IN THE HIGH COURT OF KERALA AT ERNAKULAM

THOTTATHIL B. RADHAKRISHNAN & SUNIL THOMAS, JJ.

Crl.R.P. No. 328 of 2013

Dated this the 5th day of August, 2015

REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS
KUNJATHIRI,AGED 82, W/O LATE VARGHESE, KUTHOOR VEEDU, PORKULAM (P.O) THALAPPILLY, THRISSUR. BY ADV. SRI.RAJIT

RESPONDENT(S)/STATE & PETITIONER
1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. SHEEJA PRINSON, AGED 36 YEARS, W/O PRINSON, KOOTHUR HOUSE, PORKULAM VILLAGE TALAPPILLY TALUK, THRISSUR DISTIRCT.
R2 BY ADV. SRI.JOHN JOSEPH VETTIKAD R2 BY ADV. SRI.C.JOSEPH JOHNY

ORDER

Sunil Thomas, J.

This revision arises from an order passed by the Sessions Judge, Thrissur in Crl.Appeal No.752/2010 in a proceeding under the

Protection of Women from Domestic Violence Act 2005 (Act 43 of 2005)

(hereinafter referred to as “the Act” for short).

2. A married woman sought protection order under Section 12 of the Act against her mother-in-law and sister-inlaw. It was alleged that the above persons had subjected her to domestic violence at the matrimonial home. The husband of the above married woman was in Gulf country and apparently she had no grievance against the husband. The trial court granted the protection order under the Act, which was confirmed in appeal preferred at the instance of the mother-inlaw. This is challenged in this revision by the mother-in-law.

3. One of the ground of challenge raised specifically in the revision was that without the husband of the married woman in the party array, an application under the Act was not maintainable and no relief can be granted. The learned single Judge, before whom the matter came up for hearing, noted the decision of this Court in

Bismi Sainudheen v. P.K.Nabeesa Beevi and Others (2013 (4) KLT 377).

After referring to the relevant provisions involved in the matter, the learned single Judge doubted the ratio laid down in the above case and expressed the view that the proviso to Section 2(a) can only mean that, when the husband, to whom only the wife is related by marriage, is a respondent, his relatives, male or female also may be made respondents in the case. Hence, the learned single Judge thought it fit to refer the matter to the Division Bench for consideration. The question that was formulated for consideration is “whether a petition filed by a wife against her husband’s relatives alone without making him a corespondent is maintainable”? The matter is thus placed before this Bench for consideration.

4. Heard both sides and examined the records.

5. The statement of objects and reasons of the Act 43 of 2005 declares that domestic violence is a human rights issue and a serious deterrent to development. Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged it. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Woman (CEDAW) in its General Recommendation No. XII (1989) has recommended that the State parties should act to protect women against violence of any kind, especially that occurring within the family. Parliament was of the view that the phenomenon of domestic violence in India was widely prevalent, but has remained largely invisible in the public domain. It was felt that the civil law did not address this phenomenon in its entirety. Where a woman was subjected to cruelty by her husband or relatives it was an offence under Section 498A of IPC. There was no remedy in the civil law for the protection of the women from being victims of domestic violence. Hence, the Act was brought into force in accordance with the above object and 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 was intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.

6. Evidently, the Act was intended to ensure effective protection of the rights of women guaranteed under the Constitution, who were victims of violence of any kind, occurring within the family and to deal with matters connected therewith and incidental thereto. This being the object of the statute, evidently, the statute cover a large group of the society with rights conferred not only to the aggrieved wife in relation to her dispute with the husband, but to cover any type of violence against woman that occurs in any domestic relationship.

