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SUPREME COURT OF INDIA
A.K. Sikri, Ashok Bhushan, JJ.
Vaishali Abhimanyu Joshi - Appellant
Versus
Nanasaheb Gopal Joshi - Respondent
Civil Appeal No. 6448 of 2017 (Arising Out of SLP(C) No. 24045 of 2016)
Decided On : 09-05-2017
Protection of Women from Domestic Violence Act, 2005–Sections 19 and 26– Provincial Small Cause Courts Act, 1887–Section 26–Code of Civil Procedure, 1908–Order 8 Rule 6A–Right to residence–Unless determination of claim by an aggrieved person seeking any order as contemplated by Act, 2005 is expressly barred from consideration by a civilcourt, Apex Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before civil court–When proceeding initiated by plaintiff in Judge, Small Causes Court alleged termination of gratuitous licence of appellant and prays for restraining appellant from using suit flat and permit plaintiff to enter and use the flat, right of residence as claimed by appellant is interconnected with such determination and refusal of consideration of claim of appellant as raised in her counter claim shall be nothing but denying consideration of claim as contemplated by Section 26 of Act, 2005 which shall lead to multiplicity of proceeding, which cannot be object and purpose of Act, 2005–Counter claim filed by appellant before Judge, Small Causes Court in Civil Suit was fully entertainable and courts below committed error in refusing to consider such claim–Impugned judgments set aside. (Paras 36 to 39)
(2016) 11 SCC 774; 1984 (Supp) SCC 196; 2000(4) SCC 406; 2001 (3) SCC 71 ; 2008 (8) SCC 148; 2016 (10) SCC 165–Relied.
Writ Petition No.5648 of 2015, AmbreenAkhoon vs. Aditya AurnPaudwal and Ors. Decided on 4th August,2015 (Bombay High Court)–Distinguished.
Certainly. Based on the provided legal document, the key points are as follows:
The proceeding before the Judge, Small Causes Court is a legal proceeding within the civil jurisdiction, and the Court has the authority to entertain counter claims filed by defendants, including those seeking rights under the Domestic Violence Act, 2005 (!) (!) .
The counter claim filed by the appellant, seeking a right of residence under Section 19 of the Domestic Violence Act, 2005, is fully entertainable in a suit filed by the respondent before the Small Causes Court, as the reliefs sought are interconnected with the determination of rights in immovable property and are within the Court’s jurisdiction (!) (!) .
The relevant provisions of the Provincial Small Causes Courts Act, 1887, particularly Section 15 and the Second Schedule, generally restrict the Court’s jurisdiction over suits for the determination or enforcement of rights in immovable property. However, these restrictions are overridden by specific provisions, such as Section 26 of the Maharashtra Amendment, which allows such reliefs to be sought in proceedings affecting the rights of the parties, including counter claims (!) (!) (!) (!) .
The presence of a non obstante clause in Section 26(1) of the Maharashtra Act signifies that it overrides contrary provisions of the original Act, thereby permitting the Court to entertain claims related to rights of residence and interests in immovable property, even if these would typically fall outside its jurisdiction under the general provisions (!) .
The court emphasizes that unless a specific provision expressly bars consideration of such claims, the Court should interpret Section 26 of the Act, 2005, broadly to facilitate the effective protection of women’s rights, including rights to residence under the Domestic Violence Act, 2005 (!) (!) (!) .
The judgments below that refused to entertain the counter claim were in error, as they did not consider the overriding effect of Section 26 of the Act, 2005, and the applicable Maharashtra amendments, which clearly permit such claims before the Small Causes Court (!) (!) .
The Court clarified that the merits of the counter claim are yet to be decided and that the case should be remanded for proper consideration in accordance with law, recognizing the Court’s jurisdiction to entertain such claims (!) .
In summary, the legal position established is that counter claims seeking rights of residence under the Domestic Violence Act, 2005, are permissible and must be considered by the Small Causes Court, especially in light of specific statutory provisions that override general restrictions.
JUDGMENT :
Ashok Bhushan, J.
Leave granted.
2. This appeal raises an important question pertaining to interpretation of Section 26 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "Act, 2005") qua the Provincial Small Cause Courts Act, 1887(hereinafter to referred to as "Act, 1887") as amended in the State of Maharashtra. The question is as to whether counter claim by the appellant seeking right under Section 19 of Act, 2005 can be entertained in a suit filed against her under Section 26 of Act, 1887 seeking a mandatory injunction directing her to stop using the suit flat and to remove her belongings therefrom.
3. This appeal has been filed challenging the judgment dated 7th July, 2016 of High Court of Judicature at Bombay in Writ Petition No.1550 of 2016 by which the writ petition filed by the appellant questioning the judgment and order of 5th Additional Judge, Small Causes Court dated 5th November, 2014 and order passed by the District Judge, Pune dated 17th December, 2015 was dismissed.
4. Necessary facts of the case need to be noted for deciding the issue raised are:
The appellant got married with one Abhimanyu who is son of the respondent on 10.02.2000. The appellant started residing in the suit flat No.4, 45/4, Arati Society Shilavihar Colony, Paud Fata, Pune since 2004 along with her husband. The flat was alloted to the respondent by the Society in the year 1971. On 13th June, 2011, the husband of appellant left her at the suit flat and shifted to live with his parent at Mrutunjay Society. A daughter, namely, Ishwari was born from the wedlock of the appellant and the Abhimanyu, who was about 9 years in the year 2014. The respondent along with his wife had been residing in another flat nearby. The appellant was treated with cruelty by her husband and other members of the family. A suit for divorce on the basis of cruelty being P.A.No. 23/2011 was filed by the appellant against her husband. A notice was sent on behalf of the respondent to the appellant on 23.01.2013 revoking the gratuitous licence and asking the appellant to stop the use and occupation of the suit flat. The appellant replied the notice. The respondent filed Suit No.77/2013 in the Small Causes Court, Pune seeking for following reliefs:
"A. By an order of mandatory injunction the defendant may be directed to stop the use and occupation of the suit flat and remove her belongings therefrom.
B. The defendant may be restrained by an order of perpetual prohibitory injunction from using/occupying the suit flat.
C. The defendant may be restrained by an order of perpetual prohibitory injunction from obstructing the plaintiff and his family members to possess, use and occupy the suit flat.
D. Interim orders in terms of clause A,B,C above may be passed.
E. Costs of the suit may be awarded to the plaintiff from the defendant.
F. Any other just and other equitable orders in the interest of justice may please be passed."
5. The appellant filed a written statement in the suit pleading that she was residing in the suit flat since 26.01.2004 along with her husband and daughter. Her husband who was also residing along with her left her on 13.06.2011 to live with the respondent. It was pleaded that suit flat was intended to be used by the joint family as a joint family property and although the agreement of purchase of the suit flat bears the name of the respondent, the suit flat has been used as joint family property. The allegation that respondent is the sole owner of the flat was denied. In her written statement a counter claim was also laid by the appellant. In the counter claim following reliefs have been claimed by the appellant:
"i. The suit & injunction application at Exh.5 of the plaintiff may kindly be dismissed with heavy costs.
ii. It may be declared that the suit flat is the shared household.
iii. The plaintiff, his agents, representatives, relatives or anyone claiming through him may kindly be restrained by an injunction from dispossessi
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