Manmohan Attavar vs Neelam Manmohan Attavar on 14 July, 2017

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2500 OF 2017

Manmohan Attavar …Appellants

Versus

Neelam Manmohan Attavar …Respondents

WITH

CIVIL APPEAL NO.2502 OF 2017

JUDGMENT

SANJAY KISHAN KAUL, J.

1. The appellant is 84 years old and the respondent is 62 years

old. The respondent seeks to establish her status as the

wife/companion of the appellant who has been left high and dry

by the appellant while on the other hand the appellant

categorically denies any such status.

Signature Not Verified

2. The admitted facts are that the respondent was married to
Digitally signed by USHA
RANI BHARDWAJ

one Shri Harish Chander Chhabra. That marriage did not work
Date: 2017.07.14
16:59:52 IST
Reason:

out and ultimately a consent decree for divorce was obtained on
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10.10.1996. Even in the interregnum period, the respondent

claims to have developed a relationship with the appellant

starting from their introduction in 1987. It is her case that there

was continuous interaction between the two and the appellant

even proposed to her in December 1993. The appellant earned a

National Award on 16.10.1996. The respondent also claims to

have been requested to travel with the appellant to Bangalore on

30.10.1996. The appellant’s wife was alive when the respondent

claims that the appellant took her to No.38/1, Jayanagar,

Bengaluru and that the appellant’s wife was apparently also

aware of the relationship between the two parties. The

respondent claims that she resigned from the job with ICAR at

the behest of the appellant. On 10.1.1998, the respondent claims

that the appellant applied “kumkum” to her forehead and soon

thereafter he was conferred with the Padma Shri Award and the

respondent accompanied the appellant for the felicitation

ceremony on 21.3.1998.

3. It is the respondent’s claim that from 2002-2008 the

respondent was made to stay in different residences hired by the

appellant. But apparently the relationship soured. The endeavors

for reconciliation, however, did not succeed. The wife of the

appellant was incidentally alive at that time and she passed away
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on 22.2.2010. The endeavor, prior to this, by the respondent

seeking remedy for what she claims to be her neglect, through

the Women and Child Welfare Department of State of Karnataka,

also did not succeed.

4. The respondent claims to have made various efforts by

approaching authorities and high dignitaries apart from police

authorities but to no avail.

5. The respondent initiated proceedings under Section 12 of

The Protection of Women from Domestic Violence Act, 2005

(hereinafter referred to as ‘the D.V. Act’) on 16.9.2013 being

Criminal Misc. Petition No.179 of 2013. This case is stated to

have been re-numbered as Crl. Misc. Application No.139 of 2015.

The endeavor of the appellant seeking quashing of these

proceedings before the High Court vide Criminal Writ Petition

No.6126/2013 under Section 482 of the Criminal Procedure

Code, 1973 (hereinafter referred to as the Cr.P.C.) did not

succeed and petition was dismissed on 2.1.2015. The trial went

on and at the request of the respondent made under Section 410

of the Cr.P.C., the application was transferred from the Court of

the Metropolitan Magistrate–VI to the Court of Metropolitan

Magistrate-II at Bangalore. This application was finally dismissed

by the learned Metropolitan Magistrate on 30.7.2015.
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6. The respondent, aggrieved by the said order, filed Criminal

Appeal No.1070/2015 under Section 29 of the D.V. Act on

18.8.2015 which was assigned to the learned Addl. Sessions

Judge presiding over Court 67. The interim relief prayed for in

this petition was, however, rejected by the learned Addl. Sessions

Judge on 5.11.2015.

7. The respondent again sought a transfer from that court and

the appeal was transferred to the Court of the learned Additional

Sessions Judge presiding over Court No.53 vide order dated

16.2.2016. A second application was filed by the respondent for

stay of the impugned order for interim maintenance. The

respondent was once again aggrieved by the conduct of the

proceedings during the hearing of the interim application and

submitted a complaint to the High Court of Karnataka. In terms

READ  Dhiraj Chouhan vs The State Of Bihar on 27 July, 2017

of an administrative order of the Registrar General of the High

Court, the application was called upon to be decided on or before

30.4.2016. The application was rejected on 21.4.2016 as being

not maintainable. The applications filed for additional evidence

by the respondent also met an adverse fate.

8. It is in the aforesaid scenario that the respondent filed Writ

petition No.49153 of 2016 under Articles 226 and 227 of the

Constitution of India before the High Court of Karnataka praying
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for the transfer of Criminal Appeal No.1070 of 2015 to the High

Court itself on the ground that the order for rejection of the

applications for additional evidence did not inspire faith.

