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2022 (5) TMI 1497
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....Factual Background: 3. According to the aggrieved person, her marriage with Kuldeep Tyagi (since deceased) son of late Vishnudutt Tyagi was solemnized on 18th June, 2005 at Haridwar District, Uttarakhand as per Hindu rites and rituals and in connection with the marriage, the family members of the aggrieved person had given dowry to the family of her deceased husband and Stridhana to the aggrieved person. For the period immediately following the wedding, the aggrieved person was residing at the ancestral home of the respondents along with her mother-in-law-respondent no.1, two brothers-in-law, wife of her husband's elder brother and six sisters-in-law. Thereafter, the aggrieved person began living with her husband and the respondents in village Jhabreda. That Kuldeep Tyagi, husband of the aggrieved person died on 15th July, 2005 in a car accident and after the Terhanvi ceremony of her husband, the aggrieved person was constrained to reside initially at Delhi, at her father's house. That immediately prior to the death of her husband, the aggrieved person had conceived a child. 4. That on 30th March, 2006 the aggrieved person gave birth to a daughter and owing to the misbehavior an....
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....isions of the Protection of Women from Domestic Violence Act, 2005 (for short, the 'D.V. Act'). Further, prayers were also made for monetary reliefs under Section 22 of the D.V. Act. 9. In response to the aforesaid application filed by the aggrieved person, the respondents filed a joint written statement to the effect that the marriage of the aggrieved person with Kuldeep Tyagi was solemnized at a simple ceremony in Haridwar, on 18th June, 2005. That no dowry or articles of Stridhana were handed over to the respondents at the time of the ceremony, therefore, the question of returning the same to the aggrieved person by the respondents would not arise. That the aggrieved person could not have conceived a child through the deceased in a span of twenty-eight days from the date of the marriage and as such a claim was not only false but unnatural. 10. That the respondents had, in no way, tortured the aggrieved person. That her statement to the effect that she was residing in the ancestral home of her husband, during the period immediately following her wedding, was untrue as she only stayed with the respondents for one night after her marriage. 11. As regards the Maruti (Alto) car, i....
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.... other than the aggrieved person, as she had no knowledge of such statement. iii) That allegation pertaining to the paternity of the aggrieved person's daughter was likely to have caused emotional harm to her, thereby also affecting her profession as a teacher. In that light, it was observed the aggrieved person was a victim of domestic violence under Section 1 (d) (iii) of the D.V. Act. A symbolic amount of Rs.10,000/- was awarded to compensate the victim for emotional loss suffered. iv) That the victim left her matrimonial home thirteen days after her husband died, owing to repeated taunts and abuses by the respondents. That no cross examination was conducted by the respondents to controvert this fact. Therefore, it was established that the victim did not leave her matrimonial home of her own will, but because of conduct of the respondents. v) That the aggrieved person had not re-married, following the death of Kuldeep Tyagi. Therefore, she continued to remain the daughter-in-law of the respondents' family and had rights over the property of her deceased husband. Relief was granted under Section 19 of the D.V. Act, for independent residence with liberty to visit her husband....
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....y relief in terms of a residence order, till such time as she is allotted a specific share following legal partition of the property held in joint ownership of her deceased husband and the respondents. iv) That in the absence of any evidence as to the delivery of Stridhana to the respondents, no orders could be passed for restoration of possession of Stridhana articles in favour of the aggrieved person. 14. Aggrieved by the judgment of the First Appellate Court, the aggrieved person preferred a criminal revision petition before the High Court of Uttarakhand at Dehradun. By judgment dated 23rd July, 2019, the criminal revision petition was dismissed and the judgment of the Vth Additional Sessions Judge, Dehradun was sustained. The following findings were recorded by the High Court in the impugned judgment: i) That as per the provisions of Section 12 (1) of the D.V. Act, a Domestic Incident Report is required to be mandatorily filed by a Protection Officer or a service provider before the Magistrate and the Magistrate may take cognizance of an offence under the D.V. Act on the basis of such report. That in the present case, the aggrieved person had only filed an application all....
