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Gujarat High Court · body

2009 DIGILAW 769 (GUJ)

JAYDIPSINH PRABHATSINH JHALA v. STATE OF GUJARAT

2009-12-22

AKIL KURESHI

body2009
AKIL KURESHI, J. Both these petitions arise out of the proceedings under the Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as 'the Act'). Since, two important and repetitive questions are common in these proceedings, they have been heard together and are being disposed of by this common judgment. 2. First question of considerable importance is the meaning of term 'respondent' as defined in Sec. 2(q) of the Act. In other words, the question is whether a female member of the family can be a respondent in the proceedings under the Act. 2.1. Second question is the nature of proceedings that the Magistrates conduct under the Act and the procedure that has to be adopted for the same. In other words, question is whether the proceedings under the Act are strictly of criminal nature, and that therefore, as held by the Supreme Court in several decisions particularly in case of Adalat Prasad v. Rooplal Jindal. reported in 2005 (1) GLR 546 (SC) : 2004 (7) SCC 338 , the Magistrate once having issued summons cannot recall the same even if it is found later on that ex-facie no case for proceeding further against all or any of the respondents is made out. 3. Questions arise in the factual background, which are slightly different in each case. We may notice such facts at this stage. 3.1. In Special Criminal Application No. 2068 of 2009, though at the outset, the petition was filed by five petitioners all the original respondents under an order dated 16-12-2009, same was confined to petitioners Nos. 3 and 4 only. Original applicant before the Magistrate is wife of one Jaydeepsinh. The petitioner Nos. 3 and 4 are the mother-in-law and sister-in-law respectively of the applicant. The applicant earlier filed an application before the Protection Officer on 4-4-2009 complaining of several acts of domestic violence by the respondents. The Protection Officer made a report before the Magistrate concerned, who after taking cognizance of the report, issued summons to all the respondents on 6-4-2009. The petitioners filed application, Exh.4 in the said proceedings and contended that the proceedings are not maintainable. This application was turned down by an order dated 26-6-2009 by the learned Magistrate and Criminal Appeal filed by the petitioners was dismissed by the learned Sessions Judge on 21-72009. The petitioners, have therefore, filed the present petition challenging above orders. 3.2. The petitioners filed application, Exh.4 in the said proceedings and contended that the proceedings are not maintainable. This application was turned down by an order dated 26-6-2009 by the learned Magistrate and Criminal Appeal filed by the petitioners was dismissed by the learned Sessions Judge on 21-72009. The petitioners, have therefore, filed the present petition challenging above orders. 3.2. This petition is argued only on one ground namely that female members of the family could not have been joined as respondents by the applicant in the said proceeding. 4. In Misc. Criminal Application No. 9940 of 2009, the petitioners are the original respondents in an application under Sec. 12(1) of the Act filed by the respondent No.2, who is wife of the petitioner No.1. The petitioner Nos. 3 and 4 are the female members of the family. All the petitioners contend that the complaint is not maintainable. In particular, the petitioner Nos. 3 and 4 contend that as female members of the family, they could not have been joined as respondents in the proceedings under the Act. 5. In this factual background, some of the provisions of the Act may be noticed. Before that, however, one may peruse the Statement of Objects and Reasons for enacting the Act. 6. In Para Nos. 2 and 3 of the said statement, it is stated as under : "2. The phenomenon of domestic violence is widely prevalent, but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Sec. 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety. 3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Arts. 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victim of domestic violence and to prevent the occurrence of domestic violence in the society." 7. With above background, the bill was introduced to provide for various things including: "4(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. With above background, the bill was introduced to provide for various things including: "4(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complain against the wife or the female partner." 7.1. This Act was therefore enacted "to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereof'. 