KEYWORDS:- PROCEDURE OF HEARING OF AN APPLICATION UNDER DOMESTIC VIOLENCE ACT-
DATE:-07.02.2014
- Rule 6 of the Protection of Women from Domestic Violence Act, 2006 provides that applications under Section 12 of the Act shall be dealt and orders enforced in the manner laid down in Section 125 of the Cr.P.C. 1973.
- even though section 28(1) specifically provides that all proceedings under section 12 shall be governed by the provisions of Cr.P.C., 1973, it is directory in nature and any departure from the provisions of Code of Criminal Procedure will not vitiate a proceeding initiated under section 12. Therefore, this Court will hold that the Courts while dealing with proceedings under section 12 of the Protection of Women from Domestic Violence Act, 2005 shall abide by the provisions of Cr.P.C., 1973 as far as possible. However, any departure from the provisions of Cr.P.C. will not have the effect of vitiating the proceeding in view of the fact that the statute itself specifically provides for the Court to lay down its own procedure for disposal of an application under section 12.
ACT : DOMESTIC VIOLENCE ACT
IN THE HIGH COURT OF MANIPUR
[Cril. Revision Petn. No. 7 of 2013]
Shri Naorem Shamungou Singh Vs. Smt. Moirangthem Guni Devi
Hon’ble Judges/Coram:N. Kotiswar Singh, J.
Citation: AIR2014 25, II(2014)DMC555 , 2014(2)GLT7,2014(3) Crimes 446 manipur
1. Heard Mr. Th. Ibohal, learned counsel for the petitioner and Mr. H. Nabachandra, learned counsel for the respondent. The revision petition has been preferred against the order dated 6.5.2013 passed by the learned Sessions Judge, Manipur East in Cril. Appeal Case No. 8 of 2013 by which the appeal filed by the present petitioner/appellant therein was dismissed.
The present petition raises the issue as to the nature of the proceeding initiated under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
2. As we proceed, we may refer to the bare minimum facts of the case as can be gathered from the pleadings. One Smt. Moirangthem Guni Devi, the respondent herein filed a complaint before the Chief Judicial Magistrate, Imphal East under section 12(1) of the Protection of Women from Domestic Violence Act, 2005 (for short PWDV Act) against the present petitioner seeking reliefs, inter-alia, for
(i) Protection under section 18 PWDV Act,
(ii) Monetary relief under section 20 PWDV Act,
(iii) Compensation order under section 22 PWDV Act,
(iv) Monthly maintenance allowance of Rs. 20,000/-,
(v) Compensation of Rs. 10,00,000/-.
The said complaint was filed stating that the complainant was married to the present petitioner in the year 1994 by performing Loukhatpa Ceremony (a form of marriage locally recognised) and thereafter lived as husband and wife out of which wedlock, one daughter (now 16 years) and a son (now 13 years) were born. While the daughter is with the father, the son is with the complainant. After the said marriage, some time in the year 2008, some differences arose between the wife and the husband. According to the complainant, she was physically and verbally abused since the month of March, 2009. The petitioner took another woman as his wife and started neglecting the complainant because of which the said complaint was filed. The learned Chief Judicial Magistrate, took cognisance of the said complaint under section 200 of the Code of Criminal Procedure in Cril. (C) Case No. 66 of 2013 on 4.12.2012 and issued process under section 204 Cr.P.C. to the present petitioner. As the petitioner did not appear before the Chief Judicial Magistrate, Imphal East, in spite of proper service of summons/notice, the Chief Judicial Magistrate, proceeded with the matter and heard the matter ex-parte on 28.12.2012 and passed the order on 7.01.2013. In the said order, the learned Chief Judicial Magistrate, observed that after proper notice, the respondent (the present petitioner) did not turn up and no reason for failure to appear before the Court was also shown and did not file any written objection to the complaint petition though he had once filed an application for adjournment which was granted but he did not turn up subsequently. Accordingly, Chief Judicial Magistrate proceeded in absence of the petitioner and recorded the statement of 4 witnesses produced by the complainant including herself. The Chief Judicial Magistrate on the basis of evidence so tendered in the Court observed that the complainant and the present petitioner were married in the month of December, 1994 out which wedlock, a son and a daughter were born. The Chief Judicial Magistrate also accepted that the plea of complainant that she was subjected to physical and verbal abuse since the year 2008 and was financially neglected after the petitioner had taken another woman as his wife and started living in another place. The Chief Judicial Magistrate also considered the domestic incident report prepared by the Protection Officer, Imphal East District, which was in favour of the complainant. After considering the aforesaid materials, the Chief Judicial Magistrate, Imphal East was satisfied that the complainant was able to prove the domestic violence perpetrated by the petitioner by causing mental an physical harassment to the complainant including economic deprivation within the ambit of Section 3 of the PWDV Act. Accordingly, Chief Judicial Magistrate, Imphal East directed as follows:-
