Gangadhara Panicker Bhavanendran v. Sreeja, Bobby Sarma, Thrishna, Mohan Sarma, Yesodhara, The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 23RD DAY OF MARCH 2012/3RD CHAITHRA 1934** **Crl.Rev.Pet.No. 980 of 2011 ( )** **------------------------------CRA.497/2010 of ADDL. SESSIONS COURT-I, MAVELIKKARA MC.82/2009 of J.M.F.C., HARIPAD** **REVISION PETITIONER:** **---------------------------------** **GANGADHARA PANICKER BHUVANENDRAN, S/O. GANGADHARA PANICKER, AGED 63 YEARS PERMANENTLY RESIDING AT MANIMANDIRAM, KANDALLOOR SOUTH.P.O, KAYAMKULAM AND WORKING IN CROWN EMIRATES CO. LTD. P.O. BOX NO. 17030, JAFER ALI FREE ZONE, DUBAI, U.A.E.** ## **BY ADV. SRI.N.UNNIKRISHNAN** **RESPONDENTS:** **-----------------------** **1. SREEJA, W/O. MOHAN SARMA, SUDARSANA, KANDALLOOR SOUTH, KANDALLOOR VILLAGE PATTOLI MARKET.P.O, PIN - 690 531.** **2. BOBBY SARMA, AGED 10 YEARS REPRESENTED BY MOTHER SREEJA SUDARSANA, KANDALLOOR SOUTH KANDALLOOR VILLAGE, PATTOLI MARKET.P.O PIN - 690 531.** **3. THRISHNA, AGED 8 YEARS REPRESENTED BY MOTHER SREEJA** **SUDARSANA, KANDALLOOR SOUTH KANDALLOOR VILLAGE, PATTOLI MARKET.P.O PIN - 690 531.** **4. MOHAN SARMA, AGED 49 YEARS, W/O. GANGADHARAN, CTCO, INTERN CARGO SERVICES, LLC P.O. BOX NO. 16967, AJMAN UAE** **5. YESODHARA, AGED 86 YEARS, MANIMANDIRAM, KANDALLOOR SOUTH, KANDALLOOR VILLAGE PATTOLI MARKET.P.O, PIN - 690 531.** **(...2)** ## **Crl.Rev.Pet.No. 980 of 2011** ## **:: 2 ::** ## **6. THE STATE OF KERALA,** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY ADV. SMT.K.M.MARY SHEEJA BY ADV. SRI.SAJEEV KUMAR K.GOPAL BY ADV. SRI.NAGARAJ NARAYANAN BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-032012, ALONG WITH CRRP. 2565/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **STK** ## **Crl.Rev.Pet.No. 980 of 2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **A1: CERTIFIED COPY OF THE JUDGMENT DAT4ED 16/02/2011 IN CRIMINAL APPEAL NO.497/2010 ON THE FILE OF THE ADDITIONAL SESSIONS COURT, MAVELIKKARA. A2: TRUE COPY OF ORDER IN M.C. NO.82/2009 DATED 20/08/2010 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1, HARIPPAD. A3: TRUE COPY OF BUILDING TAX RECEIPT NO.71 DATED 31/05/2005. A4: TRUE COPY OF BUILDING TAX RECEIPT NO.20 DATED 11/10/2010. A5: TRUE COPY OF PROPERTY TAX RECEIPT NO.1001801 DATED 30/12/2008.** ## **RESPONDENTS' ANNEXURES: NIL** **//TRUE COPY//** **P A TO JUDGE** **STK** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. Nos. 980 & 2565 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of March, 2012. ## **ORDER** Judicial Magistrate of the First Class-I, Haripad before which respondents 1 to 3 herein instituted proceedings under Section 12 of the Protection of Women from Domestic Violence Act (hereinafter referred to as DV Act),granted reliefs under various provisions of the Act. Aggrieved by the said order, the first and third respondents before the trial court filed Crl.Appeal Nos.496 of 2010 and 497 of 2010 before the Additional Sessions Court, Mavelikkara. The appellate court dismissed the appeals. Aggrieved by the dismissal of his appeal, the first respondent preferred Crl.R.P. 2565 of 2011 and the third respondent preferred Crl.R.P.980 of 2011. Parties and facts are referred to as they are available before the trial court. Crl.R.P.980 & 2565/11. 2 2. Certain facts are admitted. The first petitioner before the trial court married the first respondent therein on 23.4.1999 and they took up residence in the matrimonial house known as 'Manimandiram', which according to the revision petitioners belongs exclusively to the third respondent before the trial court. In that wedlock petitioners 2 and 3 before the trial court were born. The petition filed before the JFCM-I, Haripad makes mention of various articles given at the time of marriage and appropriated by the respondents. It was alleged that soon after the marriage, the first petitioner before the trial court had to suffer humiliation and mental agony due to the treatment meted out to her by the first respondent. They not only insulted her but also her parents and demanded more dowry from her parents. In 2002 the first respondent is said to have left abroad on employment and he returned in 2004. On his return, the treatment meted out to the first Crl.R.P.980 & 2565/11. 3 petitioner became more cruel and brutal and unable to put up with the same any more, the first petitioner left for her parental home on 4.10.2005. Complaining that the first respondent was not maintaining her and her children and asserting her right to reside in the shared household, namely, 'Manimandiram', and claiming return of the gold and cash given at the time of marriage, proceedings were initiated under the DV Act claiming reliefs under Sections 18,19, 20 and 22 of the said Act. 3. The respondents resisted the petition. According to the first respondent, the first petitioner is an arrogant lady, who wanted to live in her own way and she insisted that the first respondent should go and reside with her in her parental house. Soon after the marriage she began to show dislike for staying in the matrimonial house. It was admitted that the articles mentioned in schedule B of the petition were infact received by the first respondent and he was ready to return the same. But he strongly disputed Crl.R.P.980 & 2565/11. 4 that the gold ornaments and the money said to have been given at the time of the marriage were misappropriated by him. The first petitioner by her own conduct chose to remain away from the first respondent and the first respondent has never shown any dislike for the first petitioner and treated her cruelly. The first petitioner was never amenable to any acceptable or amicable settlement and she wanted to have things in her own way. The current situation has arisen due the acts of the first petitioner and the first respondent disputed that she is entitled to any relief under the Act. 4. In the objection by the second respondent, who is none other than the mother of the first respondent and the mother-in-law of the first petitioner, she feigns ignorance about the articles said to have been given at the time of marriage. She disputed that she ever committed any act which caused mental agony or harassment to the first petitioner. She also disputed that she had ever Crl.R.P.980 & 2565/11. 5 demanded from the parents of the first petitioner for dowry or demanded the first petitioner to get more dowry or gold. According to her, the petition is misconceived. 