Madras High Court
M.Muruganandam vs M.Megala on 2 December, 2010
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/12/2010 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN CRP(PD)(MD) No.2081 of 2010 And M.P.(MD) No.1 of 2010 1.M.Muruganandam 2.Sushmitha Priya @ Priya .. Petitioners vs. M.Megala .. Respondent This Civil Revision Petition filed under Article 227 of the Constitution of India, preferred against the proceedings of the respondent dated 16.8.2010 passed in Crl.M.P.No.4466 of 2010, on the file of the Judicial Magistrate No.1, Sivaganga. !For Petitioners ... Mr.Veera Kathiravan ^For Respondent ... Mr.N.Tamilmani :ORDER
This Civil Revision Petition challenges the action of the Judicial Magistrate No.1, Sivagangai in taking on file a complaint filed under Sections 18 and 19 of the Protection of Women From Domestic Violence Act, 2005.
2. I have heard Mr.Veera Kathiravan, learned counsel appearing for the petitioners and Mr.N.Tamilmani, learned counsel appearing for the respondent.
3. The first petitioner herein married the respondent herein according to Hindu Customary Rights on 27.3.1986. Out of the said wedlock, a girl and two boys were born. According to the first petitioner, the marriage between him and the respondent was dissolved in accordance with the customary practices of the community to which he belongs and that thereafter he married the second petitioner herein. The first petitioner also claims that there was a compromise between him and the respondent under a Deed of Muchalika dated 19.11.2006, followed by a Memorandum of Understanding dated 14.6.2007. Since the validity of the customary divorce alleged by the first petitioner and the details with regard to the alleged compromise between him and the respondent are not necessary for a decision in this revision petition, I am not adverting to the same in great detail.
4. On 16.8.2010, the respondent filed a complaint on the file of the Judicial Magistrate No.1, Sivaganga in Criminal M.P.No.4466 of 2010 under Sections 18 and 19 of the Protection of Women From Domestic Violence Act, 2005. The Magistrate took the complaint on file and issued notice to the petitioners herein. Contending that there was no prima facie case for the Magistrate to take the complaint on file and also contending that the complaint would not come within the parameters of the provisions of the Act, the petitioners are before this Court.
5. Before adverting to the grounds on which the initiation of the proceedings is challenged, it is necessary to take note of two things viz., (i) the contents of the complaint and (ii) an amendment made subsequently by the respondent to the complaint already filed.
6. In the complaint filed by her, the respondent has stated that she married the first petitioner on 27.3.1986 in a village by name Madu Marithan, Sivaganga District, in accordance with the Hindu Customary Rights and Practices; that at the time of marriage, she was given a sridhan of 75 sovereigns of gold jewellery, 15 kilograms of silver utensils and household articles worth Rs.50,000/-; that after the marriage, the first petitioner and the respondent lived as husband and wife, first in Musiri, Trichy District and later in Chennai; that a girl baby and two boy babies were born out of the wedlock; that in 1986, the first petitioner was employed in a company manufacturing cylinders; that due to the rich experience gained by him, the first petitioner wanted to start a company of his own; that therefore the respondent gave her jewellery and also got a sum of Rs.5 lakhs from her father; that the first petitioner became a partner with one Thiagarajan running a company by name GTR at Renigunda, Andhra Pradesh; that in the year 1997, the first petitioner became the absolute owner of the company by paying off Thiagarajan with the money provided by the respondent; that with the huge profits made in the business, the first petitioner bought several properties at Sivaganga, Manamadurai, Sandarasankottai, Paramakudi, Velankulam etc., as well as in Andhra Pradesh; that as on date, the first petitioner has properties worth Rs.120 crores; that the family was shifted to Chidambaram for the purpose of education of the children and the respondent also settled at Chidambaram; that by using this opportunity, the first petitioner developed intimacy with the second petitioner; that towards the end of December 2009, the respondent received a notice from the Family Court, Chennai in O.P.No.4143 of 2009 for divorce; that thereafter she questioned the first petitioner about all the above, when he came to his native place viz., Mela Kadambakudi, Sivaganga District; that at that time, the first petitioner conceded that he had married the second petitioner, that at that time, the petitioners 1 and 2 assaulted her in the chest and the stomach and also attempted to strangulate her; that due to the intervention of third parties, she was saved; that out of the relationship that the first petitioner has with the second petitioner, a child was born and it was named as Sai Balaji; that the first birthday of the child was celebrated by the petitioners in a grand manner on 9.4.2010 at PTR Mahal; that when the respondent made enquiries about it