Madhya Pradesh High Court
Ajay Kant And Ors. vs Smt. Alka Sharma on 19/6/2007
ORDER : Brij Mohan Gupta, J.
1. The instant petition is for impugning the order dated 18th January, 2007 passed by Judicial Magistrate First Class, Gwalior in Criminal Case No. 848/07,whereby the learned Magistrate had issued notice to the petitioners on an application filed by the respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”).
2. Brief facts of the case are that respondent Smt. Alka Sharma has filed one application under Section 12 of the Act against the petitioners. On which the learned Magistrate, vide order dated 18th January, 2007, has issued notices to the petitioners. It has been averred in the application that the respondent has married with petitioner No. 1 on 16th of May, 2005 at Gwalior. For a period of 4-6 months she became pregnant and thereafter the petitioners started harassing the respondent demanding Rs. 2 lacs and one Maruti car from her parents. As the father of the respondent is a pensioner, he could not fulfill the demand. He reported the matter to Mahila Police Station at Padav, Gwalior on 2nd November,2005 but the report was not lodged and no action was taken. On 3rd February,2006 the respondent delivered a male child in the hospital. Thereafter, on 17th February, 2006 the petitioners separated the child from the respondent, kept him alongwith them and deserted the respondent. Consequently, since 20th February,2006 she is living in her matrimonial home without her son. Petitioners are trying to declare the respondent as mentally sick and to remarry the petitioner
No. 1. Admittedly, one application for divorce has been filed by the petitioner No. 1 against the respondent and the respondent has filed an application under Section 125 of Cr.PC claiming maintenance from him and also she has filed another application under Section 9 of the Hindu Marriage Act for seeking a decree of restitution of conjugal rights against the petitioner No. 1. These applications are pending in the Family Court, Gwalior. On these grounds, the respondent has prayed in the application for taking legal action against the petitioners and also to punish them.
3. The aforementioned act of filing of the application by the respondent and
issuance of notice by the Court against the petitioners has been assailed by the
petitioners on various grounds. The grounds and decisions thereon are as under:
(A) That, the respondent was mentally sick before the marriage which was
not disclosed by the respondent. On this ground, application for divorce has
been filed by petitioner No. 1 on 15-5-06 in which proceedings for
reconciliation have been failed on 21-9-06. Only for creating pressure against
the petitioner No. 1, the present application has been filed on false grounds by
the respondent on 23-11-06.
(B) That, in the application under Section 9 of the Hindu Marriage Act
filed by the respondent these facts have not been mentioned by her that on
demand of Rs. 2 lacs and one Maruti car, she has been harassed by the
petitioners and as such the application being on false grounds, proceedings
based on it ought to quashed.
The grounds in the application are false or not, this fact cannot be
decided by this Court during this summary proceeding under Section 482 of Cr.PC.
The truthfulness or otherwise of the facts mentioned in the application can be
decided by the learned Magistrate after due inquiry under the procedure as
prescribed by the Act. Hence, the proceeding based on the application cannot be
quashed by this Court at this stage on these two grounds.
(C) That, as provided by Section 2(q) of the Act, such application under
Section 12 of the Act cannot be filed against the petitioner Nos. 3 and 4 who
are the ladies. In Section 2(q) of the Act the term respondent has been defined
as under:
(q) “respondent” means any adult male person who is, or has been, in a
domestic relationship with the aggrieved person and against whom the aggrieved
person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the
nature of a marriage may also file a complaint against a relative of the husband
or the male partner.
Thus, it is provided by this definition that an application can be filed by
an aggrieved person including the respondent claiming relief under the Act only
against the adult male person. However, as per the proviso appended to this
provision, a wife or female living in a relationship in the nature of a marriage
may also file a complaint against a relative of the husband or the male partner.
For understanding these two parts, i.e., the main part of the Section and the
proviso, it is necessary to understand the scheme of the Act. The first three
paragraphs of the statement of object and reasons under which the Bill No. 116
of 2005 for passing the Act was placed before the Parliament, are as under
(published in the Gazette of India Extraordinary Part II Section 2 Page 22 dated
22nd August, 2005):
Domestic violence is undoubtedly a human rights issue and serious deterrent
to development. The Vienna Accord of 1994 and the Beijing Declaration and the
Platform for Action (1995) have acknowledged this. The United Nations Committee
on Convention on Elimination of All Forms of Discrimination Against Women
(CEDAW) in its General Recommendation No. XII (1989) has recommended that State
parties should act to protect women against violence of any kind especially that
occurring within the family.
2. The phenomenon of domestic violence is widely prevalent but has remained
largely invisible in the public domain. Presently, where a woman is subjected to
cruelty by her husband or his relatives, it is an offence under Section 498A of
the Indian Penal Code. The civil law does not however address this phenomenon in
its entirety.
