Courtesy: PK – Shimla (Real name withheld on request)

Summary: The intention of the Act is to altogether exclude women, when most women are excluded there is no question of the Act intending to include people like unmarried girls. Thus, it appears that the intention of the Act is to exclude women altogether.

How to use these judgments: Use these judgments to quash or for dismissal of DV case against a female respondent, wherein any female your mother, sister or any other women is included in the complaint under DV Act. As per DV Act, the provisions of the Act cannot be applied against a lady or  female or woman means a woman/female cannot be a Respondent in DV Case.

Full Judgment:

ANDHRA HIGH COURT

THE HON’BLE SRI JUSTICE P.SWAROOP REDDY

1. Criminal Petition No. 4106 of 2008   22-10-2008

Smt. Menakuru Renuka and Others.

Smt. Menakuru Mona Reddy.

2.State of A.P. rep. By Public Prosecutor,

High Court of Andhra Pradesh, Hyderabad.

Counsel for Petitioners : C.Praveen Kumar.

Counsel for Respondent1: K.M.Mahender Reddy.

:Order:

This petition under Section 482 Cr.P.C. is filed by the petitioners, who are respondent Nos. 2 to 4 in D.V.C. No. 1 of 2008 on the file of the learned Judicial Magistrate of First Class, Pulivendula, Kadapa District. The first respondent herein, who is the complainant (herein after called as the complainant) in the above D.V.C., filed the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) claiming reliefs under Sections 18, 19 and 20 of the Act.

2. According to the complainant, her marriage with M.S. Mahender Reddy son of the first and second petitioners and the brother of the third petitioner herein

was performed on 29.06.1997. According to the complainant, huge amount to a tune of Rs.1.00 crore was given to the petitioners apart from several otherarticles.After the marriage, the spouses lived in United States of America for some time. There was harassment by the husband, even after the birth of a child. Even after they returned to India, there was harassment by the husband, as well as parents-in-law, including the sister-in-law. It is the case of the complainant that not only she, but her father was assaulted by the present petitioners. In the D.V.C., she sought reliefs of separate residence, compensation of Rs.8.00 crores and Rs.1.50 Lakhs towards house hold expenses.

3. The contention of the petitioners is that even if the entire allegations in the complaint are taken to be true also, the provisions of the Act would not attract against present petitioner Nos. 1 and 3, as under Section 2 (q) of the Act, women are not liable and the reliefs that are now being claimed by the petitioners can be granted against the husband only and not from any other member of the family, including the present second petitioner, father-in-law. It

is also the contention of the petitioners that the complainant has also filed a case against the petitioners and her husband under Section 498-A IPC and  Sections 3 and 4 of the Dowry Prohibition Act in Crime No.77 of 2008 of Pulivendula Police Station that was registered on 12.6.2008, which perhaps is a

counter blast to the report given by the second petitioner herein at Varthuru Police Station, Bangalore City on 6.6.2008.

4. A reading of the complaint given to the Protection Officer would show that the complainant was continuously harassed at USA, as well as in India, in several ways. While they were in USA, the present petitioners – parents-in-law and sister-in-law were instigating her husband to harass her and after they came to India also, all the family members of the husband, including the sister-in- law harassed her and they even assaulted her and her father. In the DVC, the complainant claimed protection under Section 18; provision for residence under

Section 19; maintenance under Section 20 and compensation under Section 22 of the Act.

5. In the counter filed on behalf of the first respondent, the allegations in her complaint are repeated mostly and it is contended that the acts of the present petitioners and her husband attract the provisions of the Protection of Women from Domestic Violence Act, 2005; proviso to Section 2 (q) makes women also liable, her husband, parents-in-law and sister-in-law are liable under this Act. According to her, the third petitioner herein, her sister-in-law, used to influence her husband and other family members; she along with her parents instigated and abetted physical violence against her and that criminal cases by both sides have nothing to do with the present case.

6. Learned Senior Counsel – Sri C. Padmanabha Reddy, appearing for the petitioners contends that in view of the provisions of Section 2 (q) of the Act, women are not liable and for that reason the proceedings against them have to be quashed. It is the next contention of the learned senior counsel that the relief

claimed in the DVC cannot be claimed against any of the petitioners and for that

reason also the proceedings have to be quashed against the petitioners.

7. On the other hand, Sri D. Prakash Reddy, learned Senior counsel appearing for the respondent, contends that in view of proviso to Section 2 (q) of the Act,

the DVC is maintainable against women i.e., petitioner Nos.1 and 3 also and the

claims made by the first respondent are maintainable against all the petitioners

herein, who are the parents-in-law and sister-in-law.

8. Now, two questions would arise for consideration: — First is whether the proceedings under the Domestic Violence Act are maintainable against women in view of Section 2 (q) of the Act; and  — Second would be whether the reliefs claimed by the first respondent- complainant are maintainable against the petitioners herein.

9. As far as the first question is concerned, Section 2 (q) of the Act reads as under:

“Respondent” means any adult male person who is, or has been, in a domestic

relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner”.

10. Thus, the Section says “respondent” means any adult male person, there by

excluding women altogether; but the proviso provides for filing complaint against the relatives of the husband or a male partner. In view of the same, the

learned senior counsel appearing for the first respondent wife contends that women are also liable.

11. As contended, the proviso to Section 2(q) is giving scope for including female relatives of the husband also. Here, any doubt as to whether a female

relative can be included, perhaps, is clear from the main Section 2 (q), it covers, the persons having domestic relationship.

