Sunday, 14 August 2016

Whether female relatives of husband or male partner can be proceeded under domestic violence Act?


14. Section 2(q) reads as under :-
“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;”

15. It is, therefore, apparent that though Section 2(q)
indicates that the “respondent” would mean any adult male
person in connection with domestic relationship with the
aggrieved person, the proviso indicates that the aggrieved wife
or female, living in a relationship in the nature of a marriage,
may also arraign in a complaint, a relative of the husband or the
male partner. Since, the 2005 Act is aimed at protecting
women against domestic violence, the submissions of the
petitioners, if are accepted, would create an insulation to the
female members of the husband's family who may go
unpunished for acts amounting to domestic violence.
16. The Hon'ble Supreme Court in the matter of Sandhya
Manoj Wankhade vs. Manoj Bhimrao Wankhade & Anr. (2011) 3
SCC 650 has dealt with the issue as to whether Section 2(q) and the
proviso thereunder, read with Sections 12, 18, 19, 20 and 22 of the
2005 Act, would restrict the meaning of the term “respondent” only
to the extent of the husband or male partner or only male members of
the family or male relatives..
17. Paragraph Nos. 13 to 18 of the Sandhya Judgment
(supra) read as under :-
“13. Having carefully considered the submissions made
on behalf of the respective parties, we are unable to
sustain the decisions, both of the learned Sessions Judge
as also the High Court, in relation to the interpretation of
the expression "respondent" in Section 2(q) of the
Domestic Violence Act, 2005. For the sake of reference,
Section 2(q) of the above-said Act is extracted
hereinbelow :-
"2(q). "respondent" means any adult male person who is,
or has been, in a domestic relationship with the aggrieved
person and against whom the aggrieved person has sought
any relief under this Act:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file a
complaint against a relative of the husband or the male
partner."
14. From the above definition it would be apparent that
although Section 2(q) defines a respondent to mean any
adult male person, who is or has been in a domestic
relationship with the aggrieved person, the proviso
widens the scope of the said definition by including a
relative of the husband or male partner within the scope
of a complaint, which may be filed by an aggrieved wife
or a female living in a relationship in the nature of a
marriage.
15. It is true that the expression "female" has not been
used in the proviso to Section 2(q) also, but, on the other
hand, if the Legislature intended to exclude females from
the ambit of the complaint, which can be filed by an
aggrieved wife, females would have been specifically
excluded, instead of it being provided in the proviso that a

complaint could also be filed against a relative of the
husband or the male partner.
16. No restrictive meaning has been given to the
expression "relative", nor has the said expression been
 specifically defined in the Domestic Violence Act, 2005,
to make it specific to males only. In such circumstances,
it is clear that the legislature never intended to exclude
female relatives of the husband or male partner from the
ambit of a complaint that can be made under the
provisions of the Domestic Violence Act, 2005.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3069 OF 2015
Mr. Prashant Pandit Salve & Ors. ... Petitioners
vs.
Mrs. Suvarna Prashant Salve & Ors. ... Respondents

CORAM: RAVINDRA V.GHUGE, J.
DATE : 11th July, 2016.



1. Rule. Rule made returnable forthwith and heard finally by
the consent of the parties.
2. The Petitioners submit that by virtue of the prayers put
forth below paragraph 9 of the Petition, they are challenging the
proceedings in C.C. No.625/M/2014 pending before the Metropolitan
Magistrate, 25th Court, Mazgaon, Mumbai,and pray for quashing of
the proceedings. In the cause title of the Petition, it is indicated that

the order dated 8.6.2015 passed below Exhibit 5 in the said
proceedings has been subjected to a challenge.
3. The Petitioners have put forth two grounds in this Petition.
Firstly, that under Section 12 of the Protection of Women from
Domestic Violence Act, 2005 (for short, “the D.V. Act”), a complaint
may be considered by the Magistrate and an order can be passed on
such application only after the Magistrate takes into consideration any
report regarding a domestic incident received by him from the
Protection Officer or the Service Provider. Section 2(n) of the D.V. Act
defines a “Protection Officer” to mean an officer appointed by the State
Government under sub-section (1) of Section 8. Section 2(r) defines a
“service provider” meaning an entity registered under sub-section (1)
of Section 10 of the D.V. Act.
4. The second ground put forth by the Petitioners is that
Section 2(q) prohibits the filing of a complaint by an aggrieved person
against female members of the family of the husband. In this context,
he relies upon the Judgment delivered by this Court (S.B.Shukre, J.) in

