DV case partly Quashed [Ajay Kant and Others Vs Smt. Alka Sharma]

HIGH COURT OF MADHYA PRADESH, JABALPUR BENCH AT GWALIOR*
(Miscellaneous Criminal Case No.1266/07)
*Ajay Kant and Others Vs Smt. Alka Sharma*
PRESENT
HON. SHRI JUSTICE B.M. GUPTA

Petitioners by Shri R.K. Sharma, Advocate.
Respondent by Shri Gaurav Samadiya, Advocate.

ORDER:19/06/07
The instant petition is for impugning the order dt.18th January,2007 passed
by Judicial Magistrate First Class, Gwalior in Criminal Case No.848/07,
whereby the learned Magistrate has issued notice to the petitioners on an
application filed by the respondent under section 12 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter referred to as "the
Act").
2. Brief facts of the case are that respondent Smt.Alka Sharma has filed one
application under Section 12 of the Act against the petitioners. On which
the learned Magistrate, vide order dated 18th January, 2007, has issued
notices to the petitioners. It has been averred in the application that the
respondent has married with petitioner No.1 on 16th of May, 2005 at Gwalior.
For a period of 4-6 months she became pregnant and thereafter the
petitioners started harassing the respondent demanding Rs.2 lacs and one
Maruti car from her parents. As the father of the respondent is a pensioner,
he could not fulfill the demand. He reported the matter to Mahila Police
Station at Padav, Gwalior on 2nd November, 2005 but the report was not
lodged and no action was taken. On 3rd February, 2006 the respondent
delivered a male child in the hospital. Thereafter, on 17th February, 2006
the petitioners separated the child from the respondent, kept him along with
them and deserted the respondent. Consequently, since 20st February, 2006
she is living in her matrimonial home without her son. Petitioners are
trying to declare the respondent as mentally sick and to remarry the
petitioner No.1. Admittedly, one application for divorce has been filed by
the petitioner No.1 against the respondent and the respondent has filed an
application under Section 125 of Cr.P.C. claiming maintenance from him and
also she has filed another application under Section 9 of the Hindu Marriage
Act for seeking a decree of restitution of conjugal rights against the
petitioner No.1. These applications are pending in the Family Court,
Gwalior. On these grounds, the respondent has prayed in the application for
taking legal action against the petitioners and also to punish them.
3. The aforementioned act of filing of the application by the respondent and
issuance of notice by the Court against the petitioners has been assailed by
the petitioners on various grounds. The grounds and decisions thereon are as
under :-
(A) That, the respondent was mentally sick before the marriage, which was
not disclosed by the respondent. On this ground, application for divorce has
been filed by petitioner No.1 on 15.5.06 in which proceedings for
reconciliation have been failed on 21.9.06. Only for creating pressure
against the petitioner No.1, the present application has been filed on false
grounds by the respondent on 23.11.06.
(B) That, in the application under Section 9 of the Hindu Marriage Act filed
by the respondent these facts have not been mentioned by her that on demand
of Rs. 2 lacs and one Maruti car, she has been harassed by the petitioners
and as such the application being on false grounds, proceedings based on it
ought to quashed. The grounds in the application are false or not, this fact
cannot be decided by this Court during this
summery proceeding under Section 482 of Cr.P.C. The truthfulness or
otherwise of the facts mentioned in the application can be decided by the
learned Magistrate after due inquiry under the procedure as prescribed by
the Act. Hence, the proceeding based on the application cannot be quashed by
this Court at this stage on these two grounds.
(C) That, as provided by Section 2(q) of the Act, such application under
Section 12 of the Act cannot be filed against the petitioners No.3 and 4 who
are the ladies. In Section 2(q) of the Act the term respondent has been
defined as under :-
(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.
Thus, it is provided by this definition that an application can be filed by
an aggrieved person including the respondent claiming relief under the Act
only against the adult male person. However, as per the proviso appended to
this provision, a 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. For understanding these two parts, i.e. the main part of the
Section and the proviso, it is necessary to understand the scheme of the
Act. The first three paragraphs of the statement of object and reasons under
which the bill No.116 of 2005 for passing the act was placed before the
parliament, are as under (published in the Gazette of India Extraordinary
Part II Section 2 page 22 dated 22nd August, 2005):-
"Domestic violence is undoubtedly a human rights issue and serious deterrent
to development. The Vienna Accord of 1994 and the Beijing Declaration and
the Platform for Action (1995) have acknowledged this. 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 that occurring within the family.
