SARASWATHYversusBABU

                         [2013] 12 S.C.R. 914


A                           SARASWATHY
                                   v.
                               BABU
                 (Criminal Appeal No. 1999 of 2013)
                        NOVEMBER 25, 2013
B
           [SUDHANSU JYOTI MUKHOPADHAYA AND
                  V. GOPALA GOWDA, JJ.]

        Protection of Women from Domestic Violence Act, 2005
C - ss. 2(g) 3, 18, 19, 20 and 22 - Petition under - Order of court
   directing the husband to allow the wife to reside in the shared
   household - The order defied by the husband - Whether the
  act of the husband amounts to 'domestic violence' as defined
   under the Act - Held: The act of the husband comes squarely
o within the ambit of s.3- In view of continued domestic violence
  by the husband against the wife, /-ligh Court made an
  apparent error in holding that the conduct of the parties prior
  to coming into force of the Act cannot be taken into
  consideration - The wife having been iwrassed, is entitled to
E protection orders and residence orders alongwith
  maintenance - In addition, she is also entitled for
  compensation and damages for injuries, including mental
  torture and emotional distress caused by the acts of domestic
  violence by the husband - Husband directed to pay
F compensation and damages to the extent of Rs.5 /akhs.
         Words and Phrases - 'Domestic violence' - Meaning of,
    in the context of Protection of Women from Domestic
    Violence Act, 2005.

G       The appellant-wife of the respondent, filed petition
    seeking relief u/ss.18, 19, 20 and 22 of the Protection of
    Women from Domestic Violence Act, 2005. The Court
    directed the respondent to give her maintenance and also
    gave residence order in her matrimonial house directing
H                                914
              SARASWATHY v. BABU                     915

the police to give her protection in implementing the A
residence order. The respondent-husband, despite the
order of the court, did not allow the appellant to reside
in the shared household. 1.n the contempt petition filed by
the appellant, the respondent gave wrong address and
mislead the High Court.                                     B

    The High Court, by impugned order held that though
the offending acts of the husband could be construed as
offences under other enactments, it could not be
construed as acts of domestic violence under the 2005
Act, until the Act came into force. Hence the present C
appeal.

    Allowing the appeal, the Court

     HELD: 1. Section 2 (g) of Protection of Women from 0
Domestic Violence Act, 2005 states that "domestic
violence" has the same meaning as assigned to it in
Section 3 of the Act. Section 3 is the definition of
domestic violence. Clause (iv) of Section 3 relates to
"economic abuse" which includes prohibition or E
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 as evident from clause (c) of
Section 3(iv). [Para 12] [927-C-D]
                                                            F
     2. In the present case, in view of the fact that even
after the order passed by the Subordinate Judge the
respondent-husband did not allow the appellant-wife to
reside in the shared household matrimonial house, there
is a continuance of domestic violence committed by the G
respondent-husband against the appellant-wife. In view
of such continued domestic violence, it is not necessary
for the courts below to decide whether the domestic
violence is committed prior to the coming into force of the
Act and whether such act falls within the definition of the H
    916       SUPREME COURT REPORTS          [2013) 12 S.C.R.

A   term 'Domestic Violence' as defined under Section 3 of
    the Act [Para 13] [927-E-F]

          3. The act of the respondent-husband squarely
     comes within the ambit of Section 3 of the Act which
    defines "domestic violence" in wide term. The High Court
8
    made an apparent error in holding that the conduct of the
    parties prior to the coming into force of the Act cannot
    be taken into consideration while passing an order. This
    is a case where the respondent-husband has not
    complied with the order and direction passed by the trial
C   court and the appellate court. He also misleads the court
    by giving wrong statement before the High Court in the
    contempt petition filed by the appellant-wife. The
    appellant-wife having been harassed since 2000 is
    entitled for protection orders and residence orders under
D   Section 18 and 19 of the Act along with the maintenance
    as allowed by the trial court under Section 20 (d) of the
    Act. Apart from these reliefs, she is also entitled for
    compensation and damages for the injuries, including
    mental torture and emotional distress, caused by the acts
E   of domestic violence committed by the respondent-
    husband. Therefore, in addition to the reliefs granted by
    the courts below, the appellant-wife should be
    compensated by the respondent-husband. Hence, the
    respondent is directed to pay compensation and
F   damages to the extent of Rs.5,00,000/- in favour of the
    appellant-wife. [Para 15] [928-C-G]
         V.D. Bhanot vs. Savita Bhanot (2012) 3 SCC 183: 2012
    (1) SCR 867 - relied on.
G                       Case Law Reference:
          2012 (1) SCR 867       relied on          Para 14
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1999 of 2013.
H
               SARASWATHY v. BABU                          917

