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TMI Blog2020 (10) TMI 1379X X X X Extracts X X X X X X X X Extracts X X X X ..... i High Court has set aside the decree granted in favour of the Plaintiff dated 08.04.2019 Under Order XII Rule 6 of Code of Civil Procedure, decreeing the suit filed by the Plaintiff for mandatory and permanent injunction. The High Court after setting aside the decree of the Trial Court has remanded the matter back to the Trial Court for fresh adjudication in accordance with the directions given by the High Court. The Plaintiff aggrieved by the judgment of the High Court has come up in this appeal. 4. We may notice the brief facts of the case and relevant pleadings of the parties for determining the questions which have arisen for consideration in this appeal. 5. The Appellant by deed dated 12.01.1983 purchased property bearing No. D-1077, New Friends Colony, New Delhi. The son of the Appellant, Raveen Ahuja was married to the Respondent, Sneha Ahuja on 04.03.1995. After marriage the Respondent started living in the first floor of the house No. D-1077, Friends Colony, New Delhi along with her husband. There being marital discord between Raveen and Sneha, in July, 2014, Raveen moved out of the first floor and started staying in the guest room of the ground floor. In the year 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Plaintiff has been subjected to various threats and violence in the hands of the Defendant on several occasions. The mention of the Divorce Petition filed by Raveen was made in the plaint and it was pleaded that the Defendant as a counter blast has filed the complaint case under the Protection of Women from Domestic Violence Act, 2005 in which interim order directing the Plaintiff not to alienate and not to dispossess the Defendant without order of the competent court has been passed. 7. Plaintiff claimed that he and his wife has become victim of domestic violence on the part of the Defendant. Plaintiff pleaded that the status of occupation of Defendant as a daughter-in-law during subsistence of marriage with the son could be said to be permissive in nature and Defendant is not entitled to claim a right of residence against the Plaintiff, i.e., her father-in-law who has no obligation to maintain her during the lifetime of her husband. Plaintiff in the suit prayed for decree for mandatory injunction against the Defendant to remove herself and her belonging from the first floor of the property and a decree of permanent injunction in favour of the Plaintiff and against the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree of mandatory injunction in favour of the Plaintiff be granted. 11. The Defendant filed an application on 23.09.2017 Under Order XI Rules 12 and 14 Code of Civil Procedure for production of documents. In paragraph 7 of the application, the Defendant referred to various documents which according to the Defendant were relevant for deciding the suit. By the application documents were sought to be produced by the Plaintiff. The Trial Court vide its order dated 20.03.2018 directed the Plaintiff to file an affidavit and documents as sought for in the application Under Order XI Rule 13 which are in his custody with advance copy to the opposite party. A reply was filed by the Defendant on 15.02.2018 to the application filed by the Plaintiff Under Order XII Rule 6 Code of Civil Procedure. The Defendant again reiterated that the shared household was acquired by the Plaintiff through joint-family business and the house is not his self-acquired property. 12. The Plaintiff also filed an affidavit and documents Under Order XI Rule 13 Code of Civil Procedure in compliance of the order of the Trial Court dated 20.03.2018. 13. The Trial Court proceeded to decide the application Under Order X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instituted cannot be said to be non-maintainable since necessary answer falls within the term "procedure established by law". The High Court has further observed that question is whether the suit could be simply decreed by the Trial Court on the basis of the title without weighing the effect of the statutory right in favour of the Appellant. The High Court in paragraph 33 made following observation: 33. ...............Thus, I find that the DV Act has aspired to bring in a sea change in the rights of persons affected by domestic violence by ensuring that irrespective of the ownership of the suit premises where the aggrieved person resided, she would still retain the right to reside therein as long as she was able to prove that she had endured domestic violence while being in a domestic relationship with the owner of such premises. 16. The High Court opined that the Trial Court erroneously proceeded to pass decree Under Order XII Rule 6 Code of Civil Procedure by not impleading the husband and failing to appreciate the specific submission of the Appellant while admitting the title of the Respondent that the suit premises was the joint family property but also losing the site of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant to vacate the suit premises by granting her alternate accommodation will be completed expeditiously and not later than 6 months from today. 17. The Plaintiff-Appellant aggrieved by the judgment of the High Court dated 18.12.2019 has come up in this appeal. 18. We have heard Shri Prabhjit Jauhar, learned Counsel for the Appellant. Shri Nidhesh Gupta, learned Senior Counsel has appeared for the Respondent. We have also heard Ms. Geeta Luthra, learned Senior Counsel and Shri Jayant Bhushan, learned Senior Counsel in the connected SLP (C) No. 9415 of 2020 in which parties are stated to have entered into a settlement. 