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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1999 OF 2013 (arising out of SLP(Crl.)No.2190 of 2012)  

SARASWATHY       …. APPELLANT

VERSUS

BABU    ….RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.  This appeal has been preferred  

by the appellant­wife against the judgment and  

order dated 13th  December, 2011 passed by the High  

Court of Judicature at Madras.   By the impugned  

judgment, the High Court dismissed the criminal  

revision case filed by the appellant and thus  

affirmed the order of First Appellate Court.   

2. The pertinent facts of the case are as follows:

The parties to the present dispute are married  

to each other and the said marriage was solemnized  

on 17th February, 2000.  According to the appellant,  1

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she brought 50 sovereign gold ornaments and 1 kg  

silver articles  as  stridhan  also  Rs.10,000/­  was  

given to the respondent.   After marriage the  

appellant lived in her matrimonial house at Padi,  

Chennai.   After four months of the marriage, the  

respondent­husband and his family demanded more  

dowry in the form of cash and jewels. The appellant  

was not able to satisfy the said demand.  

Therefore, she was thrown out of her matrimonial  

house by the respondent and her in­laws.   Another  

allegation of the appellant is that after sending  

out the appellant from her matrimonial house, the  

respondent­husband intended to marry again. On  

hearing such rumour, the appellant filed petition  

under Section 9 of the Hindu Marriage Act, 1955  

(hereinafter referred to as, “the HM Act, 1955”)  

bearing no. H.M.O.P. No. 216 of 2001 before the  

Principal Subordinate Judge, Chengalpattu, Tamil  

Nadu for restitution of conjugal rights.  

The respondent­husband on the other hand filed  

H.M.O.P. No. 123 of 2002 under Section 13(1) (ia)  

and (iv) of the HMA Act, 1955 before the Principal  

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Subordinate Judge, Chengalpattu, Tamil Nadu for  

dissolution of marriage between the appellant and  

the respondent .

On 5th  April, 2006, the learned Principal  

Subordinate Judge, Chengalpattu, Tamil Nadu  

dismissed the petition for dissolution of marriage  

filed by the respondent­husband and allowed the  

petition for restitution of conjugal rights filed  

by the appellant­wife with the condition that the  

appellant should not insist for setting up of a  

separate residence by leaving the matrimonial home  

of the respondent.  

In the year 2008, the appellant filed Crl. M.P.  

No. 2421 of 2008 before learned XIII Metropolitan  

Magistrate, Egmore, Chennai against the respondent  

seeking relief under Section 19, 20 and 22 of the  

Protection of Women from Domestic Violence Act,  

2005 (hereinafter referred to as, “the PWD Act,  

2005”).  The learned XIII Metropolitan Magistrate,  

Egmore, Chennai partly allowed the same and  

directed the respondent to give maintenance of  

Rs.2,000/­ per month to the appellant to meet out  

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her  medical  expenses, food,  shelter and  clothing  

expenses.   The Magistrate Court’s held that the  

appellant is in domestic relationship with the  

respondent and the appellant being the wife of the  

respondent has a right to reside in the shared  

household.   The officer in charge of the nearest  

Police Station was directed to give protection to  

the appellant for implementation of the residence  

orders and was also directed to assist in the  

implementation of the protection order.   

The respondent­husband being aggrieved  

preferred Criminal Appeal No. 339 of 2008 before  

the Sessions Court   (Vth Additional Judge) at  

Chennai.   

In the meantime, as per the order passed by the  

XIII Metropolitan Magistrate, Egmore, Chennai the  

appellant­wife  went  to  her  matrimonial  house  for  

staying with the respondent­husband house along  

with Protection Officer.   However, the respondent  

did not obey the order of the Court and refused to  

allow the appellant­wife to enter the house and  

locked the door from outside and went out.   

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On 22nd  December, 2008, the appellant filed a  

complaint  against  the respondent  for not  obeying  

the order of the learned XIII Metropolitan  

Magistrate, Egmore, Chennai and the same was  

registered in Ambatur T3 Korattur Police Station as  

FIR No. 947 of 2008 under Section 31,32 and 74 of  

the  PWD Act, 2005.  The case was committed to the  

learned XIII Metropolitan Magistrate, Egmore,  

Chennai and registered as Criminal Miscellaneous  

Petition No. 636 of 2011.

In the meantime, the Criminal Appeal No. 339 of  

2008 filed by the respondent­husband was partly  

allowed by the Sessions Court (Vth Addl. Judge) at  

Chennai on 21st  October, 2010. Sessions Courts by  

the said order set aside the order prohibiting the  

respondent­husband from committing acts of domestic  

violence as against the appellant­wife by not  

allowing her to live in the shared household and  

the order directing the respondent to reside in the  

house owned by respondent’s mother and upheld the  

order granting maintenance of Rs.2,000/­ per month  

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in favour of the appellant­wife by the respondent­

husband.  

3. Aggrieved by the aforesaid order, the  

appellant­wife filed Crl. R.C. No. 1321 of 2010  

before the High Court.   A criminal miscellaneous  

petition no.1 of 2010 was also filed in the said  

revision application.   On 23rd  December, 2010, the  

High Court granted an interim stay to the above  

order passed by the learned Sessions Court (Vth  

Addl. Judge) at Chennai.    

4. In the meantime, while the matter was pending  

before the High Court, the learned   XIII  

Metropolitan Magistrate, Egmore, Chennai passed an  

order on 24th February, 2011 in Crl. Misc. Petition  

No. 636 of 2011 (arising out of FIR No. 947 of  

2008) and directed the SHO, Ambatur T3 Korattur  

Police Station to break the door of the  

respondent’s house in the presence of the Revenue  

Inspector and make accommodation for the appellant  

with further direction to the SHO to inquire about  

the belongings in the respondent’s house in  

presence of the family members of the respondent  

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with further direction to submit the report to the  

respondent as well as the Protection Officer.  The  

respondent­husband thereafter filed a petition for  

vacating the order of stay dated 23rd December, 2010  

and vide order dated 9th March, 2011 the High Court  

vacated the order of stay and made it clear that  

appellant­wife can go and reside with her husband  

in his rental residence at Guduvancherry.   As the  

order aforesaid was not complied with by the  

respondent­husband the appellant­wife filed  

Contempt Petition No. 958 of 2011 against the  

respondent­husband   for wantonly disobeying the  

order dated 9th  March, 2011 passed by the High  

Court.   

5. The High Court closed the contempt petition  

vide order dated 21st  July, 2011 with following  

observation:

“In view of the categorical submission made by  the Ld. Counsel for the respondent as well as  the statement made by the respondent herein by  appearing before this court and stating that  the respondent undertakes not to prevent the  contempt petitioner from entering inside the  premises at Door No. 80, Karpagambal Nagar,  Nadivaram, Guduvancherry, Chennai and the  contempt petitioner also agreed to occupy and  stay in the above said premises from  

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01.08.2011, the contempt petition is hereby  closed.”

6. Thereafter the appellant made representation  

before Sub Inspector of Police, Guduvancherry  and  

stated that the respondent­husband has given false  

address and in order to comply with the court’s  

order, the appellant went to the address and on  

enquiry came to know that the address was a bogus  

one.   The appellant thereby submitted a complaint  

and requested the police to enquire from the  

respondent to ascertain the real facts so as to  

ensure that the court’s order is executed in its  

letter and spirit.   

7. When the matter was pending before the Police,  

the High Court decided the criminal miscellaneous  

case filed by the appellant and held that although  

the offending acts of the respondent could be  

construed as offences under other enactments it  

could not be construed as acts of domestic violence  

under the PWD Act, 2005 until the Act came into  

force.   The High Court dismissed the revisional  

application.  

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8. From the bare perusal of the impugned judgment  

passed by the High Court, we find that the High  

Court framed the following question:

“4.  The primary question that arises for  consideration is whether acts committed prior  to the coming  into force of the Protection of  Women from Domestic Violence Act, 2005 and  which fall within the definition of the term  ‘Domestic Violence’ as informed in the Act  could form the basis of an action.”

9. The High Court after taking into consideration  

the stand taken by the parties held as follows:

“5. This court would first concern itself with  whether acts which now constitute domestic  violence but committed prior to the coming into  force of the Act would form a basis of an  action thereunder.   With due respect to the  authorities above cited, this court would  inform that the fundamental issue stands  unaddressed.  The Act cam into force on 2005.  It cannot be disputed that several wrongful  actions which might have amounted to offences  such as cruelty and demand for dowry cannot  have taken the description of “Domestic  violence” till such time the act came into  force.  In other words the offending acts could  have been construed as offences under other  enactments but could not have been construed as  acts of ‘Domestic Violence’ until the act came  into force.  Therefore, what was not ‘Domestic  violence’ as defined in the Act till the Act  came into force could not have formed the basis  of an action.   Ignorance of law is no excuse  but the application of this maxim on any date  prior to the coming into force of the Act could  only have imputed knowledge of offence as  subsisted prior to coming into force of the  Act.  It is true that it is only violation of  orders passed under the Act which are made  punishable.   But those very orders could be  

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passed only in the face of acts of domestic  violence.   What constituted domestic violence  was not known until the passage of the act and  could not have formed the basis of a complaint  of commission of ‘Domestic violence’.”