    From the Judgment & Order dated 13.12.2011 of the High       A
Court of Madras in CrL R.C. No. 1321 of 2010.

    R. Balasubramanian, T. Harish Kumar for the Appellant.
    S.D. Dwaraka Nath, Dr. Kailash Chand for the
Respondent.                                                       B

    The Judgment of the Court was delivered by

     SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave
granted. This appeal has been preferred by the appellant-wife C
against the judgment and order dated 13th December, 2011
passed by the High Court of Judicature at Madras. By the
impugned judgment, the High Court dismissed the criminal
revision case filed by the appellant and thus affirmed the order
of First Appellate Court.
                                                                 D
     2. The pertinent facts of the case are as follows:
      The parties to the present dispute are married to each
 other and the said marriage was solemnized on 17th February,
 2000. According to the appellant, she brought 50 sovereign gold E
 ornaments and 1 kg silver articles as stridhan also Rs.10,000/
 - was given to the respondent. After marriage the appellant lived
 in her matrimonial house at Padi, Chennai. After four months
 of the marriage, the respondent-husband and his family
· demanded more dowry in the form of cash and jewels. The F
  appellant was not able to satisfy the said demand. Therefore,
  she was thrown out of her matrimonial house by the respondent
  and her in-laws. Another allegation of the appellant is that after
  sending out the appellant from her matrimonial house, the
  respondent-husband intended to marry again. On hearing such G
  rumour, the appellant filed petition under Section 9 of the Hindu
  Marriage Act, 1955 (hereinafter referred to as, "the HM Act,
  1955") bearing no. H.M.O.P. No. 216 of 2001 before the
  Principal Subordinate Judge, Chengalpattu, Tamil Nadu for
  restitution of conjugal rights.
                                                                     H
      918     SUPREME COURT REPORTS                 [2013] 12 S.C.R.


 A        The respondent-husband on the other hand filed H.M.O.P.
      No. 123 of 2002 under Section 13(1) (ia) and (iv) of the HMA
     Act, 1955 before the Principal Subordinate Judge,
     Chengalpattu, Tamil Nadu for dissolution of marriage between
     the appellant and the respondent .
 B
        On 5th April, 2006, the learned Principal Subordinate
   Judge, Chengalpattu, Tamil Nadu dismissed the petition for
   dissolution of marriage filed by the respondent-husband and
   allowed the petition for restitution of conjugal rights filed by the
 C appellant-wife with the condition that the appellant should not
   insist for setting up of a separate residence by leaving the
   matrimonial home of the respondent.

         In the year 2008, the appellant filed Crl. M.P. No. 2421 of
    2008 before learned XIII Metropolitan Magistrate, Egmore,
D Chennai against the respondent seeking relief under Section
    19, 20- and 22 of the Protection of Women from Domestic
   Violence Act, 2005 (hereinafter referred to as, "the PWD Act,
   2005"). The learned XIII Metropolitan Magistrate, Egmore,
   Chennai partly allowed the same and directed the respondent
E to give maintenance of Rs.2,000/- per month to the appellant
   to meet out her medical expenses, food, shelter and clothing
  expenses. The Magistrate Court's held that the appellant is in
  domestic relationship with the respondent and the appellant
  being the wife of the respondent has a right to reside in the
F shared household. The officer in charge of the nearest Police .
  Station was directed to give protection to the appellant for
  implementation of the residence orders and was also directed
  to assist in the implementation of the protection order.

       The respondent-husband being aggrieved preferred
G Criminal Appeal No. 339 of 2008 before the Sessions Court
  (Vlh Additional Judge) at Chennai.

