Satish Chander Ahuja vs Sneha Ahuja

Protection of Women from Domestic Violence Act, 2005: s.2(s) – Shared household – Definition of – Held: The definition of shared household in s.2(s) is an exhaustive definition – s.2(s) uses both the expressions “means and includes” – The first part of definition begins with expression “means” which is undoubtedly an exhaustive definition 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 is exhaustive and shall cover only those which fall within the purview of 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 stage has lived in a domestic relationship” – Meaning of – The words “lives or at any stage has lived in a domestic relationship” have to be given its normal and purposeful meaning – The living of woman in a household has to refer to a living which has some permanency – Mere fleeting or casual living at different places shall not make a shared household.

Protection of Women from Domestic Violence Act, 2005: s.2(s) – Interpretation of – It is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly; the household may belong to a joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household; and the shared household may either be owned 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” for purposes of s.2(q), it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved person – For grant of any relief to the defendant or for successful resisting the suit of the plaintiff, necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant – Thus, for granting any relief by the Civil Court under s.19, it has to be proved that the respondent is committing or has committed an act of domestic violence on the aggrieved person.

Protection of Women from Domestic Violence Act, 2005: s.17 – Right to residence – Every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same – This right has been expressly granted to every woman in domestic relationship to fulfill the purpose and objective of the Act – Although under the statute regulating personal law, the woman has right to maintenance, every wife has right of maintenance which may include right of residence, the right recognized by sub-section (1) of s.17 is new and 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 eventuality when despite the order of residence under s.19 an aggrieved person can be evicted or dispossessed – Held: The right to reside in shared household as granted by s.17 itself contemplates an exception in express words, i.e., “save in accordance with the procedure established by law”.

Protection of Women from Domestic Violence Act, 2005: s.17(2) – Embargo under – Held: In case, the shared household of a woman is a tenanted/allotted/licensed accommodation where tenancy/allotment/license is in the name of husband, father-in-law or any other relative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household – However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings – The embargo under s.17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent”, i.e., one who is respondent within the meaning 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 not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law – The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law – Therefore, while granting relief both in application under s.12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. Protection of Women from Domestic Violence Act, 2005: ss.17 and 19 – Proper party – In the present case, although plaintiff has not claimed any relief against his son, the husband of the respondent, hence, he was not a necessary party but in view of the fact that respondent has pleaded her right of residence in shared household relying on ss.17 and 19 of the Act, 2005 and one of the rights which can be granted under s.19 is right of alternate accommodation, the husband is a proper party – The right of maintenance as per the provisions of Hindu Adoption and Maintenance Act, 1956 is against that of the husband, hence he may be a proper party in cases when the Court is to consider the claim of respondent under ss.17 and 19 read with s.26 of the Act, 2005 – Party/Parties – Necessary party. Code of Civil Procedure, 1908: Or.I r.10 empowers the Court at any stage of the proceedings either on an application or suo moto to add a party either as plaintiff or defendant, whose presence before the Court may be necessary in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the suit – In the instant case, High Court issued directions that the matters be remanded back to trial court and at the first instance, in all cases where the respondent’s son/the appellant’s husband has not been impleaded, trial court shall direct his impleadment by invoking its suo motu powers under Or.I r.10 – The said direction is a little wide and preemptory – In event, the High Court was satisfied that impleadment of husband of defendant was necessary, the High Court itself could have invoked the power under Or.I r.10 and directed for such impleadment – When the matter is remanded back to trial court, trial court’s discretion ought not to have been fettered by issuing such a general direction – Protection of 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 cannot be claimed as a matter of right.

Res judicata: Principle of, applicability when orders of criminal courts are pitted against proceedings in civil court – Held: There can be no applicability of principle of res judicata when orders of criminal courts are pitted against proceedings in civil court – With regard to criminal proceedings, Code of Criminal Procedure also contains provision that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence – The principle enumerated in s.300 Cr.P.C. may be relevant with respect to two criminal proceedings against same accused, which might have no relevance in reference to one criminal proceeding and one civil proceeding.

Protection of Women from Domestic Violence Act, 2005: ss.12, 25, 26 – Domestic Incident Report – Held: Before any order is passed under s.12, the magistrate has to take into consideration any domestic incident report received by him from the protection officer or the service provider – That does not mean that magistrate can pass orders solely relying upon the domestic incident report received by him from the protection officer or the service provider – Even as per s.36 of the D.V. Act, the provisions of the D.V. Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force – Magistrate can also pass an interim order 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 particularly under sub-s.19(1)(b) as per the proviso to s.19(1), no order under clause (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 under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in s.26 of the D.V. Act are independent proceedings, like the proceedings under s.125 of the Cr. P.C. for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/ family court for the reliefs under the Hindu Adoption and Maintenance Act – However, the findings/orders passed by the one forum has to be considered by another forum.

