narrated above, it transpired that petitioner No.1 is residing with his two
married sons and respondent is staying with her father. In the light of
the observations of the Division Bench of Delhi High Court in Navneet
Arora's case (supra) if the concept of 'joint family' is taken into
consideration, daughters-in-law of petitioner No.1 are prima facie
members of the joint family. In these circumstances, attempt to solve
one problem may lead to another problem, which could spoil the
peaceful matrimonial life of daughters-in-law of petitioner No.1 as
nature of respondent is alleged to be quarrelsome. Respondent has
stated before this Court that she is ready to live in some other suitable
accommodation, however, same has not been accepted by her in the
counter-affidavit. This Court is of the opinion that while deciding such
like issues, the Court cannot lose sight of the day-to-day happenings in
the society and socio-economic conditions and prevalent customs.
In these circumstances, this Court is of the view that
respondent should be provided a suitable alternative accommodation. If
the provisions of PWDV Act are to be strictly interpreted, then this
Court would have to order that respondent should be allowed to reside
with petitioner No.1-husband as the property in question belongs to the
husband, which certainly comes within the definition of “shared
household”.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-40857 of 2012
Judgment delivered on: 21.04.2015
Avtar Singh and another
V
Smt. Jaswinder Kaur
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Dated;April 21, 2015
Citation; 2015 ALLMR(cri) Journal 433
PARAMJEET SINGH, J.In pursuance of order dated 10.03.2015 petitioner No.1 and
respondent appeared in Court in person. An attempt to amicably settle
the issue was made but parties were adamant. Hence, I was constrained
to hear and decide the petition on merit. During the course of talk of
settlement it transpired that petitioner No.1 is residing along with his two
sons who have been recently married.
This petition raises an interesting issue with regard to concept
of “shared-household” and “right of residence” of wife in it or some
other place.
Instant petition under Section 482 of the Code of Criminal-2-
CRM-M-40857 of 2012
Procedure has been filed against the order dated 03.11.2012 (Annexure
P-2) passed by learned Additional Sessions Judge, Fatehgarh Sahib
whereby order dated 02.04.2012 passed by learned Chief Judicial
Magistrate, Fatehgarh Sahib under the provisions of Protection of
Women from Domestic Violence Act, 2005 (hereinafter referred to as
'the PWDV Act'), has been modified, directing the petitioner-husband to
provide a portion of house No.2279, Phase X, Mohali to respondent-wife
and to properly furnish the said portion according to the choice of wife
to enable her to live with dignity in the shared household. It is further
directed that if the wife is reluctant to live with the husband, the husband
shall pay ` 3,000/- per month as rent. The interim maintenance has been
enhanced from ` 3,000/- per month to ` 6,000/- per month. Petitioners
have only prayed for modification of order dated 03.11.2012 (Annexure
P-2) as it gives liberty to respondent-wife to either live in the house
where the husband is residing or to live separately.
Brief facts of the case are that marriage between petitioner
No.1 and respondent was solemnized on 04.03.1984. From the wedlock
two sons, namely, Mandeep Singh and Kanwarjit Singh were born, who
are 28 years and 26 years old and both are married. Respondent-wife
alleging quarrelsome nature of petitioners and altercations between the
family members, filed an application under Section 12 of the PWDV Act
before the Chief Judicial Magistrate, Fatehgarh Sahib. Vide order
02.04.2012, learned Chief Judicial Magistrate, Fatehgarh Sahib ordered
interim maintenance to the respondent at the rate of ` 3,000/- per month-3-
CRM-M-40857 of 2012
from the date of application and also appointed C.D.P.O., Fatehgarh
Sahib as Protection Officer. Against the order dated 02.04.2012 passed
by learned Chief Judicial Magistrate, Fatehgarh Sahib, respondent
preferred an appeal before the learned Additional District and Sessions
Judge, Fatehgarh Sahib, which has been allowed vide order 03.11.2012
with the aforesaid directions. Hence, this petition.
I have heard learned counsel for the parties and perused the
record.
Learned counsel for the petitioners vehemently contended that
respondent can get the rented accommodation and petitioner No.1 is
ready to pay rent for the same as there is no ample space in the house as
he is residing along with his two married sons. There is no possibility of
resettlement. Learned counsel for the petitioners contends that
respondent is residing separately for more than one year and petitioner
No.1 has also filed an application for divorce.
On the other hand, learned counsel for the respondent
contended that petitioner No.1 has rightly been directed to provide a
portion of the house bearing No.2279, Phase X, Mohali as she has right
to live in the shared-household being legally wedded wife of petitioner
No.1. Learned counsel submits that instead of rented accommodation,
petitioner be directed to provide permanent accommodation in his aforementioned
house to the respondent.
For the disposal of this petition, it is pertinent to look at the
relevant provisions of the PWDV Act. The relevant Sections are as-4-
CRM-M-40857 of 2012
under: -
"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;
xxxx xxxx xxxx xxxx
(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:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file a
complaint against a relative of the husband or the male
partner;
xxxx xxxx xxxx xxxx
(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 household 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.
17. Right to reside in a shared household. - (1)
Notwithstanding anything contained in any other law for the
time being in force, every woman in a domestic relationship-5-
CRM-M-40857 of 2012
shall have the right to reside in the shared household, whether
or not she has any right, title or beneficial interest in the
same.
(2) The aggrieved person shall not be evicted or excluded
from the shared household or any part of it by the respondent
save in accordance with the procedure established by law.
18. 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-6-
CRM-M-40857 of 2012
person assistance from domestic violence;
(g) committing any other act as specified in the
protection order.
19. Residence orders.-(1) While disposing of an application
under sub-section (1) of section 12, the Magistrate may, on
being satisfied that domestic violence has taken place, pass a
residence order -
(a) restraining the respondent from dispossessing or in any
other manner disturbing the possession of the aggrieved
person from the shared household, whether or not the
respondent has a legal or equitable interest in the shared
household;
(b) directing the respondent to remove himself from the shared
household;
(c) restraining the respondent or any of his relatives from
entering any portion of the shared household in which the
aggrieved person resides;
(d) restraining the respondent from alienating or disposing off
the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in
the shared household except with the leave of the Magistrate;
or
(f) directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her in
the shared household or to pay rent for the same, if the
circumstances so require:
Provided that no order under clause (b) shall be passed
against any person who is a woman.
(2) The Magistrate may impose any additional conditions or
pass any other direction which he may deem reasonably
necessary to protect or to provide for the safety of the
aggrieved person or any child of such aggrieved person.-7-
CRM-M-40857 of 2012
(3) The Magistrate may require from the respondent to
execute a bond, with or without sureties, for preventing the
commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an
order under Chapter VIII of the Code of Criminal Procedure,
1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section
(2) or sub-section (3), the court may also pass an order
directing the officer in charge of the nearest police station to
give protection to the aggrieved person or to assist her or the
person making an application on her behalf in the
implementation of the order.
(6) While making an order under sub-section (1), the
Magistrate may impose on the respondent obligations relating
to the discharge of rent and other payments, having regard to
the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the
police station in whose jurisdiction the Magistrate has been
approached to assist in the implementation of the protection
order.
(8) The Magistrate may direct the respondent to return to the
possession of the aggrieved person her stridhan or any other
property or valuable security to which she is entitled to.
23. Power to grant interim and ex parte orders.— (1) In any
proceeding before him under this Act, the Magistrate may
pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima
facie discloses that the respondent is committing, or has
committed an act of domestic violence or that there is a
likelihood that the respondent may commit an act of domestic
violence, he may grant an ex parte order on the basis of the
affidavit in such form, as may be prescribed, of the aggrieved-8-
CRM-M-40857 of 2012
person under section 18, section 19, section 20, section 21 or,
as the case may be, section 22 against the respondent."
The question for consideration before me revolves around the
interpretation of term “shared household” as defined in Section 2(s) of
the PWDV Act. Hon'ble Supreme Court had the occasion to consider the
term “shared household” in the case of S.R. Batra and another v. Smt.
Taruna Batra, 2007(3) SCC 169 wherein the Hon'ble Supreme Court
has held as under: -
“26. If the aforesaid submission is accepted, then it will mean
that wherever the husband and wife lived together in the past
that property becomes a shared household. It is quite possible
that the husband and wife may have lived together in dozens
of places e.g. with the husband's father, husband's paternal
grand parents, his maternal parents, uncles, aunts, brothers,
sisters, nephews, nieces etc. If the interpretation canvassed by
the learned counsel for the respondent is accepted, all these
houses of the husband's relatives will be shared households
and the wife can well insist in living in all these houses of her
husband's relatives merely because she had stayed with her
husband for some time in those houses in the past. Such a view
would lead to chaos and would be absurd.
