Aditya Anand Varma v. The State of Maharashtra & Ors.

7. Mr. Udaipuri, learned Counsel for the Petitioners, strenuously submitted that the learned Magistrate committed a manifest error in rejecting the Application, despite their being no controversy on facts, as regards the non-existence of domestic relationship. An endeavour was made by Mr. Udaipuri to demonstrate that the facts that the Petitioner No.1 and the Respondent No.2 surreptitiously solemnized marriage (despite engagement having been broken off) on 26th November, 2018 and that the said factum of marriage was disclosed to the Petitioner Nos.[2] and 3 on 2nd January, 2019 and in the intervening period, the Respondent No.2 had never resided with the Petitioners at their residence in Mumbai, were all incontrovertible. In this backdrop, it was incumbent upon the learned Metropolitan Magistrate to examine as to whether a prima facie case of domestic violence was made out. In view of the definition of domestic relationship under Section 2(f), of which living together in a shared household, is an inseparable part, in the absence of the prima facie material to demonstrate that the Respondent No.2 had lived with the Petitioner No.1 in a domestic relationship, the learned Magistrate could not have rejected the Application, urged Mr. Udaipuri. It was submitted that the aforesaid inference is inescapable from the reading of the complaint of Respondent No.2 and, thus, the continuation of the said proceeding against the Petitioners, is a sheer abuse of the process of the Court. To bolster up this submission, Mr. Udaipuri placed a strong reliance on a judgment of a learned Single Judge of Chhattisgarh High Court in the case of Nafiza Anjum and Ors. V/s. State of Chhattisgarh and Anr.2.

8. Per contra, Mr. Satyanarayanan, learned Counsel for the Respondent No.2 supported the impugned order. At the outset, the tenability of the Writ Petition was questioned as there is efficacious statutory remedy of appeal under Section 29 of the DV Act, 2005. Inviting the attention of the Court to Section 29, which provides for an appeal to the Court of Session at the instance of the aggrieved person or the Respondent against any order passed by the learned Magistrate, Mr. Satyanarayanan, would urge that on this count alone, the Petition deserves to be dismissed.

9. On merits, Mr. Satyanarayanan urged that the claim of the Petitioners that the Respondent No.2 had never resided with the Petitioners at their residence in Mumbai, is factually incorrect. There are adequate averments in the complaint which make out a prima facie case of the Respondent No.2 having shared the household with the Petitioners. In any event, in view of the expansive interpretation given to the definition of ‘shared household’ under Section 2(s) of the DV Act, 2005, in the case of 2 CRMP No.717 of 2017 dated 26th September, 2018 Satish Chander Ahuja (supra), the Application for dismissal of the proceeding, does not merit countenance. Mr. Satyanarayanan also invited attention of the Court to the allegedly reckless and wild allegations made against the family members of the complainant in paragraph 6 of the written statement. It was submitted that the Petitioners, who have made such wild and reckless allegations, do not deserve hearing, much less, relief in exercise of extra ordinary writ jurisdiction.

10. Mr. Udaipuri, joined the issue on the aspect of the tenability of the Petition despite the existence of the remedy of an Appeal under Section 29 by canvassing a submission that in a case of instant nature, where the facts are uncontroverted, this Court would be justified in exercising the writ jurisdiction, notwithstanding the remedy of statutory appeal. To lend support to this submission, Mr. Udaipuri relied upon an order passed by a learned Single Judge of this Court in the case of Parvez Kapadia and Ors. V/s. Pravin P. Kapadia and Anr.[3] wherein this Court had entertained the Petition and quashed and set aside the domestic violence proceeding on the premise that the allegations made against the Petitioner Nos.[2] and 3 therein, who appeared to be the relatives of the husband of the aggrieved person, on the ground that they were roped in only to cause harassment to them.

11. In all fairness to Mr. Udaipuri, in the aforesaid case of Parvez Kapadia (supra), this Court had not delved into the question of maintainability of the Petition

3 Cri.W.P. No.3652 of 2013 dated 21st April, 2015 despite the availability of a statutory remedy under Section 29 of the DV Act, 2005. The issue was not at all adverted to, much less, decided post a threadbare consideration. It would be hazardous to rely upon the said order as a precedent, since it simply lacks the precedential value.

