# PRABHA TYAGI v. KAMLESH DEVI

- **Citation:** [2022] 5 S.C.R. 970
- **Court:** Supreme Court of India
- **Decided:** 2022-05-12
- **Case number:** Criminal Appeal No. 511 of 2022
- **Bench:** M. R. Shah, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prabha-tyagi-v-kamlesh-devi-36481
- **Pages:** 64

## Headnote

Protection of Women from Domestic Violence Act, 2005:
ss.12, 17, 19, 22 - Domestic violence - Allegations of, by the
aggrieved person-wife - Death of the husband within one month of
the marriage in a car accident - Birth of daughter within a year of
marriage - After the husband's death, aggrieved person tortured
and harassed by her mother-in-law and her matrimonial family, and
was forced to leave her matrimonial home - She started working to
support herself and her child - Issuance of notice to the respondents
to return her stridhana but there was no response - Aggrieved person
then filed an application u/s. 12 before the Magistrate seeking
protection orders, residence orders and compensation orders as also
monetary reliefs - Magistrate partly allowed the application directing
the respondents to pay Rs.10,000/- as monetary compensation for
insulting and maligning the aggrieved person; that the articles of
Stridhana mentioned in the list, except the Maruti (Alto) Car, to be
given to the aggrieved person; and that the respondents would not
obstruct the aggrieved person and her daughter from enjoying the
property of her husband - First appellate court set aside the order
of the trial court - High Court upheld the same - Sustainability of
- Held: Not sustainable - Order passed by the trial court restored.
ss. 12, 18-20 and 22 - Consideration of the Domestic Incident
Report filed by a Protection Officer or service provider by the
Magistrate before passing orders under the D.V. Act, if mandatory
- Held: s. 12 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 -
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 - Aggrieved person can directly
make an application to the jurisdictional Magistrate by herself or
[2022] 5 S.C.R. 970
970
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by engaging the services of an Advocate - Although, the expression
'shall' is used in the proviso to s.12, it is restricted to only those
cases where a Protection Officer or service provider files any
Domestic Incident Report.
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.
Objec

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SUPREME COURT REPORTS
[2022] 5 S.C.R.
PRABHA TYAGI
v.
KAMLESH DEVI
(Criminal Appeal No. 511 of 2022)
MAY 12, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Protection of Women from Domestic Violence Act, 2005:
ss.12, 17, 19, 22 - Domestic violence - Allegations of, by the
aggrieved person-wife - Death of the husband within one month of
the marriage in a car accident - Birth of daughter within a year of
marriage - After the husband's death, aggrieved person tortured
and harassed by her mother-in-law and her matrimonial family, and
was forced to leave her matrimonial home - She started working to
support herself and her child - Issuance of notice to the respondents
to return her stridhana but there was no response - Aggrieved person
then filed an application u/s. 12 before the Magistrate seeking
protection orders, residence orders and compensation orders as also
monetary reliefs - Magistrate partly allowed the application directing
the respondents to pay Rs.10,000/- as monetary compensation for
insulting and maligning the aggrieved person; that the articles of
Stridhana mentioned in the list, except the Maruti (Alto) Car, to be
given to the aggrieved person; and that the respondents would not
obstruct the aggrieved person and her daughter from enjoying the
property of her husband - First appellate court set aside the order
of the trial court - High Court upheld the same - Sustainability of
- Held: Not sustainable - Order passed by the trial court restored.
ss. 12, 18-20 and 22 - Consideration of the Domestic Incident
Report filed by a Protection Officer or service provider by the
Magistrate before passing orders under the D.V. Act, if mandatory
- Held: s. 12 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 -
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 - Aggrieved person can directly
make an application to the jurisdictional Magistrate by herself or
[2022] 5 S.C.R. 970
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by engaging the services of an Advocate - Although, the expression
'shall' is used in the proviso to s.12, it is restricted to only those
cases where a Protection Officer or service provider files any
Domestic Incident Report.
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:
PRABHA TYAGI v. KAMLESH DEVI
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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
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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
PRABHA TYAGI v. KAMLESH DEVI
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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
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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.
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(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
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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
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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
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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
PRABHA TYAGI v. KAMLESH DEVI
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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
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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 &
PRABHA TYAGI v. KAMLESH DEVI
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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]
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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.