19. Shri Prabhjit Jauhar, learned Counsel for Appellant contends that suit property which is exclusively owned by the Appellant is not a shared household. The son of the Appellant, Raveen has no right in the property and the son as well as Respondent-daughter-in-law were only gratuitous licencees of the Appellant. The Appellant purchased the property in the year 1983, at that time the son of the Appellant was only 14 years old. It is submitted that the Respondent can claim right to reside only in house which is either joint family property or the husband o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment without referring to evidence and pleadings in each appeal separately. The finding of the Trial Court has not been overruled by the High Court in the Appellant's case. Shri Jauhar further submits that husband is not a necessary party in a suit filed by the father-in-law. Shri Jauhar submits that the Trial Court has rightly decreed the suit Under Order XII Rule 6 Code of Civil Procedure relying on the admission made by the Respondent in her application Under Section 12 of the Act, 2005. The High Court has not followed the binding judgment of this Court in S.R. Batra v. Taruna Batra which was binding on the High Court Under Article 141 of the Constitution of India. Shri Jauhar submits that rights of wife in other statutes like Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 are only against the husband. 22. Shri Nidhesh Gupta, learned Senior Counsel appearing for the Respondent refuting the submission of the learned Counsel for the Appellant supports the judgment of the High Court. Shri Gupta submits that Act, 2005 granted protection and security of residence to woman. Shri Gupta referring to definition of domestic relationship Under Section 2(f) c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... household" has not been correctly analysed in S.R. Batra case. The definition of Respondent does not include only husband. The relatives of the husband who have treated the aggrieved person with domestic violence can be arrayed as Respondent. There is no reason to extend definition of shared household only to property in which the husband has a share. It is submitted that S.R. Batra has not appreciated that second part of the definition of shared household is merely illustration and not exhaustive. S.R. Batra also erred in holding that alternative accommodation Under Section 19 can only be enforced against the husband. Shri Gupta submits that the judgment of S.R. Batra does not correctly interpret provisions of Act, 2005. Referring two subsequent judgments of this Court, namely Hiral P. Harsora and Ors. v. Kusum Narottamdas Harsora and Ors. (2016) 10 SCC 165, and Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi, (2017) 14 SCC 373, Shri Gupta submits that the above two judgments have taken a view contrary to law lay down in S.R. Batra case. Shri Gupta submits that present was not a case of granting any decree Under Order XII Rule 6, the Respondent having categorically pleaded in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decreed the suit of the Plaintiff without deciding such claim of Defendant which was permissible to be decided as per Section 26 of the Act, 2005? (5) Whether the Plaintiff in the suit giving rise to this appeal can be said to be the Respondent as per definition of Section 2(q) of Act, 2005? (6) What is the meaning and extent of the expression "save in accordance with the procedure established by law" as occurring in Section 17(2) of Act, 2005? (7) Whether the husband of aggrieved party (Defendant) is necessary party in the suit filed by the Plaintiff against the Defendant? (8) What is the effect of orders passed Under Section 19 of the Act, 2005 whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction? 28. Before we consider the questions as noted above, we need to notice the Statutory Scheme of the Protection of Women from Domestic Violence Act, 2005. 29. The progress of any society depends on its ability to protect and promote the rights of its women. Guaranteeing equal rights and privileges to women by the Constitution of India had marked the step towards the transformation of the status of the women in this country. 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner. XXXXXXXXXXXXXXXXXX (iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate. XXXXXXXXXXXXXXXXXXX 33. The Statement of Objects and Reasons refers to three International Conventions where recommendations were made to the parties States to take measures including Legislation to protect women against violence including occurring within the family. General Recommendation No. XII of the United Nations Committee on Convention on Elimination of All Forms of discrimination against women stated: General Recommendation No. 12 (Eighth session, 1989) Violence against women The Committee on the Elimination of Discrimination against Women. Considering that Articles 2, 5, 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or contract or by virtue of any enactment giving him or her the right to remain in occupation, and the other spouse is not so entitled, then, subject to the provisions of this Act, the spouse not so entitled shall have the following rights (in this Act referred to as "rights of occupation")-- (a) if in occupation, a right not to be evicted or excluded from the dwelling house or any part thereof by the other spouse except with the leave of the court given by an order under this section; (b) if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling house. 36. By subsequent enactment, Matrimonial Homes Act, 1983 although Matrimonial Homes Act, 1967 was repealed, same protection was continued to occupy the matrimonial home and the said right was continued by virtue of Section 1(1), which was to the same effect. The Family Law Act, 1996 was enacted in the United Kingdom where a separate chapter "Chapter IV-Family Homes and Domestic Violence" was enacted. Section 30 of which provision is as follows: 30. Rights concerning home where one spouse or civil partner has no estate, etc. (1) This Section applies if-- (a) one spouse or civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality..................... 