Sunday, June 9, 2013

SC case that opened way for females to be respondents in Domestic Violence cases !!- Sou Sandhya Manoj Wankhade Vs Manoj Bhimrao Wankhade & Ors, CRIMINAL APPEAL NO.271 OF 2011

SC case that opened way for females to be respondents in Domestic Violence cases !!- Sou Sandhya Manoj Wankhade Vs Manoj Bhimrao Wankhade & Ors, CRIMINAL APPEAL NO.271 OF 2011

 

Thoughts

***************

* These days it has become common for MANY High courts to accept that women can be respondents in DV cases. Below is one of the premier cases !!

* Beautiful judgment of the Honble supreme court of India clarifying that DV cases can be filed against "female" relatives of the husband …in this case permitting a daughter in law to file against mother in law

* To quote the Honbl'e court : "...12. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship  with  the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage....."

* This opens / opened the gates for women (say mother in law) filing cases on the Daughter in Law, as can be seen from other cases

 

Brief facts, non recourse

**********************************

* couple living in hubby's mother's house along with widowed mother un married sisters

* wife files DV on husband soon after marriage + 498-a etc ..probably the usual cocktail

* Judicial Magistrate, First Class, Amravati allows DV complaint, orders monthly maint of Rs.1500/- and residence orders, at house owned by Mother in law's on 16th August, 2007.

* Husband goes on appeal before the Sessions  Judge, Amravati.

* Sessions Judge , Amravati by his order dated 2nd May, 2008 dismisses said appeal

* Husband files with HC under sec 482, assailing above orders

* HC dismisses the Husband's appeal on 4th September, 2009.

* Husband files Misc. Crl. Application before Judicial Magistrate, First Class, Amravati praying modification of its order and orders to ask wife to vacate mother's house. This is also dismissed.

* Thereupon, mother in law and sister in law filed Crl. Appeal at Sessions court on 11th August, 2008, stating that they were women and so could not be made Respondents in proceedings  filed  by wife under DV act.

* That appeal was allowed by the Sessions court, instructing the wife to move out of the house and instructing husband to provide alternate acco.

* Wife appealed the above at HC

* HC disposed off the application ordering wife to vacate mother in law's house

* Finanly wife reaches SC, where SC says that females CAN be respondents as per the proviso to section 2 (q)

 

 

 

REPORTABLE

 

IN THE SUPREME COURT OF INDIA

 

CRIMINAL APPELLATE JURISDICTION

 

CRIMINAL APPEAL NO.271 OF 2011

(Arising out of SLP (Crl.) No.2854 of 2010)

 

Sou. Sandhya Manoj Wankhade               ... Appellant

 

Vs.

 

Manoj Bhimrao Wankhade & Ors.             ... Respondents

 

 

J U D G M E N T

 

ALTAMAS KABIR, J.

 

1. Leave granted.

 

2. This Appeal is directed against the judgment and   order dated 5th March, 2010, passed by the Nagpur Bench of the Bombay High Court in Crl. W.P. No.588 of 2009, inter alia, directing the Appellant to vacate her matrimonial house and confirming the order of the Sessions Judge deleting the names of the other Respondents from the proceedings.

 

3.  The Appellant herein  was  married  to  the Respondent No.1 on 20th  January, 2005,  and the marriage was registered under the provisions of the Special Marriage Act, 1954. After her marriage, the Appellant began to reside with the Respondent No.1 at  Khorej Colony, Amravati,  where  her  widowed mother-in-law  and sister-in-law,  the Respondent Nos.2 and 3 respectively, were residing.   According to the Appellant, the marriage began to turn sour after about one year of the marriage and she was even assaulted by her husband and by  the other respondents.  It is her specific case that on 16th June, 2007, she  was mercilessly  beaten  by the Respondent No.1, which incident was reported to the police and a case under Section 498-A I.P.C. came to be registered against him.

 

4.  In addition to the above, the Appellant appears to  have filed  a complaint, being Misc. Crl. Application No.203 of 2007, on 16th July,  2007, against all the Respondents under Sections 12, 18, 19, 20  and 22 of the  Protection  of Women  from Domestic Violence Act, 2005, hereinafter referred to as "the  Domestic  Violence  Act, 2005".  An application filed  by the  Appellant before the Judicial Magistrate, First Class, Amravati, under Section 23 of the above Act was allowed by the learned  Magistrate, who  by his order dated 16th August, 2007, directed the Respondent No.1 husband to pay interim maintenance to the Appellant at the rate of  1,500/- per month from the date of the application till the final disposal of the main application and also restrained all the Respondents from  dispossessing  the  Appellant  from  her matrimonial home at Khorej Colony, Amravati, till the final disposal of the main application.

 

5. It further appears that the said order of the learned  Magistrate  dated  16th August, 2007,  was challenged by Respondent No.1 in Crl. Appeal No.115 of 2007  before the  learned  Sessions  Judge, Amravati, who by his order dated 2nd May, 2008, dismissed the said appeal. Aggrieved by the orders passed by  the learned  Sessions Judge,  the Respondent No.1 filed Criminal Application No.3034 of 2008 in the High Court under Section 482 Cr.P.C. challenging the order dated 16th August, 2007 of the Judicial Magistrate, First Class, Amravati and the order dated 2nd May, 2008 of the Sessions Judge, Amravati. The said application was dismissed by the High Court on 4th September, 2009.

