Domestic violence is sadly a reality in Indian society, a truism. In the Indian patriarchal setup, it became an acceptable practice to abuse women. There may be many reasons for the occurrence of domestic violence

The Protection of Women from Domestic Violence Act (or the Domestic Violence Act) is a laudable piece of legislation that was enacted in 2005 to tackle this problem. The Act in theory goes a long way towards protection of women in the domestic setup

Important definitions under the Act

  1. The definition of domestic violence is well written and wide-ranging and holistic. It covers, mental as well as physical abuse, and also threats to do the same. Any form of harassment, coercion, harm to health, safety, limb or well-being is covered. Additionally, there are specific definitions for the following:
  2. Physical abuse: Defined as act or conduct that is of such a nature as to cause bodily pain, harm, or danger to life, limb or health or impair the health or development of the aggrieved person’. Physical abuse also includes assault, criminal intimidation and criminal force.
  3. Sexual abuse: The legislation defines this as conduct of “sexual nature” that ‘abuses, humiliates, degrades or otherwise violates the dignity of a woman.’
  4. Verbal and emotional abuse: Insults/ ridicule of any form, including those with regard to inability to have a male child, as well as repeated threats
  5. Economic abuse: Categorized as including deprivation of financial resources required for survival of the victim and her children, the disposing of any assets which the victim has an interest/stake in and prohibition/restriction of financial resources which the victim is used to while in the domestic relationship.
  6. The definition of “aggrieved person” includes any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to domestic violence by them. (See Section 2(a) of the PWDVA)

The definition of “domestic relationship” is any relationship 2 persons have lived together in a shared household and these people are:

  • related by consanguinity (blood relations)
  • related by marriage.
  • Though a relationship in the nature of marriage (which would include live-in relationships)
  • Through adoption
  • Are family members living in a joint family.

The definition of ‘domestic relationship’ is broad enough to cover all sorts of household arrangements; for example, live-in relationships when the couple is not married. The inclusion of this, as well as relationships which fall under categories of fraudulent or bigamous, was a pioneering step.

With regard to live-in relationships itself, in a distinctive judgment passed in the case of Bharata Matha & Ors v. R. Vijaya Renganathan & Ors, it was decided that a child born out of a live-in relationship is entitled to property (the property owned by the parents, but not ancestral property). This means that a woman and her child in a live-in relationship cannot be threatened with economic abuse.

Supreme Court in a recent judgment of Satish Chander Ahuja vs. Sneha Ahuja, a total of eight issues were raised, which are as follows and answered precisely

  1. Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?
  2. Whether judgment of this Court in S.R. Batra and Anr. Vs. TarunaBatra, (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law?

In view of the foregoing discussions, the answer to issue Nos. 1 and 2 in following manner:-

  • The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share.
  • (ii) The judgment of this Court in S.R. BatraVs. TarunaBatra (supra) has not correctly interpreted Section 2(s) of Act, 2005 and the judgment does not lay down a correct law.
  • Whether the High Court has rightly come to the conclusion that suit filed by the appellant could not have been decreed under Order XII Rule 6 CPC?
  • Whether, when the defendant in her written statement pleaded that suit property is her shared household and she has right to residence therein, the Trial Court could have decreed the suit of the plaintiff without deciding such claim of defendant which was permissible to be decided as per Section 26 of the Act, 2005?

In view of the foregoing discussions, the answer to issue Nos. 3 and 4 in following manner:-

It is observed that the Court, on examination of the facts and circumstances, has to exercise its judicial discretion keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant by way of an appeal on merits. It is further observed that, therefore, unless the admission is clear, unambiguous and unconditional, the discretion of the Court should 84 not be exercised to deny the valuable right of a defendant to contest the claim. In short, the discretion should be used only when there is a clear “admission” which can be acted upon. It is further observed and held that “admission” should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it.