12. In contrast, Mr. Satyanarayanan was justified in placing reliance on a judgment of another learned Single Judge of this Court in the case of Siddharth Sabharwal V/s. State of Maharashtra[4] wherein this Court had upheld the challenge to the tenability of the Petition in the face of the statutory remedy under Section 29 of the Act, 2005. The observations of the Court in para 19 to 22 are material and hence extracted below:

19. So far an argument of availability of alternate remedy of Appeal is concerned, it would be apt to reproduce herein below Section 29 of the DV Act,

29. Appeal - There shall lie an appeal to the Court of Session within thirty days from the date of which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.

20. It is abundantly clear from the careful perusal of Section 29 of the said Act mentioned hereinabove that, there shall lie an Appeal to the Court of Session within thirty days from the date of the order made by the Magistrate is served upon the aggrieved person or the respondent, as the case may be, whichever is later. Therefore, it was possible for the Petitioner to file the appeal instead of filing the present Petition.

21. According to the learned Counsel appearing for Respondent No.2, second Respondent did follow the mandate of Rule 7 and filed the affidavit in

Form III, as required under DV Act and Rules thereunder. Even if the case of the Petitioner is accepted as it is that, the proper procedure has not been followed by the learned Metropolitan Magistrate or proper affidavit was not filed by Respondent No.2; in that case also, for redressal of said grievance, it is open for the Petitioner to invoke an appellate jurisdiction under Section 29 of the DV Act. The Petitioner also has an opportunity to cause his appearance which reads as under: before the learned Magistrate, if already not caused, and put forth his contentions. Therefore, this Court is of the opinion that, in the peculiar facts and circumstances of the case, when the learned Magistrate has passed the ex-parte order assigning cogent reasons, which are legally sustainable, the interference by this Court in the impugned order, on the ground of non adherence to the procedure as alleged by the Petitioner, is not warranted. This Court is of the opinion that, the Petitioner ought to have availed of an appropriate remedy of appeal, so also it was possible for the Petitioner to approach before the Metropolitan Magistrate Court, in that view of the matter an inference in the impugned order is not called for. In the light of discussion in foregoing paragraphs, without entering into the merits of the matter, this Court is of the opinion that, in view of alternate and efficacious remedy available to the Petitioner or the Petitioner can also contest the proceeding pending before the Metropolitan Magistrate, the Petition deserves no consideration.

22. In that view of the matter, for the reasons recorded herein above, this Court is not inclined to entertain the writ petition. Hence, writ petition is rejected. Rule stands discharged accordingly.”

13. It is true that the existence of an alternative remedy is a self imposed restraint on the exercise of writ jurisdiction. However, where a remedy of statutory appeal is explicitly provided, the Court would not be justified in invoking the writ jurisdiction, unless clear case for exercise of such jurisdiction in the well recognized exceptional situations is made out. These exceptional situations are expounded by the Supreme Court in the case of Whirlpool Corporation V/s. Registrar of Trade Marks, Mumbai and Ors.[5] as under:

14. In the case of Commissioner of Income Tax and Ors. V/s. Chhabil Dass Agarwal[6] the position in law was postulated as under: “15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case[7] and other similar judgments that the High Court will not

7 Thansingh Nathmal V. Supt. Of Taxes, AIR 1964 SC 1419 8 Titaghar Paper Mills Co. Ltd. V/s. State of Orissa, (1983) 2 SCC 433 entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statue under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”

15. In the case at hand, no exceptional circumstance to invoke the writ jurisdiction despite the existence of the remedy of statutory appeal is pleaded, much less, made out. Nonetheless, I am inclined to deal with the Petition, on merits, as well.

16. The thrust of the submission of Mr. Udaipuri was that the Respondent No.2 can neither be said to be an aggrieved person within the meaning of the DV Act, 2005, nor can she be said to have been in a “domestic relationship” with the Petitioners. Consequently, the endeavour of the Respondent No.2 to proceed against the Petitioners with the allegation of domestic violence, is plainly unworthy countenance. The aforesaid submission was sought to be premised on the definitions of “aggrieved persons”, “domestic relationship” and “shared household” in the DV Act, 2005. Under Section 2(a) of the DV Act, 2005, “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. Clause (f) of Section 2 defines “domestic relationship” as under: “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” Clause (s) of Section 2, in turn, defines “shared household” as under: “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. At the first blush, the definitions appear cyclical, in the sense that to qualify as the aggrieved person, a woman ought to be or have been in a domestic relationship with the Respondent. “Domestic relationship” envisaged by sub-clause (f) is a relationship between two persons who live or lived together in a shared household. A household is designated as the shared household, where the aggrieved person lives or has lived in a domestic relationship with the respondent and includes the household, over which the aggrieved person and/or the Respondent exercised the proprietary and possessory right. It also includes the household which may belong to joint family of which the respondent is a member, irrespective of the fact as to whether the respondent or aggrieved person has any right, title or interest in the said household.

