‘Has Become Common Practice To Convert Some Other Dispute Into Domestic Violence Complaint’: Kerala HC Asks Magistrates To Act With Caution

Observing the existence of a domestic relationship is sine qua non for seeking relief under the Protection of Women from Domestic Violence Act, the Kerala High Court has said it has become a common practice to convert some other dispute into a 'domestic violence complaint'.

The magistrates must not casually and mechanically issue summons in such cases, said the court. It directed the Registry to forward a copy of its judgment to all the Magistrates in the State.

Justice Kauser Edappagath observed that the Magistrate has to scrutinize the allegations in the application to ensure that it falls within the ambit of DV Act before issuing summons to the respondent, and to prevent the law from becoming a tool of harassment at the hands of the complainant.

"When the allegations made in the application filed under section 12 of the DV Act do not disclose the existence of a domestic relationship between the complainant and the respondent/s or the occurrence of domestic violence, the Magistrate has no jurisdiction to receive the application on file and to issue summons to the respondent/s. On receipt of the application filed under section 12, the Magistrate cannot casually and mechanically issue summons to the respondent/s without applying his mind as to whether the complainant before him is an aggrieved person and the pleading in the complaint discloses domestic relationship between the complainant and the respondent/s," said the court.

The court said if the application does not fall within the ambit of the DV Act, necessarily, it must be rejected at the threshold.

"Only if the application discloses the existence of a domestic relationship between the complainant and the respondent/s and the occurrence of domestic violence, summons need be issued to the respondent/s. As stated already, if the application which is not maintainable under the DV Act is entertained and the summons is issued to the respondent/s, the very purpose of the legislation will be defeated," added the court.

The Court further observed that as per Section 12 of the Protection of Women from Domestic Violence Act, the complainant must either be a Protection Officer or an aggrieved person.

As per section 2(a), a person who is, or has been, in a domestic relationship with the respondent alone can be an aggrieved person. In other words, an aggrieved person and abuser shall always be linked through a domestic relationship. A reading of the definition of "domestic relationship" contained in section 2(f) makes it clear that it is a relationship between two persons who live or have lived together in a shared household and are related in any one of four ways - consanguinity, marriage or a relationship in the nature of marriage, adoption, or family members of a joint family.

The court made the observations in its decision on a petition filed by an employer and his wife against whom criminal proceedings were initiated at the instance of a former employee under the Protection of Women from Domestic Violence Act, 2005. The former employee had filed a complaint under Section 12 of the DV Act against 6 persons at the Judicial First-Class Magistrate Court, Adoor. 

The Counsel appearing for the petitioners submitted that the complainant is not an 'aggrieved person' as defined under Section 2(a) of the DV Act and even in the application filed, there is no domestic relationship between her and the petitioners and therefore, the application under section 12 of the DV Act is not maintainable.

The Court said the legislature's intention behind the DV Act was certainly not to provide a forum and remedy to every aggrieved woman, irrespective of their relationship with the offender or the nature of the grievance.

It said the provisions of the DV Act can be invoked only by an aggrieved person, which is defined to mean any woman who is, or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

"The DV Act was enacted with the avowed object of protecting women against the violence that occurs within the family and for matters connected therewith. The DV Act, therefore, conceives the scheme of protective measures with the object of protecting women in a domestic relationship...Thus, the very objective of the DV Act is to provide remedies to the woman who is the victim of domestic violence...Any attempt to bring any other dispute not connected with the domestic violence within the DV Act's ambit would defeat the legislation's very purpose, the court added.

Furthermore, the Court said Section 12 of the DV act clearly states an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the Act. 

The Court observed that an aggrieved wife or a female member living in a relationship in the nature of a marriage can also file a complaint against a relative of the husband or the male partner.

It further observed that staying together occasionally by two family friends who are not related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or members of a joint family is not sufficient to create domestic relationship. 

Case Title: Rajesh and Anr. v. The Station House Officer and Ors. 

Citation: 2023 LiveLaw (Ker) 8

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