9. Learned Single Judge of the High Court by an ex-parte order

dated 19.9.2016, while issuing notice in the petition, stayed all

further proceedings and permitted the respondent to occupy the

premises No.38/1, 30th Cross, 3rd Main, 7th Block Jayanagar,

Bengaluru, 560082 belonging to the appellant. This interim order

is subject matter of challenge before us in SLP (C) No.

32783/2016 now numbered as Civil Appeal No.2500 of 2017.

10. On service being effected on the appellant, the writ petition

was opposed along with the prayer for vacation of the ex-parte

order. It is the case of the appellant that instead of deciding the

Interlocutory Application, the appellant was compelled to pay a

lump sum amount of Rs.30,000/- as a onetime payment. This

order is stated to have been challenged in SLP No.33150 of 2016.

In fact the declining of interim relief by the appellate court was

not even specifically challenged before the High Court and yet the

High Court granted an ex parte order.

11. Learned Single Judge vide the subsequent order dated

24.10.2016 sought to withdraw the appeal proceedings from the

learned Addl. Sessions Judge to the High Court itself and this
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order has been assailed in SLP No.32534/2016 now numbered

as Civil Appeal No.2502 of 2017.

12. We have heard the contentions of the learned senior counsel

for the appellant and have also heard the respondent appearing

in person, quite elaborately. Written submissions were filed both

by the appellant and by the respondent. We have noticed that a

large part of the submissions of the respondent relate to the

merits of the claim as to why the learned Metropolitan Magistrate

fell into error while dismissing the application filed by the

respondent on 30.7.2015 under Section 12 of the D.V. Act.

13. We may note at this stage itself that it would neither be

advisable nor proper to dwell into the controversy on merits

because the appeal filed by the respondent is yet to be decided.

Any observations by us at this stage could affect either of the

parties in the appeal proceedings. The controversy before us is in

a very narrow compass. We thus set forth the controversy –

(i) Whether an interim order could have been passed on

19.9.2016 permitting the respondent to occupy the

premises of the appellant;

(ii) Whether the learned Single Judge was right in withdrawing

the proceedings pending before the learned Addl. Sessions

Judge to the High Court vide the impugned order dated
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24.10.2016.

14. Insofar as the first question is concerned, reliance has been

placed by the respondent on the provisions of the D.V. Act and

the desirability to construe the provisions liberally in favour of

women seeking relief, as it is in the nature of a social legislation

meant for protection of women’s rights. In order to appreciate the

controversy, we reproduce the relevant provisions as under:-

“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.

…………………………………………

19. Residence orders.-(1) While disposing of an
application under sub-section (1) of section 12, the
Magistrate may, on being satisfied that domestic
violence has taken place, pass a residence order – (a)
restraining the respondent from dispossessing or in
any other manner disturbing the possession of the
aggrieved person from the shared household, whether
or not the respondent has a legal or equitable interest
in the shared household;

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

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

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

(e) restraining the respondent from renouncing his
rights in the shared household except with the leave of
the Magistrate; or

(f) directing the respondent to secure same level of
alternate accommodation for the aggrieved person as
enjoyed by her in the shared household or to pay rent
for the same, if the circumstances so require:
Provided that no order under clause (b) shall be
passed against any person who is a woman.
……………………………………………………”

15. A reading of the aforesaid provisions show that it creates an

READ  Ramnath Burman vs The State Of Madhya Pradesh on 22 June, 2017

entitlement in favour of the woman of the right of residence

under the “shared household” irrespective of her having any legal

interests in the same. The direction, inter alia, can include an

order restraining dispossession or a direction to remove himself

on being satisfied that domestic violence had taken place.

16. The factual matrix of the present case is such that one

would have to look to the definition clauses relevant for the

determination of the controversy contained in Section 2 as

under:

“2(f) “domestic relationship” means 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 consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are
family members living together as a joint family;

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………………………………………….

2(s) “shared household” means a household where the
person aggrieved lives or at any stage has lived in a
domestic relationship either singly or along with the
respondent and includes such a household whether
owned or tenanted either jointly by the aggrieved
person and the respondent, or owned or tenanted by
either of them in respect of which either the aggrieved
person or the respondent or both jointly or singly have
any right, title, interest or equity and includes such a
household which may belong to the joint family of
which the respondent is a member, irrespective of
whether the respondent or the aggrieved person has
any right, title or interest in the shared household.
………………………………………………………..”

