Prabha Tyagi vs Kamlesh Devi

ss. 12 and 17 – Allegations of domestic violence by aggrieved person – Relief under the DV Act - Requirement of such aggrieved person to reside with those persons against whom the allegations have been levelled at the point of commission of violence, if mandatory – Held: It is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence – If a woman has the right to reside in the shared household u/s.17 and such a woman becomes an aggrieved person, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.

s. 12 – Relief sought under the DV Act by the aggrieved person – Requisite relationship between the aggrieved person and the person against whom the relief is claimed – Held: There should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence – However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting – Even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application u/s. 12 but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application u/s 12 of the Act.

Object and purpose of the D. V. Act – Explained.

Interpretation of statutes: Proviso of the main provision – Construction and interpretation of – General principles – Explained. Words and Phrases:

Expression ‘aggrieved person’ – Meaning of, in the context of s. 2(a) of the Protection of Women from Domestic Violence Act, 2005.

Expression ‘domestic relationship’ – Meaning of, in the context of s. 2(f) of the Protection of Women from Domestic Violence Act, 2005.

Expression ‘shared household’ – Meaning of, in the context of s. 2(s) of the Protection of Women from Domestic Violence Act, 2005.

Expression ‘family members’ – Meaning of, in the context of the Protection of Women from Domestic Violence Act, 2005. Allowing the appeal, the Court

HELD: 1.1 Section 12 of the Protection of Women from Domestic Violence Act, 2005 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act. [Para 52][1031-G-H; 1032-A]

1.2 It is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household. [Para 52][1032-B-D]

1.3 There should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the Act. [Para 52][1032-E-F]

2. The D. V. Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect women victims of domestic violence occurring in a domestic relationship. Therefore, the expression ‘joint family’ cannot mean as understood in Hindu Law. Thus, the expression ‘family members living together as a joint family’, means the members living jointly as a family. In such an interpretation, even a girl child/children who is/are cared for as foster children also have a right to live in a shared household and are conferred with the right under Sub-Section (1) of Section 17 of the D.V. Act. When such a girl child or woman becomes an aggrieved person, the protection of Sub-Section (2) of Section 17 comes into play. [Para 36][1011-C-E]

Smt. Bharati Naik v. Shri Ravi Ramnath Halarnkar and Another 2010 SCC Online Bom 243; Vandhana v.

T. Srikanth and Krishnamachari 2007 SCC Online Mad

553 – referred to.

3. As regards, the issue ‘whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levelled’, it is not mandatory for the aggrieved person to have actually lived or resided with those persons against whom the allegations have been levelled at the time of seeking relief. If a woman has the right to reside in a shared household, she can accordingly enforce her right under Section 17(1) of the D.V. Act. If a woman becomes an aggrieved person or victim of domestic violence, she can seek relief under the provisions of the D.V. Act including her right to live or reside in the shared household under Section 17 read with Section 19 of the D.V. Act. Thus, the appellant had the right to live in a shared household i.e., her matrimonial home and being a victim of domestic violence could enforce her right to live or reside in the shared household under the provisions of the D.V. Act and to seek any other appropriate relief provided under the D.V. Act. This is irrespective of whether she actually lived in the shared household. [Paras 40 and 41][1014-B-D]

4.1 As regards, the issue ‘whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed’, the expression ‘domestic relationship’ is an expansive one and means the relationship between two persons who live or have at any point of time lived together in a shared household when they are related by consanguinity; marriage; through a relationship in the nature of marriage; adoption; are family members living together as a joint family. The expressions ‘consanguinity’,‘marriage’ and ‘adoption’ are well understood concepts both in common law as well as in the respective personal law applicable to the parties. However, it is relevant to note the expression ‘marriage’ also encompasses a relationship in the nature of marriage. Secondly, the expression ‘adoption’ also takes into consideration family members living together as a joint family. [Para 42][1014-E-G] D. Velu Samy v. D. Patchaiammal (2010) 10 SCC 469 : [2010] 13 SCR 706; Indra Sarma v. V. K. V. Sarma (2013) 15 SCC 755 : [2013] 14 SCR 1019 – referred to.

