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females cannot be respondent dv - 3 judgements

Consultant

1

Summary: It is clear by the definition of respondent that for obtaining any relief under this Act an application can be filed or a proceeding can be initiated against only adult male person and on such application or under such proceeding, aforementioned protection order can be passed. Obviously those orders will also be passed only against the adult male person. As provided under Section 31 of the Act, non-compliance of a protection order or an interim protection order has been made punishable and as such it can be said that the complaint for this offence can only be filed against such adult male person/respondent who has not complied with the protection order.

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 Judgments:

HIGH COURT OF MADHYA PRADESH, JABALPUR

BENCH AT GWALIOR

(Miscellaneous Criminal Case No.1266/07)

 

Ajay Kant and Others

Vs

Smt. Alka Sharma

PRESENT

HON. SHRI JUSTICE B.M. GUPTA

—————————————————————————-

Petitioners by Shri R.K. Sharma, Advocate.

Respondent by Shri Gaurav Samadiya, Advocate.

—————————————————————————-

 

ORDER:19/06/07

The instant petition is for impugning the order dt.18th January,2007 passed by Judicial Magistrate First Class, Gwalior in Criminal Case No.848/07, whereby the learned Magistrate has issued notice to the petitioners on an application filed by the respondent under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”).

2. Brief facts of the case are that respondent Smt.Alka Sharma has filed one application under Section 12 of the Act against the petitioners. On which the learned Magistrate, vide order dated 18th January, 2007, has issued notices to the petitioners. It has been averred in the application that the respondent has married with petitioner No.1 on 16th of May, 2005 at Gwalior. For a period of 4-6 months she became pregnant and thereafter the petitioners started harassing the respondent demanding Rs.2 lacs and one Maruti car from her parents. As the father of the respondent is a pensioner, he could not fulfill the demand. He reported the matter to Mahila Police Station at Padav, Gwalior on 2nd November, 2005 but the report was not lodged and no action was taken. On 3rd February, 2006 the respondent delivered a male child in the hospital. Thereafter, on 17th February, 2006 the petitioners separated the child from the respondent, kept him along with them and deserted the respondent. Consequently, since 20st February, 2006 she is living in her matrimonial home without her son. Petitioners are trying to declare the respondent as mentally sick and to remarry the petitioner No.1. Admittedly, one application for divorce has been filed by the petitioner No.1 against the respondent and the respondent has filed an application under Section 125 of Cr.P.C. claiming maintenance from him and also she has filed another application under Section 9 of the Hindu Marriage Act for seeking a decree of restitution of conjugal rights against the petitioner No.1. These applications are pending in the Family Court, Gwalior. On these grounds, the respondent has prayed in the application for taking legal action against the petitioners and also to punish them.

3. The aforementioned act of filing of the application by the respondent and issuance of notice by the Court against the petitioners has been assailed by the petitioners on various grounds. The grounds and decisions thereon are as under :-

(A)      That, the respondent was mentally sick before the marriage, which was not disclosed by the respondent. On this ground, application for divorce has been filed by petitioner No.1 on 15.5.06 in which proceedings for reconciliation have been failed on 21.9.06. Only for creating pressure against the petitioner No.1, the present application has been filed on false grounds by the respondent on 23.11.06.

(B)      That, in the application under Section 9 of the Hindu Marriage Act filed by the respondent these facts have not been mentioned by her that on demand of Rs. 2 lacs and one Maruti car, she has been harassed by the petitioners and as such the application being on false grounds, proceedings based on it ought to quashed. The grounds in the application are false or not, this fact cannot be decided by this Court during this summery proceeding under Section 482 of Cr.P.C. The truthfulness or otherwise of the facts mentioned in the application can be decided by the learned Magistrate after due inquiry under the procedure as prescribed by the Act. Hence, the proceeding based on the application cannot be quashed by this Court at this stage on these two grounds.

(C)     That, as provided by Section 2(q) of the Act, such application under Section 12 of the Act cannot be filed against the petitioners No.3 and 4 who are the ladies. In Section 2(q) of the Act the term respondent has been defined as under :-

(q) 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 this 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.