      In the meantime, as per the order passed by the XIII
  Metropolitan Magistrate, Egmore, Chennai the appellant-wife
H went to her matrimonial house for staying with the respondent-
             SARASWATHY v. BABU                           919
      [SUDHANSU JYOTI MUKHOPADHAYA, J.)

husband house along with Protection Officer. However, the A
respondent did not obey the order of the Court and refused to
allow the appellant-wife to enter the house and locked the door
from outside and went out.

     On 22nd December, 2008, the appellant filed a complaint      B
against the respondent for not obeying the order of the learned
XIII Metropolitan Magistrate, Egmore, Chennai and the same
was registered in Ambatur T3 Korattur Police Station as FIR
No. 947 of 2008 under Section 31,32 and 74 of the PWD Act,
2005. The case was committed to the learned XIII Metropolitan     C
Magistrate, Egmore, Chennai and registered as Criminal
Miscellaneous Petition No. 636 of 2011.

     In the meantime, the Criminal Appeal No. 339 of 2008 filed
by the respondent-husband was partly allowed by the Sessions
Court (Vth Addi. Judge) at Chennai on 21st October, 2010. D
Sessions Courts by the said order set aside the order
prohibiting the respondent-husband from committing acts of
domestic violence as against the appellant-wife by not allowing
her to live in the shared household and the order directing the
respondent to reside in the house owned by respondent's E
mother and upheld the order granting maintenance of Rs.2,000/
- per month in favour of the appellant-wife by the respondent-
husband.

     3. Aggrieved by the aforesaid order, the appellant-wife      F
filed Crl. R.C. No. 1321 of 2010 before the High Court. A
criminal miscellaneous petition no.1 of 2010 was also filed in
the said revision application. On 23rd December, 2010, the High
Court granted an interim stay to the above order passed by the
learned Sessions Court (Vth Addi. Judge) at Chennai.
                                                                  G
     4. In the meantime, while the matter was pending before
the High Court, the learned XIII Metropolitan Magistrate,
Egmore, Chennai passed an order on 24th February, 2011 in
Crl. Misc. Petition No. 636 of 2011 (arising out of FIR No. 947
of 2008) and directed the SHO, Ambatur T3 Korattur Police         H
    920       SUPREME COURT REPORTS             (2013] 12 S.C.R.

A Station to break the door of the respondent's house in the
  presence of the Revenue Inspector and make accommodation
  for the appellant with further direction to the SHO to inquire
  about the belongings in the respondent's house in presence of
  the family members of the respondent with further direction to
B submit the report to the respondent as well as the Protection
  Officer. The respondent-husband thereafter filed a petition for
  vacating the order of stay dated 23rd December, 2010 and
  vide order dated 9th March, 2011 the High Court vacated the
  order of stay and made it clear that appellant-wife can go and
C reside with her husband in his rental residence at
  Guduvancherry. As the order aforesaid was not complied with
  by the respondent-husband the appellant-wife filed Contempt
  Petition No. 958 of 2011 against the respondent-husband for
  wantonly disobeying the order dated 9th March, 2011 passed
  by the High Court.
0
       5. The High Court closed the contempt petition vide order
  dated 21st July, 2011 with following observation:

          "In view of the categorical submission made by the Ld.
E         Counsel for the respondent as well as the statement
          made by the respondent herein by appearing before this
          court and stating that the respondent undertakes not to
          prevent the contempt petitioner from entering inside the
          premises at Door No. 80, Karpagambal Nagar,
          Nadivaram, Guduvancherry, Chennai and the contempt
F
          petitioner also agreed to occupy and stay in the above
          said premises from 01.08.2011, the contempt petition is
          hereby closed."

       6. Thereafter the appellant made representation before
G Sub Inspector of Police, Guduvancherry and stated that the
  respondent-husband has given false address and in order to
  comply with the court's order, the appellant went to the address
  and on enquiry came to know that the address was a bogus
  one. The appellant thereby submitted a complaint and requested
H the police to enquire from the respondent to ascertain the real
             SARASWATHY v. BABU                            921
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
facts so as to ensure that the court's order is executed in its   A
letter and spirit.

