The Court noted that there was no allegation of cruelty against the petitioner except that she was suspected of having an illegal relationship with the husband of woman who had filed complaint of domestic violence.

In a significant decision, the High Court has ruled that a wife cannot make her husband's extra marital partner, a respondent in an application moved by her under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act).

In this regard, the judgment noted that as per Section 2(q) of the DV Act, only those persons who have been in the domestic relationship can be made as respondent.

Further, the Court also noted that there was no allegation of cruelty against the petitioner except that she was suspected of having an illegal relationship with the husband of woman who had filed the complaint of domestic violence.

"Section 2(q) of the Act makes it clear that only those persons who have been in the domestic relationship can be made as respondent. In this case as argued by the petitioner’s counsel, the allegation against the petitioner is that the 1st respondent’s husband was suspected to be having illegal relationship with the petitioner and he thought of bringing the petitioner to his house. Except this allegation there are no other allegations against the petitioner which indicate that she too joined with the husband of the 1st respondent in harassing her. Therefore the petitioner does not come within the scope of respondent as envisaged under Section 2(q) of the Act. Making her respondent in the application filed under Section 12 of the Act is unwarranted," the Court ruled.

Advocate MH Prakash, appearing for the petitioner, submitted that she has been unnecessarily made a party by the first respondent in her application before the Magistrate under Section 12 of the DV Act.

It was submitted that the petitioner does not fall within the ambit of a respondent as mentioned under Section 2(q) of the DV Act and could, therefore, not have been made a party to the case.

The wife, i.e., the respondent opposed the plea stating that it was because of the petitioner's and her husband's illegal relationship that she was harassed in the first place.

Domestic violence has been committed on the instigation of the petitioner and therefore, making her a party in the application filed under Section 12 of the Act is necessary, it was contended.

The Court at the outset examined the scope of Section 2(q) of the DV Act to understand who can be made a respondent.

Section 2(q) of the Act reads as follows:

"Section 2(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.

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner."

The Court then proceeded to opine that the woman (petitioner) with whom the husband was allegedly having an affair will not come under the definition of 'respondent'.

"Section 2(q) of the Act makes it clear that only those persons who have been in the domestic relationship can be made as respondent," the Court said.

While allowing the petition moved by the petitioner, the Court quashed the criminal proceedings as against her before the trial court.

"There cannot be any proceedings against her (Petitioner) under the provisions of the Act. Therefore it is to be stated that this petition deserves to be allowed. Accordingly, petition is allowed. The proceedings against the petitioner in Crl.Misc.45/2021 on the file of JMFC, Arakalagudu are quashed as against the petitioner only."