Descriptive and Laudatory Trade Mark

In Caterpillar Inc. Vs. Mehtab Ahmed and Others ( 99 (2002) DLT 678) court delineated various categories of words used in a trademark:

  1. The words or marks can broadly be divided into six categories. The first category of words is “generic”. These words have dictionary meaning and are neither specific nor special. These words belong to genus. Generic name is name of genus which names the species. Such words are neither brand names nor have any protection by a registered trade mark. The words which are directly descriptive or quality of goods belong to second category. Such words are adjective expressing quality or attribute of an article or goods. These are neither patented nor proprietary names. These words are in common parlance known as laudatory epithets.
  2. Third category is that of directly descriptive words. These words describe the character or the quality or attribute of the goods or articles but without an element of laudation. The words of second and third category if used as a mark acquire secondary meaning on account of constant and long user. Fourth category is of ‘indirectly descriptive words’. These words are those which have indirect or remote reference to the nature or quality of goods. The element of directness is wanting in these words. Such words can be used as a mark or trademark irrespective of the fact whether they acquire secondary meaning or not.
  3. Words which are fanciful or arbitrarily applied to goods and do not have either direct or remote reference to the nature or quality of goods fall within fifth category. The words belonging to categories two, three and five if used in relation to a particular goods can be protected if attempt is made to pass them off by way of deceptive similarity either in look or sound.

 

  1. The last category is of “invented words”. No meaning is attached to these words. These are composed by imagination and are designed for the first time. These words demonstrate or display efforts or skill of imagination, faculty or power of inventing. These words are invented in relation to a particular good. Such words are inherently distinctive and therefore have to be protected in any case. These words are designed or contrived through imagination for the first time wherein ability as well as flight or efforts of imagination is displayed.

 

  1. As regards marks or trademarks falling within categories 2 to 5 namely ‘directly descriptive words having laudatory epithets, ‘directly descriptive words without laudatory epithets, indirectly descriptive words and words not being descriptive have also to be protected as some of them over a period acquire secondary meaning while others due to prior and consistent user denote source and origin and if any attempt is made to either mutilate them or simulate them such an attempt amounts to passing off as it demonstrates element of malafideness for cashing upon the reputation and goodwill of such marks. Likelihood of confusion as to source or origin of a particular goods sold under a particular trade mark broadly amounts to an act of passing off.

Further, in case of ABERCROMBIE & FITCH COMPANY v. HUNTING WORLD, INCORPORATED(537 F.2d 4 (2d Cir. 1976)), it was held as follows:

The cases, and in some instances the Lanham Act, identify four different categories of terms with respect to trademark protection. Arrayed in an ascending order which roughly reflects their eligibility to trademark status and the degree of protection accorded, these classes are (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful. The lines of demarcation, however, are not always bright. Moreover, the difficulties are compounded because a term that is in one category for a particular product may be in quite a different one for another, because a term may shift from one category to another in light of differences in usage through time, because a term may have one meaning to one group of users and a different one to others,8 and because the same term may be put to different uses with respect to a single product. In various ways, all of these complications are involved in the instant case.

LAUDATORY:

Laudatory trademarks are adjective words requiring a showing of secondary meaning to be protectable. However, it has been recognized that many laudatory marks do not actually describe any feature of the product it is used with; rather, they tend to suggest that the product is of high quality or “better” quality than other similar products.

Even registered Laudatory trademarks are generally considered weak and entitled to a narrow scope of protection, even after a showing of secondary meaning. One may be able to register their laudatory mark, but competitors are still likely to be able to use that mark under the various fair use defences. The jural messages are clear and unequivocal. If a party chooses to use a generic, descriptive, laudatory or common word, it must realize that it will not be accorded exclusivity in the use of such words. At the most, it may bring a challenge in the nature of passing off and in such an event the Court would look at the rival labels/packagings/trade dresses in order to determine whether a customer possessing a modicum memory and ordinary intelligence may be so confused as to purchase one product believing it to be the other.

