Whether woman can claim relief against her in laws even if she has never resided with them?

 (ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levied at the point of commission of violence?

It is held that it is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household Under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 511 of 2022

Decided On: 12.05.2022

Prabha Tyagi Vs. Kamlesh Devi

Hon'ble Judges/Coram:

M.R. Shah and B.V. Nagarathna, JJ.

Author:B.V. Nagarathna, J.

Citation: MANU/SC/0631/2022,2022/INSC/563.

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Whether a woman can claim right of residence in shared household even if she is not in domestic relationship at the time of filing of application?

(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?

It is held that there should be a subsisting domestic relationship between the aggrieved person and the person against whom the 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 an aggrieved person, the domestic relationship should be subsisting. In other words, even if an aggrieved person is not in a domestic relationship with the Respondent in a shared household at the time of filing of an application Under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application Under Section 12 of the D.V. Act.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 511 of 2022

Decided On: 12.05.2022

Prabha Tyagi Vs. Kamlesh Devi

Hon'ble Judges/Coram:

M.R. Shah and B.V. Nagarathna, JJ.

Author:B.V. Nagarathna, J.

Citation: MANU/SC/0631/2022,2022/INSC/563

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Under what circumstances the court can pass protection order and residence order under Domestic violence Act?

 S 18 of Domestic violence Act:- 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.

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Whether the court can grant residence to wife under DV Act if she opposes petition of husband for restitution of conjugal rights?

 Further, this Court does not find any force in the argument of the Petitioner that since the Respondent did not wish to live with her husband and refused to join him she could not have claimed a right to residence in her matrimonial home. The right of residence under the DV Act is exclusive to and isolated from any right that may arise under Section 9 of the Hindu Marriage Act, 1955 and thereby, the learned Appellate Court‟s observation in this regard has also been correctly made.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 5188/2013,

OM PRAKASH GUPTA & ANR  Vs ANJANI GUPTA

CORAM:

HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

Pronounced on: 8th March, 2022

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Important provisions on Domestic violence Act

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;

(e) “domestic incident report” means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person;

(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 2[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:

3[Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against the relative of the husband or the male partner];

^2. Deleted vide Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.

^3. Deleted vide Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.

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Whether Magistrate can pass residence order in respect of property situated outside state under Domestic violence Act?

From bare perusal of these relevant sections, it is evident that magistrate has been vested with power to pass appropriate order of residence in shared household as well as order of monetary relief. This depends upon facts of each case. The argument of counsel for petitioner that residence order cannot be passed with regard to property which is situated outside State, is not tenable. As in D.V. Act, there is nothing which debars the magistrate to pass such order with regard to property situated outside State. The aim and objects of D.V. Act can be gathered from the language used in preamble which says that "An Act to provide for more effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto". If it is held that magistrate cannot pass order with regard to property situated outside State, then very purpose of Act would be defeated.

Jammu & Kashmir High Court

Ajay Kaul & Ors. vs State And Ors. on 1 February, 2019

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Whether wife is entitled to get residence order even if she fails to prove that domestic violence was committed against her?

The High Court set aside the
order passed by the learned District Judge in the appeal
by observing that the petitioner was unable to establish
any incident of torture or demand of money or physical
violence. In that view of the matter, the High Court
was of the opinion that the petitioner was not entitled
to any order in her favour. It is pertinent to state
that the High Court held that the petitioner was
entitled to claim residence in the shared household.
But that entitlement is only in case she establishes
domestic violence, which she did not.
The learned counsel appearing for the petitioner
submitted that the High Court fell in error in adding
that the petitioner could not produce any evidence in
support of her claim. According to him, the evidence of
the petitioner was sufficient to conclude that she was
subjected to domestic violence. He also submitted that
in any event, the child is entitled for maintenance.
We are in agreement with the finding recorded by
the High Court that there is absolutely no evidence to

prove domestic violence. 
S U P R E M E C O U R T O F I N D I A

Petition(s) for Special Leave to Appeal (Crl.) No(s).2600-2601/2016

SANGITA SAHA Vs ABHIJIT SAHA 

Dated:28-1-2019
CORAM :
 MR. JUSTICE L. NAGESWARA RAO
 MR. JUSTICE M.R. SHAH

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Whether mother in law can be directed to provide alternate accommodation to daughter in law in domestic violence proceeding?