4.2 The expression ‘family members living together as a joint family’ is not relatable only to relationship through consanguinity, marriage or adoption. The expression ‘joint family’ does not mean a joint family as understood in Hindu Law. It would mean persons living together jointly as a family. It would include not only family members living together when they are related by consanguinity, marriage or adoption but also those persons who are living together or jointly as a joint family such as foster children who live with other members who are related by consanguinity, marriage or by adoption. Therefore, when any woman is in a domestic relationship, is subjected to any act of domestic violence and becomes an aggrieved person, she is entitled to avail the remedies under the D.V. Act. [Para 43][1017C-E]

4.3 Relationships noted in the DV Act are as under:

(i) Any relationship by consanguinity is a lifelong relationship.

(ii) Marriage is also a lifelong relationship unless a separation by a decree of divorce is ordered by a competent authority of law.

(a) If there is judicial separation ordered by a court of law, that does not put an end to marriage and hence the domestic relationship continues between the spouses even though they may not be actually living together.

(b) In the event of a divorce, marriage would be no longer be subsisting, but if a woman (wife) is subjected to any domestic violence either during marriage or even subsequent to a divorce decree being passed but relatable to the period of domestic relationship, the provisions of this D.V. Act would come to the rescue of such a divorced woman also.

(c) That is why, the expression ‘domestic relationship’ has been defined in an expansive manner to mean a relationship between two persons who live or have at any point of time lived together in a shared household when they are related by marriage. The word ‘live’ or‘lived’ has been interpretedin the context of right to reside in Sub-Section (1) of Section 17. The right to live in the shared household, even when the domestic relationship may have been severed for instance when a woman has been widowed owing to the death of her husband, entitles her to have remedies under the D.V. Act.

(d) Even when the marital ties cease and there is no subsisting domestic relationship between the aggrieved woman and the respondent against whom relief is claimed but the acts of domestic violence are related to the period of domestic relationship, even in such circumstances, the aggrieved woman who was subjected to domestic violence has remedies under the D.V. Act.

(iii) Even in the case of relationship in the nature of marriage, during which period the woman suffered domestic violence and is thus an aggrieved person can seek remedies subsequent to the cessation of the relationship, the only precondition is that the allegation of domestic violence must relate to the period of the subsistence of relationship in the nature of marriage.

(iv) In the same way, when a girl child is fostered by family members living together as a joint family and lives or at any point of time has lived together in a shared household or has the right to reside in the shared household being a member living together as a joint family and has been ousted in any way or has been a victim of domestic violence has remedies under the D.V. Act. [Para 43][1017-F-H; 1018-A-H]

4.4 The question raised about a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed must be interpreted in a broad and expansive way, so as to encompass not only a subsisting domestic relationship in presentia but also a past domestic relationship. Therefore, the Parliament has intentionally used the expression ‘domestic relationship’ to mean a relationship between two persons who not only live together in the shared household but also between two persons who ‘have at any point of time lived together’ in a shared household. [Para 43][1019-A-B]

4.5 The appellant was married to the respondent’s son and within a month of marriage, he died in a car accident. According to the appellant, the respondent and her family members started harassing the appellant and forced her to leave the matrimonial home. She started working as a teacher at Dehradun in order to support herself. That Stridhana was given at the time of her wedding and that was used by the respondent and her family and the legal notice demanding return of the articles of Stridhana did not receive any response from the respondent and her family. Even though as on the date of filing of the application before the Magistrate under Section 12 of the D.V. Act the appellant was not actually living in the shared household; she nevertheless lived in a domestic relationship with her husband and further had the right to reside in a shared household as a daughter-in-law. The appellant-aggrieved person had to leave the shared household on account of harassment and mental torture given to her by respondent - mother-in-law and her family. She had to leave the same and fend for herself. Thus, as an aggrieved person, the appellant could not have been excluded from the shared household as there was no valid reason to do so. As the appellant had a right to reside in the shared household as she was in a domestic relationship with her husband till he died in the accident and had lived together with him therefore she also had a right to reside in the shared household despite the death of her husband in a road accident. The aggrieved person continued to have a subsisting domestic relationship owing to her marriage and she being the daughter-in-law had the right to reside in the shared household. [Para 44][1019-C-G]