In the result, the respondent is directed to make payment of Rs. 10,000/- to the complainant and her minor son as their monthly maintenance allowance under section 20(d) of the PWDV Act from the month of December, 2012. It is further ordered that the respondent should make deposit of sum of Rs. 10,000/- before the court on or before the 10th of every calendar month so that the complainant can collect such amount from the court as their maintenance allowance. It is further ordered that the respondent should pay a sum of Rs. 2,00,000/- (Rupees two lacs) as compensation under section 22 of the PWDV Act, 2005 as compensation as the respondent had caused mental and physical harassment to the complainant and also caused damage to the complainant by his act of domestic violence to the complainant. It is further ordered that the respondent should make payment of such compensation amount of Rs. 2,00,000/- within two months from the date of receipt of this order through the Court.
Send a copy of this order to the respondent by registered post. Furnish a copy of this order to the complainant also free of cost. The complainant is to take proper step for sending this order to the respondent within 3 days from today.
3. Being aggrieved by the aforesaid order passed by the Chief Judicial Magistrate, Imphal East on 7.1.2013, the petitioner preferred an appeal before the learned Sessions Judge, Manipur East by filing Cril. Appeal Case No. 8 of 2013 contending that the provisions of the Criminal Procedure Code, 1973, were not followed as required under Section 28(1) of the PWDV Act. It was submitted that no charge was framed against the appellant nor was he given any right to defend as an accused in the proceeding and it was also contended that the learned Trial Court had no power to proceed the case ex-parte. It was also contended that the complainant was already married to another person and as such, the question of domestic relation did not arise between the two.
The learned Sessions Judge, Manipur East after considering the contentions raised by the petitioner as appellant observed as follows:-
As per section 12 quoted above, the first step for initiation of a proceeding before a Magistrate for seeking any relief under the Act is presenting an application by an aggrieved persons or Protection Officer or any other person on behalf of the aggrieved person to a Magistrate seeking reliefs provided under the Act on such form and contain such particulars as may be prescribed or as nearly as possible thereto provided in Form II of the Protection of Women from Domestic Violence Act, 2005 and thereafter, the Court 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 and 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.
On perusal of the Objects and Reasons of this Act and its Preamble, it is crystal clear that this Act i.e. Protection of Women from Domestic Violence Act, 2005 is a special Act enacted for protection of women from domestic violence and special directions alien to the Code of Criminal Procedure, 1973 are given to the Magistrates for fixing the date of hearing not beyond three days from the date of receipt of the application and endeavour to dispose the cases within a period of sixty days.
4. Thus, the learned Sessions Judge, Manipur East held that the proceeding under sections 17 to 22 of the Act are of civil nature and not criminal. It is similar to the proceedings under section 125 of Cr.P.C. and as such, there was no need to examine the complainant on oath under section 200 Cr.P.C. and no formal charge is required to be framed as claimed by the appellant petitioner and observed as follows:-
10. On careful scrutiny of the above referred sections 17 to 22, it is very clear that the reliefs provided therein are of Civil nature and not of any Criminal offence. The power given to the Magistrate for passing ex-parte order is also alien to the procedure of criminal trial. Thus, the procedures to be followed for the proceedings under the Protection of Women from Domestic Violence Act, 2005, is no doubt, quasi-civil nature, like the proceedings under section 125 of the Code of Criminal Procedure. Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2006 also provided as follows:-
6. Application to Magistrate:-
(1) ….
