Calcutta High Court: While dismissing a petitioner’s plea against an application filed by his minor daughter under the Protection of Women from Domestic Violence Act, 2005 (DV Act), alleging that he was violent towards her and her mother, Shampa Dutt (Paul), J.,  held that application filed by the minor daughter under Section 12 of Domestic Violence Act cannot be dismissed on the grounds of maintainability especially when she had attained majority before the date of final order. The Court observed that as the DV Act is a beneficial legislation, the Court should adopt a sensitive approach before nullifying a case on the ground of maintainability. .

Facts of the Case

In the instant matter, the petitioner/father filed a revision petition against a judgment of a Sessions Court that had set aside an order of a Magistrate Court dated 18-07-2018. The daughter/opposite party no. 2 filed a case against her father/petitioner under S. 12 of DV Act. The Magistrate Court dismissed the case on the ground that it is not maintainable as the case was filed by the minor and she was not represented by any of her natural guardian or next friend. The daughter/opposite party no. 2 then filed an appeal under S. 29 of DV Act against the order of Magistrate Court. Vide order dated 29-08-2019, the Sessions Court that had set aside an order of a Magistrate Court.

Contention of the Parties

The petitioner contented that the opposite party no. 2 was a minor and was not represented by her natural guardian or next friend and therefore the said application is not maintainable in the eye of law. The petitioner further contended that the learned Appellate Court failed to consider the settled principle of law that a minor cannot take any legal action without being represented by his/her natural guardian or next friend and therefore the order is not tenable in the eye of law and liable to be set aside.

The opposite party no. 2 contended that the protection of women under DV Act is a beneficial and assertive legislation for the welfare of victims of Domestic Violence and relied on Suryanarayana v. State of Karnataka, (2001) 9 SCC 129; Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64; Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 and Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705.

Observation and Decision

The Court observed that no controversy would have arisen in the first place, if the mother had filed the case for herself and her minor daughter.

The Court referred to Raj Behari Lal Tandon v. Mahabir Prasad Tandon, 1955 SCC OnLine All 252, where it was held that the court is the guardian of the minors’ interest and cannot allow their interest to suffer by the action of others.

“When the fact of minority is a ‘bona fide’ question of evidence, and the defendant’s allegation is found correct, then the usual course is to suspend all proceedings and to allow sufficient time to enable the minor to have himself properly represented in the suit by a next friend.”

The Court observed that the learned Session Court has rightly set aside the order of Magistrate Court because though the opposite party no. 2 was a minor at the time of file of the case but became major on the date of final order passed by the Magistrate Court and also the relief prayed for was under an assertive and beneficial legislation

“The petition thus was an irregular one, which was regularized on the date of final order, when the petitioner was a major.”

The Court discussed Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705, were it was held that “2005 Act is a beneficial and assertive legislation for more effective protection of constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.” and “Before nullifying grievances of aggrieved person on ground of maintainability, Court should adopt a sensitive approach towards the right of women under 2005 Act.”

The Court upheld the order of Session Court and held that “…it is the duty of the Courts to protect the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.”

The Court directed the learned Magistrate, 3rd Court, Serampore to consider the case afresh in accordance with law and dispose of the same within three months from the date of communication of this order.

[Srikant Ray v. State of W.B., CRR 2923 of 2019, order dated 01.11.2022]


Advocates who appeared in this case:

Mr. Sanjib Mitra and Mr. Suryasarathi Basu, Counsel for the Petitioner

Mr. Narayan Prasad Agarwal and Mr. Pratick Bose, Counsel for the State

Mr. Prabir Kumar Mitra, Mr. Pinak Kumar Mitra and Ms. Ariba Shahab, Counsel for Opposite Party No. 2


Ritu Singh, Editorial Assistant has put this report together

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