5.1 Clause (e) of Section 2 defines a Domestic Incident Report to be a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person. As noted from Section 12, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person including the service provider vide Sub-Section (1) of Section 10 of the D.V. Act, may present an application to the Magistrate seeking one or more reliefs under the D.V. Act. Proviso to Sub-Section

(1) of Section 12 states that before passing any order on such an application, the Magistrate shall take into consideration any Domestic Incident Report received by him from the Protection Officer or the service provider. Protection Officer as defined in Clause (n) of Section 2, means an officer appointed by the State Government under SubSection (1) of Section 8. Sub-Section (2) of Section 8 states that the Protection Officers shall, as far as possible, be women and shall possess such qualifications and experience as may be prescribed. [Para 46][1020-B-D]

5.2 On a conjoint reading of the said provisions, it is clear that an aggrieved person on her own or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act but the proviso states that when a Domestic Incident Reported is received by the Magistrate from the Protection Officer or the service provider, in such a case, the same shall be taken into consideration. Therefore, when an aggrieved person files an application by herself or with the assistance of an advocate and not with the assistance of the Protection Officer or a service provider, in such a case, the role of the Protection Officer or a service provider is not envisaged. Obviously, there would be no Domestic Incident Report received by a Magistrate from the Protection Officer or a service provider. The intention of the proviso is not that in the absence of a Domestic Incident Report, the Magistrate cannot pass any order under the D.V. Act particularly when an application is filed before the Magistrate by the aggrieved person by herself or through a legal counsel. Although, the expression ‘shall’ is used in the proviso, it is restricted to only those cases where a Protection Officer files any Domestic Incident Report or, as the case may be, the service provider files such a report. When a Domestic Incident Report is filed by a Protection Officer or a service provider, in such a case the Magistrate has to take into consideration the said report received by him. But if such a report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. Therefore, the expression ‘shall’ has to be read in the context of a Domestic Incident Report received by a Magistrate from the Protection Officer or the service provider as the case may be in which case, it is mandatory for the Magistrate to consider the report. But, if no such report is received by the Magistrate then the Magistrate is naturally not to consider any such Domestic Incident Report before passing any order on the application. This could be in a case where an aggrieved person herself approaches the Magistrate or the services of an advocate is engaged to present an application seeking one or more reliefs under the D.V. Act or for a valid acceptable cause/reason a Domestic Incident Report has not been filed by a Protection Officer or a service provider, as the case may be.[Para 47][1020D-H; 1021-A-D]

5.3 The High Court was not right in holding that the application filed by the appellant was not accompanied by a Domestic Incident Report and therefore under the proviso to Sub-Section (1) of Section 12 of the D.V. Act, the Magistrate had no authority to issue orders and directions in favour of the appellant. [Para 48][1021-D-E]

