Minor's Domestic Violence Application Cannot Be Dismissed On Maintainability After Her Attaining Majority: Calcutta High Court

In an important decision, the Calcutta High Court has made it clear that a domestic violence application filed by a minor under Section 12 of the Protection of Women from Domestic Violence Act, 2005, cannot be dismissed on the ground of maintainability, after she has attained majority.While it found that the application filed by a minor, not represented by her natural guardians or next friend, is irregular, it further held that such application is regularized on the day when such applicant attains majority. The observation was made by Justice Shampa Dutt (Paul) while dealing with a criminal revision petition which was filed as an upshot of the Domestic Violence proceedings instituted by respondent no. 2 herein (daughter) against the petitioner herein (father).The Court of Judicial Magistrate had dismissed the application as non-maintainable on the ground that at the time of filing of the application, the respondent was a minor, not represented by her natural guardians or next friend. Upon preferring an appeal under Section 29 of the Domestic Violence Act by the respondent no. 2, the Magistrate's order dated July 18, 2018 was set aside by Additional Sessions Judge and the matter was remanded back for hearing afresh. The instant criminal revision application was preferred against this order of Additional Sessions Judge. It was argued that the ASJ failed to appreciate the position of law that a minor cannot take any legal action without being represented by his/her natural guardian or next friend. The respondent no. 2 on the other hand contended that the Domestic Violence Act is a beneficial and assertive legislation and that at the time of the passing of the trial court order of July 18, 2018, she had attained majority. At the outset, Justice Dutt observed that Courts are duty bound to protect the constitutional rights of women and ensure they do not become victims of domestic violence. The bench relied on Supreme Court's ruling in Krishna Bhattacharjee v. Sarathi Choudhury and Anr. reported in (2016) 1 SCC (Cri) 810, which casts a duty on the Court to adopt a sensitive approach towards the rights of women before nullifying grievances on technical grounds of maintainability. On the basis of the ruling of the Allahabad High Court in Raj Behari Lal and Ors. v. Dr. Mahabir Prasad and Ors. reported in AIR 1956 All 310, the Court arrived at the conclusion that while the petition under S.12 of the Domestic Violence Act was irregular on account of the respondent's status as a minor, the respondent had attained majority as on the date of the order of the July 18, 2018 passed by the Judicial Magistrate and therefore, the said order was not in accordance with law. Rejecting the revision application within the matrix of the instant matter, the Court held: "In the case before us, the learned Magistrate clearly failed in his duty and approach as per the guidelines of the Supreme Court and in spite of the petitioner/opposite party no. 2 being a major, on the date of final order, dismissed the Misc. Case 103/2014 on that ground thus causing irreparable loss and injury to the daughter/petitioner/opposite party no. 2 herein. The learned Magistrate also failed to keep in mind that it is the duty of the Courts to protect the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence. The petition on the date of filing was a mere irregularity and on the petitioner becoming a major, the petition was regularized. And it happened before the final order was passed by the Magistrate. Here it is the father, who is the person accused of domestic violence. As such, the learned 1st Court of Additional District and Sessions Judge, Serampore rightly allowed the appeal, directing the learned Magistrate to hear the case afresh. The learned Sessions Judge, also kept in mind that the case was under a beneficial legislation and the appellant was clearly/admittedly a major on the date of order." The judgment in revision was deemed to be in accordance with law and the criminal revision application was accordingly rejected. Case: Srikant Ray v. The State of West Bengal & Anr., CRR 2923 of 2019 Date: 01.11.2022Citation: 2022 LiveLaw (Cal) 329 Click Here To Read/Download Order

Minor's Domestic Violence Application Cannot Be Dismissed On Maintainability After Her Attaining Majority: Calcutta High Court

SAMRIDDHA SEN

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