MRS. FARIDA KHAN, Aged about 34 years, W/o Mr. Dilshad Ahmed Khan, D/o Mr. Mansoor Khan, presently residing at 7, Near Akansha Apartment, Khanugaon Square, Ahmadabad Palace Road, Koh-E-Fiza, BHOPAL (Madhya Pradesh)

IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR

CRIMINAL REVISION NO. 862 OF 2012.

APPLICANTS/                  :         MRS. FARIDA KHAN & ANOR

VERSUS

NON-APPLICANTS/         :         DILSHAD KHAN & ORS.

The above named appellant/applicant/petitioner has affixed herewith a Court Fee Stamp worth Rs. 110/- + Rs.       /- issuance of notice to the following respondents/non-applicants.

S. No.	Name & address of the persons	Process fee paid On Merit on stay
1. 2. 3. 4. 5. 6. 7.	DILSHAD KHAN, aged about 36 years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh). SHAMSHAD AHMAD, Aged about 41years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 47, Islami Gate, Near Kachchi, Shahjahanabad, BHOPAL (Madhya Pradesh). NAUSHAD AHMAD KHAN, aged about 46 years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh). ASLAM KHAN, Aged about 47 years, S/o Late Mr. Ayub Khan, R/o Near Small Mosque, P. G. B. T. College Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh). MRS. FAKHRUNISSA, Aged about 66 years, W/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh). MRS. SHAHEEN, Aged about 39 years, W/o Mr. Shamshad Ahmad, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh). MRS. YASMEEN, Aged about 40 years, W/o Mr. Aslam Khan, R/o Near Small Mosque, P. G. B. T. College Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh).	Rs.15/- +Rs.   /- Rs.15/- +Rs.   /- Rs.15/- +Rs.   /- Rs.15/- +Rs.   /- Rs.15/- +Rs.   /- Rs.15/- +Rs.   /- Rs.15/- +Rs.   /- Rs.5/- [Extra]

Date of order	Claim valued at	Particulars
15.05.2012	CRR	On Admission and IA 9901/2012 for grant of Stay Only

Jabalpur                                Counsel for –Applicant

Date :         /05/2012                               Vijay Raghav Singh 

1.  DILSHAD KHAN, aged about 36 years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

2.  SHAMSHAD AHMAD, Aged about 41years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 47, Islami Gate, Near Kachchi, Shahjahanabad, BHOPAL (Madhya Pradesh).

3.  NAUSHAD AHMAD KHAN, aged about 46 years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

4.  ASLAM KHAN, Aged about 47 years, S/o Late Mr. Ayub Khan, R/o Near Small Mosque, P. G. B. T. College Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh).

5.  MRS. FAKHRUNISSA, Aged about 66 years, W/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

6.  MRS. SHAHEEN, Aged about 39 years, W/o Mr. Shamshad Ahmad, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

7.  MRS. YASMEEN, Aged about 40 years, W/o Mr. Aslam Khan, R/o Near Small Mosque, P.G. B. T. College Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh).

1)    DILSHAD KHAN, aged about 36 years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

2)    SHAMSHAD AHMAD, Aged about 41years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 47, Islami Gate, Near Kachchi, Shahjahanabad, BHOPAL (Madhya Pradesh).

3)    NAUSHAD AHMAD KHAN, aged about 46 years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

4)   ASLAM KHAN, Aged about 47 years, S/o Late Mr. Ayub Khan, R/o Near Small Mosque, P. G. B. T. College Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh).

5)    MRS. FAKHRUNISSA, Aged about 66 years, W/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

6)    MRS. SHAHEEN, Aged about 39 years, W/o Mr. Shamshad Ahmad, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

7)    MRS. YASMEEN, Aged about 40 years, W/o Mr. Aslam Khan, R/o Near Small Mosque, P.G. B. T. College Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh).

The Registrar (Judicial)

High Court of Madhya Pradesh

Principal Seat at Jabalpur (M. P.).

The Registrar (Judicial)

High Court of Madhya Pradesh

Principal Seat at Jabalpur (M. P.).

