ORDER
K. Venkataraman, J.
1. The present Revision Is directed against the order of the II Additional Family Court dated 6-11-2007 made In I.A. No. 2325 of 2007 in O.S. No. 101 of 2007.
2. The petitioner herein is the plaintiff in the above referred suit and the defendant thereon is the respondent. The petitioner laid the suit against the respondent before the above referred Court for declaration that he and the respondent herein are not married to each other and for consequential injunction restraining her from representing and receiving the benefits as his wife and for costs. In the said proceeding, the respondent had taken out an application in I.A. No. 2325 of 2007 for maintenance of Rs. 10,000/- per month for food, cloth, shelter and other basic necessities. The said application was filed under Section 20 read with Section 26 of the Domestic Violence Act, 2005. In the said application by an order dated 6-11 -2007, the learned Judge of the II Additional Family Court, Chennai directed the petitioner to pay a sum of Rs. 1,000/-per month as maintenance to the respondent herein from the date of petition till the disposal of the suit. The said order is canvassed in this Revision.
3. Mrs. Sudha Ramalingam, learned Counsel for the petitioner contended that the respondent is not entitled to any maintenance since the petitioner and the respondent have not lived together at any point of time and hence the respondent cannot claim protection under any of the provisions of the 'The Protection of Women from Domestic Violence Act, 2005' (hereinafter called as 'the Act'). Further, according to the learned Counsel appearing for the petitioner, Section 12 of the Act contemplates report from the Protection Officer so as to enable the learned Judge to pass an order of maintenance. Further according to the learned Counsel, the respondent is not an aggrieved person and hence she cannot file an application seeking maintenance.
4. Per contra, Mr. J. Saravanvel, learned Counsel appearing for the respondent contended that even as per the petitioner as put forth by him in his counter affidavit there was a close relationship between the petitioner and the respondent and hence the petitioner la liable to maintain the respondent. Further according to the learned Counsel appearing for the respondent, the report from the Protection Officer has to be obtained, only if an application is filed before a Magistrate, by an aggrieved person and the report of the Protection Officer Is not necessary if an application is filed before the Family Court. Thus, according to the learned Counsel appearing for the respondent, the learned Judge of the II Additional Family Court at Chennai has considered those aspects and ordered maintenance to the respondent.
5. I have considered the submissions made by the learned Counsel appearing for the petitioner and the respondent.
6. The petitioner in para 5 of this plaint has stated as follows:
They have only had voluntary intercourse sometimes as friends but there was no promise to marry or marriage between the parties hereto. As persons belonging to the theatre and stage, it was normal for like minded persons as friends to casually have intercourse without any thought of marriage. Both parties were interested in the advancement of their career, they did not think of marriage. To his knowledge, she had not conceived.
7. Again in paragraph 7 of the plaint the petitioner has averred as follows:
7. The plaintiff admits that the parties hereto had voluntary sexual contact at time there was no occasion for the plaintiff to go and live with the defendant. He resides with his parents in M.G.R. Nagar. He has categorically told the defendant that he does not believe in the institution of marriage. Knowing his views, the defendant had voluntary sexual contact without insisting on matrimony. Had there been even a slight reference to marriage as a pre-condition to the sexual contact, the plaintiff would never have had even the casual contact he had with her.....At moments of personal physical wants, to satisfy mutual needs, the parties hereto have had intercourse. The plaintiff reiterates that there was no whisper or pre-conditions to marriage attached before, during or after such acts.
8. In paragraph 3 of the counter-affidavit to the application preferred by the respondent for maintenance the petitioner had averred as follows:
I reiterate that we had consensual sex and did not live together and have any conjugal relationship as partners or married couple.
9. Again in paragraph 6 the petitioner had averred as follows:
I am advised to state that Section 2(f), Domestic Violence Act defines 'domestic relationship' as 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 marriage, adoption or are family members living together as a joint family. I did not live with the petitioner; I only had consensual sex. It is not synonymous with living in relationship as couples or partners. Only if we had either married or lived together would the provisions of Domestic Violence Act be attracted. Mere proximity at some time for the sake of mutual pleasure as in our case can never be called a 'domestic relationship'. Hence the above I.A. is not maintainable in law or on facts. It ought to be dismissed in limine for the above said reasons.
