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Neutral Citation No. - 2024:AHC:90613

A.F.R.

RESERVED

In Chambers

Case :- MATTERS UNDER ARTICLE 227 No. - 8348 of 2023

Petitioner :- Maharaj Kumari Vishnupriya

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Ritvik Upadhya

Counsel for Respondent :- C.S.C.,Sanjay Singh,Saurabh Raj

Srivastava

Hon'ble Jayant Banerji,J.

1.Heard Shri V.K. Upadhyay, learned Senior Advocate assisted by

Shri Ritvik Upadhya, learned counsel for the petitioner and Shri Anil

Kumar Srivastava, learned Senior Advocate assisted by Shri Saurabh

Raj Srivastava, learned counsel appearing for the respondents.

2.This petition has been filed seeking to set aside the order dated

2.6.2023 passed by the Additional District Judge, Court No. 14,

Varanasi in Criminal Appeal No. 70 of 2022 (Maharaj Kumari

Vishnupriya vs. State of U.P. and others) with a further relief to prohibit

and restrain the respondents from committing any act of economic

abuse against the petitioner by alienating or creating in any manner

whatsoever third party interest over any part of the properties as

mentioned in the schedule to the application dated 30.10.2021

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of the

petitioner (Annexure No. 7) and also not to interfere in the peaceful

possession of the petitioner.

3.It appears from the record of this petition that the petitioner is the

daughter of late Vibhuti Narain Singh, who was the erstwhile ruler of

the State of Banaras and has been continuously living in the fort of

1This application is referred to in the instant petition as well as the counter affidavit as being

dated 31.10.2021, but in the order impugned, the same is referred to as dated 30.10.2021.

Therefore, that application is referred herein as dated 30.10.2021.

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Ramnagar since childhood. The respondent No. 2 is the youngest

sibling of the petitioner and son of late Vibhuti Narain Singh who also

continues to stay along with the petitioner as a family member in the

Ramnagar Fort even after the demise of his father on 25.12.2000.

4.After the death of their father, it is alleged that the petitioner and

another family member were subjected to misbehaviour, manhandling

and torture, which were engineered to dispossess her from her residence

in Ramnagar Fort and other properties to which she is entitled. The

reasons for staying in her matrimonial home has been explained by the

petitioner in paragraph nos. 7, 8 and 9 of the petition. It has been stated

that after the death of Vibhuti Narain Singh, domestic violence was

committed by the Respondent No. 2 and he took into his custody

various documents including the recorded family settlement of

8.12.1969 which was reduced in writing on 16.7.1970 and other

documents of title, etc. and he created a situation in the residence which

became non-conducive to the peaceful residence of the petitioner. This

led to the institution of a case by means of an application under Section

12 read with Section 23 of the Protection of Women from Domestic

Violence Act, 2005

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in October 2011. The court of the Additional Chief

Judicial Magistrate, Court No. 10, Varanasi, by an order dated

21.10.2011, prohibited the petitioner no. 2 from interfering in the shared

household in the possession of the petitioner over properties reflected in

Annexure Nos. C1 and C2 of the application and not to evict her, not to

create any hindrance and not to harass her during pendency of the

aforesaid case under the DV Act. The order dated 21.10.2011 was

affirmed by the Supreme Court.

Thereafter an application under Section 23 of the DV Act was

filed on 30.10.2021 seeking a direction under Section 18 of the DV Act

for restraining the petitioner No. 2 from transferring the properties

2DV Act

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specified in the schedule to that application. The schedule to the

application specified several plots of land with their respective areas in

Mauza Kodopur, Pargana Ramnagar, Tehsil and District Varanasi.

Objections were filed by the respondent No. 2 on 7.1.2021. By an order

dated 12.4.2022, the trial court observed that it is the civil court which

would be competent to grant the relief sought in the application dated

30.10.2021. Challenging the aforesaid order dated 12.4.2022, an appeal

bearing Criminal Appeal No. 70 of 2022 was filed in the court of the

District and Sessions Judge, Varanasi seeking setting aside of the order

dated 12.4.2022. By the impugned judgment and order dated 2.6.2022,

the appeal was dismissed.

5.The contention of the learned counsel for the petitioner is that the

property in dispute includes both that are mentioned in the schedule to

the application made by the petitioner in the year 2011 under Section 12

read with Section 23 of the DV Act, as well as the properties mentioned

in the schedule enclosed with the application dated 30.10.2021. It is

stated that given the definition of the terms “aggrieved person”,

“domestic relationship”, “domestic violence”, “shared household”

appearing in section 3 of the DV Act, as well as the term “economic

abuse” appearing in Explanation 1 to Section 3 of the DV Act, the

properties in dispute are well within the jurisdiction of the courts under

the DV Act. It is stated that the Magistrate is empowered to grant

protection orders for prohibiting the respondents from committing any

act of domestic violence as well as for prohibiting the respondents from

alienating any assets of the aggrieved person that may be held jointly by

the aggrieved person and the respondent or singly by the petitioner,

including her ‘stridhan’ or any other property held either jointly by the

parties or separately by them. It is further contended that given the

provisions of Section 26 of the DV Act, any relief available under

Sections 18, 19, 20, 21, and 22 may also be sought in any legal

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proceeding, before civil court, family court, or a criminal court,

affecting the aggrieved person and the respondent, whether such

proceeding was initiated before or after the commencement of the DV

Act, and any relief referred in that provision could be sought for in

addition to and along with any other relief that the aggrieved person

may seek in such suit or legal proceeding before a civil or criminal

court. However, the only condition that is imposed on the aggrieved

person is that in case any relief has been obtained by her in any

proceedings other than the proceeding under the DV Act, she shall be

bound to inform the magistrate for the grant of such relief. The

contention is that given the fact that the family settlement of 8.12.1969

that was reduced in writing on 16.7.1970 which has been admitted by

the respondent no. 2 time and again in various proceedings including in

the proceedings under the D.V. Act, the courts exercising jurisdiction

under the DV Act had jurisdiction to grant an appropriate order under

Section 23 of the DV Act, and it is a case of failure to exercise

jurisdiction by the courts concerned against which the petitioner is

aggrieved. The learned counsel has referred to a judgment of the

Supreme Court in the case of Satish Chander Ahuja v. Sneha Ahuja

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to contend that the court while exercising jurisdiction under Section 18

of the DV Act would exercise civil jurisdiction. The learned counsel has

referred to Annexure No. 1 in the rejoinder affidavit to contend that the

appellate court had noticed that the Protection Officer in its letter dated

28.4.2018 had no right to travel beyond the scope of the inquiry that she

was required to conduct. The learned counsel for the petitioner has

further sought to contend that the delay attributed to the petitioner in

filing the subsequent application dated 30.10.2021 was not as a result of

any deliberate act on her part but was actually attributable to the

circumstances emerging out of transfer of properties by the respondent

No. 2 in the year 2021.