Case Law Reference
(2021) 1 SCC 414
referred to
Para 16(iii)
[2014] 10 SCR 479
referred to
Para 21(a)
[2012] 1 SCR 867
referred to
Para 21(a)
[2015] 14 SCR 65
referred to
Para 21(b)
[2013] 12 SCR 914
referred to
Para 21(b)
[1996] 10 Suppl. SCR 347
referred to
Para 21(b)
[2019] 6 SCR 283
referred to
Para 21(c)
(2021) 1 SCC 414
referred to
Para 21(d)
[2006] 10 Suppl. SCR 1206
referred to
Para 21(d)
[2002] 2 SCR 369
referred to
Para 26
[2010] 13 SCR 706
referred to
Para 42(a)
[2013] 14 SCR 1019
referred to
Para 42(b)
[1966] SCR 367
referred to
Para 49(d)(i)
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[1965] SCR 737
referred to
Para 49(d)(ii)
[1965] SCR 626
referred to
Para 49(d)(iii)
[1977] 2 SCR 790
referred to
Para 49(d)(iv)
[1985] 2 SCR 643
referred to
Para 49(d)(v)
[1961] SCR 295
referred to
Para 49(f)(i)
[1979] 3 SCR 472
referred to
Para 49(f)(ii)
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
511 of 2022.
From the Judgment and Order dated 23.07.2019 of the High Court
of Uttarakhand at Nainital in Criminal Revision No. 186 of 2014.
Dr. Vinod Kumar Tewari, Gaurav Agrawal, Advs. for the Appellant.
K. K. Srivastava, Kumar Rajeev, S. K. Verma, Advs. for the
Respondent.
The Judgment of the Court was delivered by
NAGARATHNA, J.
The aggrieved person, being the appellant herein, who had filed
Miscellaneous Case No. 78 of 2007 on the file of the Court of Special
Judicial Magistrate-I, Dehradun, has assailed judgment dated 23rd July,
2019 passed by the High Court of Uttarakhand at Nainital, in Criminal
Revision No. 186 of 2014, by which the judgment dated 11th July, 2014
passed by the Vth Additional Sessions Judge, Dehradun, in Criminal
Appeal No. 53 of 2011 setting aside the order passed by the Special
Judicial Magistrate-I, was sustained.
2. For the sake of convenience, the parties herein shall be referred
to in terms of their rank and status before the Trial Court.
Factual Background:
3. According to the aggrieved person, her marriage with Kuldeep
Tyagi (since deceased) son of late Vishnudutt Tyagi was solemnized on
18th June, 2005 at Haridwar District, Uttarakhand as per Hindu rites and
rituals and in connection with the marriage, the family members of the
aggrieved person had given dowry to the family of her deceased husband
and Stridhana to the aggrieved person. For the period immediately
following the wedding, the aggrieved person was residing at the ancestral
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home of the respondents along with her mother-in-law-respondent no.1,
two brothers-in-law, wife of her husband's elder brother and six sistersin-law. Thereafter, the aggrieved person began living with her husband
and the respondents in village Jhabreda. That Kuldeep Tyagi, husband
of the aggrieved person died on 15th July, 2005 in a car accident and
after the Terhanvi ceremony of her husband, the aggrieved person was
constrained to reside initially at Delhi, at her father's house. That
immediately prior to the death of her husband, the aggrieved person had
conceived a child.
4. That on 30th March, 2006 the aggrieved person gave birth to a
daughter and owing to the misbehavior and torture meted out to her by
her matrimonial family after her husband's death, she moved to Dehradun,
Uttarakhand with her daughter, where she began working as a teacher
to support herself and her child. That the Stridhana given to her at the
time of her wedding was never allowed to be enjoyed by her and even
following her exit from her matrimonial home, the Stridhana was being
used by her in-laws, respondent nos. 1 to 6. That the aggrieved person
had sent a legal notice dated 22nd November, 2006, requesting them to
return the articles of Stridhana, however, there was no response to the
same.
5. That the father of the aggrieved person had gifted her a Maruti
(Alto) car, at the time of her wedding and the same was registered in the
name of her deceased husband. Owing to the accident that her husband
had met with, resulting in his death, the said car had also been damaged.
That the aggrieved person's mother-in-law had submitted an application
before the insurance company, National Insurance Company which was
processing the claim for damage caused to the car, stating therein that
she was the mother of the deceased and was the only legal heir of the
deceased and therefore any compensation may be made in her favour.
