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Supreme Court: Wife cannot implicate one and all in Domestic Violence case…Quashed against 9 respondents

February 14, 2013 2 comments
Supreme Court of India
Ashish Dixit & Ors. vs State Of U.P. & Anr. on 7 January, 2013
Author: …………………..J.
Bench: H.L. Dattu, Chandramauli Kr. Prasad

, , , ,

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 43 OF 2013

(SPECIAL LEAVE PETITION (CRL.)NO.8522 OF 2010) ASHISH DIXIT & ORS. APPELLANTS VERSUS

STATE OF U.P. & ANR. RESPONDENTS O R D E R

 

1. Leave granted.

 

2. This appeal is directed against the judgment and order dated 05.07.2010 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No.8358 of 2008. By the impugned judgment and order, the High Court has refused to quash the proceedings initiated against the petitioners by the respondent no.2-wife, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for brevity “the Act, 2005”).

3. In the petition filed by respondent no.2, apart from arraying her husband and her parents-in-law as parties to the proceedings, has included all and sundry, as

: 2 :

respondents. To say the least, she has even alleged certain actions said to have been done by the tenant whose name is not even known to her.

4. In a matter of this nature, we are of the opinion that the High Court at least should have directed that the petition filed by respondent no.2 be confined to her husband as also her parents-in-law and should not have allowed the impleadment of respondent nos.4 to 12.

5. In view of the above, while allowing this appeal in part, we quash the proceedings as against appellant nos. 4 to 12 in Case No.240 of 2007. We direct the learned Chief Judicial Magistrate, Agra to proceed with the aforesaid case; only against the husband i.e. Shri Ashish Dixit, S/o. Padmakar Dutt Sharma, her father in law, Shri Padmakar Dutt Sharma, S/o.late Pt.Diwakar Dutt Sharma and Smt.Girja Dixit, W/o.Shri Padmakar Dutt Sharma, her mother in law.

: 3 :

6. We are of the opinion that the direction issued by the High Court, inter-alia, directing the appellants herein to appear before the Trial Court and seek bail is wholly unnecessary. …………………..J.

(H.L. DATTU)

…………………..J.

(CHANDRAMAULI KR. PRASAD)

NEW DELHI;

JANUARY 07, 2013.

Madras HC: DV Act : Unless the complainant, substantiates that the person concerned has got domestic relationship or that he is a family member, such person cannot be mechanically impleaded as one of the respondents in the application….Proceedings Quashed

Madras High Court
K. Viswanathan vs Sivamalar on 31 August, 2009

Dated:- 31.08.2009

Coram:-

The Hon’ble Mr. Justice R.REGUPATHI

Crl. O.P. No. 91 of 2009 and

M.P. No. 1 of 2009

K. Viswanathan … Petitioner

vs.

Sivamalar … Respondent

Prayer: Petition filed under Section 482 of the Code of Criminal Procedure for the relief as stated therein.

For Petitioner : Mr.V. Gopinath,

Senior Counsel

For Respondent : Mr. P. Duraisamy

O R D E R

The 5th respondent in the C.M.P filed before the trial court, admittedly driver of the 1st and 2nd respondents is the petitioner herein and he seeks for a direction to call for the records and quash the proceedings in C.M.P. No. 8207 of 2008 filed under Sections 12, 17, 18 and 19 of the Protection of Women from Domestic Violence Act 2005 before the Judicial Magistrate No. 1, Coimbatore, who took the same on file and ordered issuance of summons. The 5th respondent in the C.M.P. No. 8207 of 2008,

3. Learned Senior Counsel for the petitioner submits that admittedly, the petitioner is neither a family member nor having any domestic relationship with the family of respondents 1 and 2 and under such circumstance, he is erroneously included as one of the respondents in the application. By referring to Para 13a of the application, wherein the applicant prays for a declaration to the effect that she is entitled to reside in the shared household and the prayer at Para 13b for a direction to respondents 1 to 5 to hand over gold jewellery and sridhana property in their custody, learned Senior counsel submits that a person can be included as a respondent in an application of this kind only in the event of the aggrieved person establishing the domestic relationship with such person sought to be taken as respondent as a family member living together in the joint family and contended that the petitioner is not a person coming under the purview of "respondent" and he is not in possession and control over the sridhana property; therefore it is a fit case to quash proceedings against him.

