Sunday 18 February 2024

Bombay HC: Married Sister-In-Law Who Frequently Visits maternal House is Not In Domestic Relationship With the petitioner

 The law laid down by the Apex Court in Prabha Tyagi

(supra) will not assist the case of Respondent No 1 as the

Petitioner is the married sister-in-law residing in her own

matrimonial house and it cannot be said that the right of the

aggrieved person to reside in the shared household would

constitute a subsisting domestic relationship with the Petitioner. It  would have been a different matter if the Petitioner was unmarried and was residing in the shared household in which case considering the right to reside conferred by Section 17(1) of the D.V. Act, the aggrieved person could have been said to be in

subsisting domestic relationship with the Petitioner even if the

parties had never resided together in the shared household. It is

the right of the aggrieved person to reside in the shared household which constitutes domestic relationship between the aggrieved person and persons residing in the shared household. However, such are not the facts in the instant case as Petitioner is residing separately in her matrimonial house. {Para 20}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION (ST.) NO.18350 OF 2023

Nil V  2. State of Maharashtra 

CORAM : SHARMILA U. DESHMUKH, J.

Pronounced on : FEBRUARY 14, 2024


1. Rule. Rule made returnable forthwith and heard finally

with consent of the parties.

2. The present Writ Petition takes exception to the order

dated 16th September, 2023 passed by the Sessions Court in

Criminal Appeal No.690 of 2022, allowing the Appeal and setting

aside the order dated 18th October, 2022 passed by the

Metropolitan Magistrate, 40th Court at Girgaon, Mumbai in

C.C.No.37/DV/ 2022 dismissing the D.V application as against the

present Petitioner.

3. The facts of the case are that the Respondent No.1 had

filed an Application under Section 12 of the Protection of Women

from Domestic Violence Act, 2005 (for short, “D.V. Act”), bearing

C.C.No.37/DV/2022, claiming reliefs under Sections 17, 18, 20

and 22 of the D.V. Act. In the said application, the Respondent No

1 has impleaded her husband, her mother in law, her unmarried

brother in law and the present Petitioner who is the married sister

in law.

4. The cause title of the Application would indicate that the

Respondent No 1’s husband, mother and brother are residing at

address of the present Petitioner is shown of her matrimonial


“XXXXXXXXX Tower” which is the shared-household whereas the


house i.e. Room No.3, Ground floor, Doctor’s Quarters Building.

The Metropolitan Magistrate before proceeding further called upon

the Respondent No.1 to satisfy on the point of maintainability of

the Application under the D.V. Act against the present Petitioner.

The Metropolitan Magistrate considered the definition of the

‘Respondent’ under Section 2(q) and held that the Petitioner

though relative of the Respondent No.1 is residing separately with

her own family and was not in “domestic relationship” as the

Petitioner and the Respondent No.1 never lived together in the

shared household together. The Metropolitan Magistrate by the

order dated 18th October, 2022, dismissed the Application against

the Petitioner and issued notice only to the Respondent Nos.1 to 3

in the said Application.

5. As against the order dismissing the Application against

the Petitioner, Criminal Appeal No.690 of 2022 was filed by the

Respondent No.1 herein, which came to be allowed and the order

of the Metropolitan Magistrate dated 18th October, 2022 was

quashed and set aside.

6. The Sessions Court relied upon the decision of the Apex

Court in the case of Prabha Tyagi v. Kamlesh Devi reported in

(2022) 8 SCC 90 and the decision of this Court (Aurangabad

Bench) in Ali Hamid Daruwala v. Mrs.Nahid Rishad Cooper & Ors.

passed in Criminal Revision Application No.171 of 2022. The

Sessions Court held that the pleadings in the Application filed by

the Respondent No.1 would indicate that the Petitioner had

indulged in acts of domestic violence and as to whether the

Petitioner and the Respondent No.1 have domestic relationship or

not is the question of fact which can be decided at the time of trial

when the parties lead their evidence in support of their case.

7. Heard Mr. Satyavrat Joshi, learned counsel for the

Petitioner and Mr. Subodh Desai, learned counsel for the

Respondent No.1.

8. Mr. Joshi, learned counsel for the Petitioner would submit

that it is the specific case of the Respondent No.1 in the D.V.

application that the Petitioner is the married sister-in-law of the

Applicant, who was married on 20th June, 2021 prior to the

marriage of the Respondent No.1 on 20th November, 2021. He

submits that considering the admitted position of the Petitioner

residing in her matrimonial house, there was no domestic

relationship between the parties within the meaning of Section

2(f) of the D.V. Act, as the parties did not live or even in the past

had lived together in the shared household. Pointing out to the

pleadings in the application, he submits that the allegations made

therein are general allegations without any specific act attributed

to the Petitioner. He submits that the allegation is that the

Petitioner used to spend her whole day at the shared household as

her matrimonial house was nearby and her mother-in-law had

expired. He submits that the said allegation could not be

constituted subsisting domestic relationship.

