Mumbai HC: women relatives can be respondents under Domestic Violence Act

A 2008 judgment of Mumbai HC is given below providing scope for female relatives of husband/man to be respondents under 2(q) of PWDVA.  However, it does not mean that all reliefs can also be claimed from female respondents as highlighted in judgment below.

————————————————————————————————

IN THE HIGH COURT OF JUDICATURE AT BOMBAY  CRIMINAL APPELATE
JURISDICTION

       CRIMINAL REVISION APPLICATION NO.590 OF 2008    Archana Hemant Naik

…Applicant  vs.

Urmilaben I. Naik and Anr. …Respondents  Ms Anjali Helekar for the applicant

Mr.C.M.Kothari for respondent no.1

CORAM :A.S.OKA,J.

   DATE OF HEARING THE LAST ARGUMENT: JULY 3, 2009  DATE OF PRONOUNCEMENT OF

THE JUDGMENT: AUGUST 25,2009    JUDGMENT :

1 The revision applicant is an applicant in an  application under section 12 of
the Protection  of Women from Domestic Violence Act,2005  (hereinafter referred
to as the said Act). In  the said application, the applicant had  impleaded six

opponents. The first opponent  Hemant is the husband of the applicant. The
applicant married to said Hemant on 9th May 1986.  The second opponent in the
said application is  the brother- in-law of the revision applicant. 2

The fourth opponent is the wife of the second  opponent. The third opponent is
the mother-in-  law of the revision applicant. The third  opponent in the said
application has been  impleaded as the first respondent in this  revision

application. The fifth opponent in the  said application under section 12 of the
said  Act is the sister-in-law of the revision  applicant. The sixth opponent in
the application  is the husband of the fifth opponent.    2 According to the

case made out by the  revision applicant, she was residing along with  her
husband and her in-laws in the house by the  name Jagan Villa at Nani-Daman.
According to  the case of the revision applicant, on 22nd June  2004 in the

afternoon, she was assaulted and  thrown out of the said house by her husband.
It  is alleged that the revision applicant was  working as a teacher and while
she was staying  with her husband, her entire salary was being  taken by her

husband and in-laws and therefore  she has no savings. In the application, she
has 3

referred to the criminal complaint filed by her  as well as a petition for
divorce filed by her  husband against her. By filing the said  application under

section 12 of the said Act,  she claimed maintenance from her husband. She  also
claimed house accommodation or share of her  husband in her father-in-law s two
bungalows by  the name Jagan Villa and Mani Villa at Nani  Daman. In the said

application under section 12  of the said Act, the revision applicant applied
for interim order under section 23 of the said  Act. The said application was
opposed by the  opponents to the said application. A reply was  filed by the

opponents to the said application  for contesting the said application. The
allegations made by the revision applicant were  denied in the said reply. It
was contended that  the proceedings against the said Act can be  initiated only

against the male persons and  therefore, the proceedings as against the
opponent nos.3,4 and 5 was not maintainable. It  was contended that the opponent
no.1-husband  has no title to the houses in respect of which 4

reliefs were claimed. It is contended that the  opponent no.1 was residing in
the house of his  mother, i.e, the first respondent herein and  therefore the
house in respect of which relief  was sought by the revision applicant cannot be

termed as a shared household. The learned  Magistrate by order dated 5th March
2008 granted  interim relief directing the husband of the  revision applicant to
allow the residence of the  applicant with him in house 14-113/C  (hereinafter

referred to as the said house).  The learned Magistrate directed the opponent
no.  2 Manoj and his sister Varsha not to create any  panic in any form of
harassment to the  applicant. The husband was directed to observe  and follow

the order. The officer in charge of  Nani Daman police station was directed to
make  available one male and one female constable to  the applicant as per her
demand for her  protection. The protection officer was directed  to assist the

revision applicant for enforcement  of the order.

