Tag: divorce

i) As regards the contention of the respondents to the effect that it was unnatural that the aggrieved person was impregnated within twenty-eight days was unnatural, the Trial Court observed that there was an absolute possibility of such fact. In holding so, the Trial Court relied on the submission of the respondents to the effect that the aggrieved person left their ancestral home on 20^th June, 2005 to live independently with her husband. In light of the said submission, the Trial Court noted that the aggrieved person lived with her husband till the day of his death and therefore there was nothing unnatural about her pregnancy and therefore, the contention of the respondents that the daughter was not Kuldeep Tyagi’s, was baseless.

ii) That no adverse inference could be drawn from the fact that the aggrieved person had wrongly stated in the application filed before the Tehsildar to the effect that Kuldeep Tyagi had no heirs other than the aggrieved person, as she had no knowledge of such statement.

iii) That allegation pertaining to the paternity of the aggrieved person’s daughter was likely to have caused emotional harm to her, thereby also affecting her profession as a teacher. In that light, it was observed the aggrieved person was a victim of domestic violence under Section 1 (d) (iii) of the D.V. Act. A symbolic amount of Rs. 10,000/- was awarded to compensate the victim for emotional loss suffered.

iv) That the victim left her matrimonial home thirteen days 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 evidence was put forth by the respondents which would establish that no Stridhana was given at the time of the marriage. Therefore, all articles of Stridhana as listed in the list annexed with the application filed before the Magistrate, were directed to be returned to the victim.

i) That the aggrieved person never lived in the shared household belonging to the respondents, situated in Jhabreda, but lived in Roorkee with her husband. That the aggrieved person maintained a house in Roorkee and used to travel daily to Jhabreda for work, but never shared a household with the respondents.

ii) Given that the aggrieved person never lived in Jhabreda with the respondents, it was improbable that her family had delivered the articles of Stridhana to the respondents in Jhabreda. That the possession of Stridhana was not vested with the respondents. Therefore, no question would arise as to the respondents disturbing or using the Stridhana, which in fact, was never in their possession.

iii) That the aggrieved person had not led any evidence to establish that following the death of her husband, she had lived in Jhabreda with the respondents for thirteen days. That she continued to live at Roorkee even after the death of her husband. That in the absence of any evidence to demonstrate that the aggrieved person ever lived with the respondents, no case was made out for domestic violence on the part of the respondents. That the aggrieved person was not entitled to any relief in terms of a residence order, till such time as she is allotted a specific share following legal partition of the property held in joint ownership of her deceased husband and the respondents.

iv) That in the absence of any evidence as to the delivery of Stridhana to the respondents, no orders could be passed for restoration of possession of Stridhana articles in favour of the aggrieved person.

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 relationship between the aggrieved person and the respondents, therefore, no relief could be granted under the provisions of the D.V. Act.

iii) That it could not be accepted that all articles of Stridhana which were purchased in Roorkee as per the bills presented in this regard, were delivered to the respondents in Jhabreda.

(i) At the outset, he contended that the High Court and the First Appellate Court had erred in setting aside the judgment of the Court of the Special Judicial Magistrate-1, Dehradun, dated 12^th May, 2011 on the primary ground that aggrieved person was not sharing a household with the respondents and there was no domestic relationship between the parties and therefore, no relief could be granted under the provisions of the D.V. Act. Elaborating on the said contention, learned arnicas curiae for the appellant-aggrieved person referred to Sections 2 (f) and 2 (s) of the D.V. Act to contend that an aggrieved person has to be in a ‘domestic relationship’ as defined under the D.V. Act in order to attract the provisions of the D.V. Act. If such a person is living, or has at any point of time lived together in a ‘shared household’ with the persons against whom allegations of domestic violence have been made, the provisions of the D.V. Act would apply. That in the present case, the aggrieved person, had, following the death of her husband on 15^th July, 2005, resided in the family home of the respondents at Ulheda and resided there for a period of thirteen days. That such residence could not continue owing to the conduct of the respondents who subjected the aggrieved person to mental abuse, causing her to leave the shared household. That attempts made by the aggrieved person to re-enter the shared household were obstructed by the respondents. Having regard to the short span of her marital life owing to the death of her husband and the fact that she was denied entry and residence at the shared household 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 person and the respondents were in a ‘domestic relationship’.