9. He submits that the Sessions Court without noticing the

facts in the case of Prabha Tyagi (supra) have held that it is not

necessary for the aggrieved person, to have actually resided or

lived with those persons, against whom the allegations are levelled

at the time of seeking relief. He would further submit that the case

of Ali Hamid Daruwala (supra) is distinguishable on facts. In

support, he relies upon the following decisions:

(i) Bharti Anand v. Sushant Anand and Ors. reported

in 2022 SCC OnLine Del 1191;

(ii) Decision of this Court dated 23rd August, 2021 passed

in in Criminal Application (APL) No.434 of 2021 (Nagpur

Bench) in Anil s/o. Baburao Salway and Ors. vs. Pooja

Wd/o Swapnil Salway

(iii) Decision of this Court dated 18th July, 2023 passed

in Criminal Application No.312 of 2023 (Aurangabad

Bench) in Dhananjay Mohan Zombade and Ors. vs.

Gojarbai Mohan Zombade and Ors.

10. Per contra, Mr. Desai, learned counsel for the Respondent

No.1 would submit that the Petitioner has been arraigned in the

application as specific acts constituting domestic violence has been

pleaded. He submits that the proceedings are not malafide which

is borne out from the fact that the other sister in law of the

Respondent No.1 has not been made a party and neither the

present Petitioner’s husband. He tenders across the bar a chart

setting out the allegations made in the various paragraphs of the

application and would urge that the allegations are not general in

nature. He submits that it is the specific pleading that the

Petitioner used to spend her entire day in the shared household. In

support, he relies upon the following decisions;

(i) Prabha Tyagi v. Kamlesh Devi, reported in (2022) 8

SCC 90;

(ii) Decision of this Court dated 1st February, 2024

passed in Crim. Revision Application No.270 of 2023

(Principal Seat) in Rashmi Mehrotra and Anr. v. Manvi

Sheth and Anr.

(iii) Decision of this Court dated 28th February, 2023

passed in Criminal Revision Application No.171 of 2022

(Aurangabad Bench) in Mr.Ali Hamid Daruwala vs.

Mrs.Nahid Rishad Cooper & Ors.

11. Considered the submissions and perused the record.

12. The issue presented for consideration is whether the

Petitioner who is the married sister in law of the aggrieved person

and admittedly residing in her own matrimonial house can be

stated to be in a domestic relationship within the meaning of

Section 2 (f) of the D.V. Act particularly when the marriage of the

Petitioner has taken place prior to the marriage of the Respondent

No.1. While deciding the above issue the incidental issue to be

decided is whether the allegation in the application that the

Petitioner used to spend her whole day in the shared household is

sufficient to constitute domestic relationship between the

aggrieved person and the Petitioner.

13. The relationship between the parties interse is not

disputed neither the factum of the Petitioner’s marriage being

solemnised prior to the marriage of the Respondent No 1. The

separate residence of the Petitioner at her matrimonial house is

also borne out from the address of the Petitioner given in the

domestic violence application which is different from the address

of the shared household.

14. For consideration of the issues noted above, it would be

profitable to refer to the definitions of ‘aggrieved person’,

‘domestic relationship’, ‘respondent’ and ‘shared household’’, as

provided in Section 2(a), 2(f), 2(q) and 2(s) of the D.V. Act, which

reads thus:

2. Definitions.- In this Act, unless the context otherwise

requires -

(a) “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;

(f) “domestic relationship” means 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;

(q) “respondent” means any adult male person who is, or

has been, in a domestic relationship with the aggrieved

person and against whom the aggrieved person has sought

any relief under this Act:

(s) “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 house hold 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, title or interest in the

shared household;

15. Plain reading of the above provisions reveals that for

being arrayed as ‘Respondent’ in an application under Section 12

of the D.V. Act, the person has to be in a domestic relationship with

the ‘aggrieved person’ and against whom the aggrieved person has

sought any relief under this Act. The term “domestic relationship”

occupies prominence while construing whether the party is an

aggrieved person and as to whether the other party can be arrayed

as Respondent in D.V. Application. The sine qua non for existence

of “domestic relationship” is living in praesenti or in the past in a

shared household as defined under Section 2 (s) of D.V. Act.