7.2. Clause (a) of Sec. 2 of the said Act defines term as "aggrieved person" as follows : "(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;" 7.3. Term domestic relationship has been defined in clause (f) of Sec. 2 of the said Act as follows : "(f) 'domestic relationship' means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they were related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. " 7.4. In clause 2(g) of the said Act, term 'domestic violence' has been given same meaning as assigned to it in Sec. 3. 7.5. Term 'Protection Officer' has been defined in clause (n) of Sec. 2 of the said Act as follows : "(n) 'Protection Officer' means an officer appointed by the State Government under sub-sec. (I) of Sec. 8." 7.6. In clause 2(g) of the said Act, term 'domestic violence' has been given same meaning as assigned to it in Sec. 3. 7.5. Term 'Protection Officer' has been defined in clause (n) of Sec. 2 of the said Act as follows : "(n) 'Protection Officer' means an officer appointed by the State Government under sub-sec. (I) of Sec. 8." 7.6. 'Protection order' as per Sec. 2(o) of the Act means an order made in terms of Sec. 18 of the Act. 7.7. Clause (q) of Sec. 2 of the said Act defines term 'respondent', which reads as follows: "(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." 7.8. Section 3 of the Act contains detailed definition of 'domestic violence' and includes large number of acts and omissions, which harms or injures or endangers the health, safety, life, limb or well being whether mental or physical, of the aggrieved person. It includes physical abuse, sexual abuse, verbal and emotional abuse as well as economic abuse. Thus, variety of the acts and omissions are included within the meaning of term domestic violence. 7.9. Section 8 of the Act casts duty on the State Government to appoint such number of Protection Officers as it may consider necessary. 7.10. Section 9 of the Act prescribes duties and functions of the Protection Officer. Such duties include to assist the Magistrate in the discharge of his functions under the Act, to make a domestic incident report to the Magistrate, to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires and such similar duties. 7.11. Section 12 of the Act pertains to application to the Magistrate. Sub-section (1) of Sec. 12 provides that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the Act. 7.12. 7.11. Section 12 of the Act pertains to application to the Magistrate. Sub-section (1) of Sec. 12 provides that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the Act. 7.12. Sub-section (4) of Sec. 12 of the Act provides that the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court. 7.13. Sub-section (5) of Sec. 12 of the Act provides that the Magistrate shall endeavour to dispose of every application made under sub-sec. (1) within a period of sixty days from the date of its first hearing. 7.14. Section 18 of the Act pertains to protection orders and reads as follows: "18. Protection orders:- The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from (a) committing any act of domestic violence; (b) aiding or abetting in the commission of acts of domestic violence; (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person; (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including person, oral or written or electronic or telephonic contact; (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan nor any other property held either jointly by the parties or separately by them without the leave of the Magistrate; (t) causing violence to the dependents, other relatives or any person who give the aggrieved person assistance from domestic violence; (g) committing any other act as specified in the protection order." 7 .15. Section 19 of the Act pertains to residence order and permits the Magistrate to pass orders such as restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, directing the respondent to remove himself from the shared household, restraining the respondent or any of his relatives from entering into any portion of the shared household etc. In particular clause (b) of sub-sec. (1) of Sec. 19 permits the Magistrate to pass order 'directing the respondent to remove himself from the shared household'. Proviso to sub-sec. (1) of Sec. 19, however, states that 'provided that no order under clause (b) shall be passed against any person, who is a woman. 7.16. Section 20 of the Act pertains to monetary relief, which the Magistrate can grant while disposing of an application under sub-sec. (1) of Sec. 12. 7.17. Section 21 of the Act pertains to custody orders, which the Magistrate may pass with respect to the children. 7.18. Section 22 of the Act pertains to compensation orders, which the Magistrate may pass. 7.19. Section 23 of the Act empowers the Magistrate to grant interim and ex-parte orders as he may deem, just and proper including orders under Secs.18 to 22 of the Act. 7.20. Section 26 of the Act provides inter alia that any relief available under Secs.18, 19, 20, 21 and 22 of the Act may also be sought in any legal proceeding before a Civil Court, Family Court or a Criminal Court, affecting the aggrieved person and the respondent. 