10. From the judgment passed by the Trial Court  

(XIII Metropolitan Magistrate, Egmore, Chennai  

dated 5th December, 2008) we find that the appellant  

filed petition against her husband Babu seeking  

relief under Sections 18, 19, 20 and 22 under the  

PWD Act, 2005.  Sections 18, 19, 20 and 22 read as  

follows:

“18.  Protection orders.­The Magistrate may,  after giving the aggrieved person and the  respondent an opportunity of being heard and on  being prima facie satisfied that domestic  violence has taken place or is likely to take  place, pass a protection order in favour of the  aggrieved person and prohibit the respondent  from­  (a) committing any act of domestic violence;  (b) aiding or abetting in the commission of  acts of domestic violence;  (c) entering the place of employment of the  aggrieved person or, if the person aggrieved is  a child, its school or any other place  frequented by the aggrieved person;  (d) attempting to communicate in any form,  whatsoever, with the aggrieved person,  including personal, oral or written or  electronic or telephonic contact;  (e) alienating any assets, operating bank  lockers or bank accounts used or held or  enjoyed by both the parties, jointly by the  aggrieved person and the respondent or singly  by the respondent, including her stridhan or  any other property held either jointly by the  

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parties or separately by them without the leave  of the Magistrate;  (f) causing violence to the dependants, other  relatives or any person who give the aggrieved  person assistance from domestic violence;  (g) committing any other act as specified in  the protection order.  

 19. Residence orders.­(1) While disposing of an  application under sub­section (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 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.

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(2) The Magistrate may impose any additional  conditions or pass any other direction which he  may deem reasonably necessary to protect or to  provide for the safety of the aggrieved person  or any child of such aggrieved person.  

(3) The Magistrate may require from the  respondent to execute a bond, with or without  sureties, for preventing the commission of  domestic violence.  

(4) An order under sub­section (3) shall be  deemed to be an order under Chapter VIII of the  Code of Criminal Procedure, 1973 (2 of 1974)  and shall be dealt with accordingly.  

(5) While passing an order under sub­section  (1), sub­section (2) or sub­section (3), the  court may also pass an order directing the  officer in charge of the nearest police station  to give protection to the aggrieved person or  to assist her or the person making an  application on her behalf in the implementation  of the order.  

(6) While making an order under sub­section  (1), the Magistrate may impose on the  respondent obligations relating to the  discharge of rent and other payments, having  regard to the financial needs and resources of  the parties.  

(7) The Magistrate may direct the officer in­ charge of the police station in whose  jurisdiction the Magistrate has been approached  to assist in the implementation of the  protection order.  

(8) The Magistrate may direct the respondent to  return to the possession of the aggrieved  person her stridhan or any other property or  valuable security to which she is entitled to.  

 20. Monetary reliefs.­(1) While disposing of an  application under sub­section (1) of section  12, the Magistrate may direct the respondent to  pay monetary relief to meet the expenses  incurred and losses suffered by the aggrieved  

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person and any child of the aggrieved person as  a result of the domestic violence and such  relief may include, but not limited to,­ (a) the loss of earnings; (b) the medical expenses; (c) the loss caused due to  the destruction,  damage or removal of any property from the  control of the aggrieved person; and (d) the maintenance for the aggrieved person as  well as her children, if any, including an  order under or in addition to an order of  maintenance under section 125 of the Code of  Criminal Procedure, 1973(2 of 1974) or any  other law for the time being in force.

(2) The monetary relief granted under this  section shall be adequate, fair and reasonable  and consistent with the standard of living to  which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to  order an appropriate lump sum payment or  monthly payments of maintenance, as the nature  and circumstances of the case may require.

(4) The Magistrate shall send a copy of the  order for monetary relief made under sub­ section (1) to the parties to the application  and to the in­charge of the police station  within the local limits of whose jurisdiction  the respondent resides.

(5) The respondent shall pay the monetary  relief granted to the aggrieved person within  the period specified in the order under sub­ section (1).

(6) Upon the failure on the part of the  respondent to make payment in terms of the  order under sub­section (1), the Magistrate may  direct the employer or a debtor of the  respondent, to directly pay to the aggrieved  person or to deposit with the court a portion  of the wages or salaries or debt due to or  accrued to the credit of the respondent, which  amount may be adjusted towards the monetary  relief payable by the respondent.  

