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2011 DIGILAW 526 (GAU)

Basit v. State of Assam

2011-06-16

B.D.AGARWAL

body2011
ORDER B.D. Agarwal, J. 1. Both the criminal petitions are disposed of by this common judgment and order since identical issues have been raised in both the criminal petitions. Besides this, in both the cases the order of a Judicial Magistrate, taking cognizance of a complaint filed by the respondent No., 2 Mustt, Wahida Begum under Sections 18,19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 (briefly the "D.V. Act"), has been assailed. After taking cognizance of the complaint, notices have been issued to the respondents in the said case to show cause as to why the interim maintenance allowance shall not be granted to the complainant. Heard Mr. Pran Bora as well as Mr. S. Banik, learned Counsel for the petitioners and the complainant/respondent No. 2 was represented by Mr. T. J. Mahanta, learned Counsel. 2. It may also be mentioned here that the order dated 2.9.2010, passed by the learned JMFC, Tinsukia in Misc. Case No. 08/DV of 2010, whereby cognizance of the complaint has been taken, was challenged by one of the respondents before the learned Sessions Judge in Crl. Appeal No. 32(3) of 2010. The said appeal has been dismissed vide judgment and order dated 23.12.2010. In this way, the Crl. Petition No. 60 of 2011 has been filed after dismissal of the statutory appeal. Since there is no provision to challenge the appellate order, the Criminal Petition has been filed under Section 482 read with Sections 401/ 397 of the Criminal Procedure Code, 1973. 3. Although the narration of facts are not necessary to dispose of the criminal petitions, prudence demands that some salient features of the case may be briefly noted, which are as follows: 3.1 The complainant Mustt. Wahida Begum was married to one Md. Isa in the year 1994. After their marriage, they lived together as husband and wife and out of their wedlock a daughter was born to them in 2002. There is a dispute from the side of the petitioners about the paternity of the said daughter inasmuch as according to the petitioners, the husband had divorced the complainant on 20.3.1996. The fact of divorce again is a disputed one. 3.2 Be that as it may, the admitted facts are that the husband of the complainant died on 11.1.2010 and till then the complainant was living with her husband. The fact of divorce again is a disputed one. 3.2 Be that as it may, the admitted facts are that the husband of the complainant died on 11.1.2010 and till then the complainant was living with her husband. Only after the death of the husband, the respondents in the complaint case instituted Title Suit No. 24 of 2010 in the Court of the Civil Judge at Tinsukia on 21.7.2010, seeking a decree of recovery of possession, amongst other reliefs. One of the other declarations, sought for, is that Mustt. Wahida Begum is not entitled to claim herself as wife of Md. Isa in view of her divorce on 20.3.1996. The said suit is still pending. 3.3 Soon after filing of the suit, the wife of Md. Isa filed a complaint under Section12 of the DV Act praying for a direction to the respondents to give her maintenance allowance, furnish details of debts and securities of her husband, etc., inter alia, an order to restrain the respondents from disposing or alienating or transferring the immovable property of her husband. 3.4 The complaint was filed on 2.9.2010. On the very same day congnizance was taken and notice for interim maintenance was issued by the learned Magistrate. 4. The aforesaid order dated 2.9.2010, taking cognizance of the complainant, has been basically on the ground that the learned Magistrate could not have taken cognizance of the complaint without there being a 'domestic incident report', from a Protection Officer or a Service Provider. In other words, according to the learned Counsel for the petitioners the aforesaid report is mandatory and sine qua non under the proviso to Section 12 of the D. V Act. Mr. Banik, learned Counsel appearing in Criminal Petition No. 60 of 2011 also raised another plea that in the scheme of D.V. Act, the female persons cannot be impleaded as respondents. 5. For ready reference, Section 2(f), relating to definition "domestic relationship" and Section 12(1) of the D.V. Act are reproduced herein below: 2. (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." 12. (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." 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. 