18. Mr. Udaipuri, in the light of the aforesaid definitions, would urge that “shared household” is the linchpin of the domestic relationship and the living of the aggrieved person in such a domestic relationship is peremptory. In the facts of the case, according to Mr. Udaipuri, even if the case of the Respondent No.2 is taken at par, it falls short to show that the Respondent No.2 ever shared the household in the sense that the Petitioner No.1 and the Respondent No.2 resided together, at any point of time, at the residence of the Petitioners. In this view of the matter, according to Mr. Udaipuri, the proceeding under Section 12 of the DV Act, 2005 is wholly untenable.

19. Evidently, the edifice of the submission on behalf of the Petitioners is sought to be built on the premise that the Respondent No.2 never resided with the Petitioners at their residence in Mumbai. Consequently, it is sought to be urged that the Respondent No.2 was never in a domestic relationship with the Petitioners to qualify as the aggrieved person. Whether this endeavour of the Petitioners is legally sustainable ?

20. In the case of Satish Chander Ahuja (Supra) a three Judge Bench of the Supreme Court considered the judicial connotation of “shared household” and delved into, inter alia, the following questions: “30.[1] (1) Whether definition of “shared household” under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 (“the 2005 Act”) has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share ? 30.[2] (2) Whether judgment of this Court in S.R.Batra V/s. Taruna Batra[9] has not correctly interpreted the provision of Section 2(s) of the Protection of Women From Domestic Violence Act, 2005 and does not lay down a correct law ?

21. The Supreme Court answered the aforesaid questions as under: “91.[1] The definition of “shared household” given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share. 91.[2] The judgment of this Court in S.R.Batra V/s. Taruna Batra (supra) has not correctly interpreted Section 2(s) of the 2005 Act and the judgment does not lay down a correct law.” (emphasis supplied)

22. In the process, the Supreme Court expounded the import of “shared household”, especially the expression “live or at any stage, has lived in a domestic relationship” under clause (s) of Section 2 of the DV Act, 2005. The observations in paragraphs 59, 66, 67, 68 and 70 are instructive and, thus, extracted below:

(i) it is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly; (ii) the household may belong to a 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; and (iii) the shared household may either be owned or tenanted by the respondent singly or jointly.

66. The observation of this Court in S.R. Batra Vs. Taruna Batra (supra) in paragraphs 24, 25 and 26 were made while considering the expression “person aggrieved lives or at any stage has lived”. This Court observed in paragraph 26 that if the interpretation canvassed by learned counsel for the respondent is accepted that the house of the husband’s relative where respondent resided shall become shared household, shall lead to chaos and would be absurd. The expression “at any stage has lived” occurs in Section 2(s) after the words “where the person aggrieved lives”. The use of the expression “at any stage has lived” immediately after words “person aggrieved lives” has been used for object different to what has been apprehended by this Court in paragraph 26. The expression “at any stage has lived” has been used to protect the women from denying the benefit of right to live in a shared household on the ground that on the date when application is filed, she was excluded from possession of the house or temporarily absent. The use of the expression “at any stage has lived” is for the above purpose and not with the object that wherever the aggrieved person has lived with the relatives of husband, all such houses shall become shared household, which is not the legislative intent. The shared household is contemplated to be the household, which is a dwelling place of aggrieved person in present time.

67. When we look into the different kinds of orders or reliefs, which can be granted on an application filed by aggrieved person, all orders contemplate providing protection to the women in reference to the premises in which aggrieved person is or was in possession. Our above conclusion is further fortified by statutory scheme as delineated by Section 19 of the Act, 2005. In event, the definition of shared household as occurring in Section 2(s) is read to mean that all houses where the aggrieved person has lived in a domestic relationship alongwith the relatives of the husband shall become shared household, there will be number of shared household, which was never contemplated by the legislative scheme. The entire Scheme of the Act is to provide immediate relief to the aggrieved person with respect to the shared household where the aggrieved person lives or has lived. As observed above, the use of the expression “at any stage has lived” was only with intent of not denying the protection to aggrieved person merely on the ground that aggrieved person is not living as on the date of the application or as on the date when Magistrate concerned passes an order under Section 19. The apprehension expressed by this Court in paragraph 26 in S.R. Batra Vs. Taruna Batra (supra), thus, was not true apprehension and it is correct that in event such interpretation is accepted, it will lead to chaos and that was never the legislative intent. We, thus, are of the considered opinion that shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent.