                                 5

3 The first respondent (mother-in-law of the  revision applicant) preferred an
appeal for  challenging the said order. The main contention  in the appeal was

that the first respondent  purchased two plots at Narayan Park, Nani Daman
under a sale deed dated 5th February 1998 and  thereafter, she had constructed
the said house  bearing No.14/113/C (Jagan villa). The case is  that the said

house is exclusively owned by her.    4 By Judgment and Order dated 2nd
September  2008, the Appeal was allowed by setting aside  the order of the
learned Magistrate to the  extent to which it affected the first respondent  and

other female opponents. The main  application as against the female opponents
was  dismissed. The learned Sessions Judge held that  the proceedings under
section 12 of the said Act  was not maintainable against female persons in  view

of section 2 (q) of the said Act. The  learned Judge held that the documents
placed on  record show that the first respondent was the  owner of the said
house and therefore, the said 6

house cannot be treated as a shared household.    5 By order dated 20th April

2009, this revision  application was ordered to be disposed of  finally at the
stage of admission. The learned  counsel for the applicant submitted that the
learned Sessions Judge has committed an error by  holding that an application

under section 12 of  the said Act was not maintainable against the  female
relatives of the husband. She pointed  out that the reference in section 2 (q)
of the  said Act to the relatives of the husband is  also to the female

relatives of the husband.  She pointed out the proviso to sub section 1 of
section 19 of the said Act which provides that  the order under clause (b)
directing the  respondent to remove himself from the share  household cannot be

passed against any person  who is a woman. The learned counsel submitted  that
the very fact that the said proviso finds  place in the said Act shows that the
an action  is maintainable against the female relatives of  the husband except

where a relief under clause 7

(b) of sub section 1 of section 19 has been  prayed for. She submitted that the
learned  Sessions Judge has narrowly construed the  definition of section 2 (s)
of the said Act.  The very purpose of enacting the said Act will  be defeated if

the narrow interpretation put by  the learned Sessions Judge to the provisions
of  the said Act is accepted. She, therefore,  submitted that the impugned order
of the learned  Sessions Judge is perverse.

6 The learned counsel for the first respondent  placed reliance on the

decision of the Apex  Court in the case of S.R.Batra and another Vs.  Taruna
Batra [(2007) 3 SCC 169]. He submitted  that in view of the said decision,
merely  because the applicant stayed with her husband in  the house of the first

respondent, the said  house does not become a shared household within  the
meaning of section 2(s) of the said Act.  He pointed out that the Apex Court has
held that  in order to claim right to a house as a shared  household, the house

must belong to the husband 8

or it must have been taken on rent by the  husband. A house which is owned by
the joint  family of which the husband is a member can also  be a shared
household. He submitted that no  such right has been established by the revision

applicant and on the contrary the documentary  evidence on record shows that the
said house was  exclusively owned by the first respondent.  Relying upon another
decision of in the case of  Vimlaben Ajitbhai Patel Vs. Vatsalaben A. Patel

[(2008) 4 SCC 649], he submitted that the entire  burden was on the revision
applicant to prove  that the house was a shared household. He  placed reliance
on the decision of Madhya  Pradesh High Court in case of Ajay Kant and  others

Vs. Smt.Alka Sharma [(2008) Cri.L.J.  264]. He submitted that the Madhya Pradesh
High  Court held that the proceedings under section 12  of the said Act was
maintainable only against an  adult male person. He also relied upon the

decision of Andhra Pradesh High Court in the  case of Meenakuru Renuka and
others vs. Menakuru  Mona Reddy and another [AIR 2009 (NOC) 1544]. 9

He submitted that the said High Court held that  the complaint under section 12

as against the  female relatives of the husband was not  maintainable.

7 I have carefully considered the submissions.  The proceedings under the said
Act is to be  initiated by way of making an application to  the court of a

Magistrate. The application is to  be filed by an aggrieved person . The
application can be also filed by the  protection officer or by any other person
on  behalf of the aggrieved person. An aggrieved  person has been defined by

clause (a) of  section 2. An aggrieved person can be any  woman. A woman can be
an aggrieved person 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. Under section 2 of the said Act,  domestic violence
has been defined by clause  (g) which provides that domestic violence has  the
same meaning assigned under section 3. 10

Section 3 reads thus :

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 injuries 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, sexual abuse, verbal and
emotional abuse

          and economic abuse; or

          (b)harasses, harms, injuries or endangers the aggrieved person with a
view to coerce her or any other 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 injuries or causes harm,

                 whether physical or mental, to the

                 aggrieved person.