(iii) It was submitted that it is not mandatory for the aggrieved person to reside, at the point of time when commission of violence, with those persons against whom the allegations of violence have been levelled. In this context, reference was made to the decision of this Court in Satish Chander Ahuja vs. Sneha Ahuja – [(2021) 1 SCC 414] wherein the phrase lives or at any stage has lived’, as appearing in Section 2 (s) of the D.V. Act was interpreted to mean such household which the aggrieved person shared with the respondents, at the time of filing the application under the D.V. Act or a household which the aggrieved person had been excluded from in the recent past. In light of the said decision, it was urged that it is not necessary that the respondents must have been living with the aggrieved person at the time when the alleged acts of domestic violence were perpetuated as there is no statutory requirement to this effect. That subject to the caveat that an aggrieved person, has, at some point, shared a household with the persons who have allegedly committed acts of domestic violence, then any act of domestic violence committed by such persons during the period in which the parties were living in the shared household, or even subsequent to such period, would entitle the aggrieved person to approach a competent Court under Section 12 of the D.V. Act.

(iv) It was urged that the provisions of the D.V. Act must be interpreted in a manner, so as to, ensure that the protection granted to women under the D.V. Act is made available to them in the widest amplitude. That restricting the scope of domestic violence cases, only to matters wherein domestic violence was committed against the aggrieved person, while she was residing at the shared household, would not sufficiently achieve the objects of the enactment.

(v) Learned arnicas curiae, Shri Gaurav Agrawal, next contended that the High Court had erred in holding that a Domestic Incident Report is required to be mandatorily filed by a Protection Officer before the Magistrate and it is only on the basis of such report that the Magistrate may take cognizance of the commission of domestic violence. Learned arnicas cariae for the appellant-aggrieved person referred to Rule 5 of the Protection of Women from Domestic Violence Rules, 2006 (for short, the ‘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 specifically call for and consider a Domestic Incident Report.

(vi) In this context, reference was made to Section 12 of the D.V. Act which enables an aggrieved person or a Protection Officer to make an application before the Magistrate seeking reliefs under the D.V. Act. It was submitted that in cases where an aggrieved person independently makes an application before the Magistrate, there would be no requirement on the part of the Magistrate to consider or call for a Domestic Incident Report. However, in cases where the application has been made by a Protection Officer, the same shall be mandatorily accompanied by a Domestic Incident Report and when such report is submitted, the Magistrate is required to consider the same.

(vii) It was submitted that the statutory intention could not be to the effect that the Magistrate shall not entertain proceedings or grant relief under Sections 18 to 20 and Section 22 of the D.V. Act in the absence of the Domestic Incident Report. That such an interpretation would defeat the purposes of the D.V. Act as it would act as a bar against the Magistrate to pass orders in the absence of the report.

(viii) It was contended that the High Court and the First Appellate Court had failed to view the matter in the true and correct perspective, having regard to the purpose of enactment of the D.V. Act. In the above backdrop, it was prayed that the judgments of the High Court and the First Appellate Court may be set aside and the judgment of the Trial Court may be restored.

(i) It was denied that the aggrieved person was in a domestic relationship with the respondents. It was submitted that the aggrieved person, following her marriage with Kuldeep Tyagi, was residing with him in Roorkee District, Haridwar and not with the respondents, in Jhabreda. That her place of residence, had been recorded as Roorkee, in the application filed under the D.V. Act before the Magistrate, as well as in the application submitted before the revenue authorities for mutation of her name in the revenue records pertaining to the property belonging to her deceased husband. That even following the 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 receipts of the articles purchased, would show that the articles were purchased in Roorkee and therefore, it would be rather improbable that the same were delivered to the respondents at their residence in Jhabreda. It was therefore urged that no assumption could be made that the Stridhana stood in the custody of the in-laws of the aggrieved person.

(iv) It was further urged that in the absence of a Domestic Incident Report, the Magistrate could not have taken cognizance of the matter. That Section 12 (1) casts a mandatory duty on the Magistrate to consider the Domestic Incident Report submitted under the D.V. Act for initiation of proceedings, and it is only after consideration of the same that the substantive provisions of the Sections 18 to 20 and Section 22 of the D.V. Act may be applied to extend benefit of the same to an aggrieved person. In support of this contention, Shri K.K. Srivastava referred to the language of Section 12 (1) to contend that the phrase used in the proviso is ‘shall take into consideration any Domestic Incident Report’ thereby suggesting that the requirement to consider a Domestic Incident Report is a mandatory one, irrespective of whether or not a complainant was made before the Protection Officer prior to filing an application before the Magistrate. That non-consideration of the Domestic Incident Report would strike at the very root of the matter and such irregularity would render the decision of the Magistrate, a nullity.

