The law laid down by the Apex Court in Prabha Tyagi
(supra) will not assist the case of Respondent No 1 as the
Petitioner is the married sister-in-law residing in her own
matrimonial house and it cannot be said that the right of the
aggrieved person to reside in the shared household would
constitute a subsisting domestic relationship with the Petitioner. It would have been a different matter if the Petitioner was unmarried and was residing in the shared household in which case considering the right to reside conferred by Section 17(1) of the D.V. Act, the aggrieved person could have been said to be in
subsisting domestic relationship with the Petitioner even if the
parties had never resided together in the shared household. It is
the right of the aggrieved person to reside in the shared household which constitutes domestic relationship between the aggrieved person and persons residing in the shared household. However, such are not the facts in the instant case as Petitioner is residing separately in her matrimonial house. {Para 20}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST.) NO.18350 OF 2023
Nil V 2. State of Maharashtra
CORAM : SHARMILA U. DESHMUKH, J.
Pronounced on : FEBRUARY 14, 2024
1. Rule. Rule made returnable forthwith and heard finally
with consent of the parties.
2. The present Writ Petition takes exception to the order
dated 16th September, 2023 passed by the Sessions Court in
Criminal Appeal No.690 of 2022, allowing the Appeal and setting
aside the order dated 18th October, 2022 passed by the
Metropolitan Magistrate, 40th Court at Girgaon, Mumbai in
C.C.No.37/DV/ 2022 dismissing the D.V application as against the
present Petitioner.
3. The facts of the case are that the Respondent No.1 had
filed an Application under Section 12 of the Protection of Women
from Domestic Violence Act, 2005 (for short, “D.V. Act”), bearing
C.C.No.37/DV/2022, claiming reliefs under Sections 17, 18, 20
and 22 of the D.V. Act. In the said application, the Respondent No
1 has impleaded her husband, her mother in law, her unmarried
brother in law and the present Petitioner who is the married sister
in law.
4. The cause title of the Application would indicate that the
Respondent No 1’s husband, mother and brother are residing at
address of the present Petitioner is shown of her matrimonial
“XXXXXXXXX Tower” which is the shared-household whereas the
house i.e. Room No.3, Ground floor, Doctor’s Quarters Building.
The Metropolitan Magistrate before proceeding further called upon
the Respondent No.1 to satisfy on the point of maintainability of
the Application under the D.V. Act against the present Petitioner.
The Metropolitan Magistrate considered the definition of the
‘Respondent’ under Section 2(q) and held that the Petitioner
though relative of the Respondent No.1 is residing separately with
her own family and was not in “domestic relationship” as the
Petitioner and the Respondent No.1 never lived together in the
shared household together. The Metropolitan Magistrate by the
order dated 18th October, 2022, dismissed the Application against
the Petitioner and issued notice only to the Respondent Nos.1 to 3
in the said Application.
5. As against the order dismissing the Application against
the Petitioner, Criminal Appeal No.690 of 2022 was filed by the
Respondent No.1 herein, which came to be allowed and the order
of the Metropolitan Magistrate dated 18th October, 2022 was
quashed and set aside.
6. The Sessions Court relied upon the decision of the Apex
Court in the case of Prabha Tyagi v. Kamlesh Devi reported in
(2022) 8 SCC 90 and the decision of this Court (Aurangabad
Bench) in Ali Hamid Daruwala v. Mrs.Nahid Rishad Cooper & Ors.
passed in Criminal Revision Application No.171 of 2022. The
Sessions Court held that the pleadings in the Application filed by
the Respondent No.1 would indicate that the Petitioner had
indulged in acts of domestic violence and as to whether the
Petitioner and the Respondent No.1 have domestic relationship or
not is the question of fact which can be decided at the time of trial
when the parties lead their evidence in support of their case.
7. Heard Mr. Satyavrat Joshi, learned counsel for the
Petitioner and Mr. Subodh Desai, learned counsel for the
Respondent No.1.
8. Mr. Joshi, learned counsel for the Petitioner would submit
that it is the specific case of the Respondent No.1 in the D.V.
application that the Petitioner is the married sister-in-law of the
Applicant, who was married on 20th June, 2021 prior to the
marriage of the Respondent No.1 on 20th November, 2021. He
submits that considering the admitted position of the Petitioner
residing in her matrimonial house, there was no domestic
relationship between the parties within the meaning of Section
2(f) of the D.V. Act, as the parties did not live or even in the past
had lived together in the shared household. Pointing out to the
pleadings in the application, he submits that the allegations made
therein are general allegations without any specific act attributed
to the Petitioner. He submits that the allegation is that the
Petitioner used to spend her whole day at the shared household as
her matrimonial house was nearby and her mother-in-law had
expired. He submits that the said allegation could not be
constituted subsisting domestic relationship.
