Tuesday, 25 October 2016

Whether proceeding under DV Act is tenable against relative of husband if husband is not party to proceeding?

In the light of the above discussion, it is clear that a

proceeding against the relative of the husband is perfectly



maintainable without the husband being in the party array and

without any relief being sought against him, if it falls within

proviso of Section 2(q). Reference is answered accordingly.


    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

        MR.JUSTICE THOTTATHIL  B.RADHAKRISHNAN

                MR. JUSTICE SUNIL THOMAS

        5TH DAY OF AUGUST 2015

                    Crl.Rev.Pet.No. 328 of 2013 ()
                    

       KUNJATHIRI,
Vs


          STATE OF KERALA,

      
     This revision arises from an order passed by the Sessions

Judge, Thrissur in Crl.Appeal No.752/2010 in a proceeding

under the Protection of Women from Domestic Violence Act

2005 (Act 43 of 2005) (hereinafter referred to as "the Act" for

short).

        2. A married woman sought protection order under

Section 12 of the Act against her mother-in-law and sister-in-

law. It was alleged that the above persons had subjected her

to domestic violence at the matrimonial home. The husband of

the above married woman was in Gulf country and apparently

she had no grievance against the husband. The trial court

granted the protection order under the Act, which was



confirmed in appeal preferred at the instance of the mother-in-

law. This is challenged in this revision by the mother-in-law.

      3. One of the ground of challenge raised specifically in the

revision was that without the husband of the married woman in

the party array, an application under the Act was not

maintainable and no relief can be granted. The learned single

Judge, before whom the matter came up for hearing, noted the

decision of this Court in Bismi Sainudheen v. P.K.Nabeesa

Beevi and Others(2013(4) KLT 377).          After referring to the

relevant provisions involved in the matter, the learned single

Judge doubted the ratio laid down in the above case and

expressed the view that the proviso to Section 2(a) can only

mean that, when the husband, to whom only the wife is related

by marriage, is a respondent, his relatives, male or female also

may be made respondents in the case. Hence, the learned single

Judge thought it fit to refer the matter to the Division Bench for

consideration.    The   question    that   was   formulated    for

consideration is

              "whether a petition filed by a wife against her

     husband's relatives alone without making him        a co-


     respondent is maintainable"?

The matter is thus placed before this Bench for consideration.

      4. Heard both sides and examined the records.

      5. The statement of objects and reasons of the Act 43 of

2005 declares that domestic violence is a human rights issue

and a serious deterrent to development. Vienna Accord of 1994

and the Beijing Declaration and the Platform for Action (1995)

have acknowledged it. The        United Nations Committee on

Convention on Elimination of All Forms of        Discrimination

Against Woman (CEDAW) in its General Recommendation No.

XII (1989) has recommended that the State parties should act to

protect women against violence of any kind, especially that

occurring within the family. Parliament was of the view that the

phenomenon of domestic violence in India was widely prevalent,

but has remained largely invisible in the public domain. It was

felt that the civil law did not address this phenomenon in its

entirety.     Where a woman was subjected to cruelty by her

husband or relatives it was an offence under Section 498A of

IPC. There was no remedy in the civil law for the protection of

the women from being victims of domestic violence.   Hence, the



Act was brought into force in accordance with the above object

and 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 was intended to protect the women from being victims

of domestic violence and to prevent the occurrence of domestic

violence in the society.

      6. Evidently, the Act was intended to ensure effective

protection of the rights of women guaranteed under the

Constitution, who were victims of violence of any kind, occurring

within the family and to deal with matters connected therewith

and incidental thereto. This being the object of the statute,

evidently, the statute cover a large group of the society with

rights conferred not only to the aggrieved wife in relation to

her dispute with the husband, but to cover any type of violence

against woman that occurs in any domestic relationship.

