Kerala HC accepts the easy misuse of DV to gain unfair advantage over husband! the respondent who is the opposite party to such an application is not an accused!

Sunitha vs State of Kerala and Anr

Kerala HC, Ernakulam Bench

10/12/2010

Crl.Rev.Pet.No. 461 of 2010

About/from the judgment:

In order to constitute a complaint there should be an allegation made to a Magistrate that some person has committed an offence . Here, except where a respondent is prosecuted under Sec. 31 of the Act for committing breach of a protection order under Sec. 18 or where a protection officer is prosecuted under Sec. 33 of the Act for not discharging his duty, the Magistrate is approached by a person for any of the aforementioned reliefs by filing an application under Sec. 12 read with Rule 6 of the Rules and Form II. The respondent who is the opposite party to such an application is not an accused. (Vide Sreedivya v Sudheer - 2009 (3) KLT 477) . Since he is not an accused , he cannot be arrested and produced or ordered to be arrested and produced before the Magistrate. The expression "complaint" found in the Act and the Rules has been used in a generic sense and is not to be understood in the context of a complaint as defined under the CrPC.

Read the Judgment

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