1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.590 OF 2008
Archana Hemant Naik ...Applicant
vs.
Urmilaben I. Naik and Anr. ...Respondents
Ms Anjali Helekar for the applicant
Mr.C.M.Kothari for respondent no.1
CORAM :A.S.OKA,J.
DATE OF HEARING THE LAST ARGUMENT: JULY 3, 2009
DATE OF PRONOUNCEMENT OF THE JUDGMENT: AUGUST 25,2009
JUDGMENT :
1 The revision applicant is an applicant in an
application under section 12 of the Protection
of Women from Domestic Violence Act,2005
(hereinafter referred to as the said Act). In
the said application, the applicant had
impleaded six opponents. The first opponent
Hemant is the husband of the applicant. The
applicant married to said Hemant on 9th May 1986.
The second opponent in the said application is
the brother- in-law of the revision applicant.
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The fourth opponent is the wife of the second
opponent. The third opponent is the mother-in-
law of the revision applicant. The third
opponent in the said application has been
impleaded as the first respondent in this
revision application. The fifth opponent in the
said application under section 12 of the said
Act is the sister-in-law of the revision
applicant. The sixth opponent in the application
is the husband of the fifth opponent.
2 According to the case made out by the
revision applicant, she was residing along with
her husband and her in-laws in the house by the
name Jagan Villa at Nani-Daman. According to
the case of the revision applicant, on 22nd June
2004 in the afternoon, she was assaulted and
thrown out of the said house by her husband. It
is alleged that the revision applicant was
working as a teacher and while she was staying
with her husband, her entire salary was being
taken by her husband and in-laws and therefore
she has no savings. In the application, she has
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referred to the criminal complaint filed by her
as well as a petition for divorce filed by her
husband against her. By filing the said
application under section 12 of the said Act,
she claimed maintenance from her husband. She
also claimed house accommodation or share of her
husband in her father-in-law s two bungalows by
the name Jagan Villa and Mani Villa at Nani
Daman.
In the said application under section 12
of the said Act, the revision applicant applied
for interim order under section 23 of the said
Act. The said application was opposed by the
opponents to the said application. A reply was
filed by the opponents to the said application
for contesting the said application. The
allegations made by the revision applicant were
denied in the said reply. It was contended that
the proceedings against the said Act can be
initiated only against the male persons and
therefore, the proceedings as against the
opponent nos.3,4 and 5 was not maintainable. It
was contended that the opponent no.1-husband
has no title to the houses in respect of which
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reliefs were claimed. It is contended that the
opponent no.1 was residing in the house of his
mother, i.e, the first respondent herein and
therefore the house in respect of which relief
was sought by the revision applicant cannot be
termed as a shared household. The learned
Magistrate by order dated 5th March 2008 granted
interim relief directing the husband of the
revision applicant to allow the residence of the
applicant with him in house 14-113/C
(hereinafter referred to as the said house).
The learned Magistrate directed the opponent no.
2 Manoj and his sister Varsha not to create any
panic in any form of harassment to the
applicant. The husband was directed to observe
and follow the order. The officer in charge of
Nani Daman police station was directed to make
available one male and one female constable to
the applicant as per her demand for her
protection. The protection officer was directed
to assist the revision applicant for enforcement
of the order.
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3 The first respondent (mother-in-law of the
revision applicant) preferred an appeal for
challenging the said order. The main contention
in the appeal was that the first respondent
purchased two plots at Narayan Park, Nani Daman
under a sale deed dated 5th February 1998 and
thereafter, she had constructed the said house
bearing No.14/113/C (Jagan villa). The case is
that the said house is exclusively owned by her.
4 By Judgment and Order dated 2nd September
2008, the Appeal was allowed by setting aside
the order of the learned Magistrate to the
extent to which it affected the first respondent
and other female opponents. The main
application as against the female opponents was
dismissed. The learned Sessions Judge held that
the proceedings under section 12 of the said Act
was not maintainable against female persons in
view of section 2 (q) of the said Act. The
learned Judge held that the documents placed on
record show that the first respondent was the
owner of the said house and therefore, the said
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house cannot be treated as a shared household.