In the decision of the European Court of Justice in Proctor & Gamble  versus Office of Harmonisation in the International Market (OHIM), (2002) RPC 17 (famously known as “Baby Dry Case”, para 42 & 44), it was noted that the proprietary character could be accorded to expressions which are syntactically unusual. Word combinations like ‘BABY-DRY cannot be regarded as exhibiting, as a whole, descriptive character; they are lexical inventions bestowing distinctive power on the mark so formed.

In other words, there must be something unique to the choice of the word; it should neither be descriptive nor laudatory since everyone would be entitled to use such word(s). It would be wise, therefore, for any trader or manufacturer to use a coined or unique word if he expects proprietary right over and a consequent injunction to issue in respect of the user of such trademarks by rivals.

A mark which can indicate the character or quality of the goods cannot be registered unless it is a well-known mark or it has acquired distinctiveness by use. It is not necessary to establish by the Opponent that such descriptive use is in fact is being made by other traders. It is sufficient if the mark has one of the meanings which indicates characteristic of the goods.

While determining the nature of the mark for the purpose of registration or for the purpose of passing-off/infringement, the first inquiry which the court ought to carry out is to determine whether the applicant’s/plaintiff’s mark is invented, arbitrary/suggestive, descriptive or generic. The nature of the mark is always determined with respect to the plaintiff’s/applicant’s goods. For example, if a person applies for a trademark called “Extra Strong”, the Registrar of trade mark has to examine whether the mark is descriptive or laudatory for the goods for which it is applied, i.e., the applicant’s goods. The inquiry does not depend on the person.

CASE LAWS:

Random dictionary states DELUXE (the impugned mark is SUPER DELUX) was originally a French word for luxury. The English meaning of the word is opulent, rich, special, splendid and superior in quality such as DELUX car with rich finishing etc. Phonetically, the pronunciation of DELUX and DELUXE is one and the same. The word SUPER means beyond compare, surpassing all others, superior quality. SUPER DELUX in combination is a laudatory expression eulogizing the quality of the products as something as out of the ordinary. Such words cannot function as a trade mark. Such laudatory expressions are property of all consumers and producers. It is reflective of the superlative qualities of the goods and how it was registered is a matter of debate. Five years user or even 100 years such use cannot make it distinctive. It is incapable of functioning as a trade mark with any length of use. Section 9(1) of the Trade Mark Act, 1999 is, therefore, an absolute bar and the impugned marks needs to be removed on this ground alone.

(BHARATBHAI KHUSHALBHAI PATEL TRADING AS HARIKRISHNA….Petitioner(s) V/S DELUX BEARING LIMITED THE HIGH COURT OF GUJARAT AT AHMEDABAD- SPECIAL CIVIL APPLICATION NO. 12627 of 2012.)

In Mohd.Rafiq & Am. v. Modi Sugar Mills Ltd., Court has held that “the reference to the character and quality” should be direct and plain and not remote and far-fetched. Likewise, the word, which is sought to be construed as laudatory, should have obvious signification of praise and not one out of which an inference of praise has to be spelt out by a laboured process.”

 