27. It is well settled that any interpretation which leads to
absurdity should not be accepted.
29. As regards Section 17(1) of the Act, in our opinion the
wife is only entitled to claim a right to residence in a shared
household, and a `shared household' would only mean the
house belonging to or taken on rent by the husband, or the
house which belongs to the joint family of which the husband
is a member. The property in question in the present case-9-
CRM-M-40857 of 2012
neither belongs to Amit Batra nor was it taken on rent by him
nor is it a joint family property of which the husband Amit
Batra is a member. It is the exclusive property of appellant
No. 2, mother of Amit Batra. Hence it cannot be called a
`shared household'.
30. No doubt, the definition of `shared household' in Section 2
(s) of the Act is not very happily worded, and appears to be
the result of clumsy drafting, but we have to give it an
interpretation which is sensible and which does not lead to
chaos in society.”
Perusal of the judgment of the Hon'ble Supreme Court in S.R.
Batra's case (supra) reveals that it is quite possible that husband and
wife may have lived together at dozens of places such as the house of
relatives of the husband and all such places would qualify as 'shared
household', thus entitling the wife to reside in all such places. Hon'ble
Supreme Court has held that such an interpretation would lead to chaos
and absurdity. Hon'ble Supreme Court has further observed that Section
2(s) of the PWDV Act has not been happily worded and appears to be a
result of clumsy drafting, which necessitated the Court to provide a
sensible interpretation to avoid chaos in the society.
A perusal of Section 17(1) shows that wife would be entitled
to claim a right of residence in a shared household and a shared
household would mean the house belonging to or taken on rent by the
husband or the house which belongs to the joint family of which the
husband is a member. In para 29 of S.R. Batra's case (supra) Hon'ble
Supreme Court has observed that property in question neither belonged-10-
CRM-M-40857 of 2012
to husband nor was taken on rent by him nor was a joint family property
of which husband was a member. It was exclusively ownership of
mother of the husband.
A Division Bench of Delhi High Court in Navneet Arora v.
Surender Kaur and others, 2014(213) DLT 611 : 2014(145) DRJ 199
has elaborately discussed various provisions. Relevant para of Navneet
Arora's case (supra) read as under: -
“24. Before we embark on the journey of culling-out the ratio
of the abovenoted decision, it would be instructive to take into
consideration the luminous observations expressed by Earl of
Halsbury L.C. in the celebrated pronouncement of the House
of Lords in the decision reported as [1901] A.C. 495, Quinn v.
Leathem:
'Now, before discussing the case of Allen v. Flood, [1898]
A.C. 1 and what decided therein, there are two observation
of a general character which I wish to make, and one is to
repeat what I have very often said before, that every
judgment must be read as applicable to the particular facts
proved, or assumed to be proved, since the generality of the
expression which may be found there are not intended to be
expositions of the whole law, but governed and qualified by
the particular facts of the case in which such expressions
are to be found. The other is that a case is only an authority
for what it actually decides. I entirely deny that it can be
quoted for a proposition that may seem to follow logically
from it. Such a mode of reasoning assumes that the law is
necessarily a logical code, whereas every lawyer must
acknowledge that the law is not always logical at all.'
25. The said observations have been cited with approval since-11-
CRM-M-40857 of 2012
time immemorial by the Supreme Court. In the decision
reported as (2007) 10 SCC 82, Sumtibai & Ors. v. Paras
Finance Co. & Ors., the Supreme Court observed:
"10. As observed by this Court in State of Orissa v.
Sudhansu Sekhar Misra, (1970) ILLJ 662 SC vide
para 13:
A decision is only an authority for what it actually
decides. What is of the essence in a decision is its
ratio and not every observation found therein nor
what logically follows from the various observations
made in it. On this topic this is what Earl of
Halsbury, LC said in Quinn v. Leathem, 1901 AC
495:
Now before discussing the case of Allen v. Flood,
(1898) AC 1 and what was decided therein, there
are two observations of a general character which I
wish to make, and one is to repeat what I have very
often said before, that every judgment must be read
as applicable to the particular facts proved, or
assumed to be proved, since the generality of the
expressions which may be found there are not
intended to be expositions of the whole law, but
governed and qualified by the particular facts of the
case in which such expressions are to be found. The
other is that a case is only an authority for what it
actually decides. I entirely deny that it can be
quoted for a proposition that may seem to follow
logically from it. Such a mode of reasoning assumes
that the law is necessarily a logical Code, whereas
every lawyer must acknowledge that the law is not
always logical at all.-12-
CRM-M-40857 of 2012
11. In Ambica Quarry Works v. State of Gujarat and Ors.,
(1987) 1 SCC 213 (vide para 18) this Court observed:
The ratio of any decision must be understood in the
background of the facts of that case. It has been said long
time ago that a case is only an authority for what it actually
decides, and not what logically follows from it.
12. In Bhavnagar University v. Palitana Sugar Mills Pvt.
Ltd., (2003) 2 SC 111 (vide para 59), this Court observed:
It is well settled that a little difference in facts or
additional facts may make a lot of difference in the
precedential value of a decision.
13. As held in Bharat Petroleum Corporation Ltd. and
Anr. v. N.R. Vairamani and Anr., AIR 2004 SC 4778, a
decision cannot be relied on without disclosing the factual
situation. In the same Judgment this Court also observed:
Court should not place reliance on decisions
without discussing as to how the factual situation
fits in with the fact situation of the decision on
which reliance is placed. Observations of Courts
are neither to be read as Euclids theorems nor as
provisions of the statute and that too taken out of the
context. These observations must be read in the
context in which they appear to have been stated.
Judgments of Courts are not to be construed as
statutes. To interpret words, phrases and provisions
of a statute, it may become necessary for judges to
embark into lengthy discussions but the discussion
is meant to explain and not to define. Judges
interpret statutes, they do not interpret judgments.
They interpret words of statutes; their words are not
to be interpreted as statutes.
In London Graving Dock Co. Ltd. v. Horton, 1951-13-
CRM-M-40857 of 2012
AC 737 Lord Mac Dermot observed:
The matter cannot, of course, be settled merely by
treating the ipsissima ventral of Willes, J. as though
they were part of an Act of Parliament and applying
the rules of interpretation appropriate thereto. This
is not to detract from the great weight to be given to
the language actually used by that most
distinguished judge.
In Home Office v. Dorset Yacht Co., 1970 (2) AER
294 Lord Reid said, Lord Atkin`s speech...is not to
be treated as if it was a statute definition it will
require qualification in new circumstances.
Megarry, J. in (1971) 1 WLR 1062 observed:
One must not, of course, construe even a reserved
judgment of Russell L. J. as if it were an Act of
Parliament. And, in Herrington v. British Railways
Board, 1972 (2) WLR 537 Lord Morris said:
There is always peril in treating the words of a
speech or judgment as though they are words in a
legislative enactment, and it is to be remembered
that judicial utterances are made in the setting of
the facts of a particular case. Circumstantial
flexibility, one additional or different fact may make
a world of difference between conclusions in two
cases. Disposal of cases by blindly placing reliance
on a decision is not proper.
The following words of Lord Denning in the matter
of applying precedents have become locus classicus:
Each case depends on its own facts and a close
similarity between one case and another is not
enough because even a single significant detail may
alter the entire aspect, in deciding such cases, one-14-
CRM-M-40857 of 2012
should avoid the temptation to decide cases (as said
by Cardozo, J. ) by matching the colour of one case
against the colour of another. To decide therefore,
on which side of the line a case falls, the broad
resemblance to another case is not at all decisive.
* * *
Precedent should be followed only so far as it marks
the path of justice, but you must cut the dead wood
and trim off the side branches else you will find
yourself lost in thickets and branches. My plea is to
keep the path of justice clear of obstructions which
could impede it."
26. The said observations are indeed a lodestar and valuably
guide us to appreciate the observations of the Supreme Court
in Taruna Batra's case (Supra) in the correct perspective.
