Kinjal Jayesh Mehta Vs Disha Jimit Sanghvi and Anr on 14 Feb 2024

Posted on February 15, 2024 by ShadesOfKnife

A single judge of Bombay High Court held as follows,

From Para 12,

12. The issue presented for consideration is whether the Petitioner who is the married sister in law of the aggrieved person and admittedly residing in her own matrimonial house can be stated to be in a domestic relationship within the meaning of Section 2 (f) of the D.V. Act particularly when the marriage of the Petitioner has taken place prior to the marriage of the Respondent No.1. While deciding the above issue the incidental issue to be decided is whether the allegation in the application that the Petitioner used to spend her whole day in the shared household is sufficient to constitute domestic relationship between the aggrieved person and the Petitioner.
13. The relationship between the parties inter se is not disputed neither the factum of the Petitioner’s marriage being solemnised prior to the marriage of the Respondent No 1. The separate residence of the Petitioner at her matrimonial house is also borne out from the address of the Petitioner given in the domestic violence application which is different from the address of the shared household.

From Para 16,

16. The facts of the instant case makes it evident that the Petitioner and the Respondent No 1 never resided together in the shared household i.e. the matrimonial house of the Respondent No.1 at “Siddesh Jyoti Tower”. To salvage the situation, given the above noted admitted position, Mr. Desai would contend that the decision of Apex Court in Prabha Tyagi (supra) as well as the decision in Rashmi Mehrotra (supra) has held that it was not mandatory for the aggrieved person to have actually resided with those persons against whom the allegations have been levelled. I am unable to subscribe to the reading of the decision of the Apex Court as desired by Mr.Desai. The decision in the case of Prabha Tyagi (supra) is being read by Mr. Desai dehors the facts of that case which are completely distinguishable.

From Para 20,

20. The law laid down by the Apex Court in Prabha Tyagi (supra) will not assist the case of Respondent No 1 as the Petitioner is the married sister-in-law residing in her own matrimonial house and it cannot be said that the right of the aggrieved person to reside in the shared household would constitute a subsisting domestic relationship with the Petitioner. It would have been a different matter if the Petitioner was unmarried and was residing in the shared household in which case considering the right to reside conferred by Section 17(1) of the D.V. Act, the aggrieved person could have been said to be in subsisting domestic relationship with the Petitioner even if the parties had never resided together in the shared household. It is the right of the aggrieved person to reside in the shared household which constitutes domestic relationship between the aggrieved person and persons residing in the shared household. However, such are not the facts in the instant case as Petitioner is residing separately in her matrimonial house.

From Para 23,

23. Now coming to the pleadings in the application, it is pleaded by the Respondent No 1 that the Petitioner was spending her whole day in the shared household. The said pleading finds place in the paragraph describing the inter se relationship between the aggrieved person and the Respondents. The other pleading is that the Petitioner everyday used to come to the shared household at 2:00 p.m. and leave at around 8:00 p.m. The marriage of the Respondent No.1 was solemnized on 20th November, 2021 and has claimed to be dispossessed on 30th January, 2022. The pleadings as regards the visits of the Petitioner do not indicate an element of permanency sufficient enough to constitute domestic relationship even if it is accepted that the Petitioner was spending her entire day in the shared household.

Finally, from Para 27,

27. In view of the discussion above, in my view, there was no subsisting domestic relationship between the Petitioner and the Respondent No 1 and the Petitioner could not have been arrayed as Respondent in the D.V. application. The mere visits of the Petitioner to the shared household being devoid of any permanency is not sufficient and adequate to constitute residence in shared household. Even otherwise considering the pleadings in the applications read with the reliefs, there is no case of domestic violence made out qua the Petitioner.

Kinjal Jayesh Mehta Vs Disha Jimit Sanghvi and Anr on 14 Feb 2024

Index of DV cases is here.

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Posted on May 20, 2022 by ShadesOfKnife

A division bench of Apex Court as follows,

From Para 52,

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 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, 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?” 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 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.
“(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 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 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.

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022

Citations : [2022 SCC ONLINE SC 607]

Other Sources :

https://indiankanoon.org/doc/85317640/

https://www.casemine.com/judgement/in/627eb23ab50db90fd1943198

https://www.indianemployees.com/judgments/details/prabha-tyagi-vs-kamlesh-devi

Right to residence under DV Act not restricted to actual residence; Domestic relationship not necessary to be subsisting at the time of filing of application: SC

This decision (with respect to shared householding requirement in DV cases) overrules decision by Andhra Pradesh High Court here.

Index of DV Cases here.

Shades of Knife

True Colors of a Vile Wife

Tag: PWDV Act Sec 17 – Right to reside in a shared household

Kinjal Jayesh Mehta Vs Disha Jimit Sanghvi and Anr on 14 Feb 2024

Prabha Tyagi Vs Kamlesh Devi on 12 May 2022