Mrs. Virginia Regina Ad Silva e Lobo vs Mr. Julio Cosmo Lobo through Public Prosecutor, Panaji Goa

N.A. Britto

This petition filed u/s 482 of the Code of Criminal Procedure, 1973 assails the Order dated 22-2-2008 of the learned Sessions Judge, Panaji, by which the Order dated 30-7-2007 of the learned J.M.F.C., Panaji has been upheld, rejecting the Application filed by the Protection Officer u/s 12 of the Protection of Women from Domestic Violence Act, 2005. Some facts are required to be stated to dispose of the petition.

The petitioner married the respondent on 13-11-2001 and lastly they resided at Arpora when in May, 2006, according to the petitioner, the respondent told her to go to her parents house at Chimbel as he wanted to attend a retreat on 14-5-2006 at Vailankani, Tamil Nadu. The petitioner appears to have filed a missing report thereafter and on 4-6-2007 when the petitioner returned to her residence at Arpora she was informed that the respondent had vacated the house. The petitioner first approached the Women Cell/Protection Officer at Panaji Police Station and got a report prepared in form I which was forwarded to the learned J.M.F.C. along with an application in form II, and, on notice having been given to the respondent, the respondent raised two objections, one of which relating to jurisdiction was abandoned subsequently.

The other was that the application/report submitted by the Protection Officer did not satisfy the requirements of law. The petitioner appears to have approached the Protection Officer as she felt abandoned by the Respondent, having no roof over her head and nothing in her hands to keep her body and soul together, and, it has been submitted by Mr. M. Amonkar, learned Counsel on behalf of the petitioner, that those were the reliefs which she wanted to obtain from the learned trial Court, against the respondent.

The learned trial Court after hearing the parties referred to the report submitted and noted that it was stated therein that the respondent was harassing the petitioner to bring dowry from home in the form of money and gold and since the petitioner was not complying with his requests, the respondent used to give her abusive language and was threatening her with dire consequences and though the petitioner had stated that a complaint was lodged to the Police on 28-6-2007 no copy of it, was produced.

The learned trial Court noted that the application was signed by the Protection Officer as well as by the petitioner but most of the columns of the said application were kept blank, except the column of reliefs prayed for from the Court. The learned trial Court nevertheless noted that in the column for monetary relief an amount of Rs.10,000/-per month was claimed towards food, clothing, medication and other basic necessities but at the same time observed that the actual cause of action could not be gathered. The learned trial Court accepted the respondent''s contention that there was no material on record to take note of the domestic violence as the incidents of domestic violence were not described anywhere nor the place, time or date of the alleged domestic violence and in the absence of material on record particularly in the complaint the learned trial Court held that the application was not maintainable in the absence of any details constituting domestic violence as the respondent would be unable to meet with the case of the petitioner.

The learned Sessions Judge observed that the said information regarding the alleged acts of domestic violence was very vague and no dates were mentioned, no places of incidents were mentioned and moreover the complaint lodged to the Police Station on 28-6-2007 was not produced and therefore there was no prima facie material on record to enable the respondent to file a reply for the purpose of defending himself.

Mr. Amonkar, learned Counsel on behalf of the petitioner has referred to Section 12 of the Protection of Women from Domestic Violence Act, 2005(Act, for short) and has submitted that cognizance could have been taken by the learned Magistrate either from an aggrieved person or a Protection Officer or any person on behalf of the aggrieved person seeking one or more reliefs under the Act and before passing any order on such application, the Magistrate was required to take into consideration any domestic report received by him from the Protection Officer or the service provider. In fact, learned Counsel submits that cognizance could be taken for the reliefs under the Act even on the basis of a telephone call. Mr. Amonkar, learned Counsel further submits that, if at all, he had approached the Protection Officer it was because the petitioner was abandoned by the respondent and wanted to have residence and some money for her maintenance. Learned Counsel further submits that whether the report was properly filled in or not or was kept blank in certain respects is not a matter which was in the hands of the petitioner. Learned Counsel further submits that the application and the report together gave the learned Magistrate sufficient material to have granted one or the other reliefs which could be granted under the said Act. Learned Counsel further submits that after the petitioner has been abandoned by the respondent she has been left with no source of income to maintain herself. Learned Counsel further submits that form I provided under the Act itself provides that only the columns which were applicable were required to be ticked and in fact were ticked in this case by the Protection Officer.

Mr. J. J. Mulgaonkar, learned Counsel on behalf of the respondent submits that there is no perversity at all in the orders of the Courts below for this Court to exercise its jurisdiction u/s 482 of the Code(Code of Criminal Procedure, 1973). Learned Counsel further submits that the application was not entertained because there were certain clauses left unattended in the application, and the material placed now before this Court was not placed before the learned trial Court. He further submits that column IV relating to incidents of domestic violence was not at all filled and being so the respondent would not be in a position to reply to the same. Learned Counsel further submits that for a Court to have entertained an application u/s 12 of the Act there should have been the date, time and place of domestic violence mentioned and in the absence of the same the Courts below were justified in not entertaining the application filed on behalf of the petitioner by the Protection Officer.

I have considered the submissions made on behalf of the parties. The Protection of Women from Domestic Violence Act, 2005 is rather a nascent legislation and is a special law enacted for protection of rights of women guaranteed under the constitution and is meant to give some respite to oppressed women. Its statement of objects and reasons recognizes that the phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. The civil law does not, however, address this phenomenon in its entirety and therefore it was proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the Society. The Act which has come in force from 13-9-2005 has sought to provide for:

(i) those women who are or have been in a relationship with the abuser where both the parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Act enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.

(ii) It defines the expression "domestic violence" to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.

