@JUDGMENTTAG-ORDER
S. Vimala, J.@mdashThe complainants, i.e., the wife and children of the deceased Vishal Bathija, in the Domestic Violence Petition No. 14 of 2013 on the file of Judicial Magistrate No. VII, Coimbatore, sought for Protection Order under ''Section 18, Residential order u/s 19, Monetary Relief of Rs. 1 lakh per month u/s 20 and compensation order for Rs. 50 lakhs u/s 22 of the Protection of Women from Domestic Violence Act (hereinafter referred to as ''D.V. Act''). The complaint was against her in-laws, namely, husband''s brother (brother-in-law), husband''s brother''s wife (co-sister), mother-in-law and husband''s sister (sister-in-law), who are respondents 1 to 4 in the complaint.
2. The fourth respondent in the complaint, i.e., sister-in-law of the complaint, is the revision petitioner in Crl. R.C. No. 565 of 2013. The notice issued to her dated 1.4.2013 and all further proceedings are sought to be set aside in this revision petition.
2.1. The respondents 1 to 3 in the complaint, i.e., brother-in law, co-sister and mother-in-law, are the revision petitioners in Crl. R.C. No. 630 of 2013. The notice issued to them and all further proceedings are sought to be set aside in this revision petition.
2.2. Parties in these revisions are referred to as per the status assigned to them in the Domestic Violence Petition filed before the Magistrate, for the sake of convenience.
Brief Facts
3. The first petitioner, Pooja Vishal Bathija, got married to Mr. Vishal Bathija, son of Mr. Kanaiyalal Bathija (since deceased) and the third respondent in the complaint, on 13.8.2000. The second petitioner Sanya V. Bathija and the third petitioner, Isha V. Bathija, were born respectively on 30.8.2003 and 22.10.2004. The husband of the first petitioner died in a road accident on 29.6.2005.
3.1. Immediately after marriage, the first petitioner lived along with her husband in a joint family and the complainant''s husband, his father and his elder brother were engaged in joint business. Apart from the joint business, the complainant''s husband had a separate, real estate concern of his own. At the time of marriage there was an assurance that there would be no demand for dowry. But, to the dismay of complainant, she was insulted and harassed for bringing less dowry. She was also humiliated on account of the fact that the children were girl children and not a male child. After the death of the complainant''s husband, the complainant and her children were not treated well and they were abused and humiliated.
3.2. Thereafter, i.e., after nine months of the death of the complainant''s husband, the father-in-law created a trust in the name of her husband, for the benefit of the minor children, dated 24.3.2006. But, after the death of her father-in-law in 2009, the position of the complainant became worse. Without the knowledge and consent of the complainant, arrangements were made for the second marriage. When this was opposed, her signatures were obtained in papers by force and she was attempted to be driven out of the house. On 26.9.2010, there was a complaint by the complainant before B-11 Police Station, which was ultimately withdrawn on account of the promise made by the in-laws. Pursuant to the altercation, she was driven out of the house and after panchayat, the brother-in-law agreed to pay a monthly sum of Rs. 40,000/- for her expenses and a sum of Rs. 1 lakh for the education of the minor children of the complainant. The complainant was also given a flat to reside.
3.3. The annual educational fund was not provided for the year 2011. Therefore, a complaint was preferred before the Commissioner of Police on 26.3.2011. Though a cheque was issued, later on, the cheque was dishonored on account of stop payment'' instruction given. From January 2012 onwards, the complainant did not receive her monthly payment. She was also threatened with displacement. Therefore, seeking reliefs as described above, complaint was filed under the provisions of the D.V. Act.
I. Maintainability of revision petitions:
4. The learned counsel for the complainant submitted that the revision petitions are not maintainable, in view of the availability of remedy of the appeal as provided u/s 29 of the D.V. Act which reads as thus:
29. Appeal-There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
4.1. The specific contention is that when a specific remedy by way of appeal or by way of alteration, modification or revocation has been provided under the Act, prima facie, a revision petition u/s 397 Cr.P.C. is not maintainable. In support of the contention, the decision in Mohd. Akber Yaseen and Others v. Smt. Rizwana Sulthana and Others on 7.7.2010 in Crl. R.C. No. 167 of 2010, is relied upon, whereunder it has been held as follows:
2. Assuming for a moment for the sake of argument that issuing of notice in a domestic violence case amounts to an order passed by the Magistrate and further a judicial order passed by the Magistrate, even then the revision petition u/s 397 is not maintainable, because any order passed by the Magistrate is appealable u/s 29 of the Act. The petitioners cannot bypass remedy of appeal and approach directly this Court u/s 397 Cr.P.C. by way of this revision petition.