3. It is, therefore, proposed to enact a law keeping in view the rights
guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a
remedy under the civil law, which is intended to protect the woman from being
victims of domestic violence and to prevent the occurrence of domestic violence
in the society.
(Emphasis supplied)
Keeping these objects and reasons in mind to provide for more effective
protection of the rights of women guaranteed under the Constitution who are
victims of violence of any kind occurring within the family and for matters
connected therewith or incidental thereto, the bill was presented before the
Parliament which has become the Act after passing the same by the Parliament.
Thus, it cannot be lost sight of that the Act has been passed keeping in view
the rights guaranteed under Articles 14, 15 and 21 of the Constitution to
provide for a remedy under the civil law which is intended to protect the woman
from being victims of domestic violence and to prevent the occurrence of
domestic violence in the society. Thus, basically the Act has been passed to
provide the civil remedy against domestic violence to the women. However, as
provided by Sections 27 and 28 of the Act, a Judicial Magistrate of the First
Class or the Metropolitan Magistrate has been empowered to grant a protection
order and other orders and to try the offence under the Act. Vide Section 28 of
the Act, it is mentioned that save as otherwise provided in this Act, all
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and the offences under
Section 31 shall be governed by the provisions of the Code of Criminal
Procedure, 1973. Vide Sub-sections (3) and (4) of Section 19, it is also
provided that a Magistrate may require from the respondent to execute a bond,
with or without sureties, for preventing the commission of domestic violence and
such order shall be deemed to be an order under Chapter VIII of the Code of
Criminal Procedure, 1973 and shall be dealt with accordingly. Chapter VIII of
Cr.PC dealt with security for keeping peace and for good behaviour which runs
from Sections 106 to 124. In these Sections, it is provided that for keeping the
peace and maintaining good behaviour, a person can be directed by a Magistrate
to execute a bond with or without sureties and in case of non-compliance of such
order, that person can be detained into custody. Section 31 of the Act provides
penalty for breach of protection order passed by the Magistrate, which is
punishable as an offence. A protection order can only be passed under Section 18
of the Act. To understand better the provisions of Sections 18 and 31 are
required to be perused, which are as under:
Section 18. The Magistrate may, after giving the aggrieved person and the
respondent an opportunity of being heard and on being prima facie satisfied that
domestic violence has taken place or is likely to take place, pass a protection
order in favour of the aggrieved person and prohibit the respondent from–
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the
person aggrieved is a child, its school or any other place frequented by the
aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved
person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank
accounts used or held or enjoyed by both the parties, jointly by the
aggrieved person and the respondent or singly by the respondent, including her
Stridhan or any other property held either jointly by the parties or separately
by them without the leave of the Magistrate;
(f) causing violence to the dependents, other relatives or any person who
give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
Section 31. (1) A breach of protection order, or of an interim protection
order, by the respondent shall be an offence under this Act and shall be
punishable with imprisonment of either description for a term which may extend
to one year, or with fine which may extend to twenty thousand rupees, or with
both.
(2) The offence under Sub-section (1) shall as far as practicable be tried
by the Magistrate who had passed the order, the breach of which has been alleged
to have been caused by the accused.
(3) While framing charges under Sub-section (1), the Magistrate may also
frame charges under Section 498A of the Indian Penal Code or any other provision
of that Code or the Dowry Prohibition Act, 1961, as the case may be, if the
facts disclose the commission of an offence under those provisions.
The offence under Section 31 of the Act will be cognizable and non-bailable
as provided under Section 32 of the Act.
Section 8 of the Act provides for appointment of the Protection Officer and
Section 33 of the Act provides for penalty for not discharging duty by the
Protection Officer. Despite, as mentioned in the objects and reasons that for
providing a civil remedy, this Act has been enacted, the provisions of Sections
19, 27, 28, 31 to 33 clearly mention that some of the proceedings under the Act
are of criminal nature. Under Sections 19 to 22 of the Act an order to provide
residential facilities, monetary reliefs, custody order for a child and
compensation can be ordered by the Magistrate under the Act. Except a part of
Section 19 with regard to direction of execution of a bond and dealing the same
as provided under Chapter VIII of the Cr.PC, all the reliefs under Sections 18
to 22 appear to be of civil nature. Thus, some of the proceedings under this Act
can be said to be of civil nature and some of the proceedings can be said to be
of criminal nature.
Section 12 of the Act provides that an application (not a complaint) for
seeking one or more reliefs under the Act can be filed. On perusal of Sections
18 to 22 of the Act, it appears that the reliefs under these Sections as
mentioned hereinabove can be passed on the application under Section 12 of the
Act.
