# Maharaj Kumari Vishnupriya v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 569
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-20
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maharaj-kumari-vishnupriya-v-state-of-u-p-ors-52146
- **Pages:** 18

## Headnote

Criminal Law - Protection of Women from
Domestic Violence Act, 2005 - Sections
3, 12, 23, 18 &22 - The Code of Criminal
Procedure, 1973 - Section 340 -
Applicability of DV Act is due to domestic
violence inflicted on petitioner who is in
a domestic relationship with respondent
no.2, related by consanguinity - The
protection order u/s 18 is being sought in
application
u/s
23

in respect
of
immovable property - Till the issue of
title with regard to properties is finally
decided
by
competent
court,
the
petitioner claiming to be an 'aggrieved
person' in a 'domestic relationship', is
subjected to 'domestic violence', entitled
to claim benefits and protection - Civil
Court have jurisdiction to determine
rights of parties and make appropriate
decrees - Where in application u/s 12,
permissible
amendment
in
view
of
subsequent
developments
is
made,
additional permissible relief is sought, a
fresh application u/s 23 would be
maintainable - Protection order to be
passed by Magistrate on being satisfied
that domestic violence had taken place or
was likely to take place - Direction to
petitioner to move application before
civil court, where civil suit is pending,
pertaining to properties for temporary
injunction
or
protection
order
-
Directions accordingly. (Para 26, 27, 29,
30)

Petition disposed. (E-13)

List of Cases cited:

## Text

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5 All. Maharaj Kumari Vishnupriya Vs. State of U.P. & Ors.
569
----------
(2024) 5 ILRA 569
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2024

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Matters U/A 227 No. 8348 of 2023 (CIVIL)

Maharaj Kumari Vishnupriya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rithvik Upadhyay, Sri V.K. Upadhyay (Sr.
Adv.)

Counsel for the Respondents:
C.S.C., Sri Sanjay Singh, Sri Saurabh Raj
Srivastava, Sri Anil Kumar (Sr. Adv.)

Criminal Law - Protection of Women from
Domestic Violence Act, 2005 - Sections
3, 12, 23, 18 &22 - The Code of Criminal
Procedure, 1973 - Section 340 -
Applicability of DV Act is due to domestic
violence inflicted on petitioner who is in
a domestic relationship with respondent
no.2, related by consanguinity - The
protection order u/s 18 is being sought in
application
u/s
23

in respect
of
immovable property - Till the issue of
title with regard to properties is finally
decided
by
competent
court,
the
petitioner claiming to be an 'aggrieved
person' in a 'domestic relationship', is
subjected to 'domestic violence', entitled
to claim benefits and protection - Civil
Court have jurisdiction to determine
rights of parties and make appropriate
decrees - Where in application u/s 12,
permissible
amendment
in
view
of
subsequent
developments
is
made,
additional permissible relief is sought, a
fresh application u/s 23 would be
maintainable - Protection order to be
passed by Magistrate on being satisfied
that domestic violence had taken place or
was likely to take place - Direction to
petitioner to move application before
civil court, where civil suit is pending,
pertaining to properties for temporary
injunction
or
protection
order
-
Directions accordingly. (Para 26, 27, 29,
30)

Petition disposed. (E-13)

List of Cases cited:

1. Satish Chander Ahuja Vs Sneha Ahuja, (2021)
1 SCC 414

2. Himani Alloys Ltd. Vs Tata Steel Ltd, (2011) 15
SCC 273

3. Kunapareddy Vs Kunapareddy Swarna Kumari
&oOrs., (2016) 11 SCC 774

4. Vaishali Abhimanyu Joshi Vs Nanasaheb Gopal
Joshi, (2017) 14 SCC 373

5. Deoki Panjhiyara Vs Shashi Bhushan Narayan
Azad & anr, (2013) 2 SCC 137

(Delivered by Hon'ble Jayant Banerji, J.)

1. Heard Shri V.K. Upadhyay, learned
Senior Advocate assisted by Shri Ritvik
Upadhya, learned counsel for the petitioner
and Shri Anil Kumar Srivastava, learned
Senior Advocate assisted by Shri Saurabh
Raj Srivastava, learned counsel appearing
for the respondents.