39. The Act, 2005 is a further step to secure social justice by legislation. There has been several earlier measures for protection of women like Section 125 Code of Criminal Procedure and 498-A of India Penal Code. Justice Krishna Iyer in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., (1978) 4 SCC 70 noted the objectives of enacting Section 125 Code of Criminal Procedure in following words in paragraph 9: 9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that Sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker Sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the Respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the Respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the Respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the Respondent is a member, irrespective of whether the Respondent or the aggrieved person has any right, title or interest in the shared household; 44. Section 3 defines "domestic violence". Sections 4 to 11 occurring in Chapter III deals with powers and duties of protection officers, service providers etc. Section 12 occurring in Chapter IV-"Procedure for obtaining orders of reliefs" deals with details of application to Magistrate. Section 12 is as follows: 12. Application to Magistrate.-(1) 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her suits and legal proceedings. 47. After briefly noticing the outline of Act, 2005, we, now, proceed to consider the questions noted above. Questions Nos. 1 and 2 48. Both the above questions being inter-related are being taken together. We may recapitulate the facts of the present case in reference to shared household. The suit property was purchased by Appellant in the year 1983 in his name. The Respondent got married to the son of Appellant on 04.03.1995 and after marriage she was living in first floor of suit property. Till July, 2004, the husband of Respondent also lived in first floor whereafter due to marital discord, he shifted in the guest room on the ground floor. In the suit filed by the Appellant for mandatory and permanent injunction, Appellant pleaded that he is the sole owner of the house and prayed for removal of Respondent, his daughter-in-law from the first floor of the house. The Respondent had filed a written statement in the suit and claimed that the suit property is a shared household where the Respondent had right to reside. The submission of learned Counsel for the Appellant is that the premises is not a shared household since the husband of the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 942], SCC paras 11 and 19 to 21 and Mahalakshmi Oil Mills v. State of A.P. [(1989) 1 SCC 164], SCC paras 8 and 11 (which has been cited in P. Kasilingam [P. Kasilingam v. PSG College of Technology, 1995 Supp (2) SCC 348]), this Court set out definition Sections where the expression "means" was followed by some words, after which came the expression "and includes" followed by other words, just as in Krishi Utpadan Mandi Samiti case [Krishi Utpadan Mandi Samiti v. Shankar Industries, 1993 Supp (3) SCC 361 (2)]. In two other recent judgments, Bharat Coop. Bank (Mumbai) Ltd. v. Employees Union [(2007) 4 SCC 685], SCC paras 12 and 23 and State of W.B. v. Associated Contractors [State of W.B. v. Associated Contractors, (2015) 1 SCC 32], SCC para 14, this Court has held that wherever the expression "means" is followed by the expression "and includes" whether with or without additional words separating "means" from "includes", these expressions indicate that the definition provision is exhaustive as a matter of statutory interpretation. It has also been held that the expression "and includes" is an expression which extends the definition contained in words which follow the expression " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese words or expressions. 52. Next judgment relied by Shri Bhushan is Karnataka Power Transmission Corporation and Anr. v. Ashok Iron Works Private Limited, (2009) 3 SCC 240. In the above case also submission was made before this Court that in the definition of person given in Section 2(m) of Consumer Protection Act, the expression "includes" should be read as "means". This Court laid down that interpretation of a word or expression must depend on the text and the context. In paragraphs 14 to 17, following was laid down: 14. The learned Counsel also submitted that the word "includes" must be read as "means". In this regard, the learned Counsel placed reliance upon two decisions of this Court, namely; (1) South Gujarat Roofing Tiles Manufacturers Assn. v. State of Gujarat [(1976) 4 SCC 601] and (2) RBI v. Peerless General Finance and Investment Co. Ltd. [(1987) 1 SCC 424]. 15. Lord Watson in Dilworth v. Stamps Commr. [1899 AC 99] made the following classic statement: (AC pp. 105-06) ... The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition. Shri Nidhesh Gupta, learned Senior Counsel for the Appellant submits that even if it is accepted that the definition of Section 2(s) is exhaustive, his case is fully covered in both the parts of the definition. 54. The use of both the expressions "means and includes" in Section 2(s) of Act, 2005, 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. 55. Now, reverting back to the definition of Section 2(s), the definition can be divided in two parts, first, which follows the word "means" and second which follows the word "includes". The second part which follows "includes" can be further sub-divided in two parts. The first part reads "shared household means a household where the person aggrieved has lived or at any stage has lived in a domestic relationship either singly or along with the Respondent". Thus, 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 subdivided in two parts is-(a) includes such a household whether owned or tenanted either joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... temporary injunction. Respondent filed a Writ Petition Under Article 227 of the Constitution, which was allowed by learned Single Judge holding that the Appellant is entitled to reside in the second floor as that was her matrimonial home. The Appellant aggrieved against the judgment of the High Court had filed an appeal. This Court in Paragraph 18 observed that since the house belongs to mother-in-law of the Respondent and does not belong to the husband, hence, she cannot claim any right to live in the said house. Following was observed in paragraph 18: 18. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house. 58. Before this Court, in the above case, the provisions of Act, 2005 were relied. This Court held that the Respondent was not residing in the premises in question, a finding of fact recorded by the court below which ought not to be interfered by the High Court Under Articles 226 or 227. After taking the aforesaid view, this Court observed that house in question cannot be said to be shared household. In paragraph 22, this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of Appellant 2, mother of Amit Batra. Hence it cannot be called a "shared household". 30. No doubt, the definition of "shared household" in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society. 61. In paragraph 26, this Court observed "if the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household". 62. The observation of this Court in S.R. Batra v. Taruna Batra (supra) in paragraphs 24, 25 and 26 were made while considering the expression "person aggrieved lives or at any stage has lived". This Court observed in paragraph 26 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in paragraph 26 in S.R. Batra v. Taruna Batra (supra), thus, was not true apprehension and it is correct that in event such interpretation is accepted, it will lead to chaos and that was never the legislative intent. We, thus, are of the considered opinion that 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. 63. 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. 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. As noted above, Act 2005 was enacted to give a higher right in favour of woman. The Act, 2005 has been enacted to provide for more effective protection of the rights of the woman who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Batra v. Taruna Batra (supra) is not correct interpretation and the said judgment does not lay down the correct law. 65. The learned Counsel for the Appellant has placed reliance on another Two Judge Bench judgment of this Court in Vimlaben Ajitbhai Patel v. Vatsalben Ashokbhai Patel and Ors., (2008) 4 SCC 649. In the above case, this Court had occasion to consider the provisions of Act, 2005. The question which came for consideration in the above case has been noticed in paragraph 14 of the judgment, which is to the following effect: 14. The questions which arise for consideration are: (i) Whether in the facts and circumstances of the case, the property of Appellant 1 could have been sold in auction? and (ii) Whether in a case of this nature, the bail granted to the Appellants should have been directed to be cancelled? 66. In the above case, the complaint was filed by third Respondent against her husband and Appellant's father-in-law and mother-in-law Under Sections 406 and 114 of Indian Penal Code. The bail granted to the Appellants was cancelled. Proceedings Under Section 82 Code of Criminal Procedure were initiated attaching the properties of the Appellant. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Having regard to the facts and circumstances of this case we are of the opinion that the interest of justice shall be subserved if the impugned judgments are set aside with the following directions: (i) The property in question shall be released from attachment. (ii) The 3rd Respondent shall refund the sum of Rs. 1 lakh to the Respondent with interest @ 6% per annum. (iii) The amount of Rs. 4 lakhs deposited by the 1st Respondent shall be refunded to him immediately with interest accrued thereon. (iv) The 3rd Respondent should be entitled to pursue her remedies against her husband in accordance with law. (v) The learned Magistrate before whom the cases filed by the 3rd Respondent are pending should bestow serious consideration of disposing of the same, as expeditiously as possible. (vi) The 3rd Respondent shall bear the costs of the Appellant which are quantified at Rs. 50,000 (Rupees fifty thousand) consolidated. 70. In the above case, this Court has held that property of mother-in-law cannot be attached since the maintenance of wife during the married life is on the husband. The question which fell for consideration before this Court in above case was as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision Bench of the Delhi High Court affirmed the judgment in Eveneet Singh v. Prashant Chaudhari of the learned Single Judge as noted above. In paragraph 14, the Division Bench laid down following: 14. It is apparent that Clause (f) of Sub-section 1 of Section 19 of the Act is intended to strike a balance between the rights of a daughter-in-law and her in-laws, if a claim to a shared residence by the daughter-in-law pertains to a building in which the matrimonial home was set up belongs to her mother-in-law or father-in-law. 73. Another judgment which need to be noticed of Delhi High Court is Preeti Satija v. Raj Kumari and Anr. In paragraphs 20 and 21, the Division Bench laid down following: 20. Crucially, Parliament's intention by the 2005 Act was to secure the rights of aggrieved persons in the shared household, which could be tenanted by the Respondent (including relative of the husband) or in respect of which the Respondent had jointly or singly any right, title, interest, or "equity". For instance, a widow (or as in this case, a daughter in law, estranged from her husband) living with a mother-in-law, in premises owned by the latter, falls within a "domestic relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be alive to. Restricting the scope of the remedies, including in respect of the right to reside in shared household, would undermine the purpose of this enactment. It is, therefore, contrary to the scheme and the objects of the Act, as also the unambiguous text of Section 2(s), to restrict the application of the 2005 Act to only such cases where the husband alone owns some property or has a share in it. Crucially, the mother-in-law (or a father-in-law, or for that matter, "a relative of the husband") can also be a Respondent in the proceedings under the 2005 Act and remedies available under the same Act would necessarily need to be enforced against them. Against above judgment of Delhi High Court, Civil Appeal No. 9723 of 2014 is pending in this Court. 