Thus, it is provided by this definition that an application can be filed by an aggrieved person including the respondent claiming relief under the Act only against the adult male person. However, as per the proviso appended to this provision, a 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. For understanding these two parts, i.e. the main part of the Section and the proviso, it is necessary to understand the scheme of the Act. The first three paragraphs of the statement of object and reasons under which the bill No.116 of 2005 for passing the act was placed before the parliament, are as under (published in the Gazette of India Extraordinary Part II Section 2 page 22 dated 22nd August, 2005):-

1.“Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No.XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.

2.The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under section 498A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.

3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.(Emphasis supplied)

Keeping these objects and reasons in mind to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto, the bill was presented before the parliament which has become the Act after passing the same by the parliament. Thus, it cannot be lost sight of that the Act has been passed keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. Thus, basically the act has been passed to provide the civil remedy against domestic violence to the women. However, as provided by Sections 27 and 28 of the Act, a Judicial Magistrate of the  first class or the Metropolitan Magistrate has been empowered to grant a protection order and other orders and to try the offence under the Act. Vide Section 28 of the Act, it is mentioned that save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and the offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Vide sub-sections 3 and 4 of Section 19, it is also provided that a Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence and such order shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 and shall be dealt with accordingly. Chapter VIII of Cr.P.C. dealt with security for keeping peace and for good behavior which runs from Section 106 to 124. In these Sections, it is provided that for keeping the peace and maintaining good behavior, a person can be directed by a Magistrate to execute a bond with or without sureties and in case of non-compliance of such order, that person can be detained into custody. Section 31 of the Act provides penalty for breach of protection order passed by the Magistrate, which is punishable as an offence. A protection order can only be passed under Section 18 of the Act. To understand better the provisions of Sections 18 and 31 are required to be perused, which are as under: -

Section18.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 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.

Section 31. (1)      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 with imprisonment of either descriptttion for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

(2)      The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.

(3)     While framing charges under sub-section (1), the Magistrate may also frame charges under section 498-A of the Indian Penal Code or any other provision of that Code or the Dowry Prohibition Act, 1961, as the case may be, if the facts disclose the commission of an offence under those provisions.

The offence under Section 31 of the Act will be cognizable and non-bailable as provided under Section 32 of the Act. Section 8 of the Act provides for appointment of the Protection Officer and Section 33 of the Act provides for penalty for not discharging duty by the Protection Officer. Despite, as mentioned in the objects and reasons that for providing a civil remedy, this act has been enacted, the provisions of Sections 19, 27, 28, 31 to 33 clearly mention that some of the proceedings under the Act are of criminal nature. Under Section 19 to 22 of the Act an order to provide residential facilities, monetary reliefs, custody order for a child and compensation can be ordered by the Magistrate under the Act. Except a part of Section 19 with regard to direction of execution of a bond and dealing the same as provided under Chapter VIII of the Cr.P.C., all the reliefs under Sections 18 to 22 appear to be of civil nature. Thus, some of the proceedings under this Act can be said to be of civil nature and some of the proceedings can be said to be of criminal nature.

Section 12 of the Act provides that an application (not a complaint) for seeking one or more reliefs under the Act can be filed. On perusal of Sections 18 to 22 of the act, it appears that the reliefs under these sections as mentioned herein above can be passed on the application under Section 12 of the Act. The word complaint as appeared in the definition of respondent under Section 2(q) of the Act has not been defined anywhere in the Act. Although it is not provided that the definition of complaint can be considered the same as provided under the Cr.P.C. but at the same time it is also not prohibited. In view of this, the definition of complaint can appropriately be seen in Cr.P.C. which goes as under :-

2(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

It is clear by this definition that a complaint as provided in Cr.P.C. can only be for an offence. As mentioned hereinabove only two offences have been mentioned in this Act and those are (1) under Section 31 and (2) under Section 33. It appears that this word complaint appeared in the definition of respondent has been used for initiating proceedings for these two offences and an aggrieved wife or female living in a relationship in the nature of a marriage has been given a right to file a complaint against a relative of the husband or the male partner. This word complaint cannot be considered beyond the scope of the main provision of this Section which has been defined in first part of Section 2(q) that is for any relief under this Act. As provided in Section 31 of the Act, a complaint can be filed against a person who has not complied with a protection order or interim protection order.

