Criminal Writ Petition No.18 of 2009,Criminal Writ Petition No.64 of 2009

17th February, 2010

Petitioner Counsel: Ms. CAROLINE COLLASSO
Respondent Counsel: Ms. WINNIE COUTINHO

Cases Cited:
Union of India Vs. Devendra Kumar Pant, 2010(3) ALL MR 442 (S.C.)=(2009)14 SCC 546 [Para 8]

JUDGMENT

JUDGMENT :- Leave to amend so as to annex a copy of the order dated 9.2.2007 passed in Criminal Misc. Application No.84/2006/A.

2. The above Petitions raise a common issue as to whether a divorced woman can file an application under Section 12 of the Protection of Women From Domestic Violence Act, 2005, (hereinafter referred to for brevity sake as 'the said Act'). In so far as Writ Petition No.18/2009 is concerned, the said Writ Petition challenges the order dated 9.2.2007 passed in Criminal Misc. Application No.84/2006/A by the learned J.M.F.C., Mapusa and the order dated 2.7.2007 passed by the learned Additional Sessions Judge, Mapusa, in Criminal Appeal No.14/2007 whereby the order dated 9.2.2007 came to be confirmed. In so far as Writ Petition No.64/2009 is concerned, the said Writ Petition challenges the order dated 17.10.2008 passed by the learned Sessions Judge, Panaji, by which order the order dated 30.9.2008 passed by the learned J.M.F.C., Mapusa, rejecting the application filed by the Respondent No.1 under Section 258 of Criminal Procedure Code came to be set aside. The said application resultantly came to be allowed and the Respondent No.1 came to be discharged from the proceedings in question.

3. The facts necessary to be stated for the adjudication of the issue concerned are stated thus :

The Petitioner in the above two Petitions was married to the Respondent No.1 herein, which marriage came to annulled in view of the Decree dated 19.9.1998 passed in Special Civil Suit No.70/95/A. The Petitioner though divorced was staying in the matrimonial house from which she was ousted by the Respondent No.1 allegedly by force. The Petitioner claims to be suffering from a heart ailment as a result of which she has undergone Angiography. On the Petitioner being evicted from the matrimonial house, she had started residing with her parents at Kasarpal, Bicholim. The brothers of the Petitioner are interested in demolishing the said house and, therefore, in the event of demolition the Petitioner would be left shelterless. The Petitioner is working as a Nurse and she used to come to her work place from the said matrimonial house. In view of the fact that the Petitioner was forced out of the matrimonial house, the Petitioner sought to invoke the provisions of the said Act and especially Section 17 thereof claiming right to reside in the shared household. The said application of the Petitioner came to be numbered as Criminal Misc. Application No.84/2006/A. The said application came to be dismissed by the learned J.M.F.C., principally on the ground that there was no subsisting relationship between the aggrieved parties i.e. the Petitioner and the Respondent No.1 on the date of the application and, therefore, the Petitioner could not seek the protection under Section 17 of the said Act. Aggrieved by the said order passed by the learned J.M.F.C., the Petitioner carried the matter in Appeal by filing Criminal Appeal No.14/2007 in the Sessions Court, Mapusa. The learned Additional Sessions Judge, by his order dated 2.7.2007 dismissed the said Appeal on the self same ground as the learned J.M.F.C., namely that there was no subsisting relationship between the Petitioner and the Respondent No.1 on the date of the application and since the Petitioner is a divorced wife she could not avail of the remedies available under the said Act. The matter rested there for some time as the Petitioner did not have the necessary wherewithal to challenge the said orders, but has now challenged them by filing the above Writ Petition No.18 of 2009.

4. On the Petitioner again facing domestic violence, the Petitioner reported the matter to the Protection Officer under the said Act. The Protection Officer called upon the Petitioner to fill up two forms which are statutory forms for declaring the nature of the violence faced by an aggrieved party. The Petitioner accordingly filled the said two forms. The Protection Officer thereafter sent the said two forms along with her report to the learned J.M.F.C., for taking necessary cognizance. The said proceedings came to be numbered as Criminal Misc. Application No.92/2008/E. In the said proceedings the Respondent No.1 herein filed an application under Section 258 of Criminal Procedure Code for being discharged and for stopping the proceedings. The learned J.M.F.C. considered the various provisions of the said Act, and reached the conclusion that the relationship need not be a subsistent relationship but could be a relationship which existed in the past and, therefore, on an interpretation of the said provisions came to a conclusion that the Petitioner was entitled to invoke the provisions of the said Act and rejected the application for discharge filed by the Respondent No.1 by his order dated 30.9.2008.