74. In another elaborate judgment, the Division Bench of Delhi High Court in Navneet Arora v. Surender Kaur and Ors. had considered the various aspects of Act, 2005. Dealing with right of residence in paragraphs 58 to 60, following was held: 58. It may be highlighted that the Act does not confer any title or proprietary rights in favour of the aggrieved person as misunderstood by most, but merely secures a 'right of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra (supra) insofar as it interpret the definition of shared household of Section 2(s) does not lay down the correct law, the above judgment of the High Court does not come to rescue of learned Counsel for the Appellant. Shri Jauhar has also placed reliance on few judgments of other High Courts namely: S. No. Particulars Citation 1. Smt. Chanchal Agarwal v. Jagdish Prasad Gupta and Anr.. 2014 SCC Online All 16019 2. A.R. Hashir Najyahouse and Ors. v. Shima and Ors. 2015 SCC Online Ker 9007 3. Richa Gaur v. Kamal Kishore Gaur 2019 SCC Online All 4084 4. Payal Sancheti (Smt.) and Anr. v. Harshvardhan Sancheti MANU/RH/0805/2008 5. Kolli Babi Sarojini and Ors. v. Kolli Jayalaxmi and Anr. 2014 SCC Online AP 414 6. N.S. Leelawati and Ors. v. R. Shilpa Brunda MANU/KA/8874/2019 78. The above judgments of the High Courts have again relied on judgment of S.R. Batra v. Taruna Batra (supra), hence, they also do not support the claim of the Appellant. 79. Shri Jauhar also relied on a judgment of Three Judge Bench of this Court in Maria Margarida Sequeira Fernandes and Ors. v. Erasmo Jack De Sequeira, (2012) 5 SCC 370. Shri Jauhar placed reliance on paragraph 97 of the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciate that the premises in question was given by the Appellant to her brother, the Respondent herein as a caretaker. The Appellant was married to a naval officer who was transferred from time to time outside Goa. Therefore, on the request of her brother she gave possession of the premises to him as a caretaker. The caretaker holds the property of the principal only on behalf of the principal. 81. For the above reasons, the Court allowed the appeal and laid down the preposition of law as noted above in paragraph 97 of the judgment. The ratio as laid down in the above case of this Court is nothing to do with the issues, which have arisen in the present appeal and the reliance on the above judgment by learned Counsel for the Appellant is misplaced. 82. Now, coming back again to the facts of the present case, there being specific pleading on behalf of the Respondent that the house, which is in the name of the Appellant is the matrimonial home of the Respondent where she was residing in first floor since her marriage. The fact that Respondent is residing in first floor of the premises is not matter of dispute. Even if the house is in the name of the Appellant and that even if we accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y down a correct law. Question Nos. 3 and 4 85. Both the issues being inter-connected are being taken together. 86. The question which is posed for the consideration is, whether the learned Trial Court was justified in passing the decree on alleged admission Under Order XII Rule 6 of the Code of Civil Procedure or not. What is required to be considered is what constitutes the admission warranting the judgment on admission in exercise of powers Under Order XII Rule 6, Code of Civil Procedure. This Court had occasion to consider above in decisions; Himani Alloys Limited v. Tata Steel Limited, (2011) 15 SCC 273 and S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287. 87. In Himani Alloys Limited (supra), this Court had an occasion to consider the scope and ambit of judgment on admission in exercise of powers Under Order XII Rule 6, Code of Civil Procedure. It is observed and held in paragraph 11 that being an enabling provision, it is neither mandatory nor preemptory but discretionary for the Court to pass judgment on admission in exercise of powers Under Order XII Rule 6 Code of Civil Procedure. It is observed that the Court, on examination of the facts and circumstances, has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plaintiff is a senior citizen aged 76 years and is a heart patient and has undergone angioplasty twice in the arteries in the heart. The Plaintiff suffers from hypertension and high blood pressure and is on constant medication for the same. As such the Plaintiff in his old age would like to live a peaceful life and has terminated the licence of the Defendant to stay in the first floor of the suit property which is the exclusive property of the Plaintiff. 4. That the Plaintiff is aggrieved by the torturous acts of the Defendant in filing false and frivolous cases and attempting to implicate the Plaintiff and his aged wife in false cases, the Plaintiff in his ripe old age prays for removal of the Defendant from the suit property so as to lead a tension free life without hurling of abuses and torture perpetrated by the Defendant. 