Dear Dawood ahmed Sir
In Afzalunnisa Begum and others V. the state matter A.P. high court has remained same but with distinct view.
Here is judgment
Citation: [ AIR 2009 (NOC) 2840 (A.P.) :: 2009 CRI. L. J. 4191 (ANDHRA PRADESH HIGH COURT) ]
Afzalunnisa Begum & etc. vs State of A.P. & Anr.
Cri. Petn. No. 7160 of 2008 - Decided On 02/06/2009
Protection of Women from Domestic Violence Act, 2005 - S. 2(q), 12 — Complaint of domestic violence — Word ‘respondent’ in 2 (q) — Would also include female relative of husband.
The definition of ‘respondent’ as defined under Sec. 2 (q) of the Act would clearly go to show that any adult male person can only be shown as respondent when the aggrieved person has sought any relief under the Act. But the proviso, which had an expanded meaning, says 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. The proviso deals with complaint against two categories of persons i.e., (1) a relative of the husband or (2) the male partner. Further “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. The aggrieved person may present an application to the Magistrate seeking one or more reliefs under Sec. 12 of the Act.
The statement of objects makes it clear that the complainant shall be necessarily be a woman and the respondent also shall necessarily be a male except in case where the complainant is a wife, the respondent may be a female relative of the husband or male partner. The definition of the expression “domestic relationship” also has to be taken into consideration in appreciating the meaning of the word “respondent” and the purpose for which legislation was enacted from the preamble attached to the Act. Thus, the Act do not exclude women altogether in a proceeding initiated under the Act.
Consequently, the ‘respondent’ as defined under Section 2 (q) of the Act includes a female relative of the husband depending upon the nature of the reliefs claimed against the respondent in the Domestic Violence case.
A. GOPAL REDDY, J. :— A short question that arises for consideration in these two criminal petitions filed under Section 482 Cr.P.C., is whether ‘respondent’ as defined under Section 2 (q) includes a female person or not under the Protection of Women from Domestic Violence Act, 2005 (for short “the Act”).
2. When the criminal petitions were taken up for hearing by one of us (KCB, J), learned brother appears to have been felt that the matter should be decided by a Division Bench and accordingly directed the Registry to place the matter before the Honourable the Chief Justice for constitution of appropriate Bench for deciding the issue. Therefore, the petitions thus listed before us.
3. The facts in nutshell leading to filing of the petitions are thus:
Crl. Petition No. 7160/2008 is filed by the petitioner for quashing the proceedings in DVC No.35/2008 on the file of VI Additional Chief Metropolitan Magistrate, Hyderabad, which was filed by the second respondent who is the daughter-in-law of the petitioner against her husband (1st respondent in DVC) and the petitioner herein claiming reliefs under Sections 18, 19 (a) & (b), 20(1)(d) and for compensation alleging domestic violence.
4. Crl. Petition No. 8495/2008 is filed by the petitioners for quashing the proceedings in DVC No.7/2008 on the file of IV Additional Metropolitan Magistrate, Visakha-patnam, which was filed by the second respondent herein against her husband, the first petitioner herein and parents-in-law of the first respondent claiming reliefs under Sections 18, 19 and 20.
5. Learned counsel for the petitioners in both the criminal petitions contended that the domestic violence case against the petitioners is not maintainable in view of the definition of ‘respondent’ in Sec.2(q) of the Act, but the same can be filed only against any adult male person but not against female persons. To buttress the said submission, reliance is placed on the judgment of this court in Smt. Menakuru Renuka and others v. Smt. Menakuru Mona Reddy and others, unreported judgment of AP High Court in Crl.P.No.4106/2008 dt. 22-10-2008 (reported in 2009 Cri LJ (NOC) 819) and judgment of the Madhya Pradesh High Court in Ajay Kant v. Alka Sharma, 2008 Cri LJ 264.
6. In Smt. Menakuru Renuka (supra) this court after noticing the judgment of the Madhya Pradesh High Court in Ajay Kant (supra) held that female members cannot be made as respondents in the proceedings under the Act.
7. In Ajay Kant, (2008 Cri LJ 264) (supra), the Madhya Pradesh High Court dealt with the notice issued by the Magistrate to the petitioners on an application filed under Sec. 12 of the Act. Learned single Judge after referring to the definition of respondent in Sec. 2(q) and Statement of Objects and Reasons for enacting the Act held that for obtaining any relief under the Act, an application can be initiated against only adult male person and on such application or under such proceeding, protection order can be passed; those orders will also be passed only against the adult male person and as provided under Sec. 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, and it is clear that the application under Section 12 of the Act which has been filed by the respondent against petitioners No.3 and 4 who are not adult male persons is not maintainable and accordingly quashed the proceedings against petitioners 3 and 4 therein.
8. When the above two judgments were brought to the notice of the learned brother, he was of the view that proviso to the definition ‘respondent’ has not properly been considered, once implied power is conferred on the Magistrate in disposing of the application under sub-section (1) of Sec. 12 of the Act except orders under cl.(b) of Sec.19 (1). If really the definition of ‘respondent’ means and includes only an adult male person, such proviso to Section 19 of the Act would not have been incorporated. Accordingly referred the matter to the Division Bench for an authoritative pronouncement.
9. Before answering the reference, we may vivify the discussion by quoting the provisions of direct concerned in this case.
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 to 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.
