Holding

Section 12 of the Protection of Women from Domestic Violence Act, 2005 does not make a Domestic Incident Report mandatory, residence with the respondents is not required, and a subsisting domestic relationship at the time of filing is not essential.

Summary

The appellant, a widow, alleged that after her husband's death she was harassed by her in‑laws and denied her stridhana, prompting her to file an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 seeking protection, residence and compensation orders. The trial magistrate granted partial relief, but the appellate courts set aside the order, holding that the appellant was not residing in the shared household and that a Domestic Incident Report was required. The Supreme Court examined whether a Domestic Incident Report is mandatory, whether the aggrieved must reside with the respondents at the time of alleged violence, and whether a subsisting domestic relationship is essential at the time of filing. It held that Section 12 does not make the report mandatory, that residence with the respondents is not a prerequisite, and that a domestic relationship need not be subsisting at filing, provided it existed at any point. Consequently, the magistrate's order was restored and the appellate judgments were set aside.

Issues considered

Whether consideration of a Domestic Incident Report is mandatory before a magistrate can pass orders under the Protection of Women from Domestic Violence Act, 2005.
Whether the aggrieved person must be residing with the respondents at the time of the alleged domestic violence to claim relief.
Whether a subsisting domestic relationship between the aggrieved person and the respondent is required at the time of filing an application under Section 12.

Legislation cited

Protection of Women from Domestic Violence Act, 2005s. 12, s. 17, s. 18, s. 19, s. 20, s. 22, s. 2(a), s. 2(f), s. 2(s)

Subjects

domestic violenceProtection of Women from Domestic Violence ActDomestic Incident Reportshared householdaggrieved personsubsisting domestic relationshipmagistrate jurisdictionstridhana

Judgment

970 [2022]REPORTS
SUPREME COURT 5 S.C.R. 970 [2022] 5 S.C.R.

A PRABHA TYAGI
v.
KAMLESH DEVI
(Criminal Appeal No. 511 of 2022)
B MAY 12, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Protection of Women from Domestic Violence Act, 2005:
ss.12, 17, 19, 22 – Domestic violence – Allegations of, by the
C aggrieved person-wife – Death of the husband within one month of
the marriage in a car accident – Birth of daughter within a year of
marriage – After the husband’s death, aggrieved person tortured
and harassed by her mother-in-law and her matrimonial family, and
was forced to leave her matrimonial home – She started working to
support herself and her child – Issuance of notice to the respondents
D
to return her stridhana but there was no response – Aggrieved person
then filed an application u/s. 12 before the Magistrate seeking
protection orders, residence orders and compensation orders as also
monetary reliefs – Magistrate partly allowed the application directing
the respondents to pay Rs.10,000/- as monetary compensation for
E insulting and maligning the aggrieved person; that the articles of
Stridhana mentioned in the list, except the Maruti (Alto) Car, to be
given to the aggrieved person; and that the respondents would not
obstruct the aggrieved person and her daughter from enjoying the
property of her husband – First appellate court set aside the order
of the trial court – High Court upheld the same – Sustainability of
F
– Held: Not sustainable – Order passed by the trial court restored.
ss. 12, 18-20 and 22 – Consideration of the Domestic Incident
Report filed by a Protection Officer or service provider by the
Magistrate before passing orders under the D.V. Act, if mandatory
– Held: s. 12 does not make it mandatory for a Magistrate to
G consider a Domestic Incident Report filed by a Protection Officer
or service provider before passing any order under the D.V. Act –
Even in the absence of a Domestic Incident Report, a Magistrate is
empowered to pass both ex parte or interim as well as a final order
under the provisions of the D.V. Act – Aggrieved person can directly
H make an application to the jurisdictional Magistrate by herself or
970
PRABHA TYAGI v. KAMLESH DEVI 971

by engaging the services of an Advocate - Although, the expression A
‘shall’ is used in the proviso to s.12, it is restricted to only those
cases where a Protection Officer or service provider files any
Domestic Incident Report.
ss. 12 and 17 – Allegations of domestic violence by aggrieved
person – Relief under the DV Act - Requirement of such aggrieved B
person to reside with those persons against whom the allegations
have been levelled at the point of commission of violence, if
mandatory – Held: It is not mandatory for the aggrieved person,
when she is related by consanguinity, marriage or through a
relationship in the nature of marriage, adoption or are family
members living together as a joint family, to actually reside with C
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 u/s.17 and such a woman
becomes an aggrieved person, she can seek reliefs under the
provisions of D.V. Act including enforcement of her right to live in a D
shared household.
s. 12 – Relief sought under the DV Act by the aggrieved person
– Requisite relationship between the aggrieved person and the
person against whom the relief is claimed – Held: There should be
a subsisting domestic relationship between the aggrieved person E
and the person against whom the relief is claimed vis-à-vis allegation
of domestic violence – However, it is not necessary that at the time
of filing of an application by an aggrieved person, the domestic
relationship should be subsisting – Even if an aggrieved person is
not in a domestic relationship with the respondent in a shared
household at the time of filing of an application u/s. 12 but has at F
any point of time lived so or had the right to live and has been
subjected to domestic violence or is later subjected to domestic
violence on account of the domestic relationship, is entitled to file
an application u/s 12 of the Act.
Object and purpose of the D. V. Act – Explained. G
Interpretation of statutes: Proviso of the main provision –
Construction and interpretation of – General principles – Explained.
Words and Phrases:
H
972 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Expression ‘aggrieved person’ – Meaning of, in the context
of s. 2(a) of the Protection of Women from Domestic Violence Act,
2005.
Expression ‘domestic relationship’ – Meaning of, in the context
of s. 2(f) of the Protection of Women from Domestic Violence Act,
B 2005.
Expression ‘shared household’ – Meaning of, in the context
of s. 2(s) of the Protection of Women from Domestic Violence Act,
2005.
Expression ‘family members’ – Meaning of, in the context of
C the Protection of Women from Domestic Violence Act, 2005.
Allowing the appeal, the Court
HELD: 1.1 Section 12 of the Protection of Women from
Domestic Violence Act, 2005 does not make it mandatory for a
D 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 is clarified that even in the absence of a
Domestic Incident Report, a Magistrate is empowered to pass
both ex parte or interim as well as a final order under the
provisions of the D.V. Act. [Para 52][1031-G-H; 1032-A]
E
1.2 It is not mandatory for the aggrieved person, when she
is related by consanguinity, marriage or through a relationship in
the nature of marriage, adoption or are family members living
together as a joint family, to actually reside with those persons
against whom the allegations have been levelled at the time of
F 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. [Para 52][1032-B-D]
G
1.3 There should be a subsisting domestic relationship
between the aggrieved person and the person against whom the
relief is claimed vis-à-vis allegation of domestic violence.
However, it is not necessary that at the time of filing of an
H
PRABHA TYAGI v. KAMLESH DEVI 973

application by an aggrieved person, the domestic relationship A
should be subsisting. In other words, even if an aggrieved person
is 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 but has at any point of time lived so or had the
right to live and has been subjected to domestic violence or is
B
later subjected to domestic violence on account of the domestic
relationship, is entitled to file an application under Section 12 of
the Act. [Para 52][1032-E-F]
2. The D. V. Act is a piece of Civil Code which is applicable
to every woman in India irrespective of her religious affiliation
and/or social background for a more effective protection of her C
rights guaranteed under the Constitution and in order to protect
women victims of domestic violence occurring in a domestic
relationship. Therefore, the expression ‘joint family’ cannot mean
as understood in Hindu Law. Thus, the expression ‘family
members living together as a joint family’, means the members D
living jointly as a family. In such an interpretation, even a girl
child/children who is/are cared for as foster children also have a
right to live in a shared household and are conferred with the
right under Sub-Section (1) of Section 17 of the D.V. Act. When
such a girl child or woman becomes an aggrieved person, the
protection of Sub-Section (2) of Section 17 comes into play. [Para E
36][1011-C-E]
Smt. Bharati Naik v. Shri Ravi Ramnath Halarnkar and
Another 2010 SCC Online Bom 243; Vandhana v.
T. Srikanth and Krishnamachari 2007 SCC Online Mad
553 – referred to. F

3. As regards, the issue ‘whether it is mandatory for the
aggrieved person to reside with those persons against whom the
allegations have been levelled’, 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 G
time of seeking relief. 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. If a woman becomes an aggrieved
person or victim of domestic violence, she can seek relief under
the provisions of the D.V. Act including her right to live or reside H
974 SUPREME COURT REPORTS [2022] 5 S.C.R.

A in the shared household under Section 17 read with Section 19 of
the D.V. Act. Thus, the appellant had the right to live in a shared
household i.e., her matrimonial home and being a victim of
domestic violence could enforce her right to live or reside in the
shared household under the provisions of the D.V. Act and to
seek any other appropriate relief provided under the D.V. Act.
B
This is irrespective of whether she actually lived in the shared
household. [Paras 40 and 41][1014-B-D]
4.1 As regards, the issue ‘whether there should be a
subsisting domestic relationship between the aggrieved person
and the person against whom the relief is claimed’, the expression
C ‘domestic relationship’ is an expansive one and means the
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; through a relationship in the nature
of marriage; adoption; are family members living together as a
D joint family. The expressions ‘consanguinity’,‘marriage’ and
‘adoption’ are well understood concepts both in common law as
well as in the respective personal law applicable to the parties.
However, it is relevant to note the expression ‘marriage’ also
encompasses a relationship in the nature of marriage. Secondly,
the expression ‘adoption’ also takes into consideration family
E members living together as a joint family. [Para 42][1014-E-G]
D. Velu Samy v. D. Patchaiammal (2010) 10 SCC 469 :
[2010] 13 SCR 706; Indra Sarma v. V. K. V. Sarma
(2013) 15 SCC 755 : [2013] 14 SCR 1019 – referred
to.
F
4.2 The expression ‘family members living together as a
joint family’ is not relatable only to relationship through
consanguinity, marriage or adoption. The expression ‘joint family’
does not mean a joint family as understood in Hindu Law. It would
mean persons living together jointly as a family. It would include
G not only family members living together when they are related
by consanguinity, marriage or adoption but also those persons
who are living together or jointly as a joint family such as foster
children who live with other members who are related by
consanguinity, marriage or by adoption. Therefore, when any
H
PRABHA TYAGI v. KAMLESH DEVI 975

woman is in a domestic relationship, is subjected to any act of A
domestic violence and becomes an aggrieved person, she is
entitled to avail the remedies under the D.V. Act. [Para 43][1017-
C-E]
4.3 Relationships noted in the DV Act are as under:
(i) Any relationship by consanguinity is a lifelong B
relationship.
(ii) Marriage is also a lifelong relationship unless a
separation by a decree of divorce is ordered by a competent
authority of law.
C
(a) If there is judicial separation ordered by a court of law,
that does not put an end to marriage and hence the domestic
relationship continues between the spouses even though they
may not be actually living together.
(b) In the event of a divorce, marriage would be no longer D
be subsisting, but if a woman (wife) is subjected to any domestic
violence either during marriage or even subsequent to a divorce
decree being passed but relatable to the period of domestic
relationship, the provisions of this D.V. Act would come to the
rescue of such a divorced woman also.
E
(c) That is why, the expression ‘domestic relationship’ has
been defined in an expansive manner to mean 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 marriage.
The word ‘live’ or‘lived’ has been interpretedin the context of
right to reside in Sub-Section (1) of Section 17. The right to live F
in the shared household, even when the domestic relationship
may have been severed for instance when a woman has been
widowed owing to the death of her husband, entitles her to have
remedies under the D.V. Act.
(d) Even when the marital ties cease and there is no G
subsisting domestic relationship between the aggrieved woman
and the respondent against whom relief is claimed but the acts of
domestic violence are related to the period of domestic
relationship, even in such circumstances, the aggrieved woman
who was subjected to domestic violence has remedies under the
D.V. Act. H
976 SUPREME COURT REPORTS [2022] 5 S.C.R.

A (iii) Even in the case of relationship in the nature of
marriage, during which period the woman suffered domestic
violence and is thus an aggrieved person can seek remedies
subsequent to the cessation of the relationship, the only pre-
condition is that the allegation of domestic violence must relate
to the period of the subsistence of relationship in the nature of
B
marriage.
(iv) In the same way, when a girl child is fostered by family
members living together as a joint family and lives or at any point
of time has lived together in a shared household or has the right
to reside in the shared household being a member living together
C as a joint family and has been ousted in any way or has been a
victim of domestic violence has remedies under the D.V. Act.
[Para 43][1017-F-H; 1018-A-H]
4.4 The question raised about a subsisting domestic
relationship between the aggrieved person and the person against
D 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 presentia but also a past domestic relationship.
Therefore, the Parliament has intentionally used the expression
‘domestic relationship’ to mean a relationship between two
E persons who not only live together in the shared household but
also between two persons who ‘have at any point of time lived
together’ in a shared household. [Para 43][1019-A-B]
4.5 The appellant was married to the respondent’s son and
within a month of marriage, he died in a car accident. According
F to the appellant, the respondent and her family members started
harassing the appellant and forced her to leave the matrimonial
home. She started working as a teacher at Dehradun in order to
support herself. That Stridhana was given at the time of her
wedding and that was used by the respondent and her family and
the legal notice demanding return of the articles of Stridhana did
G not receive any response from the respondent and her family.
Even though as on the date of filing of the application before the
Magistrate under Section 12 of the D.V. Act the appellant was
not actually living in the shared household; she nevertheless lived
in a domestic relationship with her husband and further had the
H right to reside in a shared household as a daughter-in-law. The
PRABHA TYAGI v. KAMLESH DEVI 977

appellant-aggrieved person had to leave the shared household A
on account of harassment and mental torture given to her by
respondent - mother-in-law and her family. She had to leave the
same and fend for herself. Thus, as an aggrieved person, the
appellant could not have been excluded from the shared household
as there was no valid reason to do so. As the appellant had a right
B
to reside in the shared household as she was in a domestic
relationship with her husband till he died in the accident and had
lived together with him therefore she also had a right to reside in
the shared household despite the death of her husband in a road
accident. The aggrieved person continued to have a subsisting
domestic relationship owing to her marriage and she being the C
daughter-in-law had the right to reside in the shared household.
[Para 44][1019-C-G]
5.1 Clause (e) of Section 2 defines a Domestic Incident
Report to be a report made in the prescribed form on receipt of
a complaint of domestic violence from an aggrieved person. As D
noted from Section 12, an aggrieved person or a Protection Officer
or any other person on behalf of the aggrieved person including
the service provider vide Sub-Section (1) of Section 10 of the
D.V. Act, may present an application to the Magistrate seeking
one or more reliefs under the D.V. Act. Proviso to Sub-Section
(1) of Section 12 states that before passing any order on such an E
application, the Magistrate shall take into consideration any
Domestic Incident Report received by him from the Protection
Officer or the service provider. Protection Officer as defined in
Clause (n) of Section 2, means an officer appointed by the State
Government under SubSection (1) of Section 8. Sub-Section (2) F
of Section 8 states that the Protection Officers shall, as far as
possible, be women and shall possess such qualifications and
experience as may be prescribed. [Para 46][1020-B-D]
5.2 On a conjoint reading of the said provisions, it is clear
that an aggrieved person on her own or any other person on behalf G
of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under the D.V. Act but
the proviso states that when a Domestic Incident Reported is
received by the Magistrate from the Protection Officer or the

H
978 SUPREME COURT REPORTS [2022] 5 S.C.R.