5. That the Plaintiff is the sole and absolute owner of the suit property which was acquired by the Plaintiff from its previous owner namely Shri Kulbhushan Jain vide agreement to sell dated 12th January, 1983 for a sum of Rs. 2,77,000/- (Rupees Two lacs seventy seven thousand only) and after purchase of the said property the Plaintiff herein constructed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Protection of Women from Domestic Violence Act, 2005 and as such is liable to be dismissed at the threshold. The Defendant came to the suit property on 04.03.1995 as a 'Bahu' of the Plaintiff and legally wedded wife of his elder son Shri Raveen Ahuja. After the marriage the Defendant lived with the son of the Plaintiff Shri Raveen Ahuja in the joint family uninterruptedly and there was/is a joint kitchen. The Defendant has a right to reside in the suit property whether or not she has any right title or beneficial interest in the same. The son of the Plaintiff Shri Raveen Ahuja is residing with, the Plaintiff on the ground floor of the suit premises. In view of this, the stilt of the Plaintiff is not maintainable and is liable to be dismissed. 7. That the Plaintiff has not approached to this Hon'ble Court with clean hands and suppressed the true and material facts regarding causing physical and mental torture to the Defendant on account of domestic violence etc. by the Plaintiff his wife and their elder son. They also hatched a conspiracy against the Defendant in order to compel her to leave the matrimonial home in a deceit full manner. In view of this, the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available Under Sections 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. Thus, the Defendant is entitled to claim relief Under Section 19 in suit, which has been filed by the Plaintiff. Section 26 empowers the aggrieved person to claim above relief in Civil Courts also. In the present suit, it was defence of the Defendant that the house being the shared household, she is entitled to reside in the house as per Section 17(1) of Act, 2005. This Court had occasion to consider provision of Section 26 in Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi, (2017) 14 SCC 373. In the above case, the Appellant was married with one Abhimanyu with whom she was residing in suit Flat No. 4, 45/4, Arati Society, Shivvihar Colony, Paud Fata, Pune. The husband filed a suit for divorce against the Appellant. The father-in-law filed a suit in Small Cause Court for mandatory injunction praying that Defendant be directed to stop the occupation and use of the suit flat. The Appellant filed a written statement in the suit claiming that although the flat bears the name of the Respondent bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. 24. There cannot be any dispute that proceeding before the Judge, Small Cause Court is a legal proceeding and the Judge, Small Cause Court is a civil court. On the strength of Section 26, any relief available Under Sections 18 to 22 of the 2005 Act, thus, can also be sought by the aggrieved person. 95. This Court held that Section 26 has to be interpreted in a manner to effectuate the purpose and object of the Act. This Court held that the determination of claim of the aggrieved person was necessary in the suit to avoid multiplicity of proceedings. This Court laid down following in paragraphs 40 and 41: 40. Section 26 of the 2005 Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by the 2005 Act is expressly barred from consideration by a civil court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the civil court. When the proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han one reason for not approving the course of action adopted by Trial Court in passing the judgment Under Order XII Rule 6. We, thus, concur with the view of the High Court that the judgment and decree of the Trial Court given Under Order XII Rule 6 is unsustainable. Question No. 5 99. Section 2(q) defines the 'Respondent' in following words: 2(q) "Respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner; 100. There are two conditions for a person to be treated to be Respondent within the meaning of Section 2(q), i.e., (i) in a domestic relationship with the aggrieved person, and (ii) against whom the aggrieved person has sought any relief under Act, 2005. It is to be noticed that the expression "any adult male person" occurring in Section 2(q) came for consideration before this Court in Hiral P. Harsora and Ors. v. Kusum Narottamdas Harsora and Ors. (2016) 10 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson itself as given in the Section 2(a) of the Act, 2005. It is, further, relevant to notice that although learned 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. To treat a person as the "Respondent" for purposes of Section 2(q) it has to be proved that person arrayed as Respondent has committed an act of domestic violence on the aggrieved person. 104. We, thus, are of the view that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may take an example, where a final order has been passed by the Magistrate Under Section 12. What is the nature and life of the said order? Section 25(2) itself contemplates an eventuality when order passed under the Act can be altered, modified or revoked. Section 25(2) provides: Section 25. Duration and alteration of orders.- (1) xxx xxx xxx (2) If the Magistrate, on receipt of an application from the aggrieved person or the Respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate. 108. Whether apart from powers of Magistrate Under Section 25(2) of the Act, 2005, the Act, 2005 contemplates any other eventuality when despite the order of residence Under Section 19 an aggrieved person can be evicted or dispossessed. 109. 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". 110. The procedure prescribed for proceedings Under Section 19 as provided in Section 28 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 145 Code of Criminal Procedure contemplates issuance of the order by the Magistrate declaring such party to be entitled to such possession. Sub-section (6), however, contemplates that the parties to be entitled to possession thereof until evicted therefrom in due course of law. The eviction in due course of law was contemplated to be by a competent court. 