on 10.4.2010 at their residence at Old No.6, New No.9, Azhagar Nagar, 4th Street, K.Pudur, Madurai, the respondent was beaten up; that when the respondent went to the Family Court to attend the hearing of O.P.No.4143 of 2009 on 22.4.2010, the first petitioner threatened the respondent and her children with his henchmen; that when a complaint was given to the District Superintendent of Police on 28.4.2010, he promised to inquire, but did not receive any complaint; that therefore, the complaint was sent by Registered Post to the Superintendent of Police, Director General of Police and the Chief Minister's Special Cell; that no action was taken on the said complaint; that on 26.5.2010, the first petitioner gave a police complaint as though his Toyota Inova Car was stolen by the respondent and her son Gopilingam; that the said complaint was registered in Crime No.324 of 2010 for offences under Sections 423, 379 and 506(ii) IPC; that after the respondent filed a petition for transfer in Transfer CMP No.140 of 2010 for the transfer of the divorce petition from the file of the Family Court, Chennai to the Court in Sivaganga, the first petitioner withdrew the divorce petition, resulting in the transfer petition getting closed; that the daughter of the first petitioner and the respondent is married and living with her husband in Madurai in a rental accommodation; that she is in the fourth month of her pregnancy; that there are two buildings owned by the first petitioner at Madurai, one of which is a commercial complex and the other a residential house; that one portion of the residential house is now lying vacant; that if the respondent is allowed to reside in that portion, she will be of help to the daughter who is in the family way; that it would also help the respondent to pursue the education of the sons at Madurai; that the first petitioner is not allowing the respondent to live in that house, on account of the incitement of the second petitioner; that if the respondent attempted to go there, she is threatened with henchmen; that therefore a protection order and a residence order are necessary to enable the respondent to go and reside in the said house at Madurai.
7. It appears that in the above petition, an enquiry was conducted by the District Social Welfare Officer (Protection Officer under the Act) on 15.9.2010. Immediately thereafter, the first petitioner executed a Power of Attorney on 16.9.2010, in favour of one Nagajothi, in respect of the residential house at Madurai and also registered the same in the Office of the Sub Registrar, Thallakulam, with a view to sell the aforesaid property and defeat the residence order sought by the respondent in the petition under the Act.
8. Therefore, the respondent filed a miscellaneous petition on 15.10.2010 before the Judicial Magistrate No.I, Sivaganga, seeking to amend the prayer in Crl.M.P.No.4466 of 2010. The amendment sought for by the respondent is to the effect that she is prepared to have a residence order in any of the houses owned by the first petitioner at (i) No.30/5 and 30/21, Dev Apartments, Gandhi Nagar, Adyar, Chennai (ii) the Guest House, R.S.No.145/1, Kanchipuram Main Road, Chozhapuram Village, Cheyyar Taluk, Thiruvannamalai District and (iii) the residential quarters of GDR Cylinders Company, MM Cylinders Company and Koodalingam Valves Company at 16, 17 and 18, Chittoor District, Andhra Pradesh.
9. In the background of the above facts, now let me see the grounds on which the petitioners seek to quash the proceedings.
10. Mr.Veera Kathiravan, learned counsel for the petitioner contended
(i) that the second petitioner herein cannot be roped in as a party to the proceedings under the Act, since she cannot be a respondent within the meaning of the Act;
(ii) that the house in which the respondent claims a right of residence, does not fall within the definition of the expression "shared household" under Section 2(s) of the Act; and
(iii) that there is no cause of action for the complaint against the first petitioner also.
11. At the outset, a preliminary issue was raised as to whether the revisional jurisdiction of this Court under Article 227 of the Constitution can be invoked against the orders of the Magistrate, passed under the provisions of the Protection of Women From Domestic Violence Act, 2005. But the issue was settled by the Supreme Court in State of Haryana vs. Bhajan Lal {AIR 1992 SC 604}. In paragraph-108 of the said decision, the Supreme Court gave an illustrative list of cases where this Court could exercise either the extraordinary jurisdiction under Article 226 or the inherent powers under Section 482 Cr.P.C. The said decision was followed in P.S.Rajya vs. State of Bihar {JT 1996 (6) SC 480} and in Pepsi Foods Ltd vs. Special Judicial Magistrate {1998 (5) SCC 749}. In Pepsi Foods case, the Apex Court held that the nomenclature under which a petition is filed is not quite relevant and that it would not debar the Court from exercising its jurisdiction. In paragraph-29 of its decision in Pepsi Foods case, the Supreme Court stated as follows:-
"No doubt a Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless. But that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him......"