8. Mr. Mahanta, learned Counsel for the complainant /respondent No. 2 contended that no report from the Protection Officer is warranted at the stage of taking cognizance of a complaint. In support of his submission the learned Counsel cited a judgment of Hon'ble Madhya Pradesh High Court, rendered in the case of Ajay Kant & Ors. v. Smt. Alka Sharma, I (2008) DMC : 2008 Cri LJ 264, and also the judgment of Hon'ble Jharkhand High Court, rendered in the case of Rakesh Sachdeva & Ors. v. State of Jharkhand & Anr, 2011 Cri LJ 158. On the basis of these authorities, the learned Counsel submitted that such report may be necessary only before passing final of orders. 9. The Hon'ble Madhya Pradesh High Court has held that it is neither obligatory for a Magistrate to call a report from Protection Officer or Service Provider nor it is necessary to consider such a report before issuance of notice. In the opinion of His Lordship, such report is relevant and necessary only at the time of passing final order. The relevant observations of Madhya Pradesh High Court are extracted below: 3(E) On perusal of the aforementioned proviso appended to the provision, it appears that before passing any order on the application, it is obligatory on a Magistrate to take into consideration any report received by him from the Protection Officer or the Service Provider. Neither it is obligatory for a Magistrate to call such report nor it is necessary that before issuance of notice to the petitioners it was obligatory for a Magistrate to consider the report. Neither it is obligatory for a Magistrate to call such report nor it is necessary that before issuance of notice to the petitioners it was obligatory for a Magistrate to consider the report. The words before passing any order provide that any final order on the application and not merely issuance of notice to the respondent the petitioners herein. The words any report also mention that a report, if any, received by a Magistrate shall be considered. Thus, at this stage if the report has not been called or has not been considered, it cannot be a ground for quashing the proceedings. 8. Identical view has been taken by the Jharkhand High Court in the following words: 12. It would thus appear that the proviso to Section 12 would impose that before passing any order on an application of the aggrieved person, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer. The order contemplated in the proviso relates to the final orders, which the Magistrate may pass under Section 18 of the Act. The Protection orders which the Magistrate may pass under Section 18 of the Act, is only on being prima facie satisfied that the domestic violence has taken place or is likely to take place. The insistence to take into consideration the domestic incident report of the Protection Officer would, therefore, not apply at the stage of initiation of the enquiry under Section 12 of the Act. The contention of the petitioners that without considering the domestic incident report, the very initiation of the inquiry is bad, appears to be misconceived and, therefore, not tenable. 9. I partly agree and partly disagree with the views taken by the Hon'ble Madhya Pradesh High Court and Jharkhand High Court. In my considered opinion, Section 12 does not deal with passing of final orders. Final orders are passed under Sections 18, 19, 20, 21 and 22 of the Act only. Section 12 is akin to Section 200of the Criminal Procedure Code, 1973. Section 12 only contemplates as to who can file a complaint, what reliefs can be sought for, what should be the contents of the complaint and how the complaint can be examined thereafter. If these preconditions are satisfied the Court can take cognizance of the complaint, subject to making out a prima facie case on facts. Section 12 only contemplates as to who can file a complaint, what reliefs can be sought for, what should be the contents of the complaint and how the complaint can be examined thereafter. If these preconditions are satisfied the Court can take cognizance of the complaint, subject to making out a prima facie case on facts. Unlike Section 200, Cr.P.C. there is no requirement of recording preliminary statement of the aggrieved person, filing a complaint under Section 12 of the D.V. Act, for the purpose of taking cognizance thereof. 10. Under Section 12(1) of the D.V. Act, an application/complainant can be filed before a Magistrate either by an aggrieved person or by a Protection Officer or any other person on behalf of the aggrieved person. In this way, Section 12(1) does not contemplate that such an application should invariably be accompanied by a report from a Protection Officer. Proviso to Section 12(1) is in (he nature of a rider, which mandates that the Magistrate shall consider any domestic incident report, if received by him either from a Protection Officer or Service Provider. I have already mentioned earlier that an application under Section 12 can be independently filed by an aggrieved person, which may not be accompanied by any report from a Protection Officer. However, if any report from a Protection Officer is available before the Magistrate that shall have to