      7. To answer the    question referred to this Bench, the

relevant provisions which are necessary for consideration are

the definitions of the words "aggrieved person", "domestic

relationship" and the "respondent".     The statute defines the

above as follows:



                  "2(a) " aggrieved person" means any woman

            who is, or has been, in a domestic relationship with

            the respondent and who alleges to have been

            subjected to any act of domestic violence by the

            respondent;




                  2(f):  "domestic     relationship"  means     a

            relationship between two persons who live or have, at

            any point of time,lived together in a shared

            household, when they are related by consanguinity,

            marriage, or through a relationship in the nature of

            marriage, adoption or are family members living

            together as a joint family:




                  2(q): "respondent" means any adult male

            person who is or has been, in a domestic relationship

            with the aggrieved person and against whom the

            aggrieved person has sought any relief under this

            Act:

                  Provided that an aggrieved wife or female

            living in a relationship in the nature of a marriage

            may also file a complaint against a relative of the

            husband or the male partner. "


      8. Evidently, the above three definitions are inter-linked

and the interpretation of any of the three is not possible without

reference to the other two, as well as to the concept of 'shared

household' as defined under Section 2(s) and the definition of

'domestic violence' as defined under Section 3 of the Act. The

reference to the above three quoted definitions indicate that they

are of very wide connotation. Section 3 brings within its campus

any type of violence, including physical, sexual, verbal, emotional

and economic and arising in any domestic relationship, not

confined to matrimonial relationship alone. The long title of the

statute, the various definitions incorporated in the statute and

the object and reasons of the statute referred to above

cumulatively confirm that the statute is not confined to cruelties

against the wife alone, but is of a larger perspective, covering

any type of abuse against women, provided it arises out of a

domestic relationship.

      9. Section 2(a) and Section 12 indicates that a woman

alone can seek the relief, under the Act. The sine qua non for

seeking the relief is that the petitioner should be a woman, who

is or has been in a domestic relationship with the respondent



against whom there is an allegation of domestic violence. A co-

joint reading of Section 2(a), 2(f) and 2 (q) shows that, to seek

relief on ground of domestic violence, it is not necessary that

the woman should be related to the        person committing the

wrong by matrimony alone, but may be by a relationship in the

nature of the marriage or related by consanguinity, adoption or

are family members living together as a joint family. Evidently,

if a woman seeking relief had been subjected to any domestic

violence as defined under Section 3, by the      person against

whom relief is sought and they had, at any point of time, lived

together in a shared household and if they are related by any

relationship as mentioned above, she is entitled to seek the

benefit of the Act.

      10. Narrowing down to the issue as to whether the wife

can seek relief against the relatives of the husband without the

junction of the husband, or husband being in the party array,

without any allegation against him or without seeking any relief

against him is a vexed issue. It means whether the presence of

the husband in the party array, atleast as an informal party is

necessary. The concept of formal party is not unknown to



criminal jurisprudence.      The issue revolves on a question

whether the statute visualizes a situation of an abuse of wife by

in-laws of the husband, without the husband committing any act

of domestic violence.      It cannot be said that the Indian

Parliament was unaware of the Indian social reality wherein

thousands of husbands move to distant places in search of job,

leaving behind the wife at the matrimonial home and in several

of such cases "in-law syndrome" operating. Are they left out

without any remedy under the Act? One possible indication is

available in Section 3 of the Act     which    declares that any

omission,      commission or conduct of the respondent shall

constitute a domestic violence provided, it has the result

enumerated under (a) to (d) of Section 3. Evidently, an omission

by the     husband may also fall within the vice of a domestic

violence and it can possibly be argued that a passive conduct of

the husband or       even an inaction from the part of the

respondent, exposing his wife to be harassed or abused by the in-

laws, may fall within the definition of domestic violence. When

the wide definition takes in    various acts,  including even a

passive act or an inaction of the husband within the definition of



the domestic violence, can it be said that statute does not

contemplate a situation of domestic violence by the relatives

alone without the husband being guilty of even omission? Are

such women, merely for the reason that husband supports her,

or even not guilty of any laches, beyond the Protective Umbrella

of this Progressive statute ?

      11. The crucial Section to be considered herein is      the

definition of "Respondent" in section 2(q). 'Respondent' in a

proceeding under the Act 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 Act.     The proviso provides that in the case of an

aggrieved wife or a female living in a relationship in the nature

of marriage, she may file a complaint against a relative of the

husband or the male partner also.         Evidently, the proviso

enlarges the scope of the definition of 'respondent'. The Honble

Supreme Court in       Sandhya Manoj Wankhade v. Manoj

Bhimrao Wankhade and Others (2011 (2) KHC 515) has held

that the proviso widens the scope of definition of respondent 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. In

the above case, the Apex Court considered the question as to

whether the legislature intended to include the female relatives

of the husband or the male partner within the            ambit of

complaint. The Apex Court held that expression 'female' has not

been used in the proviso to Section 2(q), 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, the

females would have been specifically excluded, instead of it

being provided in the proviso that a complaint could be filed

against a relative of the husband or the male partner.

