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Protection of Women from Domestic Violence Act, 2005: ss.12,19 – In a complaint filed under s.12 of Act, 2005, an interim orderwas passed in favour of complainant directing the respondentarrayed in the complaint i.e. husband not to dispossess thecomplainant without orders of a competent court – Suit filed byfather-in-law thereafter praying for a mandatory and permanentinjunction in respect of suit property against the complainant-defendant – Maintainability of – Held: Suit filed in civil court formandatory and permanent injunction was fully maintainable – Theissues raised by the plaintiff as well as by the defendant claiming aright under s.19 were to be addressed and decided on the basis ofevidence led by the parties in the suit.Protection of Women from Domestic Violence Act, 2005: s.26– Relief in suit or legal proceedings – As per s.26, any relief availableunder ss.18, 19, 20, 21 and 22 of the Act, 2005 may also be soughtin any legal proceeding, before a civil court, family court or acriminal court being the aggrieved person – In a suit for mandatoryand permanent injunction filed by the appellant (father-in-law) whererespondent (daughter-in-law) has pleaded and claimed that the suitproperty is shared household and she has right to live and it was onthat ground she was resisting the suit for mandatory injunction, thequestion that whether the suit property is a shared household ornot becomes relevant and necessary and the said issue cannot beskipped on the ground that application under D.V. Act is pending –In the regular suit, which was filed by the appellant, plea ofdefendant that suit property is her shared household and she hasright to residence could have been very well gone into by virtue ofs.26 of Act, 2005.Protection of Women from Domestic Violence Act, 2005: s.19– Pendency of proceedings under the Act, 2005 or any order interimor final, passed u/s.19 regarding right of residence is not an embargofor initiating/continuing any civil proceedings, which relate to subjectmatter of order interim or final passed in proceedings under theAct.Protection of Women from Domestic Violence Act, 2005: s.2(s)– Shared household – Definition of – Held: The definition of sharedhousehold in s.2(s) is an exhaustive definition – s.2(s) uses both theexpressions “means and includes” – The first part of definitionbegins with expression “means” which is undoubtedly an exhaustivedefinition and second part of definition, which begins with word“includes” is explanatory of what was meant by the definition –The use of both the expressions “means and includes” in s.2(s),thus, clearly indicate the legislative intent that the definition isexhaustive and shall cover only those which fall within the purviewof definition and no other.Protection of Women from Domestic Violence Act, 2005: s.2(s)– Expression “where the person aggrieved has lived or at any stagehas lived in a domestic relationship” – Meaning of – The words“lives or at any stage has lived in a domestic relationship” have tobe given its normal and purposeful meaning – The living of womanin a household has to refer to a living which has some permanency– Mere fleeting or casual living at different places shall not makea shared household.Protection of Women from Domestic Violence Act, 2005: s.2(s)– Interpretation of – It is not requirement of law that aggrievedperson may either own the premises jointly or singly or by tenantingit jointly or singly; the household may belong to a joint family ofwhich the respondent is a member irrespective of whether therespondent or the aggrieved person has any right, title or interestin the shared household; and the shared household may either beowned or tenanted by the respondent singly or jointly.Protection of Women from Domestic Violence Act, 2005: s.2(q)– Who can be respondent – To treat a person as “respondent” forpurposes of s.2(q), it has to be proved that person arrayed asrespondent has committed an act of domestic violence on theaggrieved person – For grant of any relief to the defendant or forsuccessful resisting the suit of the plaintiff, necessary conditionsfor grant of relief as prescribed under the Act, 2005 has to be pleadedand proved by the defendant, only then the relief can be granted bythe Civil Court to the defendant – Thus, for granting any relief bythe Civil Court under s.19, it has to be proved that the respondent iscommitting or has committed an act of domestic violence on theaggrieved person.Protection of Women from Domestic Violence Act, 2005: s.17– Right to residence – Every woman in a domestic relationship shallhave the right to reside in the shared household, whether or not shehas any right, title or beneficial interest in the same – This right hasbeen expressly granted to every woman in domestic relationship tofulfill the purpose and objective of the Act – Although under thestatute regulating personal law, the woman has right to maintenance,every wife has right of maintenance which may include right ofresidence, the right recognized by sub-section (1) of s.17 is newand higher right conferred on every woman.Protection of Women from Domestic Violence Act, 2005:s.17(2) – Whether apart from powers of Magistrate under s.25(2)of the Act, 2005, the Act, 2005 contemplates any other eventualitywhen despite the order of residence under s.19 an aggrieved personcan be evicted or dispossessed – Held: The right to reside in sharedhousehold as granted by s.17 itself contemplates an exception inexpress words, i.e., “save in accordance with the procedureestablished by law”.Protection of Women from Domestic Violence Act, 2005:s.17(2) – Embargo under – Held: In case, the shared household ofa woman is a tenanted/allotted/licensed accommodation wheretenancy/allotment/license is in the name of husband, father-in-lawor any other relative, the Act, 2005 does not operate against thelandlord/lessor/licensor in initiating an appropriate proceedings foreviction of the tenant/allottee/licensee qua the shared household –However, in case the proceedings are due to any collusion betweenthe two, the