The power under Order XII Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case, the Trial Court ought not to have given judgment under Order XII Rule 6 on the admission of the defendant as contained in her application filed under Section 12 of the D.V. Act. 97 Thus, there are more than one reason for not approving the course of action adopted by Trial Court in passing the judgment under Order XII Rule 6. We, thus, concur with the view of the High Court that the judgment and decree of the Trial Court given under Order XII rule 6 is unsustainable.

Section 26 of the 2005 Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by the 2005 95 Act is expressly barred from consideration by a civil court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the civil court. When the proceeding initiated by the plaintiff in the Judge, Small Cause Court alleged termination of gratuitous licence of the appellant and prays for restraining the appellant from using the suit flat and permit the plaintiff to enter and use the flat, the right of residence as claimed by the appellant is interconnected with such determination and refusal of consideration of claim of the appellant as raised in her counterclaim shall be nothing but denying consideration of claim as contemplated by Section 26 of the 2005 Act which shall lead to multiplicity of proceedings, which cannot be the object and purpose of the 2005 Act. We, thus, are of the considered opinion that the counterclaim filed by the appellant before Judge, Small Cause Court in Civil Suit No. 77 of 2013 was fully entertainable and the courts below committed error in refusing to consider such claim.” 96. In view of the ratio laid down by this court in the above case, the claim of the defendant that suit property is shared household and she has right to reside in the house ought to have been considered by the Trial Court and non-consideration of the 96 claim/defence is nothing but defeating the right, which is protected by Act, 2005.

  • Whether the plaintiff in the suit giving rise to this appeal can be said to be the respondent as per definition of Section 2(q) of Act, 2005 ?

For the purposes of determination of right of defendant under Sections 17 and 19 read with Section 26 in the suit in question the plaintiff can be treated as “respondent”, but for the grant of any relief to the defendant or for successful resisting the suit of the plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant.

  • What is the meaning and extent of the expression “save in accordance with the procedure established by law” as occurring in Section 17(2) of Act, 2005 ?

The court held that the expression “save in accordance with the procedure established by law”, in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a Competent Court. We may further notice that in sub-section (2) the injunction is “shall not be evicted or excluded from the shared household save in accordance with procedure established by law”. Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly 113 instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household. One most common example for eviction and exclusion may be when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself. There may be cases where plaintiff can successfully prove before the Competent Court that the claim of plaintiff for eviction of respondent is accepted. We need not ponder for cases and circumstances where eviction or exclusion can be allowed or refused. It depends on facts of each case for which no further discussion is necessary in the facts of the present case. The High Court in the impugned judgment has also expressed opinion that suit filed by the plaintiff cannot be held to be nonmaintainable with which conclusion we are in agreement.

In case, the shared household of a woman is a tenanted/allotted/licensed accommodation where tenancy/ allotment/license is in the name of husband, father-in-law or any other relative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. The embargo under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent”, i.e., one who is respondent within the meaning of Section 2(q) of Act, 2005.

7.) Whether the husband of aggrieved party (defendant) is necessary party in the suit filed by the plaintiff against the defendant?

In the present case, although plaintiff has not claimed any relief against his son, RaveenAhuja, the husband of the respondent, hence, he was not a necessary party but in view of the fact that respondent has pleaded her right of residence in shared household relying on Sections 17 and 19 of the Act, 2005 and one of the rights which can be granted under Section 19 is right of alternate accommodation, the husband is a proper party. The right of maintenance as per the provisions of Hindu Adoption and Maintenance Act, 1956 is that of the husband, hence he may be a proper party in cases when the Court is to consider the claim of respondent under Sections 17 and 19 read with Section 26 of the Act, 2005. Civil Procedure Code, Order I Rule 10 empowers the Court at any stage of the proceedings either on an application or suomoto to add a party either as plaintiff or defendant, whose presence before the Court may be necessary in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the suit. Now, coming to the present case, we have already observed that although husband of the defendant was not a necessary party but in view of the pleadings in the written statement, the husband was a proper party.

  • What is the effect of orders passed under Section 19 of the Act, 2005 whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction?

From the above discussions, we arrive at following conclusions:-

  • The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
  • The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant 150 within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
  • civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.

In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit.