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Case Number

Crl. R.P No. 2568 of 2008

Attorney(S)

For the Appellant: A.T. Anilkumar, P. Dalbi Emmanuel, Advocates.
For the Respondent: C.M. Nazar, Advocate.

Judges

V. Ramkumar, J.

Acts

Ss. 12, 19(9) and 22 of the Protection of Women from Domestic Violence Act, 2005 (the Act for short)

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Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

This Revision arises under Sections 397 read with 401 of the Code of Criminal Procedure (Cr. P.C.). The petitioners in this Revision are respondents 3 to 5 in M.C. No. 4 of 2008 before the Chief Judicial Magistrate, Thodupuzha. They challenge the Magistrate's order dated 10.7.2008 which dismissed their petition (C.M.P. No. 3791 of 2008) seeking removal of themselves from the array of respondents in M.C. No. 4/2008.

M.C. No. 4/2008 was filed by the 2nd respondent (Namitha), aged 24, under Sections 12, 19(9) and 22 of the Protection of Women from Domestic Violence Act, 2005. The reliefs sought included Rs. 10,00,000 as damages and return of 94 sovereigns of gold ornaments alleged to be in the custody of the five respondents in that M.C.

The applicant's factual allegations (as presented in the M.C.) include: marriage on 1.9.2007; at marriage she was given 101 sovereigns of gold; on the second day 94 sovereigns were allegedly taken away; continued harassment and threats by the husband and other respondents; non-consummation of marriage due to husband's incapacity and deception; physical threats including an incident involving a chopper by the husband's brother; on 10.9.2007 she and her parents were driven from the matrimonial house; the ornaments were not returned; she resigned from her job due to threatening calls; she suffered a mental breakdown and sought compensation and return of her ornaments; she had also filed a proceeding seeking declaration that the marriage was null and void.

Procedurally, after the M.C. was registered and notices issued, all five respondents appeared. On 21.6.2008, counsel appearing for respondents 3–5 (Ramadevi, Deepthi and Deepa) filed a petition to remove those three respondents from the party array on the ground that, in their submission, the definition of "respondent" under Section 2(q) of the Act contemplates only an adult male person. The Chief Judicial Magistrate dismissed that petition by order dated 10.7.2008; the three respondents have challenged that dismissal by way of this Revision.

Legal Issues Presented

Whether a person who is a female relative of the husband can be made a "respondent" in an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005, given the definition of "respondent" in Section 2(q) of the Act.
Whether the Chief Judicial Magistrate had jurisdiction to entertain the application (M.C. No. 4/2008) insofar as it named female relatives of the husband as respondents, and consequently whether those female parties ought to have been removed from the array of respondents.

Arguments of the Parties

Revision Petitioners' Arguments

An application under Section 12(1) of the Act can be filed only by an "aggrieved person" as defined in Section 2(a), and the "respondent" is defined in Section 2(q) as "any adult male person" who is, or has been, in a domestic relationship with the aggrieved person.
Because the definition in Section 2(q) refers to an "adult male person," only adult male persons (or male partners or an adult male relative of the husband) can be respondents under the Act; female relatives cannot be made respondents.
The petitioners relied on a decision of a Single Judge of the Madhya Pradesh High Court in Ajay Kant v. Smt. Alku Sharma (2008 (2) Crimes 235) which, they said, held that an application under the Act can be filed only against an adult male person. On that basis they contended the Magistrate had no jurisdiction to proceed against them as they are adult females.

Applicant's (2nd Respondent in M.C.) Claims

The applicant (Namitha) alleged domestic violence, harassment, physical assault and deception by the husband and by respondents 2 to 5 (the five respondents in the M.C.), including forcible appropriation of 94 sovereigns of gold ornaments and other wrongful acts causing her mental injury and loss of employment.
She sought monetary compensation (Rs. 10,00,000) and return of the ornaments, relying on provisions of the Protection of Women from Domestic Violence Act, 2005, notably Sections 12, 19(9) and 22.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ajay Kant v. Smt. Alku Sharma, 2008 (2) Crimes 235 (Single Judge, Madhya Pradesh High Court)	Held (as relied on by petitioners) that an application under the Act can be filed only against an adult male person, relying on the definition of "respondent" in Section 2(q) of the Act.	The court considered this decision but expressly disagreed with it. The opinion states that the Madhya Pradesh decision overlooked the effect of the proviso to Section 2(q) and the proviso to Section 19(1) (which refer to female persons). Consequently, the court did not follow Ajay Kant and found no reason to interfere with the Magistrate's order.
Priya v. Shibu, 2008 (3) KLT 1	Relied upon by the learned Magistrate (nature of reliance not detailed in the opinion).	The court observed that the decision in Priya v. Shibu was not an authority fortifying the Magistrate's conclusion. No detailed application of Priya v. Shibu is recorded in the opinion.

Court's Reasoning and Analysis

The court undertook a textual and purposive reading of the definitions in the Protection of Women from Domestic Violence Act, 2005 and the specific scheme of Section 19 dealing with residence orders.

Key points of the court's step-by-step analysis:

The court acknowledged the literal phrasing of Section 2(q), whose first part defines "respondent" as "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."
However, the court drew attention to the proviso to Section 2(q>, which permits an aggrieved wife or female living in a relationship in the nature of marriage to file a complaint against "a relative of the husband or the male partner." The court interpreted that proviso as enabling complaints against relatives of the husband or male partner, and that such relatives need not necessarily be male.
The court then examined Section 19(1) (Residence Orders) and its proviso, noting the specific proviso stating that "no order under cl. (b) shall be passed against any person who is woman." The court read this proviso as recognizing that a respondent might be a woman, because the proviso prohibits a particular form of order (removal from shared household) only when the respondent is a woman — implying other orders may still be made against a woman respondent.
The court reasoned that adopting the petitioners' narrow reading — that only adult males can be respondents — would render the proviso in Section 19(1) meaningless or unworkable and would create untenable consequences (for example, inability to direct return of stridhan or other property when held by a female relative of the husband).
On this basis the court concluded that the proviso in Section 2(q) and the structure of Section 19 indicate that female relatives of the husband can, in appropriate circumstances, be proceeded against as respondents in applications under Section 12.
The court expressly disagreed with the Madhya Pradesh High Court decision in Ajay Kant, finding that decision to have overlooked the above aspects. The court also noted that although the Magistrate relied on Priya v. Shibu, that decision did not fortify the Magistrate's conclusion and no strong reliance upon it was discernible from the record.
The court additionally observed, as a procedural remark, that it was not clear why counsel for the revision petitioners filed the petition to delete them from the array of respondents on their behalf rather than the petitioners themselves, but this procedural observation did not alter the substantive conclusion on jurisdiction.

Holding and Implications

Holding: The Revision is DISMISSED IN LIMINE. The court held that the Chief Judicial Magistrate possessed jurisdiction to proceed against female relatives of the husband who were named as respondents in the application under the Protection of Women from Domestic Violence Act, 2005. The court refused to interfere with the Magistrate's order dismissing the petition to remove the three female respondents from the array of parties.

Implications:

Direct effect on the parties: The revision petition by respondents 3–5 (seeking deletion from the array of respondents) is dismissed and the Magistrate's order dated 10.7.2008 stands; the Magistrate may proceed in the M.C. against those female respondents.
On statutory interpretation: The court interpreted the proviso to Section 2(q) and the proviso to Section 19(1) as allowing an aggrieved woman to seek relief against relatives of the husband, who may be female, and therefore rejected the narrower view that a respondent must always be an adult male.
The court expressly disagreed with the Madhya Pradesh High Court decision in Ajay Kant v. Smt. Alku Sharma to the extent it held that applications under the Act can be filed only against adult male persons; the opinion treats that decision as not controlling for the present case.
No expansive pronouncement about broader legislative reform was made; the decision addresses the scope of "respondent" under the Act insofar as necessary to resolve the jurisdictional challenge and to preserve the ability to obtain relief (including return of property) from relatives of the husband who may be female.

Note: This summary is strictly confined to the content of the provided opinion. It does not add facts, outcomes, or legal consequences beyond what appears in the text.