(2)…..
(3)…..
(4)…..
(5) The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974).
In the light of the foregoing observation, I am of the considered view that when an aggrieved person presented an application under section 12 of PWDV Act, 2005 there is no need for examining her under section 200 of Cr.P.C. and in the proceeding no formal charge is required to be framed because the reliefs provided under sections 17 to 22 are of Civil nature and not of Criminal offences. Nevertheless, a breach of protection order or an interim protection order by the respondent shall be an offence as per section 31 of the PWDV Act, 2005 and punishable with imprisonment of either description which may extend to one year or with fine which may extend to twenty thousand rupees or with both. In the proceedings under section 31 the Magistrate has to frame charge and the Magistrate may also frame charges under section 498A or any other provision of the Indian Penal Code or the Dowry Prohibition Act, 1961 in case the facts disclose the commission of any offence under those provisions.
5. As regards the ex-parte proceedings, the learned Sessions Judge, Manipur East after perusal of the record, found that summon was duly served upon the appellant and in fact, he had once appeared and requested the Court for fixing another date on the ground that he had to appear in a Limited Departmental examination. However, he failed to appear in the next dates. It was also observed that the learned Trial Court gave several opportunities to the appellant to appear before the Court and accordingly, held that since the procedures to be followed in an application under section 12 of the PWDV Act is akin to the one under section 125 Cr.P.C., the procedures envisaged under section 273, 274, 303, 313 and 315 of the Cr.P.C. relating to framing of charge, examination of accused, etc. meant for regular criminal trial need not be followed and accordingly, held that no error was committed by the learned Trial Court in proceeding the case in absence of the appellant and passing the impugned order by observing as follows:-
On perusal of the orders dated 5.11.2012 and 21.11.2012 of the Trial Court it is evident that summons was duly served to the present appellant and accordingly, he wrote a letter to the trial Court requesting for fixing another dated on the ground that he has to be appear his Limited Departmental Examination. It is settled principle of law that if a summon of a Court is served to a person, he has to appear before the Court without fail and if he is not able to appear before the Court on the date fixed by the Court due to any unavoidable circumstance, he may engage an advocate and appear before the Court on his behalf. The present appellant is a Government employee serving as Superintendent of Police in the Manipur Police Department and thus, he is supposed to be well versed about the law and its procedure. The Trial Court instead of proceeding the case ex-parte against the present appellant for his failure to appear before the Court after duly served notice to him adjourned the case by giving an opportunity to him to appear before the Court. The Trial Court has also tried to communicate the next date of the case to the present respondent but the respondent neither found in his official address nor appeared before the Court and therefore, the Trial Court proceeded the case with the respondent. The appellant in the grounds of his memo appeal did not mention the reason of his non-appearance before the Court inspite of summons was duly served.
It has already observed in the above para that the procedures to be followed for an application under section 12 of PWDV Act is the procedure followed for an application under section 125 Cr.P.C. and thus, the procedure envisages in Section 273, 274, 303, 313 and 315 of the Code of Criminal Procedure will not be followed.
Situated thus, I come to the conclusion that no error was committed by the Trial Court in proceeding the case without the present appellant and passed the impugned order.
6. Coming to the other contention that the complainant was already married to another person and no domestic relationship existed, the Appellate Court held that the appellant did not take any such plea by appearing before the learned Trial Court and as such, the plea cannot be entertained at the appellate stage and accordingly, rejected the said contention. As regards the contention of the petitioner as appellant that the amount awarded was too severe, the learned Sessions Judge, Manipur East held that considering the admitted position that the appellant was a Superintendent of Police serving in the Police Department, Government of Manipur and as the complainant was living with the minor son without any financial support from anybody, the monthly maintenance allowance directed was held not to be severe. Accordingly, the learned Sessions Judge, Manipur East dismissed the appeal.
Being aggrieved by the aforesaid dismissal order, the present criminal revision has been filed before this Court.