Thus, the averments made in the plaint as well as in the counter affidavit would make it clear that the petitioner and the respondent had close relationship and at least temporarily lived together.
10. Section 2(a) of the Act defines who is an aggrieved person. Section 2(a) reads as follows:
(a) 'aggrieved person' means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any of domestic violence by the respondent.
11. Section 2(f) defines 'domestic relationship' and the said provisions reads as follows:
(f) 'domestic relationship' means 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 marriage, adoption or are family members living together as a joint family.
12. Further Section 2(q) defines who is the 'respondent' and the same is reproduced hereunder:
(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.
13. The above referred provision makes it clear that any woman who is or has been in a domestic relationship with the respondent can make a complaint under the provisions of the said Act. Further the 'domestic relationship' thus defined as a relationship between two persons, who live or have, at any point of time, lived together. The provision does not say that they should have lived together for a particular period. Even as per the case of the petitioner, he had consensual sex with her, but there was no promise to marry her. Thus, the averments made in the plaint as well as in the counter affidavit will make it very clear that the petitioner and the respondent had a close relationship and had sex. As stated already, the Act does not contemplate that the petitioner and the respondent should live or have lived together for a particular period or for few days. From the averments made by the petitioner in his plaint and in his counter affidavit, one can infer that both of them seems to have shared household and lived together at least at the time having sex by them. From the discussions made above, I am unable to accept the contention of the learned Counsel appearing for the petitioner that the application filed by the respondent under the I provisions of the said Act is not maintainable.
14. The next contention of the learned Counsel appearing for the petitioner is that the learned Judge of the Family Court should have considered the report received from the Protection Officer before an order could be passed in favour of the respondent for maintenance. In this connection, learned Counsel appearing for the petitioner drawn my attention to Section 12 of the said Act by taking me through the said provision. Learned Counsel appearing for the petitioner was emphatic in her argument that since in the present case the report of the Protection Officer has not been obtained, the order of the learned Judge of the Family Court at Chennai is liable to be set aside.
15. Per contra, learned Counsel appearing for the respondent contended that such a report from the Protection Officer is not necessary, if an application is filed before the Family Court and the report may be necessary, if an application is filed before the Magistrate.
16. Section 26 of the said Act reads as follows:
Relief in other suits and legal proceedings: (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a Civil Court, family Court or a Criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
The above provision makes it clear that not only the concerned Magistrate but also the Civil Court, Family Court or a Criminal Court has got jurisdiction to grant the relief, if a person approaches them for the reliefs as set out in the said Act.
17. Section 12(1) contemplates an application before the Magistrate wherein the proviso to the Section makes it clear that before passing an order by the Magistrate, he shall take into consideration the domestic incident report received from the Protection Officer. But, however, no such proviso is enumerated under Section 26 of the said Act. If the intention of the legislature is that even if an application is filed before the Civil Court or Family Court or a Criminal Court by the aggrieved person, an order shall be passed by them taking into consideration any domestic incident report received from the Protection Officer or the service provider, then the legislature would have incorporated such proviso as in the case of Section 12(1), even in Section 26 also.
18. Section 12 contemplates the application to Magistrate and the proviso contemplates an order passed by Magistrate under the provisions after he receives a report from the Protection Officer. The proviso to Section 12 reads that 'the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. Such proviso has not been incorporated in Section 26 of the Act. Thus, a conjoint reading of both Sections 12 and 26 will make it clear that when a Magistrate passes an order, he shall receive the report from the Protection Officer but whereas such a report is not contemplated, when an order is passed by the Civil Court or by the Family Court. Hence, I am unable to accept the contention of the learned Counsel appearing for the petitioner that since the learned Judge of the Family Court has not obtained report of the Protection Officer, the order passed by him is not maintainable.
19. Considering the above facts and circumstances, I am of the opinion that the learned II Additional Judge, Family Court, Chennai has rightly granted maintenance to the respondent by his order dated 6-11-2007 made in I. A. No. 2325 of 2007 in O.S. No. 101 of 2007.
20. In the result, the said order is confirmed and the present Revision stands dismissed. Consequently, the connected M.P. is closed. However, there is no order as to costs.