2. This petition has been filed seeking
to set aside the order dated 2.6.2023 passed
by the Additional District Judge, Court No.
14, Varanasi in Criminal Appeal No. 70 of
2022 (Maharaj Kumari Vishnupriya vs.
State of U.P. and others) with a further relief
to prohibit and restrain the respondents from
committing any act of economic abuse
against the petitioner by alienating or
creating in any manner whatsoever third
party interest over any part of the properties
570 INDIAN LAW REPORTS ALLAHABAD SERIES
as mentioned in the schedule to the
application
dated
30.10.2021
of
the
petitioner (Annexure No. 7) and also not to
interfere in the peaceful possession of the
petitioner.

3. It appears from the record of this
petition that the petitioner is the daughter of
late Vibhuti Narain Singh, who was the
erstwhile ruler of the State of Banaras and
has been continuously living in the fort of
Ramnagar since childhood. The respondent
No. 2 is the youngest sibling of the petitioner
and son of late Vibhuti Narain Singh who
also continues to stay along with the
petitioner as a family member in the
Ramnagar Fort even after the demise of his
father on 25.12.2000.

4. After the death of their father, it is
alleged that the petitioner and another
family
member
were
subjected
to
misbehaviour, manhandling and torture,
which were engineered to dispossess her
from her residence in Ramnagar Fort and
other properties to which she is entitled. The
reasons for staying in her matrimonial home
has been explained by the petitioner in
paragraph nos. 7, 8 and 9 of the petition. It
has been stated that after the death of
Vibhuti Narain Singh, domestic violence
was committed by the Respondent No. 2 and
he took into his custody various documents
including the recorded family settlement of
8.12.1969 which was reduced in writing on
16.7.1970 and other documents of title, etc.
and he created a situation in the residence
which became non-conducive to the
peaceful residence of the petitioner. This led
to the institution of a case by means of an
application under Section 12 read with
Section 23 of the Protection of Women from
Domestic Violence Act, 2005 in October
2011. The court of the Additional Chief
Judicial Magistrate, Court No. 10, Varanasi,
by an order dated 21.10.2011, prohibited the
petitioner no. 2 from interfering in the
shared household in the possession of the
petitioner over properties reflected in
Annexure Nos. C1 and C2 of the application
and not to evict her, not to create any
hindrance and not to harass her during
pendency of the aforesaid case under the DV
Act. The order dated 21.10.2011 was
affirmed by the Supreme Court.

Thereafter an application under
Section 23 of the DV Act was filed on
30.10.2021 seeking a direction under
Section 18 of the DV Act for restraining the
petitioner No. 2 from transferring the
properties specified in the schedule to that
application. The schedule to the application
specified several plots of land with their
respective areas in Mauza Kodopur, Pargana
Ramnagar, Tehsil and District Varanasi.
Objections were filed by the respondent No.
2 on 7.1.2021. By an order dated 12.4.2022,
the trial court observed that it is the civil
court which would be competent to grant the
relief sought in the application dated
30.10.2021. Challenging the aforesaid order
dated 12.4.2022, an appeal bearing Criminal
Appeal No. 70 of 2022 was filed in the court
of the District and Sessions Judge, Varanasi
seeking setting aside of the order dated
12.4.2022. By the impugned judgment and
order dated 2.6.2022, the appeal was
dismissed.

5. The contention of the learned
counsel for the petitioner is that the property
in dispute includes both that are mentioned
in the schedule to the application made by
the petitioner in the year 2011 under Section
12 read with Section 23 of the DV Act, as
well as the properties mentioned in the
schedule enclosed with the application dated
30.10.2021. It is stated that given the
definition of the terms "aggrieved person",
5 All. Maharaj Kumari Vishnupriya Vs. State of U.P. & Ors.
571
"domestic
relationship",
"domestic
violence", "shared household" appearing in
section 3 of the DV Act, as well as the term
"economic abuse" appearing in Explanation
1 to Section 3 of the DV Act, the properties
in dispute are well within the jurisdiction of
the courts under the DV Act. It is stated that
the Magistrate is empowered to grant
protection
orders
for
prohibiting
the
respondents from committing any act of
domestic violence as well as for prohibiting
the respondents from alienating any assets
of the aggrieved person that may be held
jointly by the aggrieved person and the
respondent or singly by the petitioner,
including her 'stridhan' or any other
property held either jointly by the parties or
separately by them. It is further contended
that given the provisions of Section 26 of the
DV Act, any relief available under Sections
18, 19, 20, 21, and 22 may also be sought in
any legal proceeding, before civil court,
family court, or a criminal court, affecting
the aggrieved person and the respondent,
whether such proceeding was initiated
before or after the commencement of the DV
Act, and any relief referred in that provision
could be sought for in addition to and along
with any other relief that the aggrieved
person may seek in such suit or legal
proceeding before a civil or criminal court.
However, the only condition that is imposed
on the aggrieved person is that in case any
relief has been obtained by her in any
proceedings other than the proceeding under
the DV Act, she shall be bound to inform the
magistrate for the grant of such relief. The
contention is that given the fact that the
family settlement of 8.12.1969 that was
reduced in writing on 16.7.1970 which has
been admitted by the respondent no. 2 time
and again in various proceedings including
in the proceedings under the D.V. Act, the
courts exercising jurisdiction under the DV
Act had jurisdiction to grant an appropriate
order under Section 23 of the DV Act, and it
is a case of failure to exercise jurisdiction by
the courts concerned against which the
petitioner is aggrieved. The learned counsel
has referred to a judgment of the Supreme
Court in the case of Satish Chander Ahuja
v. Sneha Ahuja to contend that the court
while exercising jurisdiction under Section
18 of the DV Act would exercise civil
jurisdiction. The learned counsel has
referred to Annexure No. 1 in the rejoinder
affidavit to contend that the appellate court
had noticed that the Protection Officer in its
letter dated 28.4.2018 had no right to travel
beyond the scope of the inquiry that she was
required to conduct. The learned counsel for
the petitioner has further sought to contend
that the delay attributed to the petitioner in
filing the subsequent application dated
30.10.2021 was not as a result of any
deliberate act on her part but was actually
attributable to the circumstances emerging
out of transfer of properties by the
respondent No. 2 in the year 2021.

