Prabha Tyagi v. Kamlesh Devi: Right of Domestic Violence Victim to reside in a ‘Shared Household’ irrespective of her residence therein.

Prabha Tyagi v. Kamlesh Devi: Right of Domestic Violence Victim to reside in a ‘Shared Household' irrespective of her residence therein.

11 Jun, 2022

Author – Stefy Maria Sebastian, Student at St. Joseph’s College of Law, Bangalore.

Abstract

A divisional bench of Supreme Court of India has passed a judgment with respect to section 12, 17 to 20 and 22 of the Domestic Violence Act, 2005 contenting that: firstly, it is not necessary that the respondents must have been living with the aggrieved person at the time when the alleged acts of domestic violence were perpetuated. Second, even in the absence of actual residence in the shared household, a woman in a domestic relationship can enforce her right to reside therein. Third, it is not mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. The author of this blog briefs about the case details, facts, arguments advanced, ratio decidendi, obitur dictum and concludes with a note as to how this judgment is a relief for domestic violence victims especially for abused single mothers in India.

Case Details:-

Case namePrabha Tyagi vs Kamlesh Devi
Citation2022 LiveLaw (SC) 474 | CrA 511 OF 2022
CoramJustice MR Shah and BV Nagarathna
Judgement date12th May 2022
Court nameHon’ble Supreme Court of India
Sections/ rules  appliedSec 2(f), 2(s), 12, 17, 18, 19, 20 and 22 of Domestic Violation Act, 2005.Rule 5 of the Protection of Women from Domestic Violence Rules, 2006
Amicus Curiae for the AppellantShri Gaurav Agrawal
Counsel for  the RespondentShri K.K. Srivastava

Facts of the case  

The aggrieved person had married Kuldeep Tyagi (since deceased). Her family members had given dowry to the family of her deceased husband and Stridhana to the aggrieved person. Following her wedding, the aggrieved person resided at the ancestral home of the respondents.  Thereafter, she began living with her husband along with the respondents in village Jhabreda. The husband of the aggrieved person named Kuldeep Tyagi, died on 15th July, 2005 in a car accident. On 30th March, 2006 the aggrieved person gave birth to a daughter and due to the torture against her by her matrimonial family after her husband’s demise, she stayed at Dehradun, Uttarakhand with her daughter, where she began working as a teacher. She was restrained from enjoying the Stridhana given to her and the Maruti (Alto) car, gifted by her father at the time of her wedding was registered in the name of her deceased husband which got damaged during the   car accident.  The aggrieved person’s mother-in-law had submitted an application before the insurance company, stating that she was the mother of the deceased and was the only legal heir of the deceased and therefore compensation must be given to her solely. There existed a land in village Jhabreda to which the deceased husband of the aggrieved person had right and title. The respondent no. 1- mother-in-law, opposed to the recording of the aggrieved person’s name in the revenue records of the said property and also stated that the child born by aggrieved person was not Kuldeep Tyagi’s daughter. Owing to such objection, the Tehsildar court passed an order of status quo with respect to the said property.

From the aforesaid averments, the aggrieved person approached the Court of the Special Judicial Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and also sought protection orders, residence orders and compensation orders to be passed under various provisions of the said act. After hearing both the sides of the case, the Special Judicial Magistrate- I, Dehradun, allowed the application filed by the aggrieved person and directed the respondents to pay Rs.10,000/- as a monetary compensation for insulting and  defaming the aggrieved person. The Stridhana except the Maruti (Alto) Car, were made available to the aggrieved person.

Aggrieved by this judgement, the respondent no. 1, mother-in-law of the aggrieved person, filed a Criminal Appeal before the Vth Additional Sessions Judge, Dehradun. The First Appellate Court set aside the judgment of the Trial Court. Being aggrieved, the aggrieved person/domestic violence victim preferred a criminal revision petition before the High Court of Uttarakhand at Dehradun. The criminal revision petition was dismissed and the judgment of the Vth Additional Sessions Judge, Dehradun was upheld. The findings of High Court are as follows:

  1. As per Section 12 (1) of the D.V. Act, the aggrieved person had only filed an application alleging domestic violence and since the same was not accompanied by a Domestic Incident report, the conditions of Section 12 (1) of the D.V. Act were not satisfied.
  2. Since the aggrieved person was residing separately from the respondents from the day of her marriage and there was no domestic relationship between the aggrieved person and the respondents, therefore, no relief could be granted under the provisions of the D.V. Act.

As a result, the aggrieved appellant has approached this Court challenging the judgments of the First Appellate Court and the High Court.

Issues

  1. Whether the Domestic Incident Report is mandatory before initiating the proceedings under D.V. Act, in order to invoke sections 18 to 20 and 22 of the said Act?
  2. Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations of domestic violence have been levelled at the point of commission of violence?
  3. Whether there should subsist a domestic relationship between the aggrieved person and the person against whom the relief is claimed?