7. To answer the question referred to this Bench, the relevant provisions which are necessary for consideration are the definitions of the words “aggrieved person”, “domestic relationship” and the “respondent”. The statute defines the above as follows:-

“2(a) “ 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 of domestic violence by the respondent;

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:-

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. “

8. Evidently, the above three definitions are inter-linked and the interpretation of any of the three is not possible without reference to the other two, as well as to the concept of ‘shared household’ as defined under Section 2(s) and the definition of ‘domestic violence’ as defined under Section 3 of the Act. The reference to the above three quoted definitions indicate that they are of very wide connotation. Section 3 brings within its campus any type of violence, including physical, sexual, verbal, emotional and economic and arising in any domestic relationship, not confined to matrimonial relationship alone. The long title of the statute, the various definitions incorporated in the statute and the object and reasons of the statute referred to above cumulatively confirm that the statute is not confined to cruelties against the wife alone, but is of a larger perspective, covering any type of abuse against women, provided it arises out of a domestic relationship.

9. Section 2(a) and Section 12 indicates that a woman alone can seek the relief, under the Act. The sine qua non for seeking the relief is that the petitioner should be a woman, who is or has been in a domestic relationship with the respondent against whom there is an allegation of domestic violence. A cojoint reading of Section 2(a), 2(f) and 2 (q) shows that, to seek relief on ground of domestic violence, it is not necessary that the woman should be related to the person committing the wrong by matrimony alone, but may be by a relationship in the nature of the marriage or related by consanguinity, adoption or are family members living together as a joint family. Evidently, if a woman seeking relief had been subjected to any domestic violence as defined under Section 3, by the person against whom relief is sought and they had, at any point of time, lived together in a shared household and if they are related by any relationship as mentioned above, she is entitled to seek the benefit of the Act.

10. Narrowing down to the issue as to whether the wife can seek relief against the relatives of the husband without the junction of the husband, or husband being in the party array, without any allegation against him or without seeking any relief against him is a vexed issue. It means whether the presence of the husband in the party array, atleast as an informal party is necessary. The concept of formal party is not unknown to criminal jurisprudence. The issue revolves on a question whether the statute visualizes a situation of an abuse of wife by in-laws of the husband, without the husband committing any act of domestic violence. It cannot be said that the Indian Parliament was unaware of the Indian social reality wherein thousands of husbands move to distant places in search of job, leaving behind the wife at the matrimonial home and in several of such cases “in-law syndrome” operating. Are they left out without any remedy under the Act? One possible indication is available in Section 3 of the Act which declares that any omission, commission or conduct of the respondent shall constitute a domestic violence provided, it has the result enumerated under (a) to (d) of Section 3. Evidently, an omission by the husband may also fall within the vice of a domestic violence and it can possibly be argued that a passive conduct of the husband or even an inaction from the part of the respondent, exposing his wife to be harassed or abused by the inlaws, may fall within the definition of domestic violence. When the wide definition takes in various acts, including even a passive act or an inaction of the husband within the definition of the domestic violence, can it be said that statute does not contemplate a situation of domestic violence by the relatives alone without the husband being guilty of even omission? Are such women, merely for the reason that husband supports her, or even not guilty of any laches, beyond the Protective Umbrella of this Progressive statute ?

11. The crucial Section to be considered herein is the definition of “Respondent” in section 2(q). ‘Respondent’ in a proceeding under the Act 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. The proviso provides that in the case of an aggrieved wife or a female living in a relationship in the nature of marriage, she may file a complaint against a relative of the husband or the male partner also. Evidently, the proviso enlarges the scope of the definition of ‘respondent’. The Honble Supreme Court in

Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and Others (2011 (2) KHC 515)

has held that the proviso widens the scope of definition of respondent by including a relative of the husband or male partner, within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage. In the above case, the Apex Court considered the question as to whether the legislature intended to include the female relatives of the husband or the male partner within the ambit of complaint. The Apex Court held that expression ‘female’ has not been used in the proviso to Section 2(q), but on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, the females would have been specifically excluded, instead of it being provided in the proviso that a complaint could be filed against a relative of the husband or the male partner.