6. That there exists a land in village Jhabreda to which the
deceased husband of the aggrieved person had right and title. That
respondent no. 1- mother-in-law, on being instigated by the other
respondents objected to the recording of the aggrieved persons' name in
the revenue records of the said property. Respondent no. 1 objected by
stating that the child borne by aggrieved person was not Kuldeep Tyagi's
daughter. Owing to such objection, the Court of Tehsildar passed an
order of status quo with respect to the said property.
PRABHA TYAGI v. KAMLESH DEVI
[B. V. NAGARATHNA, J.]
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7. That the respondents, on several occasions threatened the
aggrieved person that she would face dire consequences if she ever
attempted to claim any right over her husband's property. That the
respondents, having no sympathy towards the aggrieved person who
had, while pregnant, lost her husband in a fatal accident, tortured her
mentally by denying that her child was the daughter of Kuldeep Tyagi.
8. With the aforesaid averments, the aggrieved person approached
the Court of the Special Judicial Magistrate under Section 12 and sought
protection orders, residence orders and compensation orders to be passed
under various provisions of the Protection of Women from Domestic
Violence Act, 2005 (for short, the 'D.V. Act'). Further, prayers were
also made for monetary reliefs under Section 22 of the D.V. Act.
9. In response to the aforesaid application filed by the aggrieved
person, the respondents filed a joint written statement to the effect that
the marriage of the aggrieved person with Kuldeep Tyagi was solemnized
at a simple ceremony in Haridwar, on 18th June, 2005. That no dowry or
articles of Stridhana were handed over to the respondents at the time
of the ceremony, therefore, the question of returning the same to the
aggrieved person by the respondents would not arise. That the aggrieved
person could not have conceived a child through the deceased in a span
of twenty-eight days from the date of the marriage and as such a claim
was not only false but unnatural.
10. That the respondents had, in no way, tortured the aggrieved
person. That her statement to the effect that she was residing in the
ancestral home of her husband, during the period immediately following
her wedding, was untrue as she only stayed with the respondents for
one night after her marriage.
11. As regards the Maruti (Alto) car, it was stated that the same
was not a part of the Stridhana given in favour of the aggrieved person,
but was purchased by Kuldeep Tyagi, after borrowing money for this
purpose from respondent no. 1.
That the aggrieved person had, by presenting false facts had got
her name entered as the legal heir of Kuldeep Tyagi in relation to a land
owned by him. That in the said application dated 31st March, 2006, she
had stated that Kuldeep Tyagi had no issue or heirs. That an order of
status quo was obtained by respondent no. 1 by presenting the correct
facts before the Tehsildar.
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It was averred that the respondents had not committed any acts
of domestic violence. In that background, the respondents prayed before
the Trial Court that the application filed by the aggrieved person-victim
be dismissed.
12. The Special Judicial Magistrate- I, Dehradun, by judgment
dated 12th May, 2011 partly allowed the application filed by the aggrieved
person and directed the respondents to pay Rs.10,000/- as monetary
compensation for insulting and maligning the aggrieved person. The
articles of Stridhana mentioned in the list enclosed with the application,
except the Maruti (Alto) Car, were to be made available to the aggrieved
person at her Dehradun residence. It was also directed that the
respondents shall not obstruct the aggrieved person and her daughter
from enjoying the property of late Kuldeep Tyagi.
The salient findings of the Trial Court are as under:
i)
As regards the contention of the respondents to the effect
that it was unnatural that the aggrieved person was
impregnated within twenty-eight days was unnatural, the
Trial Court observed that there was an absolute possibility
of such fact. In holding so, the Trial Court relied on the
submission of the respondents to the effect that the
aggrieved person left their ancestral home on 20th June,
2005 to live independently with her husband. In light of the
said submission, the Trial Court noted that the aggrieved
person lived with her husband till the day of his death and
therefore there was nothing unnatural about her pregnancy
and therefore, the contention of the respondents that the
daughter was not Kuldeep Tyagi's, was baseless.
ii)
That no adverse inference could be drawn from the fact
that the aggrieved person had wrongly stated in the
application filed before the Tehsildar to the effect that
Kuldeep Tyagi had no heirs other than the aggrieved person,
as she had no knowledge of such statement.
iii)
That allegation pertaining to the paternity of the aggrieved
person's daughter was likely to have caused emotional harm
to her, thereby also affecting her profession as a teacher.
In that light, it was observed the aggrieved person was a
victim of domestic violence under Section 1 (d) (iii) of the
PRABHA TYAGI v. KAMLESH DEVI
[B. V.