Conduct of parties prior to coming into force DV Act, 2005 can be taken into consideration

Supreme Court: Deciding the applicability of Protection of Women from Domestic Violence Act, 2005 (DV Act), the conduct of the parties prior to the coming into force DV Act, 2005 can be taken into consideration while passing an order. In the present case, the appellant-wife was being harassed by her husband since 2000 and was denied to the right reside in the shared household matrimonial house; the Court held that there is a continuance of domestic violence committed by the respondent-husband against the appellant-wife.
The 2-judge bench of Hon’ble Sudhansu Jyoti Mukhopadhaya and V. Gopala Gowda, JJ, relying upon the decision of this Court in V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183, held that the appellant-wife is entitled for protection orders and residence orders under Sections 18, 19 and 20 of the DV Act and that she is also entitled for compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent-husband. [Saraswathy v. Babu, Criminal Appeal No. 1999 of 2013, decided on November 25, 2013]1

REPORTABLE
IN THE SUPREME COURT OF INDIA

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.   This appeal has been preferred 
by   the   appellant­wife   against   the   judgment   and 
order dated 13th  December, 2011 passed by the High 
Court   of   Judicature   at   Madras.     By   the   impugned 
judgment,   the   High   Court   dismissed   the   criminal 
revision   case   filed   by   the   appellant   and   thus 
affirmed the order of First Appellate Court.  
2.
The pertinent facts of the case are as follows:
The parties to the present dispute are married 
to each other and the said marriage was solemnized 
on 17th February, 2000.  According to the appellant, 

she   brought   50   sovereign   gold   ornaments   and   1   kg 
silver   articles   as   stridhan   also   Rs.10,000/­   was 
given   to   the   respondent.     After   marriage   the 
appellant   lived   in   her   matrimonial   house   at   Padi, 
Chennai.     After   four   months   of   the   marriage,   the 
respondent­husband   and   his   family   demanded   more 
dowry in the form of cash and jewels. The appellant 
was   not   able   to   satisfy   the   said   demand. 
Therefore,   she   was   thrown   out   of   her   matrimonial 
house by the respondent and her in­laws.   Another 
allegation   of   the   appellant   is   that   after   sending 
out   the   appellant   from   her   matrimonial   house,   the 
respondent­husband   intended   to   marry   again.   On 
hearing   such   rumour,   the   appellant   filed   petition 
under   Section   9   of   the   Hindu   Marriage   Act,   1955 
(hereinafter   referred   to   as,   “the   HM   Act,   1955”) 
bearing   no.   H.M.O.P.   No.   216   of   2001   before   the 
Principal   Subordinate   Judge,   Chengalpattu,   Tamil 
Nadu for restitution of conjugal rights. 
The respondent­husband on the other hand filed 
H.M.O.P. No. 123 of 2002 under Section 13(1) (ia) 
and (iv) of the HMA Act, 1955 before the Principal 

Subordinate   Judge,   Chengalpattu,   Tamil   Nadu   for 
dissolution   of   marriage   between   the   appellant   and 
the respondent .
On   5th  April,   2006,   the   learned   Principal 
Subordinate   Judge,   Chengalpattu,   Tamil   Nadu 
dismissed the petition for dissolution of marriage 
filed   by   the   respondent­husband   and   allowed   the 
petition   for   restitution   of   conjugal   rights   filed 
by   the   appellant­wife   with   the   condition   that   the 
appellant   should   not   insist   for   setting   up   of   a 
separate residence by leaving the matrimonial home 
of the respondent. 
In the year 2008, the appellant filed Crl. M.P. 
No.   2421   of   2008   before   learned   XIII   Metropolitan 
Magistrate,  Egmore, Chennai against the respondent 
seeking relief under Section 19, 20 and 22 of the 
Protection   of   Women   from   Domestic   Violence   Act, 
2005   (hereinafter   referred   to   as,   “the   PWD   Act, 
2005”).   The learned XIII Metropolitan Magistrate, 
Egmore,   Chennai   partly   allowed   the   same   and 
directed   the   respondent   to   give   maintenance   of 
Rs.2,000/­ per month to the appellant to meet out 