4. Per contra, learned counsel for the respondent submits that specific allegations have been made in Para No. 6 of the application to the effect that the petitioner was always acting as if he was also a family member in the household and playing a dominant role by taking important decisions, but curiously respondents 1 to 4 are under the clutches of the petitioner for unknown reasons. It is also alleged that the petitioner even had the audacity to abuse the husband of the respondent herein in front of his parents.

5. Heard the submissions made on either side and perused the materials available on record.

6. The words "respondent" and "domestic relationship" have been defined in 2 (f) (q) of the Protection of Women from Domestic Violence Act, 2005. 2(f): ""Domestic relationship" means 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" 2(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."

7. Having regard to the operation of the Act as against the person who is sought to be taken as "respondent" in the proceedings initiated thereunder, it must be pointed out that unless the aggrieved person, namely, respondent herein, substantiates that the person concerned has got domestic relationship or that he is a family member, such person cannot be mechanically impleaded as one of the respondents in the application. If the respondent has any grievance against the petitioner, she is always at liberty to initiate proceedings against him before the appropriate forum for any offence committed by him against her, if she is so advised.

8. Considering the facts and circumstance, I do not find any justification on the part of the trial court in including the petitioner as one of the respondents in the application; therefore, the proceeding pending in CMP No. 8207 of 2008 on the file of the learned Judicial Magistrate No. I, Coimbatore is directed to be quashed in so far as the petitioner / 5th respondent is concerned.

9. Accordingly, the Criminal Original Petition is ordered and consequently, miscellaneous petition is closed. Ar

To

1. Judicial Magistrate No. I,

Coimbatore

Categories: DV Judgements

Gujrat HC: DV Act :Family members (respondent 2-6) may not be made to suffer for matrimonial dispute between husband and wife. Relief Granted to them

Gujarat High Court
Mayankkumar vs State on 28 September, 2011
Author: Rajesh H.Shukla,

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Print

 

 

 

 

CR.MA/2422/2011 2/ 2 ORDER

 

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

CRIMINAL

MISC.APPLICATION No. 2422 of 2011

=========================================

MAYANKKUMAR

SURESHCHANDRA SHELAT & 5 – Applicant(s)

Versus

 

STATE

OF GUJARAT & 1 – Respondent(s)

========================================= Appearance

:

MR MAYUR RAJGURU for Applicant(s) : 1 – 6. MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR DAKSHESH MEHTA for Respondent(s) : 2,

=========================================

CORAM

:

 

HONOURABLE

MR.JUSTICE RAJESH H.SHUKLA

 

 

 

Date

: 28/09/2011

 

ORAL

ORDER

 

 

 

The

present application has been filed by the petitioners, who are the husband and his family members (petitioner No. 1-husband and petitioner Nos. 2-6 – family members) under sec. 482 of the Code of Criminal Procedure for quashing Complaint No. 3026/2010 under the Domestic Violence Act, 2005 pending before the Court of Metropolitan Magistrate, Court No. 1, Ahmedabad, on the grounds set out in the application.

 

 

 

2. Heard

learned advocate Mr. M. Rajguru for the petitioners and learned advocate Mr. Dakshesh Mehta for respondent No. 2.

 

 

3. In

view of rival submissions and considering the details which have been referred giving rise to various litigations and also the facts stated, it requires detailed examination and therefore the matter requires consideration. Submissions have been made by learned advocate Mr. Rajguru that it is an over implication where the complaint has been filed as and by way of abuse of the process of court.

 

 

 

4. On

the other hand, learned advocate Mr. Mehta has pointedly referred to the orders and various details stating that respondent No. 2-wife has been deprived of even legitimate right of maintenance and the husband has not cared to even remain present in the proceedings and has successfully avoided remaining present even in the execution proceedings. He has also stated that the properties have been disposed of denying the right to respondent No.2-wife.

 

 

5. However,

as could be seen, petitioner No.1-husband may be responsible for the quarrel between him and respondent No. 2 wife regarding matrimonial ties, but as it appears, prima facie, that for his defaults the family members may not be made to suffer by such further offshoots and the proceedings. In the circumstances, without any further elaboration, the following order is passed:

 

 

Rule.

Expedited. Ad-interim relief in terms of para 3(b) qua petitioner Nos. 2 to 6 (family members). It is also directed that petitioner No. 1-husband shall be obliged to deposit the amount of maintenance before he could be heard in the matter.

 

 

It

is clarified that it will be open for respondent No. 2 complainant-wife to proceed in accordance with law for recovery of the amount of outstanding maintenance from petitioner No. 1 husband.