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....ome of the respondents at Ulheda and resided there for a period of thirteen days. That such residence could not continue owing to the conduct of the respondents who subjected the aggrieved person to mental abuse, causing her to leave the shared household. That attempts made by the aggrieved person to re-enter the shared household were obstructed by the respondents. Having regard to the short span of her marital life owing to the death of her husband and the fact that she was denied entry and residence at the shared household following her husband's death, the length of the period during which household was shared by the parties, ought not be a consideration having the effect of denying the protection of the D.V. Act to the aggrieved person. (ii) It was next contended that the death of the aggrieved person's husband would not result in cessation of the domestic relationship. That the appellant-aggrieved person would continue to be related to the respondents by virtue of her marriage. That the only factor disabling the aggrieved person from continuing in a domestic relationship with the respondents was the conduct of the respondents. Nevertheless, she would be eligible to claim pro....
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....s of the enactment. (v) Learned amicus curiae, Shri Gaurav Agrawal, next contended that the High Court had erred in holding that a Domestic Incident Report is required to be mandatorily filed by a Protection Officer before the Magistrate and it is only on the basis of such report that the Magistrate may take cognizance of the commission of domestic violence. Learned amicus curiae for the appellant-aggrieved person referred to Rule 5 of the Protection of Women from Domestic Violence Rules, 2006 (for short, the 'D.V. Rules') which requires a Protection Officer to prepare a Domestic Incident Report on receiving a complaint of domestic violence and submit the same to the Magistrate and forward copies of the Report to a police officer in charge of the police station having jurisdiction over the area were the alleged acts of domestic violence have taken place, and to the service providers in the area. Having regard to the said Rule, it was contended that the requirement to prepare a Domestic Incident Report arises only in cases where a complaint has been made by an aggrieved person, to a Protection Officer. That a Magistrate who entertains an application submitted under Section 12 of t....
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....It was submitted that the aggrieved person, following her marriage with Kuldeep Tyagi, was residing with him in Roorkee District, Haridwar and not with the respondents, in Jhabreda. That her place of residence, had been recorded as Roorkee, in the application filed under the D.V. Act before the Magistrate, as well as in the application submitted before the revenue authorities for mutation of her name in the revenue records pertaining to the property belonging to her deceased husband. That even following the death of Kuldeep Tyagi, the aggrieved person did not reside with the respondents. That the aggrieved person was working as a teacher and there was no evidence led to establish that she had taken leave from her job and resided in Jhabreda for thirteen days following the death of her husband. It was contended that in view of the said facts, it could not be held that a 'domestic relationship' subsisted between the parties, on the basis of which relief could be claimed under the D.V. Act. That based on the very nomenclature of the D.V. Act, any violence alleged under the D.V. Act must always be in relation to a 'domestic relationship' and therefore, subsistence of a domestic relat....
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....to the aggrieved person under the D.V. Act. That the judgments of the High Court and First Appellate Court are based on a true and correct appreciation of the law, as applicable to the facts of the present case and the same may not be interfered with by this Court. 18. Learned counsel for the respective parties have relied upon certain judgments of this Court and various High Courts in support of their submissions. The same shall be referred to later. Points for Consideration: 19. The submissions of the learned amicus curiae /counsel for the respective sides were on the following points for consideration which were raised vide order dated 11th February, 2022: "(i) Whether the consideration of Domestic Incident Report is mandatory before initiating the proceedings under D.V. Act, in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act? (ii) Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levelled at the point of commission of violence? (iii) Whether there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claime....
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....s or causes harm, whether physical or mental, to the aggrieved person. Explanation I.-For the purposes of this section,- (i) 'physical abuse' means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force; (ii) 'sexual abuse' includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman; (iii) 'verbal and emotional abuse' includes- (a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and (b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested; (iv) 'economic abuse' includes- (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, house hold necessities for the aggrieved person and her children, if any, Stridh....