her   medical   expenses,   food,   shelter   and   clothing 
expenses.       The   Magistrate   Court’s   held   that   the 
appellant   is   in   domestic   relationship   with   the 
respondent and the appellant being the wife of the 
respondent   has   a   right   to   reside   in   the   shared 
household.     The   officer   in   charge   of   the   nearest 
Police   Station   was   directed   to   give   protection   to 
the   appellant   for   implementation   of   the   residence 
orders   and   was   also   directed   to   assist   in   the 
implementation of the protection order.  
The   respondent­husband   being   aggrieved 
preferred   Criminal   Appeal   No.   339   of   2008   before 
the   Sessions   Court     (Vth   Additional   Judge)   at 
Chennai.  
In the meantime, as per the order passed by the 
XIII   Metropolitan   Magistrate,   Egmore,   Chennai   the 
appellant­wife   went   to   her   matrimonial   house   for 
staying   with   the   respondent­husband   house   along 
with   Protection   Officer.     However,   the   respondent 
did not obey the order of the Court and refused to 
allow   the   appellant­wife   to   enter   the   house   and 
locked the door from outside and went out.  

On   22nd  December,   2008,   the   appellant   filed   a 
complaint   against   the   respondent   for   not   obeying 
the   order   of   the   learned   XIII   Metropolitan 
Magistrate,   Egmore,   Chennai   and   the   same   was 
registered in Ambatur T3 Korattur Police Station as 
FIR No. 947 of 2008 under Section 31,32 and 74 of 
the  PWD Act, 2005.  The case was committed to the 
learned   XIII   Metropolitan   Magistrate,   Egmore, 
Chennai   and   registered   as   Criminal   Miscellaneous 
Petition No. 636 of 2011.
In the meantime, the Criminal Appeal No. 339 of 
2008   filed   by   the   respondent­husband   was   partly 
allowed by the Sessions Court (Vth Addl. Judge) at 
Chennai   on   21st  October,   2010.   Sessions   Courts   by 
the said order set aside the order prohibiting the 
respondent­husband from committing acts of domestic 
violence   as   against   the   appellant­wife   by   not 
allowing   her   to   live   in   the   shared   household   and 
the order directing the respondent to reside in the 
house   owned   by   respondent’s   mother   and   upheld   the 
order granting maintenance of Rs.2,000/­ per month 

in favour of the appellant­wife by the respondent­
husband. 
3.
Aggrieved   by   the   aforesaid   order,   the 
appellant­wife   filed   Crl.   R.C.   No.   1321   of   2010 
before   the   High   Court.     A   criminal   miscellaneous 
petition   no.1   of   2010   was   also   filed   in   the   said 
revision   application.     On   23rd  December,   2010,   the 
High   Court   granted   an   interim   stay   to   the   above 
order   passed   by   the   learned   Sessions   Court   (Vth 
Addl. Judge) at Chennai.   
4.
In the meantime,  while the  matter  was pending 
before   the   High   Court,   the   learned     XIII 
Metropolitan Magistrate, Egmore, Chennai passed an 
order on 24th  February, 2011 in Crl. Misc. Petition 
No.   636   of   2011   (arising   out   of   FIR   No.   947   of 
2008)   and   directed   the   SHO,   Ambatur   T3   Korattur 
Police   Station   to   break   the   door   of   the 
respondent’s   house   in   the   presence   of   the   Revenue 
Inspector and make accommodation for the appellant 
with further direction to the SHO to inquire about 
the   belongings   in   the   respondent’s   house   in 
presence   of   the   family   members   of   the   respondent 