7.21. Section 28 of the Act lays down procedure, which the Magistrate may follow in all proceedings under the Act and reads as under : "28. Procedure :- (1) Save as otherwise provided in this Act, all proceedings under Sees. 12, 18, 19, 20, 21, 22 and 23 and offences under Sec. 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-sec. (1) shall prevent the Court from laying down its own procedure for disposal of an application under Sec. 12 or under sub-sec. 9(2) of Sec. 23." 7.22. Section 31 of the Act provides for penalty for breach of protection order by respondent. (2) Nothing in sub-sec. (1) shall prevent the Court from laying down its own procedure for disposal of an application under Sec. 12 or under sub-sec. 9(2) of Sec. 23." 7.22. Section 31 of the Act provides for penalty for breach of protection order by respondent. Sub-section (1) of Sec. 31 of the Act in particular provides that breach of protection order, or of any interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine, which may extend to twenty thousand rupees, or with both. 7.23. Sub-section (1) of Sec. 32 of the Act makes offence punishable under sub-sec. (1) of Sec. 31 of the Act cognizable and non-bail-able. 7.24. Section 33 of the Act provides for imposition of penalty on Protection Officer for not discharging his duties. 7.25. Section 36 of the Act provides that provisions of the Act shall be in addition to, and not in derogation of the provisions of other laws for the time-being in force. 8. These in short are the relevant provisions, which shall have to be borne in mind while interpreting term 'respondent' as contained in Sec. 2(q) of the said Act. 9. The said act makes some important provisions for protecting women from domestic violence as already noticed. Term domestic violence has been given very wide amplitude and covers variety acts and omissions including physical abuse, sexual abuse, verbal and emotional abuse and economic abuse within the term domestic violence. The statement of objects and reasons makes it clear that though there are provisions under Sec. 498A of the Indian Penal Code to deal with menace of domestic violence on criminal side, civil law does not however address this phenomenon and keeping in view the rights guaranteed• under Arts. 14, 15 and 21 of the Constitution of India, the Act has been enacted to provide for a remedy under the civil law, which is intended to protect a woman from being victims of domestic violence and to prevent the occurrence of such domestic violence. 10. For the purpose of securing justice to such oppressed women, who complain of domestic violence, wide powers are given to the Magistrate permitting him to pass appropriate orders, which the Magistrate can pass in an application under sub-sec. 10. For the purpose of securing justice to such oppressed women, who complain of domestic violence, wide powers are given to the Magistrate permitting him to pass appropriate orders, which the Magistrate can pass in an application under sub-sec. (1) of Sec. 12 of the said Act. Said powers include passing an order for residence to an aggrieved person or even removing the respondent from the shared household. Such powers include grant of monetary relief and compensation, powers of handing over the custody of children to the aggrieved person. The Act specifically empowers the Magistrate to pass such orders by way of interim direction or even ex-parte interim orders. Section 26 of the Act as already noted permits the Civil Court, Family Court or Criminal Court, where any legal proceeding are pending to grant any of the reliefs available under Sees. 18 to 22 of the said Act. Though, Sec. 28 of the Act provides that all proceeding under Sees. 12 and 18 to 23 and for the offence under Sec. 31 of the said Act shall be governed by the provisions of the Code of Criminal Procedure, 1973, sub-sec. (2) of Sec. 28 clearly provides that nothing contained in sub-sec. (1) shall prevent the Court from laying down its own procedure for disposal of an application under Sec. 12 or under sub-sec. (2) of Sec. 23 of the said Act. In other words, though procedure to be followed in the said proceedings is that provided under the Code of Criminal Procedure, the Magistrate can still lay down his own procedure while dealing with the applications under sub-sec. (1) of Sec. 12 or while considering grant of interim or ex-parte ad-interim relief orders under sub-sec. (2) of Sec. 23 of the Act. Thus, whole purpose of this legislation appears to be to provide for a smooth machinery to ensure justice to oppressed women by cutting through legal red-tapism and passing such orders as may be found necessary in the interest of justice in the facts of the case. 11. Statement of Objects and Reasons, purpose