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 REPORTABLE

  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

J U D G M E N T

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.  

2. The admitted facts are that the respondent was married to

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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

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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

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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

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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

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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 -

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(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

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

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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

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

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

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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;  …………………………………………. 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

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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.

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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.

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

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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

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 1  (1988) 2 SCC 602

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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.     

..….….…………………….J.     (Rohinton Fali Nariman)

              ...……………………………J.         (Sanjay Kishan Kaul)

New Delhi; July 14, 2017.       

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                          ITEM NO.1501               COURT NO.13            SECTION IV-A     (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

    Civil Appeal  No.2500/2017 MANMOHAN ATTAVAR                                   Appellant(s)                                 VERSUS NEELAM MANMOHAN ATTAVAR                            Respondent(s) (HEARD BY : HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN ANDHON'BLE  MR. JUSTICE SANJAY KISHAN KAUL) WITH C.A. No. 2502/2017 (IV-A) ( FOR VACATING STAY [MAY BE TREATED AS APPLN. FOR VACATING STAY] ON IA 39908/2017)   Date : 14-07-2017 These appeals were called on for pronouncement of

  judgment today. For Appellant(s)    Mr.Anil Shetty, Adv.

Mr. Balaji Srinivasan, AOR Mr. Abhishek Bharati, Adv. Ms. Pratiksha Mishra, Adv. Ms. Vaishnavi Subramananyam, Adv. Mr. Arunava Mukherjee, Adv. Ms. Srishti Govil, Adv.

                   For Respondent(s)    Respondent-in-person                      

Hon'ble  Mr.  Justice  Sanjay  Kishan  Kaul  pronounced  the judgment of the Bench comprising  Hon'ble Mr. Justice Rohinton Fali Nariman and His Lordship.

The appeals are allowed leaving the parties to bear their own costs in terms of the signed reportable judgment.

(USHA RANI BHARDWAJ)                            (SAROJ KUMARI GAUR) AR CUM PS                                    BRANCH OFFICER

Signed reportable judgment is placed on the file.