9. He submits that the Sessions Court without noticing the
facts in the case of Prabha Tyagi (supra) have held that it is not
necessary for the aggrieved person, to have actually resided or
lived with those persons, against whom the allegations are levelled
at the time of seeking relief. He would further submit that the case
of Ali Hamid Daruwala (supra) is distinguishable on facts. In
support, he relies upon the following decisions:
(i) Bharti Anand v. Sushant Anand and Ors. reported
in 2022 SCC OnLine Del 1191;
(ii) Decision of this Court dated 23rd August, 2021 passed
in in Criminal Application (APL) No.434 of 2021 (Nagpur
Bench) in Anil s/o. Baburao Salway and Ors. vs. Pooja
Wd/o Swapnil Salway
(iii) Decision of this Court dated 18th July, 2023 passed
in Criminal Application No.312 of 2023 (Aurangabad
Bench) in Dhananjay Mohan Zombade and Ors. vs.
Gojarbai Mohan Zombade and Ors.
10. Per contra, Mr. Desai, learned counsel for the Respondent
No.1 would submit that the Petitioner has been arraigned in the
application as specific acts constituting domestic violence has been
pleaded. He submits that the proceedings are not malafide which
is borne out from the fact that the other sister in law of the
Respondent No.1 has not been made a party and neither the
present Petitioner’s husband. He tenders across the bar a chart
setting out the allegations made in the various paragraphs of the
application and would urge that the allegations are not general in
nature. He submits that it is the specific pleading that the
Petitioner used to spend her entire day in the shared household. In
support, he relies upon the following decisions;
(i) Prabha Tyagi v. Kamlesh Devi, reported in (2022) 8
SCC 90;
(ii) Decision of this Court dated 1st February, 2024
passed in Crim. Revision Application No.270 of 2023
(Principal Seat) in Rashmi Mehrotra and Anr. v. Manvi
Sheth and Anr.
(iii) Decision of this Court dated 28th February, 2023
passed in Criminal Revision Application No.171 of 2022
(Aurangabad Bench) in Mr.Ali Hamid Daruwala vs.
Mrs.Nahid Rishad Cooper & Ors.
11. Considered the submissions and perused the record.
12. The issue presented for consideration is whether the
Petitioner who is the married sister in law of the aggrieved person
and admittedly residing in her own matrimonial house can be
stated to be in a domestic relationship within the meaning of
Section 2 (f) of the D.V. Act particularly when the marriage of the
Petitioner has taken place prior to the marriage of the Respondent
No.1. While deciding the above issue the incidental issue to be
decided is whether the allegation in the application that the
Petitioner used to spend her whole day in the shared household is
sufficient to constitute domestic relationship between the
aggrieved person and the Petitioner.
13. The relationship between the parties interse is not
disputed neither the factum of the Petitioner’s marriage being
solemnised prior to the marriage of the Respondent No 1. The
separate residence of the Petitioner at her matrimonial house is
also borne out from the address of the Petitioner given in the
domestic violence application which is different from the address
of the shared household.
14. For consideration of the issues noted above, it would be
profitable to refer to the definitions of ‘aggrieved person’,
‘domestic relationship’, ‘respondent’ and ‘shared household’’, as
provided in Section 2(a), 2(f), 2(q) and 2(s) of the D.V. Act, which
reads thus:
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;
(f) “domestic relationship” means a relationship between
two persons who live or have, at any point of time, lived
together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the
nature of marriage, adoption or are family members living
together as a joint family;
(q) “respondent” means any 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:
(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 house hold 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;
15. Plain reading of the above provisions reveals that for
being arrayed as ‘Respondent’ in an application under Section 12
of the D.V. Act, the person has to be in a domestic relationship with
the ‘aggrieved person’ and against whom the aggrieved person has
sought any relief under this Act. The term “domestic relationship”
occupies prominence while construing whether the party is an
aggrieved person and as to whether the other party can be arrayed
as Respondent in D.V. Application. The sine qua non for existence
of “domestic relationship” is living in praesenti or in the past in a
shared household as defined under Section 2 (s) of D.V. Act.