27. As highlighted earlier, while deciding Taruna Batras case
(Supra) the Supreme Court took into consideration the fact
that after the marriage Ms.Taruna Batra and her husband -
Amit Batra started living at the second floor of the suit
premises, whereas the in-laws resided separately on the
ground floor of the suit property. In view of the said state of
affairs, it is palpably evident that Ms.Taruna Batra and her
husband were not living together with Ms.Taruna Batras inlaws,
as members of 'joint family in the legal-sense and the
second floor of the suit-property would not qualify as the
'shared household in terms of Section 2(s) of the Act. The fact
that the husband and wife resided on a separate floor
altogether is indicative of the fact that they were not living as
a 'joint family with the in-laws of Ms.Taruna Batra.
28. It is a settled proposition that to constitute a 'joint family
the members thereof must not only reside together but partake-15-
CRM-M-40857 of 2012
meals prepared from a common kitchen, whereas it appears
from the perusal of the judgment rendered in Taruna Batras
case (Supra) that there was nothing to indicate that the
kitchen was common.
29. The term 'Joint Family has not been defined under the Act.
We find that the General Clauses Act, 1897 is also
conspicuously silent in this regard. Therefore, this Court must
traverse beyond to ascertain the true meaning and import of
the term 'Joint Family.
30. It has been pertinently observed in the decision reported
as (1914) 1KB 641, Camden (Marquis) v. IRC:-
'It is for the court to interpret the statute as best it
can. In so doing the court may no doubt assist itself
in the discharge of its duty by any literary help
which it can find, including of course the
consultation of standard authors and references to
well known and authoritative dictionaries.'
31. The Supreme Court has observed in the decision reported
as 1985 Supp SCC 280, State of Orissa v. Titaghur Paper
Mills Co. Ltd. that the court may take the aid of dictionaries
to ascertain the meaning of a word in common parlance,
where the word has not been statutorily defined or judicially
interpreted.
32. The Supreme Court in its decision reported as (2004) 1
SCC 256, S. Samuel v. Union of India, held that when a word
is not defined in the Act itself, it is permissible to refer to
dictionaries to find out the general sense in which that word is
understood in the common parlance. The Court sounded a
note of caution that in selecting one out of the various
meanings of a word, regard must always be had to the context,
as it is a fundamental rule that the meaning as words and-16-
CRM-M-40857 of 2012
expressions used in an Act must take their colour from the
context in which they appear.
33. Advanced Law Lexicon Dictionary, P. Ramanatha Aiyar,
Third Edition, Wadhwa-Nagpur defines 'Joint-Family in the
following terms:-
'Joint Family: "Joint Family" means a family of
which the members live together, have a common
mess and are descendants from a common ancestor
and shall include wives or husbands, as the case
may be, of its member, but shall exclude married
daughters and their children. [Manipur
Municipalities Act (43 of 1994), S. 2(27)]
[Emphasis Supplied]
34. Iravati Karve opines that a 'Joint Family is a group of
people who generally live under one roof, who eat food
cooked at one hearth, who hold property in common, who
participate in common worship and are related to each other
as some particular type of kindred. ['Kinship Organisation in
India, Asia Publishing House, Mumbai, 1968]
35. We may also note that the Act secures "right of residence"
for an 'aggrieved person in a "shared household" which may
belong to the "joint family" of which "respondent" is a
member, irrespective of whether the "respondent" or the
"aggrieved person" has any right, title or interest in the
"shared household".
36. The term "Household is defined by Whartons Law Lexicon,
Fifteenth Edition, Universal Law Publishers in the following
terms;-Means the member of a family related to each other by
blood, marriage or adoption and normally residing together
and sharing meal or holding a common ration card. [National-17-
CRM-M-40857 of 2012
Rural Employment Guarantee Act, 2005, S. 2(f)]
37. This Court in its decision reported as 80 (1999) DLT 611,
Hari Sharma v. Amarjit Singh Ramana whilst arriving at the
conclusion that the husband and wife were living together as a
family and the relations between them were cordial, ascribed
importance to the fact that they were sharing a common
kitchen.
38. It thus bears no reiteration that in Taruna Batras case
(Supra), Ms.Taruna Batra and her husband - Amit Batra were
not residing with the Appellants as members of 'joint family in
a 'shared household as understood in the legalistic sense, the
residence and kitchen being separate.
39. Thus,Ms.Taruna Batra could not derive any benefit from
the provisions of the Protection of Women from Domestic
Violence Act, 2005 as she or her husband, either singly or
jointly, had no right, title, interest or equity in the second floor
of the suit property and neither was the couple residing as
members of 'Joint Family with her in-laws and her motherinlaw
was the exclusive owner of the suit property.
40. In paragraph 29 of the judgment the Court pertinently
observed:-
"29. The property in question in the present case
neither belongs to Amit Batra nor was it taken on
rent by him nor is it a joint family property of which
the husband Amit Batra is a member. It is the
exclusive property of Appellant 2, mother of Amit
Batra. Hence it cannot be called a "shared
household".?
[Emphasis Supplied]
41. The submission of the learned Senior Counsel appearing-18-
CRM-M-40857 of 2012
on behalf of the Ms.Taruna Batra, as noted in paragraph 24 of
the judgment, that merely because Ms.Taruna Batra had lived
in the property in question in the past, it fell within the ambit
of 'shared household was rejected by the Supreme Court,
which was of the considered opinion that such a view would
lead to chaos in the society since the wife may insist on
claiming 'right of residence in virtually any property in which
she may have resided together with her husband in the past.
42. Furthermore, the Supreme Court also observed that in
view of the admitted fact that Ms.Taruna Batra had shifted to
the residence of her parents owing to matrimonial disputes
with her husband and was thus no longer in possession of the
said portion of suit property, the question of protecting her
possession could not arise. The very foundation of her claim
for injunction restraining the in-laws from dispossessing her
was thus wholly misconceived.
43. In light of the foregoing discussion, we are of the view that
Taruna Batras case (Supra) is only an authority for the
proposition that a wife is precluded under the law from
claiming 'right of residence in a premises, owned by the
relatives of the husband, wherein she has lived with her
husband separately, but not as a member of the 'joint family
along with the relatives of the husband who own the premises.
44. However, in the later eventuality, if a couple live as
members of 'joint family in a domestic relationship with the
relatives of the husband in a premises owned by such relatives
of the husband, statutory prescription would indeed enable the
wife to claim 'right of residence since it would fall within the
realm of 'shared household as contemplated under Section 2
(s) of the Act irrespective of whether she or her husband has
any right, title or interest in the "shared household".-19-
CRM-M-40857 of 2012
45. We may notice that Section 19(1)(a) of the Act clears the
cloud, if any, as it mandates in unequivocal terms that a
Magistrate disposing an application under sub-Section (1) of
Section 12, may, on being satisfied that domestic violence has
taken place, pass a residence order restraining the respondent
from dispossessing or in any other manner disturbing the
possession of the aggrieved person from the 'shared
household, whether or not the respondent has a legal or
equitable interest in the "shared household".
46. It is a settled tenet of construction of statutes that a statute
must be read as a whole and not in a truncated manner.
47. It would be apposite to reproduce the observations
comprised in 'Maxwell on the Interpretation of Statutes' by P.
St. J. Langan, Twelfth Edition, 1976, N.M. Tripathi Private
Ltd., at Pg. 47:-
"It was resolved in the case of Lincoln College-
(1595) 3 Co. Rep. 58b that the good expositor of an
Act of Parliament should "make construction on all
the parts together, and not of one part only of
itself." Lord Davey in Canada Sugar Refining Co.
Ltd. v. R, [1898] A.C. 735 observed that "every
clause of a statute is to be construed with reference
to the context and other clauses of the Act, so as, as
far as possible, to make a consistent enactment of
the whole statute.""
[Emphasis Supplied]
48. The Supreme Court in its decision reported as AIR 1963
SC 1241, State of W.B. v. Union of India, held that the Court
must ascertain the intention of the legislature by directing its
attention not merely to the clauses to be construed but to the
entire statute; it must compare the clause with the other parts-20-
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of the law, and the setting in which the clause to be
interpreted occurs.
49. We are of the view that the plain language of the Act. viz.
Section 2(s) read in conjunction with Section 19 (1)(a) is
unambiguous and enables an aggrieved person to claim 'right
of residence in a household even though the aggrieved person
or the respondent may have no right, title or interest in the
said household, if the aggrieved person and the respondent
have lived therein by establishing a domestic relationship with
the joint family of which the respondent is a member and to
which such household belongs.
50. We may profitably refer to the authoritative treatise on
statutory interpretation, 'Craies on Statute Law' by S.G.G.