with further direction to submit the report to the 
respondent as well as the Protection Officer.   The 
respondent­husband thereafter filed  a petition  for 
vacating the order of stay dated 23rd December, 2010 
and vide order dated 9th March, 2011 the High Court 
vacated   the   order   of   stay   and   made   it   clear   that 
appellant­wife   can   go   and   reside   with   her   husband 
in his rental residence  at  Guduvancherry.    As the 
order   aforesaid   was   not   complied   with   by   the 
respondent­husband   the   appellant­wife   filed 
Contempt   Petition   No.   958   of   2011   against   the 
respondent­husband     for   wantonly   disobeying   the 
order   dated   9th  March,   2011   passed   by   the   High 
Court.  
5.
The   High   Court   closed   the   contempt   petition 
vide   order   dated   21st  July,   2011   with   following 
observation:
“In view of the categorical submission made by  
the Ld. Counsel for the respondent as well as  
the statement made by the respondent herein by  
appearing   before   this   court   and   stating   that  
the   respondent   undertakes   not   to   prevent   the  
contempt   petitioner   from   entering   inside   the 
premises   at   Door   No.   80,   Karpagambal   Nagar,  
Nadivaram,   Guduvancherry,   Chennai   and   the 
contempt petitioner also agreed to occupy and  
stay   in   the   above   said   premises   from  

01.08.2011,   the   contempt   petition   is   hereby  
closed.”
6.
Thereafter   the   appellant   made   representation 
before Sub Inspector of Police, Guduvancherry   and 
stated that the respondent­husband has given false 
address   and   in   order   to   comply   with   the   court’s 
order,   the   appellant   went   to   the   address   and   on 
enquiry came to know that the address was a bogus 
one.     The   appellant   thereby   submitted   a   complaint 
and   requested   the   police   to   enquire   from   the 
respondent   to   ascertain   the   real   facts   so   as   to 
ensure   that   the   court’s   order   is   executed   in   its 
letter and spirit.  
7.
When the matter was pending before the Police, 
the   High   Court   decided   the   criminal   miscellaneous 
case filed by the appellant and held that although 
the   offending   acts   of   the   respondent   could   be 
construed   as   offences   under   other   enactments   it 
could not be construed as acts of domestic violence 
under   the   PWD   Act,   2005   until   the   Act   came   into 
force.     The   High   Court   dismissed   the   revisional 
application. 

8.
From the bare perusal of the impugned judgment 
passed   by   the   High   Court,   we   find   that   the   High 
Court framed the following question:
“4.  The   primary   question   that   arises   for  
consideration   is   whether   acts   committed   prior  
to the coming  into force of the Protection of  
Women   from   Domestic   Violence   Act,   2005   and  
which   fall   within   the   definition   of   the   term  
‘Domestic   Violence’   as   informed   in   the   Act  
could form the basis of an action.”
9.
The High Court after taking into consideration 
the stand taken by the parties held as follows:
“5. This court would first concern itself with  
whether   acts   which   now   constitute   domestic 
violence but committed prior to the coming into 
force   of   the   Act   would   form   a   basis   of   an  
action   thereunder.     With   due   respect   to   the  
authorities   above   cited,   this   court   would 
inform   that   the   fundamental   issue   stands  
unaddressed.   The Act cam into force on 2005.  
It   cannot   be   disputed   that   several   wrongful  
actions  which  might  have  amounted   to  offences  
such   as   cruelty   and   demand   for   dowry   cannot  
have   taken   the   description   of   “Domestic  
violence”   till   such   time   the   act   came   into  
force.  In other words the offending acts could  
have   been   construed   as   offences   under   other  
enactments but could not have been construed as 
acts of ‘Domestic Violence’ until the act came  
into force.  Therefore, what was not ‘Domestic  
violence’   as   defined   in   the   Act   till   the   Act  
came into force could not have formed the basis  
of  an action.   Ignorance  of  law is  no excuse  
but the application of this maxim on any date  
prior to the coming into force of the Act could  
only   have   imputed   knowledge   of   offence   as  
subsisted   prior   to   coming   into   force   of   the  
Act.   It is true that it is only violation of  
orders   passed   under   the   Act   which   are   made  
punishable.     But   those   very   orders   could   be  