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....h particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. (5) The Magistrate shall Endeavour to dispose of every application made under Sub-Section (1) within a period of sixty days from the date of its first hearing." x x x "17. Right to reside in a shared household.- (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law." x x x "23. Power to grant interim and ex parte orders.-(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an ....
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....separation does not change the status of a wife as an aggrieved person under Section 2(a) read with Section 12 of the D.V. Act and does not end the domestic relationship under Section 2(f) of the D.V. Act. It was further held that a judicial separation was a mere suspension of husband-wife relationship and not a complete severance of relationship as in the case of a divorce. Moreover, an application filed under section 12 of the D.V. Act by the wife is not barred by any limitation. In the said case, this Court referred to Saraswathy vs. Babu - [(2014) 3 SCC 712]. Further, Dipak Misra J. (as His Lordship then was) while speaking for the Two-Judge Bench held that the definition of domestic relationship under Section 2 (f) of the D.V. Act is very wide and protection under the said provision would be given to a wife even if she is judicially separated, by observing thus : "18. The core issue that is requisite to be addressed is whether the Appellant has ceased to be an 'aggrieved person' because of the decree of judicial separation. Once the decree of divorce is passed, the status of the parties becomes different, but that is not so when there is a decree for judicial separation.....
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....prima facie stage, a case for grant of maintenance was made out since the respondent and her deceased husband resided in the same house and the appellant therein (brother of deceased person) also resided in the same household. d) Further in Satish Chander Ahuja vs. Sneha Ahuja - [(2021) 1 SCC 414], a Three-Judge Bench of this Court, wherein one of us (Shah, J.) was a member, considered the expressions 'lives or have at any point of time lived' appearing in Section 2 (s) of the D.V. Act. This Court while considering the correctness of the law laid down in S.R. Batra vs. Taruna Batra - [(2007) 3 SCC 169], concluded that the said case had not correctly interpreted Section 2(s) of the D.V. Act and that the said judgment does not lay down a correct law and observed as under : "66. ..........The expression 'at any stage has lived' occurs in Section 2(s) after the words 'where the person aggrieved lives'. The use of the expression 'at any stage has lived' immediately after words 'person aggrieved lives' has been used for object different to what has been apprehended by this Court in paragraph 26. The expression 'at any stage has lived' has been used to protect the women from denying t....
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....n a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not. 69. ............ The definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. We have noticed the definition of 'Respondent' under the Act. The Respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In the event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household." Analysis: 22. Section 12 of the D.V. Act states that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act. The proviso, however, states that before passing any order on such an application, the ....
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.... the same. SubSection (2) states that an aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. 25. While Section 19 deals with a multitude of directions or orders which may be passed against the respondent vis-à-vis the shared household in favour of an aggrieved person, Section 17 confers a right on every woman in a domestic relationship to reside in the shared household irrespective of whether she has any right, title or beneficial interest in the same. This right to reside in a shared household which is conferred on every woman in a domestic relationship is a vital and significant right. It is an affirmation of the right of every woman in a domestic relationship to reside in a shared household. Sub-Section (2) of Section 17 protects an aggrieved person from being evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. The distinction between Sub-Section (1) and Sub-Section (2) of Section 17 is also to be noted. While Sub-Section (2) deals with an aggrieved person which is def....
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.... domestic relationship in whatever manner the said relationship may be founded as stated above has a right to reside in a shared household, whether or not she has any right, title or beneficial interest in the same. Thus, a daughter, sister, wife, mother, grand-mother or great grand-mother, daughter-in-law, motherin-law or any woman having a relationship in the nature of marriage, an adopted daughter or any member of joint family has the right to reside in a shared household. 30. Further, though, the expression 'shared household' is defined in the context of a household where the person aggrieved lives or has lived in a domestic relationship either singly or along with respondent, in the context of Sub-Section (1) of Section17, the said expression cannot be restricted only to a household where a person aggrieved resides or at any stage, resided in a domestic relationship. In other words, a woman in a domestic relationship who is not aggrieved, in the sense that who has not been subjected to an act of domestic violence by the respondent, has a right to reside in a shared household. Thus, a mother, daughter, sister, wife, mother-in-law and daughter-in-law or such other categories of....