3(2021) 1 SCC 414

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Learned counsel for the petitioner has also pressed an application

No.3 of 2023 filed under Chapter XXII Rule 1 of the Allahabad High

Court Rules read with Section 340 Cr.P.C. for initiation of criminal

prosecution against the respondent no.2 and one Shatrughan Singh for

deliberately making the false and misleading statement in the counter

affidavit dated 6.11.2023.

6.On the other hand, Shri Anil Kumar Srivastava, learned Senior

Advocate has referred to the judgment of the High Court dated 4.1.2019

and the order of the Supreme Court dated 2.9.2019 to contend that the

subsequent application dated 30.10.2021 was deliberately filed by the

petitioner to delay and defeat the outcome of the case instituted under

the DV Act which were directed by this Court as well as by the

Supreme Court for being decided expeditiously. The learned counsel

has referred to orders passed by the trial and appellate courts. It is stated

that mutation with regard to the disputed properties has already taken

place in favour of the respondent no. 2 and as such, no stay or

injunction can be granted by the criminal court under the provisions of

the DV Act inasmuch as it is the civil court which is competent to

adjudicate that matter relating to immovable properties. The learned

counsel for the respondent No. 2 has referred to a communication made

by the Protection Officer, Varanasi dated 28.4.2018, that has been

enclosed as an Annexure No. 1 to the counter affidavit, to contend that a

categorical observation was made in that letter that there is no evidence

of domestic violence because both the plaintiff and the respondent are

residing in their separate portions of the premises. Learned counsel has

also referred to the Original Suit No. 165 of 2022, a copy of the plaint,

which has been enclosed as Annexure No. 3 to the counter affidavit to

demonstrate that a civil suit with regard to the property in dispute is

pending. It is therefore urged that rejection of the application dated

30.10.2021 was justified.

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7.On perusal of the record, it appears that the aforesaid application

under Section 12 read with Section 23 of the DV Act, bearing No.829

of 2011, was filed by the petitioner against the respondent no.2

claiming to be an aggrieved person who is living in a shared household

in a domestic relationship and is being subjected to domestic violence.

The petitioner stated that she was residing in her paternal home and

soon after the death of her father, the respondent no.2 asked her to leave

the house and subjected her to domestic violence. Allegation of damage

to the rooms, kitchens and storerooms that are in her possession by the

respondent no.2 was made, the details of which properties were

mentioned in Annexures C-1 and C-2 enclosed alongwith the

application. A relief, inter alia, was sought against the respondent no.2

for restraining him and his agents from dispossessing the petitioner

from the shared household or making any alteration or demolition in the

said portions which are in the exclusive possession of the petitioner. By

an order of 21.10.2011, the Magistrate passed the restraint order in

respect of that part of the shared household reflected in Annexures C-1

and C-2 to the aforesaid application.

8.The order dated 21.10.2011 was challenged in an appeal before

the Additional Sessions Judge who, by his judgment and order dated

7.3.2013, dismissed the appeal and affirmed the order dated 21.10.2011

passed by the Magistrate. Against the aforesaid orders dated 21.10.2011

and 7.3.2013, Criminal Revision No.1499 of 2013 was preferred by the

respondent no.2 before this Court, in which the Court held that there

was no error in the orders dated 21.10.2011 and 7.3.2013. However, the

applications pending before the trial court as well as the Case No.829 of

2011 itself were directed to be decided expeditiously. The judgment of

this Court in the aforesaid criminal revision was challenged before the

Supreme Court by means of a Special Leave Petition (Criminal), which

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was dismissed by an order dated 2.9.2013 while directing the trial court

to expeditiously dispose of the case within a period of six months.

9.Thereafter, certain plots of agricultural land situated in Mauza

Kodopur, Pargana Ramnagar, Tehsil & District Varanasi, that are stated

to be part of an oral family settlement, which later came to be recorded

in a memorandum, were being alienated by the respondent no.2 despite

the fact that, as stated, the petitioner alone was the owner under the

family settlement. Therefore, the aforesaid fresh application dated

30.10.2021 was filed by the petitioner under Section 23 of the DV Act

seeking protection order under Section 18 in respect of those

immovable properties.

10.Objections were filed by the respondent no.2 and in paragraph 7

whereof, apparently, an admission was made with regard to the family

settlement. The claim of the petitioner made in the application dated

30.10.2021 was refuted. By an order dated 12.4.2022, the Magistrate

rejected the application dated 30.10.2021 filed by the petitioner. The

Magistrate observed that a civil suit is pending between the parties and

in the revenue records, the name of the respondent no.2 was recorded;

that till the time the civil court does not decide the suit, it cannot be said

with certainty that the petitioner is the owner of the property; that as

only on that basis the respondent no.2 is alienating the property, he

cannot be restrained under the DV Act. The Magistrate noted that on

21.10.2011, with regard to the shared household of the petitioner, an

interim relief was granted till the final disposal of the application under

the DV Act; that in Annexures C-1 and C-2, there is no record of any

arazi number, whereas the application dated 30.10.2021 reflects several

arazi numbers along with areas seeking relief with respect to those

properties. It was held that the petitioner had not been able to prove

how the order dated 20.10.2011 was being violated; that orders could be

passed only with regard to the shared household under the DV Act, and

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that no order could be made for restraining the transfer of properties as

sought in the application. It was, accordingly, held that the jurisdiction

with regard to the restraining transfer of the properties mentioned in the

application dated 30.10.2021 was with the civil court and as far as the

right of the petitioner with regard to the shared household is concerned,

an order dated 20.10.2011 had already been passed. The application

dated 30.10.2021 filed by the petitioner was, accordingly, rejected.