passed   only   in   the   face   of   acts   of   domestic  
violence.     What   constituted   domestic   violence  
was not known until the passage of the act and  
could not have formed the basis of a complaint  
of commission of ‘Domestic violence’.”
10.   From   the   judgment   passed   by   the   Trial   Court 
(XIII   Metropolitan   Magistrate,   Egmore,   Chennai 
dated 5th December, 2008) we find that the appellant 
filed   petition   against   her   husband   Babu   seeking 
relief under Sections 18, 19, 20 and 22 under the 
PWD Act, 2005.  Sections 18, 19, 20 and 22 read as 
follows:
“18.  Protection   orders.­The   Magistrate   may, 
after   giving   the   aggrieved   person   and   the  
respondent an opportunity of being heard and on 
being   prima   facie   satisfied   that   domestic 
violence has taken place or is likely to take  
place, pass a protection order in favour of the  
aggrieved   person   and   prohibit   the   respondent  
from­ 
(a) committing any act of domestic violence; 
(b)   aiding   or   abetting   in   the   commission   of  
acts of domestic violence; 
(c)   entering   the   place   of   employment   of   the  
aggrieved person or, if the person aggrieved is 
a   child,   its   school   or   any   other   place  
frequented by the aggrieved person; 
(d)   attempting   to   communicate   in   any   form,  
whatsoever,   with   the   aggrieved   person,  
including   personal,   oral   or   written   or  
electronic or telephonic contact; 
(e)   alienating   any   assets,   operating   bank 
lockers   or   bank   accounts   used   or   held   or  
enjoyed   by   both   the   parties,   jointly   by   the  
aggrieved  person  and  the  respondent   or  singly  
by   the   respondent,   including   her   stridhan   or  
any other property held either jointly by the  


parties or separately by them without the leave 
of the Magistrate; 
(f)  causing  violence  to  the   dependants,  other  
relatives or any person who give the aggrieved  
person assistance from domestic violence; 
(g)   committing   any   other   act   as   specified   in  
the protection order. 
19. Residence orders.­(1) While disposing of an  
application   under   sub­section   (1)   of   section  
12, the Magistrate may, on being satisfied that 
domestic   violence   has   taken   place,   pass   a  
residence order – 
(a)
restraining   the   respondent   from 
dispossessing   or   in   any   other   manner 
disturbing   the   possession   of   the   aggrieved  
person from the shared household, whether or  
not the respondent has a legal or equitable  
interest in the shared household; 
(b)
directing   the   respondent   to   remove  
himself from the shared household; 
(c)
restraining the respondent or any of his  
relatives   from   entering   any   portion   of   the  
shared   household   in   which   the   aggrieved  
person resides; 
(d)
restraining   the   respondent   from 
alienating   or   disposing   off   the   shared  
household or encumbering the same; 
(e)
restraining   the   respondent   from 
renouncing   his   rights   in   the   shared  
household   except   with   the   leave   of   the  
Magistrate; or 
(f)
directing   the   respondent   to   secure   same  
level   of   alternate   accommodation   for   the  
aggrieved   person   as   enjoyed   by   her   in   the  
shared   household   or   to   pay   rent   for   the  
same, if the circumstances so require: 
Provided that no order under clause (b) shall  
be passed against any person who is a woman.

(2) The Magistrate may impose any additional 
conditions or pass any other direction which he 
may deem reasonably necessary to protect or to 
provide for the safety of the aggrieved person 
or any child of such aggrieved person. 
(3) The Magistrate may require from the 
respondent to execute a bond, with or without 
sureties, for preventing the commission of 
domestic violence. 
(4)   An   order   under   sub­section   (3)   shall   be  
deemed to be an order under Chapter VIII of the  
Code   of   Criminal   Procedure,   1973   (2   of   1974)  
and shall be dealt with accordingly. 
(5)   While   passing   an   order   under   sub­section  
(1),   sub­section   (2)   or   sub­section   (3),   the  
court   may   also   pass   an   order   directing   the  
officer in charge of the nearest police station 
to give protection to the aggrieved person or  
to   assist   her   or   the   person   making   an  
application on her behalf in the implementation  
of the order. 
(6)   While   making   an   order   under   sub­section  
(1),   the   Magistrate   may   impose   on   the  
respondent   obligations   relating   to   the  
discharge   of   rent   and   other   payments,   having  
regard to the financial needs and resources of  
the parties. 
(7) The Magistrate may direct the officer in­
charge   of   the   police   station   in   whose  
jurisdiction the Magistrate has been approached 
to   assist   in   the   implementation   of   the  
protection order. 

