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TMI Blog2022 (5) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence? - HELD THAT:- It is held that 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. Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed? - HELD THAT:- It is held that there should be a subsisting domestic relationship b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, two brothers-in-law, wife of her husband s elder brother and six sisters-in-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays after her husband died, owing to repeated taunts and abuses by the respondents. That no cross examination was conducted by the respondents to controvert this fact. Therefore, it was established that the victim did not leave her matrimonial home of her own will, but because of conduct of the respondents. v) That the aggrieved person had not re-married, following the death of Kuldeep Tyagi. Therefore, she continued to remain the daughter-in-law of the respondents family and had rights over the property of her deceased husband. Relief was granted under Section 19 of the D.V. Act, for independent residence with liberty to visit her husband s house since there was no evidence to show that the matrimonial home of the victim was in the sole ownership of the mother-in-law of the victim. That she would be entitled to enjoy the same facilities as enjoyed by her deceased husband during his lifetime. The respondents were restrained from disturbing the rights of the victim to her husband s property. However, it was clarified that the Judicial Magistrate had no jurisdiction to pass any orders in relation to getting the name of the victim entered in the revenue records. vi) That no evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court of Uttarakhand at Dehradun. By judgment dated 23rd July, 2019, the criminal revision petition was dismissed and the judgment of the Vth Additional Sessions Judge, Dehradun was sustained. The following findings were recorded by the High Court in the impugned judgment: i) That as per the provisions of Section 12 (1) of the D.V. Act, a Domestic Incident Report is required to be mandatorily filed by a Protection Officer or a service provider before the Magistrate and the Magistrate may take cognizance of an offence under the D.V. Act on the basis of such report. That in the present case, the aggrieved person had only filed an application alleging domestic violence and since the same was not accompanied by a report, the conditions of Section 12 (1) of the D.V. Act were not satisfied. ii) That in order to establish that the respondents had committed violence as contemplated under the D.V. Act, it is required that the aggrieved person was sharing a household with the respondents and there was a domestic relationship between the parties. That the aggrieved person was residing separately from the respondents from the day of her marriage. That there was no domestic rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ousehold following her husband s death, the length of the period during which household was shared by the parties, ought not be a consideration having the effect of denying the protection of the D.V. Act to the aggrieved person. (ii) It was next contended that the death of the aggrieved person s husband would not result in cessation of the domestic relationship. That the appellant-aggrieved person would continue to be related to the respondents by virtue of her marriage. That the only factor disabling the aggrieved person from continuing in a domestic relationship with the respondents was the conduct of the respondents. Nevertheless, she would be eligible to claim protection under the D.V. Act because the definition of domestic relationship as provided under Section 2 (s) of the D.V. Act which includes not only a relationship between two people who presently live together in a shared household, but also extends to persons who have, at any point of time lived together in a shared household. That the short period, following the death of her husband, during which the aggrieved person shared a household with the respondents would qualify as a period during which the aggrieved pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.V. Rules ) which requires a Protection Officer to prepare a Domestic Incident Report on receiving a complaint of domestic violence and submit the same to the Magistrate and forward copies of the Report to a police officer in charge of the police station having jurisdiction over the area were the alleged acts of domestic violence have taken place, and to the service providers in the area. Having regard to the said Rule, it was contended that the requirement to prepare a Domestic Incident Report arises only in cases where a complaint has been made by an aggrieved person, to a Protection Officer. That a Magistrate who entertains an application submitted under Section 12 of the D.V. Act, is not required by any statutory provision, to call for a Domestic Incident Report. That an application under Section 12, may be disposed of even without requiring a Domestic Incident Report to be submitted. That the only requirement of Section 12, is that, in the event that a complaint is made to a Protection Officer and such officer has submitted a report, the Magistrate shall consider the same. That in cases where a complaint is not made by a Protection Officer, there arises