Laudatory Word Citation Court decision
SUPER CUP Godfrey Phillips India Ltd. vs Girnar Food & Beverages Pvt. Ltd. on 1 June, 1997 (1997 (2) ARBLR 559 Delhi) The trade mark “Super Cup” was descriptive and laudatory of goods of the plaintiff and the plaintiff was not entitled to an injunction.
SUPER DELUX Bharatbhai Khushalbhai Patel … vs Delux Bearing Ltd. (Gujrat High Court SCA-12627 of 2012) SUPER DELUX in combination is a laudatory expression eulogizing the quality of the products.
ULTRA Indian Shaving Products Ltd. & … vs Gift Pack & Anr. (Delhi High Court, IA 5333/98) The word ‘ULTRA’ is descriptive and no monopolistic rights can be claimed.
SUGAR FREE Cadila Healthcare Ltd. vs Gujarat Co-Operative Milk (MIPR 2007 (3) 497), Delhi High Court “SUGAR FREE” is purely descriptive and laudatory expression.
IMPERIAL Rhizome Distilleries P. Ltd & Ors. vs Pernod Ricard S.A. France & Ors. (FAO(OS) No.484/2008 & CM Nos.17352/08, 3429/09) Delhi High Court. The word “IMPERIAL” is not only in common parlance to be found in every dictionary, but also is laudatory in nature and no exclusive right can be claimed.
HOME SOLUTIONS Asian Paints Limited vs Home Solutions Retail (India) …( 2007 (109) Bom L R 1819) It is generic and publici juris. “HOME SOLUTIONS” is associated with the nature of services that is in common use in India and abroad.
LOSORB and LO-SORB Marico Limited vs Agro Tech Foods Limited (FAO(OS) No. 352/2010) Delhi High Court. This coined words have a clear reference to an indicative of the kind, quality, intended purpose and characteristic etc.
HOLIDAY INN Madhubhan Holiday Inn vs Holiday Inn Inc.( 100 (2002) DLT 306), Delhi High Court. The appellant was actuated by bad faith and dishonest motive by using “Holiday Inn” as a mark.

 

SECONDARY MEANING: LAUDATORY TRADE MARK

A Laudatory trademark that has acquired secondary meaning means that the trademark has become recognized as a brand for specific goods and services from a single source. For establishing that a trademark has acquired secondary meaning, both direct and circumstantial evidence are used to show that the consuming public recognizes the trademark as a brand of a single source. Examples of direct evidence include consumer testimony and consumer surveys. Circumstantial evidence of secondary meaning includes evidence relating to the length, manner, and exclusivity of the trademark’s use, advertising expenditures, and amount of sales and number of customers.

A secondary meaning results when, “in the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself.” (Inwood Laboratories, Inc. v. Ives Laboratories, Inc.: 456 U.S. 844, 72 L. Ed. 2d 606).

In the Diamine Case (Leopold Cassella and Co., (1910) 2 Ch 240, ) Buckley L. J., laid down that some words including laudatory epithets are not capable of being registered but ought to be open to all the world. He found it impossible to say that a laudatory epithet cannot acquire a secondary meaning, but thought it to be incapable of being adapted to distinguish the goods.

 

TRADE DESCRIPTION: DESCRIPTIVE MARK

A descriptive mark when used in relation to goods and services, it is not a registrable trade mark except upon evidence of acquired distinctiveness, which must be established on the date of application for registration by the respondent. If the mark is proposed to be used on the date of application the issue of establishing distinctiveness does not arise.

The section 9 of the Trade Marks Act, 1999 provides for absolute ground for refusal of registration by trade mark authority. The section 9(1) of the Trade Marks Act, 1999 specifically deals with refusal of trade mark registration for word or expression indicating “Trade Description”:

  1. Absolute grounds for refusal of registration.—

(1) The trade marks—

(a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person;

(b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service;

(c) which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade, shall not be registered: Provided that a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark.

However, many “trade description” words and expressions have been registered as trade mark: (1) which was well known trade mark before the registration (2) The owner of trade mark got such registration by using well known acronym of trade description e.g. G.P. (Synthetic Enamel, Silicone Sealant) for General Purpose etc. (3) By combining the “trade description” mark with other trade mark.

Publici juris: Trade Mark

“Publici juris” is a Latin word, and in the legal parlance, means, “of public right.” The term signifies a thing or a right that is open and exercisable by all persons. It designates things that belong to the entire community, and not to any private party.

A mark is said to be common to the trade when (1) it is in common use in the trade, or (2) when it is open to the trade to use.

Any symbol, word or get up commonly used by traders in connection with their trade and in respect of which no particular trader can claim an exclusive right to use may be considered common to that particular trade, or public, juris. Further words, expressions or devices which are descriptive of particular goods are open to use by all persons engaged in the trade. Such matters which are generally of a non distinctive character may or may not be in actual use at any particular time. What is important is that the trading public has a right to use them in connection with their business.