Edgar, Seventh Edition, First Indian Reprint, Universal Law
Publishing Co., Pg. 65, wherein the author has taken note of a
long line of English decisions on the subject commencing from
(1832) 2 D. & Cl. (H.L.) 480, Warburton v. Loveland; (1864)
2 H. & C. 431, Att. Gen. v. Sillem; (1881) 8 Q.B.D. 125, Att.-
Gen. v. Noyes; (1889) 24 Q.B.D. 1, Hornsey L.B. v. Monarch
Investment Building Society; [1891] A.C. 401, M'Cowan v.
Baine; [1897] A.C. 22, Salomon v. Salomon; [1922] 1 A.C. 1,
Sutters v. Briggs; [1959] 1 W.L.R. 995, I.R.C. v. Collco
Dealings, Same v. Lucbor Dealings; [1954] 1 Q.B. 439
(D.C.), Cf. Gluchowska v. Tottenham Borough Council
wherein it has been held that where the language of an Act is
clear and explicit, effect must be given to it, whatever may be
the consequences, for in that case the words of the statute
speak the intention of the legislature.
51. Further at Page 91, it has been pertinently observed:-
"In Abel v. Lee, reported as (1871) L.R. 6 C.P. 365,
it was observed by Willes J. that no doubt the-21-
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general rule is that the language of an Act is to be
read according to its ordinary grammatical
construction unless so reading it would entail some
absurdity, repugnancy, or injustice... But I utterly
repudiate the notion that it is competent to a judge
to modify the language of an Act in order to bring it
in accordance with his views of what is right or
reasonable."
[Emphasis Supplied]
52. As we understand, the principle underlying the
conclusions expressed in the above-extracted decisions is the
fundamental rule "verbis legis non est recedendum" which
means that the words of a statute must not be varied. In a
democratic constitutional framework as ours, the legislature
enjoys the mandate of the nation and the direct
representatives of the citizens essentially fill the House. As a
general principle subject to some recognised exceptions, the
legislature enjoys the exclusive power to enact the laws suited
for the citizenry taking into account the needs and conditions
prevalent in the society with which they are supposed to be
cognizant and sensitised. Per Contra, it is the solemn duty of
the Courts to apply and interpret the laws enacted by the
legislature whilst adjudicating the disputes brought before it.
The Courts do not make any interpretation contrary to the
express words of an enactment. It is often remarked "Speech
after all is the index of the mind- Index animi sermo est."Any
interpretation jettisoning from consideration the express
words employed by the legislature or treating them as mere
'surplusage would tantamount to judicial re-drafting, which is
impermissible as it would fall foul of the doctrine of
separation of powers recognised under our Constitution.-22-
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53. However we may clarify that even if doubts arise owing to
defects in legislative drafting and a provision is capable of
more than one construction, that construction should be
preferred which furthers the policy of the Act and is more
beneficial to those in whose interest the Act may have been
passed and the doubt, if any, should be resolved in their
favour [AIR 1961 SC 1491 Jivabhai v. Chhagan, (2008) 9
SCC 527, Union of India v. Prabhakaran Vijaya Kumar]
54. There can be no quarrel that Protection of Women from
Domestic Violence Act, 2005 is a social-welfare legislation
enacted for the benefit and amelioration of women.
55. In the decision of the Supreme Court reported as (1982) 1
SCC 159, Chinnamarkathian alias Muthu Gounder v.
Ayyavoo alias Periana Counder, it was observed that it is a
well- settled canon of construction that in construing the
provisions of such enactments, the Court should adopt that
construction with advances, fulfils and furthers the object the
Act rather than the one which would defeat the same and
render the protection illusory.
56. Thus, it would be clearly impermissible to impose artifices
and restrict the amplitude of protection made available to
women under the said Act.
57. In this connection, we may reproduce the observations of
Lord Reid in the decision reported as [1963] A.C. 349, Att.-
Gen. for Northern Ireland v. Gallagher, wherein it was
pertinently observed- "We cannot encroach on its legislative
function by reading in some limitation which we may think
was probably intended but which cannot be inferred from the
words of the Act."
58. On the first blush it may appear quite jarring to certain-23-
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quarters of the society that by enacting the Protection of
Women from Domestic Violence Act, 2005 the legislature has
invested a 'right of residence in favour of wives qua premises
in which they or their husband admittedly have no right, title
or interest and such premises are in fact owned by the
relatives of the husband.
59. It may be highlighted that the Act does not confer any title
or proprietary rights in favour of the aggrieved person as
misunderstood by most, but merely secures a 'right of
residence in the 'shared household. Section 17(2) clarifies that
the aggrieved person may be evicted from the 'shared
household but only in accordance with the procedure
established by law. The legislature has taken care to calibrate
and balance the interests of the family members of the
respondent and mitigated the rigour by expressly providing
under the provisio to Section 19 (1) that whilst adjudicating
an application preferred by the aggrieved person it would not
be open to the Court to pass directions for removing a female
member of the respondents family from the "shared
household". Furthermore, in terms of Section 19 (1) (f), the
Court may direct the respondent to secure same level of
accommodation for the aggrieved person as enjoyed by her in
the "shared household" or to pay rent for the same, if the
circumstances so require.
60. The seemingly 'radical provisions comprised in the
Protection of Women from Domestic Violence Act, 2005 must
be understood and appreciated in light of the prevalent
culture and ethos in our society.
61. The broad and inclusive definition of the term 'shared
household' in the Protection of Women from Domestic
Violence Act, 2005 is in consonance with the family patterns-24-
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in India, where married couple continue to live with their
parents in homes owned by parents.
62. D. Ross and Aileen, 'The Hindu Family in its Urban
Setting (Oxford Univ., 1961), p. 8, have observed -
"In the Indian societal set up, it is not uncommon for
sons to reside with their parents and their other
family members in a common household. The
concept of nuclear household, though on a rise, is
yet to gain strong held on Indian soil and even
therein as well, the parents residing with the son, is
taken as an acceptable and appreciable conduct."
[Emphasis Supplied]
63. The joint family has always been the preferred family type
in the Indian culture, and most Indians at some point in their
lives have participated in joint family living. [Nandan, Y. and
Eames, E. (1980), Typology and Analysis of the Asian-Indian
Family, In Saran, P. and Eames, E. (Eds.), The New Ethnics:
Asian Indians in the United States, Praeger, New York]
64. With efflux of time and changes in the socio-economic and
cultural milieu of our society, there has been transformation
in the structure, functions, roles, relationships and values of
the family. With greater urbanization, the concept of joint
family may indeed be on a steady decline.
65. Extended family is in fact a transitory phase between joint
and nuclear family system. [Singh, J.P. (2004), The
contemporary Indian family, In Adams, B.N and Trost, J.
(Eds.), Handbook of World Families, Sage Publications Inc.,
California.]
66. According to an article published in 'The Hindu on
16.03.2012, the Census, 2011 indicates that even as the-25-
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country as a whole has been switching over to the nuclear
family system, several States in north India seem to be rather
reluctant to follow the trend wholeheartedly. 27 % of the
households in Uttar Pradesh still had two or more married
couples living together - far more than the national average of
18 % for such families. Uttar Pradesh was followed by
Rajasthan, Haryana, Punjab, Gujarat, Bihar, Jharkhand and
Madhya Pradesh. In Rajasthan, 25 % of the households were
found to be joint families, while in Haryana the corresponding
figure was 24.6%, Punjab 23.9 %, Gujarat 22.9 %, Bihar and
Jharkhand 20.9 % and Himachal Pradesh 20 %.In contrast, in
south India, in Andhra Pradesh only 10.7 % of the households
were joint families, in Tamil Nadu 11.2 %, in Pondicherry
11.4 %, in Karnataka 16.2 % and Kerala 16.6 %.In West
Bengal 15.5 % of the households were joint families, in
Maharashtra 17.6 %, in Madhya Pradesh 17.7 %, in Odisha
12.32 % and in Goa 12.6 %.There are still some pockets in
north India where households have five married couples or
more living together.
67. Interestingly, the Census, 2011 also reveals that the
percentage of Joint Families in Mumbai has considerably
increased over the decade. The number of households with
joint families has gone up by 77% in the suburbs and 35% in
the island city. [Article published in the Times of IndiaMumbai
Edition dated 24-03-2012.]
68. However, be that as it may, it emerges beyond pale of
doubt that the practice of living in joint family and having
common-households is not alien to the Indian society, perhaps
unlike many western civilisations.
69. We may also highlight that though the practice of residing
together as joint family is undoubtedly common amongst those-26-
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who subscribe to the tenets of Hindu religion and the concept
of 'Hindu Undivided Family (HUF) is well recognised,
however, the institution of joint family seems to be a
characteristic feature of the Indian sub-continent, and even
adherents of Islam have also been known to reside together in
common households.
