Thursday, 3 March 2011

Respondent includes Male & Female relative

DV Act, S.2(q) – Respondent includes Male or Female relative. (DOJ: 17-02-2010) (R.Vivendran and 5 others Vs. Nivashini Mohan alias M.Nivashini) (C.Nagappan and P.R.Shivakumar, JJ) 

For FULL Judgment at: http://judis.nic.in/chennai/qrydisp.asp?tfnm=23992


IN THE HIGH COURT OF JUDICATURE AT MADRAS


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).


                 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."


                 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.


                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.

vks


Courtesy_

http://judis.nic.in/chennai/qrydisp.asp?tfnm=23992



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This Blog Spot is meant for publishing reports about the usage of Domestic Violence Act (The Protection of Women from Domestic Violence Act, 2005) so as to create an awareness to the general public and also to keep it as a ready reckoner by them. So the readers may extend their gratitude towards the Author as we quoted at the bottom of each Post under the title "Courtesy".