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Pendency under the D.V. Act is not an embargo for initiating or continuing any civil proceeding: SC



Satish Chander Ahuja v. Sneha Ahuja

Civil Appeal No.2483 of 2020 (Arising out of SLP(C)No.1048 of 2020)

15 October, 2020.

Counsel for the Appellants: Shri Prabhjit Jauhar.

Counsel for the Respondents: Senior Counsel Shri Nidhesh Gupta.

The Hon’ble Supreme Court comprising of Justice Ashok Bhushan, Justice M.R.Shah and Justice R.Subhash Reddy held in a case that the pendency of proceedings under Protection of Women from Domestic Violence Act, 2005 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 appellant by deed dated 12.01.1983 purchased property bearing No.D-1077, New Friends Colony, New Delhi. The son of the appellant, Raveen Ahuja was married to the respondent, Sneha Ahuja on 04.03.1995. After marriage the respondent started living in the first floor of the house No.D-1077, Friends Colony, New Delhi along with her husband. There being marital discord between Raveen and Sneha, in July, 2014, Raveen moved out of the first floor and started staying in the guest room of the ground floor. In the year 2004 a separate kitchen was started by the respondent in the first floor of the house. Raveen, the husband of the respondent filed a Divorce Petition on 28.11.2014 under Section 13(1)(ia) and (iii) of Hindu Marriage Act, 1955 for decree of divorce on the ground of cruelty against the respondent, Sneha Ahuja which proceeding is said to be still pending. The respondent, Sneha Ahuja, on 20.11.2015, i.e., after filing of the Divorce Petition, filed an application under Section 12 of Act, 2005 impleading Raveen Ahuja as respondent No.1, Shri Satish Ahuja, respondent No.2 and Dr. Prem Kanta Ahuja(motherin- law of the respondent), respondent No.3. In the complaint it was alleged that Sneha Ahuja has been subjected to severe emotional and mental abuse by the respondents.


The trial court held the decision in favour of Satish Chander Ahuja. Sneha Ahuja preferred an eppal to the Delhi High Court The Delhi High Court by judgment dated 18.12.2019 in RFA No.381/2019 has set aside the decree granted in favour of the plaintiff dated 08.04.2019 under Order XII Rule 6 of Civil Procedure Code, decreeing the suit filed by the plaintiff for mandatory and permanent injunction. The High Court after setting aside the decree of the Trial Court has remanded the matter back to the Trial Court for fresh adjudication in accordance with the directions given by the High Court. The plaintiff aggrieved by the judgment of the High Court has come up in this appeal. IT is against this judgment the present appeal is preferred.


The various issues framed and decided by the Court were:

(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. Taruna Batra, (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?

(3) 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?

(4) 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?

(5) 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?

(6) 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?

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

(8) 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?


Shri Prabhjit Jauhar, learned counsel for appellant contends that suit property which is exclusively owned by the appellant is not a shared household.. It is submitted that the respondent can claim right to reside only in house which is either joint family property or the husband of the respondent has a share in it. In the property belonging to father of the husband, she has no right to reside. He also relied on the judgment of the Supreme Court in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169.


He also submitted that the complaint under the Act, 2005 filed by the respondent was only a counter blast to the Divorce Petition dated 28.11.2014 filed by the husband of the respondent. It is submitted that Sections 17 and 19 of the Act, 2005 do not contemplate a proprietary or ownership right in the shared household for the aggrieved person.


He submitted that harmonious construction by interpretation in the suit is to be adopted so that the right of the parties are balanced.

The Counsel further submitted that husband is not a necessary party in a suit filed by the father-in-law. He also contended that the Trial Court has rightly decreed the suit under Order XII Rule 6 CPC relying on the admission made by the respondent in her application under Section 12 of the Act, 2005..Shri Jauhar submits that rights of wife in other statutes like Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 are only against the husband.


Shri Gupta, learned counsel for the respondents submitted that Act, 2005 granted protection and security of residence to woman. Shri Gupta referred to definition of domestic relationship under Section 2(f) and contended that respondent was in domestic relationship with the appellant and the appellant was respondent within the meaning of Section 2(q) against whom allegation of domestic violence was made in petition under Section. Shri Gupta submitted that second part of the definition of the shared household is extensive in nature which gives certain example but cannot be said to be exhaustive looking at scheme of the Act. He submitted that when 'includes' is used after the term “means” it is extensive and not exhaustive in nature. It is submitted that protection under Section 17 is available in all legal proceedings including the suit filed by the appellant.


Shri Gupta submitted that the judgment of S.R. Batra does not correctly interpret provisions of Act, 2005. Referring two subsequent judgments of this Court, namely Hiral P. Harsora and others Vs. Kusum Narottamdas Harsora and others, (2016) 10 SCC 165, and Vaishali Abhimanyu Joshi Vs. Nanasaheb Gopal Joshi, (2017) 14 SCC 373, Shri Gupta submitted that the above two judgments have taken a view contrary to law lay down in S.R. Batra case. Finally, he submitted that present was not a case of granting any decree under Order XII Rule 6, the respondent having categorically pleaded in the written statement that the suit property was purchased from the joint family fund.


The Court, after hearing the contentions of both the parties and after reading the judgment of the High Court in full noted the following:

Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties. (Para 83)

In the above regard, the court answered the first two issued in the following words:

In view of the foregoing discussions, we answer issue Nos. 1 and 2 in following manner:- (i) 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. Batra Vs. Taruna Batra (supra) has not correctly interpreted Section 2(s) of Act, 2005 and the judgment does not lay down a correct Law (Para 84)

While referring to its relevant parts of its judgment in the case of Vaishali Abhimanyu Joshi Vs. Nanasaheb Gopal Joshi, (2017) 14 SCC 373 The Court answered the fourth issue in the following words:

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 claim/defence is nothing but defeating the right, which is protected by Act, 2005. (Para 96)

The court then answered the third issue by referring to its judgment in S.M. Asif Vs. Virender Kumar Bajaj, (2015) 9 SCC 287 in the following words:

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. 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. (Para 98)


The Court while answering the fifth issue i9n the affirmative, held that plaintiff can be said to be the respondent as per the definition of section 2(q) of the 2005 Act and noted the following:

As noted above, one of the conditions to treat a person as a respondent is that “against whom the aggrieved person has sought any relief under the Act”. The defendant in her pleadings having claimed that she has right of residence in the suit property, she for successful resisting the suit has to plead and prove that she has been subjected to any act of domestic violence by the respondent, which is implicit in the definition of the aggrieved person itself as given in the Section 2(a) of the Act, 2005. It is, further, relevant to notice that although learned Magistrate passed an interim order in the application filed by the defendant under Section 12 on 26.11.2016 but said order was interim order which was passed on the satisfaction of the Magistrate that “the application prima facie disclosed that the respondent is committing or has committed an act of domestic violence”. For granting any relief by the Civil Court under Section 19 it has to be proved that the respondent is committing or has committed an act of domestic violence on the aggrieved person. To treat a person as the “respondent” for purposes of Section 2(q) it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved person. (Para 103)

Answering the sixth issue, the Court referred to its judgment in Shanti Kumar Panda Vs. Shakuntala Devi, (2004) 1 SCC 438, where the Court had the occasion to consider “until evicted there from in due course of law” under section 145 of Cr.P.C., and noted the following:

Drawing the analogy from the above case, we are of the opinion 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 instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household. (Para 116)


The court further held:

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. (Para 117)

The court while referring to its judgment in Razia Begum Vs. Sahebzadi Anwar Begum and others, AIR 1958 SC 886 and Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and others, (1992) 2 SCC 524, answered the seventh question in the following words:

In the present case, although plaintiff has not claimed any relief against his son, Raveen Ahuja, 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. (Para 119)


To answer the final questions, the Court, after referring to relevant sections of the Civil Procedure Code, The Indian Evidence Act and The Code Of Criminal Procedure, Referred to their judgments in Seth Ramdayal Jat Vs. Laxmi Prasad, ((2009) 11 SCC 545), Vishnu Dutt Sharma Vs. Daya Sapra, ((2009) 13 SCC 729), and Kishan Singh (Dead) Through LRs. Vs. Gurpal Singh and Ors., ((2010) 8 SCC 775), observed the following:

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

(i) 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.

(ii) The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.

(iii) A 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.

(iv) 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.(Para 157)


Subsequently, the appeal was dismissed.


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