Two women filed complaints under several provisions of the Protection of Women from Domestic Violence Act, 2005 (PWDVA) against a man referred to as “PNH” and three of his female relatives. The petitioners were the mother and sister of PNH, and they alleged that he, his wife, and his two sisters were committing acts of domestic violence against them.
The three female respondents claimed that holding them as respondents in the present case was a misuse of the PWDVA, as PWDVA was intended to provide recourse to married women against their husband and husband’s relatives. One of the female respondents further claimed that she should not be held as a respondent because she did not technically live in their household and thus could not commit acts of “domestic violence.” On these grounds, the female respondents petitioned to have their names dropped from the complaint.
Rather than maintain a strict definition of “respondent,” the court chose to focus on the intention behind the PWDVA to protect women from domestic violence and thus held that all four of the respondents should remain respondents on the complaint.
1. By this petition under Article 226 of the Constitution, the petitioners sister and mother of P.N.H. (respondent no. 1 in complaint before the Magistrate’s Court) have challenged the constitutional validity of the provisions of section2(q)of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the DV Act”).
2. The petitioners had earlier filed Misc. Case No. 31/M of 2007 in the Court of Metropolitan Magistrate, 18th Court at Girgaum, Mumbai against Mr.PNH (respondent no. 1 in the complaint), his wife H. (respondent no. 2 in the complaint) and his two sisters A and C (respondent nos.3 and 4 in the complaint). The petitioners will now be referred to by their status in the original complaint. The case was filed under the provisions of the DV Act on 3 April 2007 praying for various reliefs for dealing with the respondents in accordance with law and to direct the respondents to pay damages to the tune of Rs. 5,55,00,000/- under section20 of the DV Act and monetary compensation to the extent of Rs. 5,00,00,000/- under section 22 of the DV Act. The complaint was filed on the basis that respondent no. 1 in the complaint had caused and was causing physical abuse, verbal and emotional abuse and economic abuse as defined under section 3 of the DV Act. The petitioners alleged that there was domestic relationship between the parties as the petitioners are related to respondent nos.1, 3 and 4 by consanguinity and that respondent no. 2 being wife of respondent no. 1, they are all family members who were living together in a shared household and were also living with respondent nos.1, 2 and 3 in a shared household as a joint family. It appears that the petitioners thereafter prayed for permission to withdraw the said case on the ground that several relevant material facts were not properly stated or mentioned in the complaint and that therefore the petitioners be allowed to withdraw the complaint with liberty to file a fresh complaint on the same facts and cause of action. The said application for withdrawal filed on 27 June 2007 was allowed to be withdrawn by the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Mumbai, with liberty as prayed for.
3. It appears that thereafter there were attempts between the parties for settlement of their disputes and since those efforts did not fructify, the petitioners filed two separate cases against the same four respondents praying for substantially same reliefs, but for higher monetary reliefs under section 20 of the DV Act and for higher compensation amount under section 22 of the DV Act.
4. On 11 February 2011, applications were filed by the Respondents in the complaint seeking discharge on the ground that the petitioners being mother and sister do not fall within the definition of “aggrieved person” and that only a wife or a female partner in a marital relationship can invoke the provisions of the DV Act. By an order dated 5 January 2012, the learned Metropolitan Magistrate rejected the application for discharge and, therefore, respondent nos.2, 3 and 4 being lady members of the family filed Criminal Writ Petition Nos. 187 and 188 of 2012 challenging the above order dated 5 January 2012 essentially contending that no case can be filed under the DV Act against female relatives of respondent no. 1. The criminal writ petitions came to be disposed of by a learned Single Judge of this Court by judgment and order dated 15 February 2012. The learned Single Judge allowed the criminal writ petitions to the extent of discharging respondent nos.2, 3 and 4 from the proceedings filed by the petitioners under the DV Act and allowed only the proceedings against respondent no. 1 PNH to continue. It appears that the judgment was based on the concession made by the learned counsel for the respondents in the said criminal writ petitions, who are petitioners in this writ petition, that in view of definition of the term “respondent” in section 2(q) of the DV Act, the proceedings under the DV Act cannot be initiated against female relatives.
5. As regards the case against PNH (respondent no. 1 in the complaint), the learned Single Judge recorded that it was conceded on behalf of PNH that complaint could be filed against him, but on merits it was sought to be contended that the allegations were for the period prior to coming into force of the DV Act and, therefore, the complaint was not maintainable. It was further contended that the alleged act did not fall within the meaning of domestic violence and, therefore, he was also required to be discharged. The learned Single Judge, however, did not accept the said contentions and held that proof of such allegations is a question to be decided at the stage of trial in the Court of the Metropolitan Magistrate and such threadbare analysis of allegations was not warranted at the stage of discharge. The learned Single judge accordingly disposed of the criminal writ petitions by directing discharge of present respondent nos.3, 4 and 5 (Respondent nos.2, 3 and 4 in the complaint) from the proceedings under the DV Act initiated by the present petitioners.
6. In view of the above judgment, the petitioners have filed the present petition challenging the constitutional validity of provisions of section 2(q) of the DV Act.
