“The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never-ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime.”
Supreme Court: Answering important question pertaining to the interpretation and working of the Protection of Women from Domestic Violence Act, 2005 (DV Act) in relation to right of residence in the shared household, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has held that
“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.”
In the judgment running into over 150 pages, the Court elaborately discussed and interpreted the provisions and scheme of DV Act. Overruling the law laid down in SR Batra v. Taruna Batra, (2007) 3 SCC 169, the Court held that respondent in a proceeding under Domestic Violence Act can be any relative of the husband and in event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household.
In SR Batra v. Taruna Batra, (2007) 3 SCC 169, a two judge-bench had held that where it was held that the wife is entitled only to claim a right under Section 17(1) to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.
KEY TAKEAWAYS FROM THE JUDGMENT
WHAT IS A SHARED HOUSEHOLD?
“Means and includes”
The definition of shared household in Section 2(s) of the DV Act is an exhaustive definition. The first part of definition begins with expression “means” which is undoubtedly an exhaustive definition and second part of definition, which begins with word “includes” is explanatory of what was meant by the definition.
The use of both the expressions “means and includes” in 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.
Conditions to be fulfilled for a shared household
(i) person aggrieved lives or at any stage has lived in a domestic relationship.
(ii) (a) includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and
(b)includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
“At any stage has lived”
The use of the expression “at any stage has lived” immediately after words “person aggrieved lives” 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 shared household is contemplated to be the household, which is a dwelling place of aggrieved person in present time.
“… 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. .”
Further, 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.
Hence, 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.
IS RIGHT TO RESIDENCE UNDER SECTION 19 AN INDEFEASIBLE RIGHT?
The right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law.
“While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties.”
WHO CAN BE A RESPONDENT?
There are two conditions for a person to be treated to be respondent within the meaning of Section 2(q), i.e.,
- in a domestic relationship with the aggrieved person, and
- against whom the aggrieved person has sought any relief under Act, 2005.
For the purposes of determination of right of defendant under Sections 17 and 19 read with Section 26 in the suit in question the plaintiff can be treated as “respondent”, but for the grant of any relief to the defendant or for successful resisting the suit of the plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant. Hence,
“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.”
NOTE: The Court in Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165, where the Court has struck down the expression “adult male” from the expression “any adult male person” and held that restricting the meaning of respondent in Section 2(q) to only “adult male person” is not based on any intelligible differentia having rational nexus with object sought to be achieved. Hence, it is now permissible under definition of Section 2(q) to include females also. [Read the full report on the 2016 verdict here]
IS THERE ANY EXCEPTION TO THE RIGHT TO RESIDE IN SHARED HOUSEHOLD?
The expression “save in accordance with the procedure established by law”, in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household.
“In appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household.”
For example, when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself.
Further, 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.
CAN AN ORDER UNDER SECTION 19(1)(b) BE PASSED AGAINST A WOMAN?
Section 19 (1)(b) of DV Act provides that while disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order directing the respondent to remove himself from the shared household.
The Court held that while passing the order of residence under Section 19, more particularly under sub-section 19(1)(b) as per the proviso to Section 19(1), no order under clause(b) shall be passed against any person who is a woman.
ARE PROCEEDINGS UNDER THE DV ACT AND PROCEEDINGS BEFORE A CIVIL COURT, FAMILY COURT OR A CRIMINAL COURT, AS MENTIONED IN SECTION 26 OF THE DV ACT INDEPENDENT PROCEEDINGS?
The proceedings under the D.V. Act and proceedings before a civil court, family court or a criminal court, as mentioned in Section 26 of the D.V. Act are independent proceedings, like the proceedings under Section 125 of the Cr. P.C. for maintenance before the Magistrate and/or family court and the proceedings for maintenance before a civil court/family court for the reliefs under the Hindu Adoption and Maintenance Act. However, the findings/orders passed by the one forum has to be considered by another forum.
CONCLUSION
- The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
- The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
- A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.
[Satish Chander Ahuja v. Sneha Ahuja, 2020 SCC OnLine SC 841, decided on 15.10.2020]