12. Again in State of Orissa vs. Debendra Nath Padhi {2005 (1) CTC 134}, the principles laid down in Bhajan Lal were reiterated and the Apex Court referred both to Section 482 Cr.P.C., and to Article 226 of the Constitution.
13. Therefore, it is clear that this Court can exercise its revisional powers under Article 227 of the Constitution, in respect of the orders passed under the Protection of Women From Domestic Violence Act, 2005. However, it will always be subject to the restrictions, subject to which the power has to be exercised. As a matter of fact, it is stated by the learned counsel for the petitioners that the petitioners actually filed a petition under Section 482 Cr.P.C., but a doubt was raised about the maintainability of the same on the ground that the proceedings under the Act, are not purely criminal proceedings. Therefore, the petitioner has come up with the above revision under Article 227 of the Constitution and the doors of this Court, cannot be shut on all sides to the petitioners.
14. In order to test the veracity of the above contentions, it is necessary to have a broad understanding of the provisions of the Protection of Women From Domestic Violence Act, 2005, which was actually enacted to fulfil the constitutional obligations of the State under Articles 14, 15 and 21 as well as to fulfil the obligations of the State under the Convention on Elimination of All Forms of Discrimination Against Women.
15. In order to protect women from being victims of domestic violence, the Act provides for 5 types of reliefs that could be granted to a woman who approaches the Court. They are (i) Protection Orders (ii) Residence Orders (iii) Monetary Reliefs (iv) Custody Orders and (v) Compensation Orders. An application seeking any of the above reliefs, can be filed (i) by an aggrieved person or
(ii) by a Protection Officer or (iii) by any other person on behalf of the aggrieved person.
16. The expression "aggrieved person" is defined under Section 2(a) of the Act. There is no dispute about the fact that the respondent is (or at least was) the legally wedded wife of the first petitioner. All that the first petitioner claims is that there was a customary divorce, the truth and validity of which, has to be tested only in appropriate proceedings. But in the light of the admitted fact that the first petitioner and the respondent were man and wife, there can be no doubt that the respondent would fall within the definition of the expression "aggrieved person" under Section 2(a).
17. The expression "respondent" is defined under Section 2(q) to mean "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". But the proviso to Section 2(q) makes it clear that an aggrieved wife "may also file a complaint against a relative of the husband or the male partner".
18. The expression "relative of the husband" is of wide import. The expression "relative" is not defined under the Act. Therefore, the word has to be given its normal meaning in common parlance. The allegation against the first petitioner is that he had married the second petitioner and that a child was also born to them. Therefore, the second petitioner would certainly come within the meaning of the expression "relative of the husband". Consequently, the complaint filed against the second petitioner, would fall within the proviso to Section 2(q). Moreover, the issue is also no longer res integra, in view of the decision of the Division Bench of this Court in R.Nivendran vs. Nivashini Mohan {CDJ 2010 MHC 1864}. It was held by the Division Bench in para-12 of the said decision that the word "relative" would include a female relative. Therefore, the second petitioner cannot challenge the initiation of proceedings on the sole ground that she would not fall within the definition of the expression "respondent" under Section 2(q). Hence, the first contention of the learned counsel for the petitioners, is liable to be rejected.
19. Coming to the second contention, the expression "shared household" is defined under Section 2(s) to mean a household where the person aggrieved lives or has lived at any time either singly or along with the respondent. Such a household may be owned or tenanted, either jointly or by either of them and it may even belong to the joint family of which, the respondent is a member, irrespective of whether he has any right, title or interest.
20. Section 17 (1) entitles every women in a domestic relationship, the right to reside in the shared household, irrespective of whether she has any right, title or beneficial interest. Sub Section (2) of Section 17 protects her from being evicted or excluded from the shared household, except in accordance with the procedure established by law.
21. In the light of the provisions under Sections 2(s) and 17, it was the contention of the learned counsel for the petitioners that even as per the averments contained in the complaint filed by the respondent, she lived along with the first petitioner (i) at Musiri, Trichy District and (ii) at Chennai, at various points of time. As per the averments contained in the complaint, the respondent lived for some time at Chidambaram along with the children, for their education. Now even according to her, she is residing at Sivaganga. Therefore, the contention of the learned counsel for the petitioners is that the residential house at Madurai, in respect of which the respondent is seeking relief under Section 19, was never a shared household and that therefore, the respondent is not entitled to the relief sought for, even on her own averments. In other words, the contention of the learned counsel is that the house at Madurai was not a house where the respondent claims to have lived either singly or along with the first petitioner at any point of time. As per her own averments, she lived singly at Chidambaram and Sivaganga and lived jointly with the first petitioner at Chennai and Trichy. Therefore, the counsel for the petitioners claims that even on her own averments, the respondent is not entitled to any relief under Section 19.