113. 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 v. Shakuntala Devi, (2004) 1 SCC 438. This Court held in the above case that the purpose of provisions of Section 145 Code of Criminal Procedure 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 Code of Criminal Procedure ought to sue for recovery of possession seeking a decree or order for restoration of possession. In paragraph 12 following was laid down: 12. What is an eviction "in due course of law" within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were recorded by this Court in paragraph 23, relevant part of which for the present case is as follows: 23. For the purpose of legal proceedings initiated before a competent court subsequent to the order of an Executive Magistrate Under Sections 145/146 of the Code of Criminal Procedure, the law as to the effect of the order of the Magistrate may be summarized as under: (1) The words 'competent court' as used in Sub-section (1) of Section 146 of the code do not necessarily mean a civil court only. A competent court is one which has the jurisdictional competence to determine the question of title or the rights of the parties with regard to the entitlement as to possession over the property forming subject matter of proceedings before the Executive Magistrate; (2) A party unsuccessful in an order Under Section 145(1) would initiate proceedings in a competent court to establish its entitlement to possession over the disputed property against the successful party, Ordinarily, a relief of recovery of possession would be appropriate to be sought for. In legal proceedings initiated before a competent court consequent upon attachment Under Section 146(1) of the Code it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach case for which no further discussion is necessary in the facts of the present case. The High Court in the impugned judgment has also expressed opinion that suit filed by the Plaintiff cannot be held to be non-maintainable with which conclusion we are in agreement. 117. 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. Question No. 7 118. Learned Counsel for the Appellant challengi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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. 120. 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) has issued following directions: 56. In these circumstances, the impugned judgments cannot be sustained and are accordingly set aside. The matters are remanded back to the Trial Court for fresh adjudication in accordance with the directions given hereinbelow: (i) At the first instance, in all cases where the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is the effect of an interim order or a final order passed Under Section 19 of the Act, 2005 on a civil proceeding initiated in a court of competent jurisdiction, is a question, which need to be answered? Whether in view of the pendency of proceedings under the D.V. Act any proceedings could not have been initiated in a Civil Court of competent jurisdiction or whether the orders passed under D.V. Act giving right of residence by interim or final order are binding in Civil Court proceedings and Civil court could not have taken any decision contrary to directions issued in D.V. Act are the related questions to be considered. 125. Section 17(2) itself contemplates eviction or exclusion of aggrieved person from a shared household in accordance with the procedure established by law. The conclusion is inescapable that a proceeding in a competent court for eviction or exclusion is contemplated by the Statutory Scheme of Act, 2005. Thus, there is neither any express nor implied bar in initiation of civil proceedings in a Court of competent jurisdiction. Further, Section 26 also contemplate grant of relief of right of residence Under Section 19 in any legal proceedings before a Civil Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probate, etc., jurisdiction.-- A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof-- that any legal character which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 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 the present case, where there are pleadings in the suit in question regarding proceeding Under Section 12 the existence of orders passed under Act, 2005 are relevant and admissible in Civil Proceedings. 130. The proceedings under D.V. Act, 2005 are proceedings which are to be governed by Code of Criminal Procedure, 1973. 131. 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 Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure 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, as observed hereinabove, the findings/orders passed by the one forum has to be considered by another forum. 137. Now, we proceed to examine effect of orders passed under criminal proceedings, i.e., Act, 2005 on the civil proceedings and consequence of any conflict in proceedings under D.V. Act as well as civil proceedings. 138. We make it clear that in the present case we are called upon to examine the consequences and effect of orders passed Under Section 19 of D.V. Act, 2005 on civil proceedings in a court of competent jurisdiction. Thus, our consideration and exposition are limited qua orders passed Under Section 19 of D.V. Act only, i.e., a conflict between orders passed in a criminal proceeding on a civil proceeding. 