Criminal Revision against orders in a Protection of Women from Domestic Violence Act case. The Court held the Act is for women and no shared household relationship existed between male siblings living separately, quashing the proceedings.
Orders of the learned trial Court and learned Additional Sessions Judge were set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL REVISION APPLICATION NO. 14 OF 2010
Mr. Johnson Fernandes, Major in age, Resident of Panzorconni, Wokle Bhat, Near Nusi Hospital, Cuncolim, Salcete, Goa. ... Petitioner
versus
Cuncolim, Salcete, Goa.
Through Public Prosecutor. ... Respondents
Shri Arun Bras De Sa, Advocate for the Petitioner.
Ms. Asha Dessai, Advocate for the Respondent Nos.1 and 2.
Shri C. A. Ferreira, Public Prosecutor for Respondent No.3.
CORAM : N. A. BRITTO, J.
DATE : 9TH DECEMBER, 2010.
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JUDGMENT
Heard.
brother of Respondent No.1 who is the petitioner before this Court, are residing in separate houses. The applicants reside in house No.576/A situated at Wokle Bhat, Panzorconni, Cuncolim while respondent No.1 resides in another house in the neighbourhood. The application under
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Section 12 of the said Act was filed by the applicants who are sister and brother. It appears that the plea of non maintainability of the said application was taken but rather vaguely. The learned trial Court by Order dated 30-7-2009 has issued certain orders in terms of Section 18 of the said Act including against applicant No.2, the brother of applicant No.1. That Order has sought to be justified by the learned Additional Sessions Judge by observing that applicant No.2 might have not been entitled to file the application as he was not entitled to the protection under the Act but that could not have come in the way of the Magistrate in granting relief to the applicants and passing a prohibitory Order also in favour of applicant No.2.
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plea that applicant No.2 was giving assistance to applicant No.1 as sought to be reasoned out by the learned Magistrate and sought to be justified by the learned Additional Sessions Judge. Applicant No.2 therefore was not entitled for any protection under the said Act.
Section 2(f) defines “domestic relationship” to mean 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
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marriage, adoption or are family members living together as a joint family.
Section 2(q) defines the expression “respondent” 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:
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.
Section 2(s) defines “shared household” to mean a
household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which
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the respondent is a member, irrespective of whether the respondent or the
aggrieved person has any right, title or interest in the shared household.
point of time in a shared household. A shared household would only mean a house belonging to or taken on rent by the husband or a house which belongs to the family of which the husband is a member. In the case at hand, the applicant No.1 lives in her own house and respondent No.1 lives in his own, and there is no shared household, as such. In case there was domestic violence or physical abuse to applicant No.1, from
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respondent No.1, in my view, and as rightly submitted by Shri Arun Bras De Sa, learned Counsel on behalf of the petitioner, applicant No.1 could not have approached the Court with an application under Section 12 of the said Act but had to proceed under ordinary law. A protection Order could have been made only in case applicant No.1 was an aggrieved person within the meaning assigned to it under clause (a) of Section 2, and in case both had lived in a shared household as contemplated by clause (f) of Section 2. Both, applicant No.1 and respondent No.1 were not living in a shared household, and, therefore in my view, the applicant No.1 could not have invoked the provisions of the special legislation i.e. the Protection of Women from Domestic Violence Act, 2005, and that being the position, no orders could have been made by the learned J.M.F.C. under the Act not only in favour of applicant No.2 but also applicant No.1, as well.
N. A. BRITTO, J.
RD
3 issues framed by the court
Whether the Protection of Women from Domestic Violence Act, 2005 applies to domestic violence between two male siblings living in separate households.
Whether the applicant brother was competent to file an application under Section 12 of the Act on behalf of the petitioner.
Whether a shared household relationship existed between the petitioner and respondent in a DV petition filed by male siblings.
1 provisions across 1 enactments
Mr. Johnson Fernandes
Mrs. Maria Fernandes
Mr. Michael Fernandes
State
N. A. BRITTO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
