JAYDIPSINH PRABHATSINH JHALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these petitions arise out of the proceedings under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act). Since two important and repetitive questions are common in these proceedings, they have been heard together and are being disposed of by this common judgment.

(2.) First question of considerable importance is the meaning of term "respondent" as defined in Section 2(q) of the Act. In other words, the question is whether a female member of the family can be a respondent in the proceedings under the Act. 2.1 Second question is the nature of proceedings that the Magistrates conduct under the Act and the procedure that has to be adopted for the same. In other words, question is whether the proceedings under the Act are strictly of criminal nature and that therefore as held by the Supreme Court in several decisions particularly in case of Adalat Prasad v. Rooplal Jindal reported in (2004)7 SCC 338 :AIR 2004 SC 4674, 2004 Cri LJ 4874, the Magistrate once having issued summons cannot recall the same even if it is found later on that ex-facie no case for proceeding further against all or any of the respondents is made out.

(3.) Questions arise in the factual background, which are slightly different in each case. We may notice such facts at this stage. 3.1 In Special Criminal Application No.2068/2009, though at the outset, the petition was filed by five petitioners all the original respondents under an order dated 16.12.2009, same was confined to petitioners Nos.3 and 4 only. Original applicant before the Magistrate is wife of one Jaydeepsinh. The petitioner Nos.3 and 4 are the mother-in-law and sister-in-law respectively of the applicant. The applicant earlier filed an application before the Protection Officer on 04.04.2009 complaining of several acts of domestic violence by the respondents. The Protection Officer made a report before the Magistrate concerned, who after taking cognizance of the report, issued summons to all the respondents on 06.04.2009. The petitioners filed application, Exh.4 in the said proceedings and contended that the proceedings are not maintainable. This application was turned down by an order dated 26/6/2009 by the Learned Magistrate and Criminal Appeal filed by the petitioners was dismissed by the Learned Sessions Judge on 21/7/2009. The petitioners have therefore filed the present petition challenging above orders. 3.2 This petition is argued only on one ground namely that female members of the family could not have been joined as respondents by the applicant in the said proceeding.