Liability of Family Members of Husband under Protection of Women from Domestic Violence Act, 2005

Liability of Family Members of Husband under Protection of Women from Domestic Violence Act, 2005

The legal issue of the extent of liability of relatives was discussed in Harbans Lal Malik v. Payal Malik [2010] GCtR 6660 (Delhi).

Section 12 of PWDV Act, 2005 : Pre-requisites

Under Section 12 of PWDV Act, 2005, an "aggrieved person" can file an application to Magistrate against the respondents. 

It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act. Domestic relationship is defined under Section 2 (f) of the Act.

Domestic Relationship : How to Determine ?

It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and 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. The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there.

Jurisdiction of MM and Limitations 

Merely because a person is brother of the husband he cannot be arrayed as a respondent, nor does an MM gets authority over each and every relative of the husband, without going into the fact whether a domestic relationship or shared household was there between the aggrieved person and the respondent.

Boy Living Abroad

How can the parents of a boy who is working abroad, living abroad, an adult, free to take his own decisions, be arrayed as criminals or respondents if the marriage between him and his wife failed due to any reason whatsoever after few years of marriage. If the sin committed by such parents of boy is that they facilitated the marriage, then this sin is equally committed by parents of the girl.

Parents of Boy and Liability

If such marriage fails then parents of both bride and groom would have to share equal responsibility. The responsibility of parents of the groom cannot be more. Shelter of Indian culture and joint family cannot be taken to book only relatives of boy. A woman‟s shared household in India in such cases is also her parents‟ house where she lived before marriage and not her in-laws‟ house where she did not live after marriage.

What is A Family ?

It is important to consider as to what “family” is and what “joint family” is. As per Black‟s Law Dictionary (VI Edition) “family” means a collective body of persons who live in one house under one head or management. Dictionary states that the meaning of word “family” necessarily depends on field of law in which word is used, but this is the most common meaning. “Family” also means a group of blood relatives and all the relations who descend from a common ancestor or who spring from a common root. However, for the purpose of domestic violence act where the object is to protect a woman from domestic violence, “family” has to be defined as a collective body of persons who live in one house under one head or management. In Chamber‟s Dictionary (1994-95) again the “family” is defined as all those who live in one house i.e. parents, children servants; parents and their children. In Shorter Oxford English Dictionary (1993 ed.) “family” is defined as a group of persons living in one household including parents and their children, boarders, servants and such a group is a organizational unit of society.

Effect of Parents Living Separately

Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad.

Effect of S.125 of Code of Criminal Procedure, 1973 and Difference Between Two Laws

The definition of “wife” as available under Section 125 of Code of Criminal Procedure, 1973 could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Code of Criminal Procedure, 1973 and if Legislature intended, it would have defined “wife” as in Section 125 Code of Criminal Procedure, 1973 in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Code of Criminal Procedure, 1973 is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household. Section 125 of Code of Criminal Procedure, 1973 is to prevent vagrancy where wife is left high and dry without maintenance. Law gives a right to claim maintenance under Civil Law as well as Section 125 Code of Criminal Procedure, 1973 even to a divorced wife, but an act of domestic violence cannot be committed on a divorced wife, who is not living with her husband or family and is free to live wherever she wants. She has a right to claim maintenance and enforce other rights as per law. She has a right to claim custody of children as per law but denial of these rights do not amount to domestic violence. Domestic Violence is not perceived in this manner. The definition of “Domestic Violence” as given in Section 3 of The Protection of Women from Domestic Violence Act, 2005 pre supposes that the woman is living with the person who committed violence and domestic relationship is not dead buried or severed. This does not speak of past violence which a woman suffered before grant of divorce.