(8) The Magistrate may direct the respondent to 
return   to   the   possession   of   the   aggrieved  
person   her   stridhan   or   any   other   property   or  
valuable security to which she is entitled to. 
20. Monetary reliefs.­(1) While disposing of an  
application   under   sub­section   (1)   of   section  
12, the Magistrate may direct the respondent to 
pay   monetary   relief   to   meet   the   expenses  
incurred  and  losses  suffered   by  the  aggrieved  

person and any child of the aggrieved person as  
a   result   of   the   domestic   violence   and   such  
relief may include, but not limited to,­
(a) the loss of earnings;
(b) the medical expenses;
(c)   the   loss   caused   due   to   the   destruction,  
damage   or   removal   of   any   property   from   the  
control of the aggrieved person; and
(d) the maintenance for the aggrieved person as 
well   as   her   children,   if   any,   including   an  
order   under   or   in   addition   to   an   order   of  
maintenance   under   section   125   of   the   Code   of  
Criminal   Procedure,   1973(2   of   1974)   or   any  
other law for the time being in force.
(2)   The   monetary   relief   granted   under   this  
section shall be adequate, fair and reasonable  
and consistent with the standard of living to  
which the aggrieved person is accustomed.
(3)   The   Magistrate   shall   have   the   power   to  
order   an   appropriate   lump   sum   payment   or  
monthly payments of maintenance, as the nature  
and circumstances of the case may require.
(4)   The   Magistrate   shall   send   a   copy   of   the  
order   for   monetary   relief   made   under   sub­
section (1) to the parties to the application  
and   to   the   in­charge   of   the   police   station  
within  the  local  limits  of   whose  jurisdiction  
the respondent resides.
(5)   The   respondent   shall   pay   the   monetary  
relief  granted  to  the  aggrieved   person  within  
the   period   specified   in   the   order   under   sub­
section (1).
(6)   Upon   the   failure   on   the   part   of   the  
respondent   to   make   payment   in   terms   of   the  
order under sub­section (1), the Magistrate may  
direct   the   employer   or   a   debtor   of   the  
respondent,   to   directly   pay   to   the   aggrieved  
person or to deposit with the court a portion  
of   the   wages   or   salaries   or   debt   due   to   or  
accrued to the credit of the respondent, which  
amount   may   be   adjusted   towards   the   monetary  
relief payable by the respondent. 

22.   Compensation   orders.­In   addition   to   other  
reliefs as may be granted under this Act, the  
Magistrate may on an application being made by  
the  aggrieved  person,  pass   an  order  directing  
the respondent to pay compensation and damages  
for the injuries, including mental torture and  
emotional   distress,   caused   by   the   acts   of  
domestic   violence   committed   by   that  
respondent.” 
11. The   Trial   Court   having   noticed   the   provisions 
of PWD Act, 2005 and the fact that the appellant­
wife   was   prevented   by   the   respondent­husband   to 
enter   the   matrimonial   house   even   after   the   order 
passed by the Subordinate Judge, granted protection 
under   Section   18   with   further   direction   to   the 
respondent­husband   under   Section   19   to   allow   the 
appellant­wife to enter in the shared household and 
not to disturb the possession of the appellant­wife 
and to pay maintenance of Rs.2,000/­ per month to 
meet her medical expenses, food and other expenses. 
However, no compensation or damages was granted in 
favour of the appellant­wife.  
Notices   were   issued   on   the   respondent   but 
inspite of service, no affidavit has been filed by 
the   respondent   denying   the   averments   made   in   the 
petition. 

