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TMI Blog2007 (6) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... car from her parents. As the father of the respondent is a pensioner, he could not fulfill the demand. He reported the matter to Mahila Police Station at Padav, Gwalior on 2nd November, 2005 but the report was not lodged and no action was taken. On 3rd February, 2006 the respondent delivered a male child in the hospital. Thereafter, on 17th February, 2006 the petitioners separated the child from the respondent, kept him alongwith them and deserted the respondent. Consequently, since 20th February, 2006 she is living in her matrimonial home without her son. Petitioners are trying to declare the respondent as mentally sick and to remarry the petitioner No. 1. Admittedly, one application for divorce has been filed by the petitioner No. 1 against the respondent and the respondent has filed an application under Section 125 of Cr.PC claiming maintenance from him and also she has filed another application under Section 9 of the Hindu Marriage Act for seeking a decree of restitution of conjugal rights against the petitioner No. 1. These applications are pending in the Family Court, Gwalior. On these grounds, the respondent has prayed in the application for taking legal action against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. For understanding these two parts, i.e., the main part of the Section and the proviso, it is necessary to understand the scheme of the Act. The first three paragraphs of the statement of object and reasons under which the Bill No. 116 of 2005 for passing the Act was placed before the Parliament, are as under (published in the Gazette of India Extraordinary Part II Section 2 Page 22 dated 22nd August, 2005): Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintaining good behaviour, a person can be directed by a Magistrate to execute a bond with or without sureties and in case of non-compliance of such order, that person can be detained into custody. Section 31 of the Act provides penalty for breach of protection order passed by the Magistrate, which is punishable as an offence. A protection order can only be passed under Section 18 of the Act. To understand better the provisions of Sections 18 and 31 are required to be perused, which are as under: Section 18. The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from-- (a) committing any act of domestic violence; (b) aiding or abetting in the commission of acts of domestic violence; (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person; (d) attempting to communicate in any form, whatsoever, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 to 22 appear to be of civil nature. Thus, some of the proceedings under this Act can be said to be of civil nature and some of the proceedings can be said to be of criminal nature. Section 12 of the Act provides that an application (not a complaint) for seeking one or more reliefs under the Act can be filed. On perusal of Sections 18 to 22 of the Act, it appears that the reliefs under these Sections as mentioned hereinabove can be passed on the application under Section 12 of the Act. The word complaint as appeared in the definition of respondent under Section 2(q) of the Act has not been defined anywhere in the Act. Although it is not provided that the definition of complaint can be considered the same as provided under the Cr.PC but at the same time it is also not prohibited. In view of this, the definition of complaint can appropriately be seen in Cr.PC which goes as under: (d) complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. It is clear by this definition t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an application under Section 12 of the Act. (E) The proceeding has also been assailed on the ground that no report from the Protection Officer under Section 12 of the Act has been called. Sub-section (1) of Section 12 of the Act goes as under: 12. (1) 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 this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider; On perusal of the aforementioned proviso appended to the provision, it appears that before passing any order on the application, it is obligatory on a Magistrate to take into consideration any report received by him from the Protection Officer or the service provider. Neither it is obligatory for a Magistrate to call such report nor it is necessary that before issuance of notice to the petitioners it was obligatory for a Magistrate to consider the report. The words before passing any order provide that any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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