A Jammu and Kashmir court recently has given a unique order where they took cognizance of a complaint filed by a husband against wife under the Protection of Women from Domestic Violence Act, 2005.
Judicial Magistrate 1st Class, Jammu Renu Dogra Gupta noted in her order that as per the judgments in Hiral P Harsora v. Kusum Narottamdas Harsora and Mohammad Zakir v. Shabana, a husband can also file a case against wife under the Act.
In the instant case, the Court noted that there are sufficient grounds to proceed against the wife under Section 12 of the Act. It, therefore, took cognizance of the offence against the accused and issued notice to her.
Advocate Meenakshi Slathia appeared for the petitioner husband.
Hiral P Harsora v. Kusum Narottamdas Harsora (Supreme Court of India)
In view of the above discussion and in view of the fact that the decision of the Delhi High Court in Kusum Lata Sharma’s case has not been disturbed by the Supreme Court, we are inclined to read down the provisions of section 2(q) of the DV Act and to hold that the provisions of “respondent” in section 2(q) of the DV Act is not to be read in isolation but has to be read as a part of the scheme of the DV Act, and particularly along with the definitions of “aggrieved person”, “domestic relationship” and “shared household” in clauses (a), (f) and (s) of section 2 of the DV Act.
If so read, the complaint alleging acts of domestic violence is maintainable not only against an adult male person who is son or brother, who is or has been in a domestic relationship with the aggrieved complainant- mother or sister, but the complaint can also be filed against a relative of the son or brother including wife of the son / wife of the brother and sisters of the male respondent.
In other words, in our view, the complaint against the daughter-in-law, daughters or sisters would be maintainable under the provisions of the DV Act, where they are co- respondent/s in a complaint against an adult male person, who is or has been in a domestic relationship with the complainant and such co- respondent/s. It must, of course, be held that a complaint under the DV Act would not be maintainable against daughter-in-law, sister-in- law or sister of the complainant, if no complaint is filed against an adult male person of the family.
Mohammad Zakir v. Shabana (Karnataka High Court)
The petitioner is a Muslim male. He is aggrieved by certain acts of his wife and her family and therefore had invoked the provisions of the Protection of Women from Domestic Violence Act, 2005 (Hereinafter referred to as the ‘DV Act’, for brevity).
It is to be noticed that the said issue was subject matter of an appeal before the Apex Court in the case of Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165, wherein the Supreme Court has struck down a portion of Section 2(a) on the ground that it is violative of Article 14 of the Constitution of India and the phrase “adult male” as appearing in Section 2(q) stood deleted. If the said sub-section is read after deleting the expression ‘adult male’, it would appear that any person, whether male or female, aggrieved and alleging violation of the provisions of the Act could invoke the provisions under the Act. In that view of the matter, the petitioner’s complaint could not have been trashed on the ground that the Act does not contemplate provision for men and it could only be in respect of women.
In that view of the matter, since cognizance was never taken by the Magistrate and process was not issued, the question of giving them a right of hearing either by the Sessions Court or by this Court does not arise. It is for the Magistrate to reconsider the case from inception. On the question whether the provisions of the DV Act can be invoked by the petitioner or not is no longer res integra. The petition would therefore have to be entertained.
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