16. The facts of the instant case makes it evident that the
Petitioner and the Respondent No 1 never resided together in the
shared household i.e. the matrimonial house of the Respondent
No.1 at “Siddesh Jyoti Tower”. To salvage the situation, given the
above noted admitted position, Mr. Desai would contend that the
decision of Apex Court in Prabha Tyagi (supra) as well as the
decision in Rashmi Mehrotra (supra) has held that it was not
mandatory for the aggrieved person to have actually resided with
those persons against whom the allegations have been levelled. I
am unable to subscribe to the reading of the decision of the Apex
Court as desired by Mr.Desai. The decision in the case of Prabha
Tyagi (supra) is being read by Mr. Desai dehors the facts of that
case which are completely distinguishable.
17. In that case, the Apex Court was considering the case of
the aggrieved person, who was the daughter-in-law of the
Respondents, and whose husband had expired. The contention of
the in-laws was that the aggrieved person had stayed for only one
night after the marriage at the ancestral house and was thereafter
residing separately with her husband and as such, there was no
domestic relationship between the aggrieved person and the
Respondents. In that context, the Apex Court noted the provisions
of Section 17(1) of the D.V. Act, which confers rights on every
woman in a domestic relationship to reside in the shared
household which is not restricted to actual residence and while
answering the issue has held that as the aggrieved woman being
the daughter-in-law had a right to reside in the shared household
despite the death of her husband in the road accident the right to
reside will be construed as a subsisting domestic relationship
owing to her marriage and she being the daughter-in-law has right
to reside in the shared household.
18. The Issue No.(ii) framed and answered by the Apex Court
reads thus:
“(ii) Whether it is mandatory for the aggrieved person to
reside with those persons against whom the allegations
have been levelled at the point of commission of
violence”.
It is held that it is not mandatory for the aggrieved person
to have actually lived or resided with those persons
against whom the allegations have been levelled at the
time of seeking relief.
19. Mr. Desai, while pointing out the Issue No.(ii) as
answered by the Apex Court has restricted the reading only to the
answer without noticing the reasoning adopted by the Apex Court
and that the Apex Court has held in facts of that case that the
appellant had right to reside in the shared household and being a
victim of domestic violence could enforce her right to live or reside
in the shared household and to seek relief under the D.V. Act
irrespective of whether she actually lived in the shared household.
20. The law laid down by the Apex Court in Prabha Tyagi
(supra) will not assist the case of Respondent No 1 as the
Petitioner is the married sister-in-law residing in her own
matrimonial house and it cannot be said that the right of the
aggrieved person to reside in the shared household would
constitute a subsisting domestic relationship with the Petitioner. It would have been a different matter if the Petitioner was unmarried and was residing in the shared household in which case considering the right to reside conferred by Section 17(1) of the D.V. Act, the aggrieved person could have been said to be in
subsisting domestic relationship with the Petitioner even if the
parties had never resided together in the shared household. It is
the right of the aggrieved person to reside in the shared household which constitutes domestic relationship between the aggrieved person and persons residing in the shared household. However, such are not the facts in the instant case as Petitioner is residing separately in her matrimonial house.
21. I have had also an occasion to deal with the issue of
“shared household” and “domestic relationship” in the case of
Rashmi Mehrotra and Anr. (supra) which has also been relied upon
by Mr.Desai to contend that a view has been taken by this Court
that even if, there is no actual residence in the matrimonial house,
the domestic relationship is established if there is right to reside.
22. The facts in the case of Rashmi Mehrotra and Anr. (supra)
are distinguishable as in that case the in-laws were residing at a
premises known as Viceroy premises and the aggrieved person and
her husband were residing in another premises named as
Gundecha premises. In that case the Gundecha premises were
referred to as shared household and the contention was that as the
parties never resided together at Gundecha premises there was no
domestic relationship. In facts of that case, I have taken a view
relying upon the decision in the case of Prabha Tyagi (supra) that
as the aggrieved person had right to reside in Viceroy premises
which was the shared household in view of Section 17(1) of the
D.V. Act, there was subsisting domestic relationship. In that case
reliance was also placed in the decision of the learned Single
Judge of this Court in Aditya Anand Varma v. State of Maharashtra
reported in (2022) All MR (Cri) 2317. Mr. Desai, would point out
the said decision noted in the case of Rashmi Mehrotra and Anr.
