IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J
Abhiram Gogoi - Appellants
Vs.
Rashmi Rekha Gogoi - Respondent
Criminal Revision Petition No. 266 of 2010
Decided On: 03.03.2011
Protection of Women from Domestic Violence Act, 2005 – Sections, 12, 18, 19, 20, 21, 2(a), 2(q), 2(f), 2(s) and 2(n) - Sections 4 and 5, Clause (c) of Sub-section (1) of Section 9 - Legal Services Authorities Act, 1987 – Section 9(d) - Code of Civil Procedure, 1908 - Seeking Maintenance order - Order for payment of compensation or damages - Prejudice to the right - Revision petition is directed against the judgment passed by learned Chief Judicial Magistrate in C.R. Case No. directing the Petitioner herein to pay as maintenance per month, to Respondent herein and per month, to the Respondents minor child, w.e.f. date of filing of petition by Respondent - Ground order has been made on the basis of an application made by an aggrieved person without obtaining any domestic incident report from Protection Officer - Revision raises - Whether it is mandatory for a Magistrate to obtain a domestic incident report before Magistrate passes an order – Held, Protection Officer before making application to a Magistrate for a maintenance order, it cannot be read into the scheme of the said Act that an application by an aggrieved person must necessarily be accompanied by a domestic incident report said Act makes it clear that an aggrieved person can directly make an application to a Jurisdictional Magistrate if she is subjected to domestic violence - Obliges an aggrieved person to, first, make a complaint to a Protection Officer and, then, approach the Magistrate concerned. Section 12 takes care of a situation, if a situation so arises, where a Magistrate has before him, apart from an application, made by an aggrieved person, a domestic incident report. This does not mean that the absence of a domestic incident report denudes the Magistrate of his power to make a maintenance order - Petition dismissed
Iqbal Ahmed Ansari, J.
1. This revision petition is directed against the judgment dated 30.9.2009, passed by the learned Chief Judicial Magistrate, Tinsukia, in C.R. Case No. 154C/2007, directing the Petitioner herein to pay, as maintenance, Rs. 4,000, per month, to the Respondent herein and Rs. 1,000, per month, to the Respondent's minor child, w.e.f. the date of filing of the petition by the Respondent herein, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ('the Domestic Violence Act'), against her husband (i.e., the Petitioner herein). In effect, thus, the present revision petition puts to challenge maintenance order made under Section 18 of the Protection of Women from Domestic Violence Act, 2005 ('the said Act') on the ground that the order has been made on the basis of an application made by an aggrieved person without obtaining any domestic incident report from the Protection Officer, though no maintenance order, it is contended, on behalf of the Petitioner, can be made, under Section 18 of the said Act, without obtaining the domestic incident report from a Protection Officer.
2. The moot question, therefore, which this revision raises is: Whether it is mandatory for a Magistrate to obtain a domestic incident report before the Magistrate passes an order under Section 18, (which relates to maintenance orders), Section 19, (which relates to residence orders), Section 20, (which relates to monetary reliefs) and/or Section 21, (which relates to custody orders) of the said Act?
3. My quest for an answer to the above question brings me, first, to the definition of 'aggrieved person' because without correctly understanding the meaning of the expression 'aggrieved person', it may not be possible to answer correctly the question posed in this application.
4. An 'aggrieved person', as defined by Section 2(a) of the said Act, 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.
5. It is, now, necessary to note that the expression, 'Respondent', according to Section 2(q), means any adult male person, who is, or has been, in a demesne relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.
6. Coupled with the above, domestic relationship, as Section 2(f) of the said Act defines, 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.
7. It is also necessary to note that shared household, according to Section 2(s) of the Domestic Violence Act, means a household, where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the Respondent and includes such a household, whether owned or tenanted, either jointly by the aggrieved person and the Respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the Respondent or both jointly or singly have any right, title interest or equity and includes such a household, which may belong to the joint family of which the Respondent is a member, irrespective of whether the Respondent or the aggrieved person has any right, title or interest in the shared household.
8. So far as the expression 'domestic violence' is concerned, the same is defined by Section 3 to, broadly speaking, mean any act, omission, commission or conduct of the Respondent, which would harm, injure or endanger the health, safety, etc., of the aggrieved person.
9. An 'aggrieved person', therefore, means a woman, who is, or has been, in a relationship, which is in the nature of domestic relationship as defined in Section 2(f) of the said Act and who has been subjected to domestic violence by any act, omi
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