     7. When the matter was pending before the Police, the
High Court decided the criminal miscellaneous case filed by
the appellant and held that although the offending acts of the    B
respondent could be construed as offences under other
enactments it could not be construed as acts of domestic
violence under the PWD Act, 2005 until the Act came into force.
The High Court dismissed the revisional application.

     8. From the bare perusal of the impugned judgment C
passed by the High Court, we find that the High Court framed
the following question:

    "4. The primary question that arises for consideration is
    whether acts committed prior to the coming into force of D
    the Protection of Women from Domestic Violence Act,
    2005 and which fall within the definition of the term
    'Domestic Violence' as informed in the Act could form the
    basis of an action."

    9. The High Court after taking into consideration the stand   E
taken by the parties held as follows:

    "5. This court would first concern itself with whether acts
    which now constitute domestic violence but committed
    prior to the coming into force of the Act would form a F
    basis of an action thereunder. With due respect to the
    authorities above cited, this court would inform that the
    fundamental issue stands unaddressed. The Act cam
    into force on 2005. It cannot be disputed that several
    wrongful actions which might have amounted to offences G
    such as cruelty and demand for dowry cannot have taken
    the description of "Domestic violence" till such time the
    act came into force. In other words the offending acts
    could have been construed as offences under other
    enactments but could not have been construed as acts H
    922      SUPREME COURT REPORTS               [2013] 12 S.C.R.


A         of 'Domestic Violence' until the act came into force.
          Therefore, what was not 'Domestic violence' as defined
          in the Act till the Act came into force could not have
          formed the basis of an action. Ignorance of Jaw is no
          excuse but the application of ti'lis maxim on any date
B         prior to the coming into force of the Act could only have
          imputed knowledge of offence as subsisted prior to
          coming into force of the Act. It is true that it is only
          violation of orders passed under the Act which are made
          punishable. But those veiy orders could be passed only
c         in the face of acts of domestic violence. What constituted
          domestic violence was not known until the passage of the
          act and could not have formed the basis of a complaint
          of commission of 'Domestic vio/,9nce'."

       10. From the judgment passed by the Trial Court (XIII
D Metropolitan Magistrate, Egmore, Chennai dated 5th
  December, 2008) we find that the appe11lant filed petition against
  her husband Babu seeking relief under Sections 18, 19, 20 and
  22 under the PWD Act, 2005. Section~; 18, 19, 20 and 22 read
  as follows:
E
          "18. Protection orders.-The Magistrate may, after giving
          the aggrieved person and the respondent an opportunity
          of being heard and on being pnma facie satisfied that
          domestic violence has taken pl11ce or is likely to take
F         place, pass a protection order in favour of the aggrieved.
          person and prohibit the respondent from-

          (a) committing any act of domestic violence;

          (b) aiding or abetting in the commission of acts of
G         domestic violence;

          (c) entering the place of employment of the aggrieved
          person or, if the person aggrieved is a child, its school
          or any other place frequented by the aggrieved person;

H         (d) attempting to communicate in any form, whatsoever,
        SARASWATHY v. BABU                            923
 [SUDHANSU JYOTI MUKHOPADHAYA, J.]

with the aggrieved person, including personal, oral or A
written or electronic or telephonic contact;

(e) alienating any assets, operating bank Jockers or bank
accounts used or held or enjoyed by both the parties,
jointly by the aggrieved person and the respondent or B
singly by the respondent, including her stridhan or any
other property held either jointly by the parties or
 separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or
any person who give the aggrieved person assistance C
from domestic violence;

(g) committing any other act as specified in the protection
order.

19. Residence orders.-(1) While disposing of an D
application under sub-section (1) of section 12, the
Magistrate may, on being satisfied that domestic violence
has taken place, pass a residence order -

 (a)    restraining the respondent from dispossessing or E
        in any other manner disturbing the possession of
        the aggrieved person from the shared household,
        whether or not the respondent has a legal or
        equitable interest in the shared household;

 (b)    directing the respondent to remove himself from       F
        the shared household;

 (c)    restraining the respondent or any of his relatives
        from entering any portion of the shared household
        in which the aggrieved person resides;             G

  (d)   restraining the respondent from alienating or
        disposing off the shared household or
        encumbering the same;

  (e)   restraining the respondent from renouncing his H
    924          SUPREME COURT REPORTS             (2013] 12 S.C.R.