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....shared household, irrespective of whether she has resided therein at all or not, then the said right can be enforced under Sub-Section (1) of Section 17 of the D.V. Act. If her right to reside in a shared household is resisted or restrained by the respondent(s) then she becomes an aggrieved person and she cannot be evicted, if she has already been living in the shared household or excluded from the same or any part of it if she is not actually residing therein. In other words, the expression 'right to reside in the shared household' is not restricted to only actual residence, as, irrespective of actual residence, a woman in a domestic relationship can enforce her right to reside in the shared household. Thus, a woman cannot be excluded from the shared household even if she has not actually resided therein that is why the expression 'shall not be evicted or excluded from the shared household' has been intentionally used in Sub-Section (2) of Section 17. This means if a woman in a domestic relationship is an aggrieved person and she is actually residing in the shared household, she cannot be evicted except in accordance with the procedure established by law. Similarly, a woman in a d....
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..... Further, if her husband resides in another location then an aggrieved person has the right to reside with her husband in the location in which he resides which would then become the shared household or reside with his parents, as the case may be, in a different location. There could be a multitude and a variety of situations and circumstances in which a woman in a domestic relationship can enforce her right to reside in a shared household irrespective of whether she has the right, title or beneficial interest in the same. Also, such a right could be enforced by every woman in a domestic relationship irrespective of whether she is an aggrieved person or not. 35. In the Indian societal context, the right of a woman to reside in the shared household is of unique importance. The reasons for the same are not far to see. In India, most women are not educated nor are they earning; neither do they have financial independence so as to live singly. She may be dependent for residence in a domestic relationship not only for emotional support but for the aforesaid reasons. The said relationship may be by consanguinity, marriage or through a relationship in the nature of marriage, adoption or....
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....he words have been purposefully used to show the past relationship or experience between the concerned parties. It was further observed that the said D.V. Act has been enacted to protect a woman from domestic violence and there cannot be any fetter which can come in the way by interpreting the provisions in a manner to mean that unless the domestic relationship continues on the date of the application, the provisions of the D.V. Act cannot be invoked. 39. In a judgment of the High Court of Madras in Vandhana vs. T. Srikanth and Krishnamachari - [2007 SCC Online Mad 553], authored by Ramasubramanian, J., it was held that Sections 2(f), 2(s) and 17 of the D.V. Act ought to be given the widest interpretation possible. The Court, after observing various instances and situations, held that many a woman may not even enter into the matrimonial home immediately after marriage. Therefore, it was concluded that a healthy and correct interpretation to Sections 2(f) and 2(s) of the D.V. Act would be that the words 'live' or 'have at any point of time lived' would include in its purview 'the right to live' as interpreted above. It would be useful to quote from the said judgment as under:- &n....
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....f the Act, co-exists with her right to live in the shared household and it does not depend upon whether she had marked her physical presence in the shared household or not. A marriage which is valid and subsisting on the relevant date, automatically confers a right upon the wife to live in the shared household as an equal partner in the joint venture of running a family. If she has a right to live in the shared household, on account of a valid and subsisting marriage, she is definitely in 'domestic relationship' within the meaning of Section 2(f) of the Act and her bodily presence or absence from the shared household cannot belittle her relationship as anything other than a domestic relationship. Therefore, irrespective of the fact whether the applicant/plaintiff in this case ever lived in the house of the first respondent/first defendant after 7.2.2007 or not, her marriage to the first respondent/first defendant on 7.2.2007 has conferred a right upon her to live in the shared household. Therefore, the question as to whether the applicant/plaintiff ever lived in the shared household at any point of time during the period from 7.2.2007 to 13.6.2007 or not, is of little significance.....