A service provider, in such a case, the same shall be taken into
consideration. Therefore, when an aggrieved person files an
application by herself or with the assistance of an advocate and
not with the assistance of the Protection Officer or a service
provider, in such a case, the role of the Protection Officer or a
service provider is not envisaged. Obviously, there would be no
B
Domestic Incident Report received by a Magistrate from the
Protection Officer or a service provider. The intention of the
proviso is not that in the absence of a Domestic Incident Report,
the Magistrate cannot pass any order under the D.V. Act
particularly when an application is filed before the Magistrate by
C the aggrieved person by herself or through a legal counsel.
Although, the expression ‘shall’ is used in the proviso, it is
restricted to only those cases where a Protection Officer files
any Domestic Incident Report or, as the case may be, the service
provider files such a report. When a Domestic Incident Report
is filed by a Protection Officer or a service provider, in such a
D
case 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. Therefore, the expression ‘shall’ has to be read in
the context of a Domestic Incident Report received by a
E Magistrate from the Protection Officer or the service provider
as the case may be in which case, it is mandatory for the Magistrate
to consider the report. But, if no such report is received by the
Magistrate then the Magistrate is naturally not to consider any
such Domestic Incident Report before passing any order on the
application. This could be in a case where an aggrieved person
F
herself approaches the Magistrate or the services of an advocate
is engaged to present an application seeking one or more reliefs
under the D.V. Act or for a valid acceptable cause/reason a
Domestic Incident Report has not been filed by a Protection
Officer or a service provider, as the case may be.[Para 47][1020-
G D-H; 1021-A-D]
5.3 The High Court was not right in holding that the
application filed by the appellant was not accompanied by a
Domestic Incident Report and therefore under the proviso to
Sub-Section (1) of Section 12 of the D.V. Act, the Magistrate had
H
PRABHA TYAGI v. KAMLESH DEVI 979

no authority to issue orders and directions in favour of the A
appellant. [Para 48][1021-D-E]
5.4 If Domestic Incident Report has been received by the
Magistrate either from the Protection Officer or the service
provider then it becomes obligatory on the part of the Magistrate
to take note of the said report before passing an order on the B
application filed by the aggrieved party, but if no complaint or
application of domestic violence is received by the Magistrate
from the Protection Officer or the service provider, the question
of considering such a report does not arise at all. The D.V. Act
does not make it mandatory for an aggrieved person to make an
application before a Magistrate only through the Protection Officer C
or a service provider. An aggrieved person can directly make an
application to the jurisdictional Magistrate by herself or by
engaging the services of an Advocate. In such a case, the filing of
a Domestic Incident Report by a Protection Officer or service
provider does not arise. In such circumstances, it cannot be held D
that the Magistrate is not empowered to make any order interim
or final, under the provisions of the D.V. Act, granting reliefs to
the aggrieved persons. The Magistrate can take cognizance of
the complaint or application filed by the aggrieved person and
issue notice to the respondent under Section 12 of the D.V. Act
even in the absence of Domestic Incident Report under Rule 5. E
Thus, the Magistrate has jurisdiction to take cognizance of the
complaint under Section 12 of the D.V. Act in the absence of a
Domestic Incident Report under Rule 5 when the complaint is
not filed on behalf of the aggrieved person through a Protection
Officer or service provider. Such a purposeful interpretation has F
to be given bearing in mind the fact that the immediate relief
would have to be given to an aggrieved person and hence the
proviso cannot be interpreted in a manner which would be
contrary to the object of the D.V. Act which renders Section 12
bereft of its object and purpose.[Para 49][1025-G; 1026-A-E]
G
Nayanakumar v. State of Karnataka ILR 2009 Kar
4295; Abhiram Gogoi v. Rashmi Rekha Gogoi (2011) 4
Gauhati Law Reports 276; Md. Basit v. State of Assam
and Others (2012) 1 Gauhati Law Reports 747; Rahul

H
980 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Soorma v. State of Himachal Pradesh (2012) SCC
Online HP 2574; A.Vidya Sagar v. State of Andhra
Pradesh 2014 SCC Online Hyd 715; Ravi Kumar
Bajpai v. Renu Awasthi Bajpai ILR (2016) MP 302;
Shambhu Prasad Singh v. Manjari 190 (2012) DLT
647; Rakesh Choudhary v. Vandana Choudhary 2019
B
SCC Online J&K 512; Vijay Maruti Gaikwad v. Savita
Vijay Gaikward 2018 (1) HLR 295; Suraj Sharma v.
Bharti Sharma 2016 SCC Online Chh 1825 –
approved.
Rama Singh v. Maya Singh (2012) 4 MPLJ 612; Ravi
C Dutta v. Kiran Dutta and Another 208 (2014) DLT 61
– disapproved.
5.5 The principles that govern the interpretation to be given
to proviso in the context of main provision are the normal function
of a proviso is to except something out of the provision or to
D qualify something enacted therein which, but for the proviso,
would be within the purview of the provision. As a general rule, a
proviso is added to an enactment to qualify or create an exception
to what is in the enactment and ordinarily, a proviso is not
interpreted as stating a general rule. In other words, a proviso
E qualifies the generality of the main enactment by providing an
exception and taking out as it were, from the main enactment, a
portion which, but for the proviso would fall within the main
provision. Further, a proviso cannot be construed as nullifying
the provision or as taking away completely a right conferred by
the enactment. Certain rules are that firstly, a proviso is not to
F be construed as excluding or adding something by implication
i.e., when on a fair construction, the principal provision is clear, a
proviso cannot expand or limit it. Secondly, a proviso has to be
construed in relation to which it is appended i.e., normally, a
proviso does not travel beyond the provision to which it is a
G proviso. A proviso carves out an exception to the main provision
to which it has been enacted as a proviso and to no other. However,
if a proviso in a statute does not form part of a section but is itself
enacted as a separate section, then it becomes necessary to
determine as to which section the proviso is enacted as an
exception or qualification. Sometimes, a proviso is used as a guide
H
PRABHA TYAGI v. KAMLESH DEVI 981

to construction of the main section. Thirdly, when there are two A
possible construction of words to be found in the section, the
proviso could be looked into to interpret the main section.
However, when the main provision is clear, it cannot be watered
down by the proviso. Thus, where the main section is not clear,
the proviso can be looked into to ascertain the meaning and scope
B
of the main provision. The proviso should not be so construed as
to make it redundant. In certain cases, “the legislative device of
the exclusion is adopted only to exclude a part from the whole,
which, but for the exclusion, continues to be a part of it”, and
words of exclusion are presumed to have some meaning and are
not readily recognized as mere surplusage. As a corollary, it is C
stated that a proviso must be so construed that the main
enactment and the proviso should not become redundant or
otiose. This is particularly so, where the object of a proviso
sometimes is only by way of abundant caution, particularly when
the operative words of the enactment are abundantly clear. In
D
other words, the purpose of a proviso in such a case is to remove
any doubt. There are also instances where a proviso is in the
nature of an independent enactment and not merely, an exception
or qualifying what has been stated before. In other words, if the
substantive enactment is worded in the form of a proviso, it would
be an independent legislative provision concerning different set E
of circumstances than what is worded before or what is stated
before. Sometimes, a proviso is to make a distinction of special
cases from the general enactment and to provide it specially. [Para
50][1026-E-H; 1027-A-H; 1028-A-B]
Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai AIR F
1966 SC 459 : [1966] SCR 367; Kaviraj Pandit Durga
Dutt Sharma v. Navaratna Pharmaceutical Laboratories
AIR 1965 SC 980 : [1965] SCR 737; Kedarnath Jute
Manufacturing Co. Ltd. v. The Commercial Tax Officer
and Others AIR 1966 SC 12 : [1965] SCR 626;
Dattatraya Govind Mahajan and Others v. The State of G
Maharashtra and Another AIR 1977 SC 915 : [1977]
2 SCR 790; S. Sundaram Pillai, etc, v. V. R.
Pattabiraman AIR 1985 SC 582 : [1985] 2 SCR 643;
M. Pentiah v. Muddala Veeramallappa AIR 1961 SC
1107 : [1961] SCR 295; Superintendent &
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982 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Remembrancer of Legal Affairs to Govt. of West Bengal
v. Abani Maity AIR 1979 SC 1029 : [1979] 3 SCR 472
– referred to.
Justice G.P. Singh “Principles of Statutory
Interpretation”, 15th Edition – referred to.
B 5.6 In the instant case, when the proviso is read in the
context of the main provision which begins with the words ‘an
aggrieved person or a Protection Officer or any other person on
behalf of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under the D.V. Act’ would
C clearly indicate that the aggrieved person can by herself or
through her advocate approach the Magistrate for seeking any
of the reliefs under the D.V. Act. In such an event, the filing of a
Domestic Incident Report does not arise. The use of the
expression ‘shall’ in the proviso has to be read contextually i.e.,
the Magistrate is obliged to take into consideration any Domestic
D Incident Report received by him when the same has been filed
from the Protection Officer or the service provider in a case where
the application is made to the Magistrate on behalf of the aggrieved
person through a Protection Officer or a service provider. If the
intention of the Parliament had been that filing of the Report by
the Protection Officer is a condition precedent for the Magistrate
E to act upon the complaint filed by an aggrieved person even when
she files it by herself or through her advocate then it would have
been so expressed. But a conjoint reading of Sub-Section (1) of
Section 12 with the proviso does not indicate such an intention.
Thus, the plenitude of power under Section 12 of the D.V. Act is
F accordingly interpreted and pre-requisite for issuing notice to
the respondent on an application filed by the aggrieved person
without the assistance of a Protection Officer or service provider
and thus there being an absence of Domestic Incident Report,
does not arise. If a contrary interpretation is to be given then the
opening words of Sub-Section (1) of Section 12 would be rendered
G otiose and it would be incumbent for every aggrieved person to
first approach a Protection Officer or a service provider, as the
case may be, and get a Domestic Incident Report prepared and
thereafter to approach the Magistrate for reliefs under the D.V.
Act, which is not the intention of the Parliament. [Para 51][1030-
G-H; 1031-A-E]
H
PRABHA TYAGI v. KAMLESH DEVI 983

6. The judgment passed by the High Court as well as the A
by the Sessions Judge are set aside and the order passed by the
Judicial Magistrate is affirmed. [Para 53][1032-G-H]
Satish Chander Ahuja v. Sneha Ahuja (2021) 1 SCC
414; Juveria Abdul Majid Patni v. Atif Iqbal Mansoori
and Another (2014) 10 SCC 736 : [2014] 10 SCR 479; B
V. D. Bhanot v. Savita Bhanot (2012) 3 SCC 183 :
[2012] 1 SCR 867; Krishna Bhattacharjee v. Sarathi
Choudhury and Another (2016) 2 SCC 705 : [2015]
14 SCR 65; Saraswathy v. Babu (2014) 3 SCC 712 :
[2013] 12 SCR 914; Rashmi Kumar v. Mahesh Kumar
Bhada (1997) 2 SCC 397 : [1996] 10 Suppl. SCR 347; C
Ajay Kumar v. Lata alias Sharuti and Others (2019) 15
SCC 352 : [2019] 6 SCR 283; Satish Chander Ahuja
v. Sneha Ahuja (2021) 1 SCC 414; S. R. Batra v. Taruna
Batra (2007) 3 SCC 169 : [2006] 10 Suppl. SCR 1206;
Harbhajan Singh v. Press Council of India AIR 2002 D
SC 1351 : [2002] 2 SCR – referred to.
Case Law Reference
(2021) 1 SCC 414 referred to Para 16(iii)
[2014] 10 SCR 479 referred to Para 21(a) E
[2012] 1 SCR 867 referred to Para 21(a)
[2015] 14 SCR 65 referred to Para 21(b)
[2013] 12 SCR 914 referred to Para 21(b)
[1996] 10 Suppl. SCR 347 referred to Para 21(b) F
[2019] 6 SCR 283 referred to Para 21(c)
(2021) 1 SCC 414 referred to Para 21(d)
[2006] 10 Suppl. SCR 1206 referred to Para 21(d)
[2002] 2 SCR 369 referred to Para 26 G
[2010] 13 SCR 706 referred to Para 42(a)
[2013] 14 SCR 1019 referred to Para 42(b)
[1966] SCR 367 referred to Para 49(d)(i)
H
984 SUPREME COURT REPORTS [2022] 5 S.C.R.

