EVIDENCE CANNOT BE TAKEN ON AFFIDAVIT IN MAINTENANCE PROCEEDING OR UNDER DV ACT-MP HIGH COURT

Madhya Pradesh High Court

Rama Prasanna Tiwari vs Smt. Ashima And Anr.

Dated : 24 February, 2005

Equivalent citations: 2005 (2) MPHT 192

Author: K Lahoti

ORDER K.K. Lahoti, J.

1. Petitioner has challenged order dated 30-10-2004 passed by the Family Court, Rewa in Case No. 1/2004 by which the Family Court has rejected the application filed by the petitioner under Section 126 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.PC’).

2. Before the Family Court, an application under Section 125, Cr.PC has been filed by the respondents for maintenance. In the said proceedings, the respondents filed their affidavit in evidence and petitioner has been directed to cross-examine on the affidavit. At this stage, petitioner raised an objection in writing that in the proceedings, evidence can not be taken on affidavit, but the respondent should be examined in the Court in the presence of petitioner or his Counsel. Family Court relying on Section 10(3) of the Family Court Act found that the Family Court is having jurisdiction to adopt its own procedure for recording evidence and relying on provisions of Code of Civil Procedure held that the affidavit can be received in evidence and rejected the application of the petitioner. This order is under challenge in this petition.

3. Learned Counsel for petitioner submits that under Sub-section (2) of Section 10 there is specific provision that subject to the other provisions of this Act and the Rules, the provisions of the Code of Criminal Procedure, 1973 or the Rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before the Family Court. Section 125 falls under Chapter IX of the Cr.PC and the procedure envisaged under Section 126, Cr.PC shall apply in the proceedings and not the provisions of Code of Civil Procedure. It is submitted that order passed by the Family Court be set aside and the matter be remitted back to the Family Court to decide the matter in accordance with law.

4. Learned Counsel appearing for respondents supported the order and submitted that in view of Sub-section (3) of Section 10 of the Family Courts Act, the Family Court has rightly adopted the procedure and there is no fault in the procedure. Petitioner shall get the opportunity to cross-examine on the affidavit. This will save the time of the Trial Court and no prejudice shall be caused to the petitioner.

5. To consider the rival contentions of the parties, Section 10 of the Family Courts Act, 1984 may be seen :

“Section 10. Procedure generally.– (1) Subject to the other provisions of this Act and the Rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.

(2) Subject to the other provisions of this Act and the rules, the provision of the Code of Criminal Procedure, 1973 or the Rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one Party and denied by the other.”

Aforesaid provisions specifically provide that in the proceedings under Chapter IX of Cr.PC before a Family Court, provisions of Code of Criminal Procedure and the rules made thereunder shall apply. This is specific provision under the Act which provides the procedure for the proceedings under Chapter IX of the Cr.PC. Though Family Courts are vested with the powers to decide the matter under Hindu Marriage Act and other Acts, but so far as proceedings under Chapter IX of the Cr.PC are concerned, there is specific provision to adopt same procedure as envisaged in the Cr.PC. For the proceedings under Section 125 of the Cr.PC, procedure is envisaged under Section 126 of the Cr.PC. For ready reference, Section 126, Cr.PC reads as under :–

“Section 126. Procedure.– (1) Proceedings under Section 125 may be taken against any person in any district–

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-case : Provided that 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 and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate m ay think just and proper.

(3) The Court in dealing with applications under Section 125 shall have power to make such order as to costs as may be just.”

Sub-section (2) of Section 126, Cr.PC specifically provides that all evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made. In the present case, respondents have sought an order against the petitioner for their maintenance. In these circumstances, evidence has to be recorded in the presence of the petitioner. Affidavit evidence as has been produced by the respondents can not be said to be evidence recorded in the presence of the petitioner. Provisions of Code of Civil Procedure are not applicable for the proceedings under Chapter IX of the Cr.PC. In the circumstances, Family Court ought to have adopted the procedure envisaged under Section 126 of the Cr.PC. In view of the aforesaid provision, until and unless provision is made, the Family Court has to follow the procedure as envisaged under Section 126, Cr.PC for the proceedings under Chapter IX, Cr.PC. The Family Court has committed an error in directing the parties to file affidavit in evidence and further in permitting the other party to cross-examine on affidavit. According to provisions under Section 126, Cr.PC, evidence has to be recorded in the presence of the person against whom an order of maintenance is proposed to be made. Consequently, impugned order passed by the Family Court, Rewa is, hereby, set aside and the Family Court, Rewa is directed to record the evidence as envisaged under Section 126 of the Cr.PC.

No order as to costs.

C.C. as per rules.

K.K. Lahoti, J.