(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.

(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.

(v) It provides for appointment of Protection Officers and registration of non-governmental organizations as service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc.

Section 3 defines what is domestic violence and Section 4 provides for information being given to the Protection Officers. Section 8 deals with appointment of Protection Officers and Section 9 deals with their duties and functions. Section 10 deals with Service providers, and Section 11 makes a provision for Government duties.

Section 12, sub-section(1) of the Act provides that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act;

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

Sub-Section(2) provides that the relief sought under sub-section(1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent;

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

Sub-Section(3) further provides that every application under sub-section(1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

Sub-Section(4) provides that the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

Sub-Section(5) further provides that the Magistrate shall endeavour to dispose of every application made under sub-section(1) within a period of sixty days from the date of its first hearing.

Section 14 provides for counselling and Section 15 provides for taking assistance of a welfare expert.

Section 16 provides that the proceedings be held in camera and Section 17, inter alia, recognizes the right of every women to reside in a shared household whether or not she has any right, title or beneficial interest in the same.

Section 18 deals with the types of protection orders which could be passed against a respondent.

Section 19 deals with residence orders which could be passed and that, inter alia, includes a direction to the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.

Section 20 deals with providing for monetary reliefs which includes a provision for medical expenses, maintenance for the aggrieved person, or even for maintenance in addition to an order for maintenance u/s 125 of the Code of Criminal Procedure, 1973.

Section 22 deals with compensation orders which could be passed including for the injuries, mental torture and emotional distress, caused by the acts of domestic violence.

Section 23 also deals with grant of interim and ex parte orders and Section 24 goes to the extent of providing that copies of orders passed be given free of costs to the parties to the application, the police, etc.

Both the Courts below appear to have proceeded in the matter unmindful of the definition of domestic violence as given under the Act and by the ordinary notion of it, as is commonly understood. Section 3, as already seen, defines domestic violence as any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.-- For the purposes of this section,

(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) "verbal and emotional abuse" includes

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) "economic abuse" includes

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.- For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration.

Was not ticking of certain columns so fatal to the application in this benevolent jurisdiction? Section 12, sub-section (3) of the Act provides that an application u/s 12 shall contain such particulars as nearly as possible and the report in form prescribed requires only appropriate column to be ticked. This only shows that the Legislature has made it very easy for a woman to plead her cause. At the behest of the petitioner in the report it had been clearly set out that the respondent had harassed her to bring dowry from home in the form of money and gold and since the petitioner was not complying to his requests the respondent used to give her abuses and bad words and had threatened her of dire consequences. The petitioner had further stated that she was under tremendous pressure and presently her position had become like a stray dog who had lost its master. The petitioner might have been little figurative in the language used, but was not that an indication to come to the conclusion that the petitioner had complained that she was abandoned by the respondent whom she considered as her master? On behalf of the petitioner, it was clearly alleged that the respondent had committed economic violence, and thus domestic violence as defined under the Act by alleging in the report, Col.(III) that the respondent had not provided her money, food, clothes, forced her out of the house, by ticking at appropriate places. She had also sought protection orders in terms of Section 18, residence order in terms of Section 19 and maintenance order in terms of Section 21 of the Act, under Item No.6 of the said Report. The same was indicated by her and on her behalf in col.2 of the Application in Form II under item No.3(iv) of the Application she had clearly spelt out that she wanted monetary relief of Rs.10,000/-in terms of Section 20 of the Act, for food, clothes and other basic necessities. In such a situation could the Courts below shut the door against an abandoned woman in distress on a specious plea that certain columns of the Application and or report were kept blank? Certainly not.

In terms of Section 3(iv) the petitioner''s case was of economic violence against her which was included in the definition of domestic violence and on her behalf necessary reliefs were clearly indicated not only in the application but also in the report, to prima facie conclude that the respondent had not provided for money to maintain her, nor provided food, clothes, forced her out of the house, etc. The respondent was not required to defend himself against acts of physical violence but against economic violence of abandoning his wife without shelter and not providing basic necessities. It appears that both the Courts below did not consider the prayers of the petitioner in the light of the columns ticked by her and in the light of the definition of domestic violence as provided under the Act.

In this context, a reference to the case of Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, would not be out of place since the observation made therein would equally apply to the facts of this case as well. Referring to Section 125 of the Code, the Apex Court observed that it was a measure of social justice and it was specially enacted to protect women and children and it fell within the constitutional sweep of Article 15(3) reinforced by Art. 39 and that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. Both the Courts below adopted a hyper technical approach without taking pains to read the application/report meaningfully to find out what was the case of the petitioner and what reliefs she was seeking against her separated husband. In this generous jurisdiction a broader perception was required and not a technical view of pleadings. On behalf of the petitioner, her case was clearly spelt out in the application as well as the report. The approach of both the Courts below, is erroneous.

It is to be noted that the provisions of this Act are in addition to and not in derogation of the provisions of any other law for the time being in force. The contention that the petitioner ought to have sought recourse to Section 125 of the Code therefore deserves to be rejected. The scope of Section 125 of the Code is limited, and, in order to give wider relief and effective protection to women who are victims of violence of any kind that this Act has been enacted by Parliament.

There was no necessity at all for either of the Courts to refer to the documents submitted either with the application in form II or the report in form I as the said application as well as the report when read in conjunction were more than sufficient to proceed with the inquiry.

In view of the above, the petition is bound to succeed. The orders of both the Courts below are hereby set aside and the learned trial Court is directed to deal with the application made on behalf of the petitioner in accordance with law. Parties to appear before the learned trial Court on 15th September, 2008 at 10.00 a.m. for further proceedings.