A                 rights in the shared household except with the
                  leave of the Magistrate; or

           (f)    directing the respondent to sec;ure same level of
                  alternate accommodation for the aggrieved
B                 person as enjoyed by her in the shared household
                  or to pay rent for the same, if the circumstances
                  so require:

          Provided that no order under clause (b) shall be passed
          against any person who is a woman.
c
          (2) The Magistrate may impose any additional conditions
          or pass any other direction which he may deem
          reasonably necessary to protect or to provide for the
          safety of the aggrieved person or any child of such
o         aggrieved person.

          (3) The Magistrate may require from the respondent to
          execute a bond, with or without sureties, for preventing the
          commission of domestic violence.

E         (4) An order under sub-section (3) shall be deemed to
          be an order under Chapter VIII of the Code of Criminal
          Procedure, 1973 (2 of 1974) and shall be dealt with
          accordingly.

          (5) While passing an order under sub-section (1), sub-
F
          section (2) or sub-section (3), the court may also pass
          an order directing the officer in charge of the nearest
          police station to give protection to the aggrieved person
          or to assist her or the person making an application on
          her behalf in the implementation of the order.
G
      (6) While making an order under sub-section (1), the
      Magistrate may impose on the respondent obligations
      relating to the discharge of rent and other payments,
      having regard to the financial needs and resources of the
H     parties.                     ,
        SARASWATHY v. BABU                             925
 [SUDHANSU JYOTI MUKHOPADHAYA, J.]

(7) The Magistrate may direct the officer in-charge of the A
police station in whose jurisdiction the Magistrate has
been approached to assist in the implementation of the
protection order.

(8) The Magistrate may direct the respondent to return          B
to the possession of the aggrieved person her stridhan
or any other property or valuable security to which she is
entitffid to.

20. Monetary re/iefs.-(1) While disposing of an
application under sub-section (1) of section 12, the C
Magistrate may direct the respondent to pay monetary
relief to meet the expenses incurred and losses suffered
by the aggrieved person and any child of the aggrieved
person as a result of the domestic violence and such
relief may include, but not limited to,-                 D

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or E
removal of any property from the control of the aggrieved
person; and

(d) the maintenance for the aggrieved person as well as
her children, if any, including an order under or in addition   F
to an order of maintenance under section 125 of the
Code of Criminal Procedure, 1973(2 of 1974) or any
other Jaw for the time being in force.

(2) The monetary relief granted under this section shall
be adequate, fair and reasonable and consistent with the G
standard of living to which the aggrieved person is
accustomed.

(3) The Magistrate shall have the power to order an
appropriate Jump sum payment or monthly payments of H
    926       SUPREME COURT REPORTS              (2013] 12 S.C.R.


A         maintenance, as the nature and circumstances of the
          case may require.

          (4) The Magistrate shall send a copy of the order for
          monetary relief made under sub-section (1) to the parties
          to the application and to the in-charge of the police
B
          station within the local limits of whose jurisdiction the
          respondent resides.

          (5) The respondent shall pay the monetary relief granted
          to the aggrieved person within the period specified in the
c         order under sub-section (1).

          (6) Upon the failure on the part of the respondent to make
          payment in terms of the order under sub-section (1), the
          Magistrate may direct the employer or a debtor of the
D         respondent, to directly pay to the aggrieved person or to
          deposit with the court a portion of the wages or salaries
          or debt due to or accrued to the credit of the respondent,
          which amount may be adjusted towards the monetary
          relief payable by the respondent.
E         22. Compensation orders.-ln addition to other reliefs as
          may be granted under this Act, the Magistrate may on
          an application being made by the aggrieved person,
          pass an order directing the respondent to pay
          compensation and damages for the injuries, including
F         mental torture and emotional distress, caused by the acts
          of domestic violence committed by that respondent."

