Section 28 (2) of the PWDV, Act is an enabling provision and has granted wide powers to the Ld. MM for laying down its own procedure for disposal of any application under section 121 or under sub-section (2) of section 23. Section 36 of this Act has laid down that the provisions of this Act are in addition to, and not in derogation of the provisions of any other law, for the time being in force. Even the rule of service of the summons under section 7/11/ 13 of the Act is subject to the provisions under Order V of the Civil Procedure Code, 1908, or the provisions under Chapter VI of the Code of Criminal Procedure, 1973. The consequences of non-appearance after service under Order V of the CPC, or Chapter VI of the Cr.PC shall follow, which may be the passing of an ex-parte order/judgment. Even the enforcement of interim order is also according to the provisions of section 125 / 126 of CrPC, as prescribed by Rule 6 under PWDV Rules, 2006 that applications under section 12 shall be dealt with and orders passed thereon shall be executable in the same manner as laid down by section 125 of CrPC. All the above-said sections made it clear that the Ld. Trial Court was not precluded from taking aid of the other provisions under CrPC or CPC to interpret the provisions of this Act.
Section 28 (2) of PWDV, Act came into interpretation before The Hon’ble High Court of Uttrakhand in a case titled Nirmal Jeet Kaur Versus State of Uttrakhand [(2012) SCC Online Uttrakhand 3356], in which, it was observed that the proceeding under this Act is not trial of an offence and rather proceedings are quasi civil in nature like section 125 of Cr.PC. The court has the power to set aside an ex-parte order2 Under Rule 7 Order IX and ex-parte judgment Under Rule 13 Order IX CPC on sufficient cause and similarly, in section 126 (2), an ex-parte order may be recalled by the Ld. MM, so it cannot be said that this power cannot be exercised by Ld. MM under section 28 (2) for setting aside of any order under section 28 (2) or otherwise. This interpretation of the section made it clear that the provisions of CPC may be made applicable to the proceedings under this Act.
Section 28 (2) of DV Act again came into interpretation before the Hon’ble High Court of Delhi while dealing with the review power of the court in the case titled Himani Maini v. Chirag Maini, 2018 SCC OnLine Del 10566 and the relevant observation is as under:
She consequently was advised to approach the Court of Metropolitan Magistrate again to pursue her remedies under the Protection of Women from Domestic Violence Act, 2005. In the above chronology of events, her grievances against the respondent in the period after the settlement will have to be seen, examined, construed and adjudicated upon in the light of the past alleged conduct. There is undoubtedly a continuity of events involved. Since the law, by virtue of Section 28(2), permitted the Metropolitan Magistrate to lay down “own procedure”3, the view taken by the said court by order dated 10.04.2015 leading to the revival of the proceedings in the Domestic Violence case earlier filed cannot be faulted. The opinion on the basis of which the revisional court set the said order at naught seems to be hyper-technical and, therefore, liable to be set aside.
- Section 12 in The Protection of Women from Domestic Violence Act, 2005
Application to Magistrate.—
(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.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after s uch set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing. ↩︎
- Power to grant interim and ex parte orders—
(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent. ↩︎
- Section 28 in The Protection of Women from Domestic Violence Act, 2005
(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23. ↩︎