JUDGMENT TARUN KUMAR GUPTA :- This revisional application is directed against the judgment and order dated 31st May, 2011 passed by the learned Additional Sessions Judge, Andaman & Nicobar Islands, in Criminal Appeal No. 05 of 2010 affirming the judgment and order dated 28th October, 2010 passed by the learned Judicial Magistrate, First Class - II, Port Blair in C.R. Case No. 173 of 2009. The facts of the case may be summarized as follows :- O.P. wife filed one complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act of 2005) praying for an order for grant of Rs. 5,000/- per month for her own maintenance along with protection order under Section 18 of the Act and also for monitory relief under Section 20 of the Act along with further order for providing residential accommodation, against her husband being the present petitioner. It was further case of the complainant - wife that after marriage with O.P. husband she came to reside at Port Blair and that marriage was consummated and that she gave birth to three children through the said wedlock. In 1981, on account of abandonment by her husband she along with her children was compelled to return to Andhra Pradesh, her father's place for shelter and that after a gap of about ten years after much persuasion her husband took her back along with her children to his place of residence at Port Blair. The O.P. husband subjected the complainant wife to continuous torture both physical and mental. In the meantime, her son became married, but one of the daughters namely Dhanalaxmi had to come back to the complainant with her two children as her husband deserted her. As OP husband stopped providing food and shelter the complainant wife somehow managing to the charity of neighbours as well as the income of Dhanalakshmi who was working as a maid servant. The husband has sufficient financial capacity and being a serviceman he is able to provide the amount as claimed by the complainant wife. Present petitioner being O.P. husband contested the case by filing a written objection. Denying material allegations of the petition it was contended inter alia that complainant wife deserted him in 1974 and started to live in her father's place and that in spite of repeated requests by husband she declined to return to Port Blair. Present petitioner being O.P. husband contested the case by filing a written objection. Denying material allegations of the petition it was contended inter alia that complainant wife deserted him in 1974 and started to live in her father's place and that in spite of repeated requests by husband she declined to return to Port Blair. The husband spent huge sum towards marriage of their two daughters as well as one son. As wife did not stay with the husband there was no question of torture and her case was liable to be dismissed with costs. Both the parties adduced evidence in support of their respective claims. After contested hearing learned trial court allowed the petition directing the husband to pay a sum of Rs. 3,000/- per month to the petitioner's wife towards maintenance and a further sum of Rs. 2,000/- per month towards provision for residential accommodation for the petitioner from the date of order. Present petitioner husband preferred an appeal but the same was also dismissed on contest by the order impugned. Mr. Roshan George, learned advocate for the petitioner husband has assailed the judgments of lower courts on the following grounds :- (i) The wife deserted her husband in 1981 and went to mainland. As such, the OP wife cannot be said to be an "aggrieved person" within the meaning of Section 2(a) of the said Act of 2005 as there was no domestic relationship between the parties since then. (ii) Secondly, there was no question of having domestic relationship between the parties in the shared household within the meaning of Section 2(f) and Section 2(s) of the said Act of 2005 as wife deserted her husband in 1981 and there was no cohabitation. (iii) As the parties did not live together since long there was no question of domestic violence within the meaning of Section 3 of the said Act of 2005. (iv) The application made by the wife was not in the form as prescribed under Rule 6(i) of the Protection of Women from Domestic Violence Rules, 2006. (v) Learned trial court allowed the complaint observing that wife was able to establish economic abuse against husband, but economic abuse was not proved as provided under Section 3(iv) of the said Act of 2005. (vi) No document or medical paper was produced to establish the alleged physical assault or domestic violence upon the wife. (v) Learned trial court allowed the complaint observing that wife was able to establish economic abuse against husband, but economic abuse was not proved as provided under Section 3(iv) of the said Act of 2005. (vi) No document or medical paper was produced to establish the alleged physical assault or domestic violence upon the wife. (vii) The husband gifted the lands of the husband lying in Andhra Pradesh to the wife and hence it cannot be said that wife was economically neglected by the husband or there was economic abuse within the meaning of Section 3(iv) of the Act of 2005. (viii) Learned Magistrate passed the order under Section 12 of the said Act without calling for any domestic incident report from the Protection Officer or the service provider which vitiated the order of learned Magistrate. (ix) Learned appellate court failed to take note of these defects and the judgment of lower court should be set aside on these grounds. Learned counsel for the husband in this connection has referred the case law of Kishor Shrirampant Kale v. Sou. Shalini Kishor Kale & Ors. reported in 2010 Cri. L.J. 4049 : (2010 (4) AIR Bom R 497) (Bombay High Court) (Nagpur Bench). Mrs. K. T. Rao, learned advocate for the respondent wife on the other hand has submitted that admittedly present OP was the married wife of present petitioner husband and that three children were born after consummation of their marriage. She further submits that from the evidence on record as well as admission of the husband it came out that wife was staying in Andhra Pradesh for long period for looking after the parents of the husband. It was further submitted by learned counsel that the report of Protection Officer was not a must for disposing of a case under Section 12 of the Act. She has further submitted that if the entire evidence is taken together then it will appear that the wife had a domestic relationship with the husband in a shared household and that there was economic abuse against the wife whereby she became an aggrieved person and that she was compelled to file an application with the Magistrate under Section 12 of the Act. According to learned counsel for the wife, the impugned order of learned Additional District Judge confirming the order of learned Magistrate does not call for any interference by this Court of revision. For proper appreciating the submission of learned advocates of both sides it will be worthy to note down the relevant provisions of the Act which stands 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; (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 are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family; (s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. 3. Definition of domestic violence. 3. Definition of domestic violence. - For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it - (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. Explanation 1. - For the purposes of this section, - (i) "Physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force; (ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman; (iii) "verbal and emotional abuse" includes - (a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and (b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested. (iv) "economic abuse" includes - (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person required out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance. (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II. - For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration. 