A [1965] SCR 737 referred to Para 49(d)(ii)
[1965] SCR 626 referred to Para 49(d)(iii)
[1977] 2 SCR 790 referred to Para 49(d)(iv)
[1985] 2 SCR 643 referred to Para 49(d)(v)
B [1961] SCR 295 referred to Para 49(f)(i)
[1979] 3 SCR 472 referred to Para 49(f)(ii)
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
511 of 2022.
C From the Judgment and Order dated 23.07.2019 of the High Court
of Uttarakhand at Nainital in Criminal Revision No. 186 of 2014.
Dr. Vinod Kumar Tewari, Gaurav Agrawal, Advs. for the Appellant.
K. K. Srivastava, Kumar Rajeev, S. K. Verma, Advs. for the
Respondent.
D
The Judgment of the Court was delivered by
NAGARATHNA, J.
The aggrieved person, being the appellant herein, who had filed
Miscellaneous Case No. 78 of 2007 on the file of the Court of Special
E Judicial Magistrate- I, Dehradun, has assailed judgment dated 23rd July,
2019 passed by the High Court of Uttarakhand at Nainital, in Criminal
Revision No. 186 of 2014, by which the judgment dated 11 th July, 2014
passed by the Vth Additional Sessions Judge, Dehradun, in Criminal
Appeal No. 53 of 2011 setting aside the order passed by the Special
F Judicial Magistrate-I, was sustained.
2. For the sake of convenience, the parties herein shall be referred
to in terms of their rank and status before the Trial Court.
Factual Background:
3. According to the aggrieved person, her marriage with Kuldeep
G Tyagi (since deceased) son of late Vishnudutt Tyagi was solemnized on
18th June, 2005 at Haridwar District, Uttarakhand as per Hindu rites and
rituals and in connection with the marriage, the family members of the
aggrieved person had given dowry to the family of her deceased husband
and Stridhana to the aggrieved person. For the period immediately
H following the wedding, the aggrieved person was residing at the ancestral
PRABHA TYAGI v. KAMLESH DEVI 985
[B. V. NAGARATHNA, J.]

home of the respondents along with her mother-in-law-respondent no.1, A
two brothers-in-law, wife of her husband’s elder brother and six sisters-
in-law. Thereafter, the aggrieved person began living with her husband
and the respondents in village Jhabreda. That Kuldeep Tyagi, husband
of the aggrieved person died on 15th July, 2005 in a car accident and
after the Terhanvi ceremony of her husband, the aggrieved person was
B
constrained to reside initially at Delhi, at her father’s house. That
immediately prior to the death of her husband, the aggrieved person had
conceived a child.
4. That on 30th March, 2006 the aggrieved person gave birth to a
daughter and owing to the misbehavior and torture meted out to her by
her matrimonial family after her husband’s death, she moved to Dehradun, C
Uttarakhand with her daughter, where she began working as a teacher
to support herself and her child. That the Stridhana given to her at the
time of her wedding was never allowed to be enjoyed by her and even
following her exit from her matrimonial home, the Stridhana was being
used by her in-laws, respondent nos. 1 to 6. That the aggrieved person D
had sent a legal notice dated 22nd November, 2006, requesting them to
return the articles of Stridhana, however, there was no response to the
same.
5. That the father of the aggrieved person had gifted her a Maruti
(Alto) car, at the time of her wedding and the same was registered in the E
name of her deceased husband. Owing to the accident that her husband
had met with, resulting in his death, the said car had also been damaged.
That the aggrieved person’s mother-in-law had submitted an application
before the insurance company, National Insurance Company which was
processing the claim for damage caused to the car, stating therein that
she was the mother of the deceased and was the only legal heir of the F
deceased and therefore any compensation may be made in her favour.
6. That there exists a land in village Jhabreda to which the
deceased husband of the aggrieved person had right and title. That
respondent no. 1- mother-in-law, on being instigated by the other
respondents objected to the recording of the aggrieved persons’ name in G
the revenue records of the said property. Respondent no. 1 objected by
stating that the child borne by aggrieved person was not Kuldeep Tyagi’s
daughter. Owing to such objection, the Court of Tehsildar passed an
order of status quo with respect to the said property.
H
986 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 7. That the respondents, on several occasions threatened the
aggrieved person that she would face dire consequences if she ever
attempted to claim any right over her husband’s property. That the
respondents, having no sympathy towards the aggrieved person who
had, while pregnant, lost her husband in a fatal accident, tortured her
mentally by denying that her child was the daughter of Kuldeep Tyagi.
B
8. With the aforesaid averments, the aggrieved person approached
the Court of the Special Judicial Magistrate under Section 12 and sought
protection orders, residence orders and compensation orders to be passed
under various provisions of the Protection of Women from Domestic
Violence Act, 2005 (for short, the ‘D.V. Act’). Further, prayers were
C also made for monetary reliefs under Section 22 of the D.V. Act.
9. In response to the aforesaid application filed by the aggrieved
person, the respondents filed a joint written statement to the effect that
the marriage of the aggrieved person with Kuldeep Tyagi was solemnized
at a simple ceremony in Haridwar, on 18th June, 2005. That no dowry or
D articles of Stridhana were handed over to the respondents at the time
of the ceremony, therefore, the question of returning the same to the
aggrieved person by the respondents would not arise. That the aggrieved
person could not have conceived a child through the deceased in a span
of twenty-eight days from the date of the marriage and as such a claim
E was not only false but unnatural.
10. That the respondents had, in no way, tortured the aggrieved
person. That her statement to the effect that she was residing in the
ancestral home of her husband, during the period immediately following
her wedding, was untrue as she only stayed with the respondents for
F one night after her marriage.
11. As regards the Maruti (Alto) car, it was stated that the same
was not a part of the Stridhana given in favour of the aggrieved person,
but was purchased by Kuldeep Tyagi, after borrowing money for this
purpose from respondent no. 1.
G That the aggrieved person had, by presenting false facts had got
her name entered as the legal heir of Kuldeep Tyagi in relation to a land
owned by him. That in the said application dated 31st March, 2006, she
had stated that Kuldeep Tyagi had no issue or heirs. That an order of
status quo was obtained by respondent no. 1 by presenting the correct
facts before the Tehsildar.
H
PRABHA TYAGI v. KAMLESH DEVI 987
[B. V. NAGARATHNA, J.]

It was averred that the respondents had not committed any acts A
of domestic violence. In that background, the respondents prayed before
the Trial Court that the application filed by the aggrieved person-victim
be dismissed.
12. The Special Judicial Magistrate- I, Dehradun, by judgment
dated 12th May, 2011 partly allowed the application filed by the aggrieved B
person and directed the respondents to pay Rs.10,000/- as monetary
compensation for insulting and maligning the aggrieved person. The
articles of Stridhana mentioned in the list enclosed with the application,
except the Maruti (Alto) Car, were to be made available to the aggrieved
person at her Dehradun residence. It was also directed that the
respondents shall not obstruct the aggrieved person and her daughter C
from enjoying the property of late Kuldeep Tyagi.
The salient findings of the Trial Court are as under:
i) As regards the contention of the respondents to the effect
that it was unnatural that the aggrieved person was D
impregnated within twenty-eight days was unnatural, the
Trial Court observed that there was an absolute possibility
of such fact. In holding so, the Trial Court relied on the
submission of the respondents to the effect that the
aggrieved person left their ancestral home on 20th June,
2005 to live independently with her husband. In light of the E
said submission, the Trial Court noted that the aggrieved
person lived with her husband till the day of his death and
therefore there was nothing unnatural about her pregnancy
and therefore, the contention of the respondents that the
daughter was not Kuldeep Tyagi’s, was baseless. F
ii) That no adverse inference could be drawn from the fact
that the aggrieved person had wrongly stated in the
application filed before the Tehsildar to the effect that
Kuldeep Tyagi had no heirs other than the aggrieved person,
as she had no knowledge of such statement. G
iii) That allegation pertaining to the paternity of the aggrieved
person’s daughter was likely to have caused emotional harm
to her, thereby also affecting her profession as a teacher.
In that light, it was observed the aggrieved person was a
victim of domestic violence under Section 1 (d) (iii) of the
H
988 SUPREME COURT REPORTS [2022] 5 S.C.R.

A D.V. Act. A symbolic amount of Rs.10,000/- was awarded
to compensate the victim for emotional loss suffered.
iv) That the victim left her matrimonial home thirteen days after
her husband died, owing to repeated taunts and abuses by
the respondents. That no cross examination was conducted
B by the respondents to controvert this fact. Therefore, it was
established that the victim did not leave her matrimonial
home of her own will, but because of conduct of the
respondents.
v) That the aggrieved person had not re-married, following
C the death of Kuldeep Tyagi. Therefore, she continued to
remain the daughter-in-law of the respondents’ family and
had rights over the property of her deceased husband. Relief
was granted under Section 19 of the D.V. Act, for
independent residence with liberty to visit her husband’s
house since there was no evidence to show that the
D matrimonial home of the victim was in the sole ownership
of the mother-in-law of the victim. That she would be entitled
to enjoy the same facilities as enjoyed by her deceased
husband during his lifetime. The respondents were restrained
from disturbing the rights of the victim to her husband’s
E property. However, it was clarified that the Judicial
Magistrate had no jurisdiction to pass any orders in relation
to getting the name of the victim entered in the revenue
records.
vi) That no evidence was put forth by the respondents which
F would establish that no Stridhana was given at the time of
the marriage. Therefore, all articles of Stridhana as listed
in the list annexed with the application filed before the
Magistrate, were directed to be returned to the victim.
13. Being aggrieved, respondent no. 1, mother-in-law of the
G aggrieved person, preferred Criminal Appeal No. 53 of 2011 before the
Vth Additional Sessions Judge, Dehradun. By judgment dated 11 th July,
2014, the First Appellate Court set aside the judgment of the Trial Court,
dated 12th May, 2011.
The relevant findings of the First Appellate Court are encapsulated
as under:
H
PRABHA TYAGI v. KAMLESH DEVI 989
[B. V. NAGARATHNA, J.]

i) That the aggrieved person never lived in the shared A
household belonging to the respondents, situated in Jhabreda,
but lived in Roorkee with her husband. That the aggrieved
person maintained a house in Roorkee and used to travel
daily to Jhabreda for work, but never shared a household
with the respondents.
B
ii) Given that the aggrieved person never lived in Jhabreda
with the respondents, it was improbable that her family had
delivered the articles of Stridhana to the respondents in
Jhabreda. That the possession of Stridhana was not vested
with the respondents. Therefore, no question would arise
as to the respondents disturbing or using the Stridhana, C
which in fact, was never in their possession.
iii) That the aggrieved person had not led any evidence to
establish that following the death of her husband, she had
lived in Jhabreda with the respondents for thirteen days.
That she continued to live at Roorkee even after the death D
of her husband. That in the absence of any evidence to
demonstrate that the aggrieved person ever lived with the
respondents, no case was made out for domestic violence
on the part of the respondents. That the aggrieved person
was not entitled to any relief in terms of a residence order, E
till such time as she is allotted a specific share following
legal partition of the property held in joint ownership of her
deceased husband and the respondents.
iv) That in the absence of any evidence as to the delivery of
Stridhana to the respondents, no orders could be passed F
for restoration of possession of Stridhana articles in favour
of the aggrieved person.
14. Aggrieved by the judgment of the First Appellate Court, the
aggrieved person preferred a criminal revision petition before the High
Court of Uttarakhand at Dehradun. By judgment dated 23rd July, 2019, G
the criminal revision petition was dismissed and the judgment of the Vth
Additional Sessions Judge, Dehradun was sustained.
The following findings were recorded by the High Court in the
impugned judgment:
H
990 SUPREME COURT REPORTS [2022] 5 S.C.R.

A i) That as per the provisions of Section 12 (1) of the D.V.
Act, a Domestic Incident Report is required to be
mandatorily filed by a Protection Officer or a service
provider before the Magistrate and the Magistrate may take
cognizance of an offence under the D.V. Act on the basis
of such report. That in the present case, the aggrieved
B
person had only filed an application alleging domestic
violence and since the same was not accompanied by a
report, the conditions of Section 12 (1) of the D.V. Act
were not satisfied.
ii) That in order to establish that the respondents had committed
C violence as contemplated under the D.V. Act, it is required
that the aggrieved person was sharing a household with the
respondents and there was a domestic relationship between
the parties. That the aggrieved person was residing
separately from the respondents from the day of her
D marriage. That 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.
iii) That it could not be accepted that all articles of Stridhana
E which were purchased in Roorkee as per the bills presented
in this regard, were delivered to the respondents in
Jhabreda.
The aggrieved appellant has approached this Court challenging
the judgments of the First Appellate Court and the High Court.
F Submissions:
15. We have heard Shri Gaurav Agrawal, learned amicus curiae
on behalf of the appellant-aggrieved person and Shri K.K. Srivastava,
learned counsel appearing on behalf of the respondent. We have perused
the material on record.
G
16. The submissions of Shri Gaurav Agrawal, learned amicus
curiae, are as under:
(i) At the outset, he contended that the High Court and the
First Appellate Court had erred in setting aside the judgment
of the Court of the Special Judicial Magistrate-I, Dehradun,
H
PRABHA TYAGI v. KAMLESH DEVI 991
[B. V. NAGARATHNA, J.]

dated 12th May, 2011 on the primary ground that aggrieved A
person was not sharing a household with the respondents
and there was no domestic relationship between the parties
and therefore, no relief could be granted under the provisions
of the D.V. Act. Elaborating on the said contention, learned
amicus curiae for the appellant-aggrieved person referred
B
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’
as defined under the D.V. Act 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 C
violence have been made, the provisions of the D.V. Act
would apply. That in the present case, the aggrieved person,
had, following the death of her husband on 15th July, 2005,
resided in the family home of the respondents at Ulheda
and resided there for a period of thirteen days. That such
D
residence could not continue owing to the conduct of the
respondents who subjected the aggrieved person to mental
abuse, causing her to leave the shared household. That
attempts made by the aggrieved person to re-enter the
shared household were obstructed by the respondents.
Having regard to the short span of her marital life owing to E
the death of her husband and the fact that she was denied
entry and residence at the shared household following her
husband’s death, the length of the period during which
household was shared by the parties, ought not be a
consideration having the effect of denying the protection of
F
the D.V. Act to the aggrieved person.
(ii) It was next contended that the death of the aggrieved
person’s husband would not result in cessation of the
domestic relationship. That the appellant-aggrieved person
would continue to be related to the respondents by virtue of
her marriage. That the only factor disabling the aggrieved G
person from continuing in a domestic relationship with the
respondents was the conduct of the respondents.
Nevertheless, she would be eligible to claim protection under
the D.V. Act because the definition of ‘domestic relationship’
as provided under Section 2 (s) of the D.V. Act which H
992 SUPREME COURT REPORTS [2022] 5 S.C.R.