22. But in my considered view, the above contention is thoroughly misconceived. In so far as a woman's right of residence is concerned, the Act contemplates two types of reliefs. One is the right to reside in the shared household, protected under Section 17. The other is the right to seek residence orders under Section 19.
23. Section 19(1) empowers the Magistrate to pass a variety of residence orders viz.,
(i) restraining the respondent from dispossessing the aggrieved person from the shared household;
(ii) directing the respondent to remove himself from the shared household;
(iii) restraining the respondent and his relatives from entering any portion of the shared household in which the aggrieved person resides;
(iv) restraining the respondent from renouncing his interests in the shared household except with the leave of the Magistrate; and
(v) directing the respondent to secure same level of alternative accommodation, as enjoyed by the aggrieved person in the shared household or to pay rent for the same.
24. Sub Section (2) of Section 19 empowers the Magistrate to pass any other direction also, as is necessary to protect or provide for the safety of the aggrieved person or any child of such person. Sub Section (6) of Section 19 enables the Magistrate to impose on the respondent, obligations relating to the discharge of rent and other payments.
25. A combined reading of Sections 17 and 19 would show that it is only when a protection order under Section 17 read with clauses (a), (b), (c), (d) and (e) of Sub Section (1) of Section 19 is claimed, that the property in respect of which it is claimed, should fall within the definition of the expression "shared household" under Section 2(s). To put it in simple terms, if an aggrieved woman seeks either a protection order to enable her to continue to reside in the shared household or a residence order to enable her to reside in the shared household, then the property which forms the subject matter of the claim, should be a "shared household", within the meaning of the Act.
26. But when a woman merely seeks the relief of alternative accommodation, under Section 19(1)(f), then it is not in respect of the shared household itself. The expression "shared household" is used in Section 19(1)(f), only for the purpose of comparison. In other words, the expression "shared household" is used in Section 19(1)(f), just for the purpose of enabling an aggrieved woman to seek an alternative accommodation, which would be on par with a shared household that she once enjoyed at some point of time.
27. Keeping in mind the above distinction between Section 19 and clauses
(a) to (e) of Sub Section (1) of Section 19 on the one hand and Section 19(1)(f) on the other hand, if we look at the facts of the present case, it is clear that the respondent has now sought amendment of the prayer in her petition, so as to get only an alternative accommodation. There is no dispute about the fact that the first petitioner shared a household with the respondent at Trichy and Chennai, during the subsistence of their marital life for more than two decades. If the residential house at Madurai, as per the contentions of the petitioners, was never a shared household, the petitioners could deprive the respondent of a right to reside there. But it would not absolve the first petitioner of the obligation under Section 19(1)(f), to provide an alternative accommodation to the respondent, that is on par with the households that they shared either at Trichy or at Chennai in the past. Therefore, in view of the amendment sought by the respondent to her original petition before the learned Magistrate, the second contention of the learned counsel for the petitioners also fail.
28. The third contention that there was no cause of action for the respondent, to file an application under the Act, has no legs to stand. The existence of a cause of action, has to be gathered only from the averments contained in a plaint or complaint. There are enough averments in the application filed by the respondent. Therefore, the third contention is also liable to be rejected.
29. Therefore, in fine, the petitioners have not made out a case for quashing the proceedings initiated by the respondent. An application under the Act or even a complaint before the Criminal Court, cannot be quashed so easily, as a matter of course. The parameters that apply to a quash petition under Section 482 Cr.P.C., would equally apply to an application to quash the proceedings under the Protection of Women From Domestic Violence Act, 2005. Therefore, the decision in Neelu Chopra vs. Bharti {2009 (10) SCC 184} cited by the learned counsel for the petitioners, will be of no assistance to them, since in that case, it was found that the allegations were vague. But in the case on hand, there are specific allegations. The allegations may be true or false. But the truth or falsity of those allegations, have to be determined only with reference to the evidence adduced by the parties. Even if a person has an excellent case on merits, it cannot be a ground for quashing the proceedings, since in a petition to quash, the Court cannot look into the evidence.
30. In view of the above, the Civil Revision Petition is dismissed. There will be no order as to costs. Consequently connected miscellaneous petition is also dismissed.
Svn To The Judicial Magistrate No.I, Sivaganga.