17. The facts of the present case are that the respondent has

never stayed with the appellant in the premises in which she has

been directed to be inducted. This is an admitted position even in

answer to a court query by the respondent during the course of

hearing. The “domestic relationship” as defined under Section 2

(f) of the D.V. Act refers to two persons who have lived together in

a “shared household”. A “shared household” has been defined

under Section 2(s) of the D.V. Act. In order for the respondent to

succeed, it was necessary that the two parties had lived in a

domestic relationship in the household. However, the parties

have never lived together in the property in question. It is not as

if the respondent has been subsequently excluded from the
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enjoyment of the property or thrown out by the appellant in an

alleged relationship which goes back 20 years. They fell apart

even as per the respondent more than 7 years ago. We may also

note that till 22.2.2010 even the wife of the appellant was alive.

We may note for the purpose of record that as per the appellant,

he is a Christian and thus there could be no question of visiting

any temple and marrying the respondent by applying “kumkum”,

and that too when the wife of the appellant was alive.

READ  Vishwanath Mahto vs State Of Bihar & Anr on 19 July, 2017

18. We are thus unequivocally of the view that the nature of the

ex-parte order passed on 19.9.2016 permitting the respondent to

occupy the premises of the appellant cannot be sustained and

has to be set aside and consequently Civil Appeal No.2500 of

2017 is liable to be allowed.

19. Now turning to the second controversy, a perusal of the

impugned order shows that the learned Single Judge found the

remedy sought for by the respondent to be “misconceived”.

However, the learned Judge found it appropriate to treat the

petition as one under Section 407 of the Cr.P.C. The learned

Single Judge has expressed the view that the appellate court

ought to have called upon the respondent to argue the appeal

rather than spend time on interim reliefs, which was not

maintainable in the face of the earlier order resulting in a

predictable order.

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20. We fail to appreciate the aforesaid observations when the

respondent herself sought once again to press for interim relief

and applications to adduce additional evidence. Learned ASJ can

hardly be faulted on this account. The learned Single Judge has

also given latitude to the respondent on account of her appearing

in person whereby she may not have documented the bits and

pieces of her past with the intention of initiating the proceedings

which she was pursuing. In the conspectus of the same, the

appeal has been withdrawn to the High Court itself.

21. The grievance of the appellant against this order is that the

valuable rights of the appellant of an additional forum to

ventilate his grievance would be lost as against any decision in

appeal. A remedy of revision under Section 327 of the Cr.P.C.

would be available or a writ petition under Article 227 of the

Constitution of India. In this behalf reliance has been placed on

what is claimed to be a settled legal position, more particularly,

the Constitutional Bench Judgment of 7 Judges of this Court in

A.R.Antulay vs. Ram Naik 1.

22. It is also the contention of the appellant that such transfer

cannot take place at the whims and fancy of the respondent. The

respondent, whenever she fails to obtain a favourable order,

chooses to file proceedings for transfer whether it be before the

1
(1988) 2 SCC 602
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MM or before the appellate court. It is submitted that this

approach ought not to be encouraged.

23. On examination of the issue, we tend to agree with the

submission of the learned senior counsel for the appellant that

there was no reason for the proceedings to be withdrawn from

the appellate court to the High Court itself. There is not only

absence of the reason for the same but it would also result in the

deprivation of valuable rights of the appellant against the order of

an appellate authority and thus an additional forum for scrutiny

was being negated.

24. We are unable to agree with the reasoning of the learned

Single Judge nor can we fault the appellate authority on any

account which could have necessitated such withdrawal of the

proceedings to the High Court.

25. We may also note the concession made by the learned

senior counsel for the appellant in court that in the scenario the

matter can be entrusted to any ASJ in Bangalore as there are a

large number of the same holding court.

26. We thus set aside even the order dated 24.10.2016 and

allow Civil Appeal No.2502/2017. We request the learned Chief

Justice of the High Court on the administrative side to nominate

any of the ASJs in Bangalore to hear the appeal of the

respondent and the appellate authority shall endeavor to
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conclude the proceedings as expeditiously as possible.

27. The appeals are accordingly allowed leaving the parties to

bear their own costs with the hope that there would be an early

end to this contentious dispute between the two parties.

..….….…………………….J.

(Rohinton Fali Nariman)

………………………………J.

(Sanjay Kishan Kaul)

New Delhi;

July 14, 2017.

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