Tuesday, 19 July 2016

Whether relief under DV Act is available to wife on the basis of past co-habitation with husband?

According to learned counsel for the Applicants, therefore,
as Respondent No.1 has left house of the Applicants in the year 2003
itself, there was no domestic relationship in existence within the
meaning of the above referred definitions of ‘Domestic Relationship’,
‘Aggrieved Women’ and ‘Shared Household’. Hence, her application
itself was not maintainable.
8. However, needless to state, that, this very argument itself is
misconceived, because the wording of ‘Aggrieved Person’, as laid down
in Section 2(a) clearly provided that any women, who is or has been in
domestic relationship with the respondent. The definition of ‘Domestic
Relationship’ also means relationship between two persons, who live or
have, at any point of time, lived together in shared household. The
definition of ‘Shared Household’ also means where the person
aggrieved lives or at any stage has lived in a domestic relationship.
Therefore, none of the definitions contemplate that on the date of filing
such application for the reliefs under Protection of Women from

Domestic Violence Act, the parties should be actually residing or living
together. The very words “has lived together at any point of time”
necessarily cover even the past co-habitation or past living together.
Otherwise, these words would not have appeared in the definition.
Giving any other interpretation would be making these words nugatory.
So till the time the marital tie subsists and the party, at any point of time,
had lived together, the application or proceedings under Protection of
Women from Domestic Violence Act can survive and are very much
maintainable so as to grant the necessary relief.
In the authority of our own
High Court Bharati N. Vs. Ravi, 2010 (3) BOM Cri. 871, wherein, the
words ‘has been’ or ‘have been’ interpreted, it is categorically held that
the words ‘has been’ and ‘have been’ have been used for the purpose
of showing the past relationship or experience between the concerned
parties. The said words have been used purposefully as the said Act
has been enacted to protect a woman from domestic violence and,
therefore, there cannot be any fitter, which can come in the way by
interpreting the provisions in a manner to mean that unless the
domestic relationship continues on the date of application, the
provisions of the said Act cannot be invoked. It was further held that to
interpret the said provisions so as to mean that only subsisting domestic
relationships are covered would result in terming the provisions of the
Act 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.172 OF 2014
ALONG WITH
CRIMINAL APPLICATION NO.134 OF 2014
IN
CRIMINAL REVISION APPLICATION NO.172 OF 2014
 Dhananjay Ramkrishna Gaikwad 

 V/s.
Sunanda Dhananjay Gaikwad 
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 18TH JANUARY 2016.
Citation: 2016 ALLMR(CRI)2291

1. This Revision Application is preferred challenging the
Judgment and Order dated 15th February 2014 of Additional Sessions
Judge, Niphad, Dist. Nashik, in Criminal Appeal No.54 of 2011, thereby
dismissing the said Appeal, which was preferred against the order of
protection granted to Respondent Nos.1 and 2, under Section 18 of
Protection of Women from Domestic Violence Act.
2. Facts of the Revisions are to the effect that Respondent No.1
is legally wedded wife of Applicant No.1. Respondent No.2 is born out
of the wed-lock. The marriage of Respondent No.1 and Applicant No.1
was solemnized on 3rd March 2002. Few months thereafter, she was
constrained to leave the house on account of domestic violence.
Hence, after issuing a notice dated 6th December 2003, she filed
Criminal Miscellaneous Application No.28 of 2005 for maintenance,
under Section 125 of Cr.P.C. In the said application, the amicable
settlement took place on 5th March 2006 and she went to co-habit with
Applicant No.1. Thereafter again subjecting her to harassment and
cruelty, she was driven out of the house within three months.

Meanwhile, she had also filed a criminal case against Applicant No.1
and his family members for the offence punishable under Section 498-A
r/w. 34 of IPC. In the said case, on 4th July 2009, Applicants were
acquitted. Few months thereafter, on 18th January 2010, Respondent
No.1 filed Criminal Miscellaneous Application No.19 of 2010 before the
Trial Court seeking various reliefs of protection and residence in the
shared household, as contemplated under the Domestic Violence Act.
3. The said application was resisted by the present Applicants
contending, inter alia, that there was no domestic relationship in
existence at the time of filing the application and there was also no
substance in the contention of Respondent No.1 that she was subjected
to any domestic violence. It was urged that the criminal case filed by her
against the present Applicants has ended into acquittal, thereby
negating her case that she was subjected to any harassment or illtreatment.
Further, it was denied that, as a result of amicable settlement
in Criminal Miscellaneous Application for maintenance bearing No.28 of
2005, she has resumed co-habitation and hence it was urged that, as
domestic relationship itself is not in existence and the application is filed
only as a counter blast to the acquittal of the Applicants in the case filed
by her under Section 498-A r/w. 34 of IPC, the application deserves to
be dismissed.
4. In support of their respective contentions, Respondent No.1
and present Applicant No.1 examined themselves and on appreciation
of their evidence and keeping in mind the provisions of Domestic
Violence Act, the Trial Court passed a protection order in favour of
Respondent No.1, restraining the Applicants from subjecting her to any