11.Against the aforesaid order of the Magistrate, an appeal being

Criminal Appeal No.70 of 2022, was filed by the petitioner in which

objections were filed by the respondent no.2. The respondent no.2

stated that he is the recorded owner of the properties mentioned in the

application dated 30.10.2021. The petitioner had no right over the

personal properties of the erstwhile ruler of Banaras; his name is

recorded in the khatauni as per rules and if there is any objection to the

same, it may be raised before the revenue courts; there is no jurisdiction

of the Magisterial court nor can any interference be made therein; there

is no collusion between the respondent no.2 and the vendees mentioned

in the two sale-deeds; the vendees are not parties to the proceedings and

in this connection it is only the civil court which has jurisdiction to try

the matter regarding the two sale-deeds; in case there is any non-

compliance of the order of the court, then it has to be clearly mentioned

in the application; the petitioner has sought a new relief in that

application, and accordingly, the application deserves to be dismissed.

12.The appellate court framed a point for determination that whether

another application under Section 23 of the DV Act can be filed during

the validity of the order dated 2.10.2011 (sic 21.10.2011) passed in the

previous application under Section 23 of the DV Act.

13.The appellate court noted that the previous order dated

21.10.2011 mentioned in the application dated 30.10.2021 reflects that

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an order under Section 23 of the DV Act was passed and on the part of

the properties in possession reflected in Annexures C-1 and C-2, the

respondent no. 2 was restrained from evicting the petitioner, creating

any obstruction to persons meeting her and creating any obstruction

with regard to the repairs being carried out by the petitioner in her

portion of the properties; the complaint under Section 23 is pending

trial. The appellate court observed that the issue whether the respondent

No. 2 had right to execute the sale-deeds dated 20.7.2021 and

24.8.2021, can be decided by a civil court in a civil suit. Under the DV

Act, a summary proceeding is prescribed in which the criminal

procedure is used and under the circumstances, at the stage of the

appeal or the trial, the issue cannot be looked into.

It was observed that as regards the entries made in the revenue

records, the name of respondent no.2 is recorded and the petitioner had

stated that she is the owner of the same immovable properties under a

family settlement. It was observed that while adopting summary

proceedings prescribed under the DV Act, the issue (regarding

immovable properties) cannot be decided by the court; that in case any

property is charged against the maintenance amount, then in respect of

those properties, orders can be passed by the concerned court that that

property would remain encumbered with the charge. It was held that

since no charge was created with regard to any interim maintenance,

therefore, such an order also could not be passed. It was observed that if

the name of the respondent had been wrongly recorded, for setting it

aside, the responsibility rested with the petitioner as the entries made in

the revenue records are presumed to be correct. However, the appellate

court did observe that the entries in the revenue records are not proof of

title but pertain to recovery of land revenue only. It was observed that

the proceedings under the DV Act are 'quasi-civil' which have to be

decided on preponderance of probability and since, on the basis of

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possession, a prima facie presumption can be drawn regarding

ownership; under such circumstances, only by the procedure prescribed

by law, the matter can be set aside by the revenue court. The appellate

court held that the petitioner is admittedly enforcing her right relating to

immovable properties which cannot be done under the DV Act; the

order of the trial court dated 12.4.2022 was passed after including (sic)

the order dated 21.10.2011 and no fact had been stated that the order

has been disobeyed; in the original complaint no such prayer had been

sought by the petitioner as in the application dated 30.10.2021. During

the effectiveness of the order dated 20.10.2011 (sic 21.10.2011), further

interim order was being sought and that too in respect of a subject

matter for which no relief can be granted under the DV Act. The appeal

was, accordingly, dismissed.

14.As noted above, initially the application/complaint dated

11.10.2011 under section 12 read with section 23 of the DV Act was

filed seeking relief in respect of the shared household that was

mentioned in Annexures C-1 and C-2 to that application. The interim

order passed by the Magistrate dated 21.10.2011 is effective till the

disposal of the complaint case.

15.Sections 12 to 29 of the DV Act fall under Chapter IV of the DV

Act, which relates to procedures for obtaining orders seeking reliefs.

Under Section 12 of the DV Act, an aggrieved person or a Protection

Officer or any other person on behalf of an aggrieved person may

present an application to the Magistrate seeking one or more reliefs

under the DV Act. The reliefs sought for may include a relief for

issuance of an order for payment of compensation or damages without

prejudice to the right of such persons to institute a suit for

compensation or damages for the injuries caused by the acts of

domestic violence committed by the respondent. Every application is

required to be in the prescribed format or as nearly as possible thereto.

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The Magistrate is enjoined to endeavour to dispose of every such

application within a period of 60 days from the date of its first hearing.

Section 13 provides for service of notice on the respondent concerned

and on any other person, through the Protection Officer. Section 14

gives power to the Magistrate to direct the respondent or aggrieved

person to undergo counselling with any member of the service provider

possessing such qualifications and experience in counselling as may be

prescribed. Section 15 deals with assistance of welfare experts to the

Magistrate. Section 16 gives a discretion to the Magistrate to conduct

the proceedings under the DV Act in camera. Section 17 deals with the

right of every woman in a domestic relationship to reside in the shared

household whether or not she has right, title or any beneficial interest in

the same. The aggrieved person cannot be evicted or excluded from the

shared household or any part of it by the respondent except in

accordance with the procedure established by law. Section 18 deals with

protection order that may be passed by the Magistrate on being satisfied

that domestic violence has taken place. Section 19 deals with residence

orders that may be passed by the Magistrate on being prima facie

satisfied that domestic violence has taken place, where the matter

concerns the residence of the aggrieved person in a shared household.