no reason to specifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death of Kuldeep Tyagi, the aggrieved person did not reside with the respondents. That the aggrieved person was working as a teacher and there was no evidence led to establish that she had taken leave from her job and resided in Jhabreda for thirteen days following the death of her husband. It was contended that in view of the said facts, it could not be held that a domestic relationship subsisted between the parties, on the basis of which relief could be claimed under the D.V. Act. That based on the very nomenclature of the D.V. Act, any violence alleged under the D.V. Act must always be in relation to a domestic relationship and therefore, subsistence of a domestic relationship would be a precondition to invoke Section 12 of the D.V. Act and grant reliefs contemplated under Section 18 to 20 and Section 22 of the D.V. Act. (ii) It was submitted that the facts, as narrated by the aggrieved person in the application made before the Magistrate are inaccurate and provide a fabricated version of events. (iii) It was next contended that the aggrieved person had failed to prove that her family had delivered possession of articles of Stridhana to the respondents. That the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions of the learned amicus curiae /counsel for the respective sides were on the following points for consideration which were raised vide order dated 11th February, 2022: (i) Whether the consideration of Domestic Incident Report is mandatory before initiating the proceedings under D.V. Act, in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act? (ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levelled at the point of commission of violence? (iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed? Legal Framework: 20. For an easy and immediate reference, the following provisions of the Protection of Women from D.V. Act are extracted as under: 2. Definitions.- In this Act, unless the context otherwise requires,- (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; x x x (e) domestic incident report means a report ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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, Stridhana, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (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. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. x x x 23. Power to grant interim and ex parte orders.-( 1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent. 21. Before proceeding further, it would be useful to refer to the following relevant judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V. Act by the wife is not barred by any limitation. In the said case, this Court referred to Saraswathy vs. Babu [(2014) 3 SCC 712]. Further, Dipak Misra J. (as His Lordship then was) while speaking for the Two-Judge Bench held that the definition of domestic relationship under Section 2 (f) of the D.V. Act is very wide and protection under the said provision would be given to a wife even if she is judicially separated, by observing thus : 18. The core issue that is requisite to be addressed is whether the Appellant has ceased to be an aggrieved person because of the decree of judicial separation. Once the decree of divorce is passed, the status of the parties becomes different, but that is not so when there is a decree for judicial separation. A three-Judge Bench in Jeet Singh and Ors. v. State of U.P. and Ors. (1993) 1 SCC 325 though in a different context, adverted to the concept of judicial separation and ruled that the judicial separation creates rights and obligations. A decree or an order for judicial separation permits the parties to live apart. There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time lived appearing in Section 2 (s) of the D.V. Act. This Court while considering the correctness of the law laid down in S.R. Batra vs. Taruna Batra [(2007) 3 SCC 169], concluded that the said case had not correctly interpreted Section 2(s) of the D.V. Act and that the said judgment does not lay down a correct law and observed as under : 66. .The expression at any stage has lived occurs in Section 2(s) after the words where the person aggrieved lives . The use of the expression at any stage has lived immediately after words person aggrieved lives has been used for object different to what has been apprehended by this Court in paragraph 26. The expression at any stage has lived has been used to protect the women from denying the benefit of right to live in a shared household on the ground that on the date when application is filed, she was excluded from possession of the house or temporarily absent. The use of the expression at any stage has lived is for the above purpose and not with the object that wherever the aggrieved person has lived with the relatives of husband, all such houses shall become shared household, which is not the legislative intent. The sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have noticed the definition of Respondent under the Act. The Respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In the 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. Analysis: 22. Section 12 of the D.V. Act states that 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. The proviso, however, 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. The expression aggrieved