A includes not only a relationship between two people who
presently live together in a shared household, but also extends
to persons who have, at any point of time lived together in
a shared household. That the short period, following the
death of her husband, during which the aggrieved person
shared a household with the respondents would qualify as
B
a period during which the aggrieved person and the
respondents were in a ‘domestic relationship’.
(iii) It was submitted 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
C of violence have been levelled. In this context, reference
was made to the decision of this Court in Satish Chander
Ahuja vs. Sneha Ahuja – [(2021) 1 SCC 414] wherein
the phrase ‘lives or at any stage has lived’, as appearing in
Section 2 (s) of the D.V. Act was interpreted to mean such
D 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. In light of the said
decision, it was urged that it is not necessary that the
respondents must have been living with the aggrieved person
E at the time when the alleged acts of domestic violence were
perpetuated as there is no statutory requirement to this
effect. That subject to the caveat that an aggrieved person,
has, at some point, shared a household with the persons
who have allegedly committed acts of domestic violence,
F then any act of domestic violence committed by such persons
during the period in which the parties were living in the
shared household, or even subsequent to such period, would
entitle the aggrieved person to approach a competent Court
under Section 12 of the D.V. Act.
G (iv) It was urged that the provisions of the D.V. Act must be
interpreted in a manner, so as to, ensure that the protection
granted to women under the D.V. Act is made available to
them in the widest amplitude. That restricting the scope of
domestic violence cases, only to matters wherein domestic
violence was committed against the aggrieved person, while
H
PRABHA TYAGI v. KAMLESH DEVI 993
[B. V. NAGARATHNA, J.]

she was residing at the shared household, would not A
sufficiently achieve the objects of the enactment.
(v) Learned amicus curiae, Shri Gaurav Agrawal, next
contended that the High Court had erred in holding that a
Domestic Incident Report is required to be mandatorily filed
by a Protection Officer before the Magistrate and it is only B
on the basis of such report that the Magistrate may take
cognizance of the commission of domestic violence. Learned
amicus curiae for the appellant-aggrieved person referred
to Rule 5 of the Protection of Women from Domestic
Violence Rules, 2006 (for short, the ‘D.V. Rules’) which
requires a Protection Officer to prepare a Domestic Incident C
Report on receiving a complaint of domestic violence and
submit the same to the Magistrate and forward copies of
the Report to a police officer in charge of the police station
having jurisdiction over the area were the alleged acts of
domestic violence have taken place, and to the service D
providers in the area. Having regard to the said Rule, it
was contended that the requirement to prepare a Domestic
Incident Report arises only in cases where a complaint has
been made by an aggrieved person, to a Protection Officer.
That a Magistrate who entertains an application submitted
under Section 12 of the D.V. Act, is not required by any E
statutory provision, to call for a Domestic Incident Report.
That an application under Section 12, may be disposed of
even without requiring a Domestic Incident Report to be
submitted. That the only requirement of Section 12, is that,
in the event that a complaint is made to a Protection Officer F
and such officer has submitted a report, the Magistrate shall
consider the same. That in cases where a complaint is not
made by a Protection Officer, there arises no reason to
specifically call for and consider a Domestic Incident
Report.
G
(vi) In this context, reference was made to Section 12 of the
D.V. Act which enables an aggrieved person or a Protection
Officer to make an application before the Magistrate
seeking reliefs under the D.V. Act. It was submitted that in
cases where an aggrieved person independently makes an
H
994 SUPREME COURT REPORTS [2022] 5 S.C.R.

A application before the Magistrate, there would be no
requirement on the part of the Magistrate to consider or
call for a Domestic Incident Report. However, 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
B
Magistrate is required to consider the same.
(vii) It was submitted that the statutory intention could not be to
the effect that the Magistrate shall not entertain proceedings
or grant relief under Sections 18 to 20 and Section 22 of the
D.V. Act in the absence of the Domestic Incident Report.
C That such an interpretation would defeat the purposes of
the D.V. Act as it would act as a bar against the Magistrate
to pass orders in the absence of the report.
(viii) It was contended that the High Court and the First Appellate
Court had failed to view the matter in the true and correct
D perspective, having regard to the purpose of enactment of
the D.V. Act. In the above backdrop, it was prayed that the
judgments of the High Court and the First Appellate Court
may be set aside and the judgment of the Trial Court may
be restored.
E 17. Per contra, learned counsel for the respondent supported the
impugned judgments of the High Court and the First Appellate Court
and contended that the said judgments are justified and hence, do not
call for interference by this Court by submitting as under :
(i) It was denied that the aggrieved person was in a domestic
F relationship with the respondents. It was submitted that the
aggrieved person, following her marriage with Kuldeep
Tyagi, was residing with him in Roorkee District, Haridwar
and not with the respondents, in Jhabreda. That her place
of residence, had been recorded as Roorkee, in the
G application filed under the D.V. Act before the Magistrate,
as well as in the application submitted before the revenue
authorities for mutation of her name in the revenue records
pertaining to the property belonging to her deceased
husband. That even following the death of Kuldeep Tyagi,
the aggrieved person did not reside with the respondents.
H
PRABHA TYAGI v. KAMLESH DEVI 995
[B. V. NAGARATHNA, J.]

That the aggrieved person was working as a teacher and A
there was no evidence led to establish that she had taken
leave from her job and resided in Jhabreda for thirteen days
following the death of her husband.
It was contended that in view of the said facts, it
could not be held that a ‘domestic relationship’ subsisted B
between the parties, on the basis of which relief could be
claimed under the D.V. Act. That based on the very
nomenclature of the D.V. Act, any violence alleged under
the D.V. Act must always be in relation to a ‘domestic
relationship’ and therefore, subsistence of a domestic
relationship would be a precondition to invoke Section 12 C
of the D.V. Act and grant reliefs contemplated under Section
18 to 20 and Section 22 of the D.V. Act.
(ii) It was submitted that the facts, as narrated by the aggrieved
person in the application made before the Magistrate are
inaccurate and provide a fabricated version of events. D

(iii) It was next contended that the aggrieved person had failed
to prove that her family had delivered possession of articles
of Stridhana to the respondents. That the receipts of the
articles purchased, would show that the articles were
purchased in Roorkee and therefore, it would be rather E
improbable that the same were delivered to the respondents
at their residence in Jhabreda. It was therefore urged that
no assumption could be made that the Stridhana stood in
the custody of the in-laws of the aggrieved person.
(iv) It was further urged that in the absence of a Domestic F
Incident Report, the Magistrate could not have taken
cognizance of the matter. That Section 12 (1) casts 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 G
that the substantive provisions of the Sections 18 to 20 and
Section 22 of the D.V. Act may be applied to extend benefit
of the same to an aggrieved person. In support of this
contention, Shri K.K. Srivastava referred to the language
of Section 12 (1) to contend that the phrase used in the
H
996 SUPREME COURT REPORTS [2022] 5 S.C.R.

A proviso is ‘shall take into consideration any Domestic
Incident Report’ thereby suggesting 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. That non-consideration of the
B
Domestic Incident Report would strike at the very root of
the matter and such irregularity would render the decision
of the Magistrate, a nullity.
(v) It was lastly submitted that proceedings under the D.V. Act
were ill-motivated, misconceived and were initiated with
C the sole intention to harass the respondents and more
specifically, respondent no. 1, being the mother-in-law of
the aggrieved person, aged over 80 years. That the High
Court and First Appellate Court rightly set aside the decision
of the Magistrate and held that no relief could be granted to
D the aggrieved person under the D.V. Act. That the judgments
of the High Court and First Appellate Court are based on a
true and correct appreciation of the law, as applicable to
the facts of the present case and the same may not be
interfered with by this Court.
E 18. Learned counsel for the respective parties have relied upon
certain judgments of this Court and various High Courts in support of
their submissions. The same shall be referred to later.
Points for Consideration:
19. The submissions of the learned amicus curiae /counsel for
F the respective sides were on the following points for consideration which
were raised vide order dated 11th February, 2022:
“(i) Whether the consideration of Domestic Incident Report is
mandatory before initiating the proceedings under D.V. Act, in
order to invoke substantive provisions of Sections 18 to 20 and 22
G of the said Act?
(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?

H
PRABHA TYAGI v. KAMLESH DEVI 997
[B. V. NAGARATHNA, J.]

(iii) Whether there should be a subsisting domestic relationship A
between the aggrieved person and the person against whom the
relief is claimed?”
Legal Framework:
20. For an easy and immediate reference, the following provisions
of the Protection of Women from D.V. Act are extracted as under: B

“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 C
have been subjected to any act of domestic violence by the
respondent;
xxx
(e) ‘domestic incident report’ means a report made in the prescribed
form on receipt of a complaint of domestic violence from an D
aggrieved person;
(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, E
adoption or are family members living together as a joint family;
xxx
(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 F
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 G
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.”

H
998 SUPREME COURT REPORTS [2022] 5 S.C.R.

A “3. Definition of domestic violence.—For the purposes of this
Act, any act, omission or commission or conduct of the respondent
shall constitute domestic violence in case it—
(a) harms or injures or endangers the health, safety, life, limb or
well-being, whether mental or physical, of the aggrieved person
B or tends to do so and includes causing physical abuse, sexual abuse,
verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person
with a view to coerce her or any other person related to her to
meet any unlawful demand for any dowry or other property or
C valuable security; or
(c) has the effect of threatening the aggrieved person or any person
related to her by any conduct mentioned in clause (a) or clause
(b); or
(d) otherwise injures or causes harm, whether physical or mental,
D to the aggrieved person. Explanation I.—For the purposes of this
section,—
(i) ‘physical abuse’ means any act or conduct which is of such a
nature as to cause bodily pain, harm, or danger to life, limb, or
health or impair the health or development of the aggrieved person
E and includes assault, criminal intimidation and criminal force;
(ii) ‘sexual abuse’ includes any conduct of a sexual nature that
abuses, humiliates, degrades or otherwise violates the dignity of
woman;
(iii) ‘verbal and emotional abuse’ includes-
F
(a) insults, ridicule, humiliation, name calling and insults or ridicule
specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom
the aggrieved person is interested;
G (iv) ‘economic abuse’ includes—
(a) deprivation of all or any economic or financial resources to
which the aggrieved person is entitled under any law or custom
whether payable under an order of a court or otherwise or which
the aggrieved person requires out of necessity including, but not
H
PRABHA TYAGI v. KAMLESH DEVI 999
[B. V. NAGARATHNA, J.]

limited to, house hold necessities for the aggrieved person and her A
children, if any, Stridhana, property, jointly or separately owned
by the aggrieved person, payment of rental related to the shared
house hold and maintenance;
(b) disposal of household effects, any alienation of assets whether
movable or immovable, valuables, shares, securities, bonds and B
the like or other property in which the aggrieved person has an
interest or is entitled to use by virtue of the domestic relationship
or which may be reasonably required by the aggrieved person or
her children or her Stridhana or any other property jointly or
separately held by the aggrieved person; and
C
(c) prohibition or restriction to continued access to resources or
facilities which the aggrieved person is entitled to use or enjoy by
virtue of the domestic relationship including access to the shared
household.
Explanation II.—For the purpose of determining whether any act, D
omission, commission or conduct of the respondent constitutes
‘domestic violence’ under this section, the overall facts and
circumstances of the case shall be taken into consideration.”
xxx
“12. Application to Magistrate.—(1) An aggrieved person or E
a Protection Officer or any other person on behalf of the aggrieved
person may present an application to the Magistrate seeking one
or more reliefs under this Act:
Provided that before passing any order on such application, the
Magistrate shall take into consideration any Domestic Incident F
Report received by him from the Protection Officer or the service
provider.
(2) The relief sought for under Sub-Section (1) may include a
relief for issuance of an order for payment of compensation or
damages without prejudice to the right of such person to institute G
a suit for compensation or damages for the injuries caused by the
acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or
damages has been passed by any court in favour of the aggrieved
person, the amount, if any, paid or payable in pursuance of the H
1000 SUPREME COURT REPORTS [2022] 5 S.C.R.

A order made by the Magistrate under this Act shall be set off against
the amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil Procedure,
1908 (5 of 1908), or any other law for the time being in force, be
executable for the balance amount, if any, left after such set off.
B (3) Every application under Sub-Section (1) shall be in such form
and contain such particulars as may be prescribed or as nearly as
possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall
not ordinarily be beyond three days from the date of receipt of the
C application by the court.
(5) The Magistrate shall Endeavour to dispose of every application
made under Sub-Section (1) within a period of sixty days from
the date of its first hearing.”
xxx
D
“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 shall have
the right to reside in the shared household, whether or not she has
any right, title or beneficial interest in the same.
E
(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.”
xxx
F “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
G 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 person under section18, section
19, section 20, section 21 or, as the case may be, section 22 against
the respondent.”
H
PRABHA TYAGI v. KAMLESH DEVI 1001
[B. V. NAGARATHNA, J.]