70. B.R.Verma in his treatise on Islamic Personal Law titled
'Mohammedan Law (In India, Pakistan and Bangladesh),
Sixth Edition, 1986, Law Publishers at page 399-400 observes
that it is very common in the areas of State of Andhra
Pradesh, formerly belonging to Madras State for descendent
Mohammedans to live and trade together and also acquire
properties together.
71. We may hasten to add that the term 'Joint Family
employed by the legislature in Protection of Women from
Domestic Violence Act, 2005 is not to be confused with 'Hindu
Undivided Family. The 'Hindu Undivided Family is only a
species of 'Joint Family; which has a wider connotation.
72. As we have noticed earlier, the term 'Joint Family has not
been defined under the Act. We may seek guidance from other
statutes where the term 'Joint Family has been defined as it
may throw some light upon its meaning. However, we are
conscious of the limitation of such practice as highlighted by
Lord Reid in the decision reported as [1955] A.C. 377 (H.L.),
London Corpn. v. Cusack- Smith wherein he observed that:-
"It does not necessarily follow that if parliament
uses the same words in quite a different context they
must retain the same meaning"
73. 'Joint Family in the case of Hindu means a Hindu
Undivided Family and, in the case of other persons, a group
of members of which are by custom, joint in possession or-27-
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residence. [Punjab Apartment Ownership Act (Punjab Act No.
13 of 1995) S.2(c); and Punjab Apartment and Property
Regulation Act (14 of 1995) S.2(s)]
74. Section 2(16) of the Gujarat Agricultural Land Ceiling
Act, 1960 defines 'Joint Family. For the purposes of the said
act 'Joint Family means an undivided Hindu family and in the
case of other persons, a group or unit the members of which
by custom or usage are joint in estate or residence.
75. Section 2(m) of the Gujarat Ownership of Flats Act, 1973
defines 'Joint Family as an undivided Hindu family and in the
case of other persons, a group or unit the members of which
are by custom joint in possession or residence.
76. Thus, it is unequivocally evinced from a perusal of the
definitions enacted by various state legislatures in different
enactments, that the term 'Joint Family has a wider import
than 'Hindu Undivided Family; which stands subsumed
therein.
77. The Gujarat High Court in its decision reported as 2012
Cri. L.J. 1187, Pritiben Jiteshbhai Upadhyay v. Jiteshbhai
Virendrabhai Upadhyay & Ors., while dealing with a case
under the Protection of Women from Domestic Violence Act,
2005, noticed the fact that the term 'Joint Family was not
defined under the Act and in order to assign a meaning to the
same the Court cited with approval the definition comprised in
Encyclopaedia Britannica 2008. The same may be reproduced
herein below:
'Joint family.- family in which members of a
unilineal descent group (a group in which descent
through either the female or the male line is
emphasized) live together with their spouses and-28-
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offspring in one homestead and under the authority
of one of the members. The joint family is an
extension of the nuclear family (parents and
dependent children), and it typically grows when
children of one sex do not leave their parents' home
at marriage but bring their spouses to live with
them. Thus, a patrilineal joint family might consist
of an older man and his wife, his sons and
unmarried daughters, his sons' wives and children,
and so forth. For a man in the middle generation,
belonging to a joint family means joining his
conjugal family to his family of orientation (i.e., into
which he was born)."
78. We find that the meaning of the term 'Joint Family for the
purpose of Protection of Women from Domestic Violence Act,
2005 as approved by the Gujarat High Court contains no
reference to 'Hindu Undivided Family.
79. The Protection of Women from Domestic Violence Act is a
secular legislation and has been enacted for the benefit of
women in India irrespective of their religious affiliations like
the provisions of Section 125 of the Code of Criminal
Procedure, 1973. Section 1 of the Act that prescribes the
extent of applicability of the Act makes no reservations based
on religion. Furthermore, if the legislature intended to engraft
a special provision in the context of Hindus, nothing
prevented them from expressly using the term 'Joint Hindu
Family or 'Hindu Undivided Family, as found in Income Tax
Act, 1961 and host of other legislations.
80. Recently a similar view was echoed by the Gauhati High
Court in its recent decision reported as 2014 Cri. L.J. 2162,
Md. Rajab Ali & Ors. v. Mustt. Manjula Khatoon, wherein it-29-
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was observed:
"17. It is not uncommon that members of a
Mahomedan family live in commensality. However,
they do not form a joint family in the sense in which
the expression is usedin the Hindu Law. There is no
provision of Mahomedan Law recognizing a joint
family.
18. Therefore, bearing in mind the purpose for
which the D.V. Act was enacted, which is, to provide
more effective protection of the rights of women
guaranteed under the Constitution, who are victims
of violence of any kind as occurring within the
family and for matters connected therewith or
incidental thereto, the expression "joint family"
occurring in definition of "domestic relationship"
and "shared household" has to be given an
interpretation which will be consistent with the
object of the Act for the purpose of maintainability
and obtaining certain reliefs under D.V. Act, and
therefore, I am of the opinion that expression "joint
family" would mean a household where members of
a family live in commensality and not a "joint
family" as is understood in Hindu Law. Any other
interpretation has the potential to exclude a vast
majority of the shared households in the country,
which cannot be the intention of the legislature,
having regard to the avowed object of the Act."
[Emphasis Supplied]
81. Taking into account the international treaty obligations
and the hardships faced by women folk over centuries while
living under peculiar family institutions transcending-30-
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religious boundaries, the legislature rose to the occasion and
introduced the Protection of Women from Domestic Violence
Bill, 2005.
82. Pt. Jawaharlal Nehru in his speech delivered at the annual
conference of the Indian Branch of the International Bar
Association, New Delhi on 31st March 1951 aptly remarked:-
" There should not be any lag between the
development of law and the needs of a changing
society. There should be the closest possible cooperation
between jurists and economists or
politicians whose object is to study the changing
social fabric."
[Extracts of speech as reported in the Hindustan
Times and National Herald dated 1st April 1951]
83. The said Bill was introduced in Lok Sabha on 22.08.2005
by the government of the day and after debate it was passed by
the House on 24.08.2005. Thereafter, the Rajya Sabha passed
the same on 29.08.2005 and consequently the presidential
assent was received on 13.09.2005.
84. With a view foster better understanding of the legislation,
cognizance may be taken of the attending circumstances in
wake of which the legislation was enacted. The Statement of
Object and Reasons accompanying the Bill and the
parliamentary debates that ensued on the floor of the House
provide valuable insights and bring to fore the circumstances
engulfing our nation which necessitated the legislation.
85. We are conscious that any interpretation flowing from the
speeches made in the parliamentary debates by individuals
cannot be a safe guide of the legislative intent of the entire
house and therefore cannot be dispositive of the matter to halt
the Court in its solemn pursuit of deciphering the true-31-
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legislative intent. However, it assumes significance that it is
permissible under the law of our land to refer to the text of
such debates and place reliance thereon to the limited extent
viz. for discerning the state of affairs prevalent in the society
at the point of time when the Bill was introduced and the
mischief/evils which were sought to be suppressed by such a
legislative enactment.
86. In the judgment reported as AIR 1951 SC 41, Chiranjit
Lal Chowdhury v. Union of India the Supreme Court
pertinently observed:-
"legislative proceedings cannot be referred to for
the purpose of constructing an Act or any of its
provisions, but I believe that they are relevant for
the proper understanding of the circumstances
under which it was passed and the reasons which
necessitated it."
87. In the decision reported as (1975) 3 SCC 862, Anandji
Haridas & Co.(P) Ltd. v. Engg. Mazdoor Sangh, the Supreme
Court clarified that no external evidence such as
Parliamentary debates, reports of the committees of the
legislature or even the statement made by the Minister on the
introduction of a measure or by the framers of the Act is
admissible to construe those words. It is only when the statute
is not exhaustive or where the language is ambiguous,
uncertain, clouded or susceptible of more than one meaning
or shades of meaning that external evidence as to the evils, if
any, which the statute was intended to remedy or the
circumstances which led to the passing of the statute may be
looked into for the purpose of ascertaining the object which
the legislature had in view in using the words in question.
88. In the decision reported as (1990) 4 SCC 366, Shashikant-32-
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Laxman Kale v. Union of India, the Supreme Court
recognized the vital distinction between the use of material
(external aids) for the purpose of finding them is chief dealt by
the Act and the circumstances which necessitated the passing
of such legislation as distinguished from its use for finding the
meaning of the Act. The former course was held to be
permissible.