5 By order dated 20th April 2009, this revision
application was ordered to be disposed of
finally at the stage of admission. The learned
counsel for the applicant submitted that the
learned Sessions Judge has committed an error by
holding that an application under section 12 of
the said Act was not maintainable against the
female relatives of the husband. She pointed
out that the reference in section 2 (q) of the
said Act to the relatives of the husband is
also to the female relatives of the husband.
She pointed out the proviso to sub section 1 of
section 19 of the said Act which provides that
the order under clause (b) directing the
respondent to remove himself from the share
household cannot be passed against any person
who is a woman. The learned counsel submitted
that the very fact that the said proviso finds
place in the said Act shows that the an action
is maintainable against the female relatives of
the husband except where a relief under clause
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(b) of sub section 1 of section 19 has been
prayed for. She submitted that the learned
Sessions Judge has narrowly construed the
definition of section 2 (s) of the said Act.
The very purpose of enacting the said Act will
be defeated if the narrow interpretation put by
the learned Sessions Judge to the provisions of
the said Act is accepted. She, therefore,
submitted that the impugned order of the learned
Sessions Judge is perverse.
6 The learned counsel for the first respondent
placed reliance on the decision of the Apex
Court in the case of S.R.Batra and another Vs.
Taruna Batra [(2007) 3 SCC 169]. He submitted
that in view of the said decision, merely
because the applicant stayed with her husband in
the house of the first respondent, the said
house does not become a shared household within
the meaning of section 2(s) of the said Act.
He pointed out that the Apex Court has held that
in order to claim right to a house as a shared
household, the house must belong to the husband
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or it must have been taken on rent by the
husband. A house which is owned by the joint
family of which the husband is a member can also
be a shared household. He submitted that no
such right has been established by the revision
applicant and on the contrary the documentary
evidence on record shows that the said house was
exclusively owned by the first respondent.
Relying upon another decision of in the case of
Vimlaben Ajitbhai Patel Vs. Vatsalaben A. Patel
[(2008) 4 SCC 649], he submitted that the entire
burden was on the revision applicant to prove
that the house was a shared household. He
placed reliance on the decision of Madhya
Pradesh High Court in case of Ajay Kant and
others Vs. Smt.Alka Sharma [(2008) Cri.L.J.
264]. He submitted that the Madhya Pradesh High
Court held that the proceedings under section 12
of the said Act was maintainable only against an
adult male person. He also relied upon the
decision of Andhra Pradesh High Court in the
case of Meenakuru Renuka and others vs. Menakuru
Mona Reddy and another [AIR 2009 (NOC) 1544].
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He submitted that the said High Court held that
the complaint under section 12 as against the
female relatives of the husband was not
maintainable.
7 I have carefully considered the submissions.
The proceedings under the said Act is to be
initiated by way of making an application to
the court of a Magistrate. The application is to
be filed by an aggrieved person . The
application can be also filed by the
protection officer or by any other person on
behalf of the aggrieved person. An aggrieved
person has been defined by clause (a) of
section 2. An aggrieved person can be any
woman. A woman can be an aggrieved person 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. Under section 2 of the said Act,
domestic violence has been defined by clause
(g) which provides that domestic violence has
the same meaning assigned under section 3.
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Section 3 reads thus :
3.Definition of domestic violence- For the
purposes of this Act, any act, omission or
commission or conduct of the respondent
shall constitute domestic violence in case
it –
(a) harms or injuries or endangers the
health,
being,
ig safety,
whether
life,
mental or
limb or
physical,
well-
of
the aggrieved person or tends to do so
and includes causing physical abuse,
sexual abuse, verbal and emotional abuseand economic abuse; or
(b)harasses, harms, injuries or
endangers the aggrieved person with a
view to coerce her or any other personrelated to her to meet any unlawful
demand for any dowry or other property
or valuable security; or
(c)has the effect of threatening the
aggrieved person or any person related
to her by any conduct mentioned in
clause (a) or clause (b); or
(d)otherwise injuries or causes harm,
whether physical or mental, to the
aggrieved person.