21. Before proceeding further, it would be useful to refer to the A
following relevant judgments of this Court wherein this Court has
interpreted various provisions of the D.V. Act :
a) In Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori
and Another – [(2014) 10 SCC 736], this Court while
interpreting the definition of aggrieved person under Section B
2(a) of the D.V. Act held that apart from the woman who
is in a domestic relationship, any woman who has been
in a domestic relationship with the respondent, if alleged
to have been subjected to any act of domestic violence by
the respondent comes within the meaning of aggrieved
person. Further, Section 2(f) of the D.V. Act states that a C
person aggrieved (widow herein) who, at any point of time
has lived together with the husband in a shared household
is covered by the meaning of domestic relationship. Also,
Section 2(s) of the D.V. Act states that if the person
aggrieved at any stage has lived in a domestic relationship D
with the respondent in a house, can claim a right in a shared
household.
After analysing the relevant provisions of the D.V.
Act, this Court while referring to V.D. Bhanot vs. Savita
Bhanot – [(2012) 3 SCC 183], held that the conduct of E
the parties even prior to coming into force of the D.V. Act
could be taken into consideration while passing an order
under Sections 18, 19 and 20 thereof. The wife who had
shared a household in the past but was no longer residing
with her husband can file a petition under section 12 if
subjected to domestic violence. It was further observed that F
where an act of domestic violence is once committed, then
a subsequent decree of divorce will not absolve the liability
of the respondent from the offence committed or to deny
the benefit to which the aggrieved person is entitled to.
b) In the case of Krishna Bhattacharjee vs. Sarathi G
Choudhury and Another - [(2016) 2 SCC 705], this Court
held that a claim for recovery of Stridhana, two years after
a decree of judicial separation is maintainable. The Court
held that judicial separation does not change the status of a
wife as an aggrieved person under Section 2(a) read with H
1002 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Section 12 of the D.V. Act and does not end the domestic
relationship under Section 2(f) of the D.V. Act. It was further
held that a judicial separation was a mere suspension of
husband-wife relationship and not a complete severance of
relationship as in the case of a divorce. Moreover, an
application filed under section 12 of the D.V. Act by the
B
wife is not barred by any limitation.
In the said case, this Court referred to Saraswathy
vs. Babu – [(2014) 3 SCC 712].
Further, Dipak Misra J. (as His Lordship then was)
C while speaking for the Two-Judge Bench held that the
definition of domestic relationship under Section 2 (f) of
the D.V. Act is very wide and protection under the said
provision would be given to a wife even if she is judicially
separated, by observing thus :
D “18. The core issue that is requisite to be addressed is
whether the Appellant has ceased to be an ‘aggrieved
person’ because of the decree of judicial separation. Once
the decree of divorce is passed, the status of the parties
becomes different, but that is not so when there is a decree
for judicial separation. A three-Judge Bench in Jeet Singh
E and Ors. v. State of U.P. and Ors. (1993) 1 SCC 325
though in a different context, adverted to the concept of
judicial separation and ruled that the judicial separation
creates rights and obligations. A decree or an order for
judicial separation permits the parties to live apart. There
F would be no obligation for either party to cohabit with the
other. Mutual rights and obligations arising out of a marriage
are suspended. The decree however, does not sever or
dissolve the marriage. It affords an opportunity for
reconciliation and adjustment. Though judicial separation
after a certain period may become a ground for divorce, it
G is not necessary and the parties are not bound to have
recourse to that remedy and the parties can live keeping
their status as wife and husband till their lifetime.”
While referring to the case of Rashmi Kumar vs. Mahesh Kumar
Bhada – [(1997) 2 SCC 397], this Court held that Stridhana property
H is the exclusive property of the wife on proof that she entrusted the
PRABHA TYAGI v. KAMLESH DEVI 1003
[B. V. NAGARATHNA, J.]

property or dominion over the Stridhana property to her husband or any A
other member of the family. There is no need to establish further any
special agreement to prove that the property was given to the husband
or other member of the family.
While considering the issue of limitation and/or ‘continuing
offence’/ ‘continuing cause of action’, this Court held: B
“32. Regard being had to the aforesaid statement of law, we have
to see whether retention of Stridhana by the husband or any
other family members is a continuing offence or not. There can
be no dispute that wife can file a suit for realization of the Stridhana
but it does not debar her to lodge a criminal complaint for criminal C
breach of trust………. The concept of ‘continuing offence’ gets
attracted from the date of deprivation of Stridhana, for neither
the husband nor any other family members can have any right
over the Stridhana and they remain the custodians. For the purpose
of the 2005 Act, she can submit an application to the Protection
Officer for one or more of the reliefs under the 2005 Act.” D

c) We could also allude to the exposition of this Court in Ajay
Kumar vs. Lata alias Sharuti and Others – [(2019) 15
SCC 352], wherein the husband of the respondent therein
had died, and maintenance was claimed from the brother
of the deceased husband. The Court held that at a prima E
facie stage, a case for grant of maintenance was made out
since the respondent and her deceased husband resided in
the same house and the appellant therein (brother of
deceased person) also resided in the same household.
d) Further in Satish Chander Ahuja vs. Sneha Ahuja – F
[(2021) 1 SCC 414], a Three-Judge Bench of this Court,
wherein one of us (Shah, J.) was a member, considered the
expressions ‘lives or have at any point of time lived’
appearing in Section 2 (s) of the D.V. Act. This Court while
considering the correctness of the law laid down in S.R. G
Batra vs. Taruna Batra – [(2007) 3 SCC 169], concluded
that the said case had not correctly interpreted Section 2(s)
of the D.V. Act and that the said judgment does not lay
down a correct law and observed as under :

H
1004 SUPREME COURT REPORTS [2022] 5 S.C.R.

A “66. ……….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
B
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
C 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………………
D 67. ……………. 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
E 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 v. Taruna
Batra (supra), thus, was not true apprehension and it is correct
that in event such interpretation is accepted, it will lead to chaos
F 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.
G 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
H
PRABHA TYAGI v. KAMLESH DEVI 1005
[B. V. NAGARATHNA, J.]

have to be looked into to find out as to whether the parties intended A
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
B
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.
69. ………… The definition of shared household as noticed in C
Section 2(s) does not indicate that a shared household shall be
one which belongs to or taken on rent by the husband. We have
noticed the definition of ‘Respondent’ under the Act. The
Respondent in a proceeding under Domestic Violence Act can be
any relative of the husband. In the event, the shared household D
belongs to any relative of the husband with whom in a domestic
relationship the woman has lived, the conditions mentioned in
Section 2(s) are satisfied and the said house will become a shared
household.”
Analysis: E
22. Section 12 of the D.V. Act states that an aggrieved person or
a Protection Officer or any other person on behalf of the aggrieved
person may present an application to the Magistrate seeking one or more
reliefs under the D.V. Act. The proviso, however, states that before
passing any order on such an application, the Magistrate shall take into F
consideration any Domestic Incident Report received by him from the
Protection Officer or the service provider. The expression ‘aggrieved
person’ as defined under Section 2(a) 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.
Domestic relationship as defined in Section 2(f), means a relationship G
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. Domestic violence has the
same meaning as assigned to it in Section 3. H
1006 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 23. The expression ‘shared household’ in relation to the definition
of domestic relationship as per the definition in Section 2(s) 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
B
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.
C The definition of shared household is thus an inclusive one.
24. Section 17 speaks of right to reside in a shared household
while Section 19 deals with residence orders which could be passed by
a Magistrate while disposing of an application under Sub-Section (1) of
Section 12, on being satisfied that domestic violence has taken place in a
D shared household. Thus, while Section 19 deals with residence orders,
the right to reside in a shared household is dealt with in Section 17 of the
D.V. Act. Sub-Section (1) of Section 17, which begins with a non-obstante
clause states that notwithstanding anything contained in any other law
for the time being in force, every woman in a domestic relationship shall
have the right to reside in the shared household, whether or not she has
E any right, title or beneficial interest in the same. Sub-Section (2) states
that an 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.
25. While Section 19 deals with a multitude of directions or orders
F which may be passed against the respondent vis-à-vis the shared
household in favour of an aggrieved person, Section 17 confers a right
on every woman in a domestic relationship to reside in the shared
household irrespective of whether she has any right, title or beneficial
interest in the same. This right to reside in a shared household which is
G conferred on every woman in a domestic relationship is a vital and
significant right. It is an affirmation of the right of every woman in a
domestic relationship to reside in a shared household. Sub-Section (2) of
Section 17 protects an aggrieved person from being evicted or excluded
from the shared household or any part of it by the respondent save in
accordance with the procedure established by law. The distinction
H
PRABHA TYAGI v. KAMLESH DEVI 1007
[B. V. NAGARATHNA, J.]

between Sub-Section (1) and Sub-Section (2) of Section 17 is also to be A
noted. While Sub-Section (2) deals with an aggrieved person which is
defined in Section 2(a) of the D.V. Act in the context of domestic violence,
Sub-Section (1) of Section 17 is a right conferred on every woman in a
domestic relationship irrespective of whether she is an aggrieved person
or not. In other words, every woman in a domestic relationship has a
B
right to reside in the shared household even in the absence of any act of
domestic violence by the respondent.
26. It is necessary to appreciate the importance and significance
of the right of every woman in a domestic relationship to reside in a
shared household. As already noted, the expression ‘shared household’
is expansively defined in Section 2(s) of the D.V. Act but the expression C
contained in Section 17 namely, ‘every woman in a domestic
relationship shall have the right to reside in the shared household
irrespective whether she has any right, title or beneficial interest in
same’, requires an expansive interpretation. In this context, Harbhajan
Singh vs. Press Council of India - (AIR 2002 SC 1351) could be D
relied upon wherein, Cross on “Statutory Interpretation” (Third Edition,
1995) has been relied upon as follows:-
“Thus, an ‘ordinary meaning’ or ‘grammatical meaning’ does not
imply that the Judge attributes a meaning to the words of a statute
independently of their context or of the purpose of the statute, but E
rather that he adopts a meaning which is appropriate in relation to
the immediately obvious and unresearched context and purpose
in and for which they are used.”
27. While the object and purpose of the D.V. Act is to protect a
woman from domestic violence, the salutary object of Sub-Section (1) F
of Section 17 is to confer a right on every woman in a domestic relationship
to have the right to reside in a shared household. Hence, the said provision
commences with a non-obstante clause.
28. For a better understanding of the said right, it would also be
useful to relate it to the societal and familial context in India. G
29. As already noted, a domestic relationship means a relationship
between two persons who live or have at any point of time, lived together
in a shared household. The relationship may be by (i) consanguinity, (ii)
marriage or, (iii) through a relationship in the nature of a marriage, (iv)
adoption or (v) are family members living together as a joint family. The
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1008 SUPREME COURT REPORTS [2022] 5 S.C.R.

A expression ‘domestic relationship’ is a comprehensive one. Hence, every
woman in a domestic relationship in whatever manner the said relationship
may be founded as stated above has a right to reside in a shared
household, whether or not she has any right, title or beneficial interest in
the same. Thus, a daughter, sister, wife, mother, grand-mother or great
grand-mother, daughter-in-law, mother-in-law or any woman having a
B
relationship in the nature of marriage, an adopted daughter or any member
of joint family has the right to reside in a shared household.
30. Further, though, the expression ‘shared household’ is defined
in the context of a household where the person aggrieved lives or has
lived in a domestic relationship either singly or along with respondent, in
C the context of Sub-Section (1) of Section17, the said expression cannot
be restricted only to a household where a person aggrieved resides or at
any stage, resided in a domestic relationship. In other words, a woman
in a domestic relationship who is not aggrieved, in the sense that who
has not been subjected to an act of domestic violence by the respondent,
D has a right to reside in a shared household. Thus, a mother, daughter,
sister, wife, mother-in-law and daughter-in-law or such other categories
of women in a domestic relationship have the right to reside in a shared
household de hors a right, title or beneficial interest in the same.
Therefore, the right of residence of the aforesaid categories of
E women and such other categories of women in a domestic relationship
is guaranteed under Sub-Section (1) of Section 17 and she cannot be
evicted, excluded or thrown out from such a household even in the absence
of there being any form of domestic violence. By contrast, Sub-Section
(2) of section 17 deals with a narrower right in as much as an aggrieved
person who is inevitably a woman and who is subjected to domestic
F violence shall not be evicted or excluded from the shared household or
any part of it by the respondent except in accordance with the procedure
established by law. Thus, the expression ‘right to reside in a shared
household’ has to be given an expansive interpretation, in respect of the
aforesaid categories of women including a mother-in-law of a daughter-
G in-law and other categories of women referred to above who have the
right to reside in a shared household.
31. Further, the expression ‘the 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
H domestic relationship can enforce her right to reside therein. The aforesaid
PRABHA TYAGI v. KAMLESH DEVI 1009
[B. V. NAGARATHNA, J.]

interpretation can be explained by way of an illustration. If a woman A
gets married then she acquires the right to reside in the household of her
husband which then becomes a shared household within the meaning of
the D.V. Act. In India, it is a societal norm for a woman, on her marriage
to reside with her husband, unless due to professional, occupational or
job commitments, or for other genuine reasons, the husband and wife
B
decide to reside at different locations. Even in a case where the woman
in a domestic relationship is residing elsewhere on account of a reasonable
cause, she has the right to reside in a shared household. Also a woman
who is, or 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 C
in a different location in which the family of her husband resides.
32. If a woman in a domestic relationship seeks to enforce her
right to reside in a shared household, irrespective of whether she has
resided therein at all or not, then the said right can be enforced under
Sub-Section (1) of Section 17 of the D.V. Act. If her right to reside in a D
shared household is resisted or restrained by the respondent(s) then she
becomes an aggrieved person and she cannot be evicted, if she has
already been living in the shared household or excluded from the same
or any part of it if she is not actually residing therein. In other words, the
expression ‘right to reside in the shared household’ is not restricted to
only actual residence, as, irrespective of actual residence, a woman in a E
domestic relationship can enforce her right to reside in the shared
household. Thus, a woman cannot be excluded from the shared household
even if she has not actually resided therein that is why the expression
‘shall not be evicted or excluded from the shared household’ has been
intentionally used in Sub-Section (2) of Section 17. This means if a woman F
in a domestic relationship is an aggrieved person and she is actually
residing in the shared household, she cannot be evicted except in
accordance with the procedure established by law. Similarly, a woman
in a domestic relationship who is an aggrieved person cannot be excluded
from her right to reside in the shared household except in accordance
with the procedure established by law. Therefore, the expression ‘right G
to reside in the shared household’ would include not only actual residence
but also constructive residence in the shared household i.e., right to reside
therein which cannot be excluded vis-à-vis an aggrieved person except
in accordance with the procedure established by law. If a woman is
sought to be evicted or excluded from the shared household she would H
1010 SUPREME COURT REPORTS [2022] 5 S.C.R.

