KUSUM NAROTTAMHARSORA Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution, the petitioners sister and mother of P.N.H. (respondent no. 1 in complaint before the Magistrate's Court) have challenged the constitutional validity of the provisions of section 2(q) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the DV Act").

(2.) THE petitioners had earlier filed Misc. Case No. 31/M of 2007 in the Court of Metropolitan Magistrate, 18th Court at Girgaum, Mumbai against Mr.PNH (respondent no. 1 in the complaint), his wife H. (respondent no. 2 in the complaint) and his two sisters A and C (respondent nos.3 and 4 in the complaint). The petitioners will now be referred to by their status in the original complaint. The case was filed under the provisions of the DV Act on 3 April 2007 praying for various reliefs for dealing with the respondents in accordance with law and to direct the respondents to pay damages to the tune of Rs. 5,55,00,000/ - under section 20 of the DV Act and monetary compensation to the extent of Rs. 5,00,00,000/ - under section 22 of the DV Act. The complaint was filed on the basis that respondent no. 1 in the complaint had caused and was causing physical abuse, verbal and emotional abuse and economic abuse as defined under section 3 of the DV Act. The petitioners alleged that there was domestic relationship between the parties as the petitioners are related to respondent nos.1, 3 and 4 by consanguinity and that respondent no. 2 being wife of respondent no. 1, they are all family members who were living together in a shared household and were also living with respondent nos.1, 2 and 3 in a shared household as a joint family. It appears that the petitioners thereafter prayed for permission to withdraw the said case on the ground that several relevant material facts were not properly stated or mentioned in the complaint and that therefore the petitioners be allowed to withdraw the complaint with liberty to file a fresh complaint on the same facts and cause of action. The said application for withdrawal filed on 27 June 2007 was allowed to be withdrawn by the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Mumbai, with liberty as prayed for.

(3.) ON 11 February 2011, applications were filed by the Respondents in the complaint seeking discharge on the ground that the petitioners being mother and sister do not fall within the definition of "aggrieved person" and that only a wife or a female partner in a marital relationship can invoke the provisions of the DV Act. By an order dated 5 January 2012, the learned Metropolitan Magistrate rejected the application for discharge and, therefore, respondent nos.2, 3 and 4 being lady members of the family filed Criminal Writ Petition Nos. 187 and 188 of 2012 challenging the above order dated 5 January 2012 essentially contending that no case can be filed under the DV Act against female relatives of respondent no. 1. The criminal writ petitions came to be disposed of by a learned Single Judge of this Court by judgment and order dated 15 February 2012. The learned Single Judge allowed the criminal writ petitions to the extent of discharging respondent nos.2, 3 and 4 from the proceedings filed by the petitioners under the DV Act and allowed only the proceedings against respondent no. 1 PNH to continue. It appears that the judgment was based on the concession made by the learned counsel for the respondents in the said criminal writ petitions, who are petitioners in this writ petition, that in view of definition of the term "respondent" in section 2(q) of the DV Act, the proceedings under the DV Act cannot be initiated against female relatives.