 

 

D.S.

permitted.

 

 

 

 

 

(Rajesh

H. Shukla, J.)

(hn)

 

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Categories: DV Judgements

AP HC: Respondents 2 and 3 and the complainant did not live together in a shared house…DV act proceedings quashed

November 3, 2012 1 comment
Andhra High Court
State Of A.P., Rep. By P.P. &Amp; … vs Counsel For The Petitioner: Sri …

CRIMINAL PETITION No.4140 of 2010

2-8-2012

Nagamuthula Kondaiah

State of A.P., rep. by P.P. & another.

Counsel for the Petitioner: Sri P.SRIDHAR REDDY

Counsel for the Respondent No.1: The Public Prosecutor

< Gist:

> Head Note:

? Cases referred:

ORDER:

1. This petition is filed under Section 482 Cr.P.C. seeking to quash proceedings in D.V.C.No.1 of 2010 (D.V.C.) on the file of the Court of II Additional Judicial Magistrate of First Class, Kothagudem.

2. The petitioner is the respondent and the second respondent is the complainant in the DVC case. The respondent filed the complaint under Sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) against the petitioner herein with a plea to restrain him from dispossessing her from shared household and also to pay compensation.

3. For the sake of convenience, I refer the parties as arrayed in the DVC. It is pleaded and alleged in the complaint as follows.

4. (a) The complainant is the legally wedded wife of Chembeti Chinna Koteshwar Rao, whereas their marriage took place as per Hindu Rites and Customs on 15.11.2008. In fact, her husband was first married to one Uma Maheshwari, daughter of the respondent on 11.8.2000 and a girl by name Keerthi who is aged 7 years was born to them. On 7.3.2008 Uma Maheshwari died. The respondent used to reside in their house as family member. In fact he was looking after the affairs of the house. Her husband reposed implicit confidence on the respondent in all respects. Factually, the husband of the petitioner married her as she was a relative of him and also for taking necessary care of the minor. According to the complainant, further she and her husband have been taking care of the minor. The respondent got no interest in the welfare of the minor. On the other hand, he made several efforts to grab the amounts kept in the name of the minor girl.

(b) She alleges that apart from that, the respondent has also been making efforts to subject her to domestic violence one way or the other for the purpose of ruining the matrimonial house. The petitioner is always under threat and danger in the hands of the respondent. While such circumstances existed, on 30.6.2009 the respondent along with some anti-social elements entered the house and threatened her with dire consequences and expressed his intention to kidnap the minor. Apart from that on 1.7.2009, the respondent attempted to kidnap the minor and in that context, criminally intimidated her again threatening her with dire consequences. Later, she informed about the incident to her husband, following which they gave a report in Palvancha Police Station, which was registered in Cr.No.170 of 2009 under Sections 363, 511, 506 read with Section 34 IPC and then the respondent was arrested by the police. She claims that because of the conduct of the respondent, her health is endangered. It is also stated that the respondent left the sharing roof of the petitioner’s matrimonial house, but he is continuously making an onslaught to wreck vengeance against the family.

5. It is to be examined whether there are grounds to quash the proceedings in the DVC as prayed.

6. Here Sections 2(a), 2(f), 2(g), 2(q), 2(s) and 3 coupled with Sections 18 to 22 of the Act’ are important.

(a) By virtue of Section 2(a) of the Act, "aggrieved person" means any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act to domestic violence by the respondent. So existence of domestic relationship and living in shared house as defined in Sections 2(f) and 2(s) of the Act are the conditions precedent for the aggrieved party to initiate proceedings under the Act. (b) By virtue of Section 2(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. The meaning of the proviso can be better understood while analyzing what is meant by domestic relationship.

(c) By virtue of Section 2(f) of the Act, "Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shred 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. Thereby to constitute domestic relationship in between two parties, they should have lived in a shared house and they are related by consanguinity marriage or through a relationship in the nature of marriage, adoption or as members of a joint family. The person aggrieved, covered by the proviso under Section 2(q) falls within the ambit of the definition of domestic relationship being a relative of the respondent by marriage.

(d) By virtue of Section 2(g) "Domestic violence" has the same meaning as assigned to it in Section 3. Section 3 of the Act contemplates "Definition of domestic violence". For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case if-

(a) harms or injures or endangers the health, safety, life, limb or well- being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental to the aggrieved person."

