IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2500 OF 2017
Manmohan Attavar …Appellants
Neelam Manmohan Attavar …Respondents
CIVIL APPEAL NO.2502 OF 2017
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
one Shri Harish Chander Chhabra. That marriage did not work
out and ultimately a consent decree for divorce was obtained on
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
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.
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
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
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
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
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
which the aggrieved person resides;
(d) restraining the respondent from alienating or
disposing off the shared household or encumbering
(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
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
“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;
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
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.
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
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
(1988) 2 SCC 602
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
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.
(Rohinton Fali Nariman)
(Sanjay Kishan Kaul)
July 14, 2017.