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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