Right to reside in the shared household even in the absence of any act of domestic violence
(Prabha Tyagi Versus Kamlesh Devi, Cr. A.No. 511 of 2022): Supreme Court of India
The Supreme Court held that every woman in a domestic relationship has a right to reside in the shared household even in the absence of any act of domestic violence.
In this matter, an application was filed by a woman, , who was thrown out along with her daughter from the property of her deceased husband,under Section 12 of the Domestic Violence Actbefore the Special judicial Magistrate against her mother-in-law and father-in-law, and sought directions for residence order to reside in the property of her late husband and for return of streedhan.She also prayed for monetary reliefs under Section 22 of the D.V. Act. Owing to the misbehavior and torture meted out to her by her matrimonial family after her husband’s death, she moved to Dehradun, Uttarakhand with her daughter where she began working as a teacher to support herself and her child. Prior to the death of her husband, aggrieved woman was living with her husband and in-laws in villageJhabreda.
The Special Judicial Magistrate- I, Dehradun, by judgment dated 12th May, 2011 partly allowed the application filed by the aggrieved person and directed the respondents to pay Rs.10,000/-as monetary compensation for insulting and maligning the aggrieved person. The articles of Stridhan mentioned in the list enclosed with the application, except the Maruti (Alto) Car, were to be made available to the aggrieved person at her Dehradun residence. It was also directed that the respondents shall not obstruct the aggrieved person and her daughter from enjoying the property of late Kuldeep Tyagi.
Being aggrieved, mother-in-law of the aggrieved person, preferred Criminal Appeal No. 53 of 2011 before the Vth Additional Sessions Judge, Dehradun. By judgment dated 11th July, 2014, the First Appellate Court set aside the judgment of the Trial Court, dated 12th May, 2011. The relevant findings of the First Appellate Courtwere encapsulated as under:
- That the aggrieved person never lived in the shared household belonging to the respondents, situated in Jhabreda, but lived in Roorkee with her husband.
- That theaggrieved person maintained a house in Roorkee and usedto travel daily to Jhabreda for work, but never shared a household with the respondents.
Aggrieved by the judgment of the First Appellate Court, the aggrieved woman preferred a criminal revision petition before the High Court of Uttarakhand at Dehradun. By judgment dated 23rdJuly, 2019, the criminal revision petition was dismissed and the Judgment of the Vth Additional Sessions Judge, Dehradun was sustained.
The following findings were recorded by the High Court in the impugned judgment.
- That as per the provisions of Section 12 (1) of the D.V. Act, A Domestic Incident Report is required to be mandatorily Filed by a Protection Officer or a service provider before the Magistrate and the Magistrate may take cognizance of an Offence under the D.V. Act on the basis of such report.
- That in the present case, the aggrieved person had only filed an Application alleging domestic violence and since the same was not accompanied by a report, the conditions of Section 12 (1) of the D.V. Act were not satisfied.
The aggrieved woman approached the Hon’ble Supreme Court challenging the judgments of the First Appellate Court and the High Court.
The three questions raised in appealbefore the Hon’ble Supreme Court were answered as under:
“(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?”
It was held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass bothex parte or interim as well as a final order under the provisions of the D.V. Act.
“(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 was 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.
“(iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed?”
It was 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.
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