89. In this regard it would be relevant to recount the words of
Lord Atkinson in the decision reported as (1911) AC 641,
Keates v. Lewis Merthyr Consolidated Collieries Ltd.:-
"In connection of statutes it is, of course, at all times
and under all circumstances permissible to have
regard to the state of things existing at the time the
statute was passed and to the evils, which as
appears from the provisions, it was designed to
remedy."
90. The said observations have been cited by approval by the
Supreme Court in its judgment reported as AIR 1953 SC 58,
D.N Banerjee v. P.R. Mukherjee and (1981) 2 SCC 585,
Sonia Bhatia v. State of U.P.
91. The practice of referring to travaux preparatories such as
parliamentary history - debates, Statement of Object and
Reasons appended to the Bill etc. as evidence of the
circumstances which necessitated the passing of a piece of
legislation and reliance upon the Constituent Assembly
debates in interpreting the provisions of the Constitution has
been consistently approved by the Supreme Court since time
immemorial and is evinced by line of decisions : AIR 1956 SC
246, A Thangal Kunju Musaliar v. M Venkatachalam Potti;
(1969) 1 SCC 839, A.V.S Narasimha Rao v. Stateof A.P.;
AIR 1993 SC 477, Indira Sawhney v. Union of India; (2001)-33-
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7 SCC 126, S.R Chaudhuri v. State of Punjab; and (2003) 7
SCC 224, Karnataka Small Scale Industries Development
Corporation Ltd. v. Commissioner of Income Tax.
92. The Statement of Objects and Reasons appended with the
Protection of Women from Domestic Violence Bill, 2005 itself
evidences the imminent need for enacting such a legislation.
The relevant portion is reproduced herein below :-
"Statement of Objects and Reasons.- Domestic
violence is undoubtedly a human rights issue and
serious deterrent to development. The Vienna
Accord of 1994 and the Beijing Declaration and the
Platform of Action (1995) both have acknowledged
this. The United Nations Committee on Convention
on Elimination of All Forms of Discrimination
Against Women (CEDAW) in its General
Recommendation No. XII (1989) has recommended
that State parties should act to protect women
against violence of any kind especially that
occurring within the family.
2. The phenomenon of domestic violence is widely
prevalent but has remained largely invisible in the
public domain. Presently, where a woman is subject
to cruelty by her husband or his relatives, it is an
offence under Section 498A of the Indian Penal
Code, 1860. The civil law does not address this
phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping
view the rights guaranteed under article 14,15 and
21 of the constitution to provide for a remedy under
the civil law which is intended to protect the women
from being victims of domestic violence and to-34-
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prevent the occurrence of domestic violence in the
society..."
[Emphasis Supplied]
93. We may highlight that the said Bill was introduced by
Smt.Kanti Singh, the then Minister of State in the Ministry of
Human Resource Development and it would be noteworthy to
extract certain introductory remarks of her address to the Lok
Sabha on 23.08.2005.
"SHRIMATI KANTI SINGH: Sir, I would like to
extend my thanks to you for allowing me to move
protection of women from Domestic Violence Bill,
2005. Presently lakhs of women in the country are
subject to domestic violence. Various kinds of
violence like gender discrimination, domestic
violence, dowry related violence and sexual
exploitation of women are rampant all over the
country. The reason behind this trend
discriminatory approach of the society towards
women. This phenomena is not confined to a
particular caste, religion or community, rather it is
pervading in every Section of the society."
[Emphasis Supplied]
94. During the address it was also highlighted that the
provisions comprised in the Bill were unparalleled and not
present in the existing law. Thus, in view of such attending
circumstances the Bill would assume greater significance.
95. Attention of the members of the House was drawn to the
fact that the Bill would cover relationships not merely
restricted to matrimony but also take within its fold relations
in the nature of marriage, consanguinity, adoption and family
members living together as joint family.-35-
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96. It was also noted that Indian civilization and culture had a
unique set of values. India was amongst the few countries
where members of family prefer to live in close bondage.
97. A perusal of the debates palpably reveals that there was
consensus across the party lines that the position of women in
our society was unfortunately subservient and they were living
in deplorable conditions. Independence had been attained
from the foreign rulers, yet no efforts were made to strengthen
democracy in the household.
98. Statistics highlighting alarming increase in crimes against
women, including high incidence of domestic violence were
also placed for the consideration of the House.
99. Cognizance was also taken by the Parliament of the fact
that women suffer immense hardships when they are thrown
out of their marital home in middle of the night. In most cases,
the victim suffers the pain and humiliation mutely for the fear
of being rendered homeless.
100. Thus, we find that one of the crucial entitlements assured
to the women under the said Bill was the right of residence i.e.
the right not to be dispossessed from her marital home.
However, owing to the wider scope of applicability of the Act
the word 'shared household' has been employed and not
'matrimonial household'.
101. Economic dependence of women on their husbands
increases the vulnerability of women, who continue to be in
violent relationships for fear of dispossession and destitution.
The fear of being rendered shelterless is overwhelming,
particularly for women in the urban setting, where housing is
expensive and beyond the access of ordinary middle and low
income groups.-36-
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102. Sydeny Brandon in M. Brandon (ed.), 'Violence in
Family, 1976, p. 1, expressed her anguish in the following
words : -
"Statistically it is safer to be on streets after dark
with a stranger than at home in the bosom of one's
family, for it is there that accident, murder and
violence are likely to occur".
103. In her treatise on Family Law, Volume 2, Oxford
University Press, pg. 213 Flavia Agnes has expressed a view
that even before the enactment of the Protection of Women
from Domestic Violence Act, 2005 the Courts in India
protected the possession and a right of occupation of women
to their matrimonial household in view of the consideration
that women contribute to the domestic unit, both economically
and through services rendered by performing domestic duties.
This was in contrast to the traditional view that since the title
is in the name of the husband or his family members, it is the
sole prerogative of the person holding the title to permit
residence in these premises. It was earlier believed that the
contract of marriage did not include within its realm the right
in equity to reside in the matrimonial home. Though statutory
provision was lacking, tentatively and gradually, the Courts
started awarding recognition to womens right to matrimonial
residence.
104. Significantly, even before the enactment of the Protection
of Women from Domestic Violence Act, 2005 a Division Bench
of the Calcutta High Court in its decision reported as II
(2003) DMC 809, V. Mala Viswanathan v. P.B Viswanathan,
unequivocally observed:-
"Once a person becomes part of a house by reason
of marriage, her right to reside in her matrimonial-37-
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house cannot be denied..."
105. The Andhra Pradesh High Court in its decision reported
as AIR 1985 AP 207 Bharat Heavy Plates and Vessels Ltd.,
Visakhapatnam, had categorically recognised such obligation
cast upon the husband and extensively discussed the equitable
considerations accruing therefrom in favour of the wife to
reside in her 'matrimonial home, though at the relevant point
of time there was no legislation akin to the Protection of
Women from Domestic Violence Act, 2005.
106. In its landmark decision rendered by a Three-Judge
Bench of the Supreme Court reported as (2005) 3 SCC 313,
B.P Achala Anand v. S. Appi & Anr. the Court recognized
the right of a wife to her matrimonial home and laid a
principle hitherto unknown in law, that a deserted wife would
be entitled to contest the suit for eviction instituted against her
husband.
107. The Protection of Women from Domestic Violence Act,
2005 gives statutory recognition to the salutary principle that
was sought to be advanced through judge made laws in the
vacuum of legislative prescription. The ideological framework
which underscores the enactment is that a husband is bound
to provide his wife a roof over her head and that she has a
right to live in that house without the fear of violence.
108. Recently, the Supreme Court in its decision dated
26.11.2013 in Criminal Appeal No. 2009/2013, Indra Sarma
v. V.K.V. Sarma pertinently observed:
"15. "Domestic Violence" is undoubtedly a human
rights issue, which was not properly taken care of in
this country even though the Vienna Accord 1994
and the Beijing Declaration and Platform for Action
(1995) had acknowledged that domestic violence-38-
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was undoubtedly a human rights issue. UN
Committee on Convention on Elimination of All
Forms of Discrimination Against Women in its
general recommendations had also exhorted the
member countries to take steps to protect women
against violence of any kind, especially that
occurring within the family, a phenomenon widely
prevalent in India. Presently, when a woman is
subjected to cruelty by husband or his relatives, it is
an offence punishable Under Section 498A Indian
Penal Code. The Civil Law, it was noticed, did not
address this phenomenon in its entirety.