5. The Respondent No.1 aggrieved by the said order dated 30.9.2008 passed by the learned J.M.F.C., preferred an Appeal before the Sessions Court which Appeal came to be numbered as Criminal Appeal No.74/2008. The learned Sessions Judge, by the order dated 17.10.2008 allowed the said Appeal and set aside the order passed by the learned J.M.F.C. rejecting the application for discharge filed by the Respondent No.1 and resultantly discharged the Respondent No.1 from the proceedings. The sum and substance of the reasoning of the learned Sessions Judge was that the definitions of the various terms in the said Act indicate that in order to seek a residence order under the provisions of the said Act, the aggrieved person and the Respondent must either be living in a shared household or must have at any point of time, in the past lived together therein but in both the conditions, they are bound to have an existing relationship by consanguinity, marriage, etc. as the case may be and if such a relationship does not exist, then merely because the Petitioner was living in the past in the shared household or was presently living would not serve the purpose of the provisions of the said Act. As indicated above, the aforesaid orders are the subject-matter of the above two Petitions.

6. I have heard Ms. Caroline Collasso, the learned Counsel for the Petitioner appointed under the Legal Aid Scheme and Ms. Winnie Coutinho, learned Public Prosecutor for the State/Respondent No.2. Respondent No.1 is absent though served. It would be relevant at this stage to slightly digress from the main issue so as to see what was the background in which the said Act was framed. The statement of objects and reasons are an indicia as to why the need was felt for enacting the Act of the nature in question. The statement of objects and reasons are reproduced herein under :

"1. Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995), have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No.XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.

2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Indian Penal Code (45 of 1860). The Civil law does not however address this phenomenon in its entirety.

3. It is therefore, proposed to enact a law keeping in view the rights guaranteed under Arts.14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society."

7. A reading of the statement of objects therefore indicate that the State felt the need to enact a law so as to curb the cruelty which a woman may face in the household. The said Act was enacted considering the mandate of Articles 14, 15 and 21 of the Constitution so as to provide for a remedy under the civil law to protect the woman from domestic violence and to prevent the occurrence of the domestic violence in the society. The Act therefore would have to be interpreted so as to give effect to the intent and purpose of the said Act. In that context, it would be necessary to refer to the relevant provisions of the said Act. Under Section 8 of the said Act, the Protection Officers can be appointed. Under Section 9 of the said Act, the duties and functions of the Protection Officers have been prescribed. From the point of view of the present Petitions, clause (b) of Section 9 is material. Clause (b) provides for the Protection Officers to make a domestic report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area. The said Section also casts duty upon the Protection Officer to ensure that the aggrieved person is provided aid under the Legal Services Authorities. Section 12 of the said Act, which is in Chapter IV provides for the procedure for obtaining orders of reliefs. The said Section provides that 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 the Act. Section 17 of the said Act provides that every woman in domestic relationship shall have the right to reside in a shared household whether or not she has any right, title, or beneficial interest in the same. Section 18 of the said Act, provides for the various types of protection orders that can be passed under the said Act. From the point of view of the present Petitions, it would be necessary to advert to the various terms defined in the said Act. Section 2(a), Section 2(f), Section 2(q) and Section 2(s) are material and are reproduced herein under :

"Section 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.

Section 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.

Section 2(q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.

Section 2(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."