A be an aggrieved person in which event Sub-Section (2) of Section 17
would apply.
33. In support of this interpretation, another example may be noted.
A woman on getting married, along with her husband may proceed
overseas on account of professional or job commitments. Such a woman
B may not have had an opportunity of residing in the shared household
after her marriage. If, for any reason, such a woman becomes an
aggrieved person and is forced to return from overseas then she has the
right to reside in the shared household of her husband irrespective of
whether her husband (respondent) or the aggrieved person (wife) has
any right, title or beneficial interest in the shared household. In such
C circumstances, parents-in-law of the woman who has returned from
overseas and who is an aggrieved person cannot exclude her from the
shared household or any part of it except in accordance with the procedure
established by law.
Another situation is a case where, immediately after marriage,
D the wife actually resided in the shared household while her husband
proceeded overseas. When such a woman is subjected to domestic
violence, she cannot be evicted from the shared household except in
accordance with the procedure established by law.
34. There may also be cases where soon after marriage, the
E husband goes to another city owing to a job commitment and his wife
remains in her parental home and nevertheless is a victim of domestic
violence. She has the right to remain in her parental home as she would
be in a domestic relationship by consanguinity. Also in cases where a
woman remains in her parental home soon after marriage and is subjected
F to domestic violence and is therefore an aggrieved person, she also has
the right to reside in the shared household of her husband which could
be the household of her in-laws. Further, if her husband resides in another
location then an aggrieved person has the right to reside with her husband
in the location in which he resides which would then become the shared
household or reside with his parents, as the case may be, in a different
G location. There could be a multitude and a variety of situations and
circumstances in which a woman in a domestic relationship can enforce
her right to reside in a shared household irrespective of whether she has
the right, title or beneficial interest in the same. Also, such a right could
be enforced by every woman in a domestic relationship irrespective of
H whether she is an aggrieved person or not.
PRABHA TYAGI v. KAMLESH DEVI 1011
[B. V. NAGARATHNA, J.]

35. In the Indian societal context, the right of a woman to reside A
in the shared household is of unique importance. The reasons for the
same are not far to see. In India, most women are not educated nor are
they earning; neither do they have financial independence so as to live
singly. She may be dependent for residence in a domestic relationship
not only for emotional support but for the aforesaid reasons. The said
B
relationship may be by consanguinity, marriage or through a relationship
in the nature of marriage, adoption or is a part of or is living together in
a joint family. A majority of women in India do not have independent
income or financial capacity and are totally dependent vis-à-vis their
residence on their male or other female relations who may have a
domestic relationship with her. C
36. In our view, the D.V. Act is a piece of Civil Code which is
applicable to every woman in India irrespective of her religious affiliation
and/or social background for a more effective protection of her rights
guaranteed under the Constitution and in order to protect women victims
of domestic violence occurring in a domestic relationship. Therefore, D
the expression ‘joint family’ cannot mean as understood in Hindu Law.
Thus, the expression ‘family members living together as a joint family’,
means the members living jointly as a family. In such an interpretation,
even a girl child/children who is/are cared for as foster children also
have a right to live in a shared household and are conferred with the
right under Sub-Section (1) of Section 17 of the D.V. Act. When such a E
girl child or woman becomes an aggrieved person, the protection of
Sub-Section (2) of Section 17 comes into play.
37. In order to give an expansive interpretation to the expression
‘every woman in a domestic relationship shall have the right to reside in
shared household’, certain examples by way of illustrations have been F
discussed above. However, those illustrations are not exhaustive and
there could be several situations and circumstances and every woman
in a domestic relationship can enforce her right to reside in a shared
household irrespective of whether she has any right, title or beneficial
interest in the same and the said right could be enforced by any woman G
under the said provision as an independent right in addition to the orders
that could be passed under Section 19 of the D.V. Act; also an aggrieved
woman who has the right to reside in the shared household is protected
by Sub-Section (2) of the Section 17 of the D.V. Act.

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1012 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 38. In the case of Smt. Bharati Naik vs. Shri Ravi Ramnath
Halarnkar and Another – [2010 SCC Online Bom 243], the High
Court of Bombay at Goa held that the words ‘has been’ and ‘have lived’
appearing in the definition of ‘aggrieved person’ and ‘respondent’ in the
D.V. Act are plain and clear. The Court held that the aforesaid words
take in their sweep even a past relationship. The words have been
B
purposefully used to show the past relationship or experience between
the concerned parties. It was further observed that the said D.V. Act
has been enacted to protect a woman from domestic violence and there
cannot be any fetter which can come in the way by interpreting the
provisions in a manner to mean that unless the domestic relationship
C continues on the date of the application, the provisions of the D.V. Act
cannot be invoked.
39. In a judgment of the High Court of Madras in Vandhana vs.
T. Srikanth and Krishnamachari – [2007 SCC Online Mad 553],
authored by Ramasubramanian, J., it was held that Sections 2(f), 2(s)
D and 17 of the D.V. Act ought to be given the widest interpretation possible.
The Court, after observing various instances and situations, held that
many a woman may not even enter into the matrimonial home
immediately after marriage. Therefore, it was concluded that a healthy
and correct interpretation to Sections 2(f) and 2(s) of the D.V. Act would
be that the words ‘live’ or ‘have at any point of time lived’ would
E include in its purview ‘the right to live’ as interpreted above. It would
be useful to quote from the said judgment as under:-
“20. In a society like ours, there are very many situations, in which
a woman may not enter into her matrimonial home immediately
after marriage. A couple leaving for honeymoon immediately after
F the marriage and whose relationship gets strained even during
honeymoon, resulting in the wife returning to her parental home
straight away, may not stand the test of the definition of domestic
relationship under Section 2(f) of the Act, if it is strictly construed.
A woman in such a case, may not live or at any point of time lived
G either singly or together with the husband in the ‘shared household’,
despite a legally valid marriage followed even by its consummation.
It is not uncommon in our society, for a woman in marriage to be
sent to her parental home even before consummation of marriage,
on account of certain traditional beliefs, say for example, the
intervention of the month of Aadi. If such a woman is held to be
H
PRABHA TYAGI v. KAMLESH DEVI 1013
[B. V. NAGARATHNA, J.]

not entitled to the benefit of Section 17 of the Act, on account of A
a strict interpretation to Section 2(f) of the Act that she did not
either live or at any point of time lived together in the shared
household, such a woman will be left remediless despite a valid
marriage. One can think of innumerable instances of the same
aforesaid nature, where the woman might not live at the time of
B
institution of the proceedings or might not have lived together with
the husband even for a single day in the shared household. A
narrow interpretation to Sections 2(f), 2(s) and 17 of the Act,
would leave many a woman in distress, without a
remedy. Therefore, in my considered view a healthy and correct
interpretation to Sections 2(f) and 2(s) would be that the words C
‘live’ or ‘have at any point of time lived’ would include within
their purview ‘the right to live’. In other words, it is not necessary
for a woman to establish her physical act of living in the shared
household, either at the time of institution of the proceedings or as
a thing of the past. If there is a relationship which has legal sanction,
D
a woman in that relationship gets a right to live in the shared
household. Therefore, she would be entitled to protection under
Section 17 of the Act, even if she did not live in the shared
household at the time of institution of the proceedings or had never
lived in the shared household at any point of time in the past. Her
right to protection under Section 17 of the Act, co-exists with E
her right to live in the shared household and it does not depend
upon whether she had marked her physical presence in the
shared household or not. A marriage which is valid and
subsisting on the relevant date, automatically confers a right
upon the wife to live in the shared household as an equal
F
partner in the joint venture of running a family. If she has a
right to live in the shared household, on account of a valid
and subsisting marriage, she is definitely in ‘domestic
relationship’ within the meaning of Section 2(f) of the Act
and her bodily presence or absence from the shared household
cannot belittle her relationship as anything other than a G
domestic relationship. Therefore, irrespective of the fact whether
the applicant/plaintiff in this case ever lived in the house of the
first respondent/first defendant after 7.2.2007 or not, her marriage
to the first respondent/first defendant on 7.2.2007 has conferred
a right upon her to live in the shared household. Therefore, the
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1014 SUPREME COURT REPORTS [2022] 5 S.C.R.

A question as to whether the applicant/plaintiff ever lived in the
shared household at any point of time during the period from
7.2.2007 to 13.6.2007 or not, is of little significance.”
40. Bearing in mind the aforesaid discussion, question no. 2, namely,
‘whether it is mandatory for the aggrieved person to reside with
B those persons against whom the allegations have been levelled’ is
accordingly answered. 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. 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. If a woman becomes an
C aggrieved person or victim of domestic violence, she can seek relief
under the provisions of the D.V. Act including her right to live or reside
in the shared household under Section 17 read with Section 19 of the
D.V. Act.
41. Hence, the appellant herein had the right to live in a shared
D household i.e., her matrimonial home and being a victim of domestic
violence could enforce her right to live or reside in the shared household
under the provisions of the D.V. Act and to seek any other appropriate
relief provided under the D.V. Act. This is irrespective of whether she
actually lived in the shared household.
E 42. This takes us to the next question raised for consideration
being ‘whether there should be a subsisting domestic relationship
between the aggrieved person and the person against whom the
relief is claimed’. As already noted, the expression ‘domestic
relationship’ is an expansive one and means the relationship between
F two persons who live or have at any point of time lived together in a
shared household when they are related by (i) consanguinity; (ii) marriage;
(iii) through a relationship in the nature of marriage; (iv) adoption; (v)
are family members living together as a joint family. The expressions
‘consanguinity’, ‘marriage’ and ‘adoption’ do not require elaboration as
they are well understood concepts both in common law as well as in the
G respective personal law applicable to the parties. However, it is relevant
to note the expression ‘marriage’ also encompasses a relationship in the
nature of marriage. Secondly, the expression ‘adoption’ also takes into
consideration family members living together as a joint family. The
aforesaid aspects require elaboration.
H
PRABHA TYAGI v. KAMLESH DEVI 1015
[B. V. NAGARATHNA, J.]

It would be useful to refer to the following judgments of this Court A
which have been taken into consideration relationship in the nature of
marriage :
(a) In D. Velu Samy v. D. Patchaiammal - [(2010) 10 SCC
469], this Court discussed the concept of “relationship in
the nature of marriage” in the context of the DV Act, and B
it was held to be akin to a common law marriage. It was
held that the parties must have lived together in a ‘shared
household’ as defined in Section 2(s) of the DV Act. It was
opined that not all live-in relationships would amount to a
relationship in the nature of marriage to get the benefit of
D.V. Act, but only to such relationships, which qualify as C
common law marriages. The requirements prescribed under
law in order for a relationship to be recognized as a common
law marriage were adumbrated as follows:
(i) The couple must hold themselves out to society as being
akin to spouses; D

(ii) They must be of legal age to marry;
(iii)They must be otherwise qualified to enter into a legal
marriage;
(iv)They must have voluntarily cohabited and held E
themselves out to the world as being akin to spouses for
a significant period of time.
(b) In Indra Sarma v. V.K.V. Sarma - [(2013) 15 SCC 755],
the question as to whether disruption of a live-in relationship
by failure to maintain a woman involved in such a F
relationship amounted to “domestic violence” within the
meaning of Section 3 of the D.V. Act, was considered. It
was held that entering into a marriage either under the Hindu
Marriage Act or Special Marriage Act or any other personal
law applicable to the parties, is entering into a relationship
G
of public significance, since marriage, being a social
institution, many rights and liabilities flow out of that
relationship. Thus, the concept of marriage gives rise to
civil rights. This Court referred to the following guidelines,
which would determine whether a relationship between
persons was in the nature of marriage, to ultimately hold H
1016 SUPREME COURT REPORTS [2022] 5 S.C.R.

A that the DV Act had been enacted to cover a couple who
had a relationship in the nature of marriage, so as to provide
a remedy in Civil Law for protection of women in
relationships, which are in the nature of marriage as per
paragraph 56 which is extracted as under :
B “56. We may, on the basis of above discussion cull out some
guidelines for testing under what circumstances, a live-in
relationship will fall within the expression “relationship in the nature
of marriage” under Section 2(f) of the D.V. Act. The guidelines,
of course, are not exhaustive, but will definitely give some insight
to such relationship :
C
56.1. Duration of period of relationship. – Section 2(f) of the
D.V. Act has used the expression “at any point of time”, which
means a reasonable period of time to maintain and continue a
relationship which may vary from case to case, depending upon
the fact situation.
D
56.2. Shared household.- The expression has been defined under
Section 2(s) of the D.V. Act and, hence, needs no further
elaboration.
56.3. Pooling of resources and financial arrangements.-
E Supporting each other, or any one of them, financially, sharing
bank accounts, acquiring immovable properties in joint names or
in the name of the woman, long-term investments in business,
shares in separate and joint names, so as to have a long-standing
relationship, may be a guiding factor.

F 56.4. Domestic arrangements.- Entrusting the responsibility,
especially on the woman to run the home, do the household
activities like cleaning, cooking, maintaining or upkeeping the house,
etc., is an indication of a relationship in the nature of marriage.
56.5. Sexual relationship.- Marriage-like relationship refers to
sexual relationship, not just for pleasure, but for emotional and
G
intimate relationship, for procreation of children, so as to give
emotional support, companionship and also material affection,
caring, etc.
56.6. Children.- Having children is a strong indication of a
relationship in the nature of marriage. The parties, therefore, intend
H
PRABHA TYAGI v. KAMLESH DEVI 1017
[B. V. NAGARATHNA, J.]

to have a long-standing relationship. Sharing the responsibility for A
bringing up and supporting them is also a strong indication.
56.7. Socialisation in public.- Holding out to the public and
socialising with friends, relations and others, as if they are husband
and wife is a strong circumstance to hold the relationship is in the
nature of marriage. B
56.8. Intention and conduct of the parties.- Common intention
of the parties as to what their relationship is to be and to involve,
and as to their respective roles and responsibilities, primarily
determines the nature of that relationship.”
43. Further, the expression ‘family members living together as a C
joint family’ is not relatable only to relationship through consanguinity,
marriage or adoption. As observed above, the expression ‘joint family’
does not mean a joint family as understood in Hindu Law. It would mean
persons living together jointly as a family. It would include not only family
members living together when they are related by consanguinity, marriage D
or adoption but also those persons who are living together or jointly as a
joint family such as foster children who live with other members who
are related by consanguinity, marriage or by adoption. Therefore, when
any woman is in a domestic relationship as discussed above, is subjected
to any act of domestic violence and becomes an aggrieved person, she
is entitled to avail the remedies under the D.V. Act. E

The further question is, whether, such a domestic relationship should
be subsisting between the aggrieved person and the respondent against
whom relief is claimed at the time of claiming the relief. Before answering
the same, it would be useful to analyse the relationships noted in the
D.V. Act as under: F
(a) Any relationship by consanguinity is a lifelong relationship.
(b) Marriage is also a lifelong relationship unless a separation
by a decree of divorce is ordered by a competent authority
of law.
G
(i) If there is judicial separation ordered by a court of law, that
does not put an end to marriage and hence the domestic relationship
continues between the spouses even though they may not be
actually living together.
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1018 SUPREME COURT REPORTS [2022] 5 S.C.R.