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Remadevi v. State Of Kerala

1. In this Revision filed under S. 397 read with S. 401 Cr. P.C the petitioners who are respondents 3 to 5 in M.C No. 4 of 2008 on the file of the Chief Judicial Magistrate's Court, Thodupuzha, challenge the order dated 10.7.2008 passed by the learned Chief Judicial Magistrate dismissing their petition filed as C.M.P No. 3791 of 2008 for removing them from the array of respondents.

2. The above M.C was filed by the 2nd respondent herein (Namitha) aged 24 years under Ss. 12, 19(9) and 22 of the Protection of Women from Domestic Violence Act, 2005 (“the Act” for short) for return of Rs. 10,00,000/- by way of damages and 94 sovereigns of gold ornaments in the custody of the five respondents in M.C The case of the 2nd respondent herein in the M.C filed by her before the Chief Judicial Magistrate, Thodupuzha is as follows:—

The marriage between the applicant and the first respondent was on 1.9.2007 At the time of her marriage 101 sovereigns of gold ornaments was given to her. After the marriage the applicant who belongs to Thodupuzha started residing in her matrimonial home at Adoor in Pathanamthitta District. From the very moment of her entering the matrimonial home, her husband and respondents 2 to 5 started harassing her mentally and physically. On the 2nd day of marriage 94 sovereigns of gold ornaments were forcibly taken from the possession of the applicant. The applicant resided with the first respondent till 10.9.2007 During the said period she had no physical contact with the first respondent/husband who was not capable of discharging his marital obligations. The first respondent told her that he has no capacity to consummate the marriage and that he was giving consent to the marriage due to the compulsion by the other respondents. This was revealed to her on the 4th day of marriage. The applicant was married by practicing deception on her and the sole intention behind the marriage was to grab at her money and gold ornaments. Realising the truth the applicant collapsed. The father of the applicant advised to the first respondent to consult a doctor but the first respondent was evasive. Since the applicant had revealed to her father about the incapacity of her husband, the first respondent became wild during the night of 6.9.2007 He got hold of her by the neck and threatened her that he would do away with her. This incident happened at her house. In spite of the above incident, she went with him to the matrimonial home. After reaching there the first respondent tortured both mentally and physically. The 2nd respondent who is the brother of the first respondent/husband threatened her with a chopper after consuming liquor and she managed to escape after closing the door. On 10.9.2007 the parents of the applicant went to the house of the first respondent. On that day she along with her parents were driven from the house by the first respondent who declared that he does not want the applicant as his wife. Even though the gold ornaments were demanded back, the respondents did not return the same. After 10.9.2007 the applicant is residing with her parents. She is an engineering graduate. On account of the continuous threatening telephone calls by the first respondent to her office, she had to resign her job out of shame. Due to the above act of the respondents the applicant who was deceived had suffered a mental breakdown and she is entitled to a sum of Rs. 10,00,000/- as compensation. She has already filed an H.M.Q.P for declaring that the marriage was null and void. She is also entitled to get back the 94 sovereigns of gold ornaments forcibly appropriated from her.

3. After registering the application as M.C 4/2008 the learned Chief Judicial Magistrate issued notice to the respondents. All the five respondents entered appearance. Subsequently, on 21.6.2008, the learned counsel appearing for respondents 3 to 5 in the M.C who are the revision petitioners herein (Ramadevi, Deepthi and Deepa) filed a petition to remove those respondents from the party array stating that an adult male person alone could be made a respondent in an “application” filed under S. 12 of the Act in view of the decision of the word “respondent” under S. 2(q) of the Act. The learned Chief Judicial Magistrate as per the impugned order dated 10.7.2008 dismissed the said application. Hence, this Revision.

4. Reiterating the contentions raised by the revision petitioners before the court below, the learned counsel made the following submissions before me:—

An application under S. 12(1) of the Act can be filed by an “aggrieved person”. The expression “aggrieved person” is defined under S. 2(a) means any woman who is, or who 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. S. 2(q) of the Act defines the words “respondent” 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 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”.