Learned counsel for the petitioner
has also pressed an application No.3 of 2023
filed under Chapter XXII Rule 1 of the
Allahabad High Court Rules read with
Section 340 Cr.P.C. for initiation of criminal
prosecution against the respondent no.2 and
one Shatrughan Singh for deliberately
making the false and misleading statement
in the counter affidavit dated 6.11.2023.

6. On the other hand, Shri Anil Kumar
Srivastava, learned Senior Advocate has
referred to the judgment of the High Court
dated 4.1.2019 and the order of the Supreme
Court dated 2.9.2019 to contend that the
subsequent application dated 30.10.2021
was deliberately filed by the petitioner to
delay and defeat the outcome of the case
instituted under the DV Act which were
directed by this Court as well as by the
572 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme
Court
for
being
decided
expeditiously. The learned counsel has
referred to orders passed by the trial and
appellate courts. It is stated that mutation
with regard to the disputed properties has
already taken place in favour of the
respondent no. 2 and as such, no stay or
injunction can be granted by the criminal
court under the provisions of the DV Act
inasmuch as it is the civil court which is
competent to adjudicate that matter relating
to immovable properties. The learned
counsel for the respondent No. 2 has
referred to a communication made by the
Protection
Officer,
Varanasi
dated
28.4.2018, that has been enclosed as an
Annexure No. 1 to the counter affidavit, to
contend that a categorical observation was
made in that letter that there is no evidence
of domestic violence because both the
plaintiff and the respondent are residing in
their separate portions of the premises.
Learned counsel has also referred to the
Original Suit No. 165 of 2022, a copy of the
plaint, which has been enclosed as Annexure
No. 3 to the counter affidavit to demonstrate
that a civil suit with regard to the property in
dispute is pending. It is therefore urged that
rejection of the application dated 30.10.2021
was justified.

7. On perusal of the record, it appears
that the aforesaid application under Section
12 read with Section 23 of the DV Act,
bearing No.829 of 2011, was filed by the
petitioner against the respondent no.2
claiming to be an aggrieved person who is
living in a shared household in a domestic
relationship and is being subjected to
domestic violence. The petitioner stated that
she was residing in her paternal home and
soon after the death of her father, the
respondent no.2 asked her to leave the house
and subjected her to domestic violence.
Allegation of damage to the rooms, kitchens
and storerooms that are in her possession by
the respondent no.2 was made, the details of
which
properties
were
mentioned
in
Annexures C-1 and C-2 enclosed alongwith
the application. A relief, inter alia, was
sought against the respondent no.2 for
restraining him and his agents from
dispossessing the petitioner from the shared
household or making any alteration or
demolition in the said portions which are in
the exclusive possession of the petitioner.
By an order of 21.10.2011, the Magistrate
passed the restraint order in respect of that
part of the shared household reflected in
Annexures C-1 and C-2 to the aforesaid
application.

