TaxTMI 
TaxTMI 
2022 (5) TMI 1497
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....ir rank and status before the Trial Court. 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 bi....
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....s and compensation orders to be passed under various provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, the 'D.V. Act'). Further, prayers were 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....
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.... application filed before the Tehsildar to the effect that Kuldeep Tyagi had no heirs other than the aggrieved person, as she had no knowledge of such statement. 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....
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....e respondents, no case was made out for domestic violence on the part of the respondents. That the aggrieved person was not entitled to any relief in terms of a residence order, 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 ta....
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....en made, the provisions of the D.V. Act would apply. That in the present case, the aggrieved person, had, following the death of her husband on 15th July, 2005, resided in the family home of the respondents at Ulheda and resided there for a period of thirteen days. That such 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 ....
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....e of domestic violence cases, only to matters wherein domestic violence was committed against the aggrieved person, while she was residing at the shared household, would not sufficiently achieve the objects of the enactment. (v) Learned amicus curiae, Shri Gaurav Agrawal, next contended that the High Court had erred in holding that a Domestic Incident Report is required to be mandatorily filed by a Protection Officer before the Magistrate and it is only 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 prep....
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....ourt and contended that the said judgments are justified and hence, do not call for interference by this Court by submitting as under : (i) It was denied that the aggrieved person was in a domestic relationship with the respondents. It was submitted that the aggrieved person, following her marriage with Kuldeep Tyagi, was residing with him in Roorkee District, Haridwar and not with the respondents, in Jhabreda. That her place of residence, had been recorded as Roorkee, in the 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....
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....tion to harass the respondents and more specifically, respondent no. 1, being the mother-in-law of the aggrieved person, aged over 80 years. That the High Court and First Appellate Court rightly set aside the decision of the Magistrate and held that no relief could be granted to 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 ....
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....sses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, 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 ....
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....on, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under Sub-Section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the 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 t....
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....ubjected to domestic violence. It was further observed that where an act of domestic violence is once committed, then a subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled to. b) In the case of Krishna Bhattacharjee vs. Sarathi Choudhury and Another - [(2016) 2 SCC 705], this Court held that a claim for recovery of Stridhana, two years after a decree of judicial separation is maintainable. The Court held that judicial separation does not change the status of a wife as an aggrieved person under Section 2(a) read with 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 speaki....
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....ted from the date of deprivation of Stridhana, for neither the husband nor any other family members can have any right over the Stridhana and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act." c) We could also allude to the exposition of this Court in Ajay Kumar vs. Lata alias Sharuti and Others - [(2019) 15 SCC 352], wherein the husband of the respondent therein had died, and maintenance was claimed from the brother of the deceased husband. The Court held that at a prima 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 - [(....
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.... has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not. As noted above, Act 2005 was enacted to give a higher right in favour of woman. The Act, 2005 has been enacted to provide for more effective protection of the rights of the woman who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not. 69. ............ The definition of shared household as noticed in 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 unde....
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....be passed by a Magistrate while disposing of an application under Sub-Section (1) of Section 12, on being satisfied that domestic violence has taken place in a shared household. Thus, while Section 19 deals with residence orders, the right to reside in a shared household is dealt with in Section 17 of the D.V. Act. SubSection (1) of Section 17, which begins with a non-obstante clause states that notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in 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 benefici....
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....hold. Hence, the said provision commences with a non-obstante clause. 28. For a better understanding of the said right, it would also be useful to relate it to the societal and familial context in India. 29. As already noted, a domestic relationship means a relationship between two persons who live or have at any point of time, lived together in a shared household. The relationship may be by (i) consanguinity, (ii) marriage or, (iii) through a relationship in the nature of a marriage, (iv) adoption or (v) are family members living together as a joint family. The expression 'domestic relationship' is a comprehensive one. Hence, every woman in a domestic relationship in whatever manner the said relationship may be founded as stated above has a right to reside in a shared household, whether or not she has any right, title or beneficial interest in the same. Thus, a daughter, sister, wife, mother, grand-mother or great grand-mother, daughter-in-law, 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 d....
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....job commitments, or for other genuine reasons, the husband and wife decide to reside at different locations. Even in a case where the woman in a domestic relationship is residing elsewhere on account of a reasonable cause, she has the right to reside in a shared household. Also a woman who is, or has been, in a domestic relationship has the right to reside not only in the house of her husband, if it is located in another place which is also a shared household but also in the shared household which may be in a different location in which the family of her husband resides. 32. If a woman in a domestic relationship seeks to enforce her right to reside in a shared household, irrespective of whether she has resided therein at all or not, then the said right can be enforced under Sub-Section (1) of Section 17 of the D.V. Act. If her right to reside in a 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 househo....