12. Section   2   (g)   of   PWD   Act,   2005   states   that 
“domestic   violence”   has   the   same   meaning   as 
assigned   to   it   in   Section   3   of   PWD   Act,   2005. 
Section   3   is   the   definition   of   domestic   violence. 
Clause   (iv)   of   Section   3   relates   to   “economic 
abuse” which includes 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   as   evident   from 
clause (c) of Section 3(iv).
13. In the present case, in view of the fact that 
even   after   the   order   passed   by   the   Subordinate 
Judge   the   respondent­husband   has   not   allowed   the 
appellant­wife   to   reside   in   the   shared   household 
matrimonial   house,   we   hold   that   there   is   a 
continuance   of   domestic   violence   committed   by   the 
respondent­husband against the  appellant­wife.   In 
view of the such continued domestic violence, it is 
not   necessary   for   the   courts   below   to   decide 
whether the domestic violence is committed prior to 
the   coming   into   force   of   the   Protection   of   Women 

from   Domestic   Violence   Act,   2005   and   whether   such 
act   falls   within   the   definition   of   the   term 
‘Domestic   Violence’   as   defined   under   Section   3   of 
the PWD Act, 2005. 
14. The other issue that whether the conduct of the 
parties even prior to the commencement of the PWD 
Act,   2005   could   be   taken   into   consideration   while 
passing an order under Sections 18, 19 and 20 fell 
for consideration before this Court in  V.D. Bhanot 
v.   Savita   Bhanot   (2012)   3   SCC   183.    In   the   said 
case, this Court held as follows:
“12.  We agree with the view expressed by the  
High   Court   that   in   looking   into   a   complaint  
under   Section   12   of   the   PWD   Act,   2005,   the  
conduct   of   the   parties   even   prior   to   the  
coming   into   force   of   the   PWD   Act,   could   be  
taken   into   consideration   while   passing   an  
order under Section 18, 19 and 20 thereof.  In  
our   view,   the   Delhi   High   Court   has   also  
rightly   held   that   even   if   a   wife,   who   had  
shared   a   household   in   the   past,   but   was   no  
longer doing so when the Act came into force,  
would still be entitled to the protection of  
the PWD Act, 2005,”
15. We   are   of   the   view   that   the   act   of   the 
respondent­husband squarely comes within the ambit 
of   Section   3   of   the   PWD   Act,   2005,   which   defines 
“domestic violence” in wide term.   The High Court 

made an apparent error in  holding that the conduct 
of the parties prior to the coming into force PWD 
Act, 2005 cannot be taken into consideration while 
passing   an   order.     This   is   a   case   where   the 
respondent­husband has not complied with the order 
and   direction   passed   by   the   Trial   Court   and   the 
Appellate   Court.   He   also   misleads   the   Court   by 
giving wrong statement before the High Court in the 
contempt petition filed by the appellant­wife. The 
appellant­wife having being harassed since 2000 is 
entitled for protection orders and residence orders 
under Section 18 and 19 of the PWD, Act, 2005 along 
with the maintenance as allowed by the Trial Court 
under Section 20 (d) of the PWD, Act, 2005.  Apart 
from   these   reliefs,   she   is   also   entitled   for 
compensation   and   damages   for   the   injuries, 
including   mental   torture   and   emotional   distress, 
caused   by   the   acts   of   domestic   violence   committed 
by the respondent­husband.   Therefore, in addition 
to the reliefs granted by the courts below, we are 
of   the   view   that   the   appellant­wife   should   be 
compensated   by   the   respondent­husband.   Hence,   the 

respondent   is   hereby   directed   to   pay   compensation 
and   damages   to   the   extent   of   Rs.5,00,000/­   in 
favour of the appellant­wife.  
16. The order passed by the High Court is set aside 
with   a   direction   to   the   respondent­husband   to 
comply with the orders and directions passed by the 
courts   below   with   regard   to   residence   and 
maintenance   within   three   months.   The   respondent­
husband   is   further   directed   to   pay   a   sum   of 
Rs.5,00,000/­   in   favour   of   the   appellant­wife 
within six months from the date of this order.  The 
appeal   is   allowed   with   aforesaid   observations   and 
directions.     However,   there   shall   be   no   separate 
order as to costs. 
..........................................................J.
         (SUDHANSU JYOTI MUKHOPADHAYA)
             
NEW DELHI,
NOVEMBER  25, 2013.
..........................................................J.
(V. GOPALA GOWDA)

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