(e) By virtue of Section 2(s) of the Act "Shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with 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. Significantly, it is emphasized that to constitute a shared household, it must be a household where the aggrieved person lives or lived in a domestic relationship subject to the other formalities incorporated therein.

7. Thereby the main requirements here are as to whether the complainant and the respondent lived together in a shared house and whether the complainant is related to the respondent by consanguinity, marriage or through a relationship in the nature of marriage, adoption or being a member of a joint family who lived together as envisaged in Section 2(f) with regards to domestic violence. Pertinently, the daughter of the respondent i.e the first wife of the husband of the complainant died, thereby the first marriage of the husband of the complainant does not exist now. Thus, the complainant is altogether a different person, who got no relationship with the respondent by virtue of any marriage otherwise or by consanguinity or by being a member of a joint family within the meaning of section 2(f). What is envisaged under the proviso in Section 2(q), which section defines what is meant by ‘respondent’ that an aggrieved wife or female living in a relationship in the nature of a marriage may file a complaint against a relative of the husband or male person is well within the ambit of the definition of domestic relationship only. In other words, when domestic relationship as defined in Section 2(q) is one of the conditions to file an application under the Act, a relative of the husband or male person must be one who comes within the ambit of that definition which excludes a relative like the respondent in this case.

8. With regards to the question of living in a shared house as defined in Section 2(s), the respondent must have a right to live in the house or allowed to live in the house under an obligation having domestic relationship as contemplated in Section 2(f) with the other inmates of the house which is one of the conditions to initiate the proceedings under the Act. Importantly in the definition of shared house also it is emphasized that the person aggrieved must have lived in a shared house having got domestic relationship which in fact does not include a person like the respondent herein subject to the formalities mentioned. That apart, neither the complainant nor her husband got any obligation to allow him to reside in the house. It is not a case of husband keeping the respondent in the house aiding the respondent to harass the complainant, rather it is admittedly a case of both the complainant and her husband living together harmoniously and both of them facing the alleged conduct of the respondent. If he is residing in the house unwantedly, they can take measures to send him out. Thus, as the respondent cannot be brought within the purview of the provisions enumerated that debars the complainant to file the complaint.

9. In addition to the discussion made above, the complaint is based only on surmises and conjectures. There are no specific allegations, in other words, there are only bald allegations against the respondent. It clearly appear that false allegations were made against the respondent for some purpose. It is something unbelievable in view of the circumstances of the case that the respondent preferred to stay in the house of the complainant and her husband after the death of his daughter, who was the first wife of the husband of the complainant. It is claimed by the respondent that the husband of the complainant has filed D.W.O.P.No.777 of 2009 on the file of the Court of Principal District Judge, Khammam for appointing him as the Guardian of the minor and he has also filed O.S.No.169 of 2009 on the file of the Court of Principal Senior Civil Judge, Kothagudem for damages against him on the ground that he made derogatory allegations against him in another legal proceedings and he also gave report to the Station House Officer, Palvancha Police Station and got him arrested, which establish that the complainant and her husband are bent upon to harass him to force him to accept their terms.

10. Hence good grounds are made out to quash the proceedings in the DVC. No body should be tried or enquired into unnecessarily in any proceeding. If it is done, it is nothing but abusing the process of law and harassing him or her.

11. In the result, the criminal petition is allowed and the impugned proceedings in the D.V.C.No.1 of 2010 are quashed.

______________________

G. Krishna Mohan Reddy, J

Date: 2.8.2012

Note:

L.R. copy be marked.

B/o

DA

THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

Criminal Petition No.4140 of 2010

2.8.2012

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD

THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

Criminal Petition No.4140 of 2010

Date: 2.8.2012

Between:

Nagamuthula Kondaiah

.. Petitioner/Accused

And

The State of A.P., rep. by its

Public Prosecutor and another.

.. Respondents

THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

Criminal Petition No.5558 of 2009

ORDER:

1. This petition is filed under Section 482 Cr.P.C. seeking to quash proceedings in D.V.C.No.1 of 2010 (D.V.C.) on the file of the Court of Additional Judicial Magistrate of First Class, Armoor, Nizamabad district.

2. The petitioners are the respondents 1 to 3 and the second respondent herein is the complainant in the DVC case. For the sake of convenience, I refer the parties as arrayed in the DVC.

3. The complainant filed the complaint under Sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) against the petitioners herein to pass protection orders, residence order, maintenance order, custody order and to pay monetary relief compensation order and any other reasonable order respectively.

