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High Court of Karnataka
THE HONOURABLE MR. JUSTICE K.L. MANJUNATH & THE HONOURABLE MR. JUSTICE B.S. PATIL
Smt. Leelavathi.S
Versus
Shri Murgesh & Others
CRL.R.P.No.56 of 2010
Decided on : 09-09-2010
The Proviso to Section 2(q) is couched in a language that does nto admit of a construction by which against all relatives of the husband/male partner of the aggrieved wife/lady in live-in relationship can seek relief under the Act bringing them within the ambit of the term ’respondent’. The meaning and definition of the term ’respondent’ assumes a very significant importance in the scheme and setting of the provisions of the Act. It is only the act of the ’respondent’ or omission, commission or conduct of the respondent that constitutes domestic violence in case it causes harm, injuries, etc., or results in physical, sexual, verbal and emotional and economic abuse as per Section 3.
It is clear from the various provisions contained in Sections 18 and 19 that protection orders as per Section 18 can be passed by the Magistrate against the ’respondent’ prohibiting from committing acts of domestic violence, aiding or abetting the commission of such acts. Hence, even where the respondent abets the commission or aids such commission of domestic violence through his female relatives, a protection order can be passed in favour of the aggrieved person. Therefore, it is not necessary to proceed under the impression that unless the proviso to Section 2(q) is given expanded meaning to extend the reach of the main definition clause defining the term ’respondent’, the intention and purpose of the Act will not be served. On the other hand, looking at the nature and sweep of the protection orders and residence orders that can be passed under Sections 18 and 19 of the Act and their impact on the ’respondent’, the term ’respondent’ as defined under Section 2(a) cannot be loosely interpreted or understood by expanding its extent, sweep and reach that too by placing such a construction on the proviso.
The protection orders, the residence orders, monetary reliefs, custody orders and compensation orders that can be passed under the provisions contained in Sections 18 to 22 of the Act, are though in the nature of civil reliefs granted to the aggrieved person against the respondent, the proceedings conducted by the provisions of the Code of Criminal Procedure, 1973, as per Section 28 of the Act. Moreover, breach of protection order by the respondent is made an offence as per Section 31 of the Act and is made punishable with imprisonment for a term which may extent to one year or with fine which may extend to Rs.20,000/- or with both. It is therefore clear that when an enact-ment provides serious reliefs and measures in favour of the aggrieved person directed against the ’respondent’ by clearly defining the term ’respondent’. It is not open to expand the meaning of the term ’respondent’ by a process of statutory construction of the Proviso so as to include the female relatives of the husband or the male partner sacrificing the rules of strict construction.
What is sought to be made clear by the Proviso to Section 2(q) is that an aggrieved wife or a female live-in relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner. Thus, the reference made in the Proviso is to the filing of a complaint against the relative of the husband/male partner. This cannot be construed to mean that she is clothed with a right to seek relief under the various provisions of the Act against the female relatives of the husband. What the proviso says is that the aggrieved wife or female partner is also given anoption tofile a complaint against th relatives of the husband or male partner. The reference to ’complaint’ in the Proviso has to be understood in the light of the provisions contained under Chapter III of the Act where under powers and duties of protection officers and police officers/service providers and magistrates are enumerated.
Such an opportunity is provided in the context of the duties and obligations cast on the police officers, service provider and magistrate to inform her about her right under Section 498-A of the IPC and of the obligation of the police officer to proceed in accordance with law for the commission of cognisable offence against such persons as is clear from Sections 5, 5(e) and the Proviso appended to Section 5. [R. Nivendran & ors. vs Nivashini Mohan @ M. Nivashini, [AIR 2010 NOC 688 (Mad): 2010 Ind. Law Mad 1264], Afzalunissa Begum vs State of A.P., AIR 2009 NOC 2840 (AP)], Varsha Kapoor vs Union of India & ors. [2010 Ind. Law, Del 1526], Dr. Vijayalakshmi Amma vs Bindu, [ILR 2010 (1) Ker 60] Dissented from. Amruth Kumar & anr. vs Smt Chithra Shetty & anr. 2010(1) KCCR 459:2010 (2) AIR Kar R 448: AIR 2010 Kant 687] Appropved].
1. This matter is referred by the learned Single Judge to the Division Bench raising the following legal question. “Whether the ‘respondent’ as referred to under Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 (‘the Act’, for short), would include a female ‘relative’?”
2. In the opinion of the learned Single Judge, the reference of the matter to the Division Bench was necessitated as there were different opinions expressed by different High Courts with regard to the definition of the expression ‘respondent’, particularly as regards the tenor and purport of the proviso to Section 2(q) of the Act, regarding the understanding of the expression ‘respondent’ as defined under Section 2(q). The learned Single Judge has noticed a judgment rendered by another learned Single Judge of this Court in the case of Amruth Kumar and Another vs Smt. Chithra Shetty & Another – 2010(1) KCCR 459, wherein it is held that the definition of the term ‘respondent’ contained under Section 2(q) of the Act, will not include ‘female relatives’. The learned Single Judge has expressed that this view expressed in Chitra’s case requires consideration by the Division Bench, particularly in the light of the decisions of various other High Courts on the point.
3. It is necessary to notice the context in which the definition of the term ‘respondent’ is incorporated in the Act under Section 2(q). The scheme of the Act provides a mechanism to protect women against violence of any kind occurring within the family. In the statement of objects and reasons appended to the enactment, after referring to Vienna Accord of 1994 and the Beijing Declaration of 1995, and the recommendation made by The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) recommending that the State parties should act to protect women against violence within the family, it is stated that though Section 498-A of the Indian Penal Code makes it an offence where a woman is subjected to cruelty by her husband or his relative, the civil law does not however address this phenomenon in its entirety and hence, keeping in mind the right guaranteed under Articles 14, 15 & 21 of the Constitution of India, this law was proposed to be enacted.
4. The Act assures and provides to the victims of domestic violence maximum protection against physical, sexual, economic and psychological violence. The expression ‘domestic violence’ is defined under Section 3 to encompass physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. Each one of these abuses is further defined in Section 3. The definition of ‘domestic violence’ is contained in Chapter-II of the Act. Chapter-III of the Act provides for powers and duties of Protection Officers, Service Providers, etc. Wherever an act of domestic violence has been or is being or is likely to be committed, any person may give information about it to the concerned Protection Officer.
5. As per Section 5, certain duties are cast on the Police Officers, Service Providers and Magistrate who has received a complaint of domestic violence or who was otherwise present at the place of incident of domestic violence to inform the aggrieved person of the right to make an application for obtaining reliefs by way of (a) protection order; (b) for monetary relief; (c) for custody order; (d) residence order; or (e) a compensation order. A duty is also cast on these authorities to inform the aggrieved person about the availability of the services of service providers, protection officers and of her right to avail free legal services. Section 5(e) specifically mentions that the Police Officers, Service Providers and Magistrate who has received the complaint or has come to know of the domestic violence or to whom the domestic violence is reported, to inform the aggrieved person of her right to file a complaint under Section 498-A of the Indian Penal Code wherever relevant, Proviso to Secti
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