8. In my view, the definition of the "aggrieved person" and the "Respondent" are the defining definitions in so far as the issue that arises for consideration in the present Petitions is concerned. The definition of "aggrieved person" postulates a woman who is, or "has been" in a domestic relationship with the Respondent and the Respondent means any adult male person who is, or "has been", in a domestic relationship with the aggrieved person. Since a domestic relationship is a sine qua non for invoking the provisions of the said Act, Section 2(f) also becomes material. Section 2(f) as can be seen from a reading of the said provision means a domestic 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. Therefore, the aforesaid three definitions take in their sweep even a past relationship as the words "has been" or "have lived" have been used in the said definitions. The said words therefore have been used purposefully as the said Act has been enacted to protect a woman from domestic violence and, therefore, there cannot be any fetter which can come in the way by interpreting the provisions in a manner to mean that unless the domestic relationship continues on the date of the application, the provisions of the said Act cannot be invoked. The words "has been" and the words "have lived" have been used for the purpose of showing the past relationship or experience between the concerned parties. To interpret the said provisions so as to mean that only subsisting domestic relationship are covered would result in turning the provisions of the said Act Otiose. As is well settled by the judgments of the Apex Court in cases of beneficient Legislations, an interpretation which furthers its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Reference could be made to the judgment of the Apex Court reported in (2009)14 SCC 546 : [2010(3) ALL MR 442 (S.C.)] in the matter of Union of India Vs. Devendra Kumar Pant and others. Apart from that a literal construction of the provisions would show that even if the woman was in the past in a relationship she would be entitled to invoke the provisions of the said Act. The words "has been" or "have lived" appearing in the definitions are plain and clear and therefore effect would have to be given to them. In the instant case, the Petitioner who is the aggrieved person and the Respondent No.1 had lived together in the shared household when they were related by marriage. The Petitioner though divorced continued to stay in the shared household till she was allegedly forcefully evicted by the Respondent No.1, she would therefore be entitled to invoke the provisions of the said Act, as the Petitioner and the Respondent No.1 are squarely covered by the provisions of the said Act.

9. The learned Sessions Judge having accepted the position that the requirement for invoking the provisions of the said Act is that the aggrieved person and the Respondent must either be living in the shared household or must have, at any point of time, in the past, lived together therein, but has thereafter mis-directed himself by holding that in both the conditions, they are bound to be having existing relationship by consanguinity, marriage, etc.. In my view, the relationship by consanguinity, marriage, etc. would be applicable to both the existing relationship as well as the past relationship and cannot be restricted to only the existing relationship as otherwise the very intent and purpose of enacting the said Act would be lost as it then would protect only an aggrieved person who is having an existing relationship by consanguinity, marriage, etc. The interpretation given by the learned Sessions Judge, would have the effect of reading in to the said provisions the existence of the present status as a wife which in my view is impermissible looking to the purport and intent of the said Act.

10. In the instant case, the Petitioner it appears has filed an application by way of Inventory Proceedings for division of the communion of assets in terms of the local law applicable to her. It is the case of the Petitioner that she is entitled to 50% of the assets in terms of the communion of assets. Therefore, the Petitioner has applied for asserting her right in respect of the communion of assets before the appropriate forum. However, in so far as the application filed by her for residing in the shared household on an interpretation of the provisions of the said Act, it would have to be held that even a divorced wife is entitled to invoke the provisions of the said Act. Whether she is entitled to protection or not in a given fact situation would be for the concerned Court to decide. Resultantly, the impugned orders passed by the learned J.M.F.C. dated 9.2.2007 in Criminal Misc. Application No.84/2006/A, judgment and order dated 2.7.2007 passed by the learned Additional Sessions Judge in Criminal Appeal No.14/2007, the subject-matter of Writ Petition No.18/2009 and the order dated 17.10.2008 passed by the learned Sessions Judge in Criminal Appeal No. 74/2008 are hereby quashed and set aside and the said Criminal Misc. Application Nos.84/2006/A and 92/2008/E are restored to file. It would be open to the Petitioner to elect one, out of the above two applications which she desires to prosecute. The order discharging the Respondent No.1 is also set aside. The concerned Court would consider as to whether the Petitioner is entitled to the relief as sought for in the applications filed by her in the facts and circumstances of her case and up to what time the said relief is to be continued. This is in the light of the fact that the Petitioner has filed an application in the nature of Inventory Proceedings/Separation of assets for seeking her share in the assets. Needless to state that the application which the Petitioner elects to prosecute would be decided on its own merits and in accordance with law.

11. Rule is accordingly made absolute in the aforesaid terms in both the Petitions with parties to bear their respective costs.

Ordered accordingly.