7. The petitioner has taken more or less the same pleas which were raised before the Appellate Court. It has been submitted that the complaint filed by the complainant has to be considered as a summary trial and all the necessary provisions as prescribed under Code of Criminal Procedure for conducting of summary trial ought to have been observed. According to the petitioner, the complainant ought to have been examined on oath before taking cognisance of the complaint under section 200 Cr.P.C. Thus, without examining the complainant on oath, the Magistrate ought not to have taken cognisance and issued the process. It was also contended that charge ought to have been framed against the petitioner being accused of certain offence and as provided under section 251 Cr.P.C. and trial could not have been commenced without framing of charge which has not been done in the present case. It was also submitted that no evidence could have been recorded in absence of the accused by the learned Trial Court as has been done in the present case, in absence of the petitioner. As the proceeding was proceeded ex-parte, the accused petitioner was not defended though he has a right to be defended by a lawyer of his choice. The provisions of section 313 of Cr.P.C. were not invoked which require examination of accused by the learned Trial Court. The accused had not been given an opportunity to produce his witness in his defence, etc. According to the petitioner, section 28(1) of the PWDV Act provides that all procedures under section 12, 18, etc. of PWDV Act shall be governed by the provisions of Code of Criminal Procedure, 1973. However, none of the relevant provisions of the Code of Criminal Procedure was followed by the Magistrate while taking cognisance of the complaint and in the subsequent proceedings and as such, the proceedings before the Chief Judicial Magistrate, Imphal East is liable to be quashed/set aside.
8. In response, Mr. Nabachandra, learned counsel for the respondent has submitted that it is now well settled that the proceedings initiated after application filed under section 12 of the Act is akin to the proceeding under section 125 Cr.P.C. and in respect of any application under section 125Cr.P.C., procedure as provided under section 126 Cr.P.C. is to be followed. Under section 126 Cr.P.C., even though it has been provided that all evidence in such proceeding shall be taken in presence of the person against whom an order of payment of maintenance is proposed to be made, if the Magistrate is satisfied that the person against whom the order of payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause within three months. Therefore, the procedures provided for the proceedings initiated under section 125 Cr.P.C. do not contemplate resorting to the various provisions which have been provided for a summary trial under Code of Criminal Procedure. Therefore, there was no irregularity or illegality in the procedure adopted by the learned Trial Court while passing the impugned order dated 6.5.2013 in an application under section 12 of Protection of Women from Domestic Violence Act, 2005.
9. The main grievance of the petitioner thus, is that learned Chief Judicial Magistrate, Imphal East as well as the learned Sessions Judge, Manipur East failed to appreciate that the application filed under section 12 of the PWDV Act is to be dealt with by adhering to the provisions of Code of Criminal Procedure as provided under section 28(1) of the PWDV Act, failing which such a proceeding cannot be sustained. According to the petitioner, the necessary provisions regarding taking cognisance of complaint under section 200 of Cr.P.C. by recording of statement of the complainant under oath, framing of charges against the accused, examination of witnesses in presence of the accused petitioner, opportunity to the accused to lead evidence, etc. as prescribed under Code of Criminal Procedure for conducting a trial had not been followed and as such, the entire proceeding is liable to be recalled.
Therefore, it is necessary to discuss as to the nature of the proceedings, more particularly, with reference to the proceeding under section 12 of the PWDV Act. Even though it had been mentioned in subsection (1) of Section 28 that proceedings under the aforesaid section shall be governed by the provisions of Code of Criminal Procedure, it has been also mentioned in sub-section (2) that 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. Therefore, it is abundantly clear from sub-section (2) of section 28 that as far as the proceedings under section 12 is concerned, the Court can devise its own procedure for disposal of such an application filed under section 12 of the PWDV Act. In that view of the matter, it is clear that it was not incumbent upon the Magistrate or the Court concerned to strictly adhere to the provisions of the Code of Criminal Procedure and it could make departure from the provisions of Cr.P.C., if the need arise and it could adopt a method, which however, has to be just and fair.