Thus, it is clear by the definition of respondent that for obtaining any relief under this Act an application can be filed or a proceeding can be initiated against only adult male person and on such application or under such proceeding, aforementioned protection order can be passed. Obviously those orders will also be passed only against the adult male person. As provided under Section 31 of the Act, non-compliance of a protection order or an interim protection order has been made punishable and as such it can be said that the complaint for this offence can only be filed against such adult male person/respondent who has not complied with the protection order. Hence, it is clear that the application under Section 12 of the Act which has been filed by the respondent against petitioners No.3 and 4, who are not adult male persons, is not maintainable.

 

(D)The proceeding has also been assailed on the ground that before issuance of the notice, learned Magistrate has recorded the statement of the respondent which is not required. It is true that recording of statements as provided under Sections 200 and 202 of Cr.P.C. is not required before issuance of the notice because application under Section 12 of the Act is an application and not a complaint. However, this action of the learned Magistrate cannot be a ground for quashing the proceedings because as provided by sub-section 2 of Section 28 of the Act, the Court/learned Magistrate is not prevented from laying down its own procedure for disposal of an application under Section 12 of the Act

(E) The proceeding has also been assailed on the ground that no report from the Protection Officer under Section 12 of the Act has been called.

Sub-section 1 of Section 12 of the Act goes as under:-

12.(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider; On perusal of the aforementioned proviso appended to the provision, it appears that before passing any order on the application, it is obligatory on a Magistrate to take into consideration any report received by him from the Protection Officer or the service provider. Neither it is obligatory for a Magistrate to call such report nor it is necessary that before issuance of notice to the petitioners it was obligatory for a Magistrate to consider the report. The words before passing any order provide that any final order on the application and not merely issuance of notice to the respondent/the petitioners herein. The words any report also mention that a report, if any, received by a Magistrate shall be considered. Thus, at this stage if the report has not been called or has not been considered, it cannot be a ground for quashing the proceeding.

(F) The last ground raised by the petitioners is that in the application the relief of penalizing the petitioners has been prayed for, which is beyond the provisions of the Act. On perusal of the last paragraph of the application, it is prayed that after registration of the case, petitioners be legally penalized. It is true that at this stage in the application it was not required for the respondent to claim such relief, however, if it has been claimed, this cannot be a ground on which the proceedings can be quashed. At the most, such reliefs if unnecessary, can be negated.

4. Although it is not argued yet it appears appropriate to mention that any order passed by the learned Magistrate under the Act is appealable as provided by Section 29 of the Act. Usually when an opportunity to assail the impugned order in revision or appeal is available, taking recourse under Section 482 of Cr.P.C. is not required. However, it is observed by the Apex Court in para 26 in the case of Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, (1998) 5 Supreme Court Cases 749 that some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to, for correcting some grave errors that might be committed by the subordinate courts. Considering the steps taken by the learned Magistrate against the petitioners No.3 and 4, this petition has been considered herein.

5. In view of all, as discussed hereinabove, the petition deserves to be partly allowed. Consequently, it is partly allowed. The proceeding against petitioners No.3 and 4 is quashed. It is directed that the learned Magistrate will deal the application as provided under the various provisions of the Act and as observed hereinabove.

Judge

 

2

 

A

Summary: The term respondent  has been clearly defined in Section 2(q) of the Act which un-doubtedly refers only to an adult male and does not include any woman. Therefore in the considered view of this Court an application under Section 12 of the Act is not maintainable as against a woman.