Evidence Act, 1872: ss.40 to 43 – Order passed under the Act, 2005 – Relevancy and admissibility in civil proceedings – There is no embargo in referring to or relying on an admissible evidence, be of a civil court or criminal court both in civil or criminal proceedings – The judgment or order of criminal court granting an interim or final relief under s.19 of D.V. Act, 2005 are relevant within the meaning of s.43 of the Evidence Act and can be referred to and looked into by the civil court – Protection of Women from Domestic Violence Act, 2005.

Words and phrases: Meaning and extent of expression “save in accordance with the procedure established by law” in s.17 of Protection of Women from Domestic Violence Act, 2005.

Dismissing the appeal, the Court

HELD: 1.1 The use of both the expressions “means and includes” in Section 2(s) of Act, 2005 clearly indicate the legislative intent that the definition is exhaustive and shall cover only those which fall within the purview of definition and no other. The first condition to be fulfilled for a shared household is that person aggrieved lives or at any stage has lived in a domestic relationship. The second part sub-divided in two parts is- (a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and (b) includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. In the above definition, two expressions, namely, “aggrieved person” and “respondent” have occurred. From the above definition, following is clear:- (i) it is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly; (ii) the household may belong to a joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household; and (iii) the shared household may either be owned or tenanted by the respondent singly or jointly. [Paras 54, 55][230-D-H; 231-A-B]

1.2 Shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent. The words “lives or at any stage has lived in a domestic relationship” have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not. [Paras 62, 63][233-G-H; 234-A-B; 234G-H]

1.3 This Court in paragraph 29 of the judgment in *S.R. Batra Vs. Taruna Batra held that wife is only entitled to claim a right to 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 definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household. This court in *S.R. Batra Vs. Taruna Batra although noticed the definition of shared household as given in Section 2(s) but did not advert to different parts of the definition which makes it clear that for a shared household there is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband. The definition of shared household is clear and exhaustive definition. The object and purpose of the Act was to grant a right to aggrieved person, a woman of residence in shared household. The interpretation which is put by this Court in *S.R. Batra Vs. Taruna Batra if accepted shall clearly frustrate the object and purpose of the Act. [Para 64][235-C-H]

*S.R. Batra and Anr. v. Taruna Batra, (2007) 3 SCC

169 : [2006] 10 Suppl. SCR 1206 – not correct law.

Vimlaben Ajitbhai Patel v. Vatsalben Ashokbhai Patel and Ors., (2008) 4 SCC 649 : [2008] 4 SCR 1077 – held inapplicable.

1.4 In the suit filed by the appellant where respondent has pleaded and claimed that it is shared household and she has right to live and it was on that ground she was resisting the suit for mandatory injunction, the question that whether the suit property is a shared household or not becomes relevant and necessary and the said issue cannot be skipped on the ground that application under D.V. Act is pending. In the regular suit, which has been filed by the appellant, the plea of defendant that suit property is her shared household and she has right to residence could have been very well gone into by virtue of Section 26. [Para 82][244G-H; 245-A]

1.5 The right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties. [Para 83][245B-C]

2. The power under Order XII Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case, the Trial Court ought not to have given judgment under Order XII Rule 6 on the admission of the defendant as contained in her application filed under Section 12 of the D.V. Act. Thus, there are more than one reason for not approving the course of action adopted by Trial Court in passing the judgment under Order XII Rule 6. [Para 98][253-A-B]

Hiral P. Harsora and others v. Kusum Narottamdas Harsora and others, (2016) 10 SCC 165 : [2016]

9 SCR 515; Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi, (2017) 14 SCC 373 : [2017] SCR 488; Eveneet Singh v. Prashant Chaudhri, (2010) SCC online Delhi 4507; Eveneet Singh v. Prashant

Chaudhari, (2011) SCC online Delhi 4651; Preeti Satija v. Raj Kumari and Anr., (2014) SCC online Delhi 188; B. R. Mehta v. Atma Devi and Ors., (1987) 4 SCC

183 : [1987] 3 SCR 1184; Kunapareddy Alias

NookalaShanka Balaji v. Kunapareddy Swarna Kumari and Anr., (2016) 11 SCC 774 : [2016] 2 SCR 608; Captain Ramesh Chander Kaushal v. Mrs. Veena