5. The third respondent in his objection contended that he had nothing to do with the gold ornaments or so-called articles said to have been given at the time of marriage. He is employed abroad and he and his family are settled at his place of employment. He had at no point of time demanded either gold or money either from the first petitioner or her parents. The allegations against him are totally baseless and ill-motivated. He too prayed for a dismissal of the petition. 6. Evidence was adduced before the trial court. Evidence consists of the testimony of P.Ws.1 to 7 and documents marked as Exts.P1 to P5 marked from the side of the petitioners. The respondents chose to adduce no evidence. The trial court raised the following issues: Crl.R.P.980 & 2565/11. 6 “1) Whether the petitioner and her children are entitled to any maintenance? If so, at what rate? 2) Whether the petitioner is entitled to any amount towards price of gold ornaments from the respondents? 3) Whether the petitioner is entitled to any amount towards price of gold ornaments from the respondents? 4) Whether the petitioner is entitled to get back the movables mentioned in Schedule B of the petition? 5) Whether the petitioner is entitled to get any residence order? 6) Whether the petitioner is entitled to got any Protection order?” 7. Ultimately after an analysis of the evidence, the reliefs were granted as follows: “(1) The 1[st] respondent is hereby directed to pay Rs.10,000/- per mensem to the petitioner and Rs.5,000/- each per mensem to the children of the petitioner and the 1[st] respondent from August, 2009. Crl.R.P.980 & 2565/11. 7 (2) The respondents are hereby directed to return the items mentioned in schedule B of the application. (3) The respondents are hereby restrained from causing any hindrance to the peaceful residence of the petition and her children in the shared household of her namely 'Mani Mandiram', Kandallur south muri, Kandallur village, Kayamkulam P.O. (4) The respondents are hereby prohibited from physically or mentally harassing the petitioner. The claims for compensation and value of gold ornaments stand disallowed.” 8. As already stated the first respondent and the third respondent preferred appeals before the lower appellate court. The first respondent was aggrieved by the quantum of maintenance granted to the first petitioner and the injunction against physically and mentally harassing the first petitioner. His contention was that he had never done any act which would cause any agony to the first petitioner Crl.R.P.980 & 2565/11. 8 and the allegations in the petition, which have ultimately been accepted by the court below, are baseless and there is no evidence regarding the same. 9. The third respondent also filed an appeal mainly aggrieved by the residential order granted in the shared household, 'Manimandiram', which according to him exclusively belonged to him and it was never treated as either as the matrimonial house or the shared household in order to grant relief to the petitioners in relation to the said building. 10. The lower appellate court by a common order disposed of the appeals. The lower appellate court felt that the maintenance granted at the rate of Rs.10,000/- to the first petitioner and Rs.5,000/- each to petitioners 2 and 3 are rather on the high side and came to the conclusion that the just and reasonable amount is Rs.3,000/- to the first petitioner and Rs.3,500/- each to the two children. The residential order was retained. Thus the appeal filed by the Crl.R.P.980 & 2565/11. 9 first respondent was partly allowed, and the appeal filed by the third respondent stood dismissed. 11. Before this court, learned counsel appearing for the third respondent as Crl.R.P. No.980 of 2011, very vehemently contended that the courts below have erred in law and on facts in coming to the conclusion that 'Manimandiram' is the shared household. Learned counsel went on to contend that there was no domestic relationship between the petitioners and the third respondent and therefore no residential order could have been granted to the first petitioner in relation to 'Manimandiram'. According to learned counsel, from 2005 onwards there was no relationship between the petitioners and the first respondent. Therefore any domestic relationship that might have existed earlier got snapped and at the time when the petition was filed, there was no domestic relationship existing and 'Manimandiram' could not be treated either as matrimonial house or shared houehold of the first petitioner Crl.R.P.980 & 2565/11. 10 before the trial court. In fact, learned counsel pointed out that it was doubtful whether after 2002 the first petitioner has ever resided in 'Manimandiram'. First and second respondents have no right over the building. The building was put up by him. It is also contended that respondents 1 and 2 have surrendered whatever rights they had in 2006 and thereafter the third defendant became the exclusive owner of the building and the property, in which the building stood. The mere fact that at one point of time the first petitioner might have resided in 'Manimandiram' is insufficient for her to seek a right of residence in the said building especially when it did not belong to the first respondent and belonged exclusively to the third respondent. In support of his contention, learned counsel relied on the decision reported in **S.R. Batra v. Smt. Taruna Batra** (AIR 2007 SC 1118). Crl.R.P.980 & 2565/11. 11 12. Learned counsel for the revision petitioner in Crl.R.P.980 of 2011 went on to contend that the sine qua non for granting relief under the Act are (i) there should be domestic violence and (ii) there should be domestic relationship. In the case on hand, both are absent. Drawing attention to the pleadings in the case, learned counsel went on to point out that even according to the first petitioner, the so-called cruel acts meted out to her were prior to 2005 and even according to the first petitioner, after 2005 there has been no relationship between her and the first respondent let alone respondents 2 ad 3. The petition has been filed only in 2009. The long delay in filing the petition for reliefs under the Act shows the lack of bonafides and the malafides in initiating proceedings against the respondents. Attention was drawn to the fact that it was conceded by the first petitioner when she was examined as P.W.1 that the third respondent with his family Crl.R.P.980 & 2565/11. 