S.498A, Women respondent in DV.

Madras High Court

Dated: 17.2.2010
Coram:The Hon’ble Mr.JUSTICE C.NAGAPPAN and The Hon’ble Mr.JUSTICE P.R.SHIVAKUMAR

Crl.O.P. No. 24598 of 2008

(Reference)
1. R.Nivendran
2. B.Ranjan
3. Saroja Ranjan
4. R.Sowbarnika
5. A.Saravana Bhavan

6. Viji @ Vijayakumari Saravana .. Petitioners

Vs.

Nivashini Mohan @ M.Nivashini .. Respondent

Petition filed under Section 482 Cr.P.C. praying to call for records in C.C.No. 356 of 2008 on the file of the II Judicial Magistrate Court, Chengalpattu and quash the same.

For Petitioners : Mr.Thomas T.Jacob

for Ms.P.Lakshmi Devi

For Respondent : Mr.R.Vijaya Raghavan

 

Mr.P. Kumaresan Public Prosecutor
ORDER

C.NAGAPPAN, J.

The petitioners have sought for a direction to call for the records in the case in C.C.No.356 of 2008, on the file of Judicial Magistrate Court No.II, Chengalpattu, initiated by the wife of the first petitioner seeking various reliefs under the provisions of the Protection of Women from Domestic Violence Act, 2005. The respondent herein wife filed application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, against the first respondent husband, his parents, his sister and other family members. In the present petition seeking to quash the proceedings, one of the grounds raised is that respondents 3, 4 and 6 in the application under Section 12 of the Act are women and Section 2(q) of the Protection of Women from Domestic Violence Act, would require the respondent to be an adult male person and women could not be added as respondents in the application. When this point was urged, it was found that there was a conflict of views on whether women could be added as respondents in an application under Section 12 of the Act, in the decisions in UMA NARAYANAN V.. PRIYA KRISHNA PRASAD [(2008) 3 MLJ (Crl) 756] and K.KAMALA AND OTHERS V.. M.PARIMALA AND ANOTHER [(2009) 3 MLJ (Crl) 450]. Therefore the matter was directed to be placed before the Honourable Chief Justice for appropriate direction and accordingly this Division Bench heard the matter.

2. We heard the submissions of the learned counsel for the petitioners, the learned counsel for the respondent and also the learned Public Prosecutor of the State.
3. Besides the decisions of this Court expressing divergent views leading to Reference, the decision of a Division Bench of Andhra Pradesh High Court in AFZALUNNISA BEGUM & ETC. V. STATE OF A. P. & ANR. (2009 CRL. L. J. 4191) and the following decisions rendered by learned single Judge of various High Courts on the subject matter were brought to our notice. "(1) AJAY KANT AND OTHERS VS. SMT.ALKA SHARMA (2008) Cri. L. J. 264) (High Court of Madhya Pradesh)

(2) NAND KISHORE AND ORS. VS. STATE OF RAJASTHAN AND ANR. (MANU/RH/0636/2008) (High Court of Rajasthan)

(3) REMADEVI VS. STATE OF KERALA (I (2009) DMC 297) (High Court of Kerala)

(4) ARCHANA HEMANT NAIK VS. URMILABEN I. NAIK AND ANOTHER (CDJ 2009 BHC 1960) (High Court at Bombay)."
4. The learned counsel for the petitioners contended that ‘respondent’ defined under Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 will mean only an adult male person and not a woman and the application under Section 12 of the Act seeking for one or more reliefs under the Act is civil in nature and there are only two penal provisions, one under Section 31 of the Act providing penalty for breach of protection order by respondent and other under Section 33 of the Act providing penalty for not discharging duty by Protection Officer and those proceedings can be initiated on complaint and application under Section 12 of the Act is not maintainable as against a woman. His contention is based on the decisions in AJAY KANT’S CASE and UMA NARAYANAN’S CASE (referred to above).

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5. The learned counsel for the respondent contended that as per the definition of "respondent" in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, it would mean any adult male person, but the provisio to the Section would go to show that an aggrieved wife or a female partner may also file a complaint against a relative of the husband or the male partner and the term "relative" would include woman also and no restricted meaning can be given to it.

6. The learned Public Prosecutor submitted that the Statement of Objects and Reasons of the Protection of Women from Domestic Violence Act, 2005, refers to any "relative" of the husband or the male partner and "relative" mentioned in the proviso to Section 2(q) of the Act cannot be only a "male" relative and can also be a "female" relative of the husband or the male partner as the case may be and women can be respondents in the application under Section 12.

7. The relevant part of the Statement of Objects and Reasons of the Act reads thus.

"….. 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 women is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A 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.

4. The Bill, inter alia, seeks to provide for the following:-

(i) 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. Even those 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." (emphasis supplied).