8. The order dated 21.10.2011 was
challenged in an appeal before the
Additional Sessions Judge who, by his
judgment
and
order
dated
7.3.2013,
dismissed the appeal and affirmed the order
dated 21.10.2011 passed by the Magistrate.
Against
the
aforesaid
orders
dated
21.10.2011 and 7.3.2013, Criminal Revision
No.1499 of 2013 was preferred by the
respondent no.2 before this Court, in which
the Court held that there was no error in the
orders dated 21.10.2011 and 7.3.2013.
However, the applications pending before
the trial court as well as the Case No.829 of
2011 itself were directed to be decided
expeditiously. The judgment of this Court in
the
aforesaid
criminal
revision
was
challenged before the Supreme Court by
means
of
a
Special
Leave
Petition
(Criminal), which was dismissed by an order
dated 2.9.2013 while directing the trial court
to expeditiously dispose of the case within a
period of six months.

9. Thereafter, certain plots of
agricultural
land
situated
in
Mauza
Kodopur, Pargana Ramnagar, Tehsil &
District Varanasi, that are stated to be part of
5 All. Maharaj Kumari Vishnupriya Vs. State of U.P. & Ors.
573
an oral family settlement, which later came
to be recorded in a memorandum, were
being alienated by the respondent no.2
despite the fact that, as stated, the petitioner
alone was the owner under the family
settlement. Therefore, the aforesaid fresh
application dated 30.10.2021 was filed by
the petitioner under Section 23 of the DV
Act seeking protection order under Section
18 in respect of those immovable properties.

10. Objections were filed by the
respondent no.2 and in paragraph 7 whereof,
apparently, an admission was made with
regard to the family settlement. The claim of
the petitioner made in the application dated
30.10.2021 was refuted. By an order dated
12.4.2022, the Magistrate rejected the
application dated 30.10.2021 filed by the
petitioner. The Magistrate observed that a
civil suit is pending between the parties
and in the revenue records, the name of the
respondent no.2 was recorded; that till the
time the civil court does not decide the
suit, it cannot be said with certainty that
the petitioner is the owner of the property;
that as only on that basis the respondent
no.2 is alienating the property, he cannot
be restrained under the DV Act. The
Magistrate noted that on 21.10.2011, with
regard to the shared household of the
petitioner, an interim relief was granted
till the final disposal of the application
under the DV Act; that in Annexures C-1
and C-2, there is no record of any arazi
number, whereas the application dated
30.10.2021 reflects several arazi numbers
along with areas seeking relief with
respect to those properties. It was held that
the petitioner had not been able to prove
how the order dated 20.10.2011 was being
violated; that orders could be passed only
with regard to the shared household under
the DV Act, and that no order could be
made for restraining the transfer of
properties as sought in the application. It
was, accordingly, held that the jurisdiction
with regard to the restraining transfer of
the properties mentioned in the application
dated 30.10.2021 was with the civil court
and as far as the right of the petitioner with
regard to the shared household is
concerned, an order dated 20.10.2011 had
already been passed. The application dated
30.10.2021 filed by the petitioner was,
accordingly, rejected.

11. Against the aforesaid order of the
Magistrate, an appeal being Criminal
Appeal No.70 of 2022, was filed by the
petitioner in which objections were filed
by the respondent no.2. The respondent
no.2 stated that he is the recorded owner
of the properties mentioned in the
application
dated
30.10.2021.
The
petitioner had no right over the personal
properties of the erstwhile ruler of
Banaras; his name is recorded in the
khatauni as per rules and if there is any
objection to the same, it may be raised
before the revenue courts; there is no
jurisdiction of the Magisterial court nor
can any interference be made therein;
there
is
no
collusion
between
the
respondent
no.2
and
the
vendees
mentioned in the two sale-deeds; the
vendees are not parties to the proceedings
and in this connection it is only the civil
court which has jurisdiction to try the
matter regarding the two sale-deeds; in
case there is any non-compliance of the
order of the court, then it has to be clearly
mentioned
in
the
application;
the
petitioner has sought a new relief in that
application,
and
accordingly,
the
application deserves to be dismissed.

12. The appellate court framed a point
for determination that whether another
application under Section 23 of the DV Act
574 INDIAN LAW REPORTS ALLAHABAD SERIES
can be filed during the validity of the order
dated 2.10.2011 (sic 21.10.2011) passed in
the previous application under Section 23 of
the DV Act.