12 is residing abroad and therefore there was no joint family as contemplated under the Act in order to enable the first petitioner to seek residential order in respect of 'Manimandiram' labelling it as a shared household. 13. It was also contended that there was no report called for from the protection officer and without which, the proceedings could not have been continued by the learned Magistrate and omission to call for a report vitiates the whole proceedings. In support of his contention that delay is a crucial aspect regarding the determination of rights under the Act, learned counsel relied on the decision reported in **D. Velusamy v. D. Patchaiammal** ((2010) 10 SCC 469). 14. Learned counsel went on to point out that viewed from any angle, the residential order granted in respect of Manimandiram which exclusively belonged to 3[rd] respondent cannot be sustained. Crl.R.P.980 & 2565/11. 13 15. Learned counsel appearing for the revision petitioner in Crl.R.P.2565 of 2011 contended that sine qua non for initiating proceedings is the commission of domestic violence which might have compelled the first petitioner to initiate proceedings under the Act. Learned counsel also drew the attention of this court to the order passed by the trial court and pointed out that there is no finding that any domestic violence as such has been committed by the first respondent or other respondents in order to clothe the petitioners with right to initiate proceedings under the Act. Unless it is found that domestic violence has been committed, reliefs could not have been granted under the Act. According to the learned counsel, the commission of domestic violence is not a matter of presumption but of pleadings and proof. Learned counsel contended that even according to the first petitioner, the so-called cruel acts were committed prior to 2005 and after 2005 there was no relationship whatsoever between the first petitioner and the Crl.R.P.980 & 2565/11. 14 first respondent. It escapes one's understanding, according to learned counsel, as to what had prevented the first petitioner from either complaining about the cruel acts said to have been committed by the first respondent or the other respondents till 2009 when suddenly the first petitioner initiated proceedings under the Act. The long delay and also the absence of any finding regarding the commission of any domestic violence vitiates the orders of the courts below. Therefore, it is contended that the order passed by both the trial court as well as the appellate court are unsustainable in law. 16. Learned counsel appearing for the respondents on the other hand pointed out that though the contentions raised by the revision petitioners may look formidable and attractive, they are totally baseless and unwarranted. Learned counsel went on to point out that in order to constitute a domestic violence, it is not necessary that physical violence or other forms of violence should be Crl.R.P.980 & 2565/11. 15 committed immediately prior to the filing of the petition. Further, physical violence is not necessary to invoke the provisions of the Act. The Act contemplates several types of violence which would be clear from Sections 3 and 4 of the Act. It is true that the first petitioner has stated that she had snapped relationship between her and the first respondent in 2005 and has been residing in her parental house since then. But she has also stated that the first respondent has not cared to maintain her and her children which is a statutory obligation and that constitutes economic abuse. She has also stated in her petition that the gold and money given to her at the time of marriage have been misappropriated by the respondents and they continued to demand more money and dowry. Domestic violence contemplated under the Act takes in verbal and emotional abuse as well as economic abuse. Learned counsel drew the attention of this court to the averments in the petition and the evidence of P.W.1 and highlighted the Crl.R.P.980 & 2565/11. 16 plight of the first petitioner in having been compelled to reside in hotel rooms with the first respondent and the cruel treatment meted out to her on various occasions. Petitioner has given evidence as P.W.1 to the effect that soon after the marriage she was taken to 'Manimandiram', which was considered as her matrimonial house and she stayed there till 2005. It is true that she returned to her parental house soon after the first respondent left for employment abroad. But frequently thereafter she used to go and reside in 'Manimandiram'. It is also stated that on a later occasion when she went to reside there, the second respondent objected to the same stating that the building belonged to the third respondent. Drawing attention to the evidence adduced in the case, learned counsel for the respondents pointed out that the evidence is clear to the effect that the petitioners before the court below and the respondents have lived together in 'Manimandiram' as a joint family and that was treated as the abode of the petitioner and all the Crl.R.P.980 & 2565/11. 17 respondents at all points of time. The contention now taken that 'Manimandiaram' exclusively belonged to the third respondent and the first and second respondents were residing there only as beneficiaries of the mercy shown by the third respondent is urged only in appeal and before this court. A look at the objections filed by the respondents before the trial court did not reflect any such contention at all. At the time of evidence, the respondents never had a case that 'Manimandiram' was neither the matrimonial house nor the shared household of the parties. The so-called affidavits filed by the first and second respondents asserting that 'Manimandiram' belonged exclusively to the third respondent is a clear afterthought and cannot be of any significance or consequence. The petitioner has pointed out about her stay at hotels in 2004 when the first respondent returned from abroad and the humiliating and agonizing treatment she had to face at the hands of the first respondent. Crl.R.P.980 & 2565/11. 