Domestic Violence Act, 2005
Querist :
Anonymous
(Querist) 08 February 2011
This query is : Resolved
As per the decision of the High Court of Andhra Pradesh AIR 2009 (NOC) 1544 (A.P.)women cannot be made respondents in an application under this Act. Dissenting opinions were delivered by other High courts. In view of the prevailing inconsistency which view shall prevail? The Courts under the A.P. High Court are following this decision ignoring altogether other considerations which were not dicussed by the above decision. What is the remedy for a victim in this case. Reference to High Court for clarification by a Magistrate is unthinkable in the present frame of mind of Officers. What else can be done?
Devajyoti Barman
(Expert) 08 February 2011
The other courts are free to adopt such view as it thinks best.
RUPESH SHRIVASTAVA
(Expert) 08 February 2011
every justice have their own opinion, which is deffer from another. High court of the another state not bound to follow the order of same jurisdictional court.
G. ARAVINTHAN
(Expert) 08 February 2011
A Bench of High Court in Tamilnadu has ordered, women can be respondents as per Sec 2 q of the DV Act
Parveen Kr. Aggarwal
(Expert) 09 February 2011
Please go through the Judgment passed by the Hon'ble Supreme Court of India (the Bench comprising of Hon'ble Mr. Justice Altamas Kabir and Hon'ble Mr. Justice Cyriac Joseph) on 31.01.2011 in Criminal Appeal No. 271 of 2011, titled 'Sandhya Manoj Wankhade Appellant versus Manoj Bhimrao Wankhade & others Respondents' .
Querist :
Anonymous
(Querist) 09 February 2011
Dear Parveen Kr. Aggarwal Sir,
I am grateful to you for your timely insight about the Apex Court Decision in Sandhya manoj wankhede case. However, I am unable to retrieve the decision due to lack of citation in your reply. Kindly give complete citation of the above case and help me out of this fix.
Parveen Kr. Aggarwal
(Expert) 10 February 2011
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.271 OF 2011
(Arising out of SLP (Crl.) No.2854 of 2010)
Sou. Sandhya Manoj Wankhade ... Appellant
Vs.
Manoj Bhimrao Wankhade & Ors. ... Respondents
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. This Appeal is directed against the judgment
and order dated 5th March, 2010, passed by the
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Nagpur Bench of the Bombay High Court in Crl. W.P.
No.588 of 2009, inter alia, directing the Appellant
to vacate her matrimonial house and confirming the
order of the Sessions Judge deleting the names of
the other Respondents from the proceedings.
3. The Appellant herein was married to the
Respondent No.1 on 20th January, 2005, and the
marriage was registered under the provisions of the
Special Marriage Act, 1954. After her marriage, the
Appellant began to reside with the Respondent No.1
at Khorej Colony, Amravati, where her widowed
mother-in-law and sister-in-law, the Respondent
Nos.2 and 3 respectively, were residing. According
to the Appellant, the marriage began to turn sour
after about one year of the marriage and she was
even assaulted by her husband and by the other
respondents. It is her specific case that on 16th
June, 2007, she was mercilessly beaten by the
Respondent No.1, which incident was reported to the
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police and a case under Section 498-A I.P.C. came
to be registered against him.
4. In addition to the above, the Appellant appears
to have filed a complaint, being Misc. Crl.
Application No.203 of 2007, on 16th July, 2007,
against all the Respondents under Sections 12, 18,
19, 20 and 22 of the Protection of Women from
Domestic Violence Act, 2005, hereinafter referred
to as "the Domestic Violence Act, 2005". An
application filed by the Appellant before the
Judicial Magistrate, First Class, Amravati, under
Section 23 of the above Act was allowed by the
learned Magistrate, who by his order dated 16th
August, 2007, directed the Respondent No.1 husband
to pay interim maintenance to the Appellant at the
rate of 1,500/- per month from the date of the
application till the final disposal of the main
application and also restrained all the Respondents
from dispossessing the Appellant from her
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matrimonial home at Khorej Colony, Amravati, till
the final disposal of the main application.
5. It further appears that the said order of the
learned Magistrate dated 16th August, 2007, was
challenged by Respondent No.1 in Crl. Appeal No.115
of 2007 before the learned Sessions Judge,
Amravati, who by his order dated 2nd May, 2008,
dismissed the said appeal. Aggrieved by the orders
passed by the learned Sessions Judge, the
Respondent No.1 filed Criminal Application No.3034
of 2008 in the High Court under Section 482 Cr.P.C.
challenging the order dated 16th August, 2007 of the
Judicial Magistrate, First Class, Amravati and the
order dated 2nd May, 2008 of the Sessions Judge,
Amravati. The said application was dismissed by the
High Court on 4th September, 2009.
6. In the meanwhile, the Respondent No.2 filed an
application in Misc. Crl. Application No.203 of
2007 in the Court of the Judicial Magistrate, First
5
Class, Amravati, praying for modification of its
order dated 16th August, 2007 and a direction to the
Appellant to leave the house of Respondent No.2.