 

6. In the meanwhile, the Respondent No.2 filed an application  in Misc. Crl. Application  No.203 of 2007 in the Court of the Judicial Magistrate, First Class, Amravati, praying for modification of its order dated 16th August, 2007 and a direction to the Appellant to leave the house of Respondent No.2. The said application for modification was dismissed by the learned Magistrate on 14th July, 2008 holding that  it was not maintainable.  Thereupon, the Respondent Nos.2 and 3 filed Crl. Appeal No.159 of 2008 on 11th August, 2008, under Section 29 of the Domestic Violence Act, 2005, questioning the orders passed by the learned Magistrate on 16th August, 2007 and 14th July, 2008, on the ground that being women they could not be made Respondents in the proceedings  filed  by the Appellant under  the provisions of the Domestic Violence Act, 2005, and that the matrimonial house of the Appellant at Khorej Colony, Amravati, belonged exclusively  to Ramabai, the Respondent No.2 and mother-in-law of the Appellant and did not, therefore, come within the definition of "shared house". The said Criminal Appeal No.159 of 2008 was allowed by the learned Sessions Judge vide his judgment dated 15th July, 2009.  The learned Sessions Judge allowed Criminal Appeal No.159 of 2008 and set aside the judgment and order dated 14th July, 2008 and also modified the order dated 16th August, 2007, to the extent of setting  aside  the injunction  restraining the Respondents  from dispossessing or evicting the Appellant  from her matrimonial house at Khorej Colony, Amravati. The Respondent No.1 husband was directed to provide separate accommodation for the residence of the Appellant or to pay a sum of 1,000/- per month to the Appellant from the date of filing of the application till its final decision, in lieu of providing accommodation.

 

7. In Criminal Writ Petition No.588 of 2009, the Appellant herein challenged the judgment and order dated  15th July, 2009,  passed by the  learned Sessions Judge, Amravati, in Crl. Appeal No.159 of 2008, claiming that she had a right to stay in her matrimonial house. Although,  the question  as to whether a female member of the husband's family could be made a party to the proceedings under the Domestic Violence Act, 2005, had been raised in Crl. Appeal No.159 of 2008, the learned Sessions Judge in his order dated 15th July, 2009, did not decide the said question and did not absolve the Respondent Nos.2 and 3 herein in his order, but only observed that female members cannot be made parties in proceedings under the Domestic Violence Act, 2005, as "females" are not included in the definition of "respondent" in Section 2(q) of the said Act.

 

8. The learned Single  Judge of the High Court disposed of the writ petition by his judgment and order dated 5th March, 2010, with a direction to the Appellant to vacate her matrimonial house, which was in the name of the Respondent No.2, with a further direction to the Trial Court to expedite the hearing of the Misc. Crl. Application No.203 of 2007 filed by the Appellant herein and to decide the same within a period of six months.   A further direction was given confirming the order relating to deletion of the names of the `other members'.

 

9. Questioning the said judgment and order of the Nagpur Bench of the Bombay High Court, Mr. Garvesh Kabra,  learned Advocate appearing  for the Appellant, submitted that the High Court had erred in confirming the order of the learned Sessions Judge in  regard to deletion of names  of the Respondent Nos.2 and 3 from the proceedings, upon confirmation of the finding of the Sessions Judge that no female could be made a party to a petition under the Domestic Violence Act, 2005, since the expression "female" had not been included in the definition of "respondent" in the said Act. Mr. Kabra submitted that it would be evident from a plain reading of the proviso to Section 2(q) of the Domestic Violence Act,  2005, that a  wife or a female living in a relationship in the nature of marriage can, not only file a complaint against her husband or male partner but also against relatives of the husband or male partner. The term "relative" not having been defined in the Act, it could not be said that it excluded females from its operation.

 

10. Mr.  Satyajit  A.  Desai, learned  Advocate appearing for the Respondents, on the other hand, defended the orders passed by the Sessions Judge and the High  Court  and urged  that the term "relative" must be deemed to include within its ambit only male members of the husband's family or the family of the male partner.   Learned counsel submitted that when the expression "female" had not been specifically included within the definition of "respondent" in  Section  2(q)  of  the Domestic Violence Act, 2005, it has to be held that it was the intention of the legislature to exclude female members from the ambit thereof.

 

11. Having  carefully considered the submissions made on behalf of the respective parties, we are unable to sustain the decisions, both of the learned Sessions Judge as also the High Court, in relation to the interpretation of the expression "respondent"  in Section 2(q) of the Domestic Violence Act, 2005.  For the sake of reference, Section 2(q) of the above-said Act is extracted hereinbelow :-

 

 "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."

 

12. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship  with  the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.

 

13. It is true that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be  filed against a  relative of the husband or the male partner.   No restrictive meaning has  been  given  to  the expression "relative", nor has the said  expression  been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

 

14. In such circumstances, it is clear 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 Domestic Violence Act, 2005.

 

15. In our view, both the Sessions Judge and the High Court went wrong in holding otherwise, possibly being influenced by the definition of the expression "respondent" in the main body of Section 2(q) of the aforesaid Act.

 

16. The Appeal, therefore, succeeds.   The judgments and orders, both of the learned Sessions Judge, Amravati, dated 15th  July, 2009 and the Nagpur Bench of the Bombay High Court dated 5th March, 2010, in Crl. Writ Petition No.588 of 2009 are set aside. Consequently, the trial Court   shall  also proceed against the said Respondent Nos.2 and 3 on the complaint filed by the Appellant.

 

17. The appeal is allowed accordingly.

 

 

 

    ................................................J.

    (ALTAMAS KABIR)

 

 

 

    ................................................J.

    (CYRIAC JOSEPH)

 

 

New Delhi

 

Dated:31.01.2011