18 17. Learned counsel referring to the definition of 'domestic relationship', 'shared household' and 'domestic violence' as mentioned in Section 3 of the Act pointed out that in order to attract the definition of 'domestic relationship' and 'shared household', it is not necessary that at the relevant point of time the petitioner should continue her residence with the parties concerned or in the residence involved in the proceedings. Past conduct in this regard would be sufficient to clothe the petitioners with rights to invoke the provisions under the Act. In support of his case that even after divorce provisions of the Act can be invoked, learned counsel relied on the decisions reported in **Smt.Bharati Naik v. Shri.Ravi Ramnath Halarnkar** (CDJ 2010 BHC 549) and **Priya v. Shibu** (2008(3) KHC 125). In support of his contention that 'domestic relationship' does not mean that the relationship should be subsisting at the time of institution of the proceedings, Crl.R.P.980 & 2565/11. 19 learned counsel relied on the decision reported in **Palani M v. Meenakshi** (2008(3) KHC 320). Reliance was also placed on the decision reported in **Preceline George v. State of Kerala** (2011(4) KHC 502). In support of his case that even economic abuse is sufficient to clothe the petitioners with right to invoke the provisions of the Act, learned counsel relied on the decision reported in **Jovita Olga Ignesia Mascarenhase Coutinho v. Rajan Maria Coutinho** (CDJ 2010 BHC 1915). In support of his contention that the courts below were justified in grating residential order, learned counsel relied on the decision reported in **Prabhakaran v. State of Kerala** (2009(1) K..L.T. 175). 18. Learned counsel for the respondents went on to point out that the contention that unless a report is called for from the Protection Officer, the proceedings under the Act cannot go on is baseless. Drawing attention to the provisions of the Act, learned counsel contended that the Crl.R.P.980 & 2565/11. 20 proceedings under the Ac seeking appropriate reliefs could be initiated in two ways. Proceedings could be initiated either on the report of the Protection Officer or by an independent application by the person concerned. If proceedings are initiated by the person aggrieved, it is not mandatory that the court should call for a report of the Protection Officer. The court may do so and if a report is obtained, that shall be taken into consideration at the time of passing orders. If on the other hand, proceedings are initiated on the basis of the report filed by the Protection Officer, then necessarily at the time of considering the reliefs, that report will have to be taken note of. In support of the above contention, learned counsel relied on the decision reported in **Shah Sami Khan v. Adnan Sami Khan** (2011(3 K.L.T. SN 11). 19. It is true that the trial court has not as such entered a finding of domestic violence which justified initiation of proceedings under the Act. It is also true that Crl.R.P.980 & 2565/11. 21 no specific issue as such has been raised. But the trial court has noticed the various complaints raised by the petitioners and the objection filed by the respondents. It has also considered whether the petitioners are entitled to protection orders as envisaged under the Act. The trial court has considered those aspects and have come to the conclusion that on the basis of the materials available, the petitioners are entitled to the various reliefs granted by the said court. 20. The appellate court was confined to the question of grant and quantum of maintenance as well as residential order passed by the trial court. It does not appear that the lower appellate court was actually addressed regarding the question as to whether the trial court had not entered a specific finding regarding domestic violence nor was there an issue raised regarding that aspect of the case. Crl.R.P.980 & 2565/11. 22 21. As rightly pointed out by the learned counsel for the respondents, it is not physical violence that enables the petitioners to initiate proceedings under the Act. It will be useful at this point of time to refer to some of the definitions, which are relevant in the present context. 22. Section 2(a) defines aggrieved person. Section 2(f) defines domestic relationship. Section 2(s) defines shared household. Section 3 defines domestic violence. It makes mention of physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. Section 17 of the Act recognises the right of the aggrieved person to reside in the shared household. Section 18 concerns itself with grant of protection orders. Section 19 deals with residential orders and Section 20 deals with monetary reliefs. The application to be filed seeking the above reliefs is under Section 12 of the Act. Crl.R.P.980 & 2565/11. 23 23. Before going further, the object and the purpose of the Act may be considered. Considering domestic violence as a human rights issue and its magnitude, it became necessary to enact a law to safeguard the victims, i.e., woman, who is subjected to cruelty by her husband and relatives. The Act takes within its purview wide range of abuses and seeks to prevent any form of abuse of women, be economic, sexual or otherwise. The expression domestic violence is couched in a wide language and so also it can be seen from the definitions that it is not necessary that the relationship necessary to attract the provisions of the Act exist at the time of seeking protection atleast in respect of some of the reliefs. It takes care of woman whose marriage relationship subsists and who are also divorced. May be that the relief available to the divorced wife may be quite different and may not be as wide as a woman holding the marital status. The Act seeks Crl.R.P.980 & 2565/11. 24 to provide secure housing, protection from any harassment of any nature, threats etc for women. 24. A look at the definition of 'domestic relationship' shows that it is not necessary that the relationship contemplated under that definition should exist at the time of invoking the provisions of the Act. Past relationship would also suffice. Construing the said provision, in the decision reported in **Palani M's case** (supra) it was held as follows: “The above referred provision makes it clear that any woman who is or has been in a domestic relationship with the respondent can make a complaint under the provisions of the said Act. Further the “domestic relationship' thus defined as a relationship between two persons, who life or have, at any point of time, lived together. The provision does not say that they should have lived together for a particular period. Even as per the case of the petitioner, he had consensual sex with her, but there was no promise to marry her. Thus, the averments made in the plaint as well as Crl.R.P.980 & 2565/11. 