sort of domestic violence and further restraining the present Applicants
from restraining Respondent No.1 from residing in the shared
household and also from driving her out of the said house.
5. The Applicants challenged the said order before the
Appellate Court, however, as referred above, the Appellate Court
dismissed their Appeal. In this Revision Application, the first point raised
by learned counsel for the Applicants is that, at the relevant time, when
application under the provisions of Domestic Violence Act was filed
before the Trial Court, the domestic relationship was not in existence at
all, as parties were residing separately since the year 2003 i.e. within
few months or a year after the marriage.
6. In support of his submissions, learned counsel for the
Applicants has relied upon the definition of the ‘Domestic Relationship’,
as given in Section 2(f), the definition of ‘Aggrieved Person’, as given in
Section 2(a), and the definition of ‘Shared Household’, as given in
Section 2(s) of Protection of Women from Domestic Violence Act, 2005.
According to these definitions, ‘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’. Whereas, the term ‘Domestic Relationship’ necessarily
contemplates ‘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’. The term ‘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, tile or interest in the
shared household’.
7. According to learned counsel for the Applicants, therefore,
as Respondent No.1 has left house of the Applicants in the year 2003
itself, there was no domestic relationship in existence within the
meaning of the above referred definitions of ‘Domestic Relationship’,
‘Aggrieved Women’ and ‘Shared Household’. Hence, her application
itself was not maintainable.
8. However, needless to state, that, this very argument itself is
misconceived, because the wording of ‘Aggrieved Person’, as laid down
in Section 2(a) clearly provided that any women, who is or has been in
domestic relationship with the respondent. The definition of ‘Domestic
Relationship’ also means relationship between two persons, who live or
have, at any point of time, lived together in shared household. The
definition of ‘Shared Household’ also means where the person
aggrieved lives or at any stage has lived in a domestic relationship.
Therefore, none of the definitions contemplate that on the date of filing
such application for the reliefs under Protection of Women from

Domestic Violence Act, the parties should be actually residing or living
together. The very words “has lived together at any point of time”
necessarily cover even the past co-habitation or past living together.
Otherwise, these words would not have appeared in the definition.
Giving any other interpretation would be making these words nugatory.
So till the time the marital tie subsists and the party, at any point of time,
had lived together, the application or proceedings under Protection of
Women from Domestic Violence Act can survive and are very much
maintainable so as to grant the necessary relief.
9. As regards the authorities relied upon by learned counsel
for the Applicants, on facts, all these authorities are totally
distinguishable. For e.g. in Jayesh Uttamrao Khairnar & Ors. Vs.
State of Maharashtra, 2010 (3) Bom.C.R. (Cri.) 939, in view of the
divorce between the parties, it was held that on the date of filing
application, there was no domestic relationship in existence. Whereas,
in Kishor Shrirampant Kale Vs. Shalini Kishor Kale & Ors., 2010 (3)
Bom.C.R.(Cri.) 694, there was not a single averment in the complaint
showing that husband has committed any act or omission by his
conduct to deprive the wife of her enjoyment of shared household or
any way restricted her access thereto and hence it was held that the
Petition was not maintainable. As regards Sejal Dharmesh Ved Vs.
The State of Maharashtra & Ors., 2014 ALL MR (Cri) 636, the wife
has returned from U.S.A. and lived in India for one year, during which
period there was no co-habitation or living together. Hence, it was held
that her application seeking relief under Protection of Women from
Domestic Violence Act cannot be maintainable. In the next authority of
Amitabh Upadyay R.P. Upadhyay Vs. State of Maharashtra & Anr.,

2014 (4) Bom.C.R.(Cri.) 545 also, the parties had obtained the divorce
and, therefore, it was held that domestic relationship was not proved.
10. The point, therefore, to be stressed is that all the
authorities, which are relied upon by learned counsel for the Applicants,
are distinguishable on the facts. Conversely, provisions of Protection of
Women from Domestic Violence Act themselves are so clear that they
do not call for any interpretation as they necessarily imply that even if
the parties had lived together at any point of time and not necessarily at
the time of filing the application, the provisions of Protection of Women
from Domestic Violence Act can be invoked. In the authority of our own
High Court Bharati N. Vs. Ravi, 2010 (3) BOM Cri. 871, wherein, the
words ‘has been’ or ‘have been’ interpreted, it is categorically held that
the words ‘has been’ and ‘have been’ have been used for the purpose
of showing the past relationship or experience between the concerned
parties. The said words have been used purposefully as the said Act
has been enacted to protect a woman from domestic violence and,
therefore, there cannot be any fitter, which can come in the way by
interpreting the provisions in a manner to mean that unless the
domestic relationship continues on the date of application, the
provisions of the said Act cannot be invoked. It was further held that to
interpret the said provisions so as to mean that only subsisting domestic
relationships are covered would result in terming the provisions of the
Act autos. In short, therefore, all the contentions advanced by learned
counsel for the Applicants on this aspect are legally not tenable and
hence are required to be rejected.

11. The second contention advanced is that learned Trial Court
has not appreciated the evidence of the Applicant No.1 and only relying
upon the legal provisions granted the reliefs, as claimed by Respondent
No.1. However, perusal of the impugned judgment passed by the Trial
Court reflects that the Trial Court has considered the evidence of the
Applicants in Para No.16. Moreover, the facts of the case are so
eloquent that Respondent No.1 has, in the year 2004 itself, filed F.I.R.
for harassment and cruelty under Section 498-A of IPC. She has filed
Criminal Miscellaneous Application for maintenance under Section 125
of Cr.P.C. in the year 2005. For some days they stayed together, but it
was of no use and again she was driven out of the house and
constrained to reside separately. In such situation, it has to be held that
there was more than sufficient evidence on record before the Trial Court
to grant the protection order in favour of Respondent No.1, restraining
Applicants from subjecting her to domestic violence and also the
residence order, as claimed by her.
12. The impugned order passed by the Trial Court and
confirmed in Appeal, thus being absolutely legal and valid, does not call
for any interference. The Revision Application hence stands dismissed.
13. In view of dismissal of Revision Application, Criminal
Application No.134 of 2014, does not survive and the same is disposed
of accordingly.
[DR. SHALINI PHANSALKAR-JOSHI, J.]

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