Kaushal and Ors., (1978) 4 SCC 70 : [1978] 3 SCR 782; Manmohan Attavar v. Neelam Manmohan Attavar, (2017) 8 SCC 550 : [2017] 6 SCR 356; Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union, (2007) 4 SCC 685 : [2007] 4 SCR 347; Pioneer Urban Land and Infrastructure Limited and Anr. v. Union of India and Ors., (2019) 8 SCC 416 : [2019] 10 SCR 381; The South Gujarat Roofing Tiles Manufacturers

Association and Anr. v. The State of Gujarat and Anr., (1976) 4 SCC 601 : [1977] 1 SCR 878; Karnataka Power Transmission Corporation and Anr. v. Ashok Iron Works Private Limited, (2009) 3 SCC 240 : [2009]

1 SCR 1109 – referred to

3.1 The question whether the suit premises is shared household of the defendant and she has right in the shared household so as the decree before the Trial Court can be successfully resisted were required to be determined by the Trial Court. When in the suit, defendant has pleaded to resist the decree on the ground of her right of residence in the suit property it was for her to prove her claim in the suit both by pleadings and evidence. [Para 102][254-C-D]

3.2 One of the conditions to treat a person as a respondent is that “against whom the aggrieved person has sought any relief under the Act”. The defendant in her pleadings having claimed that she has right of residence in the suit property, she for successful resisting the suit has to plead and prove that she was subjected to any act of domestic violence by the respondent, which is implicit in the definition of the aggrieved person itself as given in the Section 2(a) of the Act, 2005. Although the Magistrate passed an interim order in the application filed by the defendant under Section 12 on 26.11.2016 but said order was interim order which was passed on the satisfaction of the Magistrate that “the application prima facie disclosed that the respondent is committing or has committed an act of domestic violence”. For granting any relief by the Civil Court under Section 19, it has to be proved that the respondent is committing or has committed an act of domestic violence on the aggrieved person. Thus, for the purposes of determination of right of defendant under Sections

17 and 19 read with Section 26 in the suit in question, the plaintiff can be treated as “respondent”, but for the grant of any relief to the defendant or for successful resisting the suit of the plaintiff, necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant. [Paras 103, 104][254-D-G; 254-G-H; 255-A]

4.1 Section 17 of the Act has two sub-sections which engraft two independent rights. According to sub-section (1), notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. This right has been expressly granted to every woman in domestic relationship to fulfill the purpose and objective of the Act. Although under the statute regulating personal law, the woman has right to maintenance, every wife has right of maintenance which may include right of residence, the right recognized by sub-section (1) of Section 17 is new and higher right conferred on every woman. The right is to be implemented by an order under Section 19, on an application filed under sub-section (1) of Section 12. Sub-section (2) of Section 17, however, contains an exception in the right granted by sub-section (2), i.e., “save in accordance with the procedure established by law”. Sub-section

(2) of Section 17, thus, contemplates that aggrieved person can be evicted or excluded from the shared household in accordance with the procedure established by law. [Paras 105, 106][255-BE]

4.2 Section 25(2) itself contemplates an eventuality when order passed under the Act can be altered, modified or revoked. The right to reside in shared household as granted by Section 17 itself contemplates an exception in express words, i.e., “save in accordance with the procedure established by law”. The procedure prescribed for proceedings under Section 19 as provided in Section 28 of the Act is as per the provisions of the Code of Criminal Procedure, 1973. The rules have been framed under the Act, 2005, namely “The Protection of Women from Domestic Violence Rules, 2006”. Rule 5 deals with Domestic Incident Report which is to be submitted by protection officer in Form I. Form-II is again part of Rule which contains various details including orders required, residence orders, under Section 19, monetary relief under Section 20, details of previous litigation, if any, and other details to enable the Magistrate to take appropriate decision. Rule 6 sub-Rule (4) provides that for obtaining an interim ex-parte order under Section 23, an affidavit is to be filed in Form-III. The Form-III is an affidavit of an aggrieved person or the person filing affidavit on behalf of his ward, daughter, etc. The Act and the Rules thus provide for a procedure and manner of filing an application for obtaining a relief under Act, 2005. [Paras 107, 109, 110, 111][256-D-H; 257-A-C]