7. In response to the notice issued by this Court, the Union of India has appeared and filed affidavit in reply dated 20 February 2014. It is stated in the reply affidavit that the provisions of section 2(q) of the DV Act do not restrict the definition of “respondent” to adult male partners and that the proviso thereto permits relatives of the husband or male partner to be joined as respondents. The affidavit further states that all women are covered under the DV Act and any woman, who is living in a domestic relationship with the perpetrator can file a case for reliefs under the DV Act.
9. The petitioners appearing as parties in person have submitted that when maintainability of the complaint against PNH (respondent no. 1 in the complaint) is not disputed, the maintainability of complaint against his relatives cannot be challenged because the cause of action against all the parties is a common cause of action as they are acting in concert to harass the petitioners. It is stated that both the petitioners had initially filed a joint complaint but subsequently they were advised to withdraw the same to file a fresh complaint which were filed by the petitioners separately. The petitioners have now preferred to have both the complaints tried jointly and, therefore, they may be permitted to proceed with the trial of the original complaint filed in the year 2007 and the subsequent complaint may be read as further pleading in the original complaint.
10. It is submitted by the petitioners that since the complaint against PNH is maintainable, it would be discriminatory to deny the petitioners remedies against the wife of PNH and sisters of PNH, who are relatives of PNH by marriage/consanguinity and in a domestic relationship with the petitioners and who are instigating PNH to harass the petitioners and they are themselves also harassing the petitioners.
11. Learned counsel for the private respondents has submitted that the complaint could be filed under the DV Act by a married woman against her husband and husband’s relatives, but in the instant case, PNH is not the husband of any of the petitioners (complainants).
12. At the hearing of this writ petition, our attention has been invited to the decision in the case of Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade and Ors. MANU/SC/0081/2011
: 2011-Cri.L.J.- 1687decided by the Supreme Court on 31 January 2011 taking taking the view that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the DV Act. … The Supreme Court thus made it clear that no restrictive meaning has been given to the word “relative”.
13. Our attention has been invited by learned counsel for the Government of India to the decision of the Delhi High Court in Kusum Lata Sharma vs. State (Government of NCT of Delhi) and Ors in Criminal M.C.No. 725 of 2011 dated 2 September 2011 laying down that mother-in- law is also entitled to file a complaint against daughter-in-law under the provisions of the DV Act.
14. Learned counsel for the Union of India submits that, in view of the aforesaid judgment of the Delhi High Court, … it is open to a mother-in-law to file a complaint against her son as well as against her daughter-in-law and other relatives of the son, including his sisters, i.e. daughters of the complainant.
15. Learned counsel for the private respondents submitted that respondent no. 4 in the complaint Mrs. CBD was married 30 years back and is living separately in a separate household and only occasionally visits the house of respondent no. 1 and, therefore, it cannot be said that respondent no. 5 is living as a member of the joint family.
17. The learned counsel for the private respondents would contend that the definition of “domestic violence” is aimed at acts of physical abuse, sexual abuse, verbal and emotional abuse and economic abuse which generally husband is accused of committing and, therefore, the definition of “respondent” in proviso to section 2(q) should not be interpreted as including any relatives of son or brother.
18. Though the provisions of section 3 may prima facie indicate that most of the acts of domestic violence referred to in section 3 may be committed by a husband, the expression “domestic violence” is very widely defined in section 3 and acts of violence could be committed by any person in domestic relationship with the complainant when the abuser and complainant the and who are living together. Such acts of domestic violence could also be committed by a sister or a daughter of the complainant.
22. Similarly, since petitioner no. 1 has made allegations that all the four respondents in the complaint i.e. brother, brother’s wife and two sisters, are acting jointly, there is no reason why the definition of “respondent” should be interpreted in such a manner that a sister cannot file a complaint against her brother, who is an adult male person in domestic relationship with the complainant and against wife of such male person and against other relatives of male person.
23. Of course, the interpretation canvassed by the private female respondents is that as per definition of “respondent” in section 2(q), a complaint could be filed against a male or female relative only of the husband or male or female relative only of “the male partner” and that the expression “male partner” would mean “male partner of a female living in a relationship in the nature of a marriage”. However, such restricted definition of “respondent” would be inconsistent with the wide definition of “aggrieved person”; “domestic relationship”; and “shared household.”
26. [We] are inclined to hold that … the provisions of “respondent” in section 2(q) of the DV Act is not to be read in isolation but has to be read as a part of the scheme of the DV Act, and particularly along with the definitions of “aggrieved person”, “domestic relationship” and “shared household” in clauses (a), (f) and (s) of section 2 of the DV Act. If so read, the complaint alleging acts of domestic violence is maintainable not only against an adult male person who is son or brother, who is or has been in a domestic relationship with the aggrieved complainant- mother or sister, but the complaint can also be filed against a relative of the son or brother including wife of the son / wife of the brother and sisters of the male respondent.
28. The writ petition is accordingly allowed in the above terms.
[We] are inclined to hold that … the provisions of “respondent” in section 2(q) of the DV Act is not to be read in isolation but has to be read as a part of the scheme of the DV Act. … If so read, the complaint alleging acts of domestic violence is maintainable not only against an adult male person who is son or brother, who is or has been in a domestic relationship with the aggrieved complainant – mother or sister – but the complaint can also be filed against a relative of the son or brother including wife of the son/wife or the brothers and sisters of the male respondent.