A (ii) In the event of a divorce, marriage would be no longer be
subsisting, but if a woman (wife) is subjected to any domestic
violence either during marriage or even subsequent to a divorce
decree being passed but relatable to the period of domestic
relationship, the provisions of this D.V. Act would come to the
rescue of such a divorced woman also.
B
(iii) That is why, the expression ‘domestic relationship’ has been
defined in an expansive manner to mean 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 marriage. We have
also interpreted the word ‘live’ or ‘lived’ in the context of right to
C reside in Sub-Section (1) of Section 17. The right to live in the
shared household, even when the domestic relationship may have
been severed for instance when a woman has been widowed
owing to the death of her husband, entitles her to have remedies
under the D.V. Act.
D (iv) Therefore, even when the marital ties cease and there is no
subsisting domestic relationship between the aggrieved woman
and the respondent against whom relief is claimed but the acts of
domestic violence are related to the period of domestic relationship,
even in such circumstances, the aggrieved woman who was
E subjected to domestic violence has remedies under the D.V. Act.
(c) Even in the case of relationship in the nature of marriage,
during which period the woman suffered domestic violence
and is thus an aggrieved person can seek remedies
subsequent to the cessation of the relationship, the only pre-
F condition is that the allegation of domestic violence must
relate to the period of the subsistence of relationship in the
nature of marriage.
(d) In the same way, when a girl child is fostered by family
members living together as a joint family as interpreted above
G and lives or at any point of time has lived together in a
shared household or has the right to reside in the shared
household being a member living together as a joint family
and has been ousted in any way or has been a victim of
domestic violence has remedies under the D.V. Act.

H
PRABHA TYAGI v. KAMLESH DEVI 1019
[B. V. NAGARATHNA, J.]

In our view, the question raised about a subsisting domestic A
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 presentia
but also a past domestic relationship. Therefore, the Parliament has
intentionally used the expression ‘domestic relationship’ to mean a
B
relationship between two persons who not only live together in the shared
household but also between two persons who ‘have at any point of
time lived together’ in a shared household.
44. Applying the aforesaid discussion to the facts of the case at
hand, the appellant was married to the respondent’s son Kuldeep Tyagi
on 18th June, 2005 and shortly thereafter, on 15th July, 2005, he died in a C
car accident. According to the appellant, the respondent and her family
members started harassing the appellant and forced her to leave the
matrimonial home. She started working as a teacher at Dehradun in
order to support herself. That Stridhana was given at the time of her
wedding and that was used by the respondent and her family and the D
legal notice dated 22nd November, 2006 demanding return of the articles
of Stridhana did not receive any response from the respondent and her
family. Even though as on the date of filing of the application before the
Magistrate under Section 12 of the D.V. Act the appellant was not actually
living in the shared household; she nevertheless lived in a domestic
relationship with her husband and further had the right to reside in a E
shared household as a daughter-in-law. The appellant-aggrieved person
had to leave the shared household on account of harassment and mental
torture given to her by respondent - mother-in-law and her family. She
had to leave the same and fend for herself. Thus, as an aggrieved person,
the appellant could not have been excluded from the shared household F
as there was no valid reason to do so. As the appellant had a right to
reside in the shared household as she was in a domestic relationship
with her husband till he died in the accident and had lived together with
him therefore she also had a right to reside in the shared household
despite the death of her husband in a road accident. The aggrieved person
continued to have a subsisting domestic relationship owing to her marriage G
and she being the daughter-in-law had the right to reside in the shared
household.
45. This takes us to the first question which has been raised by us
namely, ‘whether the consideration of domestic incident report is
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1020 SUPREME COURT REPORTS [2022] 5 S.C.R.

A mandatory before initiating the proceedings under the D.V. Act in
order to invoke substantive provisions of Sections 18 to 20 and 22
of the said D.V. Act?’.
46. Clause (e) of Section 2 defines a Domestic Incident Report to
be a report made in the prescribed form on receipt of a complaint of
B domestic violence from an aggrieved person. As noted from Section 12,
an aggrieved person or a Protection Officer or any other person on
behalf of the aggrieved person including the service provider vide Sub-
Section (1) of Section 10 of the D.V. Act, may present an application to
the Magistrate seeking one or more reliefs under the D.V. Act. Proviso
to Sub-Section (1) of Section 12 states that before passing any order on
C such an application, the Magistrate shall take into consideration any
Domestic Incident Report received by him from the Protection Officer
or the service provider. Protection Officer as defined in Clause (n) of
Section 2, means an officer appointed by the State Government under
Sub-Section (1) of Section 8. Sub-Section (2) of Section 8 states that the
D Protection Officers shall, as far as possible, be women and shall possess
such qualifications and experience as may be prescribed.
47. On a conjoint reading of the aforesaid provisions, it is clear
that an aggrieved person on her own or any other person on behalf of
the aggrieved person may present an application to the Magistrate seeking
E one or more reliefs under the D.V. Act but the proviso states that when
a Domestic Incident Reported is received by the Magistrate from the
Protection Officer or the service provider, in such a case, the same shall
be taken into consideration. Therefore, when an aggrieved person files
an application by herself or with the assistance of an advocate and not
with the assistance of the Protection Officer or a service provider, in
F such a case, the role of the Protection Officer or a service provider is
not envisaged. Obviously, there would be no Domestic Incident Report
received by a Magistrate from the Protection Officer or a service provider.
Can it be said that in the absence of a Domestic Incident Report, the
Magistrate cannot pass any order under the D.V. Act particularly when
G an application is filed before the Magistrate by the aggrieved person by
herself or through a legal counsel? In our view, that is not the intention of
the proviso. Although, the expression ‘shall’ is used in the proviso, it is
restricted to only those cases where a Protection Officer files any
Domestic Incident Report or, as the case may be, the service provider
files such a report. When a Domestic Incident Report is filed by a
H
PRABHA TYAGI v. KAMLESH DEVI 1021
[B. V. NAGARATHNA, J.]

Protection Officer or a service provider, in such a case the Magistrate A
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. Therefore, the expression
‘shall’ has to be read in the context of a Domestic Incident Report
received by a Magistrate from the Protection Officer or the service
B
provider as the case may be in which case, it is mandatory for the
Magistrate to consider the report. But, if no such report is received by
the Magistrate then the Magistrate is naturally not to consider any such
Domestic Incident Report before passing any order on the application.
As already noted, this could be in a case where an aggrieved person
herself approaches the Magistrate or the services of an advocate is C
engaged to present an application seeking one or more reliefs under the
D.V. Act or for a valid acceptable cause/reason a Domestic Incident
Report has not been filed by a Protection Officer or a service provider,
as the case may be.
48. We are, therefore, of the view that the High Court was not D
right in holding that the application filed by the appellant herein was not
accompanied by a Domestic Incident Report and therefore under the
proviso to Sub-Section (1) of Section 12 of the D.V. Act, the Magistrate
had no authority to issue orders and directions in favour of the appellant.
(i) Following are the judgments where the High Courts have E
held that the Domestic Incident Report is not a sine qua
non for entertaining or deciding the application under Section
12 of the D.V. Act by the learned Magistrate.
a) In Nayanakumar vs. State of Karnataka – [ILR
2009 Kar 4295], the High Court of Karnataka F
(Kalaburagi Bench) while dealing with Section 12 of
the D.V. Act, held that in case a Domestic Incident
Report is received by the Magistrate either from the
Protection Officer or from the Service Provider, then
it becomes obligatory on the part of the Magistrate to
take note of the said Domestic Incident Report before G
passing an order on the application filed by the aggrieved
party. It was further clarified that the scheme of the
D.V. Act makes it clear that it is left to the choice of
the aggrieved person to go before the service provider
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1022 SUPREME COURT REPORTS [2022] 5 S.C.R.

A or the Protection Officer or to approach the Magistrate
under Section 12 of the D.V. Act.
b) In Abhiram Gogoi vs. Rashmi Rekha Gogoi –
[(2011) 4 Gauhati Law Reports 276], the Gauhati
High Court held that Section 9(1)(b) of the D.V. Act
B makes it clear that it is the duty of the Protection
Officer to make a Domestic Incident Report to the
Magistrate upon receipt of a complaint of domestic
violence and forward copies thereof to the police
officer-in-charge of the police station within the local
limits of whose jurisdiction domestic violence is alleged
C to have been committed and to the service providers in
that area.
c) In the case of Md. Basit vs. State of Assam and
Others – [(2012) 1 Gauhati Law Reports 747], the
Gauhati High Court differed with the view taken by
D the Madhya Pradesh and Jharkhand High Courts and
held that Section 12 only contemplates as to who can
file a complaint under Section 12 of the D.V. Act, what
relief may be sought for, what the contents of the
complaint must be and how the complaint ought to be
E examined. That if the complaint conforms to the said
pre-conditions, the same may be taken cognizance of.
The High Court noted that an application under Section
12(1) of the D.V. Act may be filed either by an
aggrieved person herself, or by a Protection Officer.
The Court went on to hold that the provision does not
F require a Magistrate to specifically call for a Domestic
Incident Report. That it would only be mandatory to
consider such report, if the same had been filed by the
Protection Officer before the Magistrate. The Gauhati
High Court differed with the view taken by the Madhya
G Pradesh and Jharkhand High Courts, to the extent that
the latter Courts observed that the Magistrate would
not be obligated to consider the Domestic Incident
Report even if the same was filed by the Protection
Officer.

H
PRABHA TYAGI v. KAMLESH DEVI 1023
[B. V. NAGARATHNA, J.]

d) Delving on the same issue, the High Court of Himachal A
Pradesh in Rahul Soorma vs. State of Himachal
Pradesh – [(2012) SCC Online HP 2574], held that
the purpose of the D.V. Act is to give immediate relief
to the aggrieved person; therefore, it was wrong to
suggest that the Magistrate has no jurisdiction to take
B
cognizance of the application under Section 12 of the
D.V. Act before the receipt of a Domestic Incident
Report by the Protection Officer or the service
provider.
e) Further, the High Court of Andhra Pradesh in A. Vidya
Sagar vs. State of Andhra Pradesh – [2014 SCC C
Online Hyd 715], rejected the contention of the
petitioner therein that a domestic violence case can be
instituted and taken cognizance of on the basis of the
Domestic Incident Report only and not otherwise.
f) In its judgment in the case of Ravi Kumar Bajpai vs. D
Renu Awasthi Bajpai – [ILR (2016) MP 302], the
High Court of Madhya Pradesh speaking through J.K.
Maheshwari, J., while discussing on the legislative intent
of the D.V. Act, held that if the legislative intent was
to call for a report from the Protection Officer as a E
pre-condition by the Magistrate to act upon a complaint
of aggrieved person, then it would have expressed that
intention emphasizing the words in the main section.
The High Court relied on various judgments pertaining
to the interpretation of a provision and proviso thereof.
F
g) The Division Bench of the High Court of Delhi in
Shambhu Prasad Singh vs. Manjari – [190 (2012)
DLT 647] speaking through Ravindra Bhat, J. dealt
with the conflicting views of the two Single Judges on
the question whether a Magistrate can act straightaway
on the complaint made by an aggrieved person under G
the D.V. Act. It was held that Section 12(1) of the
D.V. Act does not mandate that an application seeking
relief under the said D.V. Act must be accompanied
with a Domestic Incident Report or even that it should
be moved by a Protection Officer. So also, Rule 6 which H
1024 SUPREME COURT REPORTS [2022] 5 S.C.R.

A stipulates the form and manner of making an application
to a Magistrate does not require that the Domestic
Incident Report must accompany an application for
relief under Section 12.
It was further held that an obligation to submit
B a Domestic Incident Report is imposed only on the
Protection Officers under Section 9 of the D.V. Act
and upon the service providers under Section 10 of the
D.V. Act and the learned Magistrate ‘shall’ take into
consideration, the Domestic Incident Report if it is filed
and not otherwise.
C
h) In Rakesh Choudhary vs. Vandana Choudhary –
[2019 SCC Online J&K 512], the High Court of
Jammu and Kashmir rejected the argument of the
petitioner therein that the report of the Protection
Officer is sine qua non for issuing process in a petition
D under Section 12 of the D.V. Act. The Court held that
the proviso to Section 12(1) of the D.V. Act only
stipulates that the learned Magistrate shall take into
consideration the Domestic Incident Report filed by
the Protection Officer or the Service Provider, but it
E does not stipulate that a report ‘shall be called for’
before any relief could be granted.
i) Further, the High Court of Bombay at Aurangabad
Bench, while dealing with a criminal writ petition in
the case of Vijay Maruti Gaikwad vs. Savita Vijay
F Gaikward – [2018 (1) HLR 295], observed 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.
j) Lastly, in the case of Suraj Sharma vs. Bharti
G Sharma – [2016 SCC Online Chh 1825], the High
Court of Chhattisgarh while expressing its view on
Section 12 of the D.V. Act also held that the Domestic
Incident Report shall not be conclusive material for
making any order.

H
PRABHA TYAGI v. KAMLESH DEVI 1025
[B. V. NAGARATHNA, J.]

49. On the contrary, the following judgments of High Courts have A
observed that the Proviso to Section 12 is mandatory and an order passed
by the learned Magistrate on an application under Section 12 of the D.V.
Act, without having a report of the Protection Officer is liable to be
quashed.
a) In Rama Singh vs. Maya Singh – [(2012) 4 MPLJ 612]1, B
the High Court of Madhya Pradesh, in the facts and
circumstances of the said case, while quashing the petition
under Section 482 of the Code of Criminal Procedure, 1973,
held that the impugned order therein was passed without
taking into consideration, the report prepared by the
Protection Officer and proviso to Section 12 of the D.V. C
Act was ignored. The Court went on to hold that the proviso
ordinarily carves out an exception from the general rule
enacted in the main provision. The Court emphasized that
the word ‘any’ in the proviso would mean one or more out
of several and includes all. Therefore, even an interlocutory D
order directing issuance of notice would not be excluded
from the rigour of the proviso.
b) In the case of Ravi Dutta vs. Kiran Dutta and Another –
[208 (2014) DLT 61]2, the High Court of Delhi reiterated
that non-consideration of Domestic Incident Report by the E
Trial Court while deciding an application under Section 12
of the D.V. Act violates the mandate of the said provision
and therefore the order passed by the Trial Court was held
to be unsustainable.
On an analysis of the aforesaid judgments from various High F
Courts, we find that the High Courts of Andhra Pradesh, Bombay, Delhi,
Gauhati, Himachal Pradesh, Jammu & Kashmir, Karnataka, and Madhya
Pradesh, are right in holding that if Domestic Incident Report has been
received by the Magistrate either from the Protection Officer or the
service provider then it becomes obligatory on the part of the Magistrate
to take note of the said report before passing an order on the application G
filed by the aggrieved party, but if no complaint or application of domestic
violence is received by the Magistrate from the Protection Officer or
1
This judgment was explained in later decision of Ravi Kumar Bajpai (supra).
2
This judgment did not consider the earlier judgment in Shambhu Prasad Singh (supra)
passed by the Delhi High Court itself. H
1026 SUPREME COURT REPORTS [2022] 5 S.C.R.