Section 20 provides for direction regarding monetary relief which may

be made by the Magistrate while disposing of the application under

sub-section (1) of section 12. Section 21 deals with custody orders that

may be passed by the Magistrate at any stage of hearing of the

application for protection order in respect of temporary custody of any

child or children to the aggrieved person or the person making an

application on her behalf. Section 22 deals with compensation orders

that the Magistrate may pass in addition to other reliefs as may be

granted under the DV Act. Section 23 invests power in the Magistrate to

pass an interim ex-parte order as he deems just and proper, on the basis

of an affidavit of the aggrieved person under Sections 18, 19, 20, 21 or,

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as the case may be, Section 22, against the respondent. Section 25

provides for the duration and alteration of protection orders made under

Section 18. Section 26 reads as follows:-

“26.Relief in other suits and legal proceedings.

1) Any relief available under sections 18, 19,20, 21 and 22 may

also be sought in any legal proceeding, before a civil court,

family court or a criminal court, affecting the aggrieved person

and the respondent whether such proceeding was initiated

before or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in

addition to and along with any other relief that the aggrieved

person may seek in such suit or legal proceeding before a civil

or criminal court.

(3) In case any relief has been obtained by the aggrieved person

in any proceedings other than a proceeding under this Act, she

shall be bound to inform the Magistrate of the grant of such

relief.”

Section 27 provides for the jurisdiction of the court of Judicial

Magistrate or the Metropolitan Magistrate and that the order made in

the DV Act shall be enforceable throughout India. Section 28 reads as

follows:-

“28.Procedure.

(1) Save as otherwise provided in this Act, all proceedings

under sections 12,18, 19, 20, 21, 22 and 23 and offences under

section 31 shall be governed by the provisions of the Code of

Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the court from

laying down its own procedure for disposal of an application

under section 12 or under sub-section (2) of section 23.”

Section 29 provides for an appeal to the Court of Session from

the order of the Magistrate.

16.Certain terms that have been defined in Section 2 of the DV Act

merit consideration:-

“(a) "aggrieved person" means any woman who is, or has been,

in a domestic relationship with the respondent and who alleges

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to have been subjected to any act of domestic violence by the

respondent;

…...............

(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;

(g) "domestic violence" has the same meaning as assigned to it

in section 3;

….................

(o) "protection order" means an order made in terms of section

18;

(p) "residence order" means an order granted in terms of sub-

section (1) of section 19;

….................

(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 house hold 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.

.................”

The definition of “domestic violence” is provided under Chapter

II of the DV Act as under:-

“3.Definitions of domestic violence.

For the purposes of this Act, any act, omission or commission

or conduct of the respondent shall constitute domestic violence

in case it--

(a) harms or injures or endangers the health, safety, life, limb

or well-being, whether mental or physical, of the aggrieved

person or tends to do so and includes causing physical abuse,

sexual abuse, verbal and emotional abuse and economic abuse;

or

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(b) harasses, 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 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, stridhan, property, jointly or

separately owned by the aggrieved person, payment of rental

related to the shared house hold and maintenance;

(b) disposal of household effects, any alienation of assets

whether movable or immovable, valuables, shares,

securities, bonds and the like or other property in which the

aggrieved person has an interest or is entitled to use by

virtue of the domestic relationship or which may be

reasonably required by the aggrieved person or her children

or her stridhan or any other property jointly or separately

held by the aggrieved person; and

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(c) prohibition or restriction to continued access to resources or

facilities which the aggrieved person is entitled to use or enjoy

by virtue of the domestic relationship including access to the

shared household.

Explanation II.--For the purpose of determining whether any

act, omission, commission or conduct of the respondent

constitutes "domestic violence" under this section, the overall

facts and circumstances of the case shall be taken into

consideration.”

(emphasis supplied)

17.Initially, the application filed by the petitioner in the year 2011

under Section 12 read with Section 23 of the DV Act was in respect of

the properties mentioned in its Annexures C-1 and C-2 and was

specifically in respect of the shared household. As noted above, a

protection order can be passed by the Magistrate prohibiting the

respondent from committing any act of domestic violence, and,

accordingly, an interim order was passed by the Magistrate on

21.10.2011, every challenge to which has been put to rest. However, the

application dated 30.10.2021 deals with other immovable properties

which are mentioned in the Schedule to that application. The definition

of “domestic violence” given in Section 3 of the DV Act is very wide.

Under Explanation I of Section 3, sub-clause (b) of clause (iv), which

pertains to 'economic abuse', the definition uses the word “includes”,

and entails disposal of household effects, any alienation of assets

whether movable or immovable, valuables, shares, securities, bonds

and the like or other property in which the aggrieved person has an

interest or is entitled to use by virtue of the domestic relationship or

which may be reasonably required by the aggrieved person or her

children or her stridhan or any other property jointly or separately held

by the aggrieved person. It is noted that in sub-clauses (a) and (c) of

clause (iv) of Explanation I, reference has been made to “shared

household”, whereas in sub-clause (b) thereof, there is no reference to

the term “shared household”.

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Explanation II, which is also very illustrative, reads that for the

purpose of determining whether any act, omission, commission or

conduct of the respondent constitutes "domestic violence" under this

section, the overall facts and circumstances of the case shall be taken

into consideration.

18.As noted above, in his objections, the respondent no.2 has, prima

facie, admitted the existence of the family settlement, which family

settlement is part of the record of this petition, reflecting that the

properties mentioned in this Schedule to the application of the

petitioner dated 30.10.2021 fall in her share. However, this 'admission',

as held by the Supreme Court in Himani Alloys Ltd. vs. Tata Steel

Ltd.

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, unless is clear, unambiguous and unconditional, the discretion of

the Court should not be exercised to deny the valuable rights of a

defendant to contest the claim.

19.In view of the aforesaid provisions of the DV Act, the

observation of the appellate court in the impugned order that the

properties mentioned in the application dated 30.10.2021 cannot be

looked into by the court in proceedings under the DV Act, is incorrect.

Given Explanation I to Section 3, which uses the word 'includes' while

defining the term “economic abuse”, and, the ‘overall facts and

circumstances of the case’ that are required to be taken into

consideration in view of Explanation II, it would bring into the ambit of

the definition of “domestic violence” the properties mentioned in the

Schedule to the application dated 30.10.2021 filed by the petitioner.