4. The claim of the complainant is as follows.

Her marriage with the first respondent was performed on 14.7.2008 at Tirupati. Before the marriage, the first respondent was engaged to another girl belonging to Ramadugu, by reason of which, he expressed his unwillingness to marry her and therefore the engagement was cancelled subject to paying damages. For two days after the marriage, the first respondent was cordial with her. Later, the parents of the first respondent i.e. respondents 2 and 3 started harassing her expressing that she was not suited to the first respondent and if another girl was married to the first respondent, they would have got a dowry of Rs.20.00 lakhs with the help of which, the husband of their daughter i.e. the fourth respondent could have been sent to foreign countries for getting better jobs. Further it is alleged that the respondents 1 to 4 harassed her asking her to leave the house voluntarily and also suggested her to marry another male person. Further, she was not allowed to take coffee, breakfast and launch by the respondents and she was also not allowed to speak to the first respondent and lead marital life with him. It is further alleged that whenever she was wearing good clothes, they used to irritate her saying where you were going. It is also alleged that the fourth respondent pushed the complainant out of the house while asking her to leave the house expressing that they would conduct another marriage to the first respondent after getting rid of her. It is further alleged unable to bear the torture of the respondents, the complainant left the house and has been staying with her parents house.

5. Learned counsel for the respondents would contend that the marriage between first respondent and the complainant is in dispute, by reason of which alone, the domestic violence case is not maintainable. Further the complainant and the first respondent never lived together and there was no consummation of marriage.

6. It is to be examined whether there are grounds to quash the proceedings in the DVC as prayed.

7. Here Sections 2(a), 2(f), 2(g), 2(q), 2(s) and 3 coupled with Sections 18 to 22 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the Act’) are to be considered.

(a) By virtue of Section 2(a) of the Act, "aggrieved person" means any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act to domestic violence by the respondent. Thereby the main criteria to file the case is that there should be domestic relationship between the person aggrieved and the respondent. It necessitates to understand what is domestic relationship in this context.

(b) By virtue of Section 2(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; (c) By virtue of Section 2(f) of the Act, "Domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shred 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. So, to satisfy this definition both should have lived or live in a shared house and they are related by consanguinity marriage etc.

(d) By virtue of Section 2(s) of the Act "Shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with 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.

(e) By virtue of Section 2(g) "Domestic violence" has the same meaning as assigned to it in Section 3. This is the criteria in fact to grant the reliefs under the Sections 18 to 22.

(f) Section 3 of the Act reads – "Definition of domestic violence". For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case if- (a) harms or injures or endangers the health, safety, life, limb or well- being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental to the aggrieved person."

8. From the pleas taken, it appears that after the marriage, the first respondent and the complainant lived together. There is no basis to say that the respondents 2 and 3 and the complainant lived together in a shared house as defined though no doubt the other ingredients are satisfied. On this ground, the complaint is not tenable and hence ultimately the proceedings are to be quashed so far as the respondents 2 and 3 are concerned. In the result, the petition is dismissed so far as the first respondent is concerned and is allowed so far as the other respondents are concerned.

______________________

G. Krishna Mohan Reddy, J

Categories: DV Judgements

Bombay HC: DV act proceedings cannot be inititated against grand sons to claim monetary and medical relief

Bombay High Court
Ganesh S/O. Rajendra Kapratwar vs The State Of Maharashtra on 10 February, 2010
Bench: P. R. Borkar

(1)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 892 OF 2009

 

1. Ganesh s/o. Rajendra Kapratwar .. Petitioners Age. 50 years, Occ. Business,

R/o. Talgalli, Degloor,

Tq. Degloor, Dist. Nanded.

2. Abhijeet s/o. Ganeshrao Kapratwar

Age. 24 years, Occ. Service,

R/o. As above.

3. Parijeet s/o. Ganeshrao Kapratwar

Age. 21 years, Occ. Education,

R/o. As above.

Versus

1. The State of Maharashtra .. Respondents

2. Sow. Shantabai w/o. Rajendra Kapratwar

Age. 66 years, Occ. Household,

R/o. Talgalli, Degloor,

Tq. Degloor, Dist. Nanded.

Shri Y.R. Barhate, Advocate for the petitioners. Shri K.M. Suryawanshi, A.P.P. for respondent No.1/State. Shri B.G. Deshmukh, Advocate for respondent No.2. CORAM : P.R. BORKAR,J.