the matter of Arun Ramkrishna Pawade and others vs. Nilima
Prakash Pawade and others 2015 (4) B.C.R. (Cri.) 287.
5. The learned Counsel for the petitioners submits that since
the respondent-wife had left the matrimonial home in 2004 itself, all
the subsequent alleged events narrated in the complaint before the trial
Court are a figment of imagination and the complaint based on such
allegations cannot be entertained. He further submits that when the
respondent-wife had left the matrimonial home, there is no question of
domestic violence and as such, the complaint filed by the wife will
have to be dismissed since several events that have been narrated are
post leaving the matrimonial home.
6. The learned counsel also submits that Petitioner No.1's mother,
one brother and one sister have been arraigned as accused-respondents
in the application under Section 12 of the D.V. Act. The mother being
a female member of the petitioner's family, could not have been
impleaded as a respondent and so also his sister. It is, therefore,
contended that taking into account the above aspects, this Petition

deserves to be allowed and the pending complaint deserves to be
dismissed by exercising the jurisdiction of this Court under Section
482 of Cr.P.C.
7. The learned Advocate appearing on behalf of respondent
Nos. 1 and 2, who are the wife and son of petitioner No.1, draws my
attention to the wedding card and the photographs placed on record
which indicates that the petitioner has surreptitiously got married to a
person by name Poornima. This has been done despite the fact that the
marriage with the 1st wife is still subsisting and the petitioner has not
obtained any divorce decree.
8. He further submits that the complaint filed under Section
12 of the D.V. Act would indicate that the original respondents have
participated in various acts of domestic violence against the original
complainant-wife. Specific acts have been narrated and unless these
attributes are gone into by the Court below, the wife would not
succeed in ensuring that the guilt is proved. He, therefore, submitted
that this Petition deserves to be dismissed.

9. It is further submitted by the learned Advocate that the
order dated 8.6.2015 passed below Exhibit 5 by the learned
Magistrate,which is mentioned in the cause title of the Petition, is an
appealable order and Section 29 of the D.V. Act provides for such an
appeal which would normally lie before the Court of Sessions. It is,
therefore, submitted that even on this ground, the Petition deserves to
be dismissed.
10. In rebuttal, learned Advocate for the petitioners specifically
states on instructions that the petitioners do not desire to test the order
dated 8.6.2015 under Section 29. The petitioners do not desire to
withdraw this Petition so as to avail of the said remedy.
11. I have considered the submissions of the learned Advocate
as above.
12. The learned Advocate for the petitioners has placed
reliance upon the Judgment of this Court in the matter of Arun

Ramkrishna Pawade (cited supra) and especially paragraph 7, which
reads as under :-
“7. Upon going through the definition of “respondent”
given in Section 2(q) of the D.V. Act, I find that learned
Counsel for the applicants is right in his submission that
no female members of a family could be joined as
respondent in a complaint filed under Section 12 of the
D.V. Act. Of course, there is a proviso to Section 2(q)
which indicates that even the male member of the family of
the husband can be joined as respondent in a case where
the nature of relationship claimed is akin to marriage or
through marriage. This is what has been held by the
Hon'ble Apex Court in the case of Sandhya Manoj
Wankhade (supra). However, this proviso, as clarified by
the Hon'ble Apex Court, would not be applicable to the
present case for the simple reason that the basis of
domestic relationship claimed by non-applicant Nos. 1 to
4 is not a marriage but the relationship arising from the
applicants and non-applicants being the members of a
joint family. Therefore, in my humble opinion, nonapplicant
Nos. 1 to 4 cannot seek assistance from the said
case of Sandhya Manoj Wankhade. On the other hand this
case, as rightly submitted by the learned Counsel for the
applicants, would be covered by the provision of the main
Section 2(q), which defines the respondent as any adult
male person who is in a domestic relationship with the
aggrieved person and against whom the aggrieved
person has sought any relief under the D.V. Act. I am also
fortified in this regard by the view taken by learned Single
Judge of the Madhya Pradesh High Court in the case of
Tehmina Qureshi v. Shazia Qureshi reported in 2010 ALL
MR (Cri) Journal 97. Therefore, so far as applicants No.
2 to 5 are concerned, Section 12 of the D.V. Act
proceedings are not maintainable and hence deserve to be
quashed and set aside.”