20.An application to the Magistrate under Section 12 can seek one

or more reliefs under the DV Act, including a relief for issuance of an

order for payment of compensation or damages. An amendment in the

application filed under Section 12, in view of subsequent developments,

4(2011) 15 SCC 273

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can be sought by an aggrieved person, but for consideration of such

amendment application, the court has to see whether certain

circumstances exist. The under-noted judgment of the Supreme Court

would point to that aspect. Therefore, subject to such amendment being

effected in the application under Section 12, it cannot be said that the

relief sought for in the application dated 30.10.2021 filed by the

petitioner under Section 23 seeking an interim order under Section 18,

would not be maintainable under the DV Act. In effect, the petitioner is

seeking a protection order under Section 18 of the DV Act, which only

requires a prima facie satisfaction of the Magistrate that domestic

violence has taken place or is likely to take place. As reflected in

Section 26 as quoted above, the very reliefs available to the petitioner

under Sections 18, 19, 20, 21 and 22 may also be sought in any legal

proceeding before a civil court, family court or a criminal court, and the

relief sought under the DV Act may be along with any other relief that

the aggrieved person may seek in any such suit or legal proceeding

before a civil court or criminal court.

21.It is important to note that though a protection order passed by

the Magistrate under Section 18 of the DV Act is to be made on his

prima facie satisfaction that domestic violence has taken place or is

likely to take place, however, no adjudication of title with regard to

immovable property of the aggrieved person, in this case the petitioner,

can be made under the DV Act. As such, the protection order sought in

the application dated 30.10.2021 is essentially in the nature of an

interim relief, which may be granted by the court subject to due

amendment in the application under Section 12 of the DV Act.

22.Apparently, the petitioner has filed a suit being Original Suit

No.165 of 2024 in the court of Civil Judge (Senior Division), Varanasi,

seeking declaration, partition and prohibitory injunction with respect to

various properties. As such, the title of the petitioner with regard to the

18

properties mentioned in the Schedule to the application dated

30.10.2021 can well be decided therein. Suffice to state that even in the

said suit, the reliefs sought under Section 12 of the DV Act can be

sought, given the provisions of Section 26, which aspect has also been

indicated by the Supreme Court in a judgment cited below.

Further, for setting aside the revenue entries on properties that the

petitioner claims to her own, it is for her to move appropriate legal

proceedings before the revenue court.

23.The purpose for enacting the DV Act was considered by the

Supreme Court in Kunapareddy vs. Kunapareddy Swarna Kumari

& Ors.

5

in which it observed as follows:-

12. In fact, the very purpose of enacting the DV Act was to

provide for a remedy which is an amalgamation of civil rights

of the complainant i.e. aggrieved person. Intention was to

protect women against violence of any kind, especially that

occurring within the family as the civil law does not address

this phenomenon in its entirety. It is treated as an offence under

Section 498-A of the Penal Code, 1860. The purpose of

enacting the law was to provide a remedy in the civil law for

the protection of women from being victims of domestic

violence and to prevent the occurrence of domestic violence in

the society. It is for this reason, that the scheme of the Act

provides that in the first instance, the order that would be

passed by the Magistrate, on a complaint by the aggrieved

person, would be of a civil nature and if the said order is

violated, it assumes the character of criminality.

……………………………………

…………………………………...”

After considering the procedure for obtaining reliefs as stipulated

in Chapter IV of the DV Act, which comprises Sections 12 to 29, the

Supreme Court went on to observe as follows:-

“14. In the aforesaid scenario, merely because Section 28 of

the DV Act provides for that (,) the proceedings under some of

the provisions including Sections 18 and 20 are essentially of

5(2016) 11 SCC 774

19

civil nature. We may take some aid and assistance from the

nature of the proceedings filed under Section 125 of the Code.

Under the said provision as well, a woman and children can

claim maintenance. At the same time these proceedings are

treated essentially as of civil nature.”

It is also pertinent to mention here that in the case of

Kunapareddy (supra), the Supreme Court was considering whether an

amendment application can be filed under the DV Act for amending the

application filed under the DV Act. The Supreme Court further

observed that it cannot be said that the Court dealing with the

application under the DV Act has no power and/or jurisdiction to allow

the amendment of the application. The observations of the Supreme

Court are as follows:-

“16. We understood in this backdrop, it cannot be said that the

court dealing with the application under the DV Act has no

power and/or jurisdiction to allow the amendment of the said

application. If the amendment becomes necessary in view of

subsequent events (escalation of prices in the instant case)

or to avoid multiplicity of litigation, court will have the

power to permit such an amendment. It is said that procedure

is the handmaid of justice and is to come to the aid of the

justice rather than defeating it. It is nobody's case that

Respondent 1 was not entitled to file another application

claiming the reliefs which she sought to include in the pending

application by way of amendment. If that be so, we see no

reason, why the applicant be not allowed to incorporate this

amendment in the pending application rather than filing a

separate application. It is not that there is a complete ban/bar of

amendment in the complaints in criminal courts which are

governed by the Code, though undoubtedly such power to allow

the amendment has to be exercised sparingly and with caution

under limited circumstances. The pronouncement on this is

contained in the recent judgment of this Court in S.R.

Sukumar v. S. Sunaad Raghuram [S.R. Sukumar v. S. Sunaad

Raghuram, (2015) 9 SCC 609 : (2015) 4 SCC (Cri) 44] in the

following paragraphs: (SCC pp. 620-21, paras 18-20)

“18. Insofar as merits of the contention regarding allowing

of amendment application, it is true that there is no specific

provision in the Code to amend either a complaint or a

petition filed under the provisions of the Code, but the courts

have held that the petitions seeking such amendment to

correct curable infirmities can be allowed even in respect of

20

complaints. In U.P. Pollution Control Board v. Modi

Distillery [U.P. Pollution Control Board v.Modi Distillery,

(1987) 3 SCC 684 : 1987 SCC (Cri) 632], wherein the name

of the company was wrongly mentioned in the complaint, that

is, instead of Modi Industries Ltd. the name of the company

was mentioned as Modi Distillery and the name was sought to

be amended. In such factual background, this Court has held

as follows: (SCC pp. 689-90, para 6)

‘6. ….. The learned Single Judge has focussed his

attention only on the technical flaw in the complaint

and has failed to comprehend that the flaw had

occurred due to the recalcitrant attitude of Modi

Distillery and furthermore the infirmity is one which

could be easily removed by having the matter remitted

to the Chief Judicial Magistrate with a direction to

call upon the appellant to make the formal

amendments to the averments contained in Para 2 of

the complaint so as to make the controlling company

of the industrial unit figure as the accused concerned

in the complaint. All that has to be done is the making

of a formal application for amendment by the

appellant for leave to amend by substituting the name

of Modi Industries Ltd., the company owning the

industrial unit, in place of Modi Distillery. …

Furthermore, the legal infirmity is of such a nature

which could be easily cured.’