for which the Act is enacted and several provisions already noticed leave no manner of doubt that the Act is a social welfare legislation aimed at securing better position for women in the society, for their independence and dignity and to fulfill an important constitutional goal of equality amongst all citizens. Dated 22-12-2009 : 12. Dated 22-12-2009 : 12. From the combined reading of the above provisions of the Act, it emerges that the aggrieved person or Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate under sub-sec. (1) of Sec. 12 of the Act, seeking any of the reliefs under the Act. 12.1. An aggrieved person is a woman, who is or has been in a domestic relation with the respondent and who alleges to have been subjected to an act• of domestic violence by the respondent. 12.2. Term respondent as defined in clause (q) of Sec. 2 of the Act means adult male person, who is or has been in a domestic relation with the aggrieved person and against whom any relief is sought under the Act. Proviso to clause (q) of Sec. 2 of the Act, which is of an extreme importance, however, provides that aggrieved wife or a female living in a relationship in the nature of marriage may also file a complaint against the relatives of the husband or the male partner. 12.3. Proviso, it is well settled ordinarily would provide for an exception to the main clause in a statutory provision. 12.4. In case of S.B.K. Oil Mills v. Subbash Chandra, reported in AIR 1961 SC 1596 , it was observed that "The law with regard to provisos is well-settled and well-understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, 'a proviso is not interpreted as stating a general rule". 12.5. In case of I. T. Commissioner v. I. M. Bank Ltd., reported in AIR 1959 SC 713 , it was observed that "the proper function of proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment." 13. As per the definition of term respondent, it means any adult male person. This prescription would apply in all cases of applications filed by an aggrieved person. An aggrieved person as already noted includes not only wife or a female living in a relationship in the nature of marriage, but also other women members of a household. As per the definition of term respondent, it means any adult male person. This prescription would apply in all cases of applications filed by an aggrieved person. An aggrieved person as already noted includes not only wife or a female living in a relationship in the nature of marriage, but also other women members of a household. Thus, a mother, sister or even a daughter can be an aggrieved person under the Act. Therefore, ordinarily when an aggrieved person approaches the Magistrate, the respondent would be any adult male person. who is or has been in a domestic relationship with such an aggrieved person. However when the aggrieved person is a wife or the female living in a relationship in the nature of marriage, she can also file an application against any relatives of the husband or male partner as the case may be. Term any relative would include a male or even a female relative. This is the plain and simple meaning and implication of proviso to clause (q) of Sec. 2 of the Act. Any other interpretation or meaning assigned to it would virtually destroy as would be discussed hereinafter; the very purpose of enacting the proviso. It is one of the basic principles of interpretation of statute that the legislature does not waste words and no interpretation of a provision should be adopted, which would render any Section or part thereof redundant. In case of Aswini Kumar v. Arabinda Bose, reported in AIR 1952 SC 369 , it was observed that 'It is not a sound principle of construction to brush aside words in a statute as being in apposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In case of Rao Shiv Bahadur Singh & Anr. v. State of Vindhya Pradesh, reported in AIR 1953 SC 394 , it is observed that 'it is incumbent on the Court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application'. 14. If as contended on behalf of the petitioners even in case of a wife or a person living in a relationship in the nature of marriage seeking any reliefs under the Act, only male members could be respondents, the entire proviso would have no meaning or purpose left. 14. If as contended on behalf of the petitioners even in case of a wife or a person living in a relationship in the nature of marriage seeking any reliefs under the Act, only male members could be respondents, the entire proviso would have no meaning or purpose left. To my mind, only to carve out an exception to the main rule of respondent being only a male member, proviso has been added. 