25 in the counter affidavit will make it very clear that the petitioner and the respondent had a close relationship and had sex. As stated already, the Act does not contemplate that the petitioner and the respondent should live or have lived together for a particular period or for few days. From the averments made by the petitioner in his plaint and in his counter affidavit, one can infer that both of them seems to have shared household and lived together at least at the time having sex by them. From the discussions made above, I am unable to accept the contention of the learned counsel appearing for the petitioner that the application filed by the respondent under the provisions of the said Act is not maintainable.” 25. In the decision reported in **Smt. Bharati Naik's case** (supra) it was held as follows: “In my view, the definition of the “aggrieved person” and the “Respondent” are the defining definitions in so far as the issue that arises for consideration in the present petitions is concerned. The definition of “aggrieved person” postulates a woman who is or “has been” in a Crl.R.P.980 & 2565/11. 26 domestic relationship with the Respondent and the Respondent means any adult male person who is, or “has been”, in a domestic relationship with the aggrieved person. Since a domestic relationship is a sine qua non for invoking the provisions of the said Act, Section 2(f) also becomes material. Section 2(f) as can be seen from a reading of the said provision means a domestic relationship between two persons who live or “have”, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Therefore, the aforesaid three definitions take in their sweep even a past relationship as the words “has been” or “have lived” have been used in the said definitions. The said words therefore have been used purposefully as the said Act has been enacted to protect a woman form domestic violence and therefore, 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 continues on the date of the Crl.R.P.980 & 2565/11. 27 application, the provisions of the said Act cannot be invoked. The words “has been” and the words “have lived” have been used for the purpose of showing the past relationship or experience between the concerned parties. To interpret the said provisions so as to mean that only subsisting domestic relationship are covered would result in turning the provisions of the said Act Otiose. As is well settled by the judgments of the Apex Court in cases of beneficent Legislations, an interpretation which furthers purpose must be preferred to the one which obstructs the object an paralyses the purpose of the Act. Reference could be made to the judgment of the Apex Court reported in (2009) 14 SCC 546 in the matter of Union of India V/s Devendra Kumar Pant and others. Apart from that a literal construction of the provisions would show that even if the woman was in the past in a relationship she would be entitled to invoke the provisions of the Said Act. The words “has been” or “have lived” appearing in the definitions are plain and clear and therefore effect would have to be given to them. In the instant case, the Petitioner who is the Crl.R.P.980 & 2565/11. 28 aggrieved person and the Respondent No.1 had lived together in the shared household when they were related by marriage. The petitioner though divorced continued to stay in the shared household till she was allegedly forcefully evicted by the Respondent No.1, she would therefore be entitled to invoke the provisions of the said Act, as the Petitioner and the Respondent No.1 are squarely covered by the the provisions of the said Act.” 26. The issue as to whether the provisions of the Act are applicable in a case where a woman was no longer residing with her husband or who was subjected to actual domestic violence prior to the coming into force of the Act was considered in the decision reported in **Bhanot v. Savita Bhanot** (2012 (1) K.L.T. 637), wherein it was held as follows: “The attitude displayed by the Petitioner has once again thrown open the decision of the High Court for consideration. We agree with the view expressed by the High Court that in looking into a complaint under S.12 of the PWD Act, could be Crl.R.P.980 & 2565/11. 29 taken into consideration while passing an order under Ss.18,19 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 longer doing so the Act came into force, would still be entitled to the protection of the PWD Act,2005. .......... ........... In our view, the situation comes squarely within the ambit of S.3 of the PWD Act, 2005 which defines “domestic violence” in wide terms, and, accordingly, no interference is called for with the impugned order of the High Court. However, considering the fact that the couple is childless and the Respondent has herself expressed apprehension of her safety if she were to live alone in a rented accommodation, we are of the view that keeping in mind te object of the Act to provide effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family, the order of High Court requires to be modified. We, therefore, modify the order passed by the High Court and direct Crl.R.P.980 & 2565/11. 30 that the Respondent be provided with a right of residence where the Petitioner is residing, by way of relief under S.19 of the PWD Act, and we also pass protection orders under S.18 thereof. As far as any monetary relief is concerned, the same has already been provided by the learned Magistrate and in terms of the said order, the Respondent is receiving a sum of _`_ 6,000/- per month towards her expenses. Accordingly in terms of S.19 of the PWD Act, 2005, we direct the Petitioner to provide a suitable portion of his residence to the Respondent for her residence, together with all necessary amenities to make such residential premises properly habitable for the Respondent, within 29[th] February, 2012. The said portion of the premises will be properly furnished according to the choice of the Respondent to enable her to live in dignity in the shared household. Consequently, the sum of _`_ 10,000/- directed to be paid to the Respondent for obtaining alternative accommodation in the event the Petitioner was reluctant to live in the same house with the Respondent, shall stand reduced from _`_ 10,000/- to Crl.R.P.980 & 2565/11. 31 _`4_ ,000/-, which will be paid to the Respondent in addition to the sum of _`_ 6,000/- directed to be paid to her towards her maintenance. In other words, in addition to providing the residential accommodation to the Respondent, the Petitioner shall also pay a total sum of _`10_ ,000/- per month to the Respondent towards her maintenance and day-to-day expenses.” 