5. Thus, the word “respondent” can only mean any adult male person or the male partner or an adult male relative of the husband. The revision petitioners who are the mother, younger sister and wife of the elder brother of the husband of the applicant Namitha are neither adult male person nor male partners nor an adult male relative of the husband of Namitha. A learned Single Judge of the Madhya Pradesh High Court in (2008 (2) Crimes 235) Ajay Kant v. Smt. Alku Sharma has held that an application under the Act can be filed by an aggrieved person only against an adult male person in view of the definition of the respondent contained in S. 2(q) of the Act. Hence, the learned Magistrate had no jurisdiction to entertain the application as against the three revision petitioners all of whom are adult female persons.

6. I am afraid that I cannot agree with the above submissions. It is true that an aggrieved person is the first foremost person entitled to present an application before the Magistrate seeking one or more reliefs under Act. The expression aggrieved person is defined under S. 2(a) of the Act as follows:

“2(a): “aggrieved person” 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;”

7. Thus, an application filed by an aggrieved person can only relate to a domestic violence alleged to have been committed by the respondent to the application. The word “respondent is defined under S. 2(q) as follows:—

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”.

8. While the first part of the definition “respondent” takes in only an adult male person the proviso thereto enable the aggrieved wife or female to tile a complaint against a relative of the husband orthe male partner. Such a relative of the husband or the male partner need not necessarily be a male relative. If the respondent to an application under S. 12 of the Act could only be an adult male person and a female person could never be the respondent to an application under S. 12 ot the Act, then the proviso to sub-s. (1) of S. 19 of the Act would be meaningless. Sub-s. (1) of S. 19 of the Act together with its proviso reads as follows:

“19. Residence Orders:—

(1) While disposing of an application under sub-s. (1) of S. 12, the Magistrate may, oh 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 the respondent 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 or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require’

Provided that no order under cl. (b) shall be passed against any person who is woman”.

9. The above proviso would indicate that the only embargo against the passing of residence order while disposing of an application under S. 12(1) of the Act is that if the respondent is a woman the Magistrate shall not direct such woman respondent to remove herself from the shared household. In other words if the respondent to the application is a woman, the Magistrate can grant all the reliefs against such woman in an application under S. 12(1) of the Act except directing such woman respondent to remove herself from the shared household. A different interpretation may render the provisions of the Act is meaningless and unworkable. For example, under S. 19(8) of the Act the Magistrate may direct the respondent to return of the possession of the aggrieved person her stridhan or any other property or valuable security which she is entitled to. If the contention of the revision petitioners is upheld, then, in a case where the mother-in-law or the sister-in-law or any relative of the husband or any other female relative of the husband is in custody of the gold: ornaments or other valuable asset of the wife, then she may not be in a position to seek a direction against such mother-in-law, the sister-in-law or other female relative of the husband to return such gold ornaments or other valuable asset. Such a consequence could not have been in the contemplation of the legislature while enacting the law. With due respect, I find myself unable to agree with the decision of the Madhya Pradesh High Court in Ajay Kant's case cited by the learned counsel for the revision petitioners. The said ruling of the Madhya Pradesh High Court is overlooked to consider the above aspect of the matter. I, therefore, do not find any good ground to interfere with the conclusion reached by the learned Chief Judicial Magistrate eventhough the decision reported in Priya v. Shibu (2008 (3) KLT 1) relied on by the learned Magistrate is not an authority fortifying his conclusion. Incidentally, it is not discernible as to why the learned counsel appearing for the revision petitioners herein in the court below took upon himself the duty of filing the petition before the court below deleting the revision petitioners from the array of respondents. It was for the revision petitioners to file a petition and not for their counsel to file such a petition. However, in view of the aforementioned discussion, it cannot be said that the Magistrate does not possess the jurisdiction to proceed against the female relatives of the husband as was contended by the revision petitioners before the court below.

10. In the result this Revision is dismissed in limine.

Remadevi v. State Of Kerala

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Revision Petitioners' Arguments

Applicant's (2nd Respondent in M.C.) Claims

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Remadevi v. State Of Kerala

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