19. What is discernible from U.P. Pollution Control

Board case [U.P. Pollution Control Board v. Modi Distillery,

(1987) 3 SCC 684 : 1987 SCC (Cri) 632] is that an easily

curable legal infirmity could be cured by means of a formal

application for amendment. If the amendment sought to be

made relates to a simple infirmity which is curable by

means of a formal amendment and by allowing such

amendment, no prejudice could be caused to the other

side, notwithstanding the fact that there is no enabling

provision in the Code for entertaining such amendment,

the court may permit such an amendment to be made. On

the contrary, if the amendment sought to be made in the

complaint does not relate either to a curable infirmity or

the same cannot be corrected by a formal amendment or

if there is likelihood of prejudice to the other side, then the

court shall not allow such amendment in the complaint.

20. In the instant case, the amendment application was

filed on 24-5-2007 to carry out the amendment by adding

Paras 11(a) and 11(b). Though, the proposed amendment was

not a formal amendment, but a substantial one, the Magistrate

allowed the amendment application mainly on the ground that

no cognizance was taken of the complaint before the disposal

of amendment application. Firstly, the Magistrate was yet

to apply the judicial mind to the contents of the complaint

and had not taken cognizance of the matter. Secondly,

21

since summons was yet to be ordered to be issued to the

accused, no prejudice would be caused to the accused.

Thirdly, the amendment did not change the original

nature of the complaint being one for defamation.

Fourthly, the publication of poem Khalnayakaru being in

the nature of subsequent event created a new cause of

action in favour of the respondent which could have been

prosecuted by the respondent by filing a separate

complaint and therefore, to avoid multiplicity of

proceedings, the trial court allowed the amendment

application. Considering these factors which weighed in the

mind of the courts below, in our view, the High Court rightly

declined [S.R. Sukumar v. S. Sunaad Raghuram, 2012 SCC

OnLine Kar 1619] to interfere with the order passed by the

Magistrate allowing the amendment application and the

impugned order does not suffer from any serious infirmity

warranting interference in exercise of jurisdiction under

Article 136 of the Constitution of India.”

17. What we are emphasising is that even in criminal cases

governed by the Code, the court is not powerless and may allow

amendment in appropriate cases. One of the circumstances

where such an amendment is to be allowed is to avoid the

multiplicity of the proceedings. The argument of the learned

counsel for the appellant, therefore, that there is no power of

amendment has to be negated.

18. In this context, provisions of sub-section (2) of Section

28 of the DV Act gain significance. Whereas proceedings under

certain sections of the DV Act as specified in sub-section (1) of

Section 28 are to be governed by the Code, the legislature at the

same time incorporated the provisions like sub-section (2) as

well which empowers the court to lay down its own procedure

for disposal of the application under Section 12 or Section

23(2) of the DV Act. This provision has been incorporated by

the legislature keeping a definite purpose in mind. Under

Section 12, an application can be made to a Magistrate by an

aggrieved person or a Protection Officer or any other person on

behalf of the aggrieved person to claim one or more reliefs

under the said Act. Section 23 deals with the power of the

Magistrate to grant interim and ex parte orders and sub-section

(2) of Section 23 is a special provision carved out in this behalf

which is as follows:

“23.(2) If the Magistrate is satisfied that an application prima

facie discloses that the respondent is committing, or has

committed an act of domestic violence or that there is a

likelihood that the respondent may commit an act of domestic

violence, he may grant an ex parte order on the basis of the

affidavit in such form, as may be prescribed, of the aggrieved

person under Section 18, Section 19, Section 20, Section 21

or, as the case may be, Section 22 against the respondent.”

22

19. The reliefs that can be granted by the final order or by an

interim order, have already been pointed out above wherein it is

noticed that most of these reliefs are of civil nature. If the

power to amend the complaint/application, etc. is not read into

the aforesaid provision, the very purpose which the Act

attempts to subserve itself may be defeated in many cases.”

(emphasis supplied)

24.In the case of Vaishali Abhimanyu Joshi v. Nanasaheb Gopal

Joshi

6

, the Supreme Court was considering a question that whether a

counter-claim filed by a lady seeking right under Section 19 of the DV

Act can be entertained in a suit filed against her under Section 26 of the

Provincial Small Cause Courts Act, 1887, as amended in the State of

Maharashthra, seeking a mandatory injunction directing her to stop

using the suit flat and to remove her belongings therefrom. The

Supreme Court observed as under:-

“40. Section 26 of the 2005 Act has to be interpreted in a

manner to effectuate the very purpose and object of the Act.

Unless the determination of claim by an aggrieved person

seeking any order as contemplated by the 2005 Act is expressly

barred from consideration by a civil court, this Court shall be

loath to read in bar in consideration of any such claim in any

legal proceeding before the civil court. When the proceeding

initiated by the plaintiff in the Judge, Small Cause Court

alleged termination of gratuitous licence of the appellant and

prays for restraining the appellant from using the suit flat and

permit the plaintiff to enter and use the flat, the right of

residence as claimed by the appellant is interconnected with

such determination and refusal of consideration of claim of the

appellant as raised in her counterclaim shall be nothing but

denying consideration of claim as contemplated by Section 26

of the 2005 Act which shall lead to multiplicity of proceedings,

which cannot be the object and purpose of the 2005 Act.