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....in the nature of marriage : (a) In D. Velu Samy v. D. Patchaiammal - [(2010) 10 SCC 469], this Court discussed the concept of "relationship in the nature of marriage" in the context of the DV Act, and it was held to be akin to a common law marriage. It was held that the parties must have lived together in a 'shared household' as defined in Section 2(s) of the DV Act. It was opined that not all live-in relationships would amount to a relationship in the nature of marriage to get the benefit of D.V. Act, but only to such relationships, which qualify as common law marriages. The requirements prescribed under law in order for a relationship to be recognized as a common law marriage were adumbrated as follows: (i) The couple must hold themselves out to society as being akin to spouses; (ii) They must be of legal age to marry; (iii) They must be otherwise qualified to enter into a legal marriage; (iv) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. (b) In Indra Sarma v. V.K.V. Sarma - [(2013) 15 SCC 755], the question as to whether disruption of a live-in relationship by failure to maintain a....
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....ust for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc. 56.6. Children.- Having children is a strong indication of a relationship in the nature of marriage. The parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication. 56.7. Socialisation in public.- Holding out to the public and socialising with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage. 56.8. Intention and conduct of the parties.- Common intention of the parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship." 43. Further, the expression 'family members living together as a joint family' is not relatable only to relationship through consanguinity, marriage or adoption. As observed above, the expression 'joint family' does not mean a joint family as understood in Hindu Law. It would mean person....
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....om relief is claimed but the acts of domestic violence are related to the period of domestic relationship, even in such circumstances, the aggrieved woman who was subjected to domestic violence has remedies under the D.V. Act. (c) Even in the case of relationship in the nature of marriage, during which period the woman suffered domestic violence and is thus an aggrieved person can seek remedies subsequent to the cessation of the relationship, the only pre-condition is that the allegation of domestic violence must relate to the period of the subsistence of relationship in the nature of marriage. (d) In the same way, when a girl child is fostered by family members living together as a joint family as interpreted above and lives or at any point of time has lived together in a shared household or has the right to reside in the shared household being a member living together as a joint family and has been ousted in any way or has been a victim of domestic violence has remedies under the D.V. Act. In our view, the question raised about a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed must be interpreted in a broad and ....
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.... is mandatory before initiating the proceedings under the D.V. Act in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said D.V. Act?'. 46. Clause (e) of Section 2 defines a Domestic Incident Report to be a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person. As noted from Section 12, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person including the service provider vide Sub-Section (1) of Section 10 of the D.V. Act, may present an application to the Magistrate seeking one or more reliefs under the D.V. Act. Proviso to Sub-Section (1) of Section 12 states that before passing any order on such an application, the Magistrate shall take into consideration any Domestic Incident Report received by him from the Protection Officer or the service provider. Protection Officer as defined in Clause (n) of Section 2, means an officer appointed by the State Government under SubSection (1) of Section 8. Sub-Section (2) of Section 8 states that the Protection Officers shall, as far as possible, be women and shall possess such qualifications and experience as may be prescr....
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....Domestic Incident Report has not been filed by a Protection Officer or a service provider, as the case may be. 48. We are, therefore, of the view that the High Court was not right in holding that the application filed by the appellant herein was not accompanied by a Domestic Incident Report and therefore under the proviso to Sub-Section (1) of Section 12 of the D.V. Act, the Magistrate had no authority to issue orders and directions in favour of the appellant. (i) Following are the judgments where the High Courts have held that the Domestic Incident Report is not a sine qua non for entertaining or deciding the application under Section 12 of the D.V. Act by the learned Magistrate. a) In Nayanakumar vs. State of Karnataka - [ILR 2009 Kar 4295], the High Court of Karnataka (Kalaburagi Bench) while dealing with Section 12 of the D.V. Act, held that in case a Domestic Incident Report is received by the Magistrate either from the Protection Officer or from the Service Provider, then it becomes obligatory on the part of the Magistrate to take note of the said Domestic Incident Report before passing an order on the application filed by the aggrieved party. It was further clarified th....