Explanation I For the purposes of
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11this section-
(i) physical abuse means any act or
conduct which is of such a nature as
to cause bodily pain, harm, ordanger to life, limb, or health or
impair the health or development ofthe aggrieved person and includes
assault, criminal intimidation and
criminal force;
(ii) Sexual abuse includes any
conduct
ig of a sexual nature that
abuses, humiliates, degrades or
otherwise violates the dignity of
woman;
(iii) verbal and emotional abuse
includes-
(a) insults, ridicule,
humiliation, name calling and
insults or ridicule specially
with regard to not having a
child or a male child; and
(b) repeated threats to
cause physical pain to any
person in whom the aggrieved
person is interested.
(iv) economic abuse includes -
(a) deprivation of all or any
economic or financial resources to which
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12the aggrieved person is entitled under
any law or custom whether payable under
an order of a court or otherwise or
which the aggrieved person requires out
of necessity including, but not limited
to, household necessities for the
aggrieved person and her children, if
any, stridhan, property, jointly or
separately owned by the aggrieved
person, payment of rental related to the
shared household and maintenance;
(b) disposal of household effects, any
alienation of assets whether movable or
immovable, valuables, shares,
securities, bonds and the lands or other
property in which the aggrieved person
has an interest or is entitled to use by
virtue of the domestic relationship or
which may be reasonably required by the
aggrieved person or her children or her
stridhan or any other property jointly
or separately held by the aggrieved
person; and
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(c)prohibition or restriction to
continued access to resources or
facilities which the aggrieved person is
entitled to use or enjoy by virtue of
the domestic relationship including
access to the shared household.
Explanation II- For the purpose of
determining whether any act, omission,
commission or conduct of the respondent
constitutes domestic violence under
this section, the overall facts and
circumstances of the case shall be taken
into consideration.
4. The word respondent has been defined by
section 2 (q) 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
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14female living in a relationship in the
nature of a marriage may also file acomplaint against a relative of the
husband or the male partner.
8 The first part of clause (q) provides that
the respondent means any adult male person who
is or has been in domestic relationship with the
aggrieved person and against whom the aggrieved
person has sought any relief under the said
Act. The proviso carves out an exception to
the rule that a 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 the relative of the husband or
male partner. Reference to the male partner in
the proviso is because the proviso applies to a
female living in relationship in the nature of
marriage. 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. The proviso carves out an
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exception to the definition of respondent in
section 2 (q). In the two cases where proviso
is applicable, an application under section 12
will lie even against a relative of the husband
or male partner, as the case may be. It is
important to note that the proviso refers to a
relative and not to a male relative. The
definition of domestic relationship under
section 2(f) is very wide. However, a domestic
relationship between a wife and a husband or a
female and a male partner are the only two
categories included in the proviso to section
2(q). The question to be decided is whether
a relative of the husband or a relative of the
male partner referred to in the proviso to
clause (q) of section 2 can only be a male
relative?
9 Under the said Act, different kinds of
reliefs can be granted to the aggrieved
persons. The said reliefs are as under :
(a) Protection order under section 18
for prohibiting acts of domestic
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16violence.
(b) Residence orders under section 19,
in relation to a shared household
(c)Monetary reliefs under section 20
in the nature of medical expenses or
maintenance etc.
(d) Custody orders under section 21
relating to children; and
(e) Compensation orders under section
22.