14.1. As per Sec. 2(q) of the Act, the respondent is one against whom an aggrieved person has sought any relief under the Act provided following two conditions are satisfied : (1) that he is adult male person, and (2) that he is or has been in a domestic relationship with the aggrieved person. Proviso however permits aggrieved wife or female living in a relationship in the nature of marriage to file a complaint against a relative of the husband or male partner. Proviso is thus enacted to carve out an exception to the above-noted requirements. In my view, expressed hereinabove such exception is to the requirement of the main provision of the sub-section that a respondent must be an adult male person. An argument may however be advanced that proviso seeks to make an exception regarding the second requirement namely that the respondent must be a person, who is or has been in a domestic relationship with the aggrieved person. Put differently, it may be argued that insofar as the aggrieved person is concerned other than wife or a female living in a relationship in the nature of marriage, the respondent can only be a person, who is or has been in a domestic relationship with the aggrieved person. But in view of the proviso if the aggrieved person happens to be a wife or person living in a relationship in the nature of marriage, respondent need not be a person, who is or has been in a domestic relationship with her. To my mind, this contention cannot be accepted in view of the definition of 'aggrieved person', which as already noted 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. To my mind, this contention cannot be accepted in view of the definition of 'aggrieved person', which as already noted 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. Therefore, to understand the proviso to Sec. 2(q) of the Act as to permit a wife or female living in a relationship in the nature of marriage to file a complaint against any male person, who may not be in a domestic relationship with such an aggrieved person, would lead to logical fallacy. To emphasise, term aggrieved person necessarily requires that there must be a woman, who is or has been in a domestic relationship with the respondent. 15. In case of Ajay Kant & Ors. v. Smt. Atka Sharma, reported in 2008 (2) Crimes 235 (MP), reference to which decision will be made again later, learned Single Judge of Madhya Pradesh High Court has however adopted the line of reasoning that the term 'complaint' used in proviso to Sec. 2(q) of the Act has to be understood as defined in Code of Criminal Procedure for want of any definition under the Act. Such complaint according to the learned Judge can only be for an offence punishable under any penal statute and since the Act provides for only two offences namely for breach of protection order by the respondent under Sec. 31 of the Act and for the Protection Officer not discharging his duty as provided under Sec. 33 of the Act, only in case of complaint of commission of such offences that the aggrieved person if is a wife or person living in a relationship in the nature of wife can join a female as respondent. 15.1. Though, at first glance the reasoning appears attractive and I had also found it acceptable, on a closer look at various provisions of the Act, with profound respect, I am unable to concur with this view. 15.1. Though, at first glance the reasoning appears attractive and I had also found it acceptable, on a closer look at various provisions of the Act, with profound respect, I am unable to concur with this view. Primarily because Sec. 31 of the Act makes punishable breach of a protection order or an interim protection order by the respondent If as argued, a female cannot be a respondent in any of the proceedings under the Act in which the protection order can be passed, it would immediately follow that a woman can also, therefore, not be an accused in a case of breach of the protection order. This, in my view is a logical fallacy. 16. On the other hand, I find other indications under the Act itself provided by the legislature, which would lead to only one conclusion that under certain circumstances, a woman can also be a respondent in the proceedings under the Act. 16.1. First and foremost as already noticed, in the Statement of Objects and Reasons, it is provided inter alia that whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner. This clearly brings out legislative intent of permitting a wife or female living in a relationship in the nature of marriage to file complaint against other women also. 16.2. Secondly, under sub-sec. (1) of Sec. 19 as already noted the Magistrate has powers to pass various orders referred to as residence orders. Under clause (b) of sub-sec. (1) of Sec. 19, the Magistrate has power to direct the respondent to remove himself from the shared household. Proviso to sub-sec. (1), however, states that no order under clause (b) of the Act shall be passed against any person, who is a woman. In other words, rest of the orders under clauses (a) and (c) to (D of sub-sec. (1) of Sec. 19 of the Act may be passed against any person