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:

Chennai High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 01.08.2008

CORAM

THE HONOURABLE MR.JUSTICE K.MOHAN RAM

Criminal Original Petition No.9277 of 2008

and M.P.Nos.1 and 3 of 2008

Uma Narayanan … Petitioner

-Vs.-

Mrs. Priya Krishna Prasad

W/o. Mr. Krishna Prasad

D/o. Mr. K.L.Narayanan … Respondent

Prayer:- Criminal Original Petition filed under Section 482 of the Criminal Procedure Code for a direction to call for the records relating to the order in Crl.M.P.No.275 of 2008 on the file of the learned XIII Metropolitan Magistrate, Egmore, Chennai, and quash the same.

For Petitioner : Mr. K.M.Vijayan, senior counsel, for   M/s. La Law, counsel for the petitioner

For Respondent : Mr. A.Vijaya Kumar

- – -

O R D E R

The respondent herein filed an application purported to be under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) claiming the following reliefs:- (i) Protection order under

Section 18;

(ii) Residence order under Section 19;

(iii) Maintenance order under Section 20.

The said petition was taken on file as Crl.M.P.No.275 of 2008 and in that petition the respondents husband-U.N.Krishna Prasad is the first respondent and her mother-in-law-Mrs.Uma Narayanan is the second respondent; the respondents husband is admittedly residing in the United States of America and in the application itself his address is shown as follows:-

S/o. Bristol Meyers Squib

311, Pennington Rochy

Hill Road, Pennington

NJ-08534, USA

(Office Address)

Pending the above application, the respondent sought for interim orders. The

Learned XIII Metropolitan Magistrate passed the order dated 17.04.2008 in

Crl.M.P.No.275 of 2008 on the following terms namely:-

Hence, this Court in the interest of justice considers that an interim order is necessary for the just decision of the case and this Court considers that the petitioner should be permitted to reside in the shared household and the officer in charge of the nearest Police Station shall assist in implementing the interim orders of this Court. This interim order shall remain in force until the disposal of the main petition. Being aggrieved by that order the petitioner who is the second

respondent in Crl.M.P.No.275 of 2008 has filed the above Criminal Original

Petition to quash the order passed in Crl.M.P.No.275 of 2008.

2. Since the ground on which the above order is sought to be quashed lies in a

narrow campus and for deciding that issue the allegations of domestic violence

and other factual background of the case are not necessary the same are not set-out in detail herein.

3. Though several grounds have been raised in the quash petition Mr.K.M.Vijayan learned senior counsel appearing for the petitioner confined his submissions relating to the following two contentions:-

(i) As provided by Section 2 (q) of the Act, an application under Section 12 of the Act cannot be filed against the petitioner, who is a woman and mother-in-law of the respondent and as such the interim order passed as against the petitioner is liable to be set-aside.

(ii) The application filed by the respondent herein itself is not in conformity with Form  II prescribed under the Rules framed under the Act but the application has been filed in Form I, which is prescribed under Sections 9 (1) (b) and 37 (2) (C) of the Act for filing the domestic incident report by the Protection Officer / Service Provider. Learned senior counsel for the petitioner took this Court through Section 2 (q) of the Act which defines the term respondent.

Section 2 (q) of the Act reads as follows:-

2. Definitions. -

(q) 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 this 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;

Referring to the said definition of the term respondent the learned senior counsel for the petitioner submitted that it will mean only an adult male person and not a woman and as such the petition filed by the respondent as against the

petitioner who is a woman is not maintainable and on that ground itself the interim protection order passed against the petitioner is liable to be quashed.

Learned senior counsel for the petitioner also took this Court through Forms I

and II prescribed under the Rules framed under the Act. A perusal of the said

Forms show that an application under Section 12 of the Act has to be filed in Form II and not in Form I; Form I is prescribed for filing the Domestic Violence

Report by the Protection Officer / Service Provider; admittedly the respondent

has filed the application in Form I and not in Form II, therefore according to the learned senior counsel for the petitioner the interim order passed by the learned Magistrate is liable to be set-aside. In support of the above contentions the learned senior counsel for the petitioner relied upon a decision of the Madhya Pradesh High Court in the case of Ajay Kant and Ors. v. Smt. Alka Sharma reported in 2008 (2) Crimes 235 (M.P.). In the said decision a similar issue came up for consideration and after considering the scheme of the Act and the various provisions of the Act the Madhya Pradesh High Court has held as under:- .

