. Achala, the appellant that she is entitled to continue her residence in the tenanted premises by virtue of an obligation incurred by her husband to provide residence for her as a part of maintenance. She cannot, therefore, be allowed to prosecute the appeal and defend her right against the claim for eviction made by the landlord.
37. The appeal is, therefore, held liable to be dismissed and is dismissed accordingly.
Ambreen Akhoon initiated legal proceedings against her husband and mother-in-law under Section 26 of the Protection of Women from Domestic Violence Act (PWDVA) before the Family Court. Confusion arose because of differing restrictions on who can be held as a respondent under PWDVA versus under Family Court laws. Specifically, under Section 7 of the Family Courts Act only parties to the marriage (i.e. the husband or wife) can be respondents, but section 26 of PWDVA has a wider definition, and thus relatives of the husband can be held as a respondents under the act.
Akhoon’s mother-in-law filed an application to be removed as a respondent to the proceedings on the grounds that the Family Court guidelines for “respondent” have precedent over PWDVA guidelines. The Judge of the Family Court at Bandra, Mumbai issued an order siding with the mother-in-law. Akhoon filed this petition against the Family Court’s order; the High Court of Bombay sided with Akhoon, thus overruling the mother-in-law’s petition to be exempted from the proceedings.
2. This Writ Petition involves a question of law as to whether any relief can be sought against the relative of the respondent husband in the proceedings filed under section 26 of the Protection of Women from Domestic Violence Act before the Family Court? 3. In this writ petition, the petitioner challenges the legality of the order dated 11.5.2015 passed by the Family Court at Bandra, Mumbai in Petition No.A-1086 of 2013. The petition before the Family Court was filed for Sherla V. divorce under the Special Marriage Act, 1954 r/w Protection of Women from Domestic Violence Act, 2005 (for the sake of brevity, hereinafter referred to as ‘D.V. Act’). In the said petition, the petitioner/wife has made her mother-in-law as a party respondent. Therefore, an application was moved by Respondent No. 2, the mother-in-law, under section 9A and Order 1 Rule 10 of the Civil Procedure Code for deleting the party on the ground of a misjoinder of party. An issue was raised before the Family Court that Respondent No. 2 mother-in-law cannot be made a party to the nullity proceedings filed under the Hindu Marriage Act or Special Marriage Act as the Family Court has jurisdiction in respect of the proceedings between the parties to marriage only. The said application for compensation in the said petition was objected to on the ground that Respondent No. 2, the mother of the husband, cannot be party to the proceedings under the D.V. Act before the Family Court. The learned Judge of the Family Court heard the matter and passed a reasoned order by which application under section 9A with Order 1 Rule 10 of the Civil Procedure Code was allowed and inter alia the preliminary issue is framed as to “whether the petitioner has proved that Respondent No. 2 is a necessary party to the proceedings”?
5. The learned Counsel for the petitioner argued that the order passed by the learned Judge of the Family Court is erroneous.
6. Both the learned Counsel for the respondents have opposed the petition.
10. Section 26 of the D.V. Act enables a party to seek relief available under sections 18, 19, 20, 21 and 22 of the D.V. Act in any legal proceeding before the civil Court or Family Court or criminal Court affecting the aggrieved person and whether such proceeding was initiated before or after the commencement of this D.V. Act. Subsections (1) and (2) of section 26 presupposes that there should be a suit or legal proceeding before the civil or criminal Court wherein the relief under the D.V. Act also can be sought in addition to that relief.
11. Section 7 of the Family Courts Act limits the jurisdiction of the Family Court to the parties to a marriage.
12. Though jurisdiction of the Family Court is restricted to the parties to a marriage, under subsection (2) of section 7, the jurisdiction of the Family Court is widened as the cases under Chapter IX of Criminal Procedure Code are also made triable before the Family Court; so also, under section 2(b), ‘such other jurisdiction is conferred on it by any other enactment’. Thus, under clause (b) of subsection (2), if there is a specific provision under any other statute that such matters can also be entertained and tried by the Family Court, then, the jurisdiction of the Family Court can be extended to that effect. Any relative of the husband is covered under the definition of respondent under section 2(q) of the D.V. Act. If the statute covers a particular person in the array of the respondent, then, the status and necessity of that person cannot be challenged under Order 1 Rule 10 of the CPC. Thus, this issue cannot be raised at all as the D.V. Act covers the relatives of the husband under the definition of respondent. Hence, mother-in-law can be brought under the definition of ‘respondent’ under the D.V. Act has to be adopted while granting relief and entertaining petition under the D.V. Act.
14. The jurisdiction under section 7 of the Family Courts Act insofar as the parties to the proceedings are concerned, is limited to between the parties to the marriage. However, scope of the term ‘respondent’ is wider under section 2(q) of the D.V. Act. The D.V. Act takes care of any type of violence in the house and, therefore, the meaning of respondent is not restricted to only husband but his relatives are also included in the definition. It is possible that the same word in one statute may bear a different meaning in the other statute. The word ‘respondent’, if taken under the Family Courts Act, is restricted and so different than the word ‘respondent’ under section2(q)of the D.V. Act … [For] the purpose of section 26 of the DV Act, a meaning of word ‘respondent’ on the Family Courts Act is controlled by the definition of ‘respondent’ under section 2(q) of the DV Act. Therefore, by plain interpretation of law, the word ‘respondent’ under section 2(q) is to be given the same meaning under the sections which are specified under sections 26 of the D.V. Act, which are triable by the Family Court.
18. As a question of law is raised before this Court, the Court has restricted its finding only to that extent and answered that the relatives of the husband being respondents under section 2(q) of the DV Act can be made party respondents before the Family Court if the proceedings specified under section 26 of the D.V. Act are preferred.
20. In the circumstances, the petition is partly allowed.