including in a given case against a woman. One may also notice that under all clauses (a) to (D of sub-sec. In other words, rest of the orders under clauses (a) and (c) to (D of sub-sec. (1) of Sec. 19 of the Act may be passed against any person including in a given case against a woman. One may also notice that under all clauses (a) to (D of sub-sec. (1) of Sec. 19, the power of Magistrate is to give certain directions to the respondent. Thus, except clause (b) of sub-sec. (1) of Sec. 19 in all other cases, the Magistrate may pass appropriate orders against the respondent even if the respondent happens to be a woman. If as argued, in an application under Sec. 12(1) of the Act, a woman can never be joined as a respondent, proviso to sub-sec. (1) of Sec. 19 of the Act was not necessary. 17. It is true that under proviso to Sec. 2(q) of the Act, word used is 'complaint' and under sub-sec. (1) of Sec. 12 of the Act, aggrieved person is allowed to file an 'application'. However, to my mind, term complaint has been used in a general sense of a woman complaining of domestic violence and not in the sense of only a complaint of criminal offence. Under the Rules i.e. the Protection of Women from Domestic Violence Rules, 2006, term complaint has been defined under Rule 2(b) to mean any allegations made orally or in writing by any person to the Protection Officer. Thus, term complaint used in proviso to clause (q) of Sec. 2 of the Act need not be given a restricted meaning and should be understood to have reference to any proceeding or application made by aggrieved person complaining of domestic violence. In seeking to interpret various provisions of the Act and trying to understand the legislative intent, besides the plain meaning of the different statutory provisions, I have also borne in mind the historical background and the Objects and Reasons for enacting the Act as also the purpose it seeks to achieve. 18. Different High Courts have taken different views on this issue. I would like to refer to these decisions at this stage. 18.1. In case of Ajay Kant & Ors. 18. Different High Courts have taken different views on this issue. I would like to refer to these decisions at this stage. 18.1. In case of Ajay Kant & Ors. v. Smt. Atka Sharma, reported in 2008 (2) Crimes 235 (MP), the learned Single Judge of Madhya Pradesh High Court, as noted earlier, relied upon the definition of term complainant in Code of Criminal Procedure to hold that proviso to clause (q) of Sec. 2 of the Act pertains only to complaint regarding commission of an offence. Learned Judge has observed as under : "It is clear by this definition that a complaint as provided in Cr. P.C. can only be for an offence. As mentioned hereinabove only two offences have been mentioned in this Act and those are (1) under Sec. 31 and (2) under Sec. 33. It appears that this word complaint appeared in the definition of respondent has been used for initiating proceedings for these two offences and an aggrieved wife or female living in a relationship in the nature of a marriage has been given a right to tile a complaint against a relative of the husband or the male partner. This word complaint cannot be considered beyond the scope of the main provision of this Section which has been defined in first part of Sec. 2(q) that is for any relief under this Act. As provided in Sec. 31 of the Act, a complaint can be tiled against a person who has not complied with a protection order or interim protection order." 18.1.1. As discussed earlier, I am unable to adopt the said view since in my humble opinion, the complaint under Sec. 31 of the Act can be lodged only against the respondent for not complying with the protection order or interim protection order. If the respondent cannot be a woman, it is difficult to see, how even a complaint can be filed against a woman. 18.2. Decision of Madhya Pradesh High Court in Ajay Kant v. Smt. Alka Sharma (supra), has been followed by the Calcutta High Court in case of Smt. Rina Mukherjee v. State of West Bengal, reported in 2009 (4) Crimes 180 (Cal.). Learned Judge has observed in Para No. 5 as under : "5. 18.2. Decision of Madhya Pradesh High Court in Ajay Kant v. Smt. Alka Sharma (supra), has been followed by the Calcutta High Court in case of Smt. Rina Mukherjee v. State of West Bengal, reported in 2009 (4) Crimes 180 (Cal.). Learned Judge has observed in Para No. 5 as under : "5. Now, the statute is very clear that application claiming residence order or protection order has to be made against the 'respondent' and as we have seen above, respondent has to be a male adult person or a relative of the husband of the male partner. Therefore, the scheme of the Act a female does not come within the ambit of the expression 'respondent' against whom an order can be passed under Sees. 18/19 of the Act." 18.3. Learned Single Judge of Andhra Pradesh High Court in case of