                 Explanation I For the purposes of 11

         this section-

         (i) physical abuse means any act or conduct which is of such a nature
as

         to cause bodily pain, harm, or danger to life, limb, or health or

         impair the health or development of

         the aggrieved person and includes assault, criminal intimidation and
criminal force;

         (ii) Sexual abuse includes any conduct of a sexual nature that abuses,
humiliates, degrades or otherwise violates the dignity of woman;

         (iii) verbal and emotional abuse includes-

                                (a) insults, ridicule,

               humiliation, name calling and insults or ridicule specially with
regard to not having a child or a male child; and

                                (b) repeated threats to

               cause physical pain to any  person in whom the aggrieved  person
is interested.

(iv) economic abuse includes –

         (a) deprivation of all or any  economic or financial resources to

which

                     12

the aggrieved person is entitled under

any law or custom whether payable under

an order of a court or otherwise or  which the aggrieved person requires out

of necessity including, but not limited

to, household necessities for the  aggrieved person and her children, if  any,
stridhan, property, jointly or  separately owned by the aggrieved  person,
payment of rental related to the

shared household and maintenance;

(b) disposal of household effects, any

alienation of assets whether movable or

immovable, valuables, shares,  securities, bonds and the lands or other

property in which the aggrieved person

has an interest or is entitled to use by

virtue of the domestic relationship or

which may be reasonably required by the

aggrieved person or her children or her

stridhan or any other property jointly

or separately held by the aggrieved  person; and

                           13

     (c)prohibition or restriction to  continued access to resources or
facilities which the aggrieved person is

     entitled to use or enjoy by virtue of

     the domestic relationship including  access to the shared household.

     Explanation II- For the purpose of  determining whether any act, omission,

     commission or conduct of the respondent

     constitutes domestic violence under  this section, the overall facts and
circumstances of the case shall be taken

     into consideration.

4. The word respondent has been defined by  section 2 (q) which reads as
follows:

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 14

           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 The first part of clause (q) provides that  the respondent means any adult
male person who  is or has been in domestic relationship with the  aggrieved
person and against whom the aggrieved  person has sought any relief under the

said  Act. The proviso carves out an exception to  the rule that a respondent
can be only adult  male person. It provides that either an  aggrieved wife or
female living in relationship  in the nature of marriage may also file a

complaint against the relative of the husband or  male partner. Reference to the
male partner in  the proviso is because the proviso applies to a  female living
in relationship in the nature of  marriage. Thus, the aggrieved wife or female

to whom the proviso to section 2 (q) is  applicable, can file a complaint
against a  relative of the husband or a relative of her  male partner. The
proviso carves out an 15

exception to the definition of respondent in  section 2 (q). In the two cases

where proviso  is applicable, an application under section 12  will lie even
against a relative of the husband  or male partner, as the case may be. It is
important to note that the proviso refers to a  relative and not to a male

relative. The  definition of domestic relationship under  section 2(f) is very
wide. However, a domestic  relationship between a wife and a husband or a
female and a male partner are the only two  categories included in the proviso

to section  2(q). The question to be decided is whether  a relative of the
husband or a relative of the  male partner referred to in the proviso to  clause
(q) of section 2 can only be a male  relative?

9 Under the said Act, different kinds of  reliefs can be granted to the

aggrieved  persons. The said reliefs are as under :  (a) Protection order under
section 18 for prohibiting acts of domestic 16

            violence.

            (b) Residence orders under section 19,

            in relation to a shared household

            (c)Monetary reliefs under section 20 in the nature of medical
expenses or maintenance etc.

            (d) Custody orders under section 21 relating to children; and

            (e) Compensation orders under section 22.

