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2014 DIGILAW 2177 (MAD)

J. Anitha Valarmathy v. K. John Hilton Maharaja

2014-07-17

P.R.SHIVAKUMAR

body2014
ORDER : P.R. Shivakumar, J. The complainant (petitioner) in Crl. M.P. No. 1226 of 2009 who preferred complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) on the file of learned Judicial Magistrate No. 1, Tuticorin, is the petitioner in the present criminal revision case. The complaint of domestic violence was preferred making allegations against respondents 1 to 4 herein, who are respectively the husband, mother-in-law, sister of the husband and the father of the petitioner herself. Besides making allegations against them that they committed acts of domestic violence, for which they were to be prosecuted, the petitioner had also prayed for order of protection under Sections 19(5) and 19(7) of the Act. 2. The learned Judicial Magistrate, relying on the order of the learned single Judge of this Court (Thiru. Justice K. Mohan Ram) in Uma Narayanan v. Priya Krishna Prasad) reported in (2008) 3 MLJ (Crl) 756, held that the complaint/petition under the provisions of Protection of Women from Domestic Violence Act, 2005 against the female persons was not maintainable and accordingly refused to take the complaint on file against the respondents 2 and 3 herein. By the impugned order, the learned Judicial Magistrate took the petition on file (complaint on file) only against the respondents 1 and 4. Aggrieved by the same, the petitioner has come forward with the present criminal revision case. 3. Though four persons figured as respondents in criminal revision case, the relief sought for is only against the respondents 2 and 3. They are represented by the counsel. 4. The arguments advanced by Mr. S. Subbiah, learned counsel for the revision petitioner and Mr. B. Anandan, learned counsel for respondents 1 to 3 are heard. The grounds of revision, impugned order and copy of the complaint are also perused. 5. The challenge to the impugned order is made on a short ground and the scope of this revision is also very limited. The only ground on which the impugned order is challenged by the petitioner is that the Judicial Magistrate has committed an error in holding that a complaint/petition under the Act cannot be maintained against a female. In this regard, the learned counsel for the petitioner took the Court through the judgments in Archana Hemant Naik Vs. The only ground on which the impugned order is challenged by the petitioner is that the Judicial Magistrate has committed an error in holding that a complaint/petition under the Act cannot be maintained against a female. In this regard, the learned counsel for the petitioner took the Court through the judgments in Archana Hemant Naik Vs. Urmilaben I. Naik and Another, Remadevi v. State of Kerala ( 2009 (1) DMC 297) and Nand Kishore and Others Vs. State of Rajasthan and Another, However a learned single Judge of this Court (Thiru. Justice K. Mohan Ram) expressed a view that an application under Section 12 of the Act against a woman was not maintainable. Such a view was expressed in Uma Narayanan v. Priya Krishna Prasad) (2008) 3 MLJ (Crl) 756). Perhaps relying on the said view, the learned Judicial Magistrate chose to take the complaint on file against R1 and R4 alone. Division Bench of this Court in R. Nivendran and Others Vs. Nivashini Mohan @ M. Nivashini, in principal Bench (myself was part of the Division Bench). As there were conflicting views expressed by two learned single Judges of this Court in 2008 (3) MLJ (Crl) 756 cited supra and K. Karnala, K. Paskngili and C. Vasantharaja Vs. M. Parimala and The District Social Welfare Office cum The District Dowry Prohibition Officer, Dindigul, the question was referred to a Division Bench. The Division Bench approved the view expressed by the Division Bench of the High Court of Andhra Pradesh in Afzalunnisa Begum & etc. v. State of A.P., that of Bombay High Court in Archana Hemant Naik Vs. Urmilaben I. Naik and Another, and the view of Rajasthan High Court in Nand Kishore and Others Vs. State of Rajasthan and Another, and held that the term respondents in Section 2(q) of the Act would include female relative of the respondent or male partner. The Division Bench also referred to the Judgment of the Supreme Court in U. Suvetha Vs. State by Insp. State of Rajasthan and Another, and held that the term respondents in Section 2(q) of the Act would include female relative of the respondent or male partner. The Division Bench also referred to the Judgment of the Supreme Court in U. Suvetha Vs. State by Insp. of Police and Another, wherein the Apex Court held that the statement of objects and reasons of the Act also refers to any 'relative' of the husband or the male partner and the proviso to sub-section (1) of Section 19 of the Act makes it clear that the word mentioned in Proviso to Section 2(q) is not restricted to a 'male' relative and would include a "female" relative. This Court (Division Bench) has also held that the view taken by Justice Mohan Ram in Uma Narayanan v. Priya Krishna Prasad) (2008) 3 MLJ (Crl) 756) was not correct. 6. From the above, it would be apparent that Section 2(q) is not restricted to a 'male' relative and would include a "female" relative. The learned counsel for the contesting respondents is not in a position to cite any other decision of the Apex Court or High Court expressing a different view. In view of the same, this Court comes to the conclusion that the learned Judicial Magistrate has chosen to hold that the complaint under Section 2 of the Protection of Women from Domestic Violence Act, 2005 against female person will not be maintainable. The said finding of the learned Judicial Magistrate is totally against the principle of law. The said finding needs to be interfered. In the result, the criminal revision case is allowed and the impugned order dated 11.3.2009 in Crl. M.P. No. 1226 of 2009 is set aside. Connected M.P(MD).No. 1 of 2009 is closed.