      12. Evidently, proviso enables an aggrieved wife to proceed

against any relative of the husband or the male partner, as the

case may be. It is pertinent to note that in the body of Section 2

(q), it is provided that respondent shall be a male person, who

has committed the domestic violence and against whom, the

aggrieved wife has sought relief. It eminently shows that in

cases other than covered by the proviso, the respondent shall be

a male, with whom aggrieved person has a domestic relationship



and against whom she has sought any relief under the Act.

However, the proviso does not make any distinction as to

whether relative proceeded against is a male or female, by

specifically denoting them as 'relative'. Evidently, proviso

throws     open the scope of the Act, as against any relative,

whether male or female.

      13. The body of section 2(q) enables an aggrieved person

to   proceed against the respondent who commits domestic

violence.     It is clear from a joint reading of Section 2(q) with

Section 2 (a), that the person who can initiate the proceedings is

denoted by the term 'woman'.           However, in the proviso to

Section 2(q), the expression has been carefully        used as an

aggrieved wife or female living in a relationship in the nature of

a marriage'. A combined reading of Section 2(a) and 2(q) shows

that though it enables any "woman" to proceed against any male

or relative in a domestic relationship, in the proviso the word

used is ' an aggrieved wife'. Evidently, the provision is a special

provision carved out of the general provision for the benefit of

an 'aggrieved wife' or a female living in a relationship in the

nature of marriage.       As distinct from the body of Section 2(a),


which refers to a 'woman', proviso to Section 2 (q) is an extended

provision      and therein specific provision     is made to 'an

aggrieved wife or female living in a relationship in the nature of

a marriage'. It is clear that this specific proviso is to protect an

aggrieved wife or female who is living in a relationship in the

nature of a marriage.

      14. A careful reading of the second limb of the proviso

further clarifies the scope of it. It provides that such a person

" may also file a complaint" (emphasis supplied). This provision

appears to have been very carefully drafted, which enables such

person to file "a complaint" and not merely to seek a relief.

Emphasis has to be made to the word 'may' 'also' as well as to

'complaint'.     It provides that she may, in addition to other

remedies, file a complaint also against a relative of the husband

or male partner. It is clear that an aggrieved wife or a female

in a relationship in the nature of marriage, may, in addition to

other reliefs "may also"    independently file a complaint.       It

enables the wife to file a complaint against a relative of the

husband also . It is evident that it is not worded as if she may

file a complaint against the husband and his relatives or seek a


relief against the husband along with his relatives. It is not also

worded as to enable the       wife to seek a relief against the

relatives also. On the other hand, it specifically, categorically

and unambiguously permits her, apart from her all other

remedies, to file a complaint against the relatives of the husband

also, if they are the wrong doers. Evidently, wording is so clear

that it enables the wife to proceed against the relatives also,

without proceeding against the husband.       It does not in any

manner indicate that the husband should also be party. On the

other hand, it clearly shows that the husband need not be a party

to the proceedings in appropriate cases.

      15. Now, it has to be       examined whether the above

interpretation to the proviso is in conformity with the other

relevant provisions of the Act and the general scheme of the Act.

The above interpretation naturally give rise to a question as to

how a complaint can lie against relatives alone when there is no

domestic relationship between the aggrieved person and the

wrong doer.     Conversely, when    a petition is filed against a

relative without arraying the husband,      how wife can be an

aggrieved person.     Section 2 (a) independently will give an



impression that the person against whom she alleges domestic

violence must be a person with whom the aggrieved person has a

matrimonial relationship.     The above doubt also arises out of

mistaken notion that the aggrieved person       in a matrimonial

violence should    always be linked directly to the respondent

through a       domestic relationship and that invariably     the

husband is      the abuser. This appears to be a narrow and

pedantic view without having regard to the statutory provision

and the social realities.   The proviso to Section 2(q) enlarges

the scope of respondent to include any relative also.         The

husband is not always      the abuser and there may be cases

wherein the relative is the wrong doer. It is also not as if, the

husband along with the relatives should be the wrong doers and

then alone it will constitute a domestic violence. The view, that

only if the husband, either independently or in combination with

relatives commit violence, it will fall within the vice of Section

3, has no statutory backing.

