2022 Supreme(SC) 446

SUPREME COURT OF INDIA
M.R. SHAH, B.V. NAGARATHNA, JJ.
Prabha Tyagi – Appellant
Versus
Kamlesh Devi – Respondent
Criminal Appeal No. 511 of 2022
Decided On : 12-05-2022

IMPORTANT POINTS
(1) Domestic violence – There should be a subsisting domestic relationship between aggrieved person and person against whom relief is claimed vis-à-vis allegation of domestic violence.
(2) Right to residence – Even in absence of actual residence in shared household, a woman in a domestic relationship can enforce her right to reside therein.
(3) Domestic violence – Domestic Incident Report is not a sine qua non for entertaining or deciding application under Section 12 of D.V. Act by Magistrate.
(4) Proviso cannot be construed as nullifying the provision or as taking away completely a right conferred by the enactment.

Headnote:

(A) Protection of Women from Domestic Violence Act, 2005 – Sections 12 and 17 – Domestic violence – Section 17 confers right on every woman in a domestic relationship to reside in shared household irrespective of whether she has any right, title or beneficial interest in the same – This right to reside in a shared household which is conferred on every woman in a domestic relationship is a vital and significant right – It is an affirmation of right of every woman in a domestic relationship to reside in a shared household – Every woman in a domestic relationship has a right to reside in shared household even in absence of any act of domestic violence by respondent – Daughter, sister, wife, mother, grand-mother or great grand-mother, daughter-in-law, mother-in-law or any woman having a relationship in nature of marriage, an adopted daughter or any member of joint family has right to reside in a shared household – Expression ‘right to reside in a shared household’ has to be given an expansive interpretation – Expression ‘the right to reside in a shared household’ cannot be restricted to actual residence – Even in absence of actual residence in shared household, a woman in a domestic relationship can enforce her right to reside therein – If a woman in a domestic relationship is an aggrieved person and she is actually residing in shared household, she cannot be evicted except in accordance with procedure established by law – Similarly, a woman in a domestic relationship who is an aggrieved person cannot be excluded from her right to reside in shared household except in accordance with procedure established by law. (Paras 25, 29, 30, 31 and 32)

(B) Protection of Women from Domestic Violence Act, 2005 – Section 17 – Domestic violence – D.V. Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under Constitution and in order to protect women victims of domestic violence occurring in a domestic relationship – Expression ‘joint family’ cannot mean as understood in Hindu Law – Expression ‘family members living together as a joint family’, means members living jointly as a family – In such an interpretation, even a girl child/children who is/are cared for as foster children also have a right to live in a shared household and are conferred with right under Sub-Section (1) of Section 17 of D.V. Act – When such a girl child or woman becomes an aggrieved person, protection of Sub-Section (2) of Section 17 comes into play – Expression ‘marriage’ also encompasses a relationship in nature of marriage – Expression ‘adoption’ also takes into consideration family members living together as a joint family. (Paras 36 and 42)

(C) Protection of Women from Domestic Violence Act, 2005 – Section 12 – Domestic violence – Domestic Incident Report is not a sine qua non for entertaining or deciding application under Section 12 of D.V. Act by Magistrate – When an aggrieved person files application by herself or with assistance of an Advocate and not with assistance of Protection Officer or a service provider, in such a case, role of Protection Officer or a service provider is not envisaged – When a Domestic Incident Report is filed by a Protection Officer or a service provider, in such a case Magistrate has to take into consideration said report received by him – But if such a report has not been filed on behalf of aggrieved person then he is not bound to consider any such report – High Court was not right in holding that application filed by appellant herein was not accompanied by a Domestic Incident Report and therefore under proviso to Sub-Section (1) of Section 12 of D.V. Act, Magistrate had no authority to issue orders and directions in favour of appellant – D.V. Act does not make it mandatory for an aggrieved person to make an application before a Magistrate only through Protection Officer or a service provider – An aggrieved person can directly make an application to jurisdictional Magistrate by herself or by engaging services of an Advocate – In such a case, filing of a Domestic Incident Report by a Protection Officer or service provider does not arise – In such circumstances, it cannot be held that Magistrate is not empowered to make any order interim or final, under provisions of D.V. Act, granting reliefs to aggrieved persons. (Paras 47, 48 and 49)

(D) Protection of Women from Domestic Violence Act, 2005 – Section 12 – Domestic violence – There should be a subsisting domestic relationship between aggrieved person and person against whom relief is claimed vis-à-vis allegation of domestic violence – However, it is not necessary that at the time of filing of an application by aggrieved person, domestic relationship should be subsisting – Even if an aggrieved person is not in a domestic relationship with respondent in a shared household at the time of filing of an application under Section 12 of D.V. Act but has at any point of time lived so or had right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of domestic relationship, is entitled to file application under Section 12 of D.V. Act. (Para 52)

(E) Interpretation of Statute – Function of Proviso – Proviso cannot be construed as nullifying the provision or as taking away completely a right conferred by the enactment – If substantive enactment is worded in 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 general enactment and to provide it specially – Where main section is not clear, proviso can be looked into to ascertain meaning and scope of main provision. (Para 50)

Facts of the case:

Appellant herein, who had filed Miscellaneous Case No. 78 of 2007 on the file of the Court of Special Judicial Magistrate- I, Dehradun, has assailed judgment dated 23rd July, 2019 passed by the High Court of Uttarakhand at Nainital, in Criminal Revision No. 186 of 2014, by which judgment dated 11th July, 2014 passed by V Additional Sessions Judge, Dehradun, in Criminal Appeal No. 53 of 2011 setting aside the order passed by the Special Judicial Magistrate-I, was sustained.

Findings of Court:

Plenitude of power under Section 12 of D.V. Act is accordingly interpreted and pre-requisite for issuing notice to respondent on an application filed by aggrieved person without assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise.

Result : Appeal allowed.