(v) It was lastly submitted that proceedings under the D.V. Act were ill-motivated, misconceived and were initiated with the sole intention to harass the respondents and more specifically, respondent no. 1, being the mother-in-law of the aggrieved person, aged over 80 years. That the High Court and First Appellate Court rightly set aside the decision of the Magistrate and held that no relief could be granted to the aggrieved person under the D.V. Act. That the judgments of the High Court and First Appellate Court are based on a true and correct appreciation of the law, as applicable to the facts of the present case and the same may not be interfered with by this Court.

“(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?”

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;

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(e) ‘domestic incident report’ means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person;

(f) ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

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

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

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

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

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

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation I.-For the purposes of this section,-

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

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

(iii) Verbal and emotional abuse’ includes-

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

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

(iv) ‘economic abuse’ includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household 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 her children or her Stridhana or any other property jointly or separately held by the aggrieved person; and

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

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

“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 reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any Domestic Incident Report received by him from the Protection Officer or the service provider.

(2) The relief sought for under Sub-Section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under Sub-Section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

(5) The Magistrate shall Endeavour to dispose of every application made under Sub-Section (1) within a period of sixty days from the date of its first hearing.”

“17. Right to reside in a shared household.-

(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.”

“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 section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”

“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 ofU.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 of a marriage are suspended. The decree however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it is not necessary and the parties are not bound to have recourse to that remedy and the parties can live keeping their status as wife and husband till their lifetime.”

“32. Regard being had to the aforesaid statement of law, we have to see whether retention of Stridhana by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realization of the Stridhana but it does not debar her to lodge a criminal complaint for criminal breach of trust……….The concept of ‘continuing offence’ gets attracted from the date of deprivation of Stridhana, for neither the husband nor any other family members can have any right over the Stridhana and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act.”

“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 shared household is contemplated to be the household, which is a dwelling place of aggrieved person in present time………………

67……………..The entire Scheme of the Act is to provide immediate relief to the aggrieved person with respect to the shared household where the aggrieved person lives or has lived. As observed above, the use of the expression ‘at any stage has lived’ was only with intent of not denying the protection to aggrieved person merely on the ground that aggrieved person is not living as on the date of the application or as on the date when Magistrate concerned passes an order under Section 19. The apprehension expressed by this 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.

68. 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 victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.

69………….The definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. 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.”

“Thus, an ‘ordinary meaning’ or ‘grammatical meaning’ does not imply that the Judge attributes a meaning to the words of a statute independently of their context or of the purpose of the statute, but rather that he adopts a meaning which is appropriate in relation to the immediately obvious and unresearched context and purpose in and for which they are used.”

“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 strictly construed. A woman in such a case, may not live or at any point of time lived either singly or together with the husband in the ‘shared household’, despite a legally valid marriage followed even by its consummation. It is not uncommon in our society, for a woman in marriage to be sent to her parental home even before consummation of marriage, on account of certain traditional beliefs, say for example, the intervention of the month of Aadi. If such a woman is held to be not entitled to the benefit of Section 17 of the Act, on account of a strict interpretation to Section 2(f) of the Act that she did not either live or at any point of time lived together in the shared household, such a woman will be left remediless despite a valid marriage. One can think of innumerable instances of the same aforesaid nature, where the woman might not live at the time of institution of the proceedings or might not have lived together with the husband even for a single day in the shared household. A narrow interpretation to Sections 2(f), 2(s) and 17 of the Act, would leave many a woman in distress, without a remedy. Therefore, in my considered view a healthy and correct interpretation to Sections 2(f) and 2(s) would be that the words ‘live’ or ‘have at any point of time lived’ would include within their purview ‘the right to live’. In other words, it is not necessary for a woman to establish her physical act of living in the shared household, either at the time of institution of the proceedings or as a thing of the past. If there is a relationship which has legal sanction, a woman in that relationship gets a right to live in the shared household. Therefore, she would be entitled to protection under Section 17 of the Act, even if she did not live in the shared household at the time of institution of the proceedings or had never lived in the shared household at any point of time in the past. Her right to protection under Section 17 of the Act, co-exists with her right to live in the shared household and it does not depend upon whether she had marked her physical presence in the shared household or not. A marriage which is valid and subsisting on the relevant date, automatically confers a right upon the wife to live in the shared household as an equal partner in the joint venture of running a family. If she has a right to live in the shared household, on account of a valid and 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.”

(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.

“56. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the D.V. Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationship :

56.1. Duration of period of relationship. – Section 2(f) of the D.V. Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

56.2. Shared household.- The expression has been defined under Section 2(s) of the D.V. Act and, hence, needs no further elaboration.

