RAJESH VS THE STATION HOUSE OFFICER & ORS , KERALA HC as on 5 Dec 2022
WP(C) NO. 23803 OF 2021
Para 7 . The DV Act was enacted with the avowed object of protecting women against the violence that occurs within the family and for matters connected therewith. The DV Act, therefore, conceives the scheme of protective measures with the object of protecting women in a domestic relationship. The statement of objects and reasons of the Act record that civil law does not address the phenomenon of domestic violence and, therefore, a law be enacted to provide a remedy in civil law for the protection of women from being victims of domestic violence. Thus, the very objective of the DV Act is to provide remedies to the woman who is the victim of domestic violence. The legislature’s intention was certainly not to provide a forum and remedy to every aggrieved woman, irrespective of their relationship with the offender or the nature of the grievance. The statutory scheme reveals that the provisions of the DV Act can be invoked only by an aggrieved person, which is defined to mean 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. Any attempt to bring any other dispute not connected with the domestic violence within the DV Act’s ambit would defeat the legislation’s very purpose.
Para 8 As per section 2(a), a person who is, or has been, in a domestic relationship with the respondent alone can be an aggrieved person. In other words, an aggrieved person and abuser shall always be linked through a domestic relationship. A reading of the definition of “domestic relationship” contained in section 2(f) makes it clear that it is a relationship between two persons who live or have lived together in a shared household and are related in any one of four ways – consanguinity, marriage or a relationship in the nature of marriage, adoption, or family members of a joint family. The “respondent”, as defined in section 2(q), means any adult male person who has been in a ‘domestic relationship’ with the aggrieved person and against whom the complainant or aggrieved person seeks any relief under this Act. The proviso of this section further clarifies that an aggrieved wife or a female member living in a relationship in the nature of a marriage can also file a complaint against a relative of the husband or the male partner, so the respondent requires to be in a domestic relationship with the complainant – wife or any female member alleging domestic violence.
Para 9 . The existence of a domestic relationship between the complainant and the respondent is the sine qua non for seeking relief under the DV Act. The complainant should be a woman who is, or has been, in a domestic relationship with the respondent against whom there is an allegation of domestic violence. No relief under the DV act can be granted unless a domestic relationship between the complainant and the respondent is established. Domestic relationship, as statutorily defined, presupposes that the respondent and the complainant lived or have 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. A “shared household” is defined in section 2(s) as a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or with the respondent. The fact, as stated in Ext.P2 application itself, explicitly discloses that the petitioners are not related either with the 2nd respondent or with her husband by consanguinity, marriage or through a relationship in the nature of marriage or adoption, or not even a member of the joint family of the 2nd respondent’s husband, rather she was an erstwhile employee of the 1st petitioner. As stated already, it is vaguely pleaded in Ext. P2 that the petitioners are the relatives of the husband of the 2nd respondent. But, what exactly is the nature of the relationship has not been stated. At the same time, it is pleaded in paragraph 5 that while the 2nd respondent was working as an employee in the business establishment of the 1st petitioner, they became family friends, and the petitioners used to visit her house and stay there. The definition of ‘domestic relationship’ speaks of living together in a shared household at any point of time. Staying together occasionally by two family friends who are not related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or as members of a joint family is not sufficient to create a domestic relationship.
Para 11 ” It has become a common practice to convert some other dispute into a domestic violence complaint in persons who and rope have not been in a domestic relationship with the complainant as respondents in the applications instituted under the DV Act without any bona fides and with oblique motives, on the omnibus and vague allegations. Notice is invariably issued to the respondent in such applications without ascertaining whether the complainant is a woman who is, or has been, in a domestic relationship with the respondent against whom there is an allegation of domestic violence to qualify the status of an ‘aggrieved person’ as defined under section 2(a).
On the facts of the case, the Court observed that the application filed before the Lower Court by the complainant cannot be sustained as there are absolutely no averments in the complaint to bring it within the purview of the DV Act.
Para 12. The Apex Court has, on numerous instances, expressed concern over the misuse of section 498A of IPC and the increased tendency of falsely implicating relatives of the husband in matrimonial disputes by way of general omnibus allegations and warned the Courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them [See K. Subba Rao v. The State of Telangana (2018 KHC 6625), Preeti Gupta v. State of Jharkhand (2010 KHC 4571) and Kahkashan Kausar v. State of Bihar (2022 (1) KLT OnLine 1177)]. A Single Bench of this court in Latha P.C and Others v. State of Kerala and Others (2020 (5) KHC 428) deprecated the practice of mechanically issuing notice to the respondents named in the application filed under section 12 of the DV Act. It was held that even while taking all endeavours possible to protect the aggrieved persons from domestic violence, the Courts must be extremely cautious and careful to ensure that their powers are not being abused. One of the important steps to be taken towards that direction is to scrutinize the applications meticulously and satisfy that a case of domestic violence as defined in the Act is made out against all the respondents and no one is arrayed as a party to the proceedings on omnibus and vague allegations, so that the Court can refrain from issuing notice to them, it was observed. The Full Bench of the Madras High Court recently in Arul Daniel and Others v. Suganya and Others [2022 LiveLaw (Mad) 467] has held that it is not necessary to issue notice to all the parties arrayed as respondents in an application under section 12 of the DV Act and the Magistrate must set out reasons to issue notice to the third parties to the matrimonial relationship who have been impleaded as the respondents.
Para 13. When the allegations made in the application filed under section 12 of the DV Act do not disclose the existence of a domestic relationship between the complainant and the respondent/s or the occurrence of domestic violence, the Magistrate has no jurisdiction to receive the application on file and to issue summons to the respondent/s. On receipt of the application filed under section 12, the Magistrate cannot casually and mechanically issue summons to the respondent/s without applying his mind as to whether the complainant before him is an aggrieved person and the pleading in the complaint discloses domestic relationship between the complainant and the respondent/s. The Magistrate should certainly scrutinize the allegations in the application with great care and caution to satisfy himself that it falls within the ambit of the DV Act lest it might become a tool of harassment at the hands of the complainant to obtain reliefs to which she is not entitled to. If the application does not fall within the ambit of the DV Act, necessarily, it must be rejected at the threshold. Only if the application discloses the existence of a domestic relationship between the complainant and the respondent/s and the occurrence of domestic violence, summons need be issued to the respondent/s. As stated already, if the application which is not maintainable under the DV Act is entertained and the summons is issued to the respondent/s, the very purpose of the legislation will be defeated.
“The records would suggest several disputes between the petitioners and the 2nd respondent. It is clear from the reading of the application that the 2 nd respondent wanted to convert some financial dispute between her and the 1st petitioner that arose out of the employer-employee relationship into a domestic violence complaint. It is nothing but in abuse of the process of law,” said the court.
Court order : Ext.P2 application cannot be sustained. Even though respondents 4 to 6 in Ext. P2 are not before me, the proceedings against them can also be quashed since Ext.P2 itself is found to be not maintainable under section 12 of the DV Act. Accordingly, Ext.P2 application hereby stands quashed. The Writ Petition is, accordingly, allowed. The Registry is directed to forward a copy of this judgment to all the Magistrates in the State.