woman, who is living in the shared household has rightto resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings – The embargo unders.17(2) of Act, 2005 of not to be evicted or excluded save inaccordance with the procedure established by law operates onlyagainst the “respondent”, i.e., one who is respondent within themeaning of s.2(q) of Act, 2005.Protection of Women from Domestic Violence Act, 2005: s.19– Residence order – Held: The right to residence under s.19 is notan indefeasible right of residence in shared household especiallywhen the daughter-in-law is pitted against aged father-in-law andmother-in-law – The senior citizens in the evening of their life arealso entitled to live peacefully not haunted by marital discordbetween their son and daughter-in-law – Therefore, while grantingrelief both in application under s.12 of Act, 2005 or in any civilproceedings, the Court has to balance the rights of both the parties.Protection of Women from Domestic Violence Act, 2005: ss.17and 19 – Proper party – In the present case, although plaintiff hasnot claimed any relief against his son, the husband of the respondent,hence, he was not a necessary party but in view of the fact thatrespondent has pleaded her right of residence in shared householdrelying on ss.17 and 19 of the Act, 2005 and one of the rights whichcan be granted under s.19 is right of alternate accommodation, thehusband is a proper party – The right of maintenance as per theprovisions of Hindu Adoption and Maintenance Act, 1956 is againstthat of the husband, hence he may be a proper party in cases whenthe Court is to consider the claim of respondent under ss.17 and 19read with s.26 of the Act, 2005 – Party/Parties – Necessary party.Code of Civil Procedure, 1908: Or.I r.10 empowers the Courtat any stage of the proceedings either on an application or suomoto to add a party either as plaintiff or defendant, whose presencebefore the Court may be necessary in order to enable the Courteffectively and completely adjudicate upon and settle all thequestions involved in the suit – In the instant case, High Court issueddirections that the matters be remanded back to trial court and atthe first instance, in all cases where the respondent’s son/theappellant’s husband has not been impleaded, trial court shall directhis impleadment by invoking its suo motu powers under Or.I r.10 –The said direction is a little wide and preemptory – In event, theHigh Court was satisfied that impleadment of husband of defendantwas necessary, the High Court itself could have invoked the powerunder Or.I r.10 and directed for such impleadment – When the matteris remanded back to trial court, trial court’s discretion ought not tohave been fettered by issuing such a general direction – Protectionof Women from Domestic Violence Act, 2005.Code of Civil Procedure, 1908: Or.XII r.6 – Power under,scope – Held: Power under Or.XII r.6 is discretionary and cannotbe claimed as a matter of right.Res judicata: Principle of, applicability when orders ofcriminal courts are pitted against proceedings in civil court – Held:There can be no applicability of principle of res judicata when ordersof criminal courts are pitted against proceedings in civil court –With regard to criminal proceedings, Code of Criminal Procedurealso contains provision that a person who has once been tried by aCourt of competent jurisdiction for an offence and convicted oracquitted of such offence shall, while such conviction or acquittalremains in force, not be liable to be tried again for the same offencenor on the same facts for any other offence – The principleenumerated in s.300 Cr.P.C. may be relevant with respect to twocriminal proceedings against same accused, which might have norelevance in reference to one criminal proceeding and one civilproceeding.Protection of Women from Domestic Violence Act, 2005: ss.12,25, 26 – Domestic Incident Report – Held: Before any order is passedunder s.12, the magistrate has to take into consideration anydomestic incident report received by him from the protection officeror the service provider – That does not mean that magistrate canpass orders solely relying upon the domestic incident report receivedby him from the protection officer or the service provider – Even asper s.36 of the D.V. Act, the provisions of the D.V. Act shall be inaddition to, and not in derogation of the provisions of any otherlaw, for the time being in force – Magistrate can also pass an interimorder as per s.23 of the D.V. Act.Protection of Women from Domestic Violence Act, 2005:s.19(1)(b) – Order under clause (b) of s.19(1) against a woman –Held: While passing order of residence under s.19, more particularlyunder sub-s.19(1)(b) as per the proviso to s.19(1), no order underclause (b) shall be passed against any person who is a woman.Protection of Women from Domestic Violence Act, 2005:ss.12(2), 17, 19, 20, 22, 23, 25, 26 and 28 – The proceedings underthe D.V. Act and proceedings before a civil court, family court or acriminal court, as mentioned in s.26 of the D.V. Act are independentproceedings, like the proceedings under s.125 of the Cr. P.C. formaintenance before the Magistrate and/or family court and theproceedings for maintenance before a civil court/ family court forthe reliefs under the Hindu Adoption and Maintenance Act –However, the findings/orders passed by the one forum has to beconsidered by another forum.Evidence Act, 1872: ss.40 to 43 – Order passed under theAct, 2005 – Relevancy and admissibility in civil proceedings – Thereis no embargo in referring to or relying on an admissible evidence,be of a civil court or criminal court both in civil or criminalproceedings – The judgment or order of criminal court granting aninterim or final relief under s.19 of D.V. Act, 2005 are relevant withinthe meaning of s.43 of the Evidence Act and can be referred to andlooked into by the civil court – Protection of Women from DomesticViolence Act, 2005.Words and phrases: Meaning and extent of expression “savein accordance with the procedure established by law” in s.17 ofProtection of Women from Domestic Violence Act, 2005. |