56.3. Pooling of resources and financial arrangements- Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor.

56.4. Domestic arrangements.- Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc., is an indication of a relationship in the nature of marriage.

56.5. Sexual relationship.- Marriage-like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.

56.6. Children.- Having children is a strong indication of a relationship in the nature of marriage. The parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing up and supporting them is 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.”

(a) Any relationship by consanguinity is a lifelong relationship.

(b) Marriage is also a lifelong relationship unless a separation by a decree of divorce is ordered by a competent authority of law.

(i) If there is judicial separation ordered by a court of law, that does not put an end to marriage and hence the domestic relationship continues between the spouses even though they may not be actually living together,

(ii) In the event of a divorce, marriage would be no longer be subsisting, but if a woman (wife) is subjected to any domestic violence either during marriage or even subsequent to a divorce decree being passed but relatable to the period of domestic relationship, the provisions of this D.V. Act would come to the rescue of such a divorced woman also.

(iii) That is why, the expression ‘domestic relationship’ has been defined in an expansive manner to mean a relationship between two persons who live or have at any point of time lived together in a shared household when they are related by marriage. We have also interpreted the word live’ or lived’ in the context of right to reside in Sub-Section (1) of Section 17. The right to live in the shared household, even when the domestic relationship may have been severed for instance when a woman has been widowed owing to the death of her husband, entitles her to have remedies under the D.V. Act.

(iv) Therefore, even when the marital ties cease and there is no subsisting domestic relationship between the aggrieved woman and the respondent against whom relief is claimed but the acts of domestic violence are related to the period of domestic relationship, even in such circumstances, the aggrieved woman who was subjected to domestic violence has remedies under the D.V. Act.

(c) Even in the case of relationship in the nature of marriage, during which period the woman suffered domestic violence and is thus an aggrieved person can seek remedies subsequent to the cessation of the relationship, the only 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.

(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(l)(b) of the D.V. Act makes it clear that it is the duty of the Protection Officer to make a Domestic Incident Report to the Magistrate upon receipt of a complaint of domestic violence and forward copies thereof to the police officer-in-charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area.

c) In the case of Md. Basit vs. State of Assam and Others – [(2012) 1 Gauhati Law Reports 747], the Gauhati High Court differed with the view taken by the Madhya Pradesh and Jharkhand High Courts and held that Section 12 only contemplates as to who can file a complaint under Section 12 of the D.V. Act, what relief may be sought for, what the contents of the complaint must be and how the complaint ought to be examined. That if the complaint conforms to the said pre-conditions, the same may be taken cognizance of. The High Court noted that an application under Section 12(1) of the D.V. Act may be filed either by an aggrieved person herself, or by a Protection Officer. The Court went on to hold that the provision does not require a Magistrate to specifically call for a Domestic Incident Report. That it would only be mandatory to consider such report, if the same had been filed by the Protection Officer before the Magistrate. The Gauhati High Court differed with the view taken by the Madhya Pradesh and Jharkhand High Courts, to the extent that the latter Courts observed that the Magistrate would not be obligated to consider the Domestic Incident Report even if the same was filed by the Protection Officer.

d) Delving on the same issue, the High Court of Himachal Pradesh in Rahul Soorma vs. State of Himachal Pradesh – [(2012) SCC Online HP 2574], held that the purpose of the D.V. Act is to give immediate relief to the aggrieved person; therefore, it was wrong to suggest that the Magistrate has no jurisdiction to take cognizance of the application under Section 12 of the D.V. Act before the receipt of a Domestic Incident Report by the Protection Officer or the service provider.

e) Further, the High Court of Andhra Pradesh in A. Vidya Sagar vs. State of Andhra Pradesh – [2014 SCC Online Hyd 715], rejected the contention of the petitioner therein that a domestic violence case can be instituted and taken cognizance of on the basis of the Domestic Incident Report only and not otherwise.

f) In its 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 manner of making an application to a Magistrate does not require that the Domestic Incident Report must accompany an application for relief under Section 12.