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....the shared household except in accordance with the procedure established by law. 34. There may also be cases where soon after marriage, the husband goes to another city owing to a job commitment and his wife remains in her parental home and nevertheless is a victim of domestic violence. She has the right to remain in her parental home as she would be in a domestic relationship by consanguinity. Also in cases where a woman remains in her parental home soon after marriage and is subjected to domestic violence and is therefore an aggrieved person, she also has the right to reside in the shared household of her husband which could be the household of her in-laws. Further, if her husband resides in another location then an aggrieved person has the right to reside with her husband in the location in which he resides which would then become the shared household or reside with his parents, as the case may be, in a different 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. A....
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....forced by any woman under the said provision as an independent right in addition to the orders that could be passed under Section 19 of the D.V. Act; also an aggrieved woman who has the right to reside in the shared household is protected by Sub-Section (2) of the Section 17 of the D.V. Act. 38. In the case of Smt. Bharati Naik vs. Shri Ravi Ramnath Halarnkar and Another - [2010 SCC Online Bom 243], the High Court of Bombay at Goa held that the words 'has been' and 'have lived' appearing in the definition of 'aggrieved person' and 'respondent' in the D.V. Act are plain and clear. The Court held that the aforesaid words take in their sweep even a past relationship. The words have been 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.....
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....int of time lived' would include within their purview 'the right to live'. In other words, it is not necessary for a woman to establish her physical act of living in the shared household, either at the time of institution of the proceedings or as a thing of the past. If there is a relationship which has legal sanction, a woman in that relationship gets a right to live in the shared household. Therefore, she would be entitled to protection under Section 17 of the Act, even if she did not live in the shared household at the time of institution of the proceedings or had never lived in the shared household at any point of time in the past. Her right to protection under Section 17 of the Act, co-exists with 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 relationsh....
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....rriage; (iv) adoption; (v) are family members living together as a joint family. The expressions 'consanguinity', 'marriage' and 'adoption' do not require elaboration as they are well understood concepts both in common law as well as in the respective personal law applicable to the parties. However, it is relevant to note the expression 'marriage' also encompasses a relationship in the nature of marriage. Secondly, the expression 'adoption' also takes into consideration family members living together as a joint family. The aforesaid aspects require elaboration. It would be useful to refer to the following judgments of this Court which have been taken into consideration relationship in the nature of marriage : (a) In D. Velu Samy v. D. Patchaiammal - [(2010) 10 SCC 469], this Court discussed the concept of "relationship in the nature of marriage" in the context of the DV Act, and 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....
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.... D.V. Act and, hence, needs no further elaboration. 56.3. Pooling of resources and financial arrangements.- Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor. 56.4. Domestic arrangements.- Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc., is an indication of a relationship in the nature of marriage. 56.5. Sexual relationship.- Marriage-like relationship refers to sexual relationship, not just for pleasure, but for emotional and 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....
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....D.V. Act would come to the rescue of such a divorced woman also. (iii) That is why, the expression 'domestic relationship' has been defined in an expansive manner to mean a relationship between two persons who live or have at any point of time lived together in a shared household when they are related by marriage. We have also interpreted the word 'live' or 'lived' in the context of right to reside in Sub-Section (1) of Section 17. The right to live in the shared household, even when the domestic relationship may have been severed for instance when a woman has been widowed owing to the death of her husband, entitles her to have remedies under the D.V. Act. (iv) Therefore, even when the marital ties cease and there is no subsisting domestic relationship between the aggrieved woman and the respondent against whom relief is claimed but the acts of domestic violence are related to the period of domestic relationship, even in such circumstances, the aggrieved woman who was 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 i....
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....rture given to her by respondent - mother-in-law and her family. She had to leave the same and fend for herself. Thus, as an aggrieved person, the appellant could not have been excluded from the shared household as there was no valid reason to do so. As the appellant had a right to reside in the shared household as she was in a domestic relationship with her husband till he died in the accident and had lived together with him therefore she also had a right to reside in the shared household despite the death of her husband in a road accident. The aggrieved person continued to have a subsisting domestic relationship owing to her marriage and she being the daughter-in-law had the right to reside in the shared household. 45. This takes us to the first question which has been raised by us namely, 'whether the consideration of domestic incident report is 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 perso....
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....ion the said report received by him. But if such a report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. Therefore, the expression 'shall' has to be read in the context of a Domestic Incident Report received by a Magistrate from the Protection Officer or the service provider as the case may be in which case, it is mandatory for the Magistrate to consider the report. But, if no such report is received by the Magistrate then the Magistrate is naturally not to consider any such Domestic Incident Report before passing any order on the application. As already noted, this could be in a case where an aggrieved person herself approaches the Magistrate or the services of an advocate is engaged to present an application seeking one or more reliefs under the D.V. Act or for a valid acceptable cause/reason a Domestic Incident Report has not been filed by a Protection Officer or a service provider, as the case may be. 48. We are, therefore, of the view that the High Court was not 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-Se....