A the service provider, the question of considering such a report does not
arise at all. As already discussed, the D.V. Act does not make it mandatory
for an aggrieved person to make an application before a Magistrate only
through the Protection Officer or a service provider. An aggrieved person
can directly make an application to the jurisdictional Magistrate by herself
or by engaging the services of an Advocate. In such a case, the filing of
B
a Domestic Incident Report by a Protection Officer or service provider
does not arise. In such circumstances, it cannot be held that the Magistrate
is not empowered to make any order interim or final, under the provisions
of the D.V. Act, granting reliefs to the aggrieved persons. The Magistrate
can take cognizance of the complaint or application filed by the aggrieved
C person and issue notice to the respondent under Section 12 of the D.V.
Act even in the absence of Domestic Incident Report under Rule 5.
Thus, the Magistrate has jurisdiction to take cognizance of the complaint
under Section 12 of the D.V. Act in the absence of a Domestic Incident
Report under Rule 5 when the complaint is not filed on behalf of the
aggrieved person through a Protection Officer or service provider. Such
D
a purposeful interpretation has to be given bearing in mind the fact that
the immediate relief would have to be given to an aggrieved person and
hence the proviso cannot be interpreted in a manner which would be
contrary to the object of the D.V. Act which renders Section 12 bereft
of its object and purpose.
E 50. In this context, it would be useful to adumbrate on the principles
that govern the interpretation to be given to proviso in the context of
main provision.
(a) The normal function of a proviso is to except something out
of the provision or to qualify something enacted therein
F which, but for the proviso, would be within the purview of
the provision. As a general rule, a proviso is added to an
enactment to qualify or create an exception to what is in
the enactment and ordinarily, a proviso is not interpreted as
stating a general rule. In other words, a proviso qualifies
G the generality of the main enactment by providing an
exception and taking out as it were, from the main
enactment, a portion which, but for the proviso would fall
within the main provision. Further, a proviso cannot be
construed as nullifying the provision or as taking away
completely a right conferred by the enactment.
H
PRABHA TYAGI v. KAMLESH DEVI 1027
[B. V. NAGARATHNA, J.]

(b) In this regard, learned Author, Justice G.P. Singh, in A
“Principles of Statutory Interpretation”, 15th Edition, has
enunciated certain rules collated from judicial precedents.
Firstly, a proviso is not to be construed as excluding or
adding something by implication i.e., when on a fair
construction, the principal provision is clear, a proviso cannot
B
expand or limit it. Secondly, a proviso has to be construed
in relation to which it is appended i.e., normally, a proviso
does not travel beyond the provision to which it is a proviso.
A proviso carves out an exception to the main provision to
which it has been enacted as a proviso and to no other.
However, if a proviso in a statute does not form part of a C
section but is itself enacted as a separate section, then it
becomes necessary to determine as to which section the
proviso is enacted as an exception or qualification.
Sometimes, a proviso is used as a guide to construction of
the main section. Thirdly, when there are two possible
D
construction of words to be found in the section, the proviso
could be looked into to interpret the main section. However,
when the main provision is clear, it cannot be watered down
by the proviso. Thus, where the main section is not clear,
the proviso can be looked into to ascertain the meaning and
scope of the main provision. E
(c) According to Justice G.P. Singh, the learned author, the
proviso should not be so construed as to make it redundant.
In certain cases, “the legislative device of the exclusion is
adopted only to exclude a part from the whole, which, but
for the exclusion, continues to be a part of it”, and words of F
exclusion are presumed to have some meaning and are not
readily recognized as mere surplusage. As a corollary, it is
stated that a proviso must be so construed that the main
enactment and the proviso should not become redundant or
otiose. This is particularly so, where the object of a proviso
sometimes is only by way of abundant caution, particularly G
when the operative words of the enactment are abundantly
clear. In other words, the purpose of a proviso in such a
case is to remove any doubt. There are also instances where
a proviso is in the nature of an independent enactment and
not merely, an exception or qualifying what has been stated H
1028 SUPREME COURT REPORTS [2022] 5 S.C.R.

A before. In other words, if the substantive enactment is
worded in the form of a proviso, it would be an independent
legislative provision concerning different set of
circumstances than what is worded before or what is stated
before. Sometimes, a proviso is to make a distinction of
special cases from the general enactment and to provide it
B
specially.
(d) At this stage, the construction or interpretation of a proviso
could be discussed as gathered from various judgments of
this Court.
C (i) In Ishverlal Thakorelal Almaula vs. Motibhai
Nagjibhai – [AIR 1966 SC 459], while dealing with
the Bombay Tenancy and Agricultural Lands Act,
1948, this Court held, that a proper function of a
proviso is to except or qualify something enacted in
the substantive clause, which but for the proviso,
D would be within that clause.
(ii) In Kaviraj Pandit Durga Dutt Sharma vs.
Navaratna Pharmaceutical Laboratories – [AIR
1965 SC 980], while considering the proviso to
Section 6 of Trade Marks Act, 1940, it was observed
E that it would not be a reasonable construction for
any statute, if a proviso which in terms purports to
create an exception and seeks to confer certain
special rights on a particular class of cases included
in it should be held to be otiose and to have achieved
F nothing.
(iii) In Kedarnath Jute Manufacturing Co. Ltd. vs. The
Commercial Tax Officer and Others, [AIR 1966
SC 12], it was observed that “the effect of an
excepting or qualifying proviso, according to the
G ordinary rules of construction, is to except out of the
preceding portion of the enactment or to qualify
something enacted therein, which, but for the proviso,
would be within it”. [See “Craies” on Statute Law -
6th Edition - P. 217]. In this case, the Court was
considering Section 5(2) (a) (ii) of Bengal Finance
H
PRABHA TYAGI v. KAMLESH DEVI 1029
[B. V. NAGARATHNA, J.]

Sales Tax Act, 1941 and Rule 27-A of Bengal Sales A
Tax Rules.
(iv) In Dattatraya Govind Mahajan and Others Vs.
The State of Maharashtra and another – [AIR
1977 SC 915], a Constitution Bench of the Apex
Court, while considering the amendment made to B
Maharashtra Agricultural Lands (Ceiling on Holdings)
Act, 1961, in the context of Article 31B of the
Constitution and the second proviso thereto, reiterated
what was stated in Ishverlal’s case, (supra).
(v) In S. Sundaram Pillai, etc, vs. V.R. Pattabiraman C
– [AIR 1985 SC 582], while dealing with the scope
of a proviso and explanation to sub - section (2) of
Section 10 of Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960, this Court held that a proviso may
have three separate functions. Normally, a proviso is
meant to be an exception to something within the D
main enactment or qualifying some thing enacted
therein which, but for the proviso, would be within
the purview of the enactment. In other words, a
proviso cannot be torn apart from the main
enactment, nor can it be used to nullify or set at naught E
the real object of the main enactment. Sometimes, a
proviso may exceptionally have the effect of a
substantive enactment.
(e) After referring to several legal treatises and judgments, this
Court held in the above judgment as under:- F
“43. We need not multiply authorities after authorities on
this point because the legal position seems to be clearly and
manifestly well established. To sum up, a proviso may serve
four different purposes:
(1) qualifying or excepting certain provisions from the main G
enactment;
(2) it may entirely change the very concept of the
intendment of the enactment by insisting on certain
mandatory conditions to be fulfilled in order to make the
enactment workable; H
1030 SUPREME COURT REPORTS [2022] 5 S.C.R.

A (3) it may be so embedded in the Act itself as to become an
integral part of the enactment and thus acquire the tenor
and colour of the substantive enactment itself; and
(4) it may be used merely to act as an optional addenda to
the enactment with the sole object of explaining the real
B intendment of the statutory provision.”
(f) The approach to the construction and interpretation of a
proviso is enunciated in the following cases.
(i) In M. Pentiah vs. Muddala Veeramallappa – [AIR
1961 SC 1107], it was observed that while interpreting
C a section or a proviso, if the choice is between two
interpretations, the narrower of which would fail to
achieve the manifest purpose of the legislation, one
should avoid a construction which would reduce the
legislation to futility and should rather accept the bolder
D construction based on the view that Parliament would
legislate only for the purpose of bringing about an
effective result.
(ii) In Superintendent & Remembrancer of Legal
Affairs to Govt. of West Bengal vs. Abani Maity -
E [AIR 1979 SC 1029], this Court observed that the
statute is not to be interpreted merely from the
lexicographer’s angle. The Court must give effect to
the will and in-built policy of the Legislature as
discernible from the object and scheme of the enactment
and the language employed therein. The words in a
F statute often take their meaning in the context of a
statute as a whole. They are, therefore, not to be
construed in isolation.
51. In the instant case, when the proviso is read in the context of
the main provision which begins with the words ‘an aggrieved person or
G a Protection Officer or any other person on behalf of the aggrieved
person may present an application to the Magistrate seeking one or more
reliefs under the D.V. Act’ would clearly indicate that the aggrieved
person can by herself or through her advocate approach the Magistrate
for seeking any of the reliefs under the D.V. Act. In such an event, the
filing of a Domestic Incident Report does not arise. The use of the
H
PRABHA TYAGI v. KAMLESH DEVI 1031
[B. V. NAGARATHNA, J.]

expression ‘shall’ in the proviso has to be read contextually i.e., the A
Magistrate is obliged to take into consideration any Domestic Incident
Report received by him when the same has been filed from the Protection
Officer or the service provider in a case where the application is made
to the Magistrate on behalf of the aggrieved person through a Protection
Officer or a service provider. If the intention of the Parliament had been
B
that filing of the Report by the Protection Officer is a condition precedent
for the Magistrate to act upon the complaint filed by an aggrieved person
even when she files it by herself or through her advocate then it would
have been so expressed. But a conjoint reading of Sub-Section (1) of
Section 12 with the proviso does not indicate such an intention. Thus, the
plenitude of power under Section 12 of the D.V. Act is accordingly C
interpreted and pre-requisite for issuing notice to the respondent on an
application filed by the aggrieved person without the assistance of a
Protection Officer or service provider and thus there being an absence
of Domestic Incident Report, does not arise. If a contrary interpretation
is to be given then the opening words of Sub-Section (1) of Section 12
D
would be rendered otiose and it would be incumbent for every aggrieved
person to first approach a Protection Officer or a service provider, as
the case may be, and get a Domestic Incident Report prepared and
thereafter to approach the Magistrate for reliefs under the D.V. Act,
which is not the intention of the Parliament. Hence, in our view, the
judgments of the Madhya Pradesh High Court in Rama Singh vs. Maya E
Singh – [(2012) 4 MPLJ 612] and the Delhi High Court in Ravi Dutta
vs. Kiran Dutta and Another – [2018 (2014) DLT 61], do not lay
down the correct law and are hereby overruled while we affirm all other
judgments referred to supra which are in consonance with the line of
interpretation made above.
F
52. In view of the above discussion, the three questions raised in
this appeal are answered as under:
“(i) Whether the consideration of Domestic Incidence Report is
mandatory before initiating the proceedings under Domestic
Violence Act, 2005 in order to invoke substantive provisions of G
Sections 18 to 20 and 22 of the said Act?”
It is 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 is clarified that even in the absence of a Domestic Incident Report, H
1032 SUPREME COURT REPORTS [2022] 5 S.C.R.

A a Magistrate is empowered to pass both ex parte or interim as well as a
final order under the provisions of the D.V. Act.
“(ii) Whether it is mandatory for the aggrieved person to reside
with those persons against whom the allegations have been levied
at the point of commission of violence?”
B It is held that it is not mandatory for the aggrieved person, when
she is related by consanguinity, marriage or through a relationship in the
nature of marriage, adoption or are family members living together as a
joint family, to actually reside with those persons against whom the
allegations have been levelled at the time of commission of domestic
C 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.
D “(iii) Whether there should be a subsisting domestic relationship
between the aggrieved person and the person against whom the
relief is claimed?”
It is held that there should be a subsisting domestic relationship
between the aggrieved person and the person against whom the relief is
E claimed vis-à-vis allegation of domestic violence. However, it is not
necessary that at the time of filing of an application by an aggrieved
person, the domestic relationship should be subsisting. In other words,
even if an aggrieved person is 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 but has at any point of time lived so or
F had the right to live and has been subjected to domestic violence or is
later subjected to domestic violence on account of the domestic
relationship, is entitled to file an application under Section 12 of the D.V.
Act.
53. Consequently, the judgment dated 23rd July, 2019 passed by
G the High Court of Uttarakhand in Criminal Revision No. 186 of 2014 as
well as the judgment dated 11th July, 2014 passed by the Vth Additional
Sessions Judge, Dehradun in Criminal Appeal No. 53 of 2011 are set
aside and the order passed by the Special Judicial Magistrate-I in
Miscellaneous Case No. 78 of 2007, Dehradun is affirmed.
H
PRABHA TYAGI v. KAMLESH DEVI 1033
[B. V. NAGARATHNA, J.]

54. The appeal is allowed in the aforesaid terms. A
55. Parties to bear their respective costs.
56. Before parting with this case, we express our appreciation to
the valuable services rendered by Shri Gaurav Agarwal, learned amicus
curiae, who has painstakingly researched all the relevant judgments on
the questions raised in this case arising from various High Courts and B
has made his submission schematically with particular reference to the
facts of the case and all relevant provisions of the D.V. Act.

Nidhi Jain Appeal allowed.
(Assisted by : Tamana, LCRA) C

D

E

F

G

H