It is clear by this definition that a complaint as provided in Cr.P.C. Can only be for an offence. As mentioned hereinabove only two offences have been mentioned in this Act and those are (1) under Section 31 and (2) under Section

33. It appears that this word complaint appeared in this definition of respondent has been used for initiating proceedings for these two offences and an aggrieved wife or female living in a relationship in the nature of a marriage has been given aright to file a complaint against a relative of the husband or the male partner. This word complaint cannot be considered beyond the scope of the main provision of this Section which has been defined in first part of Section 2(q) that is for any relief under this Act. As provided in Section 31 of the Act, a complaint can be filed against a person who has not complied with a protection order or interim protection order. Thus, it is clear by the definition of respondent that for obtaining any relief under this Act an application can be filed or a proceeding can be initiated against only adult male person and on such application or under such proceeding, aforementioned protection order can be passed. Obviously those orders will also be passed only against the adult male person. As provided under Section 31 of the Act, non- compliance of a protection order or an interim protection order has been made punishable and as such it can be said that the complaint for this offence can only be filed against such adult male person / respondent who has not complied with the protection order. Hence, it is clear that the application under Section 12 of the Act which has been filed by the respondent against petitioners No.3 and 4, who are not adult male persons, is not maintainable.

4. On the aforesaid submissions Mr.A.Vijaya Kumar learned counsel for the respondent was heard.

5. Though at the beginning of the submissions the learned counsel for the respondent tried to justify the filing of the application under Section 12 of  the Act in Form I later when this Court drew the attention of the learned counsel to Rule 6 and Forms I and II, he fairly submitted that the application should have been filed in Form II, but by inadvertence the same has been filed in Form I. However, the learned counsel submitted that this technical objection may not be taken seriously and the interim protection order passed in favour of the respondent need not be set-aside on that ground.  He further submitted that the term respondent as defined in Section 2(q) of the  Act cannot be construed to mean only an adult male but it will also include a woman. Learned counsel based reliance on the proviso to Section 19 (1) of the Act which reads as under:- 19. Residence Orders. – (1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order – (a) …

(b) directing the respondent to remove himself from the shared household;

Provided that no order under clause (b) shall be passed against any person who is a woman and submitted that an order under Clause (b) of Section 19 above cannot be passed against a woman and hence according to the learned counsel other orders can be passed against a woman and therefore the restricted meaning sought to be given to the term respondent by the learned senior counsel for the petitioner cannot be accepted. He further submitted that in case if this Court holds that the application filed in Form I of the Act is not maintainable and the application under Section 12 ought to be filed in Form II, liberty may be given to the respondent to file a fresh application in Form II and seek all remedies available to her under the Act.

6. I have carefully considered the aforesaid submissions made by the learned

counsel on either side. The term respondent  has been clearly defined in

Section 2(q) of the Act which un-doubtedly refers only to an adult male and does not include any woman. The decision of the Madhya Pradesh High Court reported in 2008 (2) Crimes 235 (M.P.) (referred to supra) after an elaborate consideration of all the relevant provisions of the Act and the scheme of the Act has lucidly laid down that in view of the definition of the term respondent in Section 2(q) of the Act for obtaining any relief under the Act an application can be filed or a proceeding can be initiated against only adult male person and only as against such person protection orders can be passed. I am in respectful agreement with the above said decision of the Madhya Pradesh High Court.