24 February, 2005


 

Conduct of parties prior to the coming of PWD Act, could be taken into cognizance

In V.D. Bhanot Vs. Savita Bhanot, In the said case, this Court held as follows:

12. We agree with the view expressed by the High Court that in looking into a complaint u/s 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order u/s 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.Continue Reading

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE Act, 2005

 Came into force on 26-10-2006, vide S.O. 1776(E), dated 17th October, 2006, published in the Gazette of India, Extra., Pt. II, Sec. 3(ii), dated 17th October, 2006.

1. Short title, extent and commencement.—

(1) This Act may be called the Protection of Women from Domestic Violence Act, 2005.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date  as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions—In this Act, unless the context otherwise requires,—

(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

(b) “child” means any person below the age of eighteen years and includes any adopted, step or foster child;

(c) “compensation order” means an order granted in terms of section 22;

(d) “custody order” means an order granted in terms of section 21;

(e) “domestic incident report” means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person;

(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

(g) “domestic violence” has the same meaning as assigned to it in section 3;

(h) “dowry” shall have the same meaning as assigned to it in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961);

(i) “Magistrate” means the Judicial Magistrate of the first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place;

(j) “medical facility” means such facility as may be notified by the State Government to be a medical facility for the purposes of this Act;

(k) “monetary relief” means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence;

(l) “notification” means a notification published in the Official Gazette and the expression “notified” shall be construed accordingly;

(m) “prescribed” means prescribed by rules made under this Act;

(n) “Protection Officer” means an officer appointed by the State Government under sub-section (1) of section 8;

(o) “protection order” means an order made in terms of section 18;

(p) “residence order” means an order granted in terms of sub-section (1) of section 19;

(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.

(r) “service provider” means an entity registered under sub-section (1) of section 10;

(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

(t) “shelter home” means any shelter home as may be notified by the State Government to be a shelter home for the purposes of this Act.

3. Definition of domestic violence.

For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.—For the purposes of this section,—

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes—

(a) insults, ridicule, humiliation, name-calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes­—

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

4. Information to Protection Officer and exclusion of liability of informant—

(1) Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer.
(2) No liability, civil or criminal, shall be incurred by any person for giving in good faith of information for the purpose of sub-section (1).

5. Duties of police officers, service providers and Magistrate.—A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person—
(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant:

Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence.

6. Duties of shelter homes.—If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.

7. Duties of medical facilities.—If an aggrieved person or, on her behalf a Protection Officer or a service provider requests the person in charge of a medical facility to provide any medical aid to her, such person in charge of the medical facility shall provide medical aid to the aggrieved person in the medical facility.

8. Appointment of Protection Officers.—

(1) The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act.
(2) The Protection Officers shall as far as possible be women and shall possess such qualifications and experience as may be prescribed.
(3) The terms and conditions of service of the Protection Officer and the other officers subordinate to him shall be such as may be prescribed.

9. Duties and functions of Protection Officers.—

(1) It shall be the duty of the Protection Officer—
(a) to assist the Magistrate in the discharge of his functions under this Act;

(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;

(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;

(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made;

(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;

(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;

(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;

(h) to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);

(i) to perform such other duties as may be prescribed.

(2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.

10. Service providers.—

(1) Subject to such rules as may be made in this behalf, any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or a company registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financial or other assistance shall register itself with the State Government as a service provider for the purposes of this Act.
(2) A service provider registered under sub‑section (1) shall have the power to—
(a) record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place;
(b) get the aggrieved person medically examined and forward a copy of the medical report to the Protection Officer and the police station within the local limits of which the domestic violence took place;
(c) ensure that the aggrieved person is provided shelter in a shelter home, if she so requires and forward a report of the lodging of the aggrieved person in the shelter home to the police station within the local limits of which the domestic violence took place.
(3) No suit, prosecution or other legal proceeding shall lie against any service provider or any member of the service provider who is, or who is deemed to be, acting or purporting to act under this Act, for anything which is in good faith done or intended to be done in the exercise of powers or discharge of functions under this Act towards the prevention of the commission of domestic violence.

11. Duties of Government.—The Central Government and every State Government, shall take all measures to ensure that—

(a) the provisions of this Act are given wide publicity through public media including the television, radio and the print media at regular intervals;

(b) the Central Government and State Government officers including the police officers and the members of the judicial services are given periodic sensitization and awareness training on the issues addressed by this Act;

(c) effective co‑ordination between the services provided by concerned Ministries and Departments dealing with law, home affairs including law and order, health and human resources to address issues of domestic violence is established and periodical review of the same is conducted;

(d) protocols for the various Ministries concerned with the delivery of services to women under this Act including the courts are prepared and put in place.

12. 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 such 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.

13. Service of notice.—
(1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved.

14. Counselling.—
(1) The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with any member of a service provider who possess such qualifications and experience in counselling as may be prescribed.
(2) Where the Magistrate has issued any direction under sub‑section (1), he shall fix the next date of hearing of the case within a period not exceeding two months.