41. We, thus, are of the considered opinion that the

counterclaim filed by the appellant before Judge, Small Cause

Court in Civil Suit No. 77 of 2013 was fully entertainable and

the courts below committed error in refusing to consider such

claim.”

6(2017) 14 SCC 373

23

It is pertinent to note that in the aforesaid case of Vaishali

Abhimanyu Joshi, the Supreme Court categorically held that denial of

consideration of claim, as contemplated by Section 26 of the DV Act in

a counter-claim filed in proceedings under the Provincial Small Cause

Courts Act, 1887, would lead to multiplicity of proceedings which

cannot be the object and purpose of the DV Act.

25.In the case of Deoki Panjhiyara vs. Shashi Bhushan Narayan

Azad & Anr.

7

, the Supreme Court was considering a matter where an

application under Section 12 of the DV Act seeking certain reliefs

including damages and maintenance was filed and on an application for

interim maintenance filed therein, by an order dated 13.2.2008, the trial

court granted an interim maintenance. The order of the trial court was

affirmed by the Session Judge and against the aforesaid order, the

husband filed a writ petition before the High Court. During pendency of

the writ petition, the husband sought a recall of the order dated

13.2.2008 (granting maintenance) on the ground that he subsequently

came to know that his marriage with the lady was void on the ground

that at the time of the said marriage the lady was already married to

another person. The husband had placed reliance upon a certificate of

marriage dated 18.4.2003 between the lady and another person issued

by the competent authority under Section 13 of the Special Marriage

Act, 1954. The application was rejected by the trial court. The revision

filed against this order of the trial court before the High Court was

heard along with the writ petition filed earlier and by a common order it

was held that the marriage certificate issued under Section 13 of the

Special Marriage Act was conclusive proof of first marriage of the lady

with another person which had the effect of rendering the marriage

between the lady and her husband null and void. The Supreme Court

observed as follows:-

7(2013) 2 SCC 137

24

“17. While considering the provisions of Section 11 of the

Hindu Marriage Act, 1955 this Court in Yamunabai Anantrao

Adhav v. Anantrao Shivram Adhav [(1988) 1 SCC 530 : 1988

SCC (Cri) 182 : AIR 1988 SC 644] (SCC p. 534, para 3) has

taken the view that a marriage covered by Section 11 is

void ipso jure, that is, void from the very inception. Such a

marriage has to be ignored as not existing in law at all. It was

further held by this Court that a formal declaration of the nullity

of such a marriage is not a mandatory requirement though such

an option is available to either of the parties to a marriage. It

must, however, be noticed that in Yamunabai [(1988) 1 SCC

530 : 1988 SCC (Cri) 182 : AIR 1988 SC 644] there was no

dispute between the parties either as regards the existence or the

validity of the first marriage on the basis of which the second

marriage was held to be ipso jure void.

18.A similar view has been expressed by this Court in a

later decision in M.M. Malhotra v. Union of India [(2005) 8

SCC 351 : 2005 SCC (L&S) 1139] wherein the view expressed

in Yamunabai [(1988) 1 SCC 530 : 1988 SCC (Cri) 182 : AIR

1988 SC 644] was also noticed and reiterated. However, the

facts in which the decision in M.M. Malhotra [(2005) 8 SCC

351 : 2005 SCC (L&S) 1139] was rendered would require to be

noticed in some detail.

19.The appellant M.M. Malhotra was, inter alia, charged in

a departmental proceeding for contracting a plural marriage. In

reply to the charge-sheet issued it was pointed out that the

allegation of plural marriage was not at all tenable inasmuch as

in a suit filed by the appellant (M.M. Malhotra) for a

declaration that the respondent (wife) was not his wife on

account of her previous marriage to one D.J. Basu the said fact

i.e. previous marriage was admitted by the wife leading to a

declaration of the invalidity of the marriage between the parties.

The opinion of this Court in M.M. Malhotra [(2005) 8 SCC 351

: 2005 SCC (L&S) 1139] was, therefore, once again rendered in

the situation where there was no dispute with regard to the

factum of the earlier marriage of one of the spouses.

20. In the present case, however, the appellant in her

pleadings had clearly, categorically and consistently denied that

she was married to any person known as Rohit Kumar Mishra.

The legitimacy, authenticity and genuineness of the marriage

certificate dated 18-4-2003 has also been questioned by the

appellant. Though Section 11 of the aforesaid Act gives an

option to either of the parties to a void marriage to seek a

declaration of invalidity/nullity of such marriage, the exercise

of such option cannot be understood to be in all situations

voluntarily. Situations may arise when recourse to a court for a

declaration regarding the nullity of a marriage claimed by one

of the spouses to be a void marriage, will have to be insisted

25

upon in departure to the normal rule. This, in our view, is the

correct ratio of the decision of this Court in Yamunabai [(1988)

1 SCC 530 : 1988 SCC (Cri) 182 : AIR 1988 SC 644] and M.M.

Malhotra [(2005) 8 SCC 351 : 2005 SCC (L&S) 1139].

…................

22. In the present case, if according to the respondent, the

marriage between him and the appellant was void on account of

the previous marriage between the appellant and Rohit Kumar

Mishra the respondent ought to have obtained the necessary

declaration from the competent court in view of the highly

contentious questions raised by the appellant on the aforesaid

score. It is only upon a declaration of nullity or annulment of

the marriage between the parties by a competent court that any

consideration of the question whether the parties had lived in a

“relationship in the nature of marriage” would be justified. In

the absence of any valid decree of nullity or the necessary

declaration the court will have to proceed on the footing that the

relationship between the parties is one of marriage and not in

the nature of marriage.

23. We would also like to emphasise that any determination

of the validity of the marriage between the parties could have

been made only by a competent court in an appropriate

proceeding by and between the parties and in compliance with

all other requirements of law. Mere production of a marriage

certificate issued under Section 13 of the Special Marriage Act,

1954 in support of the claimed first marriage of the appellant

with Rohit Kumar Mishra was not sufficient for any of the

courts, including the High Court, to render a complete and

effective decision with regard to the marital status of the parties

and that too in a collateral proceeding for maintenance.