7. The submission of the learned counsel for the respondent based on the proviso to Section 19 (1) of the Act is that an order under Clause (b) of Section 19 of the Act alone cannot be passed against a woman but other orders can be passed against a woman. For appreciating the said contention of the learned counsel, it will be useful to refer to the definition of shared household in Section 2 (s) of the Act, which reads as follows:-

Definitions.-

(s) shared household  means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith 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. A reading of the aforesaid definition shows that shared household includes such a household which may belong to the joint family of which the respondent is a member, whether the respondent or the aggrieved person has any right, title or interest in the shared household. Under Section 19 (1) (b) of the Act, the learned Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household. While enumerating the directions that could be passed under Section 19 of the Act and with particular reference to the direction that could be issued under Section 19 (1) (b) of the Act the said proviso has been incorporated just to protect the interest of a woman member of the family who is living in such a shared household. Such a provision in the proviso has been incorporated only for the aforesaid limited purpose. In a shared household which may belong to a joint family women members may also be living and in the guise of passing an order under Section 19(1) (b) of the Act, such women members of the family cannot be directed to be removed from the shared household but such a direction can be issued only against male members. From this exemption provided under the proviso it cannot be said that the term respondent as defined under Section 2(q) of the Act will include a woman also. For the aforesaid reasons, the said contention of the learned counsel cannot be countenanced. Therefore in the considered view of this Court an application under Section 12 of the Act is not maintainable as against a woman. On that ground itself the impugned order is liable to be set-aside.

8. Under Rule 6 an application under Section 12 of the Act has to be filed only

in Form II but admittedly the application has been filed by the respondent in Form I instead of Form II the same ought not to have been entertained by the learned Magistrate. Form I as pointed out above is prescribed for the Protection

Officer / Service Provider to file the domestic incident report but the respondent by in-advertance and mistake has filed the application in Form I instead of Form II. Further in Form I filed by the respondent all the details and averments for establishing the domestic violence and regarding the availability of the shared household have not been set-out in detail. Had the respondent filed an application prescribed under Form II all the aforesaid details could have been set-out in detail which would have enabled the Court below to adjudicate the issue in a judicious manner. Though in the above Criminal Original Petition interim orders passed in Crl.M.P.No.275 of 2005 alone has been challenged if the same alone is set-aside and the main petition in Crl.M.P.No.275 K.MOHAN RAM, J., is allowed to be proceeded with and ultimately if a final order is passed the same will be challenged on the very same grounds and in that process valuable judicial time will be lost and the respondent also will be put to hardship as she may not be in a position to get the relief ultimately which she may be entitled to under the Act. Therefore to avoid miscarriage of justice and to secure the ends of justice all further proceedings in Crl.M.P.No.275 of 2008 itself is quashed giving liberty to the respondent to file an application under Section 12 in Form II prescribed under the Rules framed under the Act. If such an application is filed the same shall be entertained and dealt with on merits and in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the claim of the respondent herein.

9. The Criminal Original Petition is ordered on the above terms. Consequently

the connected MPs are closed.

01.08.2008

srk

To

XIII Metropolitan Magistrate, Egmore,

Chennai

3

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 other articles.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

 
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Lawyer

Uma Narayan's case is overruled in R. Nivendran Vs. Nivashini Mohan on 17.2.2010 wherein case of Ajay Kant was not approved. There are judgments of other HC also which run counter to the above judgments. I believe that Andhra Pradesh Judgment is also overruled in the case of Afzalunnisa Begum Vs. State of AP in 2009. Except MP HC most of the HC have taken a different view. Please be careful in relying upon the 3 judgments given by Avnish Kaur.


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Advocate

Dear Avinash, there is conflicts of opinion on the statements of law amongs the various High Courts on this issues and there is also another Madras High Court decision dated 28-4-2009 based on Section 2 (q) of the Act by Justice V.Periya Karuppiah. However, I am of the view that the provisio as provided under Sectrion 2 (q) is crystal clear " provided that an aggrieved wife or female living in relationship in the nature of a marriage may also file a cxomplaint againsta relative of the husband or the male partner" that provisio classified  two distinct catagories of women and one is wife and the other is we so called as live in relationship" and I agree with Justice V.Periya Karuppiah. Otherwise that provisio of Section 2 (q) will be otiose.

 
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