4.2. On the other hand, the learned counsel for the revision petitioners/in-laws submitted that revisional jurisdiction of the High Court can be invoked to set aside the issuance of summons/notices. When the question was whether the order issuing summons is interlocutory order or intermediate order, the Hon''ble Supreme Court held that it is only an intermediate order and therefore, the revision is maintainable. In support of the contention, the decision in
9. Insofar as the first question is concerned, it is concluded by a later decision of this Court in the case of
6... This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, that bar under sub-section 2 of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction u/s 397 could be exercised against the same.
4.3. So far as the contention regarding availability of remedy of appeal u/s 29 of the D.V. Act is concerned, the remedy of appeal has been provided only as against the orders which is reserved on the aggrieved person or the respondent, whichever is later. Then the question is what are the order a made by the Magistrate that are referred to u/s 29 of the D.V. Act. Section 23 of the D.V. Act speaks about the orders interim and ex parte, that are passed by the Magistrate. The orders that are referred to are, orders passed under Sections 18, 19, 20, 21 and 22 of the D.V. Act.
4.4. Section 13 of the D.V. Act dealing with service of notice is also covered in the same Chapter IV.
4.5. The decision relied upon by the learned counsel for the revision petitioners/in-laws pertains to revision arising out of orders passed under Prevention of Corruption Act. So far as the D.V. Act is concerned, the scheme, objective and purpose of enactment are totally different. The Act provides for combination of civil and criminal remedies. The provisions initially provide for civil remedies and the willful disobedience of orders passed only invites criminal liabilities.
4.6. Moreover, the expression ''complaint'' as found in D.V. Act and the Rules have been used in a generic sense and that it is not used in the context of the complaint, as defined under Criminal Procedure Code and therefore, the revision petitions are not maintainable. This view is supported by the decision of the Kerala High Court in Crl. Rev. Pet. No. 461 of 2010, Sunitha, w/o. Jolly v. State of Kerala, whereunder it has been observed as follows:
5... in order to constitute complaint there should be an allegation made to a Magistrate that some person has committed an offence. Here, except where a respondent is prosecuted u/s 31 of the Act for committing broach of a protection order u/s 18 or where a protection officer is prosecuted u/s 33 of the Act for not discharging his duty, the Magistrate is approached by a person for any of the aforementioned reliefs by filing an application u/s 12 read with Rule 6 of the Rules and Form II. The respondent who is the opposite party to such an application is not an accused. (Vide
4.7. Under such, circumstances, when the complaint itself is not under the provisions of Cr.P.C., the revision petitions are not maintainable. Hence, this Court hold that the notice issued directing the respondents to appear to show cause why the required remedy should not be granted, is not revisable and the revision is not maintainable, especially when the remedy of appeal has been provided.
4.8. The order directing the respondents to appear before the Court and to show cause why the relief sought for should not be granted, is issued in Form No. VII and Rule 11(1). The sum and substance of the notice issued would only go to show that it is an opportunity for the opposite party to show cause/explain or to put forth their contentions and the non-compliance to the notice do not attract any penal consequences. Only disobedience of the order passed by the Magistrate directing the grant of relief alone invites penal consequences. Therefore, the revision petitions are pre-mature and they are liable to be dismissed.
II. Maintainability or complaint vis-a-vis Domestic Incident Report:
5. The second contention of the revision petitioners/in-laws is that the order issuing notice cannot be sustained when the complaint is not accompanied by the Domestic Incident Report (D.I.R.). In other words, the contention is that when the complaint regarding domestic violence, did not contain proper averments regarding when, where and who caused domestic violence, the Court should not have chosen to issue a notice. The crux of the argument is that the nomenclature of complaint is otherwise termed as Domestic Incident Report (D.I.R.) and therefore, without D.I.R., the complaint is not complete. It is pointed out that only under two circumstances, D.I.R. has been considered to be not indispensable for providing immediate relief and in all other circumstances, D.I.R. is the basic document to proceed further.
5.1. When shelter has to be provided to the aggrieved person, the shelter home shall not refuse shelter to an aggrieved person for not having lodged a D.I.R., prior to the making of the request. Similarly, when medical facility is to be offered to the aggrieved person, medical facility also shall not be refused for not having lodged a D.I.R. It is contended that except when a request is made either for shelter homes or for medical facility, under all other circumstances, D.I.R. is impliedly mandatory.
