# SATISH CHANDER AHUJA v. SNEHA AHUJA

- **Citation:** [2020] 12 S.C.R. 189
- **Court:** Supreme Court of India
- **Decided:** 2020-10-15
- **Case number:** Civil Appeal No.3483 of 2020
- **Bench:** Ashok Bhushan, R. Subhash Reddy, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satish-chander-ahuja-v-sneha-ahuja-34520
- **Pages:** 90

## Headnote

Protection of Women from Domestic Violence Act, 2005: ss.12,
19 - In a complaint filed under s.12 of Act, 2005, an interim order
was passed in favour of complainant directing the respondent
arrayed in the complaint i.e. husband not to dispossess the
complainant without orders of a competent court - Suit filed by
father-in-law thereafter praying for a mandatory and permanent
injunction in respect of suit property against the complainantdefendant - Maintainability of - Held: Suit filed in civil court for
mandatory and permanent injunction was fully maintainable - The
issues raised by the plaintiff as well as by the defendant claiming a
right under s.19 were to be addressed and decided on the basis of
evidence led by the parties in the suit.
Protection of Women from Domestic Violence Act, 2005: s.26
- Relief in suit or legal proceedings - As per s.26, any relief available
under ss.18, 19, 20, 21 and 22 of the Act, 2005 may also be sought
in any legal proceeding, before a civil court, family court or a
criminal court being the aggrieved person - In a suit for mandatory
and permanent injunction filed by the appellant (father-in-law) where
respondent (daughter-in-law) has pleaded and claimed that the suit
property 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 was filed by the appellant, 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
s.26 of Act, 2005.
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Protection of Women from Domestic Violence Act, 2005: s.19
- Pendency of proceedings under the Act, 2005 or any order interim
or final, passed u/s.19 regarding right of residence is not an embargo
for initiating/continuing any civil proceedings, which relate to subject
matter of order interim or final passed in proceedings under the
Act.
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

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SATISH CHANDER AHUJA
v.
SNEHA AHUJA
(Civil Appeal No.3483 of 2020)
OCTOBER 15, 2020
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ.]
Protection of Women from Domestic Violence Act, 2005: ss.12,
19 - In a complaint filed under s.12 of Act, 2005, an interim order
was passed in favour of complainant directing the respondent
arrayed in the complaint i.e. husband not to dispossess the
complainant without orders of a competent court - Suit filed by
father-in-law thereafter praying for a mandatory and permanent
injunction in respect of suit property against the complainantdefendant - Maintainability of - Held: Suit filed in civil court for
mandatory and permanent injunction was fully maintainable - The
issues raised by the plaintiff as well as by the defendant claiming a
right under s.19 were to be addressed and decided on the basis of
evidence led by the parties in the suit.
Protection of Women from Domestic Violence Act, 2005: s.26
- Relief in suit or legal proceedings - As per s.26, any relief available
under ss.18, 19, 20, 21 and 22 of the Act, 2005 may also be sought
in any legal proceeding, before a civil court, family court or a
criminal court being the aggrieved person - In a suit for mandatory
and permanent injunction filed by the appellant (father-in-law) where
respondent (daughter-in-law) has pleaded and claimed that the suit
property 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 was filed by the appellant, 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
s.26 of Act, 2005.
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Protection of Women from Domestic Violence Act, 2005: s.19
- Pendency of proceedings under the Act, 2005 or any order interim
or final, passed u/s.19 regarding right of residence is not an embargo
for initiating/continuing any civil proceedings, which relate to subject
matter of order interim or final passed in proceedings under the
Act.
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
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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
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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
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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
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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
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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
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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
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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]
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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
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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
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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
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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
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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
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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
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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
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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.
Case Law Reference
[2016] 9 SCR 515
referred to
Para 23
[1987] 3 SCR 1184
referred to
Para 34
[2016] 2 SCR 608
referred to
Para 37
[1978] 3 SCR 782
referred to
Para 39
[2017] 6 SCR 356
referred to
Para 40
[2007] 4 SCR 347
referred to
Para 49
[2019] 10 SCR 381
referred to
Para 50
[1977] 1 SCR 878
referred to
Para 51
[2009] 1 SCR 1109
referred to
Para 52
[2006] 10 Suppl. SCR 1206
not correct law
Para 64
[2008] 4 SCR 1077
held inapplicable
Para 65
[2012] 3 SCR 84
referred to
Para 79
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[2011] 7 SCR 60
referred to
Para 86
[2015] 9 SCR 179
referred to
Para 86
[2017] 5 SCR 488
referred to
Para 93
[2003] 5 Suppl. SCR 98
relied on
Para 113
[1959] SCR 1111
referred to
Para 118
[1992] 2 SCR 1
referred to
Para 118
[1954] SCR 1144
referred to
Para 139
[1959] SCR 1384
referred to
Para 142
[2002] 2 Suppl. SCR 350
referred to
Para 143
[2005] 2 SCR 708
referred to
Para 148
[2009] 7 SCR 17
referred to
Para 149
[2009] 7 SCR 977
referred to
Para 151
[2010] 10 SCR 16
referred to
Para 152
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3483
of 2020.
From the Judgment and Order dated 18.12.2019 of the High Court
of Delhi at New Delhi in R.F.A. No. 381 of 2019.
Nidhesh Gupta, Sr. Adv. Prabhjit Jauhar, Ms. Tulika Bhatnagar,
Mr. S. S. Jauhar, Mohit Paul, Prashant Mehta, Himanshu Kapoor,
Ms. Prachi Mehta, Prateek Dhanda, Ms. Sunaina Phul, Madhav Gupta,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted.
2. This appeal raises important questions of law pertaining to the
interpretation and working of the Protection of Women from Domestic
Violence Act, 2005 (hereinafter referred to as "Act, 2005").
3.