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.