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....e to specifically call for a Domestic Incident Report. That it would only be mandatory to consider such report, if the same had been filed by the Protection Officer before the Magistrate. The Gauhati High Court differed with the view taken by the Madhya Pradesh and Jharkhand High Courts, to the extent that the latter Courts observed that the Magistrate would not be obligated to consider the Domestic Incident Report even if the same was filed by the Protection Officer. d) Delving on the same issue, the High Court of Himachal Pradesh in Rahul Soorma vs. State of Himachal Pradesh - [(2012) SCC Online HP 2574], held that the purpose of the D.V. Act is to give immediate relief to the aggrieved person; therefore, it was wrong to suggest that the Magistrate has no jurisdiction to take cognizance of the application under Section 12 of the D.V. Act before the receipt of a Domestic Incident Report by the Protection Officer or the service provider. e) Further, the High Court of Andhra Pradesh in A. Vidya Sagar vs. State of Andhra Pradesh - [2014 SCC Online Hyd 715], rejected the contention of the petitioner therein that a domestic violence case can be instituted and taken co....
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....be granted. i) Further, the High Court of Bombay at Aurangabad Bench, while dealing with a criminal writ petition in the case of Vijay Maruti Gaikwad vs. Savita Vijay Gaikward - [2018 (1) HLR 295], observed that if the matter is before the Court and the wife preferred not to approach the Protection Officer, the Court is not bound to call the report of Protection Officer. j) Lastly, in the case of Suraj Sharma vs. Bharti Sharma - [2016 SCC Online Chh 1825], the High Court of Chhattisgarh while expressing its view on Section 12 of the D.V. Act also held that the Domestic Incident Report shall not be conclusive material for making any order. 49. On the contrary, the following judgments of High Courts have observed that the Proviso to Section 12 is mandatory and an order passed by the learned Magistrate on an application under Section 12 of the D.V. Act, without having a report of the Protection Officer is liable to be quashed. a) In Rama Singh vs. Maya Singh - [(2012) 4 MPLJ 612] 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 ....
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....or final, under the provisions of the D.V. Act, granting reliefs to the aggrieved persons. The Magistrate can take cognizance of the complaint or application filed by the aggrieved person and issue notice to the respondent under Section 12 of the D.V. Act even in the absence of Domestic Incident Report under Rule 5. Thus, the Magistrate has jurisdiction to take cognizance of the complaint under Section 12 of the D.V. Act in the absence of a Domestic Incident Report under Rule 5 when the complaint is not filed on behalf of the aggrieved person through a Protection Officer or service provider. Such a purposeful interpretation has to be given bearing in mind the fact that the immediate relief would have to be given to an aggrieved person and hence the proviso cannot be interpreted in a manner which would be contrary to the object of the D.V. Act which renders Section 12 bereft of its object and purpose. 50. In this context, it would be useful to adumbrate on the principles that govern the interpretation to be given to proviso in the context of main provision. (a) The normal function of a proviso is to except something out of the provision or to qualify something enacted th....
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....that a proviso must be so construed that the main enactment and the proviso should not become redundant or otiose. This is particularly so, where the object of a proviso sometimes is only by way of abundant caution, particularly when the operative words of the enactment are abundantly clear. In other words, the purpose of a proviso in such a case is to remove any doubt. There are also instances where a proviso is in the nature of an independent enactment and not merely, an exception or qualifying what has been stated before. In other words, if the substantive enactment is worded in the form of a proviso, it would be an independent legislative provision concerning different set of circumstances than what is worded before or what is stated before. Sometimes, a proviso is to make a distinction of special cases from the general enactment and to provide it specially. (d) At this stage, the construction or interpretation of a proviso could be discussed as gathered from various 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, th....
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....egal treatises and judgments, this Court held in the above judgment as under:- "43. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes: (1) qualifying or excepting certain provisions from the main enactment; (2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable; (3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision." (f) The approach to the construction and interpretation of a proviso is enunciated in the following cases. (i) In M. Pentiah vs. Muddala Veeramallappa - [AIR 1961 SC 1107], it was observed that while interpreting a section or a proviso, if the choice is between two interp....
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....ed by the aggrieved person without the assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise. If a contrary interpretation is to be given then the opening words of Sub-Section (1) of Section 12 would be rendered otiose and it would be incumbent for every aggrieved person to first approach a Protection Officer or a service provider, as the case may be, and get a Domestic Incident Report prepared and thereafter to approach the Magistrate for reliefs under the D.V. Act, which is not the intention of the Parliament. Hence, in our view, the judgments of the Madhya Pradesh High Court in Rama Singh vs. Maya Singh - [(2012) 4 MPLJ 612] and the Delhi High Court in Ravi Dutta vs. Kiran Dutta and Another - [2018 (2014) DLT 61], do not lay down the correct law and are hereby overruled while we affirm all other judgments referred to supra which are in consonance with the line of interpretation made above. 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 proceedi....