13. The appellate court noted that the
previous order dated 21.10.2011 mentioned
in the application dated 30.10.2021 reflects
that an order under Section 23 of the DV Act
was passed and on the part of the properties
in possession reflected in Annexures C-1
and C-2, the respondent no. 2 was restrained
from evicting the petitioner, creating any
obstruction to persons meeting her and
creating any obstruction with regard to the
repairs being carried out by the petitioner in
her portion of the properties; the complaint
under Section 23 is pending trial. The
appellate court observed that the issue
whether the respondent No. 2 had right to
execute the sale-deeds dated 20.7.2021 and
24.8.2021, can be decided by a civil court in
a civil suit. Under the DV Act, a summary
proceeding is prescribed in which the
criminal procedure is used and under the
circumstances, at the stage of the appeal or
the trial, the issue cannot be looked into.

It was observed that as regards the
entries made in the revenue records, the
name of respondent no.2 is recorded and the
petitioner had stated that she is the owner of
the same immovable properties under a
family settlement. It was observed that while
adopting summary proceedings prescribed
under the DV Act, the issue (regarding
immovable properties) cannot be decided by
the court; that in case any property is
charged against the maintenance amount,
then in respect of those properties, orders
can be passed by the concerned court that
that property would remain encumbered
with the charge. It was held that since no
charge was created with regard to any
interim maintenance, therefore, such an
order also could not be passed. It was
observed that if the name of the respondent
had been wrongly recorded, for setting it
aside, the responsibility rested with the
petitioner as the entries made in the revenue
records are presumed to be correct.
However, the appellate court did observe
that the entries in the revenue records are not
proof of title but pertain to recovery of land
revenue only. It was observed that the
proceedings under the DV Act are 'quasi-civil'
which have to be decided on preponderance of
probability and since, on the basis of
possession, a prima facie presumption can be
drawn regarding ownership; under such
circumstances,
only
by
the
procedure
prescribed by law, the matter can be set aside
by the revenue court. The appellate court held
that the petitioner is admittedly enforcing her
right relating to immovable properties which
cannot be done under the DV Act; the order of
the trial court dated 12.4.2022 was passed after
including (sic) the order dated 21.10.2011 and
no fact had been stated that the order has been
disobeyed; in the original complaint no such
prayer had been sought by the petitioner as in
the application dated 30.10.2021. During the
effectiveness of the order dated 20.10.2011
(sic 21.10.2011), further interim order was
being sought and that too in respect of a
subject matter for which no relief can be
granted under the DV Act. The appeal was,
accordingly, dismissed.

14. As noted above, initially the
application/complaint dated 11.10.2011 under
section 12 read with section 23 of the DV Act
was filed seeking relief in respect of the shared
household that was mentioned in Annexures C1 and C-2 to that application. The interim order
passed by the Magistrate dated 21.10.2011 is
effective till the disposal of the complaint case.

15. Sections 12 to 29 of the DV Act fall
under Chapter IV of the DV Act, which
5 All. Maharaj Kumari Vishnupriya Vs. State of U.P. & Ors.
575
relates to procedures for obtaining orders
seeking reliefs. Under Section 12 of the DV
Act, an aggrieved person or a Protection
Officer or any other person on behalf of an
aggrieved person may present an application
to the Magistrate seeking one or more reliefs
under the DV Act. The reliefs sought for
may include a relief for issuance of an order
for payment of compensation or damages
without prejudice to the right of such
persons to institute a suit for compensation
or damages for the injuries caused by the
acts of domestic violence committed by the
respondent. Every application is required to
be in the prescribed format or as nearly as
possible thereto. The Magistrate is enjoined
to endeavour to dispose of every such
application within a period of 60 days from
the date of its first hearing. Section 13
provides for service of notice on the
respondent concerned and on any other
person, through the Protection Officer.
Section 14 gives power to the Magistrate to
direct the respondent or aggrieved person to
undergo counselling with any member of the
service
provider
possessing
such
qualifications and experience in counselling
as may be prescribed. Section 15 deals with
assistance of welfare experts to the
Magistrate. Section 16 gives a discretion to
the Magistrate to conduct the proceedings
under the DV Act in camera. Section 17
deals with the right of every woman in a
domestic relationship to reside in the shared
household whether or not she has right, title
or any beneficial interest in the same. The
aggrieved person cannot be evicted or
excluded from the shared household or any
part of it by the respondent except in
accordance with the procedure established
by law. Section 18 deals with protection
order that may be passed by the Magistrate
on being satisfied that domestic violence has
taken place. Section 19 deals with residence
orders that may be passed by the Magistrate
on being prima facie satisfied that domestic
violence has taken place, where the matter
concerns the residence of the aggrieved
person in a shared household. Section 20
provides for direction regarding monetary
relief which may be made by the Magistrate
while disposing of the application under
sub-section (1) of section 12. Section 21
deals with custody orders that may be passed
by the Magistrate at any stage of hearing of
the application for protection order in
respect of temporary custody of any child or
children to the aggrieved person or the
person making an application on her behalf.
Section 22 deals with compensation orders
that the Magistrate may pass in addition to
other reliefs as may be granted under the DV
Act. Section 23 invests power in the
Magistrate to pass an interim ex-parte order
as he deems just and proper, on the basis of
an affidavit of the aggrieved person under
Sections 18, 19, 20, 21 or, as the case may
be, Section 22, against the respondent.
Section 25 provides for the duration and
alteration of protection orders made under
Section 18. Section 26 reads as follows:-