The Registrar (Judicial)

High Court of Madhya Pradesh

Principal Seat at Jabalpur (M. P.).

The Registrar (Judicial)

High Court of Madhya Pradesh

Principal Seat at Jabalpur (M. P.).

The Registrar (Judicial)

High Court of Madhya Pradesh

Principal Seat at Jabalpur (M. P.).

The Registrar (Judicial)                                     The Registrar (Judicial)

High Court of Madhya Pradesh                           High Court of Madhya Pradesh

Principal Seat at Jabalpur (M. P.).                      Principal Seat at Jabalpur (M. P.).

IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR

CRIMINAL REVISION NO. 862 OF 2012.

APPLICANTS/          :       MRS. FARIDA KHAN & ANOR

VERSUS

NON-APPLICANTS/ :       DILSHAD KHAN & ORS.

I N D E X

Sno	Description of documents	Annexure	Pages
1.	Index		1
2.	Chronology of events		2 TO 7
3.	Memo of criminal revision		8 TO 23
4.	List of Documents		24
5.	Copy of the complaint under Section 12 (1) dated 12.01.2011	A-1	25 TO 39
6.	Copy of the domestic incident report dated 12.01.2011	A-2	40 TO 43
7.	Copy of the application dated 19.05.2011	A-3	44 & 45
8.	Copy of the reply submitted by the non-applicants	A-4	46 & 47
9.	Copy of the application dated 02.09.2011	A-5	48
10.	Copy of the reply dated 21.11.2011	A-6	49 TO 51
11.	Copy of the Order dated 18.01.2012	A-7	52 TO 55
12.	Copy of the impugned Judgment and order dated 17.04.2012 passed by the Court of Vth Additional Session Judge, Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in the matter of Dilshad Khan & Ors. V/s Mrs. Farida Khan & Anor. in the file of Criminal Appeal No. 144 of 2012	A-8	56 TO 58
13.	Application for grant of stay alongwith affidavit		59 TO 61
14.	Vakalatnama		62

PLACE : JABALPUR

DATE :                              ADVOCATE FOR APPLICANTS     

IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR

CRIMINAL REVISION NO. 862 OF 2012.

APPLICANTS/          :       MRS. FARIDA KHAN & ANOR

VERSUS

NON-APPLICANTS/ :       DILSHAD KHAN & ORS.

 

CHRONOLOGY OF EVENTS

S.No	Date	Events
1.	18.02.2009	Applicant No. 1 married (Nikah) with non-applicant No. 1 on 18.02.2009 in accordance with Muslims rites and customs. After the marriage she went to her matrimonial home and she was subjected to cruelty by (1) Non-applicant No.1- husband, (2) Mother in Law Mrs. Fakhrunissa, (3) Nanad Yasmeen, (4) Non-applicant No. 4 Nandoi, (5) Non-applicant No. 2 Jeth, and (6) Jethani Mrs. Shaheen for bringing less dowry. The applicant No. 1 was sent back to her parental home.
2.	21.05.2010	Applicant No. 1 was blessed with a daughter applicant No. 2 on 21.05.2010 at Bhopal.
3.	04.10.2010	Since the demand of dowry was not fulfilled by the parents of applicant No.1 therefore nobody took care of her during maternity period.  The matter was reported to Pariwar Paramarsh Kendra of Police Station Shahjahanabd on 04.10.2010.
4.	02.11.2010	Thereafter a commission of offences punishable under Section 498-A/34 read with Section 406 of Indian Penal Code, 1860 and under Section 3/4 Dowry Prohibition Act, 1961 (Act No. 28 of 1961) in Crime No. 93/2010 before the Mahila Police Station, Bhopal (M. P.) on 02.11.2010 against all the non-applicants.
5.	12.01.2011	Applicants / aggrieved persons filed an application on 12.01.2011 under the provisions of Section 12 (1) the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005] against the non-applicant No. 1 to 4 / respondent No. 1 to 4 before the Court of Judicial Magistrate First Class, Bhopal (M. P.)
6.	12.01.2011	Applicant prayed for the relives of (1) protection order Under Section 18,  (2) residence Order under Section 19, (3) monetary relief under Section 20 (4) Custody Orders under Section 21, (4) Compensation Orders under Section 22. Any other relief deemed fit and proper may also be granted, have been prayed for. The case was registered as Miscellaneous Judicial Case (Criminal) No. 16 of 2011 by the learned trial magistrate.
7.	12.01.2011	Applicant No. 1 also filed domestic incident report before the magistrate under the provision of Section 9 (b) the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005] in which cruelty committed by non-applicant No. 5 to 7 was duly narrated in Para 3.
8.	31.01.2011	The Hon'ble Apex Court in Sou. Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade And Others, decided on 31 January, 2011 reported in (2011) 3 SCC 650, considered the definition of Respondent defined under Section 2(q) of the Act of 2005, and held that although section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint. Hon'ble Apex Court further held that legislature never intended to exclude female relatives of the husband or male partner from the ambit of complaint that can be made under the provisions of 2005 Act. It is true that expression female has not been used in the proviso to Section 2(q) also, but, no restrictive meaning can be given to expression relative nor has said expression been defined to make it specific to males only.
9.	19.05.2011	Thereafter applicant made an application on 19.05.2011 under Order 1, Rule 10 of the Code of Civil Procedure, 1908 and submitted that (1) Mother in Law Mrs. Fakhrunissa, (2) Jethani Mrs. Shaheen, and (3) Nanad Yasmeen be arrayed as co-respondent No. 5, 6 & 7 in the array of cause title.
10.		Non-applicants by filing reply submitted the provisions of code criminal procedure, 1973 (No. 2 of 1974) would be applicable in a proceeding initiated under the provisions of the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005].
11.	02.09.2011	Thereafter applicants made an application for appropriate direction so that their application under Order 1, Rule 10 of the Code of Civil Procedure, 1908 may be read as application under the provisions of Section 2 (q) of the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005].
12.	21.11.2011	Non-applicants by submitting their contended that on facts the law laid don by apex Court is distinguishable.
13.	18.01.2012	The trial Court was pleased to kind enough in allowing the two applications whereby and whereunder directing the applicants to implead the female relative of the husband as as co-respondent No. 5, 6 & 7 in the array of cause title.
14.	14.02.2012	Feeling aggrieved by the order passed by the trial Court, non-applicants preferred a criminal appeal under the provision of Section 29 of the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005].
15.	17.04.2012	The impugned Judgment and order dated 17.04.2012 passed by the Court of Vth Additional Session Judge, Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in the matter of Dilshad Khan & Ors. V/s Mrs. Farida Khan & Anor. in the file of Criminal Appeal No. 144 of 2012.
16.		Applicants preferred a criminal revision under section 397/401 of the Code of Criminal Procedure, 1973 (No. 2 of 1974) before the Hon’ble High Court of Madhya Pradesh, Principal Seat at Jabalpur against the impugned Judgment and Order passed by the lower appellate Court.

PLACE : JABALPUR

DATE :                              ADVOCATE FOR APPLICANTS     

IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR

CRIMINAL REVISION NO. 862 OF 2012.

APPLICANTS/          : 1.   MRS. FARIDA KHAN, Aged about 34 Complainants                          years, W/o Mr. Dilshad Ahmed Khan,

Aggrieved Persons              D/o Mr. Mansoor Khan,

2.     MISS IFRA, Aged about 2 years, D/o Mr. Dilshad Khan, Through natural Guardian mother MRS. FARIDA KHAN, Aged about 34 years, W/o Mr. Dilshad Ahmed Khan, D/o Mr. Mansoor Khan,

Both presently residing at 7, Near Akansha Apartment, Khanugaon Square, Ahmadabad Palace Road, Koh-E-Fiza, BHOPAL (Madhya Pradesh).

VERSUS

NON-APPLICANTS/ : 1.   DILSHAD KHAN, aged about 36 years,

Respondents                      S/o Late Mr. Matloob Ahmed Khan, R/o

Husband of aggrieved         House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

Jeth of aggrieved        2.     SHAMSHAD AHMAD, Aged about 41

years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 47, Islami Gate, Near Kachchi, Shahjahanabad, BHOPAL (Madhya Pradesh).