27. The issue as to whether domestic relationship should continue as on the date of preferring the claim was considered in the decision reported in **Priya's case** (supra), wherein it was held as follows: “The further question is as to whether the applicant should continue to be in a domestic relationship with the respondents on the date of preferring the claim and whether the persons are who are related by consanguinity, marriage or any of the relationship referred to in S.2(f) of the Act should continue to be in that relationship on the date of filing the petition. In other words, whether the employment of present perfect continuous tense in S.2(a), S.2(f), S.2(q) and S.2 Crl.R.P.980 & 2565/11. 32 (s) renders its obligatory on the part of the applicant to be in a domestic relationship on the date of preferring the application. I am not inclined to accept the contention made on behalf of the respondents that the present perfect continuous tense used to indicate the continuance of the relationship even on the date of preferring the application. On the contrary, the words 'has been' and the words 'have lived' are employed for the purpose of showing the past relationship or experience between the parties concerned and they cannot be so construed as to mean that unless the “domestic relationship” continues on the date of application, the application, the application will have no locus standi to move the Magistrate. The existence of the present status as a wife cannot be read into those provisions to hold that the application filed by the revision petitioner before the Magistrate was not maintainable. The view taken by the learned Sessions Judge is clearly wrong. The judgment sought to be revised is accordingly set aside and the order dated 11/01/2007 passed by the Magistrate is restored. Respondents 1 and 3 are Crl.R.P.980 & 2565/11. 33 given one month's ime from today to deposit the arrears of maintenance before the Magistrate. They shall thereafter continue to pay the interim maintenance in accordance with and subject to the order passed by the Magistrate. The revision petitioner as well as respondents 1 to 3 shall appear before the learned Magistrate without any further notice on 01/07/2008 and participate in the further proceedings before the Magistrate, who shall pass final orders, as expeditiously as possible, after giving the counter petitioners also an opportunity of being heard.” 28. The term domestic violence was considered in the decision reported in **Jovita Olga Ignesia Mascarenhase Coutinho's case** (supra), wherein it was held as follows: “As regards the domestic violence or for that matter physical abuse is concerned, the learned Magistrate is totally silent about it but the matter has been considered by the learned Additional Sessions Judge in the Judgment dated 3.3.2010 observing that the petitioner had failed to prove any acts of domestic violence against her, had in Crl.R.P.980 & 2565/11. 34 fact taken place, when she resided along with the respondent in the matrimonial house at Chinchinim. The said attempt appears to be not very satisfactory either, as the learned Additional Sessions Judge has misunderstood the concept of domestic violence. In fact, it appears that another Additional Sessions Judge in Criminal Appeal No.30/2008, between the same parties, had in fact noted in his Order dated 1.8.2009, and in my view rightly, that domestic violence includes “physical abuse”, “sexual abuse”, “verbal and emotional abuse”. The learned Additional Sessions Judge had also observed that to consider the application (under Section 12 of the Act) it is not necessary to consider other forms of abuses except the economic abuse, since the Complainant had averred that she was living without any monetary support, had no means to support her and that the respondent had deliberately kept the passbook and the FDR in is custody in order to cause to hardship to her. The expression “domestic violence” has a very amplitude, as defined under Section 3 of the Act, and it includes, as already stated physical Crl.R.P.980 & 2565/11. 35 abuse, sexual abuse, verbal and emotional abuse, economic abuse which in turn, inter alia, includes 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 limited to, household necessities for the aggrieved person and her children, if any, stridhan, the property jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance.” 29. The contention on the basis that from 2005 onwards the first petitioner before the trial court has been residing in her own house without any connection with the first respondent or others will disentitle her to claim any relief under the provisions of the DV Act cannot be countenanced in view of the decisions referred to above. As to the contention that there is no finding regarding the domestic violence, of course it is true that no such issue is Crl.R.P.980 & 2565/11. 36 seen raised by the trial court nor was any specific finding to that effect. But the fact remains that there is no evidence to show that as regards the maintenance of the petitioners anything was provided by the first respondent atleast from 2005 onwards, when he had a statutory obligation to maintain his wife and children. He had the obligation to provide them abode, food and other necessities of life. He has no case that he has provided maintenance to the petitioners before the trial court. It may be true that even though she had alleged physical assault and other forms of domestic violence, which had taken place long ago, she had not complained about the same to any of the authorities till 2009. But that does not mean that she cannot take recourse to the provisions of the Act which does not depend upon the filing of a complaint before any other authority immediately on commission of domestic violence. As regards the place of residence, she gets a right to reside in the shared household if she had lived in the Crl.R.P.980 & 2565/11. 37 house concerned in the past as contemplated under the definition of the shared household. 30. It was contended with much vehemence that 'Manimandiram', the alleged shared household belonged exclusively to the third respondent and that does not qualify therefore to be called as a shared household. The first petitioner has stated that after marriage she was taken to 'Manimandiram' and that was her matrimonial house. In her evidence, she had stated that after marriage she had been taken to 'Manimandiram', where all the respondents including the third respondent along with his family were residing. She would also say in her evidence that quite frequently the third respondent and his family used to come down to their native place and reside in 'Manimadiram' along with his wife and children. 