As per Section 2 (f) of the Act, “domestic relation” would “include persons that

any time lived together in a shared house hold, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as joint family”. Thus, this

would cover close members of the husband’s family like mother-in-law, sister-in-law, co-sisters etc. Thus, thereby excluding them (female members of the domestic relationship) from being the respondents, when the Section says adult

male persons of the domestic relationship are included, female members of the domestic relationship have to be automatically excluded or else Section 2 (q) of

the Act would have been “respondent’ means “any adult person” instead of “any

adult male person”. Thus, the question of selfsame female member in domestic

relationship excluded as respondent in view of the contents of the main provision again being included under the proviso to the Section may not arise.

Therefore, it has to be treated that the proviso intends to include only male persons other than those in domestic relationship also. There appears to be

unintentional omission to specifically excluding women in the proviso or it may

be because main Section makes it clear that only male persons can be respondents, it is not again specified in the proviso.

12. Clause 4 (1) of the Statement of Objects and Reasons of the Act reads as

follows:

“It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by

consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Event hose women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.

Thus, it would not enable a female relation of husband or a male partner to file

a complaint against wife or female partner.

13. As per Section 2 (a) of the Act, “aggrieved person” means any women who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”. As per Section 2 (f) “domestic relationship” as already referred is “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.

Thus, when Section 2 (a) and (f) of the Act are read together, a case of  domestic Violence can be filed by any woman in Domestic relationship, not only

by the wife. Wife is generally taken as the wife of the main respondent, who again is, mostly, a son in the family. The above referred Clause 4 (1) of the Statement of Objects and Reasons and Section 2(a) of the Act clarifies that even those women, who are sisters, widows, mothers and single women, living with the abuser are entitled to legal protection under the Act. Thus aggrieved sisters and mothers also can file a DVC and when the intention of the Act is to prevent any female relation of the husband or the male partner to file a DVC against the wife or the female partner, when a DVC is filed by a wife against the brother of her husband, when a sister or mother filed a DVC under the Act against several male members of the family, the question would be who would be wife or female partner that would be entitled to immunity. In such an event, all the wives against whose husbands the DVCs are filed are obviously entitled to immunity.

Here, a question may arise as to when DVC is filed only against a female  without including her husband like the third petitioner herein or against unmarried girls, what would be the position. My answer is, the intention of the Act is to altogether exclude women, when most women are excluded there is no question of the Act intending to include people like unmarried girls. Thus, it appears that the intention of the Act is to exclude women altogether.

14. In Ajay Kant v. Alka Sharma1, a single Judge of Madhya Pradesh High Court held that “the persons referred to in the proviso of Section 2 (q) of the Act

are the persons against whom a complaint can be filed under Sections 31(2) and 33 of the Act, that as there is no definition for the word “complaint” in the

Act and, since as per Section 2(d) Cr.P.C., complaint means any allegation made orally or in writing to a Magistrate with a view to his taking action under

Cr.P.C. that some person, whether known or unknown, has committed an offence, but does not include a police report, that a complaint can be filed for two offences mentioned in Sections 31(2) and 33 of the Act and the word “complaint” that appeared in proviso to Section 2(q) of the Act is only to give right to the aggrieved women to give complaint for contravention of Sections 31(2) and 33 of the Act, but not to include them as respondents in a DVC.

15. There appears to be some confusion in the above decision, as 31(1) of the

Act reads that “a breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable………”, which again shows that the penalty can be only against the respondent and the question is who is respondent. Section 33 of the Act contemplates action against protection officer, who fails to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause. Here again, the question of failing to discharge the duties of protection officer would arise only in relation to a respondent in the DVC, thereby leading to the same confusion as to who is respondent.

16. Here, it is pertinent to refer to Section 2 (o) of the Act, which says “protection order” means an order made in terms of Section 18′ and Section 18 of the Act provides that the order is contemplated only against the respondent.

17. In the above circumstances, the decision in Ajay Kant’s Case (Supra 1) may

not be of any substantial guidance.

18. In view of my above discussion, I hold that female members cannot be made respondents in the proceedings under the Act.

19. Coming to the question of the reliefs claimed by the first respondent before

the trial court under Sections 18 to 22 of the Act are concerned – Section 18 of the Act deals with grant of a protection order from domestic violence; from alienating any assets, operating bank lockers etc. which can be definitely granted against the present second petitioner – father-in-law. An order under

Section 19, an order for residence, can also be granted against the second petitioner. The reliefs under Sections 20 and 22 also can be granted against the

second petitioner, father-in-law.

20. Learned senior counsel appearing for the second petitioner relied on a decision of our High Court in Mohammed Maqeenuddin Ahmed v. State of A.P.2. This is a case where compensation for medical expenses was granted against father-in- law. Perhaps, the above decision is not applicable to the facts of the present case, in view of the nature of the claims made by the complainant herein. In the circumstances, I hold that the reliefs can be granted against the second petitioner.

21. In view of the above finding, as the question of maintainability of the proceedings against the female members is held in favour of petitioner Nos. 1

and 3 herein, holding that proceedings under the Act are not maintainable against the female members, the proceedings are liable to be quashed, as far as petitioner Nos.1 and 3 herein are concerned. Accordingly, the present petition is allowed to the extent of petitioner Nos.1 and 3, quashing the proceedings pending against them in D.V.C. No.1 of 2008 on the file of the learned Judicial Magistrate of First Class, Pulivendula, Kadapa District. The petition in so far as it relates to the second petitioner is hereby dismissed.

22. In the result, the Criminal Petition is ordered accordingly.

1 2008 CRLJ 264

2 2007 CrlLJ 3361