Consequently, we hold that in the present case until the

invalidation of the marriage between the appellant and the

respondent is made by a competent court it would only be

correct to proceed on the basis that the appellant continues to be

the wife of the respondent so as to entitle her to claim all

benefits and protection available under the DV Act, 2005.”

It is to be noted that in the aforesaid judgment of the Supreme

Court, the applicability of the DV Act was considered given the fact

that the marriage was not declared a nullity by a competent court.

26.In the present case, the applicability of the DV Act is due to

alleged domestic violence inflicted on the petitioner who is in a

26

domestic relationship with the respondent no.2 and related by

consanguinity. The protection order under Section 18 is being sought in

the application dated 30.10.2021 under Section 23 of the DV Act in

respect of immovable property specified in the Schedule to that

application. Till the issue of title with regard to those properties is

finally decided in the suit by the competent court, the petitioner

claiming to be an 'aggrieved person' in a 'domestic relationship' who is

subjected to 'domestic violence' would continue to be entitled to claim

all benefits and protection available under the DV Act. There does not

appear to be any bar on seeking additional reliefs, to the extent they can

be granted and the cause for which has arisen subsequently, in a

subsequent application under Section 23, provided such relief and

pleadings are incorporated by permissible amendments in the initial

application under Section 12 of the DV Act.

27.In the backdrop of the aforesaid judgments of the Supreme Court,

given the facts of the instant case, what emerges is that given the

dispute being raised regarding the immovable properties mentioned in

the Schedule to the application dated 30.10.2021, it is certainly the civil

court that will have the jurisdiction to conclusively determine the rights

of the parties and make appropriate decree/s. That is, however, not to

say that proceeding under Section 23, which deals with the power to

grant interim and ex-parte orders by the Magistrate, would not be

maintainable. Where in the application under Section 12, permissible

amendment in view of subsequent developments or otherwise is made

and additional permissible relief is sought, a fresh application under

Section 23 would be maintainable. It is iterated that the protection order

to be passed by the Magistrate under Section 18 of the DV Act is on his

being prima facie satisfied that the domestic violence had taken place

or was likely to take place.

27

28. In view of the aforesaid, the position can thus be summarized as

follows:-

(i)The purpose of enacting the DV Act was to provide a remedy in

the civil law for the protection of women from being victims of

domestic violence and to prevent the occurrence of domestic violence

in the society. It is for this reason, that the scheme of the Act provides

that in the first instance, the order that would be passed by the

Magistrate, on a complaint by the aggrieved person, would be of a civil

nature and if the said order is violated, it assumes the character of

criminality.

(ii)There is no complete ban/bar of amendment in the complaints in

criminal courts which are governed by the Code, though undoubtedly

such power to allow the amendment has to be exercised sparingly and

with caution under limited circumstances.

(iii)If the amendment sought in the application under the DV Act

relates to a simple infirmity which is curable by means of a formal

amendment and by allowing such amendment, no prejudice could be

caused to the other side, notwithstanding the fact that there is no

enabling provision in the Code for entertaining such amendment, the

court may permit such an amendment to be made. On the contrary, if

the amendment sought to be made in the complaint does not relate

either to a curable infirmity or the same cannot be corrected by a formal

amendment or if there is likelihood of prejudice to the other side, then

the court shall not allow such amendment in the complaint.

(iv)Where amendment sought is of a substantial nature the same may

be allowed after carefully considering the facts, circumstances and the

stage of the case, provided that the amendment would not change the

original nature of the complaint, and, provided further that the

amendment is necessitated in view of subsequent event which creates a

28

new cause of action in favour of the aggrieved person and would avoid

multiplicity of proceedings.

(v)On such amendment being effected, a fresh application filed

under Section 23 of the DV Act can be maintained for seeking a

protection order under Section 18.

(vi)The alienation of assets whether moveable or immoveable in

which the aggrieved person has an interest or is entitled to use by virtue

of the domestic relationship or which may be reasonably required by

the aggrieved person or her children or her ‘stridhan’ or any of the other

properties jointly or separately held by the aggrieved person, may

constitute ‘economic abuse’ bringing it within the definition of

“domestic violence” under Section 3 of the DV Act.

(vii)Adjudication of title of an aggrieved person with regard to

moveable or immoveable properties sought to be alienated cannot be

made under the DV Act but can only be made by a competent civil

court. However, in respect of such properties a protection order can be

passed by the Magistrate under Section 18 of the DV Act on his prima

facie satisfaction that domestic violence has taken place or is likely to

take place.

(viii)The relief/s available under Sections 18, 19, 20, 21 and 22 in an

application filed under Section 12 of the DV Act may also be sought

before the civil court before which the suit filed by the petitioner

against the respondent no.2 is pending, in terms of Section 26 of the DV

Act.

29.In the present case, the protection order sought in the application

dated 30.10.2021 is essentially in the nature of an interim relief. As

noted above, a civil suit pertaining to the properties in dispute is

pending, in which suit, the reliefs available to the petitioner under the

DV Act can be well addressed in view of the provisions of Section 26

29

of the DV Act. Relegating the matter to the appellate court would

unnecessarily prolong the case under the DV Act.

30.Therefore, under the facts and circumstances of the present case,

this petition is disposed of leaving it open to the petitioner to move

appropriate application before the civil court in which the aforesaid suit

is pending seeking appropriate temporary injunction or protection order,

as she may be advised. If such an application is filed, the concerned

court is requested to decide the same in accordance with law, preferably

within a period of four months from the date of filing of that

application.

In the interest of justice it is provided that for a period of five

months from today, none of the parties to the petition will create any

third party interest over any part of the properties as mentioned in the

Schedule to the application dated 30.10.2021 filed by the petitioner in

Case No.829 of 2011 under the DV Act.

31.As far as the aforesaid application under Section 340 Cr.P.C. is

concerned, the same is required to be registered and numbered as a

Criminal Miscellaneous case and, thereafter, placed before the

appropriate Court for its consideration. The office is directed to do the

needful in this regard. All other pending applications stand disposed of.

Order Date :- 20.5.2024

A. V. Singh/SK

(Jayant Banerji, J.)