12. Evidently, proviso enables an aggrieved wife to proceed against any relative of the husband or the male partner, as the case may be. It is pertinent to note that in the body of Section 2 (q), it is provided that respondent shall be a male person, who has committed the domestic violence and against whom, the aggrieved wife has sought relief. It eminently shows that in cases other than covered by the proviso, the respondent shall be a male, with whom aggrieved person has a domestic relationship and against whom she has sought any relief under the Act. However, the proviso does not make any distinction as to whether relative proceeded against is a male or female, by specifically denoting them as ‘relative’. Evidently, proviso throws open the scope of the Act, as against any relative, whether male or female.

13. The body of section 2(q) enables an aggrieved person to proceed against the respondent who commits domestic violence. It is clear from a joint reading of Section 2(q) with Section 2 (a), that the person who can initiate the proceedings is denoted by the term ‘woman’. However, in the proviso to Section 2(q), the expression has been carefully used as an aggrieved wife or female living in a relationship in the nature of a marriage’. A combined reading of Section 2(a) and 2(q) shows that though it enables any “woman” to proceed against any male or relative in a domestic relationship, in the proviso the word used is ‘ an aggrieved wife’. Evidently, the provision is a special provision carved out of the general provision for the benefit of an ‘aggrieved wife’ or a female living in a relationship in the nature of marriage. As distinct from the body of Section 2(a), which refers to a ‘woman’, proviso to Section 2 (q) is an extended provision and therein specific provision is made to ‘an aggrieved wife or female living in a relationship in the nature of a marriage’. It is clear that this specific proviso is to protect an aggrieved wife or female who is living in a relationship in the nature of a marriage.

14. A careful reading of the second limb of the proviso further clarifies the scope of it. It provides that such a person “ may also file a complaint” (emphasis supplied). This provision appears to have been very carefully drafted, which enables such person to file “a complaint” and not merely to seek a relief. Emphasis has to be made to the word ‘may’ ‘also’ as well as to ‘complaint’. It provides that she may, in addition to other remedies, file a complaint also against a relative of the husband or male partner. It is clear that an aggrieved wife or a female in a relationship in the nature of marriage, may, in addition to other reliefs “may also” independently file a complaint. It enables the wife to file a complaint against a relative of the husband also . It is evident that it is not worded as if she may file a complaint against the husband and his relatives or seek a relief against the husband along with his relatives. It is not also worded as to enable the wife to seek a relief against the relatives also. On the other hand, it specifically, categorically and unambiguously permits her, apart from her all other remedies, to file a complaint against the relatives of the husband also, if they are the wrong doers. Evidently, wording is so clear that it enables the wife to proceed against the relatives also, without proceeding against the husband. It does not in any manner indicate that the husband should also be party. On the other hand, it clearly shows that the husband need not be a party to the proceedings in appropriate cases.

15. Now, it has to be examined whether the above interpretation to the proviso is in conformity with the other relevant provisions of the Act and the general scheme of the Act. The above interpretation naturally give rise to a question as to how a complaint can lie against relatives alone when there is no domestic relationship between the aggrieved person and the wrong doer. Conversely, when a petition is filed against a relative without arraying the husband, how wife can be an aggrieved person. Section 2 (a) independently will give an impression that the person against whom she alleges domestic violence must be a person with whom the aggrieved person has a matrimonial relationship. The above doubt also arises out of mistaken notion that the aggrieved person in a matrimonial violence should always be linked directly to the respondent through a domestic relationship and that invariably the husband is the abuser. This appears to be a narrow and pedantic view without having regard to the statutory provision and the social realities. The proviso to Section 2(q) enlarges the scope of respondent to include any relative also. The husband is not always the abuser and there may be cases wherein the relative is the wrong doer. It is also not as if, the husband along with the relatives should be the wrong doers and then alone it will constitute a domestic violence. The view, that only if the husband, either independently or in combination with relatives commit violence, it will fall within the vice of Section 3, has no statutory backing.

16. Another reason is that the term “aggrieved person” is conceptually always be linked to the respondent, through a domestic relationship. In other words, aggrieved person as well abuser shall always be linked through a domestic relationship. This arises because of Section 2(a) which defines ‘aggrieved person’ as a person who is, or has been, in a domestic relationship with the respondent, which in the case of a matrimonial relationship is the husband and wife. However, proviso to Section 2 (q) enlarges the scope and contours of the definition of the respondent to include the relatives of the husband also.