DATED : 10.02.2010

(2)

ORAL JUDGMENT :-

 

1. This is a petition for quashing and setting aside proceedings initiated under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Domestic Violence Act” for brevity), against the petitioners at the behest of respondent No.2 bearing Misc. Criminal Application No. 75 of 2009, pending before the Judicial Magistrate, First Class, Degloor and also for quashing and setting aside order dated 26.08.2009, taking cognizance of the complaint and issuing notice to the petitioners.

2. Brief facts giving rise to this petition may be stated as below :-

. Admittedly respondent No. 2 is mother of petitioner No.1 and petitioner No.1 is father of petitioner Nos. 2 and

3. It is also not disputed that respondent No.2 has two more sons besides petitioner No.1. Respondent No.2 approached the Court of Judicial Magistrate, First Class, Degloor under section 12 (1) of the Domestic Violence Act. It is stated (3)

therein that respondent No.2 is residing with her second son Anil. Her youngest son Ram is serving at Chandigarh, Haryana along with his family. Petitioner No.1 has his business of finance. His elder son Abhijeet who is petitioner No.2 is serving in Delhi as an Engineer and earning Rs. 30,000/- per month. However, the petitioners are not providing maintenance to respondent No.2. It is further stated that the petitioners are disputing with respondent No.2 on trifle matters and causing her mental torture. The husband of respondent No.2 purchased a plot at Vishal Nagar, Degloor and constructed a house. But the petitioners were threatening to dispossess her forcibly and she is likely to lose shelter. It is further stated that respondent No.2 is suffering from so many diseases such as blood pressure. As there is cataract in her eye, doctor advised surgery. Due to lack of money, respondent No.2 is unable to undergo surgery and therefore she wanted maintenance, so also medical expenses from the petitioners.

 

3. Along with petition the original application under Domestic Violence Incident Report, Application under Section 23 (1) of the Domestic Violence Act and affidavit are (4)

enclosed. Considering the documents the learned Judicial Magistrate, First Class, Degloor, issued notices to the petitioners by order dated 26.08.2009 and same is challenged in this matter.

 

4. This Court by order dated 1st October, 2009 refused to entertain the petition so far as petitioner No.1 is concerned and therefore the petition was dismissed as against petitioner No.1. So far as petitioner Nos. 2 and 3 are concerned, they being grand-sons of respondent No.2, the petition is to be considered and notice before admission was issued to respondent No.2

 

5. Heard Adv. Shri Y.R. Barhate for the petitioners, A.P.P. Shri K.M. Suryawanshi for respondent No.1 and Adv. Shri B.G. Deshmukh for respondent No.2.

 

6. Rule. Rule made returnable forthwith. With consent of learned advocates appearing for the parties, the petition is heard finally at the stage of admission.

7. The learned advocate for the petitioner argued that (5)

petitioner Nos. 2 and 3 are grand-sons of respondent No.2 and as such during lifetime of petitioner No.1 i.e. their father, they are not liable to pay maintenance, nor they are duty bound to provide medical expenses for cataract operation of respondent No.2. He also pointed out that it is not case of respondent No.2 that the petitioner No.1 is not in a position to pay maintenance or he is not able to pay medical expenses because of old age, unemployment or disability etc. It is further argued that when petitioner No.1 is there, respondent No.2 will not be entitled to get medical expenses or maintenance from petitioner Nos. 2 and 3. Thus proceedings under the provisions of Domestic Violence Act against petitioner Nos. 2 and 3 is an abuse of process of law.

8. It is argued that petitioner No.2 is residing at Nioda, (U.P.) and he is serving there and not residing at Degloor; whereas petitioner No.3 is residing with petitioner No.1 at Degloor. On the other hand the learned advocate for respondent No.2 argued that as per Section 2-A of the Domestic Violence Act “aggrieved person” is defined as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any (6)

act of domestic violence by the respondent. Phrase “domestic relationship” is defined under section 2 (f) of the said Act as 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. “Domestic violence” is defined in section 3 of the Act.

9. The only allegation regarding domestic violence is that the petitioners quarreled with respondent No.2 on petty matters and/or threatened to dispossess her from the house, which was constructed by her husband on the plot purchased by him. It is nobody’s case that the cataract which requires surgical operation is a result of any domestic violence. So far as maintenance and medical expenses are concerned, section 20 of the Domestic Violence Act is relevant and it lays down that while disposing of application under sub- section (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 person and any child of the aggrieved person as a result of the domestic (7)

violence and such relief may include, but not limited to the medical expenses.