8. The initiation of proceedings under the Protection of Women from Domestic Violence Act, 2005 is by making an Application under Section 12 of the Act to the Magistrate by an aggrieved person or any other person on his behalf or by the Protection Officer at his instance. "Aggrieved Person" is defined under Section 2(a) of the Act as any woman 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. "Domestic Relationship" is defined under Section 2(f) of the Act as a relationship between two persons who live or 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 under Section 3 of the Act as any act, omission or commission or conduct of the respondent which would constitute domestic violence and it is an exhaustive definition, which includes, "physical abuse", "sexual abuse", "verbal and emotional abuse" and "economic abuse". The word "respondent" has been defined in Section 2(q) of the Act, which reads as follows. "Sec. 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."

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9. The reliefs provided under the Act to the aggrieved person are Protection orders under Section 18 prohibiting acts of domestic violence; Residence orders under Section 19 in relation to a shared household; Monetary reliefs under Section 20 including loss of earnings, medical expenses etc; Custody orders under Section 21 relating to children and Compensation orders under Section 22 for the injuries including mental torture etc. The power to grant interim and ex parte interim orders is provided under Section 23 of the Act.

10. The "respondent" as defined under Section 2(q) of the Act would only mean any adult male person who is, or has been, in "domestic relationship" with the aggrieved person, but the proviso therein is an exception and it provides that an aggrieved wife or female living with him in a relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner. Though ‘respondent’ is termed to be any adult male person, the proviso enables an aggrieved wife or female living in a relationship in the nature of a marriage to prefer a complaint against a relative of the husband or the male partner.

11. Proceeding is initiated by the aggrieved person who is in domestic relationship with the respondent by filing an application under Section 12 of the Act seeking for one or more reliefs. The "Domestic Relationship" defined under Section 2(f) of the Act is wide. Aggrieved person being wife or female living in a relationship in the nature of marriage may also file a complaint against a relative of her husband or the male partner. In other words, the relationship of "marriage" or in the "nature of marriage", would enable an aggrieved wife or female to file a complaint against a relative of her husband or the male partner.

12. The next question is as to whether a "relative" referred to in the proviso to Section 2(q) of the Act can only be a ‘male’ relative. First of all, it has to be noted that the definition of "respondent" uses the word male and the proviso refers to "male" partner. But while referring to a "relative", the word "male" is not used. If it is the intention of the Legislature that "relative" mentioned in the proviso can only be a "male" relative, it would have mentioned so, but it is absent.

13. On the contrary, the intention of the Legislature is reflected in the proviso to sub-section (1) of Section 19 of the Act dealing with "Residence orders". Under Clause (b) of sub-section (1) of Section 19, the Magistrate may pass ‘residence orders’ directing the respondent to remove himself from the shared household. In the proviso to sub-section (1) of Section 19 of the Act, it is stipulated that no order under Clause (b) shall be passed against any person, who is a woman. This would show that an order under other Clauses of Sub-section (1) can be passed against a woman, who is a relative of the husband or the male partner. If no order at all can be granted under Section 19 of the Act against a woman, the proviso to sub-section (1) of Section 19 would become redundant and that is not the Legislature intended to.

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14. It is competent to the Magistrate under Section 19(1)(a) of the Act to restrain the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has any legal or equitable interest in it and under Clause (c), to restrain the respondent or any of his relatives from entering any portion of the shared household, in which the aggrieved person resides. If it is construed that proviso to Section 2(q) of the Act would include only the "male" relative, the issuance of "Residence orders" would become redundant, since it would not bind the female relatives of the husband or the male partner, as the case may be, who are residing in the shared household. No such restricted meaning can be given to the word "relative", mentioned in proviso to Section 2(q) of the Act.

15. The Supreme Court in the recent decision in U. SUVETHA VS. STATE BY INSPECTOR OF POLICE AND ANOTHER (2009) 6 Supreme Court Cases 757) has considered the term "Relative" with reference to Section 498-A of Indian Penal Code and has observed that in the absence of any statutory definition, the term "relative" must be assigned a meaning as it is commonly understood and it would include father, mother, son, daughter, brother, sister, nephew or niece, grandson or granddaughter of an individual or the spouse of any person. In this context, it is pertinent to note that while framing charge for the breach of protection order by the respondent, the Magistrate is authorised under Section 31(3) of the Act to frame charge under Section 498-A of Indian Penal Code, if the facts disclose commission of such an offence.

16. As already seen, the Statement of Objects and Reasons of the Act also refers to any ‘relative’ of the husband or the male partner and the proviso to sub-section (1) of Section 19 of the Act makes it clear that the word mentioned in proviso to Section 2(q), is not restricted to a "male" relative and would include a "female" relative. But, however, whether relief can be granted against the ‘female’ relative would depend on the facts and circumstances of each case.

17. We are in entire agreement with the view taken by the Division Bench of the Andhra Pradesh High Court and the High Courts of Bombay, Kerala and Rajasthan as well as this Court in the decision in K.KAMALA’S CASE (referred to above). The view taken by Madhya Pradesh High Court in AJAY KANT’S CASE and this Court in UMA NARAYANAN’S CASE (cited supra), are not correct.

18. In the result, we hold that the "respondent" as defined under Section 2(q) of the Act includes a female relative of the husband or the male partner and women could be added as respondents in an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Reference is answered accordingly.

19. The Criminal Original Petition seeking for quashing the proceedings may be listed before the concerned Court for disposal.

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