Smt. Menakuru Renuka v. Smt. Menakuru Mohall Reddy, reported in 2009 (3) Crimes 473 (AP), though did not accept the line of reasoning adopted in case of Ajay Kant (supra) nevertheless came to the same conclusion by making following observations : "Thus, the question a self-same female member in domestic relationship excluded as respondent in view of the contents of the main provision again being included under the proviso to be Section may not arise. Therefore, it has to be treated that the proviso intends to include only male persons other than those in domestic relationship also. There appears to be unintentional omission to specifically excluding women in the proviso or it may be because main Section makes it clear that only male persons can be respondents, it is not again specified in the proviso." 18.3.1. To this analysis also, with profound respect, I am unable to concur for reasons elaborated hereinabove. 18.4. Learned Single Judge of Madras High Court in a decision dated 1-8-2008 in Criminal Original Petition No. 9277 of 2008 in case of Uma Narayanan v. Mrs. Priya Krishna Prasad, also followed the decision of Madhya Pradesh High Court in case of Ajay Kant. [ 2008 (2) Crimes 235 (MP)] making following observations : "6. I have carefully considered the aforesaid submissions made by the learned Counsel on either side. The term respondent has been clearly defined in Sec. 2(q) of the Act which un-doubtedly refers only to an adult male and does not include any woman. [ 2008 (2) Crimes 235 (MP)] making following observations : "6. I have carefully considered the aforesaid submissions made by the learned Counsel on either side. The term respondent has been clearly defined in Sec. 2(q) of the Act which un-doubtedly refers only to an adult male and does not include any woman. The decision of the Madhya Pradesh High Court reported in Ajat Kant, 2008 (2) Crimes 235 (MP) (referred to supra) after an elaborate consideration of all the relevant provisions of the Act and the scheme of the Act has lucidly laid down that in view of the definition of the term respondent in Sec. 2(q) of the Act for obtaining any relief under the Act an application can be filed or a proceeding can be initiated against only adult male person and only as against such person protection orders can be passed. I am in respectful agreement with the above said decision of the Madhya Pradesh High Court." 18.5. On the other hand, learned Single Judge of Rajasthan High Court in an order dated 23-11-2007 passed in Criminal Revision Petition No. 1112 of 2007 in case of Sarita v. Smt. Umrao. has held as under : "5. From a plain reading of the proviso to Sec. 2(q) of the Act of 2005, it is apparent that a complaint by a wife or a female living in relationship in the nature of marriage may also tile a complaint against a relative of the husband. The term relative is quite broad and it includes all relations of the husband irrespective gender or sex. The Courts below have over-looked the proviso referred above, and thus, erred while withdrawing proceedings against non-petitioners Smt. Umrao and Kumari Gayatri." 18.6. Similar view has been taken by another learned Single Judge of Rajasthan High Court in a decision dated 29-5-2008 in case of Nand Kishore v. State of Rajasthan, in which, following observations have been made : "Proviso to Sec. 2(q) of the Act says that an aggrieved wife or female living in a relationship in the nature of a marriage may also tile a complaint against a relative of the husband or the male partner. Section 2(q) of the Act and its proviso if read together nowhere suggest that the relative of the husband or the male partner has to be a male. Section 2(q) of the Act and its proviso if read together nowhere suggest that the relative of the husband or the male partner has to be a male. In proviso to Sec. 2(q) of the Act, the word is 'relative' and not 'male relative'. I am therefore, of the opinion that a female relative Is not excluded from the definition of respondent contained in Sec. 2(q) of the Act." 19. For the reasons stated hereinabove, I concur with the view adopted by the Rajasthan High Court. Under the circumstances, I am of the view that it cannot be held that under the Act, the respondent can only be a male member. In case, aggrieved person is a wife or a woman living in a relationship in the nature of wife, in an application under Sec. 12 of the Act, if the facts so warrant, a female relative of the husband or the male partner as the case may be can also be joined as respondent. This answers the first question. 20. Insofar as the second question is concerned, introduction to the objects and reasons provides that in order to provide a remedy in civil law, Bill is introduced in the Parliament. Again in Para Nos. 2 and 3 of the objects and reasons also, it is stated that existing civil law does not address to the phenomenon of domestic violence, and therefore, to provide a remedy under civil law to protect a woman from being victim of domestic violence, the Bill is introduced. Predominantly thus aim of the legislature is to provide civil remedies to a woman who is subjected to domestic violence. 