10 Under section 23 of the said Act, power to  grant interim and ex parte ad-
interim orders in  terms of sections 19, 20, 21 or 22 of the said  Act has been

conferred on a Magistrate. It  must be borne in mind that in view of the
definition in section 2 (q), normally the  respondent can only be an adult male
person. By  virtue of proviso, in certain cases to which  the proviso applies,

any relative of the husband  or male partner, as the case may be, can be a
respondent. As stated earlier, proviso applies  when the aggrieved person is a
wife or a female  living in a relationship in the nature of  marriage. If such

aggrieved wife or female  files a complaint, she can do so even against 17

a relative of the husband or a relative of the  male partner, as the case may
be. The question  is whether such relative can be a female. In  this context it

will be necessary to consider  section 19 of the said Act which reads thus :
19 Residence orders (1) While disposing of an  application under sub section (1)
of section 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 ;

                                    18

        (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 require:

. Provided that no order under clause (b) shall be passed against any person
who is a woman.

11 As per the proviso to section 2(q), in  case of any aggrieved wife or a
female living in  a relationship in the nature of marriage, the  relative of the

husband or male partner can be  a respondent. If a wife or a woman to whom the
proviso is applicable is compelled to seek  residence order in respect of a
shared  household only as against the male relatives of  her husband or male

partner, as the case may  be, the order under section 19 of the said Act  will
be completely ineffective in as much as  the female relatives of the husband or
the 19

male partner occupying the shared household will  continue to disturb possession

of such wife or  such female of the shared household, or may  continue to
prevent entry of such aggrieved  wife or female to the shared household. On
plain reading of the proviso to section 2(q) it  is clear that a relative

referred to in the  proviso is not only a male relative. The main  section
specifically uses the word male Even  the proviso refers to male partner.
Therefore, whenever the legislature intended,  the word male has been used in

the main  section and its proviso. But while referring to  relative of the wife
or the woman referred to in  proviso, the word male has not been used.  In case
of two domestic relationships covered by  proviso to section 2(q) viz; (i)

relationship  between wife and husband and (ii) a relationship  in the nature of
marriage between a female and  her male partner, the respondent can be any
relative of the husband or male partner. It  cannot be the intention of the

legislature that  the relative in the proviso can only be a 20

male relative. This fact is abundantly clear  from the proviso to sub section 1
of section 19.  The legislature has clarified by the said  proviso that an order

in terms of clause (b) of  sub-section (1) of section 19 cannot be passed
against a person who is a woman. The very fact  that proviso to sub-section (1)
of section 19  has been enacted shows that an order under some  other clauses of

sub-section (1) of section 19  except clause (b) can be passed against a woman
who is a relative of the husband or the male  partner to whom the proviso to
section 2(q)  applies. If a narrow interpretation is put to  proviso to section

2 (q) to the effect that the  relative referred to therein is only a male
relative, the aforesaid proviso to sub-section  (1) of section 19 becomes
meaningless. If it is  accepted that in no case a relief under section  19 can

be granted against a woman, then the said  proviso to sub-section (1) becomes
redundant.  The legislature contemplated that the residence  order under sub-
section (1) of section 19 could  be passed even against any female who is a 21

relative of a husband or a relative of a male  partner referred to in the
proviso to section  2(q) and therefore, the proviso to sub-section  (1) has been
enacted to prevent an order of  dispossession under clause (b) being passed

against a woman relative of the husband or a  male partner.

12 Under clause (a) of sub-section (1) of  section 19 the respondent can be
restrained from  disturbing the possession of the aggrieved  person of the

shared household whether or not  the respondent has any legal or equitable
interest in the shared household. In a case  where an aggrieved person is a wife
or a female  referred to in proviso to sub-section 2(q), if  the relative of the

husband or the male partner  was to include only the male relative, the  grant
of residence order in terms of clause (a)  will serve no purpose and will become
redundant  as such order will not bind the female relatives  of the husband or

the male partner, as the  case may be, who are residing in the shared 22

household. The same is the case with the  residence order under clause (c) of
sub section  (1).