"26. Relief in other suits and
legal proceedings.

1) Any relief available under
sections 18, 19,20, 21 and 22 may also be
sought in any legal proceeding, before a
civil court, family court or a criminal court,
affecting the aggrieved person and the
respondent whether such proceeding was
initiated before or after the commencement
of this Act.

(2) Any relief referred to in subsection (1) may be sought for in addition to
and along with any other relief that the
aggrieved person may seek in such suit or
legal proceeding before a civil or criminal
court.

(3) In case any relief has been
obtained by the aggrieved person in any
576 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings other than a proceeding under
this Act, she shall be bound to inform the
Magistrate of the grant of such relief."

Section 27 provides for the
jurisdiction of the court of Judicial
Magistrate or the Metropolitan Magistrate
and that the order made in the DV Act shall
be enforceable throughout India. Section 28
reads as follows:-

"28. Procedure.

(1) Save as otherwise provided in
this 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 (2 of 1974).

(2) Nothing in sub-section (1)
shall prevent the court from laying down its
own
procedure
for
disposal
of
an
application under section 12 or under subsection (2) of section 23."

Section 29 provides for an appeal
to the Court of Session from the order of the
Magistrate.

16. Certain terms that have been
defined in Section 2 of the DV Act merit
consideration:-

"(a) "aggrieved person" means
any woman who is, or has been, in a
domestic relationship with the respondent
and who alleges to have been subjected to
any act of domestic violence by the
respondent;

..................

(f) "domestic relationship" means
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 consanguinity, marriage, or through a
relationship in the nature of marriage,
adoption or are family members living
together as a joint family;

(g) "domestic violence" has the
same meaning as assigned to it in section 3;

....................

(o) "protection order" means an
order made in terms of section 18;

(p) "residence order" means an
order granted in terms of sub-section (1) of
section 19;

....................

(s) "shared household" means a
household where the person aggrieved lives
or at any stage has lived in a domestic
relationship either singly or along with the
respondent and includes such a house hold
whether owned or tenanted either jointly by
the aggrieved person and the respondent, or
owned or tenanted by either of them in
respect of which either the aggrieved person
or the respondent or both jointly or singly
have any right, title, interest or equity and
includes such a household which may
belong to the joint family of which the
respondent is a member, irrespective of
whether the respondent or the aggrieved
person has any right, title or interest in the
shared household.

................."

The
definition
of
"domestic
violence" is provided under Chapter II of the
DV Act as under:-

"3.
Definitions
of
domestic
violence.

For the purposes of this Act, any
act, omission or commission or conduct of
the respondent shall constitute domestic
violence in case it--

 (a) harms or injures or endangers
the health, safety, life, limb or well-being,
whether mental or physical, of the aggrieved
person or tends to do so and includes
causing physical abuse, sexual abuse, verbal
and emotional abuse and economic abuse; or

 (b) harasses, harms, injures or
endangers the aggrieved person with a view
5 All. Maharaj Kumari Vishnupriya Vs. State of U.P. & Ors.
577
to coerce her or any other person related to
her to meet any unlawful demand for any
dowry or other property or valuable
security; or

 (c) has the effect of threatening
the aggrieved person or any person related
to her by any conduct mentioned in clause
(a) or clause (b); or

 (d) otherwise injures or causes
harm, whether physical or mental, to the
aggrieved person.