16. The facts of the instant case makes it evident that the

Petitioner and the Respondent No 1 never resided together in the

shared household i.e. the matrimonial house of the Respondent

No.1 at “Siddesh Jyoti Tower”. To salvage the situation, given the

above noted admitted position, Mr. Desai would contend that the

decision of Apex Court in Prabha Tyagi (supra) as well as the

decision in Rashmi Mehrotra (supra) has held that it was not

mandatory for the aggrieved person to have actually resided with

those persons against whom the allegations have been levelled. I

am unable to subscribe to the reading of the decision of the Apex

Court as desired by Mr.Desai. The decision in the case of Prabha

Tyagi (supra) is being read by Mr. Desai dehors the facts of that

case which are completely distinguishable.

17. In that case, the Apex Court was considering the case of

the aggrieved person, who was the daughter-in-law of the

Respondents, and whose husband had expired. The contention of

the in-laws was that the aggrieved person had stayed for only one

night after the marriage at the ancestral house and was thereafter

residing separately with her husband and as such, there was no

domestic relationship between the aggrieved person and the

Respondents. In that context, the Apex Court noted the provisions

of Section 17(1) of the D.V. Act, which confers rights on every

woman in a domestic relationship to reside in the shared

household which is not restricted to actual residence and while

answering the issue has held that as the aggrieved woman being

the daughter-in-law had a right to reside in the shared household

despite the death of her husband in the road accident the right to

reside will be construed as a subsisting domestic relationship

owing to her marriage and she being the daughter-in-law has right

to reside in the shared household.

18. The Issue No.(ii) framed and answered by the Apex Court

reads thus:

“(ii) Whether it is mandatory for the aggrieved person to

reside with those persons against whom the allegations

have been levelled at the point of commission of

violence”.

It is held that it is not mandatory for the aggrieved person

to have actually lived or resided with those persons

against whom the allegations have been levelled at the

time of seeking relief.

19. Mr. Desai, while pointing out the Issue No.(ii) as

answered by the Apex Court has restricted the reading only to the

answer without noticing the reasoning adopted by the Apex Court

and that the Apex Court has held in facts of that case that the

appellant had right to reside in the shared household and being a

victim of domestic violence could enforce her right to live or reside

in the shared household and to seek relief under the D.V. Act

irrespective of whether she actually lived in the shared household.

20. The law laid down by the Apex Court in Prabha Tyagi

(supra) will not assist the case of Respondent No 1 as the

Petitioner is the married sister-in-law residing in her own

matrimonial house and it cannot be said that the right of the

aggrieved person to reside in the shared household would

constitute a subsisting domestic relationship with the Petitioner. It  would have been a different matter if the Petitioner was unmarried and was residing in the shared household in which case considering the right to reside conferred by Section 17(1) of the D.V. Act, the aggrieved person could have been said to be in

subsisting domestic relationship with the Petitioner even if the

parties had never resided together in the shared household. It is

the right of the aggrieved person to reside in the shared household which constitutes domestic relationship between the aggrieved person and persons residing in the shared household. However, such are not the facts in the instant case as Petitioner is residing separately in her matrimonial house.

21. I have had also an occasion to deal with the issue of

“shared household” and “domestic relationship” in the case of

Rashmi Mehrotra and Anr. (supra) which has also been relied upon

by Mr.Desai to contend that a view has been taken by this Court

that even if, there is no actual residence in the matrimonial house,

the domestic relationship is established if there is right to reside.

22. The facts in the case of Rashmi Mehrotra and Anr. (supra)

are distinguishable as in that case the in-laws were residing at a

premises known as Viceroy premises and the aggrieved person and

her husband were residing in another premises named as

Gundecha premises. In that case the Gundecha premises were

referred to as shared household and the contention was that as the

parties never resided together at Gundecha premises there was no

domestic relationship. In facts of that case, I have taken a view

relying upon the decision in the case of Prabha Tyagi (supra) that

as the aggrieved person had right to reside in Viceroy premises

which was the shared household in view of Section 17(1) of the

D.V. Act, there was subsisting domestic relationship. In that case

reliance was also placed in the decision of the learned Single

Judge of this Court in Aditya Anand Varma v. State of Maharashtra

reported in (2022) All MR (Cri) 2317. Mr. Desai, would point out

the said decision noted in the case of Rashmi Mehrotra and Anr.