139. We may first notice the judgment of Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings. 142. We may notice a judgment of this Court dealing with Section 43 of the Indian Evidence Act, i.e., S.M. Jakati and Anr. v. S.M. Borkar and Ors. AIR 1959 SC 282. This Court in the above case had occasion to consider the relevancy of the effect and consequence of an order passed by Deputy Registrar of Cooperative Society in a suit filed for partition of joint family property, which was sold in auction in consequence of orders passed by the Deputy Registrar for the Society. The relevancy of orders of Deputy Registrar Under Section 43 of the Evidence Act came to be considered and this Court noticing the principle of Section 43 of Evidence Act laid down following in paragraph 11: 11. In the case now before us the Appellants have attempted to prove that the debt fell within the term Avyavaharika by relying upon the payment order and the findings given by the Deputy Registrar in the payment order where the liability was inter alia based on a breach of trust. Any opinion given in the order of the Deputy Registrar as to the nature of the liability of Defendant 1 M.B. Jakati cannot be used as evidence in the present case to determine whether the debt was Avyavaharika or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iced in paragraph 15 of the judgment. This Court accepted the submission of the learned Additional Advocate General. Paragraphs 15 and 16 of the judgment are as follows: 15. Learned Additional Solicitor-General Shri Altaf Ahmed appearing for the Respondents submitted that the observation made by this Court in V.M. Shah case [(1995) 5 SCC 767: 1995 SCC (Cri.) 1077] that the finding recorded by the criminal court, stands superseded by the finding recorded by the civil court and thereby the finding of the civil court gets precedence over the finding recorded by the criminal court (SCC p. 770, para 11) is against the law laid down by this Court in various decisions. For this, he rightly referred to the provisions of Sections 41, 42 and 43 of the Evidence Act and submitted that under the Evidence Act to what extent judgments given in the previous proceedings are relevant is provided and therefore it would be against the law if it is held that as soon as the judgment and decree is passed in a civil suit the criminal proceedings are required to be dropped if the suit is decided against the Plaintiff who is the complainant in the criminal proceedings. 16. In our view, the submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for limited purpose such as sentence or damages. 33. Hence, the observation made by this Court in V.M. Shah case [(1995) 5 SCC 767] that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case [(1970) 3 SCC 694] are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case [AIR 1954 SC 397] as well as Sections 40 to 43 of the Evidence Act. 34. In the present case, after remand by the High Court, civil proceedings as well as criminal proceedings are required to be decided on the evidence, which may be brought on record by the parties. 146. We have noticed above judgment of this Court in Shanti Kumar Panda (supra) while considering the provisions Under Sections 145 and 146 Code of Criminal Procedure in context of suit filed in a court of competent jurisdiction in paragraphs 15 and 21 following was laid down: 15. It is we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession which may be inconsistent with or contrary to the findings arrived at by the Magistrate. 147. We may observe that the observations made by this Court in Shanti Kumar Panda (supra) were in reference to statutory scheme Under Sections 145 and 146 Code of Criminal Procedure and had to be read in reference to statutory scheme which came for consideration before this Court. 148. We may notice a Constitution Bench judgment of this Court in Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr., (2005) 4 SCC 370 where the Constitution Bench laid down that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. In paragraph 32, following was laid down: 32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple would, therefore, be applicable, inter alia, if the suit is found to be barred by the principle of res judicata or by reason of the provisions of any other statute. It does not lay down that a judgment of the criminal court would be admissible in the civil court for its relevance is limited. (See Seth Ramdayal Jat v. Laxmi Prasad [(2009) 11 SCC 545]. The judgment of a criminal court in a civil proceeding will only have limited application viz. inter alia, for the purpose as to who was the Accused and what was the result of the criminal proceedings. Any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding. 152. A Two Judge Bench of this Court in Kishan Singh (Dead) Through LRs. v. Gurpal Singh and Ors., (2010) 8 SCC 775 after noticing the several earlier judgments concluded that finding of fact recorded by the civil court do not have any bearing so as the criminal case is concerned and vice versa. In paragraph 18, following was laid down: 18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entiary value of such evidence is limited. The findings arrived therein by the magistrate are although not binding on the Civil Court but the order having passed under the Act, 2005, which is an special Act has to be given its due weight. 155. We need to observe that in event a judgment of criminal court is relevant as per Sections 40 to 43 of Evidence Act in civil proceedings, the judgment can very well be taken note of and there is no embargo on the civil court to place reliance upon it as a corroborative material. We may notice a judgment of Madras High Court in K. Subramani v. Director of Animal Husbandry, Chennai, (2009) 1 MLJ 363 where Madras High Court has made following observations in paragraph 7: 7. A decision of the Criminal Court does not have the effect of binding nature on the proceedings before the Civil Court including the Motor Accident Claims Tribunal for the reason that the proof in both the Civil and Criminal cases are having two different categories of standards. In criminal cases, guilt of the Accused must be proved beyond reasonable doubt, while in civil cases, the rights of the parties or matter in issue shall be decided on preponderance of probabilities. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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