3. Definition of domestic violence.
For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it :-
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, s*xual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
12. Application to Magistrate.
(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 applications, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) to (5) x x x x x
18. Protection orders.
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 dependants, 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.
19 Residence orders.
(1) While disposing of an application under sub-sec. (1) of Sec. 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order -
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
‘Provided that no order under clause (b) shall be passed against any person who is a woman.’
(2) x x x x
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) x x x x
(5) x x x x
(6) While making an order under sub-sec. (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) x x x x x
21 Custody orders.
Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children of the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:
Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.
31 Penalty for breach of protection order by respondent.
(1) A breach of protection order, or of any interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either descripttion 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-sec. (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-sec. (1), the Magistrate may also frame charges under Sec. 498-A of the Indian Penal Code, 1860 (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961) as the case may be, if the facts disclose the commission of an offence under those provisions.
10. It is fairly well settled that reference to the Statement of Objects and Reasons is permissible for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute and the evil, which the statute was sought to remedy. Keeping in view of the same for understanding the above provisions, it is necessary to notice the scheme of the Act as explained in the Statement of Objects and Reasons under Bill No.116 of 2005 for passing the Act was placed before the Parliament are as under:
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 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.
(ii) to (v) x x x x.
11. The definition of ‘respondent’ as defined under Sec. 2(q) of the Act would clearly go to show that any adult male person can only be shown as respondent when the aggrieved person has sought any relief under the Act. But the proviso, which has an expanded meaning, says 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. The proviso deals with complaint against two categories of persons i.e.., (1) a relative of the husband or (2) the male partner. If we restrict the meaning only to the male persons, a relative of the husband will become redundant. Further “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. The aggrieved person may present an application to the Magistrate seeking one or more reliefs under Sec. 12 of the Act. It is the duty of the Protection Officer appointed under Sec. 8 to assist the Magistrate in the discharge of his functions; to make a domestic incident report to the Magistrate; to make an application in such form and in such manner as prescribed to the Magistrate and to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 for availing the reliefs etc.
12. Section 19 of the Act provides for disposal of applications made under sub-section (1) of Section 12 by the Magistrate. Under sub-section (1) of Section 19, the Magistrate can pass any order against a female person other than the orders under Cl.(b). Whereas proviso to sub-section (1) of Section 19 puts a bar on the power of the Magistrate for passing an order against any person who is a woman under Sec. 19(1) (b). In other words, except residence order under Section 19(1) (b), it is competent for the Magistrate to pass orders against the relatives of the husband including a female person under Sec. 19(1)(c) i.e., restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides. For example, if the aggrieved person along with her husband resides in a house owned by joint family including the presents of the respondent, his brothers and sisters, if any, whether or not the respondent has no legal or equitable interest or title in the shared household, he can be restrained from dispossessing the aggrieved person. If the property stands in the name of in-laws of the aggrieved person divided among the joint family and a portion of which is in occupation of the respondent, the person in whose name the property stands i.e.., the relatives of the respondent can also be restrained from dispossessing the person aggrieved or entering any portion of the shared household where the aggrieved person resides. Further under sub-section (8) of Section 19, if an aggrieved person was provided with residential house towards her Stridhan, which is in occupation of the relatives of the husband, the Magistrate can direct the respondent including the female relative of the husband for return of the possession of Stridhan property or valuable security, namely, gold jewellery etc., which was in possession of the female member of the husband. Sec.21 of the Act deals with grant of temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specifies necessary arrangements for visit of such child or children by the respondent. For instance, if the children are under the custody of mother-in-law of an aggrieved person, if we give a restricted meaning to Sec. 2(q), no such order can be passed for giving temporary custody of the child against a female relative of the husband i.e.., father, mother who are residing jointly.
13. Section 31 deals with penalty for breach of protection order or an interim protection order by the respondent including a female person who committed breach of protection order. Sub-section (3) of Section 31 authorizes the Magistrate while framing charges under sub-section (1) of Section 31 can also frame charges under Sec. 498-A IPC or any other provisions of IPC or the Dowry Prohibition Act, 1961, as the case may be, if the facts disclose the commission of an offence under Sec. 498-A IPC or any other provisions of IPC or the Dowry Prohibition Act, 1961. That means, the Magistrate can always frame charges against the female relatives of the respondent who committed an offence under Section 498-A or any other provision of IPC or the Dowry Prohibition Act, 1961.
14. It is well settled principle of law that for the interpretation of statute, attempt must be made to give effect to all the provisions. No provision should be considered as surplusage.
15. The Bill under Cl.4 (i) of the Statement of Objects and Reasons seeks to cover those women who are or have been in a relationship with the abuser where both parties have lived together in a shred 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. 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.
16. Thus the above statement of objects makes it clear that the complainant shall be necessarily be a woman and the respondent also shall necessarily be a male except in cases where the complainant is a wife, the respondent may be a female relative of the husband or male partner. The definition of the expression “domestic relationship” also has to be taken into consideration in appreciating the meaning of the word “respondent” and the purpose for which legislation was enacted from the preamble attached to the Act.
17. In view of the above, we are of the view that the Act do not exclude women altogether in a proceeding initiated under the Act.
18. We accordingly answer the reference as under:
The ‘respondent’ as defined under Section 2(q) of the Act includes a female relative of the husband depending upon the nature of the reliefs claimed against the respondent in the Domestic Violence Case.
19. In view of answering the reference, the Registry is directed to post the criminal petitions before the appropriate court for passing necessary order.
Order accordingly.