The said application for modification was dismissed
by the learned Magistrate on 14th July, 2008 holding
that it was not maintainable. Thereupon, the
Respondent Nos.2 and 3 filed Crl. Appeal No.159 of
2008 on 11th August, 2008, under Section 29 of the
Domestic Violence Act, 2005, questioning the orders
passed by the learned Magistrate on 16th August,
2007 and 14th July, 2008, on the ground that being
women they could not be made Respondents in the
proceedings filed by the Appellant under the
provisions of the Domestic Violence Act, 2005, and
that the matrimonial house of the Appellant at
Khorej Colony, Amravati, belonged exclusively to
Ramabai, the Respondent No.2 and mother-in-law of
the Appellant and did not, therefore, come within
the definition of "shared house". The said Criminal
Appeal No.159 of 2008 was allowed by the learned
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Sessions Judge vide his judgment dated 15th July,
2009. The learned Sessions Judge allowed Criminal
Appeal No.159 of 2008 and set aside the judgment
and order dated 14th July, 2008 and also modified
the order dated 16th August, 2007, to the extent of
setting aside the injunction restraining the
Respondents from dispossessing or evicting the
Appellant from her matrimonial house at Khorej
Colony, Amravati. The Respondent No.1 husband was
directed to provide separate accommodation for the
residence of the Appellant or to pay a sum of
1,000/- per month to the Appellant from the date of
filing of the application till its final decision,
in lieu of providing accommodation.
7. In Criminal Writ Petition No.588 of 2009, the
Appellant herein challenged the judgment and order
dated 15th July, 2009, passed by the learned
Sessions Judge, Amravati, in Crl. Appeal No.159 of
2008, claiming that she had a right to stay in her
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matrimonial house. Although, the question as to
whether a female member of the husband's family
could be made a party to the proceedings under the
Domestic Violence Act, 2005, had been raised in
Crl. Appeal No.159 of 2008, the learned Sessions
Judge in his order dated 15th July, 2009, did not
decide the said question and did not absolve the
Respondent Nos.2 and 3 herein in his order, but
only observed that female members cannot be made
parties in proceedings under the Domestic Violence
Act, 2005, as "females" are not included in the
definition of "respondent" in Section 2(q) of the
said Act.
8. The learned Single Judge of the High Court
disposed of the writ petition by his judgment and
order dated 5th March, 2010, with a direction to the
Appellant to vacate her matrimonial house, which
was in the name of the Respondent No.2, with a
further direction to the Trial Court to expedite
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the hearing of the Misc. Crl. Application No.203 of
2007 filed by the Appellant herein and to decide
the same within a period of six months. A further
direction was given confirming the order relating
to deletion of the names of the `other members'.
9. Questioning the said judgment and order of the
Nagpur Bench of the Bombay High Court, Mr. Garvesh
Kabra, learned Advocate appearing for the
Appellant, submitted that the High Court had erred
in confirming the order of the learned Sessions
Judge in regard to deletion of names of the
Respondent Nos.2 and 3 from the proceedings, upon
confirmation of the finding of the Sessions Judge
that no female could be made a party to a petition
under the Domestic Violence Act, 2005, since the
expression "female" had not been included in the
definition of "respondent" in the said Act. Mr.
Kabra submitted that it would be evident from a
plain reading of the proviso to Section 2(q) of the
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Domestic Violence Act, 2005, that a wife or a
female living in a relationship in the nature of
marriage can, not only file a complaint against her
husband or male partner but also against relatives
of the husband or male partner. The term "relative"
not having been defined in the Act, it could not be
said that it excluded females from its operation.
10. Mr. Satyajit A. Desai, learned Advocate
appearing for the Respondents, on the other hand,
defended the orders passed by the Sessions Judge
and the High Court and urged that the term
"relative" must be deemed to include within its
ambit only male members of the husband's family or
the family of the male partner. Learned counsel
submitted that when the expression "female" had not
been specifically included within the definition of
"respondent" in Section 2(q) of the Domestic
Violence Act, 2005, it has to be held that it was
10
the intention of the legislature to exclude female
members from the ambit thereof.
11. Having carefully considered the submissions
made on behalf of the respective parties, we are
unable to sustain the decisions, both of the
learned Sessions Judge as also the High Court, in
relation to the interpretation of the expression
"respondent" in Section 2(q) of the Domestic
Violence Act, 2005. For the sake of reference,
Section 2(q) of the above-said Act is extracted
hereinbelow :-
"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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12. From the above definition it would be apparent
that although Section 2(q) defines a respondent to
mean any adult male person, who is or has been in a
domestic relationship with the aggrieved person,
the proviso widens the scope of the said definition
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.
13. It is true that the expression "female" has not
been used in the proviso to Section 2(q) also, 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, females
would have been specifically excluded, instead of
it being provided in the proviso that a complaint
could also be filed against a relative of the
husband or the male partner. No restrictive
meaning has been given to the expression
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"relative", nor has the said expression been
specifically defined in the Domestic Violence Act,
2005, to make it specific to males only.
14. In such circumstances, it is clear that the
legislature never intended to exclude female
relatives of the husband or male partner from the
ambit of a complaint that can be made under the
provisions of the Domestic Violence Act, 2005.
15. In our view, both the Sessions Judge and the
High Court went wrong in holding otherwise,
possibly being influenced by the definition of the
expression "respondent" in the main body of Section
2(q) of the aforesaid Act.
16. The Appeal, therefore, succeeds. The judgments
and orders, both of the learned Sessions Judge,
Amravati, dated 15th July, 2009 and the Nagpur
Bench of the Bombay High Court dated 5th March,
2010, in Crl. Writ Petition No.588 of 2009 are set
13
aside. Consequently, the trial Court shall also
proceed against the said Respondent Nos.2 and 3 on
the complaint filed by the Appellant.
17. The appeal is allowed accordingly.
................................................J.
(ALTAMAS KABIR)
................................................J.
(CYRIAC JOSEPH)
New Delhi
Dated:31.01.2011