person as defined under Section 2(a) 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. Domestic relationship as defined in Section 2(f), means a relationship between two pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o reside in the shared household irrespective of whether she has any right, title or beneficial interest in the same. This right to reside in a shared household which is conferred on every woman in a domestic relationship is a vital and significant right. It is an affirmation of the right of every woman in a domestic relationship to reside in a shared household. Sub-Section (2) of Section 17 protects an aggrieved person from being evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. The distinction between Sub-Section (1) and Sub-Section (2) of Section 17 is also to be noted. While Sub-Section (2) deals with an aggrieved person which is defined in Section 2(a) of the D.V. Act in the context of domestic violence, Sub-Section (1) of Section 17 is a right conferred on every woman in a domestic relationship irrespective of whether she is an aggrieved person or not. In other words, every woman in a domestic relationship has a right to reside in the shared household even in the absence of any act of domestic violence by the respondent. 26. It is necessary to appreciate the importance and significanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in a shared household. 30. Further, though, the expression shared household is defined in the context of a household where the person aggrieved lives or has lived in a domestic relationship either singly or along with respondent, in the context of Sub-Section (1) of Section17, the said expression cannot be restricted only to a household where a person aggrieved resides or at any stage, resided in a domestic relationship. In other words, a woman in a domestic relationship who is not aggrieved, in the sense that who has not been subjected to an act of domestic violence by the respondent, has a right to reside in a shared household. Thus, a mother, daughter, sister, wife, mother-in-law and daughter-in-law or such other categories of women in a domestic relationship have the right to reside in a shared household de hors a right, title or beneficial interest in the same. Therefore, the right of residence of the aforesaid categories of women and such other categories of women in a domestic relationship is guaranteed under Sub-Section (1) of Section 17 and she cannot be evicted, excluded or thrown out from such a household even in the absence of there being any form of domestic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residing therein. In other words, the expression right to reside in the shared household is not restricted to only actual residence, as, irrespective of actual residence, a woman in a domestic relationship can enforce her right to reside in the shared household. Thus, a woman cannot be excluded from the shared household even if she has not actually resided therein that is why the expression shall not be evicted or excluded from the shared household has been intentionally used in Sub-Section (2) of Section 17. This means if a woman in a domestic relationship is an aggrieved person and she is actually residing in the shared household, she cannot be evicted except in accordance with the procedure established by law. Similarly, a woman in a domestic relationship who is an aggrieved person cannot be excluded from her right to reside in the shared household except in accordance with the procedure established by law. Therefore, the expression right to reside in the shared household would include not only actual residence but also constructive residence in the shared household i.e., right to reside therein which cannot be excluded vis- -vis an aggrieved person except in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective of whether she has the right, title or beneficial interest in the same. Also, such a right could be enforced by every woman in a domestic relationship irrespective of whether she is an aggrieved person or not. 35. In the Indian societal context, the right of a woman to reside in the shared household is of unique importance. The reasons for the same are not far to see. In India, most women are not educated nor are they earning; neither do they have financial independence so as to live singly. She may be dependent for residence in a domestic relationship not only for emotional support but for the aforesaid reasons. The said relationship may be by consanguinity, marriage or through a relationship in the nature of marriage, adoption or is a part of or is living together in a joint family. A majority of women in India do not have independent income or financial capacity and are totally dependent vis- -vis their residence on their male or other female relations who may have a domestic relationship with her. 36. In our view, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oked. 39. In a judgment of the High Court of Madras in Vandhana vs. T. Srikanth and Krishnamachari [2007 SCC Online Mad 553], authored by Ramasubramanian, J., it was held that Sections 2(f), 2(s) and 17 of the D.V. Act ought to be given the widest interpretation possible. The Court, after observing various instances and situations, held that many a woman may not even enter into the matrimonial home immediately after marriage. Therefore, it was concluded that a healthy