Elder Jeth of aggrieved 3.    NAUSHAD AHMAD KHAN, aged about 46

years, S/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

Nandoi of aggrieved    4.     ASLAM KHAN, Aged about 47 years, S/o

Late Mr. Ayub Khan, R/o Near Small Mosque, P. G. B. T. College Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh).

Mother in Law of aggrieved 5.  MRS. FAKHRUNISSA, Aged about 66

years, W/o Late Mr. Matloob Ahmed Khan, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

Jethani of aggrieved   6.     MRS. SHAHEEN, Aged about 39 years,

W/o Mr. Shamshad Ahmad, R/o House No. 247, Chouksey Nagar, Near Jawaharlal Neharu Hospital, DIG Bunglow, Beraisa Road, BHOPAL (Madhya Pradesh).

Nanad of aggrieved    7.     MRS. YASMEEN, Aged about 40 years,

W/o Mr. Aslam Khan, R/o Near Small Mosque, P. G. B. T. College Road, DIG Bunglow, Berasia Road, BHOPAL (Madhya Pradesh).

CRIMINAL REVISION UNDER 397 / 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973 [NO. 2 OF 1974]

Being aggrieved by the Judgment and Order dated 17.04.2012 passed by the Court of Vth Additional Session Judge, Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in the matter of Dilshad Khan & Ors. V/s Mrs. Farida Khan & Anor. in the file of Criminal Appeal No. 144 of 2012, arising out of an Order dated 18.01.2012 passed by the Court of Judicial Magistrate, First Class, Mr. Lokendra Singh, BHOPAL (Madhya Pradesh) in the matter of Mrs. Farida Khan & Anor. V/s Dilshad Khan & Ors. in the file of Miscellaneous Judicial Case (Criminal) No. 16 of 2011, the applicants /aggrieved persons most humbly and respectfully begs to prefer the instant criminal revision on following facts and grounds amongst the others :

MATERIAL FACTS OF THE CASE :

1.   This is first criminal revision petition against the impugned Order. Applicant has not filed any criminal revision petition against the impugned Order before any Court of Law.

2.   Applicants / aggrieved persons filed an application on 12.01.2011 under the provisions of Section 12 (1) the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005] against the non-applicant No. 1 to 4 / respondent No. 1 to 4 before the Court of Judicial Magistrate First Class, Bhopal (M. P.) contending inter-alia that applicant No. 1 married (Nikah) with non-applicant No. 1 on 18.02.2009 in accordance with Muslims rites and customs. After the marriage she went to her matrimonial home and she was subjected to cruelty by (1) Non-applicant No.1- husband, (2) Mother in Law Mrs. Fakhrunissa, (3) Nanad Yasmeen, (4) Non-applicant No. 4 Nandoi, (5) Non-applicant No. 2 Jeth, and (6) Jethani Mrs. Shaheen for bringing less dowry. The applicant No. 1 was sent back to her parental home. Applicant No. 1 was blessed with a daughter applicant No. 2 on 21.05.2010 at Bhopal. Since the demand of dowry was not fulfilled by the parents of applicant No.1 therefore nobody took care of her during maternity period.  The matter was reported to Pariwar Paramarsh Kendra of Police Station Shahjahanabd on 04.10.2010. Thereafter a commission of offences punishable under Section 498-A/34 read with Section 406 of Indian Penal Code, 1860 and under Section 3/4 Dowry Prohibition Act, 1961 (Act No. 28 of 1961) in Crime No. 93/2010 before the Mahila Police Station, Bhopal (M. P.) on 02.11.2010 against all the non-applicants.

3.   Since the complaint under the provisions of Section 12 (1) the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005]  was barred against the female relatives of husband in view of Judgment rendered by this Hon’ble High Court in the case of Ajay Kant And Ors. vs Smt. Alka Sharma decided on 19 June, 2007 reported in  2008 Cri LJ 264 = I (2008) DMC 1= 2007 (4) MPHT 62 = 2008 (2) Crimes 235 (M.P.) = 2008 STPL (LE-Crim) 28892.