Explanation I.--For the purposes
of this section,--

(i) "physical abuse" means any act
or conduct which is of such a nature as to
cause bodily pain, harm, or danger to life,
limb, or health or impair the health or
development of the aggrieved person and
includes assault, criminal intimidation and
criminal force;

(ii) "sexual abuse" includes any
conduct of a sexual nature that abuses,
humiliates, degrades or otherwise violates
the dignity of woman;

(iii) "verbal and emotional abuse"
includes--

(a) insults, ridicule, humiliation,
name calling and insults or ridicule specially
with regard to not having a child or a male
child; and

(b) repeated threats to cause
physical pain to any person in whom the
aggrieved person is interested;

(iv) "economic abuse" includes-
-

(a) deprivation of all or any
economic or financial resources to which the
aggrieved person is entitled under any law
or custom whether payable under an order of
a court or otherwise or which the aggrieved
person requires out of necessity including,
but not limited to, house hold necessities for
the aggrieved person and her children, if
any, stridhan, property, jointly or separately
owned by the aggrieved person, payment of
rental related to the shared house hold and
maintenance;

(b) disposal of household effects,
any alienation of assets whether movable
or
immovable,
valuables,
shares,
securities, bonds and the like or other
property in which the aggrieved person
has an interest or is entitled to use by
virtue of the domestic relationship or
which may be reasonably required by the
aggrieved person or her children or her
stridhan or any other property jointly or
separately held by the aggrieved person;
and

(c) prohibition or restriction to
continued access to resources or facilities
which the aggrieved person is entitled to use
or enjoy by virtue of the domestic
relationship including access to the shared
household.

Explanation II.--For the purpose
of determining whether any act, omission,
commission or conduct of the respondent
constitutes "domestic violence" under this
section, the overall facts and circumstances
of
the
case
shall
be
taken
into
consideration."

 (emphasis supplied)

17. Initially, the application filed by
the petitioner in the year 2011 under Section
12 read with Section 23 of the DV Act was
in respect of the properties mentioned in its
Annexures C-1 and C-2 and was specifically
in respect of the shared household. As noted
above, a protection order can be passed by
the Magistrate prohibiting the respondent
from committing any act of domestic
violence, and, accordingly, an interim order
was passed by the Magistrate on 21.10.2011,
every challenge to which has been put to
rest. However, the
application dated
30.10.2021 deals with other immovable
578 INDIAN LAW REPORTS ALLAHABAD SERIES
properties which are mentioned in the
Schedule to that application. The definition
of "domestic violence" given in Section 3 of
the DV Act is very wide. Under Explanation
I of Section 3, sub-clause (b) of clause (iv),
which pertains to 'economic abuse', the
definition uses the word "includes", and
entails disposal of household effects, any
alienation of assets whether movable or
immovable, valuables, shares, securities,
bonds and the like or other property in which
the aggrieved person has an interest or is
entitled to use by virtue of the domestic
relationship or which may be reasonably
required by the aggrieved person or her
children or her stridhan or any other
property jointly or separately held by the
aggrieved person. It is noted that in subclauses (a) and (c) of clause (iv) of
Explanation I, reference has been made to
"shared household", whereas in sub-clause
(b) thereof, there is no reference to the term
"shared household".

Explanation II, which is also very
illustrative, reads that for the purpose of
determining whether any act, omission,
commission or conduct of the respondent
constitutes "domestic violence" under this
section, the overall facts and circumstances
of the case shall be taken into consideration.

18. As noted above, in his objections, the
respondent no.2 has, prima facie, admitted the
existence of the family settlement, which
family settlement is part of the record of this
petition,
reflecting
that
the
properties
mentioned in this Schedule to the application
of the petitioner dated 30.10.2021 fall in her
share. However, this 'admission', as held by
the Supreme Court in Himani Alloys Ltd. vs.
Tata Steel Ltd., unless is clear, unambiguous
and unconditional, the discretion of the Court
should not be exercised to deny the valuable
rights of a defendant to contest the claim.

19. In view of the aforesaid provisions
of the DV Act, the observation of the
appellate court in the impugned order that
the properties mentioned in the application
dated 30.10.2021 cannot be looked into by
the court in proceedings under the DV Act,
is incorrect. Given Explanation I to Section
3, which uses the word 'includes' while
defining the term "economic abuse", and,
the 'overall facts and circumstances of the
case' that are required to be taken into
consideration in view of Explanation II, it
would bring into the ambit of the definition
of "domestic violence" the properties
mentioned in the Schedule to the application
dated 30.10.2021 filed by the petitioner.