13. In the light of the submissions of the learned Advocates
and upon considering paragraph 7 of the Arun Judgment (supra), it
appears that this Court has not dealt with the proviso to Section 2(q)
as being restrictive only to the extent of making a grievance as against
the male members of the family. Though this Court has considered
Section 2(q) while passing its order, I find that the effect of the
proviso to Section 2(q) was really not canvassed before the Court. I
am, threfore, dealing with the proviso in this Judgment, considering
the submissions of the Petitioners, which have been opposed by
Respondent No.1.
14. Section 2(q) reads as under :-
“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;”

15. It is, therefore, apparent that though Section 2(q)
indicates that the “respondent” would mean any adult male
person in connection with domestic relationship with the
aggrieved person, the proviso indicates that the aggrieved wife
or female, living in a relationship in the nature of a marriage,
may also arraign in a complaint, a relative of the husband or the
male partner. Since, the 2005 Act is aimed at protecting
women against domestic violence, the submissions of the
petitioners, if are accepted, would create an insulation to the
female members of the husband's family who may go
unpunished for acts amounting to domestic violence.
16. The Hon'ble Supreme Court in the matter of Sandhya
Manoj Wankhade vs. Manoj Bhimrao Wankhade & Anr. (2011) 3
SCC 650 has dealt with the issue as to whether Section 2(q) and the
proviso thereunder, read with Sections 12, 18, 19, 20 and 22 of the
2005 Act, would restrict the meaning of the term “respondent” only
to the extent of the husband or male partner or only male members of
the family or male relatives..
:
17. Paragraph Nos. 13 to 18 of the Sandhya Judgment
(supra) read as under :-
“13. Having carefully considered the submissions made
on behalf of the respective parties, we are unable to
sustain the decisions, both of the learned Sessions Judge
as also the High Court, in relation to the interpretation of
the expression "respondent" in Section 2(q) of the
Domestic Violence Act, 2005. For the sake of reference,
Section 2(q) of the above-said Act is extracted
hereinbelow :-
"2(q). "respondent" means any adult male person who is,
or has been, in a domestic relationship with the aggrieved
person and against whom the aggrieved person has sought
any relief under this Act:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file a
complaint against a relative of the husband or the male
partner."
14. From the above definition it would be apparent that
although Section 2(q) defines a respondent to mean any
adult male person, who is or has been in a domestic
relationship with the aggrieved person, the proviso
widens the scope of the said definition by including a
relative of the husband or male partner within the scope
of a complaint, which may be filed by an aggrieved wife
or a female living in a relationship in the nature of a
marriage.
15. It is true that the expression "female" has not been
used in the proviso to Section 2(q) also, but, on the other
hand, if the Legislature intended to exclude females from
the ambit of the complaint, which can be filed by an
aggrieved wife, females would have been specifically
excluded, instead of it being provided in the proviso that a

complaint could also be filed against a relative of the
husband or the male partner.
16. No restrictive meaning has been given to the
expression "relative", nor has the said expression been
 specifically defined in the Domestic Violence Act, 2005,
to make it specific to males only. In such circumstances,
it is clear that the legislature never intended to exclude
female relatives of the husband or male partner from the
ambit of a complaint that can be made under the
provisions of the Domestic Violence Act, 2005.
17. In our view, both the Sessions Judge and the High
Court went wrong in holding otherwise, possibly being
influenced by the definition of the expression
"respondent" in the main body of Section 2(q) of the
aforesaid Act.
18. The Appeal, therefore, succeeds. The judgments and
orders, both of the learned Sessions Judge, Amravati,
dated 15-7-2009 and the Nagpur Bench of the Bombay
High Court dated 5-3-2010, in Crl. Writ Petition No.588
of 2009 are set aside. Consequently, the trial court shall
also proceed against the said Respondents 2 and 3 on the
complaint filed by the appellant.”
(emphasis supplied by me).
18. In my view, the proviso to Section 2(q), especially
as per the law laid down by the Hon'ble Supreme Court in
Sandhya Judgment (supra), cannot therefore be restricted only
to arraigning the male members of the husband's family or his
male relatives. When specific allegations are made against the

lady members of the husband's family like the mother-in-law, or
the sister of the husband or the sister of the husband's brother
etc., the complainant cannot be rendered remediless by
precluding her from arraigning such female members who
could be tried for offences of assault or any type of the offence
as is defined in the 2005 Act.
19. The 2005 Act has been introduced to protect women
against domestic violence which is undoubtedly a human rights
issue and is a serious deterrence to development. The Objects
& Reasons and the purpose for which the Bill has been
introduced, are specifically aimed at protecting women from
violence of any kind and especially occurring within the family.
The phenomenon of domestic violence appears to be widely
prevalent, but as such remains invisible in the public domain. It
cannot be ignored that in several cases, women, who have been
subjected to cruelty by the husband and/or his relatives, have
chosen to digest such acts for the fear of ruining their marriage
and suffering exposure to the public. The object of the Act was,

therefore, keeping in view the rights guaranteed under Articles
14, 15 and 21 of the Constitution and to provide for a remedy
under the civil law which is intended to protect women from
being victims of domestic violence.
20. The Bill introduced by the Parliament reads as under
:-
“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) It defines the expression "domestic violence" to
include actual abuse or threat or abuse that is physical,
sexual, verbal, emotional or economic. Harassment by
way of unlawful dowry demands to the woman or her
relatives would also be covered under this definition.