and correct interpretation to Sections 2(f) and 2(s) of the D.V. Act would be that the words live or have at any point of time lived would include in its purview the right to live as interpreted above. It would be useful to quote from the said judgment as under:- 20. In a society like ours, there are very many situations, in which a woman may not enter into her matrimonial home immediately after marriage. A couple leaving for honeymoon immediately after the marriage and whose relationship gets strained even during honeymoon, resulting in the wife returning to her parental home straight away, may not stand the test of the definition of domestic relationship under Section 2(f) of the Act, if it is strict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsisting marriage, she is definitely in domestic relationship within the meaning of Section 2(f) of the Act and her bodily presence or absence from the shared household cannot belittle her relationship as anything other than a domestic relationship. Therefore, irrespective of the fact whether the applicant/plaintiff in this case ever lived in the house of the first respondent/first defendant after 7.2.2007 or not, her marriage to the first respondent/first defendant on 7.2.2007 has conferred a right upon her to live in the shared household. Therefore, the question as to whether the applicant/plaintiff ever lived in the shared household at any point of time during the period from 7.2.2007 to 13.6.2007 or not, is of little significance. 40. Bearing in mind the aforesaid discussion, question no. 2, namely, whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levelled is accordingly answered. It is held that 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionship in the nature of marriage to get the benefit of D.V. Act, but only to such relationships, which qualify as common law marriages. The requirements prescribed under law in order for a relationship to be recognized as a common law marriage were adumbrated as follows: (i) The couple must hold themselves out to society as being akin to spouses; (ii) They must be of legal age to marry; (iii) They must be otherwise qualified to enter into a legal marriage; (iv) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. (b) In Indra Sarma v. V.K.V. Sarma - [(2013) 15 SCC 755], the question as to whether disruption of a live-in relationship by failure to maintain a woman involved in such a relationship amounted to domestic violence within the meaning of Section 3 of the D.V. Act, was considered. It was held that entering into a marriage either under the Hindu Marriage Act or Special Marriage Act or any other personal law applicable to the parties, is entering into a relationship of public significance, since marriage, being a social institution, many rights and liabilities flow out of that re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also a strong indication. 56.7. Socialisation in public.- Holding out to the public and socialising with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage. 56.8. Intention and conduct of the parties.- Common intention of the parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship. 43. Further, the expression family members living together as a joint family is not relatable only to relationship through consanguinity, marriage or adoption. As observed above, the expression joint family does not mean a joint family as understood in Hindu Law. It would mean persons living together jointly as a family. It would include not only family members living together when they are related by consanguinity, marriage or adoption but also those persons who are living together or jointly as a joint family such as foster children who live with other members who are related by consanguinity, marriage or by adoption. Therefore, when any woman is in a domestic relationship as discussed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quent to the cessation of the relationship, the only pre-condition is that the allegation of domestic violence must relate to the period of the subsistence of relationship in the nature of marriage. (d) In the same way, when a girl child is fostered by family members living together as a joint family as interpreted above 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. In our view, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otection 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. 47. On a conjoint reading of the aforesaid provisions, it is clear that an aggrieved person on her own or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act but the proviso states that when a Domestic Incident Reported is received by the Magistrate from the Protection Officer or the service p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had no authority to issue orders and directions in favour of the appellant. (i) Following are the judgments where the High Courts have held that the Domestic Incident Report is not a sine qua non for entertaining or deciding the application under Section 12 of the D.V. Act by the learned Magistrate. a) In Nayanakumar vs. State of Karnataka [ILR 2009 Kar 4295], the High Court of Karnataka (Kalaburagi Bench) while dealing with Section 12 of the D.V. Act, held that in case a Domestic Incident Report is received by the Magistrate either from the Protection Officer or from the Service Provider, then it becomes obligatory on the part of