Remadevi, Deepthi and Deepa v. Namitha

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.Rev.Pet.No. 2568 of 2008() -----------------------------AGAINST THE ORDER DATED 10/07/2008 IN CMP 3791/2008 IN MC.4/2008 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER: PETITIONERS/RESPONDENTS 3 TO 5: ------------------------------------------------------------------- 1. REMADEVI, AGED 58 YEARS, W/O.MURALEEDHARAN NAIR P.K., RESIDING AT NALUTHUNDIL VEEDU, ADOOR, PATHANAMTHITTA. 2. DEEPTHI, AGED 22 YEARS, - D/O.MURALEEDHARAN NAIR P.K., RESIDING AT NALUTHUNDIL VEEDU, ADOOR, PATHANAMTHITTA. 3. DEEPA, AGED 25 YEARS, W/O.MANOJ, RESIDING AT NALUTHUNDIL VEEDU, ADOOR, PATHANAMTHITTA. BY ADV. SRI.A.T.ANILKUMAR SRI.P.DALBI EMMANUEL RESPONDENTS: RESPONDENT/PETITIONER: --------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. NAMITHA, AGED 24 YEARS, - D/O.N.VIJAYAKUMAR, RESIDING AT ATHIRA NEELAKANDAVILAS, THODUPUZHA, IDUKKI. BY PP SR.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON 17/09/2008 PASSED THE FOLLOWING: ## **V. RAMKUMAR, J.** ## *** * * * * * * * * * * * * * * * * * Crl.R.P. No. 2568 of 2008** ## *** * * * * * * * * * * * * * * * * * Dated:** ## **ORDER** In this Revision filed under Sec. 397 read with Sec. 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 Sections 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. 3. The case of the 2nd respondent herein in the M.C. filed by her before the Chief Judicial Magistrate, Thodupuzha is as follows:- -:2:- 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 10-09-2007. 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 -:3:- 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 10-09-2007 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 10-09-2007 the applicant is residing with her parents. She is an engineering graduate. On account of the continuous threatening telephone calls by the first responder 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 -:4:- and she is entitled to a sum of Rs. 10,00,000/- as compensation. She has already filed an H.M. O.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. 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 Sec. 12 of the Act in view of the decision of the word "respondent" under Sec. 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. Re-iterating the contentions raised by the revision petitioners before the court below, the learned counsel made the following submissions before me:- As application under Section 12 (1) of the Act can be filed by an "aggrieved person". The expression "aggrieved person" is -:5:- defined under Sec. 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. Section 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"._ 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 notwithstanding nor an adult male relative of the husband of Namitha. A learned Single Judge of the Madhyapradesh High court in _**2008 (2) Crimes 235 - Ajay Kant and Others 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 -:6:- respondent contained in Sec. 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. 5. 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 Sec. 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;"_ 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 Sec. 2 (q) 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_ -:7:- _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"._ While the first part of the definition "respondent" takes in only an adult male person the proviso there to enable the aggrieved wife or female to file a complaint against a relative of the husband or the 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 Sec. 12 of the Act could only be an adult male person and a female person could never be the respondent to an application under Sec. 12 of the Act, then the proviso to sub section 1 of Sec. 19 of the Act would be meaningless. Sub section (1) of Sec. 19 of the Act together with its proviso reads as follows: _"19. Residence Orders:- (1) While disposing of an application under sub-section (1) of Section 12, the Magistrate may, on 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:_ -:8:- _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 except with the leave of the Magistrate; or_ _f) directing the respondent to secure same level of alternate accommodation for the aggrieved person an enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require'; Provided that no order under clause (b) shall be passed against any person who is woman"._ The above proviso would indicate that the only embargo against the passing of residence order while disposing of an application under Sec. 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 Sec. 12 (1) of the Act except directing such woman respondent to -:9:- remove herself from the shared household. A different interpretation may render the provision s of the Act is meaningless and unworkable. For example, under Sec. 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 Mdhya 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 -:10:- 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. 6. 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. In the result this Revision is dismissed. ## _V. Ramkumar, Judge._ _ani/_ -:11:-