10
Under section 23 of the said Act, power to
grant interim and ex parte ad-interim orders in
terms of sections 19, 20, 21 or 22 of the said
Act has been conferred on a Magistrate. It
must be borne in mind that in view of the
definition in section 2 (q), normally the
respondent can only be an adult male person. By
virtue of proviso, in certain cases to which
the proviso applies, any relative of the husband
or male partner, as the case may be, can be a
respondent. As stated earlier, proviso applies
when the aggrieved person is a wife or a female
living in a relationship in the nature of
marriage. If such aggrieved wife or female
files a complaint, she can do so even against
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a relative of the husband or a relative of the
male partner, as the case may be. The question
is whether such relative can be a female. In
this context it will be necessary to consider
section 19 of the said Act which reads thus :
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 therespondent 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 person resides;
(d) restraining the respondent from
alienating or disposing off the shared
household or encumbering the same ;
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(e) restraining the respondent from
renouncing his rights in the sharedhousehold except with the leave of the
Magistrate; or
(f) directing the respondent to secure same
level of alternate accommodation for theaggrieved person as enjoyed by her in the
shared household or to pay rent for the
same, if the circumstances require:
. Provided that
ig no order under clause (b)
shall be passed against any person who is a
woman.
11 As per the proviso to section 2(q), in
case of any aggrieved wife or a female living in
a relationship in the nature of marriage, the
relative of the husband or male partner can be
a respondent. If a wife or a woman to whom the
proviso is applicable is compelled to seek
residence order in respect of a shared
household only as against the male relatives of
her husband or male partner, as the case may
be, the order under section 19 of the said Act
will be completely ineffective in as much as
the female relatives of the husband or the
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19male 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 the shared household. On
plain reading of the proviso to section 2(q) it
is clear that a relative referred to in the
proviso is not only a male relative. The main
section specifically uses the word male Even
the proviso refers to male partner.
Therefore, whenever the legislature intended,
the word male has been used in the main
section and its proviso. But while referring to
relative of the wife or the woman referred to in
proviso, the word male has not been used.
In case of two domestic relationships covered by
proviso to section 2(q) viz; (i) relationship
between wife and husband and (ii) a relationship
in the nature of marriage between a female and
her male partner, the respondent can be any
relative of the husband or male partner. It
cannot be the intention of the legislature that
the relative in the proviso can only be a
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male relative. This fact is abundantly clear
from the proviso to sub section 1 of section 19.
The legislature has clarified by the said
proviso 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. The very fact
that proviso to sub-section (1) of section 19
has been enacted shows that an order under some
other
clauses of sub-section (1) of section 19
except clause (b) can be passed against a woman
who is a relative of the husband or the male
partner to whom the proviso to section 2(q)
applies. If a narrow interpretation is put to
proviso to section 2 (q) to the effect that the
relative referred to therein is only a male
relative, the aforesaid proviso to sub-section
(1) of section 19 becomes meaningless. If it is
accepted that in no case a relief under section
19 can be granted against a woman, then the said
proviso to sub-section (1) becomes redundant.
The legislature contemplated that the residence
order under sub-section (1) of section 19 could
be passed even against any female who is a
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relative of a husband or a relative of a male
partner referred to in the proviso to section
2(q) and therefore, the proviso to sub-section
(1) has been enacted to prevent an order of
dispossession under clause (b) being passed
against a woman relative of the husband or a
male partner.
12 Under
clause (a) of sub-section (1) of
section 19 the respondent can be restrained from
disturbing the possession of the aggrieved
person of the shared household whether or not
the respondent has any legal or equitable
interest in the shared household. In a case
where an aggrieved person is a wife or a female
referred to in proviso to sub-section 2(q), if
the relative of the husband or the male partner
was to include only the male relative, the
grant of residence order in terms of clause (a)
will serve no purpose and will become redundant
as such order will not bind the female relatives
of the husband or the male partner, as the
case may be, who are residing in the shared
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household. The same is the case with the
residence order under clause (c) of sub section
(1).
13 It must also be remembered that section 2(q)
specifically uses the word adult male member
or male partner. If the intention of the
legislature was that the relative of the
husband or the male partner referred to in the
proviso has to be only a male relative, the
legislature would have specifically used the
word male in the proviso. As set out
earlier, there is another reason why the
relative of the husband or male partner referred
to in the proviso to section 2(q) cannot be
only a male relative. The said reason is that
the proviso to sub-section (1) of section 19
clearly implies that the residence order in
terms of any of the clauses of sub-section (1)
of section 19 except clause (b) can be passed
against a respondent who is a woman. It is
obvious from the the proviso to section 2(q)
that a woman can be a respondent only in a case
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where the aggrieved person is the wife or the
female referred to in proviso to clause (q) of
section 2. From the proviso to sub-section (1)
of section 19 it becomes crystal clear that the
word relative used in proviso of section 2(q)
is not restricted to a male relative of the
husband or a male relative of the male partner.