 However, the action of the Mother-in-Law in selling the subject property, though not strictly illegal, has caused loss to the Daughter-in-Law. Accordingly, one would also have balance the corresponding rights of the parties. On the one hand, Mother-in-Law is alleged to have sold the property for her bona fide needs and third party rights in the subject property have arisen and on the other hand, the Daughter-in-Law is deprived of her rights of residence in the subject property.

35. The contention of the Mother-in-Law is that the Daughter-in-Law was residing in only one room of the first floor of the subject property. On the other hand, the contention of the Daughter-in-Law is that the household was common and she was occupying the first floor of the subject property.

36. Documents on record prima facie show that the Daughter-in-Law was in possession of one room on the first floor, but was sharing the kitchen and common areas on the ground floor.

37. Without getting into the controversy, one may examine the rights that are granted by Section 19 of the Protection of Women from Domestic Violence Act, 2005.

38. Section 19(1)(f) inter alia stipulates that the Magistrate shall secure same level of alternative accommodation for the aggrieved person as enjoyed by her in the shared household or direct payment of rent for the same, if the circumstances so require.

39. In the facts of the present case, since the subject property is now not available, the only order that can be passed in favour of the Daughter-in-Law for securing her residence is to direct the Mother-in-Law to ensure that either a ground floor or a first floor is obtained on rent for the residence of the Daughter-in-Law in the locality ‘Anand Vihar’ in a similar property.

40. Since the action of the Mother-in-Law has also resulted in removal of a property from the control of the Daughter-in-Law, she has to be granted adequate, fair and reasonable compensation/monetary relief for the deprivation of said property.

In the High Court of Delhi at New Delhi

(Before Sanjeev Sachdeva, J.)

Crl.M.C 1868/2016 & Crl.M.A 35881/2018

Shachi Mahajan .v. Santosh Mahajan .

Decided on January 10, 2019,

Citation:  2019 SCC OnLine Del 6418, 

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Whether family court can grant residence order to wife in domestic violence proceeding ?

 From the aforesaid, it is evident that any relief which is available under Sections 18 to 22 of the D.V. Act from the Magistrate may also be sought in any legal proceedings, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent, whether such proceedings were initiated before or after commencement of the Act.

Sub Section (3) of Section 26 only provides that in case any relief has been obtained by the aggrieved person in any proceedings other than the proceedings under the D.V. Act, then she should be bound to inform the Magistrate of the grant of such relief or perhaps so that such relief is not obtained twice over. In the present case, as noted earlier, relief in terms of section 19 of the D.V. Act was claimed by the respondent in the proceedings before the Family Court under the Hindu Marriage Act, which is clearly permissible in the light of provisions contained in Section 26 of the D.V. Act. Section 24 of the Hindu Marriage Act, 1955 specifically empowers the parties to claim maintenance pendente lite and expenses of the proceedings. The Family Court, by virtue of Section 26 of the D.V.

Act is empowered to grant reliefs, inter alia under Section 19 of the D.V.

Act. In such a situation, there is no question of either making any application under Section 12 of the D.V. Act or awaiting the disposal thereof. There is no question of awaiting the disposal of the main proceedings under the Hindu Marriage Act, 1955 and only at that stage making a residence order in terms of Section 19 of the D.V. Act. If such a strained interpretation is permitted to prevail, then the very object of enabling the court to make residence orders, is likely to be frustrated.

Bombay High Court

Mr. Amit Satish Shah vs Mrs. Archana Amit Shah And Anr on 14 October, 2014

Bench: M.S. Sonak

Citation; 2015(3) Crimes 590 Bom

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Whether family court can pass residence order at interim stage?

There is no merit in the submission that the Family Court could not have made a residence order and that such an order can be made only at the stage of final disposal of the proceedings.Section 12 of the D.V. Act enables an aggrieved person or protection officer or any other person on behalf of the aggrieved person to present an application to the Magistrate to seek one or more reliefs under the D.V. Act. One of the reliefs contemplated is in the context of right to reside in a share household. To enforce such a right, an application under Section 12 can be made by the aggrieved person as also others referred to in Section 12 of the D.V. Act, to the Magistrate. It is in this context that Section 19 of the D.V. Act provides that while disposing of an application under sub section (1) of Section 12, the Magistrate may, on being satisfied that the domestic violence has taken place pass a residence order.

Bombay High Court

Mr. Amit Satish Shah vs Mrs. Archana Amit Shah And Anr on 14 October, 2014

Bench: M.S. Sonak

Citation; 2015(4) ALLMR11

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