 

10. In this case there is no dispute that petitioner No.1 Ganesh was liable to pay maintenance and he would also be liable to incur medical expenses as mentioned in section 20 (1) (b) of the Domestic Violence Act. However, so far as petitioner Nos. 2 and 3 are concerned, under Hindu Adoptions and Maintenance Act, 1956, as grand-sons they would have been liable to pay maintenance under section 22 (1) of the Hindu Adoptions and Maintenance Act, 1956, provided their father had not not been alive. When the father of petitioner Nos. 2 and 3 is alive and is capable of paying maintenance, section 22 (1) of the Hidu Adoptions and Maintenance Act, will not be applicable and under section 20 of the Hindu Adoptions and Maintenance Act, petitioner No.1 would be liable to pay maintenance to his mother i.e. respondent No.2. As per section 20 (b) of the Domestic Violence Act, the maintenance includes even medical attendance and treatment.

11. So in the above said circumstances, the proceedings under section 12 (1) may not be tenable against petitioner (8)

Nos. 2 and 3 so far as relief of maintenance and medical expenses are concerned. However, residence order under section 19 of the Domestic Violence Act can be passed against all the petitioners. Section 17 which recognizes right to reside in a shared house. It is argued before this Court by the learned advocate for the petitioners that respondent No.2 has been residing separately for 10 years. In-fact, in the Domestic Violence Incident Report, in para 4 it is specifically stated that applicant has been residing with her second son Anil. However, this would be a question of fact and the parties will have to go before the Magistrate, so far as direction is sought against forcible dispossession is concerned. It would be a question of fact whether for 10 years respondent No.2 has been residing separately, and there is threat of her dispossession from the house as claimed.

12. So, in these circumstances, this petition is allowed partly. The petition is dismissed so far as petitioner No.1 is concerned as stated earlier. The proceedings against petitioner Nos. 2 and 3 may proceed, further only in respect of reliefs which could be granted in sections 18 and 19 of the Domestic Violence Act. (9)

 

13. The Criminal Writ Petition accordingly disposed of. [P.R. BORKAR,J.]

snk/2010/FEB10/crwp892.09

Categories: DV Judgements

Delhi HC: If Family members did not stay together with complainnant as joint family and stayed separately, cannot be made respondent to the DV act

Delhi High Court
Sonia Chauhan Raghove vs Sanjive Raghove & Ors on 7 February, 2012

$~18

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.M.C. 452/2012

% Judgment delivered on: 7th February, 2012

SONIA CHAUHAN RAGHOVE ….. Petitioner Through : Mr.M.B. Singh, Adv.

versus

SANJIVE RAGHOVE & ORS ….. Respondent Through : NEMO.

CORAM:

HON’BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

Crl.M.A. 1565/2012(Exemption)

Exemption is allowed subject to just exceptions. Criminal M.A. stands disposed of.

Crl.M.A. 1566/2012(Delay)

Delay condoned.

Criminal M.A. stands disposed of.

+ Crl. M.C. 452/2012

1. Vide the instant petition, the petitioner has challenged the impugned judgment dated 15.11.2011 passed by ld. ASJ (01), District- West Delhi and order dated 16.08.2010 passed by ld. MM in

Crl.M.C.No.452/2012 Page 1 of 6 Complaint Case no. 278/01/2010, filed under Section 12(1)(3(4)(5) read with Sections 18,19,20 and 22 read with Rule 6(1) of the Domestic Violence Act, has issued summons only against respondent no. 1 i.e. husband of the complainant and declined to issue summons against respondent no. 2 to 5.

2. I note in order dated 16.082010, ld. MM of Mahila Court, West Delhi has recorded that respondent no. 1 Dr. Sanjeev Raghav, husband of the applicant, who is residing at Rewari, Haryana. Respondent no. 2 and 3 are residing separately and cannot be stated to be in domestic relationship with the applicant. Therefore, ld. Trial Judge not preferred to issue summons against the aforesaid respondents.

3. Similarly, respondent no. 4 is residing in Delhi. She is the married sister in law, who does not share any domestic relationship with the applicant. Therefore, respondent No.4 has also not been summoned.

4. As far as the respondent no. 5 is concerned, who is stated to be the friend of respondent No.1 and not a relative, therefore respondent No.5, has also been summoned.