20. An application to the Magistrate
under Section 12 can seek one or more
reliefs under the DV Act, including a relief
for issuance of an order for payment of
compensation or damages. An amendment
in the application filed under Section 12, in
view of subsequent developments, can be
sought by an aggrieved person, but for
consideration
of
such
amendment
application, the court has to see whether
certain circumstances exist. The undernoted judgment of the Supreme Court would
point to that aspect. Therefore, subject to
such amendment being effected in the
application under Section 12, it cannot be
said that the relief sought for in the
application dated 30.10.2021 filed by the
petitioner under Section 23 seeking an
interim order under Section 18, would not be
maintainable under the DV Act. In effect,
the petitioner is seeking a protection order
under Section 18 of the DV Act, which only
requires a prima facie satisfaction of the
Magistrate that domestic violence has taken
place or is likely to take place. As reflected
in Section 26 as quoted above, the very
reliefs available to the petitioner under
Sections 18, 19, 20, 21 and 22 may also be
5 All. Maharaj Kumari Vishnupriya Vs. State of U.P. & Ors.
579
sought in any legal proceeding before a civil
court, family court or a criminal court, and
the relief sought under the DV Act may be
along with any other relief that the aggrieved
person may seek in any such suit or legal
proceeding before a civil court or criminal
court.

21. It is important to note that though
a protection order passed by the Magistrate
under Section 18 of the DV Act is to be
made on his prima facie satisfaction that
domestic violence has taken place or is
likely
to
take
place,
however,
no
adjudication of title with regard to
immovable property of the aggrieved
person, in this case the petitioner, can be
made under the DV Act. As such, the
protection order sought in the application
dated 30.10.2021 is essentially in the nature
of an interim relief, which may be granted
by the court subject to due amendment in
the application under Section 12 of the DV
Act.

22. Apparently, the petitioner has filed
a suit being Original Suit No.165 of 2024 in
the court of Civil Judge (Senior Division),
Varanasi, seeking declaration, partition and
prohibitory injunction with respect to
various properties. As such, the title of the
petitioner with regard to the properties
mentioned in the Schedule to the application
dated 30.10.2021 can well be decided
therein. Suffice to state that even in the said
suit, the reliefs sought under Section 12 of
the DV Act can be sought, given the
provisions of Section 26, which aspect has
also been indicated by the Supreme Court in
a judgment cited below.

Further, for setting aside the revenue entries
on properties that the petitioner claims to her
own, it is for her to move appropriate legal
proceedings before the revenue court.

23. The purpose for enacting the DV
Act was considered by the Supreme Court in
Kunapareddy vs. Kunapareddy Swarna
Kumari & Ors. in which it observed as
follows:-

12. In fact, the very purpose of
enacting the DV Act was to provide for a
remedy which is an amalgamation of civil
rights of the complainant i.e. aggrieved
person. Intention was to protect women
against violence of any kind, especially that
occurring within the family as the civil law
does not address this phenomenon in its
entirety. It is treated as an offence under
Section 498-A of the Penal Code, 1860. The
purpose of enacting the law was to provide
a remedy in the civil law for the protection
of women from being victims of domestic
violence and to prevent the occurrence of
domestic violence in the society. It is for this
reason, that the scheme of the Act provides
that in the first instance, the order that would
be passed by the Magistrate, on a complaint
by the aggrieved person, would be of a civil
nature and if the said order is violated, it
assumes the character of criminality.

..........................................

.........................................."

After considering the procedure
for obtaining reliefs as stipulated in Chapter
IV of the DV Act, which comprises Sections
12 to 29, the Supreme Court went on to
observe as follows:-

"14. In the aforesaid scenario,
merely because Section 28 of the DV Act
provides for that (,) the proceedings under
some of the provisions including Sections
18 and 20 are essentially of civil nature. We
may take some aid and assistance from the
nature of the proceedings filed under
Section 125 of the Code. Under the said
provision as well, a woman and children can
580 INDIAN LAW REPORTS ALLAHABAD SERIES
claim maintenance. At the same time these
proceedings are treated essentially as of civil
nature."

It is also pertinent to mention here
that in the case of Kunapareddy (supra),
the Supreme Court was considering whether
an amendment application can be filed
under the DV Act for amending the
application filed under the DV Act. The
Supreme Court further observed that it
cannot be said that the Court dealing with
the application under the DV Act has no
power and/or jurisdiction to allow the
amendment
of
the
application.
The
observations of the Supreme Court are as
follows:-

"16. We understood in this
backdrop, it cannot be said that the court
dealing with the application under the DV
Act has no power and/or jurisdiction to
allow the amendment of the said application.
If the amendment becomes necessary in
view of subsequent events (escalation of
prices in the instant case) or to avoid
multiplicity of litigation, court will have
the power to permit such an amendment.
It is said that procedure is the handmaid of
justice and is to come to the aid of the justice
rather than defeating it.