Consequently, the Parliament, to provide more
effective protection of rights of women guaranteed
under the Constitution Under Articles 14, 15 and
21, who are victims of violence of any kind
occurring in the family, enacted the DV Act.
x x x
24. Marriages in India take place either following
the personal Law of the Religion to which a party is
belonged or following the provisions of the Special
Marriage Act. Marriage, as per the Common Law,
constitutes a contract between a man and a woman,
in which the parties undertake to live together and
support each other. Marriage, as a concept, is also
nationally and internationally recognized. O'Regan,
J., in Dawood and Anr. v. Minister of Home
Affairs and Ors., 2000 (3) SA 936 (CC) noted as
follows: Marriage and the family are social
institutions of vital importance. Entering into and
sustaining a marriage is a matter of intense private
significance to the parties to that marriage for they-39-
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make a promise to one another to establish and
maintain an intimate relationship for the rest of
their lives which they acknowledge obliges them to
support one another, to live together and to be
faithful to one another. Such relationships are of
profound significance to the individuals concerned.
But such relationships have more than personal
significance at least in part because human beings
are social beings whose humanity is expressed
through their relationships with others. Entering
into marriage therefore is to enter into a
relationship that has public significance as well.
The institutions of marriage and the family are
important social institutions that provide for the
security, support and companionship of members of
our society and bear an important role in the
rearing of children. The celebration of a marriage
gives rise to moral and legal obligations,
particularly the reciprocal duty of support placed
upon spouses and their joint responsibility for
supporting and raising children born of the
marriage. These legal obligations perform an
important social function. This importance is
symbolically acknowledged in part by the fact that
marriage is celebrated generally in a public
ceremony, often before family and close friends...."
[Emphasis Supplied]
109. The malaise of Domestic Violence is not restricted to
India but it is a global phenomenon stemming from the
secondary status accorded to women across different cultures
since advent of civilisation.-40-
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110. We may highlight that Flavia Agnes in her treatise on
'Family Law (Supra), Pg 208-209 has outlined the struggle
English women had to carry out for the right to own property,
for a share in the matrimonial property, and for the right of
residence in the matrimonial home. Until the mid nineteenth
century, married women in England did not have a right to
divorce and they had no right to own property. According to
the Blackstonian principles then prevailing in England, after
marriage, the women lost right over her own property.
Marriage virtually meant legal death for the woman. The
husband became the custodian of her person and her
property, and he could deal with it as per his own whims and
fancies. Finally, in 1935, the distinction between a married
and an unmarried woman was whittled down and married
women became full owner of their own individual property,
even during the subsistence of marriage. Through this
enactment, the abhorrent Blackstonian principle that women
are the property/chattel of their husbands and they are not
entitled to hold property in their name during the subsistence
of marriage, was finally laid to rest. However, since the
matrimonial home was owned by the husband, he could
dispossess her and she had no remedy in law against such
dispossession.
111. We find that progressive judgments of legendary judges
like Lord Denning, paved the way and gave impetus to the
equitable jurisprudence that a deserted wife could not be
dispossessed automatically from the matrimonial home by the
creditors of her bankrupt husband. It was thus recognised that
it was the duty of the husband to provide roof over the head of
his wife. The legislature in England perhaps took stock of the
situation and enacted the Matrimonial Homes Act, 1967 and a-41-
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series of other legislations successively to secure the rights of
married women.
112. We may incidentally notice that even in the United
Kingdom, legislature has enacted a provision viz. Section 37
of the Family Law Act, 1996 which enables the Court to pass
orders regulating the inter se conduct of the spouses, when the
spouses occupy a dwelling house which is their matrimonial
house, even though neither of them have a right to remain in
occupation by virtue of a beneficial estate or interest or
contract or any enactment giving the right to remain in
occupation.
113. Perhaps drawing inspiration from the laudable
provisions comprised in Protection of Women from Domestic
Violence Act, 2005 enacted by the Parliament of India, the
legislature of Bangladesh and Pakistan have followed suite
and enacted similar legislations.
114. Interestingly, we find that the definition of 'shared
residence under Section 2(16) of the Bangladesh Domestic
Violence (Prevention and Protection) Act, 2010 and the term
'household as defined under Section 2(g) of the Pakistan
Domestic Violence (Prevention and Protection) Act, 2012 is
conspicuously similar to the conception of 'shared household
as envisaged under Section 2(s) of the Protection of Women
from Domestic Violence Act, 2005. The said legislations also
recognize the rights of married women to occupy the 'shared
residence/ 'household belonging to 'joint family
notwithstanding the fact that they themselves or their husband
may have no right, title of interest in the same.
115. The Bombay High Court, in its decision reported as II
(2011) DMC 250, Ishpal Singh Kahai v. Ramanjeet Kahai,
while dealing with a case under the Protection of Women from-42-
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Domestic Violence Act, 2005, was pleased to observe that it is
not material to consider in whose name the matrimonial home
stands. The Court extensively discussed the legislative history
and noticed that prior to the Domestic Violence Act title of
parties was oft considered in grant or refusal of the relief of
injunction against an abusive husband. The Domestic
Violence Act came to be enacted essentially to grant statutory
protection to victims of violence in the domestic sector who
had no proprietary rights owing to which the civil law
protection could not be availed by them. Furthermore, the
Court took into consideration various provisions of the Act,
including Section 2(s), Section 17 and Section 19(1)(a) of the
said Act to conclude that there was no place for proprietary
rights in the scheme of Domestic Violence Act as it was an
extension of the deeper and profounder principle of womens
right as a concomitants of human rights. The Court lodged a
caveat that the Domestic Violence Act provided essentially a
temporary remedy in the form of residence orders and such
orders did not in any manner confer proprietary rights in the
matrimonial home but merely protected
occupation/possession.
116. We may however allay fears that if a couple lives with the
relatives of the husband for a short duration as mere
'guests/visitors', in such an eventuality the fact that they live
under the same roof and partake meals from the same kitchen
along with the relatives of the husband (who own the premises
and have extended their hospitality), would not be construed
to imply that the couple lived as members of 'joint family,
entitling the wife to claim a 'right of residence therein.
117. Corpus Juris Secundum, Donald J. Kiser, American Law
Book Company has ascribed the following connotation to the-43-
CRM-M-40857 of 2012
term 'Family.
'The word "family" is further defined to mean a
collective body of persons, consisting of parents or
children, or other relatives, domestics, or servants,
residing together in one house or upon the same
premises; a collective body of persons, who form
one household, under one head and one domestic
government, who have reciprocal nature or moral
duties to support and care of each other, such
persons as habitually reside under one roof and
form one domestic circle, or such as are dependent
on each other for support, or among whom there is
a legal or equitable obligation to furnish support;
those, who live under the same roof with the
families, who form his fireside; an entire house'
[Emphasis Supplied]
118. A 'guest or a visitor enjoys hospitality by partaking meals
with the 'family of the 'host that are prepared from a 'common
kitchen and may with the consent of the 'host also live in the
same 'household for a shortduration. However, such a 'guest
or visitor does not get subsumed as part of the 'family of the
'host in the legal sense as understood in the Protection of
Women from the Domestic Violence Act, 2005 so as to
constitute a 'joint family and render such premises a 'shared
household for the purpose of the Act. Such a 'guest or a visitor
does not habitually reside in the household of the 'host and
this lack of continuity/permanence snaps the possibility of any
legal obligation arising under law.
119. Reverting back to the facts of the instant case, before
Navneet Arora married Gurpreet Singh, he was living as one
family with his parents Harpal Singh and Surinder Kaur. His-44-
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brother Raman Pal Singh and his sister Sherry were also
residing in the same house. The kitchen was one. The two sons
and their father were joint in business and the kitchen used to
be run from the income of the joint business. They were all
living on the ground floor. Sherry got married and left the
house. Navneet married Gurpreet. Raman Pal married Neetu.
The two daughter-in-laws joined the company not only of their
husbands but even of their in-laws in the same joint family
house i.e. the ground floor of B-44, Vishal Enclave, Rajouri
Garden, New Delhi. All lived in commensality. Navneet never
left the joint family house. She was residing in the house when
her husband died. She continued to reside there even till
today. Under the circumstances her right to residence in the
suit property cannot be denied, and as regards issues of title,
we have already observed that the right of residence under the
Protection of Women from Domestic Violence Act, 2005, the
same would have no bearing. She may enforce it in civil
proceedings. But her right of residence in the shared
household cannot be negated.