the Magistrate to take note of the said Domestic Incident Report before passing an order on the application filed by the aggrieved party. It was further clarified that the scheme of the D.V. Act makes it clear that it is left to the choice of the aggrieved person to go before the service provider or the Protection Officer or to approach the Magistrate under Section 12 of the D.V. Act. b) In Abhiram Gogoi vs. Rashmi Rekha Gogoi [(2011) 4 Gauhati Law Reports 276], the Gauhati High Court held that Section 9(1)(b) of the D.V. Act makes it clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s judgment in the case of Ravi Kumar Bajpai vs. Renu Awasthi Bajpai [ILR (2016) MP 302], the High Court of Madhya Pradesh speaking through J.K. Maheshwari, J., while discussing on the legislative intent of the D.V. Act, held that if the legislative intent was to call for a report from the Protection Officer as a precondition by the Magistrate to act upon a complaint of aggrieved person, then it would have expressed that intention emphasizing the words in the main section. The High Court relied on various judgments pertaining to the interpretation of a provision and proviso thereof. g) The Division Bench of the High Court of Delhi in Shambhu Prasad Singh vs. Manjari [190 (2012) DLT 647] speaking through Ravindra Bhat, J. dealt with the conflicting views of the two Single Judges on the question whether a Magistrate can act straightaway on the complaint made by an aggrieved person under the D.V. Act. It was held that Section 12(1) of the D.V. Act does not mandate that an application seeking relief under the said D.V. Act must be accompanied with a Domestic Incident Report or even that it should be moved by a Protection Officer. So also, Rule 6 which stipulates the form and mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king into consideration, the report prepared by the Protection Officer and proviso to Section 12 of the D.V. Act was ignored. The Court went on to hold that the proviso ordinarily carves out an exception from the general rule enacted in the main provision. The Court emphasized that the word any in the proviso would mean one or more out of several and includes all. Therefore, even an interlocutory order directing issuance of notice would not be excluded from the rigour of the proviso. b) In the case of Ravi Dutta vs. Kiran Dutta and Another [208 (2014) DLT 61] This judgment did not consider the earlier judgment in Shambhu Prasad Singh (supra) passed by the Delhi High Court itself., the High Court of Delhi reiterated that non-consideration of Domestic Incident Report by the Trial Court while deciding an application under Section 12 of the D.V. Act violates the mandate of the said provision and therefore the order passed by the Trial Court was held to be unsustainable. On an analysis of the aforesaid judgments from various High Courts, we find that the High Courts of Andhra Pradesh, Bombay, Delhi, Gauhati, Himachal Pradesh, Jammu Kashmir, Karnataka, and Madhya Pradesh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ify 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. (b) In this regard, learned Author, Justice G.P. Singh, in Principles of Statutory Interpretation , 15th Edition, has enunciated certain rules collated from judicial precedents. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) In Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories [AIR 1965 SC 980], while considering the proviso to Section 6 of Trade Marks Act, 1940, it was observed that it would not be a reasonable construction for any statute, if a proviso which in terms purports to create an exception and seeks to confer certain special rights on a particular class of cases included in it should be held to be otiose and to have achieved nothing. (iii) In Kedarnath Jute Manufacturing Co. Ltd. vs. The Commercial Tax Officer and Others, [AIR 1966 SC 12], it was observed that the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment or to qualify something enacted therein, which, but for the proviso, would be within it . [See Craies on Statute Law - 6th Edition - P. 217]. In this case, the Court was considering Section 5(2) (a) (ii) of Bengal Finance Sales Tax Act, 1941 and Rule 27-A of Bengal Sales Tax Rules. (iv) In Dattatraya Govind Mahajan and Others Vs. The State of Maharashtra and another [AIR 1977 SC 915], a Constitution Bench of the Apex Court, while considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that Parliament would legislate only for the purpose of bringing about an effective result. (ii) In Superintendent Remembrancer of Legal Affairs to Govt. of West Bengal vs. Abani Maity - [AIR 1979 SC 1029], this Court observed that the statute is not to be interpreted merely from the lexicographer's angle. The Court must give effect to the will and in-built policy of the Legislature as discernible from the object and scheme of the enactment and the language employed therein. The words in a statute often take their meaning in the context of a statute as a whole. They are, therefore, not to be construed in isolation. 51. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence? It is held that 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. (iii) Whether there should be a subsisting domestic relationship between the aggrieved pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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