It was further held that an obligation to submit a Domestic Incident Report is imposed only on the Protection Officers under Section 9 of the D.V. Act and upon the service providers under Section 10 of the D.V. Act and the learned Magistrate ‘shall’ take into consideration, the Domestic Incident Report if it is filed and not otherwise.

h) In Rakesh Choudhary vs. Vandana Choudhary -[2019 SCC Online J&K 512], the High Court of Jammu and Kashmir rejected the argument of the petitioner therein that the report of the Protection Officer is sine qua non for issuing process in a petition under Section 12 of the D.V. Act. The Court held that the proviso to Section 12(1) of the D.V. Act only stipulates that the learned Magistrate shall take into consideration the Domestic Incident Report filed by the Protection Officer or the Service Provider, but it does not stipulate that a report ‘shall be called for’ before any relief could be granted.

i) Further, the High Court of Bombay at Aurangabad Bench, while dealing with a criminal writ petition in the case of Vijay Maruti Gaikwad vs. Savita Vijay Gaikward – [2018 (1) HLR 295], observed that if the matter is before the Court and the wife preferred not to approach the Protection Officer, the Court is not bound to call the report of Protection Officer.

j) Lastly, in the case of Suraj Sharma vs. Bharti Sharma – [2016 SCC Online Chh 1825], the High Court of Chhattisgarh while expressing its view on Section 12 of the D.V. Act also held that the Domestic Incident Report shall not be conclusive material for making any order.

a) In Rama Singh vs. Maya Singh – [(2012) 4 MPLJ 612][1], the High Court of Madhya Pradesh, in the facts and circumstances of the said case, while quashing the petition under Section 482 of the Code of Criminal Procedure, 1973, held that the impugned order therein was passed without taking 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.

[1] This judgment was explained in later decision of Ravi Kumar Bajpai (supra).

b) In the case of Ravi Dutta vs. Kiran Dutta and Another -[208 (2014) DLT 61][2], 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.

[2] This judgment did not consider the earlier judgment in Shambhu Prasad Singh (supra) passed by the Delhi High Court itself.

(a) The normal function of a proviso is to except something out of the provision or to qualify something enacted therein which, but for the proviso, would be within the purview of the provision. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In other words, a proviso qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main provision. Further, a proviso cannot be construed as nullifying the provision or as taking away completely a right conferred by the enactment.

(b) In this regard, learned Author, Justice G.P. Singh, in “Principles of Statutory Interpretation”, 15^th 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 a section but is itself enacted as a separate section, then it becomes necessary to determine as to which section the proviso is enacted as an exception or qualification.

Sometimes, a proviso is used as a guide to construction of the main section. Thirdly, when there are two possible construction of words to be found in the section, the proviso could be looked into to interpret the main section. However, when the main provision is clear, it cannot be watered down by the proviso. Thus, where the main section is not clear, the proviso can be looked into to ascertain the meaning and scope of the main provision.

(c) According to Justice G.P. Singh, the learned author, the proviso should not be so construed as to make it redundant. In certain cases, “the legislative device of the exclusion is adopted only to exclude a part from the whole, which, but for the exclusion, continues to be a part of it”, and words of exclusion are presumed to have some meaning and are not readily recognized as mere surplusage. As a corollary, it is stated that a proviso must be so construed that the main enactment and the proviso should not become redundant or otiose. This is particularly so, where the object of a proviso sometimes is only by way of abundant caution, particularly when the operative words of the enactment are abundantly clear. In other words, the purpose of a proviso in such a case is to remove any doubt. There are also instances where a proviso is in the nature of an independent enactment and not merely, an exception or qualifying what has been stated before. In other words, if the substantive enactment is worded in the form of a proviso, it would be an independent legislative provision concerning different set of circumstances than what is worded before or what is stated before. Sometimes, a proviso is to make a distinction of special cases from the general enactment and to provide it specially.

(d) At this stage, the construction or interpretation of a proviso could be discussed as gathered from various judgments of this Court.

(i) In Ishverlal Thakorelal Almaula vs. Motibhai Nagjibhai – [AIR 1966 SC 459], while dealing with the Bombay Tenancy and Agricultural Lands Act, 1948, this Court held, that a proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso, would be within that clause.

(ii) 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 the amendment made to Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, in the context of Article 3 IB of the Constitution and the second proviso thereto, reiterated what was stated in Ishverlal’s case, (supra).

(v) In S. Sundaram Pillai, etc, vs. V.R. Pattabiraman -[AIR 1985 SC 582], while dealing with the scope of a proviso and explanation to sub – section (2) of Section 10 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, this Court held that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or qualifying some thing enacted therein which, but for the proviso, would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment, nor can it be used to nullify or set at naught the real object of the main enactment. Sometimes, a proviso may exceptionally have the effect of a substantive enactment.

(e) After referring to several legal treatises and judgments, this Court held in the above judgment as under:-

“43. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes:

(1) qualifying or excepting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and

(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.”

(f) The approach to the construction and interpretation of a proviso is enunciated in the following cases. (i) In M. Pentiah vs. Muddala Veeramallappa – [AIR 1961 SC 1107], it was observed that while interpreting a section or a proviso, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, one should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the 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.

“(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 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 levied 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?”