120. We allow the appeal and set aside the impugned order
dated March 21, 2014.
121. We would comment to the parties to amicably resolve
their disputes because the status quo is damaging all and
since Surinder Kaur and her son Raman Pal Singh are the
dominant parties, we would comment to them to take the first
step forward.”
It would be appropriate to refer to some of the facts of this
case.
On 21.12.2012, while issuing notice of motion a Co-ordinate
Bench of this Court passed the following order: --45-
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“This husband's petition is directed against the judgment
dated November 3rd, 2012 passed by Additional Sessions
Judge, Fatehgarh Sahib whereby she accepted the appeal filed
by the wife-respondent directing the petitioner to pay an
amount of Rs.6000/- as interim maintenance allowance,
directed the petitioner to provide a portion in the shared
household bearing No.2279, Phase X, Mohali and if the
respondent chooses to reside separately, the petitioner was
directed to pay Rs.3000/- for the accommodation in a petition
filed by the wife under Section 12 of Protection of Women
from Domestic Violence Act, 2005.
It has been urged by learned counsel for the petitioner
that the petitioner has three rooms accommodation in
which his mother aged 85 years and a mentally retarded
brother aged 55 years reside with him. The petitioner is ready
to pay an amount of Rs.5000/- for the accommodation. The
respondent is residing separately from the petitioner for the
last one and a half years. The petitioner has also filed divorce
petition which is pending adjudication.
Notice of motion for 2.3.2013.
Meanwhile, the petitioner shall pay the interim
maintenance allowance and the rent at the rate of Rs.5000/-
per month to the respondent. He shall deposit the amount
before the trial Court.
Implementation of direction given to the petitioner to provide
a portion in the house owned by him, is stayed.”
On 02.03.2013 following order was passed: -
“Since the dispute has arisen out of a marital discord and
learned counsel representing the parties have jointly stated
that they are willing to explore the possibility of a settlement
before the Mediation and Conciliation Center of the Punjab-46-
CRM-M-40857 of 2012
and Haryana High Court, I deem it appropriate to refer the
dispute to the Mediation and Conciliation Center of this
Court.
Parties are directed to appear before the Mediator on
12.4.2013.”
On 14.05.2014 following order was passed: -
“Learned counsel for the petitioners, on instructions, submits
that the petitioners are ready to arrange a reasonable
accommodation for the respondent. The proposal is
acceptable to the respondent.
Adjourned to 14.10.2014.
On the adjourned date, learned counsel for the petitioners
shall come up with a definite proposal as regards the offer
made today.
In the meantime, interim order dated 21.12.2012 shall
continue.”
On 14.10.2014 following order was passed: -
“Learned counsel for the petitioners has placed on record an
affidavit of Avtar Singh, petitioner No.1 in compliance of
order dated 14.5.2014.
Learned counsel for the respondent prays for an adjournment
to file counter to this affidavit.
Adjourned to 2.12.2014.”
On 02.12.2014 following order was passed: -
“Learned counsel for the respondent has filed counteraffidavit
which is taken on record.
Adjourned to 23.01.2015.”
On 10.03.2015 following order was passed by this Court: --47-
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“Petitioner no.1-Avtar Singh and respondent-Jaswinder Kaur
are present in Court.
Learned counsel for petitioners after seeking instructions
from petitioner no.1 states that he will make the payment
of entire amount on 13.03.2015 at the time of hearing in the
Court at Fatehgarh Sahib.
Adjourned to 24.03.2015.
Petitioner no.1-Avtar Singh and respondent-Jaswinder Kaur
are directed to be present in Court.”
Para 2 of the affidavit dated 14.10.2014 filed by petitioner
No.1 reads as under: -
“2. That I have arranged an independent habitable
accommodation in Kothi No.295, Phase VII, SAS Nagar,
Mohali consisting of one big room, a kitchen alongwith a
toilet for use of Smt. Jaswinder Kaur. The room has one
double bed, an Almirah, Two Chairs, a Center Table while the
Kitchen is having an LPG Gas, a Fridge and other utensils of
daily use.”
Para 2 of the counter-affidavit dated 01.12.2014 filed by the
respondent reads as under: -
“That in reply to Para No.2 of the affidavit of Petitioner No.1,
it is stated that the accommodation arranged by Petitioner
No.1 is not suitable accommodation. The deponent visited
Kothi No.295, Phase-7, S.A.S. Nagar, Mohali and contacted
the owner of the said house on 14.10.2014 and 21.11.2014
who told that Petitioner No.1 has not paid any rent to him
regarding the said accommodation. Moreover, kitchen is joint
and bathroom is also joint and it is not independent
accommodation because some other family also live on the
first floor of the said house. The said accommodation is not-48-
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suitable for the answering deponent and is not independent
accommodation. Avtar Singh, Petitioner No.1 is owner of
House NO.2279, Phase-X, S.A.S. Nagar, Mohali which is 8
marla house and it is three storey house. Avtar Singh,
Petitioner No.1 has wrongly stated in the above said CRM
Petition that it is a single storey house, whereas it is three
storey house. Therefore, she can be easily given the second
floor (i.e. Barsati portion) of the said house, where the
deponent – wife can live peacefully and independently. It is
pertinent to mention here that the deponent is an old lady and
she can be given second floor of the said house, being wife of
Petitioner No.1 and she has no source of income.”
During the course of attempt of settlement, as has been
narrated above, it transpired that petitioner No.1 is residing with his two
married sons and respondent is staying with her father. In the light of
the observations of the Division Bench of Delhi High Court in Navneet
Arora's case (supra) if the concept of 'joint family' is taken into
consideration, daughters-in-law of petitioner No.1 are prima facie
members of the joint family. In these circumstances, attempt to solve
one problem may lead to another problem, which could spoil the
peaceful matrimonial life of daughters-in-law of petitioner No.1 as
nature of respondent is alleged to be quarrelsome. Respondent has
stated before this Court that she is ready to live in some other suitable
accommodation, however, same has not been accepted by her in the
counter-affidavit. This Court is of the opinion that while deciding such
like issues, the Court cannot lose sight of the day-to-day happenings in
the society and socio-economic conditions and prevalent customs.-49-
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In these circumstances, this Court is of the view that
respondent should be provided a suitable alternative accommodation. If
the provisions of PWDV Act are to be strictly interpreted, then this
Court would have to order that respondent should be allowed to reside
with petitioner No.1-husband as the property in question belongs to the
husband, which certainly comes within the definition of “shared
household”.
The Delhi High Court in Shumita Didi Sandhu v. Sanjay
Singh Sandhu and others, 2010(174) DLT 79 : 2010(2) DMC 882 in
para 49 has held as under: -
“49. We must emphasise once again that the right of residence
which a wife undoubtedly has does not mean the right to
reside in a particular property. It may, of course, mean the
right to reside in a commensurate property. But it can
certainly not translate into a right to reside in a particular
property. In order to illustrate this proposition, we may take
an example of a house being allotted to a high functionary,
say a Minister in the Central Cabinet and who resides in the
same house alongwith his wife, son and daughter-in-law. It is
obvious that since the daughter-in-law and son reside in the
said house, which otherwise is a government accommodation
allotted to the father-in-law, the same could be regarded as
the house where the son and daughter-in-law live in
matrimony. Can the daughter-in-law claim that she has a right
to live in that particular property irrespective of the fact that
the father-in-law subsequently is no longer a Minister and the
property reverts entirely to the Government" Certainly not. It
is only in that property in which the husband has a right, title-50-
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or interest that the wife can claim residence and that, too, if
no commensurate alternative is provided by the husband ”
Keeping in view the larger interests of the family and to avoid
further cases of domestic violence in the family, petitioner No.1 shall
arrange adequate rented accommodation for the respondent, subject to
the satisfaction of the respondent and pay rent for the same. The needful
shall be done within three months from today. Respondent may also
look for the rented accommodation and submit proposal to petitioner
No.1. If order is not complied with by petitioner No.1 within stipulated
period, respondent will be at liberty to move appropriate application
before this Court. Till the suitable accommodation is arranged for the
respondent, petitioner No.1 shall continue to pay rent at the rate of
Rs.6,000/- per month to the respondent.
Accordingly, impugned order dated 03.11.2012 (Annexure P-
2) passed by learned Additional Sessions Judge, Fatehgarh Sahib is
modified and petition stands disposed of in above terms.
(Paramjeet Singh)
Judge
April 21, 2015
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