4.   Applicant prayed for the relives of (1) protection order Under Section 18,  (2) residence Order under Section 19, (3) monetary relief under Section 20 (4) Custody Orders under Section 21, (4) Compensation Orders under Section 22. Any other relief deemed fit and proper may also be granted, have been prayed for. The case was registered as Miscellaneous Judicial Case (Criminal) No. 16 of 2011 by the learned trial magistrate. Copy of the complaint under Section 12 (1) dated 12.01.2011 is filed herewith and marked as Annexure A-1.

5.   Applicant No. 1 also filed domestic incident report before the magistrate under the provision of Section 9 (b) the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005] in which cruelty committed by non-applicant No. 5 to 7 was duly narrated in Para 3. Copy of the domestic incident report dated 12.01.2011 is filed herewith and marked as Annexure A-2.

6.   The Hon'ble Apex Court in Sou. Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade And Others, decided on 31 January, 2011 reported in (2011) 3 SCC 650, considered the definition of Respondent defined under Section 2(q) of the Act of 2005, and held that although section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint. Hon'ble Apex Court further held that legislature never intended to exclude female relatives of the husband or male partner from the ambit of complaint that can be made under the provisions of 2005 Act. It is true that expression female has not been used in the proviso to Section 2(q) also, but, no restrictive meaning can be given to expression relative nor has said expression been defined to make it specific to males only. Paras 13 to 18 are reproduced as under:-

“13. Having carefully considered the submissions made on behalf of the respective parties, we are unable to sustain the decisions, both of the learned Sessions Judge as also the High Court, in relation to the interpretation of the expression respondent in Section 2(q) of the Domestic Violence Act, 2005. For the sake of reference, Section 2(q) of the abovesaid Act is extracted hereinbelow:

2.(q) '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 marriage may also file a complaint against the relative of the husband or the male partner,

14. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.

15. It is true that the expression female has not been used in the proviso to Section 2(q) also, but, on the other hand, if the legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner.

16. No restrictive meaning has been given to the expression relative, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.

17. In our view, both the Sessions Judge and the High Court went wrong in holding otherwise, possibly being influenced by the definition of the expression respondent in the main body of Section 2(q) of the aforesaid Act.

18. The appeal, therefore, succeeds. The judgments and orders, both of the learned Sessions Judge, Amravati, dated 15-7-2009 and the Nagpur Bench of the Bombay High Court dated 5-3-2010, in Crl. Writ Petition No.588 of 2009 are set aside. Consequently, the trial court shall also proceed against the said Respondents 2 and 3 on the complaint filed by the appellant”.

7.   Thereafter applicant made an application on 19.05.2011 under Order 1, Rule 10 of the Code of Civil Procedure, 1908 and submitted that (1) Mother in Law Mrs. Fakhrunissa, (2) Jethani Mrs. Shaheen, and (3) Nanad Yasmeen be arrayed as co-respondent No. 5, 6 & 7 in the array of cause title. Copy of the application dated 19.05.2011 is filed herewith and marked as Annexure A-3. Non-applicants by filing reply submitted the provisions of code criminal procedure, 1973 (No. 2 of 1974) would be applicable in a proceeding initiated under the provisions of the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005]. Copy of the reply submitted by the non-applicants is filed herewith and marked as Annexure A-4.

8.   Thereafter applicants made an application for appropriate direction so that their application under Order 1, Rule 10 of the Code of Civil Procedure, 1908 may be read as application under the provisions of Section 2 (q) of the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005]. Copy of the application is filed herewith and marked as Annexure A-5. Non-applicants by submitting their contended that on facts the law laid don by apex Court is distinguishable. Copy of the reply dated 21.11.2011 is filed herewith and marked as Annexure A-6.

9.   The trial Court was pleased to kind enough in allowing the two applications whereby and whereunder directing the applicants to implead the female relative of the husband as as co-respondent No. 5, 6 & 7 in the array of cause title. Copy of the Order dated 18.01.2012 is filed herewith and marked as Annexure A-7.