68. The words “lives or at any stage has lived in a domestic relationship” have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not. As noted above, Act 2005 was enacted to give a higher right in favour of woman. The Act, 2005 has been enacted to provide for more effective protection of the rights of the woman who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not. ………….

70. We are of the view that this court in S.R. Batra Vs. Taruna Batra (supra) although noticed the definition of shared household as given in Section 2(s) but did not advert to different parts of the definition which makes it clear that for a shared household there is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband. The observation of this Court in S.R. Batra Vs. Taruna Batra (supra) that definition of shared household in Section 2(s) is not very happily worded and it has to be interpreted, which is sensible and does not lead to chaos in the society also does not commend us. The definition of shared household is clear and exhaustive definition as observed by us. The object and purpose of the Act was to grant a right to aggrieved person, a woman of residence in shared household. The interpretation which is put by this Court in S.R. Batra Vs. Taruna Batra (supra) if accepted shall clearly frustrate the object and purpose of the Act. We, thus, are of the opinion that the interpretation of definition of shared household as put by this Court in S.R. Batra Vs. Taruna Batra (supra) is not correct interpretation and the said judgment does not lay down the correct law.”

23. The aforesaid pronouncement was followed and further explained by the Supreme Court in the case of Prabha Tyagi (supra). In the said case, the High Court had ruled against the aggrieved person holding, inter alia, that in order to establish that the Respondents had committed violence as contemplated under the DV Act, 2005, it was necessary to show that the aggrieved person was sharing the household with the respondents and there was a domestic relationship between the parties. In the said case, the aggrieved person was found to have resided separately from the respondents from the date of her marriage and thus, it was held that, there was no domestic relationship between the aggrieved person and the respondent and, therefore, no relief can be granted under the provisions of the DV Act, 2005.

24. The Supreme Court after noting the expansive definition of the “shared household” expounded in the case of Satish Chander Ahuja (supra), considered it expedient to further explain the import of the expression “every women in a domestic relationship shall have a right to reside in the shared household, irrespective whether she has any right, title or beneficial interest in the same”, appearing in Section 17 of the DV Act, 2005. The Supreme Court held that in the context of Section 17 of the DV Act, 2005, the expression “shared household” cannot be restricted only to household where a person aggrieved resides or at any stage resided in a domestic relationship. Even a woman in a domestic relationship who is not aggrieved, in the sense that who has not been subjected to act of domestic violence by the Respondent, has a right to reside in the shared household.

25. It was further enunciated in clear and explicit terms that the expression “right to reside in a shared household” cannot be restricted to actual residence. In other words, even in the absence of actual residence in the shared household, a woman in a domestic relationship can enforce a right to reside therein. The Supreme Court gave illustrations wherein an aggrieved person can enforce a right of residence even where she has not actually shared the household.

26. The observations of the Supreme Court in paragraphs 35 to 45 are instructive and, hence, extracted below:

27. The aforesaid pronouncement is a complete answer to the submissions sought to be canvassed on behalf of the Petitioners that since the Respondent No.2 had not actually resided with the Petitioners at their residence in Mumbai, the Respondent No.2 was not in a domestic relationship with the Petitioners. The edifice of the submissions, thus, gets dismantled.

28. Before parting, I deem it appropriate to note that the fact that the Petitioner No.1 and the Respondent No.2 solemnized the marriage, is indubitable. The resistance to the continuation of matrimonial relationship, as is evident from the contentions in the Written Statement (paragraphs 6; to which Mr. R. Satyanarayanan takes strong exception) stems from the allegations that one of the parents and other close family members of Respondent No.2 are engaged in human trafficking. This stand of the Petitioners (if found untrue) and the consequent conduct of the Petitioners especially Petitioner Nos.[2] and 3, in resisting and excluding the Respondent No.2 from matrimonial home, has the propensity to fall within the mischief of domestic violence, under the DV Act, 2005

29. The conspectus of aforesaid consideration is that the Petition deserves to be dismissed on the count of maintainability as well as on merits. Hence, the following order: ORDER

(i) The Writ Petition stands dismissed.

(ii) Rule discharged.

(iii) No costs.