Property Upon Attachment Becomes Custodia Legis: Apex Court Sets Aside Order Outsting Mother-In-Law & Sisters-In-Law From Shared Household Under DV Act
It held that under the proviso to Section 19(1)(b) of the DV Act, no order removing a woman from the shared household can be passed, and directed the raising of the attachment on the property.
The Supreme Court has held that the mother-in-law and sisters-in-law of a complainant under the Protection of Women from Domestic Violence Act, 2005 cannot be ousted from the residential premises where they were residing on account of the non-appearance of the husband, in view of the proviso to Section 19(1)(b) of the Act, which bars the passing of any order for removal from the shared household against a woman.
The Court further clarified that attachment of a property would, at the most, mean that the property becomes custodia legis, so as to prevent the creation of any encumbrance, and cannot extend to locking the premises and dispossessing the occupants.
The Bench of Justice Aravind Kumar and Justice Vipul M Pancholi observed, "Had the High Court said or commented upon the impugned order while passing the final order, this Court would have definitely desisted from expressing any opinion. However, the impugned order though, which was interim in nature is operating and continuing or by virtue of the said order the jurisdictional police seems to have attached the property, taken possession of the property and ousted the appellants from their house, where they were residing. This is highly impermissible; we say so for the simple reason that under the Protection of Women from Domestic Violence Act, 2005, namely, Section 19(1)(b), the jurisdictional Magistrate is empowered to remove the person from the shared household; the proviso to Section 19(1)(b) is a complete answer to the present dispute."
Brief Facts of the Case
The respondent/wife filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the jurisdictional Magistrate, wherein she sought protection, maintenance of Rs. 25,000/- per month for herself and her minor daughter, restraint against alienation of the shared household and other reliefs.
On account of delay in the said proceedings, she filed a Criminal Miscellaneous Application before the Uttarakhand High Court at Nainital seeking directions for expeditious disposal of the proceedings, contending that the same had remained pending for more than two years and six months.
The High Court had admitted the said application and issued notice to the respondents therein, observing that their presence was required. Subsequently, the High Court had recorded the absence of Sonu, directed the applicants to take steps for service of notice through the concerned consulate, and permitted them to amend the pleadings regarding his current address and to effect service through electronic means including WhatsApp and e-mail.
Thereafter, the High Court had observed that Sonu was avoiding the proceedings while residing in Saudi Arabia. Subsequently, an affidavit was filed by Yasmeen, whereafter the High Court had directed non-bailable warrants and proceedings under Section 82 to be initiated by the competent Court against the concerned respondents.
The High Court also had ordered attachment of the property wherein the appellants, namely the mother-in-law and sisters-in-law of Yasmeen, were residing, and directed the jurisdictional S.H.O. to file a compliance report.
In pursuance thereof, the residential property was attached, was put under lock and key, and the appellants were ousted therefrom. Aggrieved by the said interim order, the appellants preferred the present appeal.
Contentions of the Parties
The Appellants contended and submitted that by virtue of the attachment, the jurisdictional police had locked the premises and ousted the appellants from the use and occupation thereof, which was erroneous and impermissible and contrary to law.
The Respondents vehemently contended that the present appeal had become infructuous, on the ground that the High Court had disposed of the Criminal Miscellaneous Application by a subsequent order, and as such nothing further remained, the High Court having also observed that the pending proceedings were to be expedited.
Observations/Findings of the Court
The Court observed that the Appellants herein, being the mother-in-law and sisters-in-law of the complainant, Yasmeen, could not have been ousted from the residential premises where they are residing for non-appearance of respondent no.3 (husband of respondent no.1).
"Even otherwise, the attachment even if any, would only mean and include the attachment of the property to prevent any encumbrance being created on the said property or in other words, the said property becoming custodia legis namely it would come to the custody of the Court, at the most, this could have been the situation", the Court noted.
It was also observed that the jurisdictional police have locked the premises and ousted them from the use and occupation of the premises, which is not only erroneous but also impermissible as it is contrary to the law.
Accordingly, the Court set aside the impugned order and asked the jurisdictional Magistrate to make all endeavours to expedite the hearing and secure the presence of the husband.
Cause Title: XXXX v. YYYY [SLP (Crl) No.19298/2026]
Appearances:
Appellants: Advocate K.K. Tyagi, Advocate Mohd. Ahtashan, Advocate Iftekhar Ahamd, Advocate Garima Tyagi, Advocate Sarvam Ritam Khare
Respondents: Advocate on Record Nihal Ahmad, Advocate Arvind Kumar Shukla, Advocate Neena Shukla, Advocate Surbhi Khanna, Advocate Piyush Kumar Singh, Advocate Rekha Giri