(supra) and would contend that even in that case the Respondent

No.2 therein had not resided in the matrimonial house and the

learned Single Judge have held that the Respondent no.2 was in

domestic relationship. The facts of that case are completely

distinguishable as the Respondent No.2 therein was the aggrieved

person, who had a right to reside in the matrimonial house. It was

in that context that the learned Single Judge held that though not

actually residing the Respondent No.2 was in domestic

relationship. I am afraid the submission of Mr. Desai is based on

incorrect reading of the above two decisions.

23. Now coming to the pleadings in the application, it is

pleaded by the Respondent No 1 that the Petitioner was spending

her whole day in the shared household. The said pleading finds

place in the paragraph describing the interse relationship between

the aggrieved person and the Respondents. The other pleading is

that the Petitioner everyday used to come to the shared household

at 2:00 p.m. and leave at around 8:00 p.m. The marriage of the

Respondent No.1 was solemnized on 20th November, 2021 and has

claimed to be dispossessed on 30th January, 2022. The pleadings

as regards the visits of the Petitioner do not indicate an element of

permanency sufficient enough to constitute domestic relationship

even if it is accepted that the Petitioner was spending her entire

day in the shared household.

24. Apart from the above, even if the allegations in the

application are perused, as summarized in the chart tendered by

Mr. Desai, there is no individual act attributed to the Petitioner.

General sweeping allegations are made against the Petitioner

collectively with the other Respondents and there is no specific

incident qua the Petitioner. The only pleading qua the Petitioner

individually is that the Petitioner every day used to come to their

house by 2:00 p.m. and then she used to leave at around 8:00 p.m.

and she used to pack food for her husband and her family

members from their home. Considering the pleadings in the

application it cannot be said that the Petitioner has subjected the

Respondent No.1 to any act of domestic violence as contemplated

under Section 3 of the D.V. Act. Pertinently, the reliefs in the

application except as regards protection orders are sought against

the husband of the Respondent No 1 which reads thus:

“a. The Protection Order under Section 18 of the

Protection of Women from Domestic Violence Act may be

passed restraining the Respondents from committing any

act of domestic violence to the Applicant.

b. The Order under Section 20 of the said Act may be

passed against the Respondent No.1 directing him to pay

to the Applicant the sum of Rs.1,00,000/- per month

towards her maintenance.

c. The Order under Section 17 of the said Act may be

passed directing the Respondent No.1 to pay the sum of

Rs.75,000/- per month to the Applicant towards the

monthly rent of alternate accommodation.

d. The Compensation order under Section 22 may be

passed against the Respondents No.1 directing him to pay

the sum of Rs.3,00,00,000/- (Rupees Three Crore Only)

as compensation to the Applicant.”

25. As regards the decision in the case of Ali Hamid Daruwala

(supra), in that the case the Applicant, who was discharged was

the full blood brother of the husband and the same contention was

raised that the Applicant was not in the domestic relationship with

the complainant as he never resided or stayed in the shared

household and that he was residing at some other address. As per

my reading of the decision, learned Single Judge of this Court in

that case has not laid down as an absolute proposition of law that

despite the brother-in-law not residing in the shared household,

there was a domestic relationship. The learned Single Judge in

that case considered the averments in the application and held that

such a question would only be decided on full-fledged hearing of

the matter.

26. It will be beneficial to refer to the decision of of this Court

(Aurangabad Bench) in Criminal Application No.4281 of 1999

(Avinash s/o. Rangnath Bhokare vs. State of Maharashtra and

Ors), where in the learned Single Judge was considering an

application under Section 482 of the Code of Criminal Procedure,

1973, filed by the Applicant which included the married sister-inlaw

and has held that it would be sheer abuse of process of law

that merely because they sometimes visited their parental house,

they were sharing the household with the aggrieved person within

the meaning of Section 2(f) of the D.V. Act so as to constitute a

domestic relationship as defined under Section 2(f) of the D.V. Act.

27. In view of the discussion above, in my view, there was no

subsisting domestic relationship between the Petitioner and the

Respondent No 1 and the Petitioner could not have been arrayed

as Respondent in the D.V. application. The mere visits of the

Petitioner to the shared household being devoid of any

permanency is not sufficient and adequate to constitute residence

in shared household. Even otherwise considering the pleadings in

the applications read with the reliefs, there is no case of domestic

violence made out qua the Petitioner.

28. Consequently, the Petition succeeds. The impugned order

dated 16th September, 2023 passed in Criminal Appeal No.690 of

2022, is hereby quashed and set aside and the order of the

Metropolitan Magistrate dated 18th October, 2022 passed in

C.C.No.37/DV/2022 is revived. Rules is made absolute.

( Sharmila U. Deshmukh, J.)


Print Page

No comments:

Post a Comment