10.                Feeling aggrieved by the order passed by the trial Court, non-applicants preferred a criminal appeal on 14.02.2012 under the provision of Section 29 of the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005]. The Court below without applying its mind, mechanically, without assigning any reason, reversed and set-aside the order passed by the trial Court arbitrarily and discriminatory. The Judgment impugned is bad in Law and deserves to be set aside. Copy of the impugned Judgment and order dated 17.04.2012 passed by the Court of Vth Additional Session Judge, Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in the matter of Dilshad Khan & Ors. V/s Mrs. Farida Khan & Anor. in the file of Criminal Appeal No. 144 of 2012 is filed herewith and marked as Annexure A-8. Hence this revision on following grounds amongst the others :

GROUNDS URGED :

A.   The Court below ought to have appreciate that since the complaint under the provisions of Section 12 (1) the Protection of Women from Domestic Violence Act, 2005 [No. 43 of 2005]  was barred against the female relatives of husband in view of Judgment rendered by this Hon’ble High Court in the case of Ajay Kant And Ors. vs Smt. Alka Sharma therefore co-respondents No. 5 to 7 were arrayed as co-respondent but allegations of domestic violence were there in complaint. It is well settled under the Law that the act of court would prejudice no man and after the pronouncement of judgment by the apex Court the applicants bonafidely made application for additional of parties which was rightly allowed by the trial Court.  

B.   The Court below committed serious error of Law in distinguishing the Judgment passed by the apex Court in the Sou. Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade And Others, decided on 31 January, 2011 reported in (2011) 3 SCC 650. The judgment has wrongly interpreted by the Court below.

C.   Because the Court below failed to appreciate that under Section 8 of the Act provides for appointment of the Protection Officer and Section 33 of the Act provides for penalty for not discharging duty by the Protection Officer. Despite, as mentioned in the objects and reasons that for providing a civil remedy, this Act has been enacted, the provisions of Sections 19, 27, 28, 31 to 33 clearly mention that some of the proceedings under the Act are of criminal nature. Under Sections 19 to 22 of the Act an order to provide residential facilities, monetary reliefs, custody order for a child and compensation can be ordered by the Magistrate under the Act. Except a part of Section 19 with regard to direction of execution of a bond and dealing the same as provided under Chapter VIII of the Cr.PC, all the reliefs under Sections 18 to 22 appear to be of civil nature. Thus, some of the proceedings under this Act can be said to be of civil nature and some of the proceedings can be said to be of criminal nature husband in view of Judgment rendered by this Hon’ble High Court in the case of Ajay Kant And Ors. vs Smt. Alka Sharma decided on 19 June, 2007 reported in  2008 Cri LJ 264 = I (2008) DMC 1= 2007 (4) MPHT 62 = 2008 (2) Crimes 235 (M.P.) = 2008 STPL (LE-Crim) 28892.

D.  Because the Court below ought to have appreciated that under Section 20, the Magistrate while disposing of an application under Section 12 of the Act can direct the respondent to pay monetary relief to the aggrieved person in respect of loss of earnings, medical expenses, loss caused due to destruction, damage or removal of any property from her control and maintenance of the aggrieved person as well as her children. He can also order a lump sum payment or monthly payment of the maintenance. Under Section 21 of the Act, the Magistrate may grant temporary custody of the children to the aggrieved person and may deny visit of the respondent to the children of the aggrieved person. Under Section 22, the Magistrate can direct the respondent to make payment of compensation and damages for the injuries, including mental torture and emotional distress. Under Section 23, the Magistrate is competent to pass against the respondent such interim order as he deems fit in the facts and circumstances of the case. It would thus be seen that on an application moved by the aggrieved person under Section 12 of the Act, the Magistrate can pass orders against the respondent granting relief to the aggrieved person and such orders are essentially civil in nature.

E.   The Court below committed grave error and irregularity in not considering that even though Section 28 (1) of the Act provides that most of the proceedings under the Act shall be governed by the provisions of the Code of Criminal Procedure, 1973, Section 28 (2) of the Act gives sufficient latitude to the Court to lay down its own procedure for disposal of the main application under Section 12 as well as the interlocutory application under Sec. 23 (2) of the Act. Section 28 reads thus :

“28.Procedure.