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22. Compensation orders.­In addition to other  reliefs as may be granted under this Act, the  Magistrate may on an application being made by  the aggrieved person, pass an order directing  the respondent to pay compensation and damages  for the injuries, including mental torture and  emotional distress, caused by the acts of  domestic violence committed by that  respondent.”  

11. The Trial Court having noticed the provisions  

of PWD Act, 2005 and the fact that the appellant­

wife was prevented by the respondent­husband to  

enter the matrimonial house even after the order  

passed by the Subordinate Judge, granted protection  

under Section 18 with further direction to the  

respondent­husband  under  Section  19  to  allow  the  

appellant­wife to enter in the shared household and  

not to disturb the possession of the appellant­wife  

and to pay maintenance of Rs.2,000/­ per month to  

meet her medical expenses, food and other expenses.  

However, no compensation or damages was granted in  

favour of the appellant­wife.   

Notices were issued on the respondent but  

inspite of service, no affidavit has been filed by  

the respondent denying the averments made in the  

petition.  

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12. Section 2 (g) of PWD Act, 2005 states that  

“domestic violence” has the same meaning as  

assigned to it in Section 3 of PWD Act, 2005.  

Section 3 is the definition of domestic violence.  

Clause (iv) of Section 3 relates to “economic  

abuse” which includes 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 as evident from  

clause (c) of Section 3(iv).

13. In the present case, in view of the fact that  

even after the order passed by the Subordinate  

Judge the  respondent­husband  has  not allowed  the  

appellant­wife  to  reside  in  the shared household  

matrimonial house, we hold that there is a  

continuance of domestic violence committed by the  

respondent­husband against the appellant­wife.   In  

view of the such continued domestic violence, it is  

not necessary for the courts below to decide  

whether the domestic violence is committed prior to  

the coming into force of the Protection of Women  

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from Domestic Violence Act, 2005 and whether such  

act falls within the definition of the term  

‘Domestic Violence’ as defined under Section 3 of  

the PWD Act, 2005.  

14. The other issue that whether the conduct of the  

parties even prior to the commencement of the PWD  

Act, 2005 could be taken into consideration while  

passing an order under Sections 18, 19 and 20 fell  

for consideration before this Court in V.D. Bhanot  

v. Savita Bhanot (2012) 3 SCC 183.   In the said  

case, this Court held as follows:

“12. We agree with the view expressed by the  High Court that in looking into a complaint  under Section 12 of the PWD Act, 2005, the  conduct of the parties even prior to the  coming into force of the PWD Act, could be  taken into consideration while passing an  order under Section 18, 19 and 20 thereof.  In  our view, the Delhi High Court has also  rightly held that even if a wife, who had  shared a household in the past, but was no  longer doing so when the Act came into force,  would still be entitled to the protection of  the PWD Act, 2005,”

15. We are of the view that the act of the  

respondent­husband squarely comes within the ambit  

of Section 3 of the PWD Act, 2005, which defines  

“domestic violence” in wide term.   The High Court  

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made an apparent error in holding that the conduct  

of the parties prior to the coming into force PWD  

Act, 2005 cannot be taken into consideration while  

passing an order.   This is a case where the  

respondent­husband has not complied with the order  

and direction passed by the Trial Court and the  

Appellate Court. He also misleads the Court by  

giving wrong statement before the High Court in the  

contempt petition filed by the appellant­wife. The  

appellant­wife having being harassed since 2000 is  

entitled for protection orders and residence orders  

under Section 18 and 19 of the PWD, Act, 2005 along  

with the maintenance as allowed by the Trial Court  

under Section 20 (d) of the PWD, Act, 2005.  Apart  

from these reliefs, she is also entitled for  

compensation and damages for the injuries,  

including mental torture and emotional distress,  

caused by the acts of domestic violence committed  

by the respondent­husband.  Therefore, in addition  

to the reliefs granted by the courts below, we are  

of the view that the appellant­wife should be  

compensated by the respondent­husband. Hence, the  

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respondent is hereby directed to pay compensation  

and damages to the extent of Rs.5,00,000/­ in  

favour of the appellant­wife.   

16. The order passed by the High Court is set aside  

with a direction to the respondent­husband to  

comply with the orders and directions passed by the  

courts below with regard to residence and  

maintenance within three months. The respondent­

husband is further directed to pay a sum of  

Rs.5,00,000/­ in favour of the appellant­wife  

within six months from the date of this order.  The  

appeal is allowed with aforesaid observations and  

directions.   However, there shall be no separate  

order as to costs.  

………..………………………………………..J.          (SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………….J.               (V. GOPALA GOWDA)

NEW DELHI, NOVEMBER  25, 2013.

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