The Kerala High Court has observed that, a magistrate shall consider maintainability of the application filed under Section 12 of the Protection of Women from Domestic Violence Act, if such a contention is raised by the opposite party.
A party against whom a proceedings is initiated under Section 12 of the Act cannot approach the High court for quashing the proceedings invoking the power under Section 482 of the Code of Criminal Procedure, the Court reiterated.
Mother in Law and Sister in Law of a complainant-woman had approached the High Court seeking to quash proceedings as against them under the Domestic Violence Act. It was contended that the allegations in the complaint as against them, are vague and ambiguous and the Magistrate, in the circumstances, ought not to have issued notice to the petitioners in the proceedings.
While considering their plea, Justice PB Suresh Kumar noted that in Vijayalekshmi Amma v. Bindu, 2010 (1) KLT 79, it was held that a party against whom a proceedings is initiated under Section 12 of the Act cannot approach the High court for quashing the proceedings, invoking the power under Section 482 of the Code, and the said power can be exercised only in appropriate cases either to give effect to any order passed under the Act or to prevent abuse of the process of the court or to secure the ends of justice, when cognizance is taken by the Magistrate for an offence under sub- section (1) of Section 31 or Section 33 of the Act. Referring to the said judgment, the Court observed:
"This Court has held in the said case that a person to whom notice is issued by the Magistrate in an application under Section 12 of the Act can appear before the Magistrate and contend that the proceedings is not maintainable against him, on the ground either that the person who filed the application is not an 'aggrieved person' as defined in Section 2(a) of the Act, or that he would not fall within the definition of the 'respondent' in Section 2(q) of the Act, or that the allegations do not make out a case of 'domestic violence' as defined in Section 2(g) of the Act or that the reliefs sought are not reliefs provided for in the Act. It was also held by this Court in the said case that such contentions as regards the maintainability of the application, if raised, shall be decided by the Magistrate. It was further held by this Court in the said case that so long as the respondent is not an accused in a proceedings initiated under the Act, he is not even obliged to apply for bail in respect of such proceedings and his personal presence is not mandatory for hearing and disposing of an application under Section 12. In the light of the decision of this Court in Vijayalekshmi, according to me, the Criminal M.C. is not maintainable."
It has become a common practice now to rope in the relatives, at times even distant relatives
The court further noted that it has become a common practice now to rope in the relatives, at times even distant relatives of the person from whom relief is essentially intended. Even while taking all endeavours possible to protect the aggrieved persons from domestic violence, the courts have to be extremely cautious and careful to ensure that its powers are not being abused, the court added. In this context, the judge further observed:
9. Despite the findings aforesaid, it is necessary to mention that in so far as the proceedings under the Act are to be dealt with by criminal courts in accordance with the procedure prescribed under the Code, it has become a common practice now to rope in the relatives, at times even distant relatives of the person from whom relief is essentially intended, as respondents in the applications instituted under the Act without any bonafides and with oblique motives, on omnibus and vague allegations, despite various judgements of the Apex Court deprecating that practice. In Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667, the Apex Court has taken note of the said fact and observed that majority of such complaints are filed either on the advice of the lawyers or with their concurrence. Be that as it may. It is also observed that notice is invariably issued to all the respondents in such applications without application of mind as to whether the aggrieved person has made out a case of domestic violence against all of them, as a result of which, it is noticed that some of the proceedings under the Act, where parties are arrayed as Crl.MC.No.7977 OF 2018(F)& OP(Crl.).No.234 OF 2019 respondents without making out a case of domestic violence against them, have become a tool of harassment at the hands of the aggrieved persons to obtain reliefs which they are not entitled to. The statute being a remedial one to protect the women from domestic violence, it has to be enforced having regard to the realities of life. As such, even while taking all endeavours possible to protect the aggrieved persons from domestic violence, the courts have to be extremely cautious and careful to ensure that its 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. The provisions in the statute especially Section 28, conferring power on the Magistrate to lay down its own procedure for disposal of an application under Section 12 or under sub- section (2) of Section 23 would indicate that the scheme of the statute is that the approach of the courts shall be to enforce the provisions of the Act, keeping in mind the fact that the parties who are close relatives in most of the cases, would at some point of time reconcile their differences and lead a life in harmony and the opportunity for the parties to bring about a settlement of their differences is not lost on account of the steps taken in the proceedings. If proceedings under the Act are permitted to be used as tools of harassment, I have no doubt that the possibility of the parties settling their disputes amicably and leading a life in harmony would be bleak."
Holding thus, the court disposed of the petition by granting liberty to move the Magistrate for reliefs in terms of the judgment of this Court in Vijayalekshmi.
Case name: LATHA.P.C vs. STATE OF KERALACase no.: Crl.MC.No.7977 OF 2018(F) Coram: Justice PB Suresh KumarCounsel: Advocates S.RAJEEV and SURESH KUMAR KODOTH
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