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2013 DIGILAW 285 (MAD)

N. Vijayakumar v. .

2013-01-10

T.SUDANTHIRAM

body2013
JUDGMENT 1. This petition has been filed by the petitioners seeking to quash the proceedings in Cr.M.P.No.2933 of 2009, on the file of the learned Judicial Magistrate No.V, Madurai, as against the petitioners herein. 2. Learned counsel for the petitioners submitted that the respondent herein married the first petitioner in the year 2002 and she got separated in the year 2005. But, the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Act") was filed only in the year 2009, when there was no domestic relationship at all between the respondent and the first petitioner herein. Learned counsel for the petitioners further submitted that in the petition filed by the respondent before the trial Court, apart from showing her husband as first respondent, she also unnecessarily included the other family members viz., father-in-law, mother-in-law and also unmarried sister-in-law, as the respondents and no specific allegations are made against them. Learned counsel for the petitioners further submitted that even as per Section 2(q) of the Act, only male members can be shown as respondents and not female members. The petition filed by the respondent herein before the trial Court is also not in Form No. II, as per Rule 6 of the Protection of Women from Domestic Violence Rules (hereinafter referred to as "the Rules"). 3. Learned counsel appearing for the respondent submitted that as per the decision of a Division Bench of this Court in 2010 (2) MLJ (Crl.) 637 (R. Nivendran and five others Vs. Nivasnini Mohan @ M.Nivashini) and the decision of the Supreme Court in 2011 Cri.L.J. 1687 (Sandhya Manoj Wankhade Vs. Manoj Bhimaro Wankhadf), it is well settled that the female members also can be included as the respondents in the application filed by a women under Section 12 of the Act. Learned counsel further submitted that filing an application as per Form II is not a mandatory one as per Rule 6(i) of the Rules. Learned counsel for the respondent further submitted that as per Section 2(a) of the Act, an aggrieved person means any women 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 and as such, the respondent has filed an application under Section 12 of the Act. 4. 4. This Court considered the submissions and perused the records. 5. The first contention raised by the learned counsel for the petitioners that as per Section 2(q) of the Act, only a male person can be shown as a respondent and a female cannot be shown as respondent, had been rejected by this Hon'ble High Court and Supreme Court, since the proviso to Section 2(q) of the Act made it clear that the complaint may be filed against the relative of the husband or male, and the relative is a common term for both sex. 6. As far as the next contention is concerned, Section 12(3) of the Act says that 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. Rule 6 of the Protection of Women from Domestic Violence Rules is to the effect that every application of the aggrieved person under Section 12 shall be in form II or as nearly as possible thereto. Therefore, the application should be in Form II is not a mandatory one. Failure to file an application as per Form No. II does not affect the proceedings. 7. Though, according to the learned counsel for the petitioners, the respondent has unnecessarily shown the other family members as respondents, apart from her husband, it is stated in the petition filed by the respondent herein before the trial Court that the petitioners 2 to 4 herein also refused to allow the respondent herein to enter into her matrimonial home and she was pushed out from the house and the door was closed. It is also stated that the first petitioner ill-treated her at the instigation of the petitioners 2 to 4 herein. 8. One another contention of the learned counsel that at the time of filing the application, the respondent herein was not in domestic relationship with the first petitioner and as such there is no locus standi to file the application is also only to be rejected, since the definition clause of Section 2(a) of the Act reads that "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". 9. 9. The words "who is or has been, in a domestic relationship" clearly indicate that the relationship need not be the existing relationship. The definition encompasses into its ambit even the past relationship. Thus, I find no valid point to quash the proceedings. Hence, this petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed. 10. However, learned Judicial Magistrate No. V, Madurai, is directed not to insist for the appearance of the petitioners 2 to 4, who are the respondents 2 to 4 in Cr.M.P.No.2933 of 2009 and permit them to represent through their counsel.