5.4 If Domestic Incident Report has been received by the Magistrate either from the Protection Officer or the service provider then it becomes obligatory on the part of the Magistrate to take note of the said report before passing an order on the application filed by the aggrieved party, but if no complaint or application of domestic violence is received by the Magistrate from the Protection Officer or the service provider, the question of considering such a report does not arise at all. The D.V. Act does not make it mandatory for an aggrieved person to make an application before a Magistrate only through the Protection Officer or a service provider. An aggrieved person can directly make an application to the jurisdictional Magistrate by herself or by engaging the services of an Advocate. In such a case, the filing of a Domestic Incident Report by a Protection Officer or service provider does not arise. In such circumstances, it cannot be held that the Magistrate is not empowered to make any order interim or final, under the provisions of the D.V. Act, granting reliefs to the aggrieved persons. The Magistrate can take cognizance of the complaint or application filed by the aggrieved person and issue notice to the respondent under Section 12 of the D.V. Act even in the absence of Domestic Incident Report under Rule 5. Thus, the Magistrate has jurisdiction to take cognizance of the complaint under Section 12 of the D.V. Act in the absence of a Domestic Incident Report under Rule 5 when the complaint is not filed on behalf of the aggrieved person through a Protection Officer or service provider. Such a purposeful interpretation has to be given bearing in mind the fact that the immediate relief would have to be given to an aggrieved person and hence the proviso cannot be interpreted in a manner which would be contrary to the object of the D.V. Act which renders Section 12 bereft of its object and purpose.[Para 49][1025-G; 1026-A-E]

Nayanakumar v. State of Karnataka ILR 2009 Kar 4295; Abhiram Gogoi v. Rashmi Rekha Gogoi (2011) 4 Gauhati Law Reports 276; Md. Basit v. State of Assam and Others (2012) 1 Gauhati Law Reports 747; Rahul Soorma v. State of Himachal Pradesh (2012) SCC Online HP 2574; A.Vidya Sagar v. State of Andhra Pradesh 2014 SCC Online Hyd 715; Ravi Kumar

Bajpai v. Renu Awasthi Bajpai ILR (2016) MP 302; Shambhu Prasad Singh v. Manjari 190 (2012) DLT 647; Rakesh Choudhary v. Vandana Choudhary 2019 SCC Online J&K 512; Vijay Maruti Gaikwad v. Savita Vijay Gaikward 2018 (1) HLR 295; Suraj Sharma v. Bharti Sharma 2016 SCC Online Chh 1825 –

approved.

Rama Singh v. Maya Singh (2012) 4 MPLJ 612; Ravi Dutta v. Kiran Dutta and Another 208 (2014) DLT 61 – disapproved.

5.5 The principles that govern the interpretation to be given to proviso in the context of main provision are the normal function of a proviso is to except something out of the provision or to qualify something enacted therein which, but for the proviso, would be within the purview of the provision. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In other words, a proviso qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main provision. Further, a proviso cannot be construed as nullifying the provision or as taking away completely a right conferred by the enactment. Certain rules are that firstly, a proviso is not to be construed as excluding or adding something by implication i.e., when on a fair construction, the principal provision is clear, a proviso cannot expand or limit it. Secondly, a proviso has to be construed in relation to which it is appended i.e., normally, a proviso does not travel beyond the provision to which it is a proviso. A proviso carves out an exception to the main provision to which it has been enacted as a proviso and to no other. However, if a proviso in a statute does not form part of a section but is itself enacted as a separate section, then it becomes necessary to determine as to which section the proviso is enacted as an exception or qualification. Sometimes, a proviso is used as a guide to construction of the main section. Thirdly, when there are two possible construction of words to be found in the section, the proviso could be looked into to interpret the main section. However, when the main provision is clear, it cannot be watered down by the proviso. Thus, where the main section is not clear, the proviso can be looked into to ascertain the meaning and scope of the main provision. The proviso should not be so construed as to make it redundant. In certain cases, “the legislative device of the exclusion is adopted only to exclude a part from the whole, which, but for the exclusion, continues to be a part of it”, and words of exclusion are presumed to have some meaning and are not readily recognized as mere surplusage. As a corollary, it is stated that a proviso must be so construed that the main enactment and the proviso should not become redundant or otiose. This is particularly so, where the object of a proviso sometimes is only by way of abundant caution, particularly when the operative words of the enactment are abundantly clear. In other words, the purpose of a proviso in such a case is to remove any doubt. There are also instances where a proviso is in the nature of an independent enactment and not merely, an exception or qualifying what has been stated before. In other words, if the substantive enactment is worded in the form of a proviso, it would be an independent legislative provision concerning different set of circumstances than what is worded before or what is stated before. Sometimes, a proviso is to make a distinction of special cases from the general enactment and to provide it specially. [Para 50][1026-E-H; 1027-A-H; 1028-A-B]

Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai AIR 1966 SC 459 : [1966] SCR 367; Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories AIR 1965 SC 980 : [1965] SCR 737; Kedarnath Jute Manufacturing Co. Ltd. v. The Commercial Tax Officer and Others AIR 1966 SC 12 : [1965] SCR 626;

Dattatraya Govind Mahajan and Others v. The State of Maharashtra and Another AIR 1977 SC 915 : [1977]

2 SCR 790; S. Sundaram Pillai, etc, v. V. R.

Pattabiraman AIR 1985 SC 582 : [1985] 2 SCR 643; M. Pentiah v. Muddala Veeramallappa AIR 1961 SC 1107 : [1961] SCR 295; Superintendent &

Remembrancer of Legal Affairs to Govt. of West Bengal v. Abani Maity AIR 1979 SC 1029 : [1979] 3 SCR 472 – referred to.

Justice G.P. Singh “Principles of Statutory

Interpretation”, 15th Edition – referred to.

5.6 In the instant case, when the proviso is read in the context of the main provision which begins with the words ‘an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act’ would clearly indicate that the aggrieved person can by herself or through her advocate approach the Magistrate for seeking any of the reliefs under the D.V. Act. In such an event, the filing of a Domestic Incident Report does not arise. The use of the expression ‘shall’ in the proviso has to be read contextually i.e., the Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider. If the intention of the Parliament had been that filing of the Report by the Protection Officer is a condition precedent for the Magistrate to act upon the complaint filed by an aggrieved person even when she files it by herself or through her advocate then it would have been so expressed. But a conjoint reading of Sub-Section (1) of Section 12 with the proviso does not indicate such an intention. Thus, the plenitude of power under Section 12 of the D.V. Act is accordingly interpreted and pre-requisite for issuing notice to the respondent on an application filed by the aggrieved person without the assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise. If a contrary interpretation is to be given then the opening words of Sub-Section (1) of Section 12 would be rendered otiose and it would be incumbent for every aggrieved person to first approach a Protection Officer or a service provider, as the case may be, and get a Domestic Incident Report prepared and thereafter to approach the Magistrate for reliefs under the D.V. Act, which is not the intention of the Parliament. [Para 51][1030G-H; 1031-A-E]

6. The judgment passed by the High Court as well as the by the Sessions Judge are set aside and the order passed by the Judicial Magistrate is affirmed. [Para 53][1032-G-H]

Satish Chander Ahuja v. Sneha Ahuja (2021) 1 SCC 414; Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and Another (2014) 10 SCC 736 : [2014] 10 SCR 479; V. D. Bhanot v. Savita Bhanot (2012) 3 SCC 183 : [2012] 1 SCR 867; Krishna Bhattacharjee v. Sarathi Choudhury and Another (2016) 2 SCC 705 : [2015]

14 SCR 65; Saraswathy v. Babu (2014) 3 SCC 712 : [2013] 12 SCR 914; Rashmi Kumar v. Mahesh Kumar Bhada (1997) 2 SCC 397 : [1996] 10 Suppl. SCR 347; Ajay Kumar v. Lata alias Sharuti and Others (2019) 15 SCC 352 : [2019] 6 SCR 283; Satish Chander Ahuja v. Sneha Ahuja (2021) 1 SCC 414; S. R. Batra v. Taruna Batra (2007) 3 SCC 169 : [2006] 10 Suppl. SCR 1206; Harbhajan Singh v. Press Council of India AIR 2002 SC 1351 : [2002] 2 SCR – referred to.