28. Procedure.-(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-Section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23”. 

F.   The Court below erred in law in not following the Hon’ble Supreme Court in the recent decision in U. SUVETHA VS. STATE BY INSPECTOR OF POLICE AND ANOTHER (2009) 6 Supreme Court Cases 757) has considered the term with reference to Section 498-A of Indian Penal Code and has observed that in the absence of any statutory definition, the term must be assigned a meaning as it is commonly understood and it would include father, mother, son, daughter, brother, sister, nephew or niece, grandson or granddaughter of an individual or the spouse of any person. In this context, it is pertinent to note that while framing charge for the breach of protection order by the respondent, the Magistrate is authorised under Section 31(3) of the Act to frame charge under Section 498-A of Indian Penal Code, if the facts disclose commission of such an offence.

G.  The Court below ought to have appreciated that as seen, the Statement of Objects and Reasons of the Act also refers to any 'relative' of the husband or the male partner and the proviso to sub-section (1) of Section 19 of the Act makes it clear that the word mentioned in proviso to Section 2(q), is not restricted to a relative and would include a relative. But, however, whether relief can be granted against the 'female' relative would depend on the facts and circumstances of each case.

H.  The Court below failed to appreciate that Lord Denning in the case of Seaford Court Estates Ltd. v. Asher [1994] 2 All ER 155 wherein he held : "When a defect appears a judge cannot simply fold his hand and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases". This statement of law made by Lord Denning has been consistently followed by the Apex Court starting in the case of M. Pentiah and Ors. v. Muddala Veeramallappa and Ors. : [1961] 2 SCR 295 and followed as recently as in the case of S. Gopal Reddy v. Slate of Andhra Pradesh : 1996 Cri LJ 3237 

I.    The Court failed to appreciate that the Statement of Objects and Reasons of the Act also refers to any 'relative' of the husband or the male partner and the proviso to sub-section (1) of Section 19 of the Act makes it clear that the word mentioned in proviso to Section 2(q), is not restricted to a 'male' relative and would include a 'female' relative. But, however, whether relief can be granted against the 'female' relative would depend on the facts and circumstances of each case. Although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage. Section 2 (q) reads as under :

“THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

NO. 43 OF 2005

[13th September, 2005.]

2. Definitions.

2. Definitions.-In this Act, unless the context otherwise requires,-

(q) "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;”

PRAYER

It is, therefore most humbly and respectfully prayed that Judgment and Order dated 17.04.2012 passed by the Court of Vth Additional Session Judge, Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in the matter of Dilshad Khan & Ors. V/s Mrs. Farida Khan & Anor. in the file of Criminal Appeal No. 144 of 2012, may kindly be set-aside with costs throughout, in the larger interst of Justice.

PLACE : JABALPUR

DATE :                              ADVOCATE FOR APPLICANTS

IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR

CRIMINAL REVISION NO. 862 OF 2012.

APPLICANTS/          :       MRS. FARIDA KHAN & ANOR

VERSUS

NON-APPLICANTS/ :       DILSHAD KHAN & ORS.

LIST OF DOCUMENTS

S.No	Description of document	Date of document	Original copy	Number of page
1.	Complaint under Section 12 (1)	12.01.2011	Xerox	15
2.	Domestic incident report dated	12.01.2011	--DO--	04
3.	Application U/o1, R.10 CPC	19.05.2011	--DO--	01
4.	Reply submitted by the non-applicants		--DO--	02
5.	Application	02.09.2011	--DO--	01
6.	Reply submitted by the non-applicants	21.11.2011	--DO--	02
7.	Order passed by trial Court	18.01.2012	--DO--	04
8.	Order passed by the Court of Vth Additional Session Judge, Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in the matter of Dilshad Khan & Ors. V/s Mrs. Farida Khan & Anor. in the file of Criminal Appeal No. 144 of 2012	17.04.2012	Certified Copy	03

PLACE : JABALPUR

DATE :                              ADVOCATE FOR APPLICANTS

IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR

CRIMINAL REVISION NO. 862 OF 2012.

