ORDER
Indrani Datta, J.
1. This petition has been preferred by the petitioner invoking extraordinary jurisdiction of this Court conferred under Section 482 of Code of Criminal Procedure for setting aside order dated 31-3-2009 passed by JMFC Gwalior and for quashing the proceedings of Cr. Case No. 2694 of 2009, pending against the petitioner in the Court of Judicial Magistrate, Gwalior.
2. Facts in nutshell giving rise to this petition are that respondent has filed one application under Section 12 of Protection of Women from Domestic Violence Act, 2005 (in brevity 'the Act of 2005') against petitioner and others in the Court of JMFC, Gwalior. Learned JMFC, after registering the application, issued notice to the petitioner and others. Hence, this petition challenging that order of registering the application and issuing notice to the petitioner is filed on the following grounds:
(I) that, as provided by Section 2(q) of the Act, such application under Section 12 of the Act cannot be filed against the petitioner who being a lady under Section 2(q) of the Act of 2005. In Section 2(q) of the Act, the term respondent has been defined as under:
(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.
3. It is contended by learned Counsel for the petitioner that as per Section 2(q) of the Act, it is crystal clear that an application can be filed by an aggrieved person including the respondent claiming relief under the Act only against the adult male person. However, as per the proviso appended to this provision, a 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.
4. Learned Counsel for the petitioner drew this Courts attention to a citation Ajay Kant Sharma and Ors. v. Smt. Alka Sharma 2008 (2) Crimes 235, in which, a Bench of this Court has held that application for seeking one or more relief under the Act of 2005 can be filed only against adult male person. Relying that citation, it is further urged that in the present case, petitioner against whom, the application is filed under Section 12 of the Act is not adult male person, therefore, proceedings initiated against her and application filed against her is not maintainable. It is urged on behalf of the petitioner that considering the view expressed in above citation, the petitioner being a lady, proceedings initiated against her in Cr. Case No. 2694 of 2009 be quashed.
5. Learned Counsel for the respondent vehemently opposed the application and submitted that while disposing of the application under Sub-section (1) of Section 12 of the Act of 2005, Magistrate may on being satisfied that domestic violence has taken place, pass a residence orders vide Section 19 of the Act:
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under Clause (b) shall be passed against any person who is woman.
It is submitted that the above proviso of Section 19 would indicate that the only embargo against the passing of residence order while disposing of an application under Section 12(1)of the Act is that if the respondent is a woman the Magistrate shall not direct such woman respondent to remove herself from the shared household. In other words if the respondent to the application is a woman, the Magistrate can grant all the reliefs against such woman in an application under Section 12(1) of the Act except directing such woman respondent to remove herself from the shared household. Hence, it is urged that the petitioner is also liable under Section 12 of the Act of 2005 and proceedings are not liable to be quashed.
6. Learned Counsel's argument is based on a citation Remadevi v. State of Kerala I (2009) DMC 297, in which, it is held by Kerala High Court that 'aggrieved person' under Section 12 of the Act can file application not only against adult male relatives including husband but also against any female relatives. Term 'respondent' appearing in Section 12 takes within its fold not only adult male. It is further observed that on bare perusal of Section 19 of the Act and the proviso, it is apparent that Magistrate can grant all the relief against woman also in an application filed under Section 12(1) of the Act except directing such woman respondent to remove herself from shared household. So Act is applicable to female also.
7. So far as citation of Kerala High Court cited by learned Counsel for the respondent is concerned, with due respect, I find myself unable to agree with the decision of Kerala High Court. Application for seeking one or more relief under the Act can be filed against adult male member only as is apparent from Section 2(q) of the Act wherein, it is specifically mentioned that 'respondent' means only adult male person. It is apparent that complaint against relative of husband cannot include female members. In case of Smt. Menakuru Renuka and Ors. v. Menakuru Mono Reddy and Anr. 2009 Cri.LJ 819 : AIR 2009 AP 1544 , similar view is expressed that in view of the contents of Section 2(q) of the Act of 2005 female members of the domestic relationship have to be excluded, as the word used in Section 2(q) of the Act is that respondent means any adult male person. The words used are not like that 'respondent' means any adult person. So complaint against relatives of husband cannot include female members. Female members cannot be made respondents in proceedings under the Protection of Women from Domestic Violence Act, 2005.
8. It is well known that Protection of Women from Domestic Violence Act, 2005 came into force from 26th October, 2006, vide S.O. 1776 (E), dated 17th October, 2006 published in Gazette of India, Extra. Pi. II, Section 3(ii), dated 17th October, 2006 and this Act is to provide more effective protection to the rights of woman guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for members connected therewith or incidentally thereof. The Act is applicable against male persons who can be respondent.
9. In case of Razzaq Khan v. Shahnaz Khan : 2008 (4) M.P.H.T. 413 : ILR (2008) MP 963, it is held that wife is entitled to a right of residence in a shared house belonging to husband or house which belongs to joint family of which, husband is a member. In Vimlaben Ajitbhai Patel v. Vatslaben Asok Bhai Patel and Ors. : (2008) 4 SCC 649 and S.R. Balra v. Tarun Balra : (2007) 3 SCC 169, Apex Court has held that even wife could not claim right of residence in the property belonging to her mother-in-law that means protection order cannot be passed against mother-in-law. Wife is only entitled to the residence order which extends only to joint property in which, husband has a share.
10. In the present case, parties are Mohammadans and there is no concept of co-parcenery prevalent in their society. Therefore, considering this legal position and considering that, the Act of 2005 is applicable against adult male members only, this petition is allowed and consequently, the proceeding pending in the Court of JMFC Gwalior in case of 2694 of 2009 so far as petitioner Tehmina Qureshi is concerned, liable to be quashed and hereby quashed.
Petition stands disposed of.