21. Apart from the Statement of Objects and Reasons even the different provisions contained in the Act make it clear that predominantly the rights and remedies created under the Act are in the nature of civil rights. Barring Secs.31 and 33, which provide for penalty for breach of protection order and Protection Officer not discharging his duties respectively, there are no other penal provisions in the Act. On the other hand, the act provides for remedies to a woman subjected to domestic violence, empowers the Magistrate to pass variety of orders to make such remedies effective. All these proceedings are in the nature of civil remedy. 22. On the other hand, the act provides for remedies to a woman subjected to domestic violence, empowers the Magistrate to pass variety of orders to make such remedies effective. All these proceedings are in the nature of civil remedy. 22. It is true that the procedure to be adopted by the Magistrate while dealing with the application under Sec. 12 of the Act and other provisions are governed by the provisions of the Code of Criminal Procedure as provided under sub-sec. (1) of Sec. 28 of the Act. However, under sub-sec. (2) of Sec. 28 of the Act, it is clarified that the Magistrate while disposing of the application under Sec. 12 of the Act or under sub-sec. (2) of Sec. 23 of the Act may also lay down his own procedure for disposal. 23. In view of the nature of the proceedings before the Magistrate and in view of the procedural flexibility provided by the legislature to the Magistrate in deciding the applications under Sec. 12(1) of the Act, it cannot be stated that the Magistrate is bound by the straight-jacket formula or procedure laid down under the Code of Criminal Procedure. In a given case, it would be open for the Magistrate to make deviation there from as may be found necessary in the interest of justice. 24. Under the circumstances, it cannot be accepted that in all cases, once the Magistrate issues summons while entertaining application under Sec. 12(1) of the Act, he would have no power to recall the summons or to drop the proceedings against any of the respondents even if it is demonstrated that such a respondent has been wrongly or erroneously joined. The compulsion on the Magistrate to go through the entire gamut of concluding the trial once the summons is issued as imposed by the Hon'ble Supreme Court in case of Adalat Prasad, 2005 (1) GLR 546 (SC) : 2004 (7) SCC 338 , need not be read in the provisions contained under the Act. 24.1. The compulsion on the Magistrate to go through the entire gamut of concluding the trial once the summons is issued as imposed by the Hon'ble Supreme Court in case of Adalat Prasad, 2005 (1) GLR 546 (SC) : 2004 (7) SCC 338 , need not be read in the provisions contained under the Act. 24.1. In other words, if in a given case upon service of summons, any of the respondents in an application under Sec. 12(1) of the Act can demonstrate before the Magistrate that he or she has been wrongly joined or that there are no allegations against him or her to proceed further, it would be open for the Magistrate to delete such respondent from the proceedings and to drop further proceedings against him/her. Of course, such powers need to be exercised with due care and circumspection and unless it is pointed out on admitted or undisputable facts or on application of law on admitted facts that the proceeding against such a respondent are not maintainable, such powers should not be exercised. This would also be in the larger interest of justice since in a case, it is so demonstrated, the Magistrate would not have to perforce proceed against such respondents where no case at all has been made out, nor would such respondents be compelled to approach the High Court for quashing thereby causing harassment and prejudice to such parties and increasing the work burden of the High Court. 25. With these conclusions, coming to facts of the individual cases, Special Criminal Application No. 2068 of 2009 is sought to be sustained only on the ground that the petitioners are female relatives of the husband of the applicant. Since, the application before the Magistrate has been filed by the wife, complaint cannot be quashed only on this ground. The petition is therefore dismissed. 26. In case of Misc. Criminal Application No. 9440 of 2009, learned Counsel stated that in view of the interpretation that this Court has adopted the petitioners would not press other contentions with a view to apply for discharge at an appropriate stage. Disposed of accordingly. Notice is discharged. Interim relief stands vacated. (SBS) Orders accordingly.