2) The decision on the question of likelihood of deception is to be left to the court.

(3) Nobody can claim exclusive right to use any word, abbreviation, or acronym which has become public juris. In the trade of drugs it is common practice to name a drug, by the name of the organ or ailment which it treats or the main ingredient of the drug. Such organ, ailment or ingredient being public juris or generic cannot be owned by anyone for use as trade mark.

(4) Whether such feature is public juris or geris is a question of fact.

(S.B.L. Ltd. vs Himalaya Drug Co., 1997 IVAD Delhi 757, AIR 1998 Delhi 126)

In conclusion it can be specifically states that laudatory and descriptive trade mark can only be permitted if it has attained secondary meaning by virtue of its continuous use or the proposed trade mark per se do not signify or point towards the product for which it is being proposed.

Rajni Sinha

Advocate Bombay High Court

Limitation in Winding Up Petition: Period and Defense

The legal position of limitation period in winding up petition is no more res Integra. The various High Courts has taken a view that if the debt itself was barred by general law of limitation, then the petition for winding up on account of that debt would be barred. The limitation period is 3 years as provided under the Limitation Act, 1963 for various type of transaction.

Principles on which the court acts in winding up petition are –

  1. The defense of the company is in good faith and one of substance;
  2. The defense is likely to succeed on point of law;
  3. The company adduces prima facie proof of the facts on which the defense depends’

(Madhusudan Gordhandas & Co vs Madhu Woollen Industries Pvt. Ltd, 1971 AIR 2600, 1972 SCR (2) 201)

At the stage of admission in a winding up petition under Section 433 of Companies Act, 1956, before deciding as to whether winding up proceedings should be initiated, the Court has to ascertain whether, inter alia, (1) the claim made by the creditor is barred by limitation or (2) whether it is legally enforceable. If the claim made by the creditor is, on the face of it, not one which can be enforced, it is unnecessary to examine whether the claim is genuine and whether the respondent has a bonafide and reasonable defence on merits.

CONDONATION OF DELAY:

Any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not making the application within such limitation period. (Section 5 of the Limitation Act, 1963).

WINDING UP TIME LIMIT UNDER DISABILITY:

The period of limitation is subject to provisions of extension in case of disability, and the postponement in case of acknowledgment or part payment, of fraud or mistake. Otherwise after lapse of a fixed period of time, as prescribed under the Limitation Act, 1963 an action is not maintainable. The fraud is one of disability under the section 17 of the Limitation Act, 1963.

Fraud: As Disability

“Fraud” as is well known vitiates everything (Fraus omnia vitiate).  Fraud and justice never dwell together.

“Fraud” and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton’s sorcerer, Comus, who exulted in his ability to, ‘wing me into the easy hearted man and trap him into snares’. It has been defined as an act of trickery or deceit. In Webster’s Third New International Dictionary “fraud” in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black’s Legal Dictionary, “fraud” is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury’s Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact.

Smt. Shrisht Dhawan vs M/S. Shaw Brothers 1991(AIR 1992 SC 1555)

Relied in:

Bhaurao Dagdu Paralkar vs State Of Maharashtra And Ors

(Appeal (civil) 5162-5167 of 2005 of Supreme Court)

As per the Commencement notification dated 12.09.2013 in terms of sub-section (3) of section1 of Companies Act, 2013 all the clauses and sections and provisions mentioned therein have commenced on 12.09.2013. The commencement of sections 447 (Sr. No.53 of said notification) has inter alia commenced on 12.09.2013.

The explanation clause to section 447 of Companies Act, 2013 defines ‘Fraud’ as follows:

Explanation.—For the purposes of this section—

 (i) “fraud” in relation to affairs of a company or any body corporate, includes any act, omission, concealment of any fact or abuse of position committed by any person or any other person with the connivance in any manner, with intent to deceive, to gain undue advantage from, or to injure the interests of, the company or its shareholders or its creditors or any other person, whether or not there is any wrongful gain or wrongful loss;

 (ii) “wrongful gain” means the gain by unlawful means of property to which the person gaining is not legally entitled;

(iii) “wrongful loss” means the loss by unlawful means of property to which the person losing is legally entitled.