31. It may be useful at this juncture to refer to the objections filed by the respondents to the petition preferred by the first petitioner. In the objection filed by Crl.R.P.980 & 2565/11. 38 the first respondent, in paragraph 9 it is mentioned as follows: “The petitioner intentionally refused to reside in her matrimonial home even though the 1[st] respondent made several requests for the same.” In paragraph 10, it is seen stated as follows: “The first respondent was not interested in residing permanently in the house of the petitioner and the petitioner intentionally refused to come and reside in her matrimonial home even after repeated demands, the 1[st] respondent was forced to take the hotel rooms and rented house.” In paragraph 15, it is stated as follows: “The 1[st] respondent and his relatives never prevented the petitioner from residing in the shared household. The petitioner is residing in her home according to her whims and fancies.” In the objection filed by the second respondent, in paragraph 7 it is mentioned as follows: Crl.R.P.980 & 2565/11. 39 “The petitioner was not interested in residing in the house of the respondents. ... The petitioner never managed the entire domestic affairs of the shared household, never prepared and served food to the 2[nd] respondent.” In paragraph 8, it is mentioned as follows: “The 2[nd] respondent never prevented the petitioner and children for residing in the house of the 2[nd] respondent.” 32. What is significant is that there is no statement in any of the objections by anyone of the respondents that 'Manimandiram' exclusively belonged to the third respondent and first and second respondents have no rights over the building. On the contrary, the first respondent refers to the house as both matrimonial home and shared household and so does the second respondent. Even though the third respondent does not say it is the matrimonial house of the first petitioner, he does not also say that it exclusively belonged to him or others have no rights over the building. Later the respondents grew wise Crl.R.P.980 & 2565/11. 40 and at the appellate stage came forward with a case that the first and second respondents had no manner of right over 'Manimandiram' and that it exclusively belonged to the third respondent. Nowhere in the objection filed by the third respondent it was stated that the building was constructed by him and that it belonged exclusively to him and that respondents 1 and 2 have no manner of right over the same. He also did not say that the first and second respondents were residing in 'Manimandiram' under the mercy of the third respondent. 33. Learned counsel appearing for the revision petitioner in Crl.R.P.980 of 2011 placed considerable reliance on the decision reported in **S.R. Batra's case** (supra). That was a case where the couple lived in the house belonging to the mother -in-law. Later a claim was raised with respect to the said building by the wife as a shared household. In the said case, it was held that stray incidents of residence is not sufficient to constitute a shared Crl.R.P.980 & 2565/11. 41 ## household. The decision went on to hold as follows: “As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a 'shared household'. No doubt, the definition of 'shared household' in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.” 34. One fails to see how the principle laid down in the above decision can have any application to the present case. That decision was rendered on the facts of the said Crl.R.P.980 & 2565/11. 42 case that the house over which claim was laid was neither matrimonial house nor the shared household as far as Smt.Taruna Batra is concerned. It was an occasional staying in the house of the mother-in-law and there was nothing to show that the members of the family had resided as a joint family. Holding that if stray and occasional residence is to be construed as a shared household, it would lead to a calamity, the Apex Court went on to hold that such occasional residence cannot be treated as conferring a right to claim residential order as a shared household. 35. The evidence in the case on hand may be looked into. P.W.1, the first petitioner had given evidence to the effect that after marriage, she was taken to Manimandiram and she resided there till 2002. The children were born while she was residing there. Later, when her husband, namely, the first respondent went abroad, she had gone to her parental house. However, she in her evidence stated that she had gone to her parental Crl.R.P.980 & 2565/11. 43 house as directed by the first respondent. Of course, she also says about the ill-treatment meted out to her by the second respondent. It is also true that she says that from 2005 onwards she has been continuously residing in her parental house. 36. It is clear from her evidence and the statements in the objections already referred to that the respondents treated 'Manimandiram' as the matrimonial house of the first petitioner as well as the first respondent and they too were willing to grant the building the status of a shared household. P.W.1 has given evidence to the effect that after marriage when she went to the matrimonial house, i.e., 'Manimandiram', respondents were there and the third respondent and his family were also residing there. The mere fact that the third respondent is employed abroad and he has a permanent residence at his place of employment, it does not mean that there is no joint family as envisaged under Sections 2(f) and 2(g) of the Act. At any Crl.R.P.980 & 2565/11. 44 rate, whenever the third respondent along with his family comes to the native place, they used to reside along with the first petitioner and respondents. In order to attract the definitions regarding 'domestic relationship' and 'shared household', it is not necessary that all persons concerned must reside jointly at every point of time. 37. It was contended on behalf of the revision petitioner in Crl.R.P. 980 of 2011 that atleast from 2006 onwards the building exclusively belonged to the third respondent when the first and second respondents and the sister of the third respondent relinquished their rights over the property in respect of the third respondent. 