5.2. The learned counsel for the revision petitioners relied upon the following decisions, in order to support the contention that the D.I.R. is mandatory in order to maintain a complaint.
I.
5. ... The domestic incident report pro-forma is given in form 1 of the schedule 2 of Domestic Violence Rules. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of violence and when it was committed. The proforma specifies different heads of physical violence, sexual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence. The proforma also provides for filing of documents in support of the application like medico-legal certificate, list of istridhan and other documents.
..
This domestic incident report has to be signed by the aggrieved person.
..
The procedure adopted by the learned MM of issuing notice to the respondent without even considering domestic incident report and without going through the contents of the application and without specifying as to why each of the respondent named by the applicant was to be summoned, is contrary to the Act. Only those persons can be summoned who have been in domestic relationship with aggrieved person. Under The Protection of Women from Domestic Violence Act, 2005 an aggrieved person does not have liberty to make every relative of the husband as a respondent.
II.
When the Judicial Magistrate Court is dealing with any application filed by the aggrieved persons u/s 12(1) of the Act, it shall necessarily follow and act in accordance with the proviso viz., considering the Domestic Incident Report from the Protection Officer or the service provider and in default, any order passed by the Court would get vitiated.
III.
17. Section 12(1) contemplates an application before the Magistrate wherein the proviso to the Section makes it clear that before passing an order by the Magistrate, he shall take into consideration the domestic incident report received from the Protection Officer. But, however, no such proviso is enumerated u/s 26 of the said Act. If the intention of the legislature is that even if an application is filed before the civil Court, or Family or a Criminal Court by the aggrieved person, an order shall be passed by them taking into consideration any domestic incident report received from the Protection Officer or the service provider, then the legislature would have incorporated such proviso as in the case of Section 12(1), even in Section 26 also.
18. Section 12 contemplates the application to Magistrate and the proviso contemplates an order passed by Magistrate under the provisions after he receives a report from the Protection Officer. The proviso to Section 12 reads that "the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. Such proviso has not been incorporated in Section 26 of the Act. Thus, a conjoint reading of both Sections 12 and 26 will make it clear that when a Magistrate passes an order, he shall receive the report from the Protection Officer, but whereas such a report is not contemplated, when an order is passed by the Civil Court or by the Family Court.
IV.
9. It is, therefore, apparent that the impugned order, all passed without taking into consideration the report prepared by the Protection Officer, ignoring the proviso to Section 12, that reads as thus:
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.
..
11. In the ordinary course, the matter would have been remanded for recording a reasoned order, but, I refrain from doing so simply because even if the allegations made against the petitioners in the application, are taken at their face value and accepted in their entirety, no justification for initiation of action against them would be made out in view of the admitted fact that during the relevant period, they were residing separately from the respondents. As such, the matter falls under categories (1), (5) and (7) of the cases, as enumerated in
V. Rudiben Nannabhai vala v. Parvatiben Bipinkumar vala Crl. M.C. No. 2216 of 2011 High Court of Gujarat at Ahmedabad
6. ... a mandatory requirement is laid down in the proviso attached to sub-section (1) of Section 12 of the D.V. Act that before passing any order on such application presented, seeking any remedy under the D.V. Act before a Magistrate, a Magistrate shall take into consideration any domestic incident report received by the Magistrate from the Protection Officer. In the instant case, it transpires that the petition seeking various reliefs under the D.V. Act by the respondent No. 1 herein came to be presented in the Court of learned Magistrate on 18.11.2009 and on the same day i.e. on 18.11.2009, the learned Magistrate passed the order, directing registration of the application as well as to issue notices to the opponents therein made returnable on 21.11.2009 and to be served through the Protection Officer and also simultaneously called for the report of the Protection Officer.
7. It transpires that above referred mandatory provision contained under sub-section (1) of Section 12 of the D.V. Act has not been duly complied with as before passing any order, the learned Magistrate should have taken into consideration the domestic incident report of the Protection Officer.
8. In above view of the matter, order dated 18.11.2009 deserves to be set-aside. Since the order dated 18.11.2009 deserves to be set-aside, this Court has not touch the merits or demerits of the matter pending before the Trial Court.
VI. Author Kanwaljit Singh Ahluwalia C.R.R. No. 3085 of 2011 dt. 30.1.2013:
On appearance petitioner filed an application raising certain objections.
To meet the objections raised by the petitioner the Court below passed the following order:
That the petition of maintainability as filed by the respondent herein is hereby rejected on contest, but without costs.