APPLICANTS/          :       MRS. FARIDA KHAN & ANOR

VERSUS

NON-APPLICANTS/ :       DILSHAD KHAN & ORS.

APPLICATION FOR GRANT OF STAY

Applicants named above most humbly and respectfully begs to submit as under :

1.   Applicants have preferred a Criminal Revision under Section 397 / 401 of the Code of Criminal Procedure, 1973 (No. 2 of 1974) against the Judgment and Order dated 17.04.2012 passed by the Court of Vth Additional Session Judge, Mr. Binod Kumar Dwivedi, BHOPAL (Madhya Pradesh) in the matter of Dilshad Khan & Ors. V/s Mrs. Farida Khan & Anor. in the file of Criminal Appeal No. 144 of 2012, arising out of an Order dated 18.01.2012 passed by the Court of Judicial Magistrate, First Class, Mr. Lokendra Singh, BHOPAL (Madhya Pradesh) in the matter of Mrs. Farida Khan & Anor. V/s Dilshad Khan & Ors. in the file of Miscellaneous Judicial Case (Criminal) No. 16 of 2011.

2.   Applicants have a good prima facie case and hope to succeed in it. If during pendency of instant criminal revision, the proceeding pending before the trial Court is not stayed, the applicant would suffer irreparable loss and injury. The balance of connivance too lies in their favor.

3.   From the facts and circumstances, narrated hereinabove in the preceding paras, it is expedient in the larger interest of Justice that pending final disposal of the instant criminal revision, the proceeding pending before the trial court be stayed.

An affidavit in support of this application is being filed herewith.

PRAYER

It is, therefore most humbly and respectfully prayed that during pendency of instant criminal revision the proceeding pending before the Court of Judicial Magistrate, First Class, Mr. Lokendra Singh, BHOPAL (Madhya Pradesh) in the matter of Mrs. Farida Khan & Anor. V/s Dilshad Khan & Ors. in the file of Miscellaneous Judicial Case (Criminal) No. 16 of 2011, in the larger interst of Justice.

PLACE : JABALPUR

DATE :                              ADVOCATE FOR APPLICANTS

IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR

CRIMINAL REVISION NO. 862 OF 2012.

APPLICANTS/          :       MRS. FARIDA KHAN & ANOR

VERSUS

NON-APPLICANTS/ :       DILSHAD KHAN & ORS.

AFFIDAVIT

I, MRS. FARIDA KHAN, Aged about 34 years, W/o Mr. Dilshad Ahmed Khan, D/o Mr. Mansoor Khan, presently residing at 7, Near Akansha Apartment, Khanugaon Square, Ahmadabad Palace Road, Koh-E-Fiza, BHOPAL (Madhya Pradesh), the above named deponent, solemnly affirm and state on oath as under:

1.   That I am the applicant No. 1 in the above mentioned criminal revision and am fully conversant with the facts deposed to in the criminal revision.

2.   That the contents of paragraphs 1 to 3 of the accompanying application are true to my personal knowledge and the contents of paragraphs are based on legal advice, which I believe to be true. No material has been concealed and no part is false.

 

JABALPUR

DATED :                                                                    DEPONENT

VERIFICATION

I, MRS. FARIDA KHAN, the above named deponent do hereby verify on oath that the contents of the affidavit above are true to my personal knowledge and nothing material has been concealed or falsely stated. Verified at ______this______day of _______

 

 

DEPONENT

 Sou. Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade, on 31 January, 2011 (2011) 3 SCC 650

 

Human and Civil Rights

Protection of Women from Domestic Violence Act, 2005

S. 2(q) & proviso thereto and Ss. 12, 18, 19, 20 & 22 – “Respondent'' - Meaning - ``Relative'' of husband or the male partner - Whether include females - Held, legislature never intended to exclude female relatives from ambit of complaint that could be made under 2005 Act - Though expression ``female'' is not used in proviso to S. 2(q), but no restrictive meaning can be given to expression ``relative'' nor has said expression been defined to make it specific to males only - Courts below erred in holding otherwise,  (2011) 3 SCC 650