(supra) and would contend that even in that case the Respondent
No.2 therein had not resided in the matrimonial house and the
learned Single Judge have held that the Respondent no.2 was in
domestic relationship. The facts of that case are completely
distinguishable as the Respondent No.2 therein was the aggrieved
person, who had a right to reside in the matrimonial house. It was
in that context that the learned Single Judge held that though not
actually residing the Respondent No.2 was in domestic
relationship. I am afraid the submission of Mr. Desai is based on
incorrect reading of the above two decisions.
23. Now coming to the pleadings in the application, it is
pleaded by the Respondent No 1 that the Petitioner was spending
her whole day in the shared household. The said pleading finds
place in the paragraph describing the interse relationship between
the aggrieved person and the Respondents. The other pleading is
that the Petitioner everyday used to come to the shared household
at 2:00 p.m. and leave at around 8:00 p.m. The marriage of the
Respondent No.1 was solemnized on 20th November, 2021 and has
claimed to be dispossessed on 30th January, 2022. The pleadings
as regards the visits of the Petitioner do not indicate an element of
permanency sufficient enough to constitute domestic relationship
even if it is accepted that the Petitioner was spending her entire
day in the shared household.
24. Apart from the above, even if the allegations in the
application are perused, as summarized in the chart tendered by
Mr. Desai, there is no individual act attributed to the Petitioner.
General sweeping allegations are made against the Petitioner
collectively with the other Respondents and there is no specific
incident qua the Petitioner. The only pleading qua the Petitioner
individually is that the Petitioner every day used to come to their
house by 2:00 p.m. and then she used to leave at around 8:00 p.m.
and she used to pack food for her husband and her family
members from their home. Considering the pleadings in the
application it cannot be said that the Petitioner has subjected the
Respondent No.1 to any act of domestic violence as contemplated
under Section 3 of the D.V. Act. Pertinently, the reliefs in the
application except as regards protection orders are sought against
the husband of the Respondent No 1 which reads thus:
“a. The Protection Order under Section 18 of the
Protection of Women from Domestic Violence Act may be
passed restraining the Respondents from committing any
act of domestic violence to the Applicant.
b. The Order under Section 20 of the said Act may be
passed against the Respondent No.1 directing him to pay
to the Applicant the sum of Rs.1,00,000/- per month
towards her maintenance.
c. The Order under Section 17 of the said Act may be
passed directing the Respondent No.1 to pay the sum of
Rs.75,000/- per month to the Applicant towards the
monthly rent of alternate accommodation.
d. The Compensation order under Section 22 may be
passed against the Respondents No.1 directing him to pay
the sum of Rs.3,00,00,000/- (Rupees Three Crore Only)
as compensation to the Applicant.”
25. As regards the decision in the case of Ali Hamid Daruwala
(supra), in that the case the Applicant, who was discharged was
the full blood brother of the husband and the same contention was
raised that the Applicant was not in the domestic relationship with
the complainant as he never resided or stayed in the shared
household and that he was residing at some other address. As per
my reading of the decision, learned Single Judge of this Court in
that case has not laid down as an absolute proposition of law that
despite the brother-in-law not residing in the shared household,
there was a domestic relationship. The learned Single Judge in
that case considered the averments in the application and held that
such a question would only be decided on full-fledged hearing of
the matter.
26. It will be beneficial to refer to the decision of of this Court
(Aurangabad Bench) in Criminal Application No.4281 of 1999
(Avinash s/o. Rangnath Bhokare vs. State of Maharashtra and
Ors), where in the learned Single Judge was considering an
application under Section 482 of the Code of Criminal Procedure,
1973, filed by the Applicant which included the married sister-inlaw
and has held that it would be sheer abuse of process of law
that merely because they sometimes visited their parental house,
they were sharing the household with the aggrieved person within
the meaning of Section 2(f) of the D.V. Act so as to constitute a
domestic relationship as defined under Section 2(f) of the D.V. Act.
27. In view of the discussion above, in my view, there was no
subsisting domestic relationship between the Petitioner and the
Respondent No 1 and the Petitioner could not have been arrayed
as Respondent in the D.V. application. The mere visits of the
Petitioner to the shared household being devoid of any
permanency is not sufficient and adequate to constitute residence
in shared household. Even otherwise considering the pleadings in
the applications read with the reliefs, there is no case of domestic
violence made out qua the Petitioner.
28. Consequently, the Petition succeeds. The impugned order
dated 16th September, 2023 passed in Criminal Appeal No.690 of
2022, is hereby quashed and set aside and the order of the
Metropolitan Magistrate dated 18th October, 2022 passed in
C.C.No.37/DV/2022 is revived. Rules is made absolute.
( Sharmila U. Deshmukh, J.)
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