      16. Another reason is that the term "aggrieved person" is

conceptually always be linked to the respondent,       through a

domestic relationship. In other words, aggrieved person as well



abuser shall always be linked through a domestic relationship.

This arises because of Section 2(a) which defines 'aggrieved

person' as a person who is, or has been, in a domestic

relationship with the respondent, which in the case of a

matrimonial relationship is the husband and wife.    However,

proviso to Section 2 (q) enlarges the scope and contours of the

definition of the respondent to include the relatives of the

husband also.

      17. The wrong doer is brought under a strange definition

of 'respondent' which appears to be a wrong phraseology, since

it is the nomenclature used to denote the opposite party in a

legal proceedings. By adopting the same nomenclature for the

wrong doer also,     it conveys a wrong impression that the

respondent in the petition under the Act is always the wrong

doer and should also be a party to domestic relationship with

the petitioner and vice versa also.     The Supreme Court in

S.R.Batra and Another v. Smt.Taruna Batra (2007 (3) SCC

169), which had occasion to interpret the scope and ambit of

definition of "shared household" had opined that 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.     The

apparent doubt that arise while interpreting Section 2 (a) and 2

(b) along with proviso to Section 2 (q) is also partly due to the

improper terminology of the 'respondent'. However, in the light

of the object of the statute and the clear intention of the

Parliament in incorporating the proviso to Section 2 (q), all

provisions will have to be harmoniously interpreted to advance

the object of the statute.

      18. Though it may appear that an aggrieved wife can

proceed against any relative of the husband even if they have

never shared a household, it is not correct. Proviso to Section

2(q), has to be read as an enlargement of the body of Section 2

(q)   and    read along with  Sections 2(a),   2(f) and 2 (s) in

conjunction with the definition of 'domestic violence', as

contemplated under Section 3. It would indicate that even if

the husband is not a party to the proceedings, the respondent

should be one related to the aggrieved person through the

husband, by matrimonial relationship or a relationship in the

nature of marriage, must have shared a household at any point

of time and has committed the domestic violence.


      19. Evidently, proviso to Section 2(q) is of wide sweep, to

take in matrimonial violence of any nature, provided, both the

parties are connected by a matrimonial relationship or

relationship in the nature of matrimony, however distant, the

relation may be. Evidently the right conferred on an aggrieved

wife or a woman involved in a relation similar to that of a

marriage, is against relatives of her husband or partner only

and not against her own relatives sharing the same house.

Obviously, latter disputes are not presumed to be matrimonial

dispute and hence outside the scope of the proviso.       Bismi

Sainudheen v. P.K.Nabeesa Beevi and Others (2013 (4) KHC

245), was a case in which an aged lady filed M.C proceedings

under Section 12 of the Act, against her son.        Pending the

proceedings, she filed an application to implead the daughter-in-

law, which was opposed by the daughter in-law on the ground

that she will not fall within the definition of respondents.

Ultimately, when the matter came up before this Court, the

question that was considered by this Court was whether the

daughter-in-law will fall within the sweep of Section 2(q). The

court, relying on the various authorities and the concept



involved, held that the daughter-in-law will also fall under the

sweep of Section 2 (q). It is true that in that case, the husband

of the aggrieved person was not a party, he being no more.

Further it was not a proceeding arising out of a matrimonial

dispute, but was dispute by a woman against her son and

daughter-in-law. Hence, the law involved in that case was not

one involved in the present case. Though the Court, in that

case relied on the decision laid down in Sandhya Manoj's case

(supra), Supreme Court in that case was considering the

question whether the term relatives referred to in the proviso to

Section 2 (q) includes females also. The proviso, pre supposes

that the action is initiated either by the aggrieved wife or a

female in a relationship in the nature of a marriage and in such

a situation alone she can proceed against the relatives of the

husband or the partner, as the case may be, irrespective of

whether the relative is male or female.      However, in Bismi's

case, court was not dealing with a situation similar to that of

Sandya Manoj's case.

      20.In the light of the above discussion, it is clear that a

proceeding against the relative of the husband is perfectly



maintainable without the husband being in the party array and

without any relief being sought against him, if it falls within

proviso of Section 2(q). Reference is answered accordingly.

      Matter may be placed before the learned Single Judge for

consideration of the issue involved, in accordance    with the

above findings.

                                     Sd/-

                     THOTTATHIL B.RADHAKRISHNAN
                                   Judge


                                     Sd/-
                               SUNIL THOMAS
                                    Judge


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