R.R. Prasad
1. An application was filed u/s 12 of the Protection of Women from Domestic Violence Act by the opposite party no. 2 against her son, daughter-in-law (petitioner) and her husband before the court of Sub-divisional Judicial Magistrate, Ranchi wherein following prayers were made.
1. Pass protection orders u/s 18 and/or
2. Pass residence orders u/s 19 and/or
3. Direct the respondent to pay monetary relief u/s 20 and/or
4. Pass order u/s 21 of the Act and or
5. Direct the respondent to grant compensation or damages u/s 22 and/or
6. Pass such interim orders as the court deems just and proper;
7. Pass any orders as deems fit in the circumstances of the case.
The petitioner on appearing took objection by filing application that she being a woman cannot be allowed to be impleaded as respondent in terms of the provision as contained in Section 2(q) read with proviso to Section 19(1)(b) of the Protection of Women From Domestic Violence Act. 2005 That prayer was rejected vide order dated 15.5.2010 after putting reliance on a decision of the Bombay High Court holding therein that in terms of the definition given u/s 2(q) woman can be impleaded as respondent.
2. Being aggrieved with that order, this application has been filed.
3. Mr. H.K. Mehta, learned counsel appearing tor the petitioner Submits that though the court by putting rename on a decision rendered by Bombay High court in a case of Archana Hemant Naik vs. Urmilaben I Naik and another did hold that a woman can be impleaded as responded but the definition as given in Section 2(q) does not seem to have been interpreted by the Bombay High Court in the context of proviso to Section 19(1)(b) of the Protection of Women From Domestic Violence Act which clearly stipulates that a woman can not be allowed to be removed from the shared household and as such, in a matter where relief has been sought for in terms of Section 19(1) (b), a woman can not be allowed to be impleaded as respondent.
4. As against this, learned counsel appearing for the opposite party no. 2 submits that it is not that in application filed u/s 12 is confined only to the prayer in terms of Section 19(1)(b), rather several prayers including the aforesaid prayer have been made and as such, a woman can certainly be impleaded as respondent keeping in view particularly the provision as contained in proviso to Section 2(q) of the Act.
5. In the context of the submissions made on behalf of the parties, one need to take notice of the definition of the ''respondent'' given in Section 2(q) of the Act 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 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.
6. The main provision does stipulate that the ''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 the said Act but the proviso carves out an exceptions to the rule that the 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 a relative of the husband or male partner. 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 it is important to note that the proviso refers to a relative and not to a male relative.
7. The definition of domestic relationship u/s 2(f) is very wide. However, a domestic relationship between a wife and a husband or a female and male partner are the only two categories included in the proviso to Section 2(q). At the Same time, it would be relevant to note that under the Act, different kinds of relief can be granted to the aggrieved person which are as follows:
(a) Protection order u/s 18 for prohibiting the Act of domestic violence.
(b) Residence order in relation to shared household in terms of the provision as contained in Section 19.
(c) Monetary relief u/s 20.
(d) Custody order u/s 21 relating to children
(e) Compensation order in terms of Section 22.
8. In order to find out as to whether a relative of the husband as given in proviso to Section 2(q) can be a female, the provisions as contained in Section 19 of the Act which are being given below can be one of the determining factors:
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 persons 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. The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
3. The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
4. An order Under Sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure. 1973 (2 of 1974) and shall be dealt with accordingly.
5. While passing an order under sub-section (1), sub-section (2) or sub-section (3), the Court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
6. While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, haying regard to the financial needs and resources of the parties.
7. The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
8. The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.
9. Having taken notice of the said provisions if at all it is held that ''relative of the husband or the male partner'' which clause has been used under proviso to Section 2(q) includes only the male relative of the husband, one cannot have effective relief in terms of Section 19 of the Act as if a wife or a woman to which the proviso is applicable, is compelled to seek residence order in respect of a shared household only as against a male relative of her husband or male partner, as the case may be. the female relative of the husband or 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 share household which certainly cannot be the intention of the legislature.
10. Looking the matter from another angle, one may find from reading of the proviso to Section 2(q) that a relative referred to in the proviso, has never been prefixed with the word male, though in the main provision the word male has been used Therefore, there would be hardly any difficulty in holding that ''relative of the husband'' used in the proviso to Section 2(q) would also include female relative. This postulation further gets strengthened from the proviso to sub-section (1) of Section 19 where the legislature has clarified 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.
11. Thus, it can easily be held that the relative of the husband or the male partner expressed in the proviso to Section 2(q) cannot be confined only to male relative, rather it include female relative of the husband or the male partner as the case may be.
12. Thus, when an aggrieved person is a person to whom proviso to Section 2(q) is applicable, the respondent in the application u/s 12 can be male or female relative of the husband or the mate partner as the case may be.
13. In such situation, the order passed by the trial court seems to be absolutely justified. However, the question which has been raised on behalf of the petitioner that since no relief can be granted to the applicant in terms of Section 19(1)(b) against the female respondent, the petitioner who was impleaded as respondent in an application u/s 12 should not have been allowed to be impleaded.
14. As I have already stated that this is not the case where the applicant has sought relief only in terms of Section 19(1)(b), rather several other prayers have also been made.
15. In such situation, impleadment of the petitioner as respondent is justified. However, the issue would be open for the petitioner to raise before the court below as to whether relief sought for in terms of Section 19(1)(b) can be maintained against the petitioner or not. Thus, this application stands disposed of.