5. Being aggrieved by the order dated 16.08.2010 the petitioner has challenged the aforesaid order passed by ld. MM before the court of Sessions.

6. Vide order dated 15.11.2011, ld. ASJ after considering the fact has held that respondent no. 1 is the husband of the applicant and respondent no. 2 to 4 are the father-in-law, mother-in-law and sister-in- law of the applicant respectively and respondent no. 5 is the colleague of respondent no. 1. It is alleged in the application that petitioner had

Crl.M.C.No.452/2012 Page 2 of 6 married with respondent no. 1 on 10.03.2004. After the marriage, they lived together as husband and wife at her matrimonial home at 5109/3, Cat.III, Modern Housing Complex, Mani Majra, Chandigarh from 10.03.2004 to 23.05.2004. It is further alleged that she was harassed, humiliated and ill-treated by respondent no. 1 to 4 for not fulfilling their demands of dowry. They hatched a conspiracy to turn the complaint out of the matrimonial home and while acting on the same, respondent no. 1 had started applying for the job outside Chandigarh.

7. I note that ld. ASJ, has perused the impugned order dated 16.08.2010, wherein it is recorded that respondent no. 2 to 4 cannot be summoned as they cannot be stated to be in domestic relationship with the complainant. Respondent no. 5 has not been summoned as he is a friend of respondent no. 1 and not the relative.

8. I note ld. ASJ has also dealt the issue raised by ld. Counsel for the petitioner and has referred Section 2 (f) of the Act that respondent no. 2 to 4 being the blood relatives of respondent no.1 and with whom petitioner lived immediately after her marriage fall within the domestic relationship.

9. It is further submitted by the ld. Counsel for the petitioner that as per the provisions of Section 2 (q) of the Act, the male partner of the respondent is liable for violation of the Act. Respondent no. 5 being the business partner of the respondent no. 1 is liable to summoned.

10. Section 2 (a) of the Act defines aggrieved persons. For the convenience, said Section is reproduced as under:- “Aggrieved person means any woman who is, or has been in a domestic relationship with the respondent

Crl.M.C.No.452/2012 Page 3 of 6 and who alleges to have been subjected to any act of domestic violence by the respondent”

11. I note, ld. Addl. Sessions Judge has been guided by the case titled as Vijay Verma vs. State N.C.T of Delhi & Anr. decided by this Court in 2010 (4) JCC 2377 wherein it is recorded as under:

“Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(f) as under:

“(f) ‘domestic relationship’ means 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.”

A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become Crl. M.C. No. 3878 of 2009 Page 3 of 7 aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot Crl.M.C.No.452/2012 Page 4 of 6 be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married Crl. M.C. No. 3878 of 2009 Page 4 of 7 and establishes her own household with her husband. Such son, daughter, daughter-in- law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time”.

Crl.M.C.No.452/2012 Page 5 of 6

12. It is clear from the judgment recorded by ld. ASJ that complainant had admitted in her application under Section 12 of the Act, that had stayed together at her matrimonial home at 5109/3, Cat.III, Modern Housing Complex, Mani Majra, Chandigarh from 10.03.2004 to 23.05.2004. However, respondent no. 2 & 3 are living together separately from the petitioner. Respondent no. 4 is the married sister and is also living separately from the petitioner.

13. There is no allegation in the application, which would show that petitioner along with respondent no. 1 and respondent no. 2 to 4 had lived together as a joint family.

14. As respondent no. 5 is concerned, he is alleged to be a business partner of the respondent no. 1. Respondent no. 5 being the business partner of the respondent no. 1 does not fall under the category of the male partner as provided by the proviso to Section 2 (q) of the Act.

15. In the view of above, I find no discrepancy in the order passed by the ld. Trial Courts, therefore I refrain to interfere with the same.

16. Accordingly, the instant petition is dismissed.

17. No order as to cost.

SURESH KAIT, J

FEBRUARY 07, 2012

Jg

Crl.M.C.No.452/2012 Page 6 of 6

Categories: DV Judgements

AP HC: Proceedings under the DV Act are not maintainable against the female members, the proceedings are liable to be quashed

November 2, 2012 1 comment
Smt. Menakuru Renuka And Others. vs Smt. Menakuru Mona Reddy. on 22 October, 2008

THE HON’BLE SRI JUSTICE P.SWAROOP REDDY

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

http://indiankanoon.org/doc/634933/

Categories: DV Judgements