2.The phenomenon of domestic violence is widely prevalent but has remained
largely invisible in the public domain. Presently, where a woman is
subjected to cruelty by her husband or his relatives, it is an offence under
section 498A of the Indian Penal Code. The civil law does not however
address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law 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 is intended to protect the woman from being
victims of domestic violence and to prevent the occurrence of domestic
violence in the society.(Emphasis supplied)
Keeping these objects and reasons in mind to provide for more effective
protection of the rights of women guaranteed under the Constitution who are
victims of violence of any kind occurring within the family and for matters
connected therewith or incidental thereto, the bill was presented before the
parliament which has become the Act after passing the same by the
parliament. Thus, it cannot be lost sight of that the Act has been passed
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 is intended
to protect the woman from being victims of domestic violence and to prevent
the occurrence of domestic violence in the society. Thus, basically the act
has been passed to provide the civil remedy against domestic violence to the
women. However, as provided by Sections 27 and 28 of the Act, a Judicial
Magistrate of the
first class or the Metropolitan Magistrate has been empowered to grant a
protection order and other orders and to try the offence under the Act. Vide
Section 28 of the Act, it is mentioned that save as otherwise provided in
this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and
the offences under Section 31 shall be governed by the provisions of the
Code of Criminal Procedure, 1973. Vide sub-sections 3 and 4 of Section 19,
it is also provided that a Magistrate may require from the respondent to
execute a bond, with or without sureties, for preventing the commission of
domestic violence and such order shall be deemed to be an order under
Chapter VIII of the Code of Criminal Procedure, 1973 and shall be dealt with
accordingly. Chapter VIII of Cr.P.C. dealt with security for keeping peace
and for good behavior which runs from Section 106 to 124. In these Sections,
it is provided that for keeping the peace and maintaining good behavior, a
person can be directed by a Magistrate to execute a bond with or without
sureties and in case of non-compliance of such order, that person can be
detained into custody. Section 31 of the Act provides penalty for breach of
protection order passed by the Magistrate, which is punishable as an
offence. A protection order can only be passed under Section 18 of the Act.
To understand better the provisions of Sections 18 and 31 are required to be
perused, which are as under: -
Section18.The Magistrate may, after giving the aggrieved person and the
respondent an opportunity of being heard and on being prima facie satisfied
that domestic violence has taken place or is likely to take place, pass a
protection order in favour of the aggrieved person and prohibit the
respondent from-
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the
person aggrieved is a child, its school or any other place frequented by the
aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved
person, including personal, oral or written or electronic or telephonic
contact;
(e) alienating any assets, operating bank lockers or bank accounts used or
held or enjoyed by both the parties, jointly by the aggrieved person and the
respondent or singly by the respondent, including her Stridhan or any other
property held either jointly by the parties or separately by them without
the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who
give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
Section 31. (1) A breach of protection order, or of an interim protection
order, by the respondent shall be an offence under this Act and shall be
punishable with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to twenty thousand rupees,
or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried
by the Magistrate who had passed the order, the breach of which has been
alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrate may also
frame charges under section 498-A of the Indian Penal Code or any other
provision of that Code or the Dowry Prohibition Act, 1961, as the case may
be, if the facts disclose the commission of an offence under those
provisions.
The offence under Section 31 of the Act will be cognizable and non-bailable
as provided under Section 32 of the Act.
Section 8 of the Act provides for appointment of the Protection Officer and
Section 33 of the Act provides for penalty for not discharging duty by the
Protection Officer. Despite, as mentioned in the objects and reasons that
for providing a civil remedy, this act has been enacted, the provisions of
Sections 19, 27, 28, 31 to 33 clearly mention that some of the proceedings
under the Act are of criminal nature. Under Section 19 to 22 of the Act an
order to provide residential facilities, monetary reliefs, custody order for
a child and compensation can be ordered by the Magistrate under the Act.
Except a part of Section 19 with regard to direction of execution of a bond
and dealing the same as provided under Chapter VIII of the Cr.P.C., all the
reliefs under Sections 18 to 22 appear to be of civil nature. Thus, some of
the proceedings under this Act can be said to be of civil nature and some of
the proceedings can be said to be of criminal nature.
Section 12 of the Act provides that an application (not a complaint) for
seeking one or more reliefs under the Act can be filed. On perusal of
Sections 18 to 22 of the act, it appears that the reliefs under these
sections as mentioned herein above can be passed on the application under
Section 12 of the Act. The word complaint as appeared in the definition of
respondent under Section 2(q) of the Act has not been defined anywhere in
the Act. Although it is not provided that the definition of complaint can be
considered the same as provided under the Cr.P.C. but at the same time it is
also not prohibited. In view of this, the definition of complaint can
appropriately be seen in Cr.P.C. which goes as under :-
2(d) "complaint" means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some
person, whether known or unknown, has committed an offence, but does not
include a police report.