(iii) It provides for the rights of women to secure housing.
It also provides for the right of a woman to reside in her
matrimonial home or shared household, whether or not
she has any title or rights in such home or household.
This right is secured by a residence order, which is passed
by the Magistrate.
(iv) It empowers the Magistrate to pass protection orders
in favour of the aggrieved person to prevent the
respondent from aiding or committing an act of domestic
violence or any other specified act, entering a workplace
or any other place frequented by the aggrieved person,
attempting to communicate with her, isolating any assets
used by both the parties and causing violence to the
aggrieved person, her relatives or others who provide her
assistance from the domestic violence.
(v) It provides for appointment of Protection Officers and
registration of non-governmental organisations as service
providers for providing assistance to the aggrieved
person with respect to her medical examination, obtaining
legal aid, safe shelter, etc.
5. The Bill seeks to achieve the above objects. The notes
on clauses explain the various provisions contained in the
Bill”.
21. The Vienna Accord of 1994 and the Beijing
Declaration and the Platform for Action (1995) have
acknowledged and 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 those
occurring within the family.
22. As such, the definition of “respondent” under Section 2(q) read
with the proviso, ought to lead to a harmonious interpretation. A proviso is
always in aid to the section. As held in Shah Bhojraj Kuverji Oil Mills
& Ginning Factory vs. Subhash Chandra Yograj Sinha AIR 1961 SC
5926 that a proviso is generally added to an enactment to qualify or carve
out an exception to what is in the enactment. A proviso to the section
implies that an exception is carved out. In Dwarka Prasad vs. Dwarka
Das Saraf (1976) 1 SCC 128, the Hon'ble Supreme Court (Four Judges
Bench) has held that rulings and text-books have a bearing on statutory
construction and have assigned many functions for the provisos having
regard to the text and the context of the statute. The Legislature by the
Amending Act clarified what was implicit earlier and expressly carved out.
23. Considering the above and especially the effect of the
proviso, the definition of “respondent” under Section 2(q) will have

to   be   understood   as   being   “illustrative”   in   nature   and   not
“exhaustive”.
24. The learned Advocate for the petitioners has further
submitted that the Magistrate cannot pass an order on any application
under Section 12 unless the report of the domestic incident has been
received from the Protection Officer or the service provider.
25. The proceedings have been initiated in 2014. The
petitioners have taken this ground before the learned Magistrate and
which can be considered finally after the recording of oral and
documentary evidence.
26. Insofar as the impugned order dated 8.6.2015 is
concerned, the petitioner/original respondent had preferred an
application for seeking dismissal of the application under Section 12
of the D.V. Act. The grounds raised in the said application were
considered by the learned Magistrate. By the impugned order, the said
application was dismissed. The petitioners pray that the complaint be

dismissed and/or the proceedings be quashed.
27. The original applicant-wife has put forth a specific
complaint against the respondents, who comprise of the petitionerhusband,
his mother, his brother and his sister. The purported second
wife of petitioner No.1 has also been arraigned as respondent No.5.
She is however not the petitioner before this Court.
28. I have gone through the complaint preferred by the wife
which runs into about 20 pages. Several instances with regard to the
unusual conduct of the petitioner and his purported unnatural acts
and behaviour in his relationship as husband and wife have also been
narrated in the complaint, which I do not find it appropriate to
discuss in this order. The conduct of the brother of the petitionerhusband
and his purported sexual advances towards the complainant
have also been narrated. The conduct of the mother and sister has
also been specifically stated.
29. The petitioners have contended that the incidents narrated

in paragraph No.33 onwards in the complaint, are said to have
occurred after the wife left the marital home and started residing in
her parents' home, which appear to be unsustainable. The record
reveals that there was a settlement between the husband and the wife
and she returned to live in the marital home. The events that are said
to have occurred thereafter and which pertain to the co-habitation in
between the husband and the wife as have been narrated, would
indicate that the wife appears to have suffered physical abuse which
need not be discussed in this order.
30. The incident said to have occurred on 27.9.2013 with
regard to which a non-cognizable complaint has been lodged by the
wife, would also indicate that the petitioner-husband had approached
the wife and thereafter had threatened her.
31. In the light of the above, the prayers put forth by the
petitioners do not deserve any consideration and are rejected.
32. As such, I do not find that the impugned order can be

termed as perverse or erroneous. This Petition, being devoid of
merits, is therefore dismissed. Rule is discharged.
(RAVINDRA V.GHUGE, J.)

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