Call for a Domestic Incident Report from the Protection Officer North 24 Parganas at once. The Protection Officer is directed to ensure that the DIR reaches this Court within 03 (three) days of receipt of the copy of this Order sheet. The Protection Officer is also directed to cause service of fresh notice on all the respondents of this case within 03 (three) days of receipt within the aforesaid period intimate the Court about service of notice as per law. The learned counsel for the petitioner/complainant is requested to file as many copies of all the petitions and applications filed by him for his client, with this record so as to facilitate service of notice upon the respondents, in proper procedure.
So far the argument raised that no report of the Protection Officer was called, the Judicial Magistrate vide the impugned order has rectified the mistake and has called for the report of the Protection Officer and has also requested him to issue summons to the parties.
5.3. The learned counsel for the respondents/complainant submitted that the expression ''complaint'' as found in D.V. Act and the Rules have been used in a generic sense and that it is not used in the context of the complaint, as defined under Criminal Procedure Code and therefore, the complaint/application cannot be said to be not maintainable, in the absence of D.I.R., a considered equivalent of the First Information Report. In support of this contention, the decision of the Kerala High Court in Sunitha, w/o. Jolly v. State of Kerala Crl. Rev. Pet. No. 461 of 2010, is relied upon.
5.4. The following decisions are also relied upon to show that D.I.R. is not mandatory, to consider the complaint u/s 12(1) of the D.V. Act,
I.
12. ... The insistence to take into consideration the domestic incident report of the Protection Officer would therefore, not apply at the stage of initiation of the enquiry u/s 12 of the Act. The contention of the petitioners that without considering the domestic incident report, the very initiation of the enquiry is bad, appears to be misconceived and therefore, not tenable.
II. Shambhu Prasad Singh v. Manjari, Crl. M.C. No. 3083 of 2011 and Crl. M.A. No. 10914 of 2011, Delhi High Court, on 17.5.2012
79. To conclude we answer the question referred to the Court in the negative, a Magistrate when petitioned u/s 12(1) is not obliged to call for and consider the DIR before issuing notice to the respondent. However, if the DIR has already been submitted, that should be considered, in view of the proviso to Section 12(1).
III.
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 of his relatives, it is an offence u/s 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.
..
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 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 u/s 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.P.C. dealt with security for accordingly. Chapter VIII of Cr.P.C. dealt with security for keeping peace and for good behavior which runs from Sections 106 and 124. In these sections, it is provided that for keeping the peace and maintaining good behavior, 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 u/s 18 of the Act.
(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.P.C. is not required before issuance of the notice because application u/s 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 u/s 12 of the Act.
(DI) 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 of 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.
III. Right in the shared household property:
6. The third contention of the revision petitioners/in-laws is that the property in which shared house hold rights are sought to be exercised is neither a shared household nor it is the property over which the deceased husband had any rights and therefore, the complaint seeking shared household is not maintainable. The revision petitioners relies upon the sale deed dated 28.11.1984 which stands in the name of the father-in-law of the complainant. It is pointed out hat the complainant''s husband was born on 25.2.1976 and when the property was purchased in the year 1984, he was eight years old and therefore, he could not have contributed any money towards the purchase and therefore, when the husband himself is not entitled to any share in the property, the wife cannot make any claim over that.
6.1. Contending that in respect of a separate property or a joint family property over which the deceased husband had no right, then the complainant also cannot make any claim over the property, the decision reported in
There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.
Here, the house in question to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house.
Appellant No. 2, the mother-in-law of Smt. Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.
The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member.
It is the exclusive property of Appellant No. 2, mother of Amit Batra. Hence it cannot be called a ''shared household''.
No doubt, the definition of ''shared household'' in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.
6.2. The other decisions that are relied upon the by the learned counsel for the revision petitioners are:
I.
9. ... A woman has her rights of maintenance against her husband or sons/daughters. She can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes.
II.
27. The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as the legislation extends to joint properties in which the husband has a share.
(emphasis supplied)
III. Umesh Sharma v. State Delhi High Court judgment in Crl. M.C. No. 540 of 2009 dt. 25.1.2010, is relied upon to buttress the contention that the burden of poor with regard to nature and character of the property and the consequent right over it is only upon the complainant.
It is well settled that apparent state of affairs shall be taken as the real state of affairs. It is not for an owner of the property to establish that it is his self-acquired property and the onus would be on the one who pleads contra
6.3. The learned counsel for the respondents relies upon the following decisions in order to support the contention that a) in the absence of the husband, the liability is upon the father-in-law to maintain; b) in respect of the joint family property of the husband, the wife is entitled to a share.
I. Vimalaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel (supra), whereunder it has been observed as follows:
24. Sections 18 and 19 prescribe the statutory liabilities in regard to maintenance of wife by her husband and only on his death upon the father-in-law, mother-in-law, thus, cannot be fastened with any legal liability to maintain her daughter-in law from her own property or otherwise.
II.
22. In the instant case, admittedly, the husband has a right in the joint family properties. After death of her husband and 11.7.2006 due to Brain Malaria, opposite party has acquired such right. Since she has not been given her share in the joint family properties, the lower Courts have rightly granted monthly maintenance to opposite party till she gets a share in the petitioner''s properties.
As the petitioner has not given to opposite party her share in the joint family properties in question, the opposite party is entitled to get maintenance till she gets her share in the said properties. In absence of getting a share in the ancestral joint family properties, she is deprived of her economic and financial resources to which she is legally entitled to get.
IV. Domestic Relationship:
6.4. Contending that the revision petitioner (sister-in-law) in Crl. R.C. No. 565 of 2013, at no point of time, lived with the complainant and therefore, she was never in domestic relationship with the complainant and hence, the complaint is not maintainable, the following decision is relief upon:
I. Hima Chugh v. Pritam Ashok Sadaphule Crl. M.C. No. 3273 of 2011 dt. 10.4.2013 - Delhi High Court:
18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other.
6.5. Raising a plea that the domestic relationship need not be constant and continuous and it is enough if the wife had been in domestic relationship at any point of time, the decision in Vijay Verma v. State, NCT of Delhi, dt. 13.8.2010 in Crl. M.C. No. 3878 of 2009, is relied upon by the respondents/complainant, whereunder it has been held as hereunder:
Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ''at any point of time'', say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues.
6.6. The following two decisions are also relied upon by the respondents:
I.
9. The words "who is or who has been in domestic relationship" clearly indicate the relationship need not be the existing relationship. The definition encompasses into its ambit even the past relationship.
II.
The word "domestic relationship" was also widely worded to mean a relationship between two persons who live or have, at any point of time, lived together in a shared household, whether 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.
Maintainability of complaint vis-a-vis domestic violence:
7. The yet another contention of the revision petitioners is that the complainant is residing separately and there was neither violence nor domestic violence committed as against them and therefore, the complaint is not maintainable.
7.1. This contention is answered by the complainant alleging that the provisions of the D.V. Act contemplates not only physical and emotional violence, but also economic violence, which is covered under the term ''domestic violence'' and therefore, the complaint is maintainable. Raising a plea that continued deprivation of economic or financial resources would also amount to domestic violence and that the complainant is entitled to protection under the D.V. Act, the complaint is sought to be justified. In support of the same, the following two decisions are relied upon by the learned counsel for the respondents/complainants:
I.
Domestic violence not only includes mental harassment through verbal or emotional abuse but also emotional and economic abuse.
II.
Continued deprivation of economic and emotional financial resources and continued prohibition of access to shared household to aggrieved person is domestic violence.
8. The revision petitioners challenged the maintainability of complaint and the issuance of notices to them. On the other hand, the respondents challenged the maintainability of revision itself. There is a finding that the revision petitions are not maintainable. Hence, the issues raised on merits with regard to a) existence of domestic relationship between the revision petitioners and the complainant; b) the maintainability of complaint, in the absence of Domestic Incident Report; c) maintainability of complaint, in the absence of domestic violence; d) maintainability of the claim with regard to the shared household, could not be answered by this Court, as it would be in the domain of the trial Court.
9. Once the revision petitions are dismissed as not maintainable, consequently, the complaint would be remitted back to the trial Court and therefore, the maintainability of complaint pertaining to the above issues would be within the jurisdiction of the trial Court to decide the same. Any opinion expressed by this Court would bound to have an impact upon the freedom of the trial Court to decide those issues and hence, no opinion is expressed on those issues.
10. In the result, both the Criminal Revision cases are dismissed as not maintainable. It is open to the revision petitioners to raise all those issues before the trial Court. Consequently, connected M.Ps. are also dismissed.
After the pronouncement of the judgment, it is pointed out that as the issue of non-application of mind on the part of the Presiding Officer has been raised, it may not be advisable to argue the matter before the same Magistrate.
Considering the submission made, while the matter is remitted back, the learned Chief Judicial Magistrate is directed to cause necessary entries to be made in the relevant records and then to allocate it to the file of the learned Judicial Magistrate No. VI, Coimbatore, who will deal with the preliminary issues raised and then to decide the further course of the action, subject to the result of the preliminary issues decided.