12. Application to Magistrate. - (1) 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 this Act : Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent : Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) 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. (5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing." There is no denial that complainant wife had a domestic relationship with OP husband in a shared household at Port Blair. This is apparent from the evidence on record as well as admission of the husband. It is true that complainant wife failed to prove by any cogent evidence that she was assaulted or tortured by husband resulting her hearing problem, but it is an admitted fact that complainant wife was not an earning person. Though it was argued during hearing that landed properties of husband was given to the wife for her maintenance, but husband while deposing as OPW - 1 has admitted that the landed property in the mainland stood in his name. He also stated during his cross-examination that he left his wife with his parents in 1991 for looking after them and that at the time of death of his parents his wife was all along with them and performed the last rites ceremonies after their death. He however took the plea that thereafter his wife refused to come to Port Blair to live with him in spite of repeated requests. He also took the plea that he used to send money to his wife for maintenance and that his wife used the usufructs of his land lying at mainland for her maintenance but there is no supporting document in support of the same. If the statements of husband are taken as a gospel truth still it appears that wife had to live in the mainland at least for about 10 years for looking after the parents of her husband as per direction of her husband. If that be so, then it cannot be said that wife deserted her husband. The husband has categorically stated during said cross-examination that he was not ready to take back his wife and that he will not allow to reside his wife with him even if she is willing. If that be so, then it cannot be said that wife deserted her husband. The husband has categorically stated during said cross-examination that he was not ready to take back his wife and that he will not allow to reside his wife with him even if she is willing. Those statements by itself proved that he is not ready either to take back the wife or to provide her residence. There is nothing on record to show that wife had any income at any point of time. It came out from the evidence that husband is an employed person and has an income of about Rs. 16,000/- plus per month from his service besides his income from landed properties. It also came out from the evidence of husband that one of their daughters has since been deserted by her husband and that she is presently residing with her mother along with her two children. The case referred by learned counsel for the husband has no application in the facts and circumstances of this case. In the referred case though wife and husband lived separately for last 15 years and wife abruptly filed a case alleging domestic violence against husband but she was getting maintenance as per Court order and that there was no averment in complaint that accommodation in the house of husband was demanded and refused by husband or that there was any prohibition or restriction on use of accommodation. In the case in hand, it came out that wife had to leave away from her husband at least from 10 years as per direction of her husband for looking after her parents in law. In the present case, the wife is not getting any maintenance from her husband. The husband has categorically denied to take back the wife to give her shelter in his house though he owns a house in Port Blair. From the above discussions, it is apparent that wife at some point of time shared household and had domestic relation with the husband, and that for not allowing her to reside in husband's place and also for not providing her any maintenance, she being an aggrieved person was entitled to file a complaint under Section 12 of the Act of 2005. In terms of Rule 6(1) of the Protection of Women from Domestic Violence Rules, 2006 an application of the aggrieved person under Section 12 shall be in Form II or as nearly as possible thereto. From the plain reading of said Rule 6(1) of the Rules of 2006, it is apparent that it was not mandatory to file the application in Form II. Apart from that filing of a complaint under Section 12 of the Act of 2005 can not be rejected merely on the ground of not being in prescribed form. The objection in this regard was not also taken in the lengthy written objection filed by the husband in the trial court. Learned counsel for the husband has given much stress on the provision of Section 12 of the Act of 2005 wherein it was stated that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. According to Mr. George, learned advocate for the husband, said provision is mandatory and that judgment of learned trial court vitiated as no such domestic incident report was called by the Magistrate either from the Protection Officer or from the service provider. Unfortunately, I find little merit in the aforesaid submission. In this case, husband filed written objection and contested the case by adducing evidence. The order of learned trial court was passed after contested hearing. Under Section 9(1)(a) of the Act of 2005, it is the duty of the Protection Officer to assist the Magistrate in the discharge of his functions under the Act. Again under Section 9(2) of the Act of 2005, the Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act. Again under Section 10(2)(a) of the Act of 2005, a service provider shall have the power to record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place. Again under Section 10(2)(a) of the Act of 2005, a service provider shall have the power to record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place. On plain reading of these provisions related to the duties and function of the Protection Officer and service provider, it appears that their main duty was to assist the Magistrate in the discharge of his function under this Act. If learned Magistrate is of the opinion that no such assistance is required either from the Protection Officer or from the service provider then he is certainly at liberty to proceed with the case after giving notice to the OP husband. However, if any such domestic incident report of Protection Officer or the service provider is received by the Magistrate then he has to consider it before passing the final order under Section 12 of the Act of 2005. Again, by the words 'shall take into consideration' does not mean Magistrate has to accept it or to act upon it. The said terms only meant that Magistrate has to take note of said report at the time of passing order under Section 12 of the Act of 2005. I have already stated that the learned Magistrate passed the order under Section 12 of the Act of 2005 after contested hearing. In this connection, it is pertinent to note that in the trial court the husband did not take this plea before passing of the final order by the Magistrate that a report from the Protection Officer or from the service provider was required to be called for in the said case for proper appreciation of the case. In view of the discussion as made above, I am of the opinion that order impugned affirming the order of learned Magistrate does not suffer from any irregularity or impropriety calling for interference by this Court in exercise of its power under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973. As a result, the revisional application stands dismissed on contest. However, I pass no order as to costs. Let the LCR be sent down with a copy of this judgment and order at once. As a result, the revisional application stands dismissed on contest. However, I pass no order as to costs. Let the LCR be sent down with a copy of this judgment and order at once. Urgent Xerox certified copy of this judgement and order be supplied to the parties after observing all required formalities. Revision dismissed.