The section 17 of the Indian Contract Act, 1872 defines fraud as follows:

  1. ‘Fraud’ defined.—‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:

(1). the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2)  the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak or unless his silence, is, in itself, equivalent to speech.

 

The section 17(1)(a) and (b) of the Limitation Act, 1963 reads as follows:

  1. Effect of fraud or mistake.—

(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,—

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the consequences of a mistake; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production: Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which—

……………………..

The point of limitation under Section 17(1)(a) & (b) of the Limitation Act, 1963  prescribes that statutory limitation period in case of fraud shall start when the petitioner got knowledge of the fraudulent reason for non-payment of dues.  In order to invoke the aid of Section 17(1)(b) of the Limitation Act the petitioners must establish that there has been fraud and that by such fraud they have been kept away from knowledge of their right.

Acknowledgement: As Disability:

The section 18 of the Limitation Act, 1963 states that where before the expiry of the prescribed period of limitation in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, “a fresh period of limitation shall be computed from the time when the acknowledgment was so signed”. In Tilak Ram Vs. Nathu, AIR (1967 SC, 935), the Hon’ble Supreme Court deciphered the following requirements to attract Section 18 of the Limitation Act:-

[i] an admission or acknowledgment;

[ii] such acknowledgment must be in respect of a liability regarding a property or right;

[iii] acknowledgment must be made before the expiry of limitation period

[iv] it should be in writing and signed by the party against whom such right is claimed.

Whenever a debtor acknowledges his liability and promises to pay the due amount on a future date and the creditor accepts such offer, the cause of action to take legal action for the recovery of such due amount stands suspended. It is only if the debtor fails to honour his promise to make payment on the consented date that the cause of action will arise afresh or revive in favour of the creditor.

COMMON DEFENSE BY DEFENDANT COMPANY:

  1. Plea of defect in delivered goods and services:

The most prevalent type of plea raised for non-payment of dues by Defendant Company in winding up proceedings is defect in delivered goods and services. Such plea by Defendant Company is without production of any document supporting their contention. This type of argument is generally raised after issuance of statutory notice for demand in terms of the section 434 of the Companies Act, 1956, compounded with the fact that, there is not even a whisper by the Defendant Company after the receipt of the consignment that goods delivered were of inferior quality contrary to the agreed terms and conditions. The fact of the matter is that all these issues are usually raised only after service of the statutory notice for winding up, which is ex-facie a coined excuse of the Defendant Company.

 

In Joti Prasad Bala Prasad Vs. ACT Developers Pvt. Ltd. (1990) 68 CC 601 (Delhi) the defence set up by the respondent company that the goods supplied were defective and not up to the mark; the Court had noted that this defence clearly appears to be an afterthought as the respondent has failed to prove that these defects were ever communicated to the petitioner; the so called defence was accordingly rejected as it was only to ward off the winding up petition.

  1. Defense of Running Account:

In case of a decision of the High Court of Delhi in Rishi Pal Gupta v. S.J. Knitting and Finishing Mills (P) Ltd., ( 1994 (1) Com. L.J. 343 (Delhi)) it was held that in a running account each and every entry in the books of account shall have to be proved. In the said decision, a learned Single Judge of the Delhi High Court has held that if the petition is based on the running account between the parties, and in the absence of positive proof regarding each and every entry in the books of account, the appropriate remedy is not winding up of petition but a suit.

In case of  Ashoka Agencies & Business Forms Ltd. ((1999) Vol.95 Company Cases page 172 ), the petition for winding up was filed against the respondent company on the ground of its failure to pay the balance of Rs.24,32,416.01 on a running account which was acknowledged by the said company by its communication dated 21.9.1992. The company raised defence, that the said communication was not a promise to pay and at the most, it was an acknowledgement of a time-barred debt. The Calcutta High Court on the facts of the said case held that in the light of the petitioner’s affidavit that there was continuous and running transactions; there could be no presumption that the acknowledgement was of a time-barred debt. The High Court of Calcutta citing the said reasons, ordered issuance of advertisement for winding up.