       11. The Trial Court having noticed the provisions of PWD
  Act, 2005 and the fact that the appellant-wife was prevented
G by the respondent-husband to enter the matrimonial house even
  after the order passed by the Subordinate Judge, granted
  protection under Section 18 with further direction to the
  respondent-husband under Section 19 to allow the appellant-
  wife to enter in the shared household and not to disturb the
H possession of the appellant-wife and to pay maintenance of
            SARASWATHY v. BABU                           927
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]

Rs.2,000/- per month to meet her medical expenses, food and A
other expenses. However, no compensation or damages was
granted in favour of the appellant-wife.

     Notices were issued on the respondent but inspite of
service, no affidavit has been filed by the respondent denying   B
the averments made in the petition.

     12. Section 2 (g) of PWD Act, 2005 states that "domestic
violence" has the same meaning as assigned to it in Section
3 of PWD Act, 2005. Section 3 is the definition of domestic
violence. Clause (iv) of Section 3 relates to "economic abuse" C
which includes 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 as evident from clause (c) of
Section 3(iv).                                                   D

     13. In the present case, in view of the fact that even after
the order passed by the Subordinate Judge the respondent-
husband has not allowed the appellant-wife to reside in the
shared household matrimonial house, we hold that there is a
continuance of domestic violence committed by the E ·
respondent-husband against the appellant-wife. In view of the
such continued domestic violence, it is not necessary for the
courts below to decide whether the domestic violence is
committed prior to the coming into force of the Protection of
Women from Domestic Violence Act, 2005 and whether such F
act falls within the definition of the term 'Domestic Violence'
as defined under Section 3 of the PWD Act, 2005.

     14. The other issue that whether the conduct of the parties
even prior to the commencement of the PWD Act, 2005 could G
be taken into consideration while passing an order under
Sections 18, 19 and 20 fell for consideration before this Court
in V.D. Bhanot v. Savita Bhanot (2012) 3 SCC 183. In the said
case, this Court held as follows:
                                                                 H
    928       SUPREME COURT REPORTS                [2013) 12 S.C.R.

A         "12. We agree with the view expressed by the High Court
          that in looking into a complaint under Section 12 of the
          PWD Act, 2005, the conduct of the parties even prior to
          the coming into force of the PWD Act, could be taken into
          consideration while passing an order under Section 18, 19
8         and 20 thereof. In our view, the Delhi High Court has also
          rightly held that even if a wife, who had shared a household
          in the past, but was no longer doing so when the Act came
          into force, would still be entitled to the protection of the
          PWD Act, 2005,"
c         15. We are of the view that the act of the respondent-
    husband squarely comes within the ambit of Section 3 of the
    PWD Act, 2005, which defines "domestic violence" in wide term.
    The High Court made an apparent error in holding that the
    conduct of the parties prior to the coming into force PWD Act,
D   2005 cannot be taken into consideration while passing an
    order. This is a case where the respondent-husband has not
    complied with the order and direction passed by the Trial Court
    and the Appellate Court. He also misleads the Court by giving
    wrong statement before the High Court in the contempt petition
E   filed by the appellant-wife. The appellant-wife having being
    harassed since 2000 is entitled for protection orders and
    residence orders under Section 18 and 19 of the PWD, Act,
    2005 along with the maintenance as allowed by the Trial Court
    under Section 20 (d) of the PWD, Act, 2005. Apart from these
F   reliefs, she is also entitled for compensation and damages for
    the injuries, including mental torture and emotional distress,
    caused by the acts of domestic violence committed by the
    respondent-husband. Therefore, in addition to the reliefs
    granted by the courts below, we are of the view that the
G   appellant-wife should be compensated by the respondent-
    husband. Hence, the respondent is hereby directed to pay
    compensation and damages to the extent of Rs.5,00,000/- in
    favour of the appellant-wife.
          16. The order passed by the High Court is set aside with
H
                SARASWATHY v. BABU                          929
         [SUDHANSU JYOTI MUKHOPADHAYA, J.]

a direction to the respondent-husband to comply with the orders     A
and directions passed by the courts below with regard to
residence and maintenance within three months. The
respondent-husband is further directed to pay a sum of
Rs.5,00,000/- in favour of the appellant-wife within six months
from the date of this order. The appeal is allowed with aforesaid   B
observations and directions. However, there shall be no
separate order as to costs.

K.K.T.                                         Appeal allowed.