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2015 DIGILAW 812 (MAD)

Arokiasamy v. Rubini Mary

2015-02-10

C.T.SELVAM

body2015
Judgment :- 1. By way of the present criminal Original Petition, the petitioner seeks quash of proceedings in D.V.O.P.No.21 of 2014 on the file of the learned Judicial Magistrate No.I, Sivagangai. 2. The respondents herein are the applicants in D.V.O.P.No.21 of 2014. The petitioner and the 1st respondent were married on 24.05.2010. The marriage was dissolved under the orders of the I Additional Family Court, Chennai, passed in IDOP.No.3381 of 2013 dated 10.07.2014. The 2nd respondent is the son of the couple aged about three years, he having been born on 17.06.2011. Though we do not have the date of filing of the DVOP, the court seal reflects that the same was taken on file on 07.03.2014 i.e. before the order of dissolution of marriage passed on 10.07.2014. 3. Learned counsel for the petitioner places reliance on the judgment of this Court reported in 2008 (1) MLJ (Crl) 984, V.Pounraj and others vs. Packia Lakshmi @ Veni, to submit that as the 1st respondent presently did not enjoy the status of wife, she would not be entitled to maintain the action in D.V.O.P.No.21 of 2014. 4. In the decision relied on, it has been held as follows: "7.At this juncture, it would be more useful to look into Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 and the same reads as follows: "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." 8. From the close reading of the said section, it is easily discernible that a woman who wants to invoke the provisions of the said Act, should have domestic relationship with the concerned respondent. 9. In the instant case, as pointed out earlier, the marriage between the respondent (petitioner) and first petitioner has already been dissolved. Therefore, the respondent (petitioner) is not having the status of the wife of the first petitioner. Since the respondent (petitioner) is not having the status of the wife of the first petitioner, she cannot invoke the provisions of the said Act." 5. This Court has expressed the view that the order relied on is Per incuriam. Learned counsel for petitioner had taken time towards impressing us otherwise. Since the respondent (petitioner) is not having the status of the wife of the first petitioner, she cannot invoke the provisions of the said Act." 5. This Court has expressed the view that the order relied on is Per incuriam. Learned counsel for petitioner had taken time towards impressing us otherwise. Presently, learned counsel submits that the judgment in V.Pounraj and others vs. Packia Lakshmi @ Veni (2008 (1) MLJ (Crl) 984) does not inform any ignorance of provisions of law or ignorance of any binding precedents and hence the same could not be termed per incuriam. He has drawn our attention to definition of "aggrieved person" and "domestic relationship" in the Protection of Women from Domestic Violence Act. The same are reproduced hereunder: "2 (a) "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; ... 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;" 6. It is learned counsel's submission that the definition of "aggrieved person" refers to one who 'has been' in a domestic relationship, the expression 'has been' grammatically indicating the present continuous. He submits that while the definition of Domestic relationship takes within its fold such relationship 'at any point of time', the definition of aggrieved person not containing the words 'at any point of time' indicates the Legislative intent not to include within its fold past relationships. Learned counsel refers to commentaries on the Protection of Women from Domestic Violence Act, 2005 by S.P. Sen Gupta in support of his contention. Learned Counsel placing reliance on a few judgments submits that judicial discipline is to be followed and doing so would require this court, in the event of an opposite view being maintained, to refer the matter to a Larger Bench. 7. Learned Counsel placing reliance on a few judgments submits that judicial discipline is to be followed and doing so would require this court, in the event of an opposite view being maintained, to refer the matter to a Larger Bench. 7. To query of this court, on whether a woman who has suffered physical or other abuse contemplated in the Protection of Women from Domestic Violence Act and has complained there against, would lose the protection provided by the Act, if her marriage is dissolved, learned counsel would answer in the affirmative. 8. We are convinced that the order relied upon is per incurium. Informing a position to be discernible does not amount to informing reasons. An order per incurium may be declared so, without much ado, albeit informing reasons. However, in the instance case, we are spared even such necessity. The Hon'ble Apex Court in Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and Anr. (2015 SAR (Criminal) 78 has held, after reproducing the definition of aggrieved person, in paragraph 20.1 thus: "(20.1) Section 2(a) of the Domestic Violence Act, 2005 defines "aggrieved person" 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;" Therefore, it is clear that apart from the woman who is in a domestic relationship, any woman who has been, in a domestic relationship with the respondent, if alleges to have been subjected to act of domestic violence by the respondent comes within the meaning of "aggrieved person". At paragraph 31 it is informed thus: "31. At paragraph 31 it is informed thus: "31. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief under Section 20, Child Custody under Section 21, Compensation under Section 22 and interim or ex parte order under Section 23 of the Domestic Violence Act, 2005." Wharton's Concise Law Dictionary explains that the question whether the use of expression 'has been' in a provision of a statute denotes transaction prior to the enactment of the statute in question or a transaction after the coming into force of the statute will depend upon the intention of the legislature to be gathered from the provision in which the said expression occurs or from the other provisions of the statute. 9. In V.D. Bhanot v. Savita Bhanot, ( (2012) 3 SCC 183 , the intent of the Legislature has been gathered to be that the conduct of the parties even prior to the coming into force of the Prevention of Women from Domestic Violence Act, 2015 could be taken into consideration while passing orders under Sections 18, 19 and 20 there of. The Hon'ble Apex Court held as follows: "12. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2015, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Section 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force would still be entitled to the protection of the PWD Act, 2005." 9. This Court finds no merits in the Criminal Original Petition and the same is dismissed. Consequently, M.P(MD)Nos.1 and 2 of 2014 are closed.