  1. Defense of bonafide Dispute:

Where the debt is bonafide disputed, a Petition for winding up is not an alternative to the Suit to recover the same. The Company court provides the opportunity to the defendant company to put forth their case so as to be convinced about the prima facie case of the winding up. The decisions rendered by the various High Courts has clearly put forth the argument that winding up petition is not a legitimate means of seeking to enforce payment of debt which is bonafide disputed by the company. If there is a bonafide dispute about a debt and the defense is substantial one, the Court would not order winding-up but the defense of the company should be in good faith and one of substance.

 

Rajni Sinha

Adviocate, Bombay High Court

7738080174

Woman as Respondent in DV case

Whether women could be made respondents in the cases under the Protection of Women from Domestic Violence  Act, 2005 (the DV Act) has been settled by the Hon’ble Supreme Court in Sou. Sandhya  Manoj Wankhade  Vs. Manoj  Bhimrao Wankhade and Ors. (CRIMINAL APPEAL NO.271 OF 2011 (Arising out of SLP (Crl.) No.2854 of 2010)). The Supreme Court held following:

12. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.

13. It is true that the expression “female” has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression 12 “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005. 

Earlier the two judge bench of Hon’ble Delhi High Court in  Varsha Kapoor vs Uoi & Ors (WP (Crl.) No. 638 of 2010) had also held that the complaint   is maintainable even against a woman in the situation contained in proviso to Section 2(q) of the DV Act. Similarly other High Court has also held that female can be made as respondent under proviso clause of section 2(q) of the Protection of Women from Domestic Violence  Act, 2005.

However, there is gap in understanding of the judgement of apex court as well as the High Court. Whether all category of female can be made respondent in a DV case ?

The answer lies in the section 2 (q) of the DV, Act.

(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 “aggrieved wife or female in living  relationship in nature of marriage” as complainant can only make female relative of her husband or male partner as respondent. It flows from here that the complainant or aggrieved wife or female  in living relationship must implicate her husband  or male partner as one of respondent, so as to establish herself as aggrieved wife or female in live in relationship. Incidentally the supreme court judgement and High Court judgement cited above has essential ingredient of husband or male partner as one of the respondent.

In view of above, the popular perception that all category of female  can be made respondent is misplaced. Even though both the  judgement do not deal in this aspect, it is sine qua non  that complainant must be  “aggrieved wife or female in living  relationship in nature of marriage” and not all category of “aggrieved person” as defined in section 2(a) of the Protection of Women from Domestic Violence  Act, 2005.

In case of Kusum Lata Sharma vs State & Anr , Crl. M.C. No. 725/2011 & Crl. M.A. No.2797/2011 (Stay), the Hon’ble Delhi High Court has stated following:

9. As a matter of fact, para ‘4(i)’clarifies that even those women who are sisters, widows, mothers, single woman or living with the abuser are entitled to legal protection under the proposed legislation. A mother who is being maltreated and harassed by her son would be an “aggrieved person”. If the said harassment is caused through the female relative of the son i.e. his wife, the said female relative will fall within the ambit of the „respondent‟. This phenomenon of the daughters-in-law harassing their mothers-in-law especially who are dependent is not uncommon in the Indian society. 

In this case also the ‘aggrieved person’ is mother -in-law (Respondent No.-2) and has complained against daughter-in-law (Petitioner) due to property dispute between mother and son. Thus primary case of domestic violence is against son through daughter in law.

There are plethora of cases pending before various competent authority where a female has complained against only another female i.e without implicating her husband. The majority of this complaint is by mother in law against daughter in law only (without implicating her husband) or vice versa. These cases need to be treated as infructuous.

Rajni Sinha (Advocate, Bombay High Court), Mobile No. 7738080174

B-3/13:04, Sector-3, Vashi, Navi Mumbai-400703.