38. There is nothing to show that the building exclusively belonged to the third respondent except for the belated assertions made by the respondents that the building was put up using his funds. At any rate, there is ample evidence and pleadings even from the side of the respondents to show that 'Manimandiram' was treated as a 45 Crl.R.P.980 & 2565/11. shared household where the first petitioner had resided for a considerable period. Even assuming that the first petitioner left 'Manimandiram' in 2005 and never came and resided thereafter, that does not denude her from asserting rights over the shared household in terms of the provisions of the Act. She had an accrued and acquired right which she could enforce after the coming into force of the Act even though the rights might have accrued before the commencement of the Act. 39. One cannot omit to note that there was no evidence adduced on the side of the respondents. Therefore the evidence adduced by the petitioners stands uncontroverted. 40. When P.W.1 was cross-examined, there was no suggestion to her that the house belonged exclusively to the third respondent and the first and third respondents had no manner of right over the same. It will be interesting to see the suggestions made in cross-examination to P.W.1 Crl.R.P.980 & 2565/11. 46 by the first respondent. It is suggested as follows: “ഒറമകള എനന�ലയ�ല വ�ട�ക�ര�ട� ല�ളനയ�ല സ�ഖസ�കര�ത���� ജ�വ�ച�വന ആടളന ന�ലയ�ല CP യ�ട� വ�ട�ല വനത �ള ആ പര�ഗണന ലഭ�ക��ത�ടക�ണല CP യ)ക) എത�തര ആതര�പണങള ഉനയ�ചത).” Further suggestion is “(Q) 1[st] CP യ�ട� വ�ട�ല ത ��ര�നത�ന) ത�ത)പര�ഉണ�യ�ര�ന�ലതല�? (A) ഞ�ന 1[st] CP യ�ട� വ�ട�ല�ണ) ത�മസ�ചത). 1[st] CP യ�ട� ന�രത3ശപപക�രമ�ണ) ഞ�ന എട6 വ�ട�ല ത�മസ�ചത).” In cross examination by respondents 2 and 3, the suggestion made is as follows: “(Q) Shared house hold ല വന) ത�മസ�ക�നത) 2[nd] & 3[rd] CP യ�ടത�ര� ത�സവ�- ഉണ�ക�യ�ട�ല എന) പറയ�ന�? (A) 2[nd] CP ത�സ- ഉണ�ക�യ�ട�ണ). 3[rd] CP യ�ട� വ���ണ) അത�ടക�ണ) ത�മസ�ക�ന പറ��ല ഏന� പറഞ�.” The house referred to in the cross-examination of both the counter petitioners is obviously 'Manimandiram'. Crl.R.P.980 & 2565/11. 47 41. It is clear from the objection filed by the respondents and also from the suggestion made in cross-examination to P.W.1 that they had no misgivings about 'Manimandiram'. They considered it and treated as a matrimonial house of the first petitioner and as a shared household. 42. The contention that merely because the first petitioner at some point of time in the past might have lived in the house and since from 2005 onwards she has been living in her own house is sufficient to reject the claim cannot be countenanced. This is so, because the words defining 'domestic relationship' and 'shared household' used to indicate that the conduct in the past is sufficient and it is not necessary that the relationship and the residence should continue at the time of filing of the petition. 43. Therefore, if there is evidence to show that Manimandiram was treated as the matrimonial house and Crl.R.P.980 & 2565/11. 48 was considered as the shared household in which the petitioner has resided for the first time, then she will be certainly entitled to the protection contemplated under Section 17 of the Act. It is not necessary that she should have continued her residence at the time of instituting the petition or that the domestic relationship as far as joint family is concerned should subsist at the time of filing of the petition. Snapping of domestic relationship or non-occupation of the shared household subsequently cannot deprive the aggrieved person to enforce a valid, acquired and accrued right. 44. After divorce there may be some justification in saying that some of the reliefs are not available to the aggrieved person. In such case also, as far as economic abuse is concerned, that would stand on a different footing. 45. It was contended on behalf of the petitioners in these two revision petitions that it is significant to notice that the claim regarding gold ornaments and money made Crl.R.P.980 & 2565/11. 49 by the first petitioner before the trial court was declined and she did not immediately choose to assail rejection of her claim which according to the revision petitioners is sufficient to show that the petition is filed with malafides and ill-motive. 46. It is difficult to accept the above contention. The mere fact that the first petitioner before the trial court chose not to assail the said finding is not a ground to reject the claim which she is entitled to as per law. Even though the respondents before the trial court attempted to show that the first petitioner had her own means of income, there was no acceptable evidence in that regard. It is true that the first petitioner was practicing as a lawyer, but she got enrolled only in 2008. There is nothing to show that the first respondent was providing maintenance to his wife and children. Since the first petitioner has started practice only in 2008, it is difficult to say that she should be receiving sufficient income to maintain herself and her two children. Crl.R.P.980 & 2565/11. 50 There can be no doubt that the first respondent has a statutory duty to maintain the petitioners before the trial court. The lower appellate court has been extremely considerate in slashing down the amount of maintenance to what it thought was a reasonable amount for the petitioners. Since there is no challenge to the reduction of the maintenance awarded to the petitioners, the question as to whether the amount of maintenance as awarded by the appellate court is reasonable or just does not arise for consideration. 47. It could thus be seen that it was after considering all these facts and circumstances that the courts below have modulated the reliefs to which the petitioners are entitled to. None of the contentions taken by either of the revision petitioners are tenable either on facts or in law. It is idle for the revision petitioners to contend that there is no evidence of domestic violence. The simple answer would be the refusal to let the first petitioner Crl.R.P.980 & 2565/11. **==> picture [13 x 9] intentionally omitted <==** to reside peacefully in the shared household and also the inaction on the part of the first respondent to provide maintenance to his wife and children do attract the provisions of the Act. The result is that these revision petitions are without any merit whatsoever and they are liable to be dismissed. I do so confirming the order of the lower appellate court. **P. BHAVADASAN, JUDGE** sb.