Therefore, the word relative in proviso to
section 2(q) includes a female relative.
14 The relevant part of the statement of
objects and reasons of the said Act reads thus:
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,
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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 complaint against the wife
or the female partner.
(emphasis added)
Thus even the statement of objects and reasons
also refers to `any relative of the husband or
the male partner. In my considered view, the
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relative within the meaning of proviso to
section 2(q) cannot be only a male relative and
the relative referred to in proviso to clause
(q) of section 2 can also be a female relative
of the husband or the male partner, as the case
may be. Thus, when an aggrieved person is a
person to whom the proviso to section 2(q) is
applicable, a respondent in the application
under section
ig 12 can be a male or a female
relative of the husband or the male partner, as
the case may be. If an application under
section 12 is filed by such aggrieved person,
i.e, the wife or the female to whom proviso to
section 2(q) is applicable, or is filed on
behalf of such aggrieved persons, a female
relative of the husband or the male partner can
be a respondent However, whether a relief can
be granted against the female relative of the
husband or the male partner will depend on the
nature of the reliefs sought and the facts and
circumstances of the case. As stated earlier,
some of the reliefs such as a relief under
clause (b) of sub-section (1) of the section 19
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can never be granted against the female relative
of husband or the male partner. Similarly, as
held by the Apex Court in the case of S.R.Batra
(supra), a relief under clause (f) of sub-
section (1) of section 19 cannot be granted
against a relative of the husband or the male
partner. A relief can be granted against a
female relative of a husband or a male partner
only if a
relief against such a relative is
capable of being granted under sections 18 to 22
of the said Act.
15 Perusal of the decisions of Madhya
Pradesh and Andhra Pradesh High Courts shows
that the aforesaid aspects have not been
considered by the High Courts. To that extent
the learned Sessions Judge has committed an
error.
16 Now, it will be necessary to go back to
the facts of the case. The applicant is
claiming a relief in respect of a house which
according to her is a shared household. It is
observed in the impugned Judgment that
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documents placed on record which have not been
disputed by the revision applicant show that
the alleged shared household is standing in the
name of her mother-in-law, i.e, the first
respondent. A copy of the application under
section 12 filed by the revision applicant is
placed on record. In the said application, it
is alleged that the house was owned by the
father-in-law who is no more. However, as held
by the Sessions Court, the documents on record
show that the house stands in the name of the
mother-in-law. In view of the law laid down by
the Apex Court in the case of S.R.Batra and
another (supra), while considering the
application for interim relief, the learned
Sessions Judge was right in holding that the
documents placed on record prima facie show that
the property claimed by the applicant is the
property of her mother-in-law. It must be
noted that the learned Judge was not finally
deciding the application under section 12 but
was dealing with an application for interim
relief. Therefore, it is not possible to find
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fault with the impugned order. However, the
learned Sessions Judge has committed an error by
ordering deletion of the names of the female
relatives of the husband in as much as this case
is covered by the proviso to section 2(q) of the
said Act.
17 Hence, I pass the following order :
i)That part of the impugned order, by which
application under section 12 of the said Act
has been dismissed against the female
relatives of the applicant,is quashed and
set aside. It is clarified that the female
family members of the husband will continue
to be respondents to the application.
ii)Rest of the impugned order stands
confirmed.
iii)It is made clear that the learned trial
Judge will decide the main application under
section 12 of the said Act without being
influenced by the impugned order passed by
the Sessions Court. The findings recorded
by the Sessions Court are only prima facie
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29
findings.
iv)Revision Application is partly allowed
in above terms.
JUDGE
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