13 It must also be remembered that section 2(q)  specifically uses the word

adult male member  or male partner. If the intention of the  legislature was
that the relative of the  husband or the male partner referred to in the
proviso has to be only a male relative, the  legislature would have specifically

used the  word male in the proviso. As set out  earlier, there is another reason
why the  relative of the husband or male partner referred  to in the proviso to
section 2(q) cannot be  only a male relative. The said reason is that  the

proviso to sub-section (1) of section 19  clearly implies that the residence
order in  terms of any of the clauses of sub-section (1)  of section 19 except
clause (b) can be passed  against a respondent who is a woman. It is  obvious

from the the proviso to section 2(q)  that a woman can be a respondent only in a
case 23

where the aggrieved person is the wife or the  female referred to in proviso to
clause (q) of  section 2. From the proviso to sub-section (1)  of section 19 it

becomes crystal clear that the  word relative used in proviso of section 2(q)
is not restricted to a male relative of the  husband or a male relative of the
male partner.  Therefore, the word relative in proviso to  section 2(q) includes

a female relative.

14 The relevant part of the statement of  objects and reasons of the said Act
reads thus:  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, 24

              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 complaint against the wife

              or the female partner.

                                    (emphasis added)

Thus even the statement of objects and reasons  also refers to `any relative

of the husband or  the male partner. In my considered view, the 25

relative within the meaning of proviso to  section 2(q) cannot be only a male
relative and  the relative referred to in proviso to clause  (q) of section 2

can also be a female relative  of the husband or the male partner, as the case
may be. Thus, when an aggrieved person is a  person to whom the proviso to
section 2(q) is  applicable, a respondent in the application  under section 12

can be a male or a female  relative of the husband or the male partner, as  the
case may be. If an application under  section 12 is filed by such aggrieved
person,  i.e, the wife or the female to whom proviso to  section 2(q) is

applicable, or is filed on  behalf of such aggrieved persons, a female  relative
of the husband or the male partner can  be a respondent However, whether a
relief can  be granted against the female relative of the  husband or the male

partner will depend on the  nature of the reliefs sought and the facts and
circumstances of the case. As stated earlier,  some of the reliefs such as a
relief under  clause (b) of sub-section (1) of the section 19 26

can never be granted against the female relative  of husband or the male
partner. Similarly, as  held by the Apex Court in the case of S.R.Batra
(supra), a relief under clause (f) of sub-  section (1) of section 19 cannot be

granted  against a relative of the husband or the male  partner. A relief can be
granted against a  female relative of a husband or a male partner  only if a
relief against such a relative is  capable of being granted under sections 18 to

22  of the said Act.

15 Perusal of the decisions of Madhya  Pradesh and Andhra Pradesh High Courts
shows  that the aforesaid aspects have not been  considered by the High Courts.
To that extent  the learned Sessions Judge has committed an  error.

16 Now, it will be necessary to go back to  the facts of the case. The
applicant is  claiming a relief in respect of a house which  according to her is
a shared household. It is  observed in the impugned Judgment that 27

documents placed on record which have not been  disputed by the revision
applicant show that  the alleged shared household is standing in the  name of
her mother-in-law, i.e, the first  respondent. A copy of the application under

section 12 filed by the revision applicant is  placed on record. In the said
application, it  is alleged that the house was owned by the  father-in-law who
is no more. However, as held  by the Sessions Court, the documents on record

show that the house stands in the name of the  mother-in-law. In view of the law
laid down by  the Apex Court in the case of S.R.Batra and  another (supra),
while considering the  application for interim relief, the learned  Sessions

Judge was right in holding that the  documents placed on record prima facie show
that  the property claimed by the applicant is the  property of her mother-in-
law. It must be  noted that the learned Judge was not finally  deciding the

application under section 12 but  was dealing with an application for interim
relief. Therefore, it is not possible to find 28

fault with the impugned order. However, the  learned Sessions Judge has
committed an error by  ordering deletion of the names of the female  relatives

of the husband in as much as this case  is covered by the proviso to section
2(q) of the  said Act.

17 Hence, I pass the following order :  i)That part of the impugned order, by
which  application under section 12 of the said Act  has been dismissed against

the female  relatives of the applicant,is quashed and  set aside. It is
clarified that the female  family members of the husband will continue  to be
respondents to the application.

ii)Rest of the impugned order stands  confirmed.

    iii)It is made clear that the learned trial  Judge will decide the main
application under  section 12 of the said Act without being  influenced by the
impugned order passed by  the Sessions Court. The findings recorded  by the

Sessions Court are only prima facie 29

findings.

iv)Revision Application is partly allowed  in above terms.

                         JUDGE