It is clear by this definition that a complaint as provided in Cr.P.C. can
only be for an offence. As mentioned hereinabove only two offences have been
mentioned in this Act and those are (1) under Section 31 and (2) under
Section 33. It appears that this word complaint appeared in the definition
of respondent has been used for initiating proceedings for these two
offences and an aggrieved wife or female living in a relationship in the
nature of a marriage has been given a right to file a complaint against a
relative of the husband or the male partner. This word complaint cannot be
considered beyond the scope of the main provision of this Section which has
been defined in first part of Section 2(q) that is for any relief under this
Act. As provided in Section 31 of the Act, a complaint can be filed against
a person who has not complied with a protection order or interim protection
order.
Thus, it is clear by the definition of respondent that for obtaining any
relief under this Act an application can be filed or a proceeding can be
initiated against only adult male person and on such application or under
such proceeding, aforementioned protection order can be passed. Obviously
those orders will also be passed only against the adult male person. As
provided under Section 31 of the Act, non-compliance of a protection order
or an interim protection order has been made punishable and as such it can
be said that the complaint for this offence can only be filed against such
adult male person/respondent who has not complied with the protection order.
Hence, it is clear that the application under Section 12 of the Act which
has been filed by the respondent against petitioners No.3 and 4, who are not
adult male persons, is not maintainable.
(D)The proceeding has also been assailed on the ground that before issuance
of the notice, learned Magistrate has recorded the statement of the
respondent which is not required. It is true that recording of statements as
provided under Sections 200 and 202 of Cr.P.C. is not required before
issuance of the notice because application under Section 12 of the Act is an
application and not a complaint. However, this action of the learned
Magistrate cannot be a ground for quashing the proceedings because as
provided by sub-section 2 of Section 28 of the Act, the Court/learned
Magistrate is not prevented from laying down its own procedure for disposal
of an application under Section 12 of the Act.
(E) The proceeding has also been assailed on the ground that no report from
the Protection Officer under Section 12 of the Act has been called.
Sub-section 1 of Section 12 of the Act goes as under:-
12.(1) An aggrieved person or a Protection Officer or any other person on
behalf of the aggrieved person may present an application to the Magistrate
seeking one or more reliefs under this Act: Provided that before passing any
order on such application, the Magistrate shall take into consideration any
domestic incident report received by him from the Protection Officer or the
service provider; On perusal of the aforementioned proviso appended to the
provision, it appears that before passing any order on the application, it
is obligatory on a Magistrate to take into consideration any report received
by him from the Protection Officer or the service provider. Neither it is
obligatory for a Magistrate to call such report nor it is necessary that
before issuance of notice to the petitioners it was obligatory for a
Magistrate to consider the report. The words before passing any order
provide that any final order on the application and not merely issuance of
notice to the respondent/the petitioners herein. The words any report also
mention that a report, if any, received by a Magistrate shall be considered.
Thus, at this stage if the report has not been called or has not been
considered, it cannot be a ground for quashing the proceeding.
(F) The last ground raised by the petitioners is that in the application the
relief of penalizing the petitioners has been prayed for, which is beyond
the provisions of the Act. On perusal of the last paragraph of the
application, it is prayed that after registration of the case, petitioners
be legally penalized. It is true that at this stage in the application it
was not required for the respondent to claim such relief, however, if it has
been claimed, this cannot be a ground on which the proceedings can be
quashed. At the most, such reliefs if unnecessary, can be negated.
4. Although it is not argued yet it appears appropriate to mention that any
order passed by the learned Magistrate under the Act is appealable as
provided by Section 29 of the Act. Usually when an opportunity to assail the
impugned order in revision or appeal is available, taking recourse under
Section 482 of Cr.P.C. is not required. However, it is observed by the Apex
Court in para 26 in the case of Pepsi Foods Ltd. and another Vs. Special
Judicial Magistrate and others, (1998) 5 Supreme Court Cases 749 that some
time for immediate relief Section 482 of the Code or Article 227 may have to
be resorted to, for correcting some grave errors that might be committed by
the subordinate courts. Considering the steps taken by the learned
Magistrate against the petitioners No.3 and 4, this petition has been
considered herein.
5. In view of all, as discussed hereinabove, the petition deserves to be
partly allowed. Consequently, it is partly allowed. The proceeding against
petitioners No.3 and 4 is quashed. It is directed that the learned
Magistrate will deal the application as provided under the various
provisions of the Act and as observed hereinabove.