4.3 Section 145 of Cr.P.C. provides for procedure where dispute concerning land or water is likely to cause breach of peace. Under Section 145 Cr.P.C., in case Magistrate is satisfied that a dispute likely to cause a breach of the peace exists, he may require the parties to attend the Court and to decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute. Sub-section (6) of Section 145 Cr.P.C. contemplates issuance of the order by the Magistrate declaring such party to be entitled to such possession. Sub-section (6), however, contemplates that the parties to be entitled to possession thereof until evicted therefrom in due course of law. The eviction in due course of law was contemplated to be by a competent court. This Court had occasion to consider the expression “until evicted therefrom in due course of law” as occurring in Section 145(6) in **Shanti Kumar Panda Vs. Shakuntala Devi. This Court held in the above case that the purpose of provisions of Section 145 Cr.P.C. is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. This Court held that the unsuccessful party in proceedings under Section 145 Cr.P.C. ought to sue for recovery of possession seeking a decree or order for restoration of possession. This Court further held that finding recorded by the Magistrate under Section 145 Cr.P.C. does not bind when the matter comes for adjudication before competent court. This Court explained expression “until evicted therefrom in due course of law” mean “any court which has jurisdictional competence to decide the question of title or rights to the property or entitlement to possession”. [Paras 112, 113, 114][257-C-H; 258-D-E]

**Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438 : [2003] 5 Suppl. SCR 98 – relied on

4.4 Drawing the analogy from **Shanti Kumar Panda case, the expression “save in accordance with the procedure established by law”, in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a Competent Court. In sub-section (2), the injunction is “shall not be evicted or excluded from the shared household save in accordance with procedure established by law”. Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household. [Para 116][260-B-E]

4.5 In case, the shared household of a woman is a tenanted/allotted/licensed accommodation, where tenancy/ allotment/license is in the name of husband, father-in-law or any other relative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. The embargo under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent”, i.e., one who is respondent within the meaning of Section 2(q) of Act, 2005. [Para 117][260-G-H; 261-A-B]

5.1 In the present case, although plaintiff has not claimed any relief against his son, the husband of the respondent, hence, he was not a necessary party but in view of the fact that respondent has pleaded her right of residence in shared household relying on Sections 17 and 19 of the Act, 2005 and one of the rights which can be granted under Section 19 is right of alternate accommodation, the husband is a proper party. The right of maintenance as per the provisions of Hindu Adoption and Maintenance Act, 1956 is against that of the husband, hence he may be a proper party in cases when the Court is to consider the claim of respondent under Sections 17 and 19 read with Section

26 of the Act, 2005. [Para 119][262-B-D]

5.2 Civil Procedure Code, Order I Rule 10 empowers the Court at any stage of the proceedings either on an application or suo moto to add a party either as plaintiff or defendant, whose presence before the Court may be necessary in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the suit. The High Court in paragraph 56(i) directed to remand the matters back to the Trial Court for fresh adjudication in accordance with the directions that at the first instance, in all cases where the respondent’s son/the appellant’s husband has not been impleaded, the Trial Court shall direct his impleadment by invoking its suo motu powers under Order I Rule 10 CPC. This direction is a little wide and preemptory. If the High Court was satisfied that impleadment of husband of defendant was necessary, it could have invoked the power itself under Order I Rule 10 and directed for such impleadment. The direction in paragraph 56(i) should not be treated as a general direction to the Courts to implead in all cases the husband of an aggrieved person and it is trial court which is to exercise the jurisdiction under Order I Rule 10. [Paras 120, 121][262-D-G; 263-B]

6.1 There can be no applicability of principle of res judicata when orders of Criminal Courts are pitted against proceedings in Civil Court. With regard to criminal proceedings, Code of Criminal Procedure also contains provision that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence. The principle enumerated in Section 300 Cr.P.C. may be relevant with respect to two criminal proceedings against same accused, which might have no relevance in reference to one criminal proceeding and one civil proceeding.[Para 126][264E-G]

6.2 Section 40 renders admissible judgments which operate as placing any bar on a suit or trial as plea of res judicata or otherwise under some rule of law. The scheme of D.V. Act, 2005 does not contemplate that any judgment and order passed under Section 19 of the said Act prevents any court from taking cognizance of a suit or holding of trial; Section 41 deals with relevancy of certain judgments in probate, matrimonial, admirality and insolvency jurisdiction which are conclusive not only against party but against all the world. This Section enumerates four classes of judgments. A decree of Civil Court in exercise of matrimonial jurisdiction is also one of the judgments which had been held to be relevant under Section 41. The orders passed under Act, 2005 cannot be held to be orders or judgments passed in exercise of any matrimonial jurisdiction by the Court. The Act, 2005 is a special act on the subject of providing for effective protection of the rights of women who are victims of violence of any kind. [Paras 127, 128][266-C-F]