17. The wrong doer is brought under a strange definition of ‘respondent’ which appears to be a wrong phraseology, since it is the nomenclature used to denote the opposite party in a legal proceedings. By adopting the same nomenclature for the wrong doer also, it conveys a wrong impression that the respondent in the petition under the Act is always the wrong doer and should also be a party to domestic relationship with the petitioner and vice versa also. The Supreme Court in

S.R.Batra and Another v. Smt.Taruna Batra (2007 (3) SCC 169)

which had occasion to interpret the scope and ambit of definition of “shared household” had opined that definition of shared household in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting. The apparent doubt that arise while interpreting Section 2 (a) and 2 (b) along with proviso to Section 2 (q) is also partly due to the improper terminology of the ‘respondent’. However, in the light of the object of the statute and the clear intention of the Parliament in incorporating the proviso to Section 2 (q), all provisions will have to be harmoniously interpreted to advance the object of the statute.

18. Though it may appear that an aggrieved wife can proceed against any relative of the husband even if they have never shared a household, it is not correct. Proviso to Section 2(q), has to be read as an enlargement of the body of Section 2 (q) and read along with Sections 2(a), 2(f) and 2 (s) in conjunction with the definition of ‘domestic violence’, as contemplated under Section 3. It would indicate that even if the husband is not a party to the proceedings, the respondent should be one related to the aggrieved person through the husband, by matrimonial relationship or a relationship in the nature of marriage, must have shared a household at any point of time and has committed the domestic violence.

19. Evidently, proviso to Section 2(q) is of wide sweep, to take in matrimonial violence of any nature, provided, both the parties are connected by a matrimonial relationship or relationship in the nature of matrimony, however distant, the relation may be. Evidently the right conferred on an aggrieved wife or a woman involved in a relation similar to that of a marriage, is against relatives of her husband or partner only and not against her own relatives sharing the same house. Obviously, latter disputes are not presumed to be matrimonial dispute and hence outside the scope of the proviso.

Bismi Sainudheen v. P.K.Nabeesa Beevi and Others (2013 (4) KHC 245)

was a case in which an aged lady filed M.C proceedings under Section 12 of the Act, against her son. Pending the proceedings, she filed an application to implead the daughter-inlaw, which was opposed by the daughter in-law on the ground that she will not fall within the definition of respondents. Ultimately, when the matter came up before this Court, the question that was considered by this Court was whether the daughter-in-law will fall within the sweep of Section 2(q). The court, relying on the various authorities and the concept involved, held that the daughter-in-law will also fall under the sweep of Section 2 (q). It is true that in that case, the husband of the aggrieved person was not a party, he being no more. Further it was not a proceeding arising out of a matrimonial dispute, but was dispute by a woman against her son and daughter-in-law. Hence, the law involved in that case was not one involved in the present case. Though the Court, in that case relied on the decision laid down in Sandhya Manoj’s case (supra), Supreme Court in that case was considering the question whether the term relatives referred to in the proviso to Section 2 (q) includes females also. The proviso, pre supposes that the action is initiated either by the aggrieved wife or a female in a relationship in the nature of a marriage and in such a situation alone she can proceed against the relatives of the husband or the partner, as the case may be, irrespective of whether the relative is male or female. However, in Bismi’s case, court was not dealing with a situation similar to that of Sandya Manoj’s case.

20. In the light of the above discussion, it is clear that a proceeding against the relative of the husband is perfectly maintainable without the husband being in the party array and without any relief being sought against him, if it falls within proviso of Section 2(q). Reference is answered accordingly.

Matter may be placed before the learned Single Judge for consideration of the issue involved, in accordance with the above findings.

Sd/- THOTTATHIL B.RADHAKRISHNAN Judge

Sd/- SUNIL THOMAS Judge