The word complaint as appeared in the definition of respondent under
Section 2(q) of the Act has not been defined anywhere in the Act. Although it is
not provided that the definition of complaint can be considered the same as
provided under the Cr.PC but at the same time it is also not prohibited. In view
of this, the definition of complaint can appropriately be seen in Cr.PC which
goes as under:
2. (d) “complaint” means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some person,
whether known or unknown, has committed an offence, but does not include a
police report.
It is clear by this definition that a complaint as provided in Cr.PC can
only be for an offence. As mentioned hereinabove only two offences have been
mentioned in this Act and those are (1) under Section 31 and (2) under Section
33. It appears that this word complaint appeared in the definition of respondent
has been used for initiating proceedings for these two offences and an aggrieved
wife or female living in a relationship in the nature of a marriage has been
given a right to file a complaint against a relative of the husband or the male
partner. This word complaint cannot be considered beyond the scope of the main
provision of this Section which has been defined in first part of Section 2(q)
that is for any relief under this Act. As provided in Section 31 of the Act, a
complaint can be filed against a person who has not complied with a protection
order or interim protection order.
Thus, it is clear by the definition of respondent that for obtaining any
relief under this Act an application can be filed or a proceeding can be
initiated against only adult male person and on such application or under such
proceeding, aforementioned protection order can be passed. Obviously those
orders will also be passed only against the adult male person. As provided under
Section 31 of the Act, non-compliance of a protection order or an interim
protection order has been made punishable and as such it can be said that the
complaint for this offence can only be filed against such adult male
person/respondent who has not complied with the protection order. Hence, it is
clear that the application under Section 12 of the Act which has been filed by
the respondent against petitioner Nos. 3 and 4, who are not adult male persons,
is not maintainable.
(D) The proceeding has also been assailed on the ground that before
issuance of the notice, learned Magistrate has recorded the statement of the
respondent which is not required. It is true that recording of statement as
provided under Sections 200 and 202 of Cr.PC is not required before issuance of
the notice because application under Section 12 of the Act is an application and
not a complaint. However, this action of the learned Magistrate cannot be a
ground for quashing the proceedings because as provided by Sub-section (2) of
Section 28 of the Act, the Court/learned Magistrate is not prevented from laying
down its own procedure for disposal of an application under Section 12 of the
Act.
(E) The proceeding has also been assailed on the ground that no report from
the Protection Officer under Section 12 of the Act has been called.
Sub-section (1) of Section 12 of the Act goes as under:
12. (1) An aggrieved person or a Protection Officer or any other person on
behalf of the aggrieved person may present an application to the Magistrate
seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate
shall take into consideration any domestic incident report received by him from
the Protection Officer or the service provider;
On perusal of the aforementioned proviso appended to the provision, it
appears that before passing any order on the application, it is obligatory on a
Magistrate to take into consideration any report received by him from the
Protection Officer or the service provider. Neither it is obligatory for a
Magistrate to call such report nor it is necessary that before issuance of
notice to the petitioners it was obligatory for a Magistrate to consider the
report. The words before passing any order provide that any final order on the
application and not merely issuance of notice to the respondent/the petitioners
herein. The words any report also mention that a report, if any, received by a
Magistrate shall be considered. Thus, at this stage if the report has not been
called or has not been considered, it cannot be a ground for quashing the
proceeding.
(F) The last ground raised by the petitioners is that in the application
the relief of penalizing the petitioners has been prayed for, which is beyond
the provisions of the Act. On perusal of the last paragraph of the application,
it is prayed that after registration of the case, petitioners be legally
penalized. It is true that at this stage in the application it was not required
for the respondent to claim such relief, however, if it has been claimed, this
cannot be a ground on which the proceedings can be quashed. At the most, such
reliefs if unnecessary, can be negated.
4. Although it is not argued yet it appears appropriate to mention that any
order passed by the learned Magistrate under the Act is appealable as provided
by Section 29 of the Act. Usually when an opportunity to assail the impugned
order in revision or appeal is available, taking recourse under Section 482 of
Cr.PC is not required. However, it is observed by the Apex Court in Para 26 in
the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. ,
that sometime for immediate relief Section 482 of the Code or Article 227 may
have to be resorted to, for correcting some grave errors that might be committed
by the Subordinate Courts. Considering the steps taken by the learned Magistrate
against the petitioner Nos. 3 and 4, this petition has been considered herein.
5. In view of all, as discussed hereinabove, the petition deserves to be partly allowed. Consequently, it is partly allowed. The proceeding against petitioner Nos. 3 and 4 is quashed. It is directed that the learned Magistrate will deal the application as provided under the various provisions of the Act and as observed hereinabove.