Arguments for the Appellant

 The learned amicus curiae on behalf of the appellant-aggrieved person contended that

  1. The High Court and the First Appellate Court had erred in setting aside the judgment of the Court of the Special Judicial Magistrate- I. He referred to Sections 2 (f) and 2 (s) of the D.V. Act to contend that an aggrieved person has to be in a ‘domestic relationship’ in order to attract the provisions of the D.V. Act. If such a person is living, or has at any point of time lived together in a ‘shared household’ with the persons against whom allegations of domestic violence have been made, the provisions of the D.V. Act would apply.  It was also argued that the death of the aggrieved person’s husband would not lead to cessation of the domestic relationship. The appellant is in relation with the respondents by virtue of her marriage. The short period, during which the aggrieved person shared a household with the respondents can be considered as a period during which the aggrieved person and the respondents were in a domestic relationship.
  • It was also argued that, it is not mandatory for the aggrieved person to reside, at the point of time when commission of violence, with those persons against whom the allegations of violence have been levelled. In this context, reference was made to the decision of Satish Chander Ahuja vs. Sneha Ahuja – [(2021) 1 SCC 414] where the phrase ‘lives or at any stage has lived’, in section 2 (s) of the D.V. Act was interpreted to mean such household which the aggrieved person shared with the respondents, at the time of filing the application under the D.V. Act or a household which the aggrieved person had been excluded from in the recent past.
  • The High Court had wrongly held that a Domestic Incident Report is required to be mandatorily filed by a Protection Officer before the Magistrate and it is only on the basis of such report that the Magistrate may take cognizance of the commission of domestic violence. Reference was made to Rule 5 of the Protection of Women from Domestic Violence Rules, 2006 and sec 12 of the D.V. Act and it was contended that in cases where an aggrieved person independently makes an application before the Magistrate, there would be no requirement on the part of the Magistrate to consider a Domestic Incident Report. But in cases where the application has been made by a Protection Officer, the same shall be mandatorily accompanied by a Domestic Incident Report and when such report is submitted, the Magistrate is required to consider the same.

Arguments for the Respondent

The submissions of the learned counsel for the respondent are as follows:

  1. The aggrieved person was not in a domestic relationship with the respondents. Post her marriage with Kuldeep Tyagi, she was residing with him and not with the respondents, in Jhabreda. Following the death of Kuldeep Tyagi, the aggrieved person did not reside with the respondents. In view of the said facts, it could be held that ‘domestic relationship’ did not subsist between the parties, and reliefs contemplated under Section 18 to 20 and Section 22 of the D.V. Act cannot be granted.
  2. Section 12 (1) of the act poses a mandatory duty on the Magistrate to consider the Domestic Incident Report submitted under the D.V. Act for initiation of proceedings, and it is only after consideration of the same that the sections 18 to 20 and Section 22 of the D.V. Act may be applied to give benefit to an aggrieved person. The phrase used in the proviso under sec 12(1) of the act  is ‘shall take into consideration any Domestic Incident Report’ which means that the requirement to consider a Domestic Incident Report is a mandatory one, irrespective of whether or not a complainant was made before the Protection Officer prior to filing an application before the Magistrate. Non-consideration of the Domestic Incident Report would render the decision of the Magistrate, a nullity.

Ratio Decidendi,

  1. For issue 1, the Supreme Court held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It also stated that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte and interim as well as a final order under the provisions of the D.V. Act.
  • For issue 2, the Supreme Court held that it is not mandatory for the aggrieved person, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household.
  • For issue 3, the Supreme Court held that there should be a domestic relationship which subsists between the aggrieved person and the person against whom the relief is claimed. Provided that, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting.

Obitur Dictum

  1. With reference to issue 1 the Supreme Court reasoned that, the expression ‘shall’ used in the proviso, of sec 12(1) of the act is restricted to only those cases where a Protection Officer files any Domestic Incident Report or, the service provider files such a report. In such cases the Magistrate has to take into consideration the said report received by him. But if such a report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. The court relied the case of Vijay Maruti Gaikwad vs. Savita Vijay Gaikward – [2018 (1) HLR 295], which held  that if the matter is before the Court and the wife preferred not to approach the Protection Officer, the Court is not bound to call the report of Protection Officer.
  2. With reference to issue 2the Supreme Court reasoned that, in a case where the woman in a domestic relationship is residing elsewhere, she has the right to reside in a shared household. Also a woman who is, or who has been, in a domestic relationship has the right to reside not only in the house of her husband, if it is located in another place which is also a shared household but also in the shared household which may be in a different location in which the family of her husband resides. If a woman has the right to reside in a shared household, she can accordingly enforce her right under Section 17(1) of the D.V. Act.
  • With reference to issue 3the Supreme Court reasoned that, subsisting relationship is not necessary at the time of filing of an application by an aggrieved person. The concept of subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed must be interpreted in a broad and expansive way, so as to encompass not only a subsisting domestic relationship in present but also a past domestic relationship.

Conclusion

The Supreme Court’s order of setting aside the judgment passed by the High Court of Uttarakhand in Criminal Revision as well as the judgment passed by the Vth Additional Sessions Judge, and upholding the order passed by the Special Judicial Magistrate-I has paved way for domestic violence victims to seek relief of residing in a shared household even if they have not actually resided with the persons against whom the allegations have been levelled at the time of seeking relief or was not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act. Across the globe approximately 736 million women are victims of gender based violence.[1] Violence has immediate effect on woman’s health and their children they care for. Therefore, this significant judgement serves relief for single mother who have lost their husband and has fallen into prey of her in laws.

[1] World Health Organization. “Violence against women prevalence estimates, 2018: global, regional and national prevalence estimates for intimate partner violence against women and global and regional prevalence estimates for non-partner sexual violence against women.” (2021).https://www.who.int/news/item/09-03-2021-devastatingly-pervasive-1-in-3-women-globally-experience-violence