be taken into consideration, but, the law does not impose a precondition for the Magistrate to call for a report from the Protection Officer. On this point I differ with the view taken by Hon'ble M. P. High Court, wherein it has been held that it is not obligatory for the Magistrate to consider the report. With the same analogy, I also differ with the view taken by the Hon'ble Jharkhand High Court, wherein, it has been held that: the insistence to take into consideration the domestic incident report of the Protection Officer would therefore, not apply at the stage of initiation of the inquiry under Section 12 of the Act. 11. For aforesaid reasoning, I approve the view taken by the learned Sessions Judge that it is not obligatory for a Magistrate either to call for a report from a Protection Officer or a Service Provider at the stage of taking cognizance of the complaint. 11. For aforesaid reasoning, I approve the view taken by the learned Sessions Judge that it is not obligatory for a Magistrate either to call for a report from a Protection Officer or a Service Provider at the stage of taking cognizance of the complaint. However, if any such report is available before the Magistrate, the same should be taken into consideration. 12. With regard to the impleadment of female members of the family as respondents in the complaint, the definition of 'domestic relationship' given under Section 2(f) of the D.V. Act needs to be looked into. Under the said definition any person who has a relationship with the aggrieved person or had a relationship at any point of time or lived together in a shared house of related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family can be impleaded as respondents in the complaint, provided any such person has committed domestic violence as defined in Section 3. 13. In the case before me, there is no dispute that the respondents, impleaded in the complaint petition, are not the family members nor is there any dispute that the complainant did not live with them in a joint family at any point of time. At the same time the assertion of the petitioners that the complainant is a divorcee is also a disputed fact. Besides this, in the case of Sandhya Manoj Wankhade v. Manoj Bhitnrao Wankhade & Anr., reported in II (2011) DMC 811 (SC) : III (2011) CCR 377 (SC) : (2011) 3 SCC 650 , the Hon'ble Supreme Court was confronted with a situation to examine whether female members can be impleaded in a complaint under Section 12 of the D.V. Act in view of Section 2(q), which stipulates that 'respondent' means any adult male person, who is or has been in a domestic relationship with an aggrieved person. After analyzing the law, Their Lordships have held that the female members are also included in the scheme of the law. The relevant observations of the Apex Court are extracted below: 14. After analyzing the law, Their Lordships have held that the female members are also included in the scheme of the law. The relevant observations of the Apex Court are extracted below: 14. 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. 15. 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. 16. 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. 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 provision of the Domestic Violence Act, 2005. 14. The learned Counsel for the petitioners cited the judgment of the Hon'ble Supreme Court rendered in D. Velusamy v. D. Patchaiammal, reported in II (2010) DMC 677 (SC) : IV (2010) CCR 164 (SC) : VII (2010) SLT 330-173 (2010) DLT 1 (SC) : (2010) 10 SCC 469 , to contend that a divorcee is not in the scheme of D. V. Act. In the said case, the parties were Hindus by faith. There was a question whether the complainant was legally married wife of the appellant. Besides this, in this said judgment, the Hon'ble Apex Court was dealing with a situation whether the appellant and the respondent cannot be considered as in a relationship within the parameters of "relationship in the nature of marriage" as referred to in the Section 2(f) of the Act. Besides this, in this said judgment, the Hon'ble Apex Court was dealing with a situation whether the appellant and the respondent cannot be considered as in a relationship within the parameters of "relationship in the nature of marriage" as referred to in the Section 2(f) of the Act. In other words, the aforesaid judgment did not deal with the contours of domestic relationship with "family members living together as a joint family". 15. For the reasons assigned hereinabove, I do not find any infirmity or illegality in taking cognisance of the complaint. Needless to mention that the petitioners herein shall be at liberty to raise all the factual issues in the Trial Court. In the result, both the criminal petitions stand dismissed. The stay order, passed earlier, stands vacated. Petition dismissed.