Adjudication Of Aggrieved Person’s Title Regarding Movable Or Immovable Property Sought To Be Alienated Can’t Be Made Under Domestic Violence Act: Allahabad HC

The Allahabad High Court observed that an adjudication of title of an aggrieved person regarding movable or immovable properties to be alienated, cannot be made under the Protection of Women from Domestic Violence Act, 2005 (DV Act), rather can only be made by a competent civil court.

The Court observed thus in a petition preferred by a woman seeking to set aside the order of the Additional District Judge with a further relief to prohibit and restrain persons from committing any act of economic abuse by alienating or creating third party interest over any part of the properties.

A Single Bench of Justice Jayant Banerji held, “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.”

The Bench said that 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.

Senior Advocate V.K. Upadhyay represented the petitioner while Senior Advocate Anil Kumar Srivastava represented the respondents.

Brief Facts -

The petitioner was the daughter of the erstwhile ruler of the Banaras State and was continuously living in the fort of Ramnagar since childhood. After the death of her father, it was alleged that she 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 was entitled. Domestic violence was committed by her younger sibling and he took into his custody various documents including the recorded family settlement. He created a situation in the residence which became non-conducive to the peaceful residence of the petitioner. Hence, a case was instituted via an application under Section 12 read with Section 23 of DV Act in 2011.

The Additional Chief Judicial Magistrate prohibited interference in the shared household in the possession of the petitioner over properties and not to evict her, create any hindrance, and harass her during pendency of the case. Such order was affirmed by the Supreme Court. Thereafter, an application under Section 23 of DV Act was filed seeking a direction for restraining transfer of properties. The Trial Court observed that it is the civil court which would be competent to grant relief sought in the application. Challenging the said order, an appeal was filed before the District and Sessions Judge and the same was dismissed. Hence, the petitioner approached the High Court.

The High Court in view of the above facts noted, “… 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.”

The Court reiterated 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.

“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”, it said.

The Court further noted that 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.

“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”, it added.

The Court also said that 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 new cause of action in favour of the aggrieved person and would avoid multiplicity of proceedings.

“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. … 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 of the DV Act. Relegating the matter to the appellate court would unnecessarily prolong the case under the DV Act”, it concluded.

Accordingly, the High Court disposed of the petition leaving it open to the petitioner to move appropriate application before the civil court.

Cause Title- Maharaj Kumari Vishnupriya v. State of UP and 2 Others (Neutral Citation: 2024:AHC:90613)

Appearance:

Petitioner: Senior Advocate V.K. Upadhyay and Advocate Ritvik Upadhya.

Respondents: Senior Advocate Anil Kumar Srivastava, Advocates Sanjay Singh, and Saurabh Raj Srivastava.

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