Renu vs Sarika

M.M.S. Bedi, J.—The married sister of Sudhir Malik has filed this revision petition against the order dated 18.12.2009, passed by the Additional Sessions Judge, Hisar, exercising the powers under the Prevention of Women from Domestic Violence Act, 2005, (for short ''the Domestic Violence Act''), setting aside the order dated 08.09.2009, passed by the Chief Judicial Magistrate, Hisar, dropping the proceedings against the Petitioner.

Vide the impugned order, the learned Chief Judicial Magistrate, had dismissed the complaint u/s 12 of the Domestic Violence Act, against the Petitioner, holding that she cannot be the Respondent u/s 2(q) of the Domestic Violence Act, as Respondent means any adult male person who is or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the Domestic Violence Act. The learned Chief Judicial Magistrate, held that a complaint under the Domestic Violence Act, is not maintainable against the female. The Additional Sessions Judge, vide order dated 18.12.2009, accepted the appeal in the light of judgment in case Nand Kishore and Ors. v. State of Rajasthan and Anr. 2009 (2) RCR 908. holding that the judgment of Ajay Kant v. Smt. Alka Sharma 2008 (2) CCC 476, passed by the Hon''ble Madhya Pradesh High Court, did not rule the field as in case Ajay Kant (Supra), the Hon''ble Madhya Pradesh High Court had not considered that it has been provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

The short question which is required to be determined in the present case is whether the expression in proviso to Section 2(q) of the Domestic Violence Act, would include a female relative also. The controversy between the judgments of Ajay Kant (supra) and Nand Kishore (supra) came up for consideration before a Division Bench of Delhi High Court in case Varsha Kapoor v. Union of India and Ors. reported in 170 (2010) DLT 166. The Delhi High Court has disagreed with the judgment in case Ajay Kant (supra) and held that the expression of proviso to Section 2(q) of the Domestic Violence Act, includes female relatives as well. It was observed that various provisions of Domestic Violence Act, provide for clinching the circumstances indicating that a female relative was clearly in the mind of the Legislature when it comes to filing of complaint by wife or female living in relationship in the nature of marriage as contemplated in proviso to Section 2(q) of the Domestic Violence Act. Making a reference to the provisions of Section 19, 21 and 31 of the Domestic Violence Act, it was held that a female relative can be a Respondent in the complaint under the Domestic Violence Act.

In view of above circumstances, this petition deserves to be dismissed with an observation that though the complaint against the Petitioner is maintainable yet, it will not be necessary for her to personally appear as an accused in the complaint. She would be entitled to be represented by an Advocate. It will be open to the trial Court to drop the proceedings against her on merits in case, at any stage, it is found that she has been unnecessarily implicated as a Respondent in the proceedings.

Nothing mentioned in this order or the order passed by the Additional Sessions Judge, will prejudice the rights of the Petitioner on merits.