6.3 Section 42 deals with admissibility of judgments relevant to matters of public nature though not between the parties and privy but such judgments, orders or decree are not conclusive proof of that they state. Section 43 says that judgment other than those mentioned in Sections 40 to 42 are irrelevant unless the existence of judgment, order or decree is fact in issue or is relevant under some other provisions of the Act. In the facts of this case, where there are pleadings in suit in question regarding proceeding under Section 12, the existence of orders passed under Act, 2005 are relevant and admissible in Civil Proceedings. [Para 129][266-F-H]

7.1 The proceedings under D.V. Act, 2005 are proceedings which are to be governed by Code of Criminal Procedure, 1973. The procedure to be followed by the magistrate is provided under Section 28 of the D.V. Act and as per Section 28 of the D.V. Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Even sub-section (2) of Section 28 provides that the magistrate can lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23. However, for other proceedings, the procedure is to be followed as per the provisions of the Code of Criminal Procedure, 1973. The procedure to be followed under Section 125 shall be as per Section 126 of the Cr.P.C. which includes permitting the parties to lead evidence. Therefore, before passing any orders under the D.V. Act, the parties may be permitted to lead evidence. However, before any order is passed under Section 12, the magistrate shall take into consideration any domestic incident report received by him from the protection officer or the service provider. That does not mean that magistrate can pass orders solely relying upon the domestic incident report received by him from the protection officer or the service provider. Even as per Section 36 of the D.V. Act, the provisions of the D.V. Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force. Even the magistrate can also pass an interim order as per Section 23 of the D.V. Act. [Paras 130, 131][266-H; 267-A-E]

7.2 Considering Section 12(2) and Section 26(3), read with Section 25(2), even the Legislature envisaged the two independent proceedings, one before the magistrate under the D.V. Act and another proceeding other than the proceedings under the D.V. Act. Even the Civil Court has to take into consideration the relief already granted by the Magistrate in the proceedings under the D.V. Act and vice versa.However, at the same time, in a case any relief available under Sections 18, 19, 20, 21 and 22 is sought by aggrieved person in any legal proceedings before a civil court, family court or a criminal court including the residence order, the aggrieved person has to satisfy by leading evidence that domestic violence has taken place and only on the basis of the evidence led on being satisfied that the domestic violence has taken place, the relief available under Section 19 can be granted. [Paras 132, 133, 134][267-E-H]

7.3 While passing the order of residence under Section 19, more particularly under sub-section 19(1)(b) as per the proviso to Section 19(1), no order under clause(b) shall be passed against any person who is a woman. Therefore, on conjoint reading of Sections 12(2), 17, 19, 20, 22, 23, 25, 26 and 28 of the D.V. Act, it can safely be said that the proceedings under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section 26 of the D.V. Act are independent proceedings, like the proceedings under Section 125 of the Cr. P.C. for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/ family court for the reliefs under the Hindu Adoption and Maintenance Act. However, the findings/orders passed by the one forum has to be considered by another forum. [Para 136][268-A-D] Navneet Arora v. Surender Kaur and Ors., (2014) SCC Online Del 7617; Maria Margarida Sequeira

Fernandes and Ors. v. Erasmo Jack De Sequeira, (2012)

5 SCC 370 : [2012] 3 SCR 841; Himani Alloys Limited v. Tata Steel Limited, (2011) 15 SCC 273 : [2011]

7 SCR 60; S. M. Asif v. Virender Kumar Bajaj, (2015)

9 SCC 287 : [2015] 9 SCR 179; Razia Begum v.

Sahebzadi Anwar Begum and others, AIR 1958 SC 886 : [1959] SCR 1111; Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and others, (1992) 2 SCC 524 : [1992] 2 SCR 1; M. S. Sheriff and Anr. v. State of Madras and Ors., AIR 1954 SC 397 : [1954] SCR 1144; S. M. Jakati and Anr. v. S. M. Borkar and Ors., AIR 1959 SC 282 : [1959] SCR 1384;

G. Premshankar v. Inspector of Police and Anr., (2002)

8 SCC 87 : [2002] 2 Suppl. SCR 350; Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr.,

(2005) 4 SCC 370 : [2005] 2 SCR 708; Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545 : [2009]

7 SCR 17; Vishnu Dutt Sharma v. Daya Sapra, (2009)

13 SCC 729 : [2009] 7 SCR 977; Kishan Singh (Dead) Through LRs. v. Gurpal Singh and Ors., (2010) 8 SCC

775 : [2010] 10 SCR 16; K. Subramani v. Director of Animal Husbandry, Chennai, (2009) 1 MLJ 363 –

referred to.