Second respondent in M.C.36/2009 on the file of Judicial First Class Magistrate Court-II, Thiruvananthapuram, a petition filed under section 12 of Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as the Act,) is the petitioner. Respondents 1 and 2 are the petitioners before the Magistrate. This petition is filed under section 482 of the Code of Criminal Procedure to quash the proceedings as against her contending that the allegations in Annexure A complaint do not disclose or prove any domestic violence as defined under section 3 of the Act, and first respondent has no right over the property of the petitioner and it is not a shared household. It is contended that petitioner being a female person is not a respondent as defined under section 2(q) of the Act and therefore proceedings under the Act as against the petitioner is not maintainable and is to be quashed.

2. Learned counsel appearing for the petitioner was heard.

3. The argument of the learned counsel is that respondent as defined under section 2(q) of the Act can only be a male person and not a female and therefore the proceedings initiated by the learned Magistrate on Annexure A1 complaint as against the petitioner is not sustainable and is an abuse of process of the court and hence it is to be quashed. It is also argued that the house involved in the petition is the exclusive property of the petitioner and is not a shared household of respondents 1 and 2 and on that ground also the petition is not maintainable. Relying on the decision of Madhya Pradesh High Court in Ajay Kant v. Smt.Alka Sharma (2008(Crl.L.J.) 264), learned counsel argued that a female person could be proceeded against under the Act only on a complaint for violation of an order under section 18 or 23 and proceedings under section 12 of the Act cannot be continued before the learned Magistrate against the petitioner. Relying on the decisions of this court in Surendran v. State of Kerala (2009(3) KLT 967) and the High Court of Andhra Pradesh in Mohammad Maqeenuddin Ahmed v. State of A.P,(2007 Crl.L.J.3361) it was argued that High Court has jurisdiction to quash a petition filed under section 12 of the Act pending before the Magistrate and when continuation of the proceedings as against the petitioner is an abuse of process of the court, it is to be quashed.

4. The questions to be decided in the petition are:-

1. Whether a female person could be a respondent, in a petition filed under section 12 of the Act.

2. Whether the powers under section 482 of Code of Criminal Procedure is to be invoked, to quash a petition filed under section 12 of the Act, on the ground of abuse of process of the court or on the ground that petitioner before the Magistrate is not an aggrieved person or respondent is not a respondent as defined under the Act or the disputed house is not a shared household, as provided under the Act.

5. Clause (a) of Section 2 defines "an aggrieved person as "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." As is clear from the definition, an aggrieved person provided under the Act can only be a woman. Respondent is defined under clause (q) of Section 2 as follows:-

"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.

If there is no proviso to clause (q), it could be contended that a respondent could only be a male person and a female person cannot be the respondent. But under the proviso an aggrieved wife or a female living in a relationship in the nature of marriage can file a complaint against a relative of the husband.