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....t Report by the Protection Officer or the service provider. e) Further, the High Court of Andhra Pradesh in A. Vidya Sagar vs. State of Andhra Pradesh - [2014 SCC Online Hyd 715], rejected the contention of the petitioner therein that a domestic violence case can be instituted and taken cognizance of on the basis of the Domestic Incident Report only and not otherwise. f) In its judgment in the case of Ravi Kumar Bajpai vs. Renu Awasthi Bajpai - [ILR (2016) MP 302], the High Court of Madhya Pradesh speaking through J.K. Maheshwari, J., while discussing on the legislative intent of the D.V. Act, held that if the legislative intent was to call for a report from the Protection Officer as a precondition by the Magistrate to act upon a complaint of aggrieved person, then it would have expressed that intention emphasizing the words in the main section. The High Court relied on various judgments pertaining to the interpretation of a provision and proviso thereof. g) The Division Bench of the High Court of Delhi in Shambhu Prasad Singh vs. Manjari - [190 (2012) DLT 647] speaking through Ravindra Bhat, J. dealt with the conflicting views of the two Single Judges on the question whether....
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....o be quashed. a) In Rama Singh vs. Maya Singh - [(2012) 4 MPLJ 612] This judgment was explained in later decision of Ravi Kumar Bajpai (supra), the High Court of Madhya Pradesh, in the facts and circumstances of the said case, while quashing the petition under Section 482 of the Code of Criminal Procedure, 1973, held that the impugned order therein was passed without taking into consideration, the report prepared by the Protection Officer and proviso to Section 12 of the D.V. Act was ignored. The Court went on to hold that the proviso ordinarily carves out an exception from the general rule enacted in the main provision. The Court emphasized that the word 'any' in the proviso would mean one or more out of several and includes all. Therefore, even an interlocutory order directing issuance of notice would not be excluded from the rigour of the proviso. b) In the case of Ravi Dutta vs. Kiran Dutta and Another - [208 (2014) DLT 61] This judgment did not consider the earlier judgment in Shambhu Prasad Singh (supra) passed by the Delhi High Court itself., the High Court of Delhi reiterated that non-consideration of Domestic Incident Report by the Trial Court while deciding an applica....
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....mbrate on the principles that govern the interpretation to be given to proviso in the context of main provision. (a) The normal function of a proviso is to except something out of the provision or to qualify something enacted therein which, but for the proviso, would be within the purview of the provision. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In other words, a proviso qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main provision. Further, a proviso cannot be construed as nullifying the provision or as taking away completely a right conferred by the enactment. (b) In this regard, learned Author, Justice G.P. Singh, in "Principles of Statutory Interpretation", 15th Edition, has enunciated certain rules collated from judicial precedents. Firstly, a proviso is not to be construed as excluding or adding something by implication i.e., when on a fair construction, the principal provision is clear, a pr....
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....ous judgments of this Court. (i) In Ishverlal Thakorelal Almaula vs. Motibhai Nagjibhai - [AIR 1966 SC 459], while dealing with the Bombay Tenancy and Agricultural Lands Act, 1948, this Court held, that a proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso, would be within that clause. (ii) In Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories - [AIR 1965 SC 980], while considering the proviso to Section 6 of Trade Marks Act, 1940, it was observed that it would not be a reasonable construction for any statute, if a proviso which in terms purports to create an exception and seeks to confer certain special rights on a particular class of cases included in it should be held to be otiose and to have achieved nothing. (iii) In Kedarnath Jute Manufacturing Co. Ltd. vs. The Commercial Tax Officer and Others, [AIR 1966 SC 12], it was observed that "the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment or to qualify something enacted therein, which, but for the proviso, would be within it....
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....AIR 1961 SC 1107], it was observed that while interpreting a section or a proviso, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, one should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. (ii) In Superintendent & Remembrancer of Legal Affairs to Govt. of West Bengal vs. Abani Maity - [AIR 1979 SC 1029], this Court observed that the statute is not to be interpreted merely from the lexicographer's angle. The Court must give effect to the will and in-built policy of the Legislature as discernible from the object and scheme of the enactment and the language employed therein. The words in a statute often take their meaning in the context of a statute as a whole. They are, therefore, not to be construed in isolation. 51. In the instant case, when the proviso is read in the context of the main provision which begins with the words 'an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved p....
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....) 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 ....