10. Further, Rule 6 of the Protection of Women from Domestic Violence Act, 2006 provides that applications under Section 12 of the Act shall be dealt and orders enforced in the manner laid down in Section 125 of the Cr.P.C. 1973. As regards proceeding under Section 125 of the Cr.P.C., the procedure thereof has been provided under Section 126 of the Cr.P.C. Section 126 of the Cr.P.C. provides that even though evidence in proceedings under Section125 shall be taken in the presence of the person against whom the order for payment of maintenance is proposed to be made. If the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte. Thus, Section 126 Cr.P.C., which governs the proceeding under Section 125 Cr.P.C. provides for ex-parte proceeding if the Magistrate is satisfied that the person concerned is avoiding attendance of the Court.
In the present case, there is a specific finding by the learned Magistrate that the petitioner, in spite of proper service of notice and also being fully aware of the proceedings before the Magistrate did not attend the Court. Hence, the learned Magistrate proceeded against the petitioner ex-parte.
11. In this context, it may be noted that Protection of Women from Domestic Violence Act, 2005 was enacted by the Parliament keeping in view that phenomenon of domestic violence which is widely prevalent has remained largely invisible in the public domain and even though there is a specific offence under section 498-A of the Indian Penal Code dealing with cruelty by husband and relatives, there is no civil law to address this issue. The Parliament keeping in mind the said aspect and to provide the remedy under the Civil law which is intended to protect the women from being victims of domestic violence and to prevent occurrence of domestic violence, enacted the said law as evident from the Statement of Objects and Reasons, which is reproduced here below:-
Statement of Objects and Reasons.-
Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a women is subjected to cruelty by her husband or his relatives, it is an offence under section 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.
3. It is, therefore, proposed to enact law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.
The Statement of Objects and Reasons indicates that various issues arising out of and relating to domestic violence are sought to be dealt with by enacting the said law and by providing remedies which are normally available under the civil law. Therefore, even if Section 28(1) of the Act provides that the proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of Code of Criminal Procedure, 1973, in view of different remedies which one can obtained under Section 12 of the Act, some of which are of civil in nature, the Act itself has provided under sub-section (2) of Section 28 that nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12. Therefore, the Legislature has introduced an element of flexibility in the procedure to be adopted while dealing with application under section 12 of the Act. This is, perhaps, because of the intention of the Legislature in seeking to provide civil remedies also under the said Act. Code of Criminal Procedure had been enacted primarily to provide a fair procedure to deal with the offences punishable under various penal Acts and is geared to find out the guilt or innocence of the person, who has been charged of any offence. Protection of Women from Domestic Violence Act, 2005 has been enacted primarily to give relief to the victims of domestic violence many of which are of civil nature and as such, while devising and granting appropriate relief under the Act, the provisions of Code of Criminal Procedure which is fashioned for criminal trial may not be appropriate in all cases. Many of the reliefs contemplated under the Act are of civil nature which cannot normally granted by the Criminal Court, but only by a Civil Court. That is the reason why the Legislature incorporated sub-section (2) in Section 28 permitting the Court to lay down its own procedure for disposal of an application under section 12 of the Act.
12. Thus, it is clear that even though section 28(1) specifically provides that all proceedings under section 12 shall be governed by the provisions of Cr.P.C., 1973, it is directory in nature and any departure from the provisions of Code of Criminal Procedure will not vitiate a proceeding initiated under section 12. Therefore, this Court will hold that the Courts while dealing with proceedings under section 12 of the Protection of Women from Domestic Violence Act, 2005 shall abide by the provisions of Cr.P.C., 1973 as far as possible. However, any departure from the provisions of Cr.P.C. will not have the effect of vitiating the proceeding in view of the fact that the statute itself specifically provides for the Court to lay down its own procedure for disposal of an application under section 12. Having heard the counsel for the parties and considered the materials on record, this Court is not able to discern any material irregularity or illegality in the proceedings before the Court below. The petitioner has failed to make out any case to interfere with the impugned judgment and order of the learned Sessions Judge, Manipur East.
In the result, the present petition is dismissed as devoid of merit.
