Rina Mukherjee and Others vs State of West Bengal

P.S. Datta, J.

The Judgment of the Court was as follows:

Heard the learned Counsel for both the parties.

The O.P. No. 2 does not appear to contest the application although affidavit-of-service shows that the service was effected upon her as per No. Card on 23rd July, 2008.

The O.P. No. 2 made an application u/s 18 and 19 of The Protection of Women from Domestic Violence Act, 2005 against the three petitioners praying for a protection order. The petitioner No. 1 is the daughter, petitioner, No. 2 is the daughter''s husband and the petitioner No. 3 is the brother of daughter''s husband of the said O.P. No. 2.

Mr. Bhattacharya takes two points. First point is that the scheme of the Act, 2005 does not envisage am commencement of action u/s 18/19 of the Act against a female person. I have been taken to the definition of the word "Respondent" as appearing in clause (Q) of section 2 of the Act the definition runs thus:

"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 this Act:

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."

Since the word "Domestic Relationship" has been used in the said definition of the word "Respondent", the definition of Domestic Relationship as occurring in clause (t) of the said section 2 bears recall:

"Domestic Relationship" means a relationship between two persons who live or have, at any point of time, 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."

Now the statute is very clear that application Claiming residence order or protection order has to be made against the "respondent" and as we have seen above, respondent has to be a male adult person or a relative of the husband of the male partner. Therefore, in the scheme of the Act a female does not come within the ambit of the expression "respondent" against whom an order can be passed u/s 18/19 of the Act.

Mr. Roy, learned Advocate for the State concedes to the legal position. I have been taken to a decision of Madhya Pradesh High Court in Ajoy Kant & Ors vs. Smt. Alka Sharma reported in 2008, CLJ 264 wherein a learned Judge of that Court decided in the manner as we have held above.

Mr. Bhattacharya takes the second point against the maintainability of the proceeding on the ground that application u/s 18/19 of the Act, has not been made in Form No. II as appended to the Rules, 2006, Rule 6 provides that every application of the aggrieved person u/s 12 shall be in Form No. II or as nearly as possible thereto. I have been taken to interpretation of statute by D.P. Mittal wherein there are references to a number of decisions of various High Courts and of the Supreme Courts and of the House of Lords. But those decisions do not appear to be of any help because the decisions so cited herein by the learned Author relates to the question whether a particular provision is a mandatory or directory. Regarding application for refund of Income Tax Act paid it was held in a decision that, where the statute provides a particular form wherein refund is to be claimed that form shall be used. I do not think that the said decision as referred to by the learned Author should have any bearing in the instant case where the rule provides that it is not strictly mandatory but directory because the expression or "as nearly as possible" does not command that in case application is not made in Form No. II it deserves outright rejection by the Magistrate.

Accordingly I quash the proceeding as against the petitioner No. 1 Revisional application is disposed of Learned Magistrate will be free to decide the case in accordance with law.

Urgent xerox certified copy of the order shall be given to the petitioner, if applied for, as expeditiously as possible.