15. Assistance of welfare expert.—In any proceeding under this Act, the Magistrate may secure the services of such person, preferably a woman, whether related to the aggrieved person or not, including a person engaged in promoting family welfare as he thinks fit, for the purpose of assisting him in discharging his functions.
16. Proceedings to be held in camera.—If the Magistrate considers that the circumstances of the case so warrant, and if either party to the proceedings so desires, he may conduct the proceedings under this Act in camera.

17. Right to reside in a shared household.—

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

18. Protection orders—The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from—

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order.

19. Residence orders.—

(1) While disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

20. Monetary reliefs.—

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub‑section (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub‑section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

21. Custody orders.—Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

22. Compensation orders—In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

23. 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.

24. Court to give copies of order free of cost.—The Magistrate shall, in all cases where he has passed any order under this Act, order that a copy of such order, shall be given free of cost, to the parties to the application, the police officer-in‑charge of the police station in the jurisdiction of which the Magistrate has been approached, and any service provider located within the local limits of the jurisdiction of the court and if any service provider has registered a domestic incident report, to that service provider.

25. Duration and alteration of orders.—

(1) A protection order made under section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.

26. Relief in other suits and legal proceedings—

(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub‑section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

27. Jurisdiction.—

(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which—
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made this Act shall be enforceable throughout India.

28. Procedure.—

(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.

29. Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.

30. Protection Officers and members of service providers to be public servants.—The Protection Officers and members of service providers, while acting or purporting to act in pursuance of any of the provisions of this Act or any rules or orders made thereunder shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

31. Penalty for breach of protection order by respondent.—

(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrates may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.

32. Cognizance and proof—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.

(2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused.

33. Penalty for not discharging duty by Protection Officer.—

If any Protection Officer fails or refuses to discharges his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

34. Cognizance of offence committed by Protection Officer.—No prosecution or other legal proceeding shall lie against the Protection Officer unless a complaint is filed with the previous sanction of the State Government or an officer authorised by it in this behalf.

35. Protection of action taken in good faith.—No suit, prosecution or other legal proceeding shall lie against the Protection Officer for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder.

36. Act not in derogation of any other law.—The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.

37. Power of Central Government to make rules.—

(1) The Central Government may, by notification, make rules for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—

(a) the qualifications and experience which a Protection Officer shall possess under sub-section (2) of section 8;
(b) the terms and conditions of service of the Protection Officers and the other officers subordinate to him, under sub‑section (3) of section 8;

(c) the form and manner in which a domestic incident report may be made under clause (b) of sub‑section (1) of section 9;

(d) the form and the manner in which an application for protection order may be made to the Magistrate under clause (c) of sub‑section (1) of section 9;
(e) the form in which a complaint is to be filed under clause (d) of sub­-section (1) of section 9;
(f) the other duties to be performed by the Protection Officer under clause of sub‑section (1) of section 9;
(g) the rules regulating registration of service providers under sub‑section (1) of section 10;

(h) the form in which an application under sub‑section (1) of section 12 seeking reliefs under this Act may be made and the particulars which such application shall contain under sub‑section (3) of that section;

(i) the means of serving notices under sub‑section (1) of section 13;
(j) the form of declaration of service of notice to be made by the Protection Officer under sub‑section (2) of section 13;
(k) the qualifications and experience in counselling which a member of the service provider shall possess under sub‑section (1) of section 14;

(l) the form in which an affidavit may be filed by the aggrieved person under sub‑section (2) of section 23;

(m) any other matter which has to be, or may be, prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.


 

Digest Domestic Violence Act 2005


1. Kunapareddy @Nookala shanka balaji vs Kunapareddy Swarna Kumari & Anr (SC)

Amendment in the complaint was allowed: cognizance not taken, did not change the original nature and summons were yet to be ordered to be issued.

2. Hiralal P. Harsora & Ors. vs Kusum Narotamdas Harsora & Ors. (SC)

Section 2(q) ‘adult male’ struck off before the word person.

3. Krishna Bhatacharjee vs Sarathi Choudhury And Anr (SC)

Retention of Stridhan by husband or any of his family members is a continuing offence.
Claim not barred by limitation that she should have claimed it prior to judicial separation

4. Shalu Ojha versus Prashant Ojha (SC)

Whether the Sessions Court in exercise of its jurisdiction under Section 29 of the Act
has any power to pass interim orders staying the execution of the order appealed before
it is a mater to be examined in an appropriate case. No express grant of power conferred
on the Sessions Court while such power is expressly conferred on the Magistrate under Section 23.

5. Prakash N.D.Saha versus Sou. Meena Prakash D Saha (SC)

S.20,21 Unsuccessful divorce proceedings cannot adversely affect maintainability of application fled under Act.

6. Saraswathy versus Babu (SC)

Compensation and damages for injuries : pay compensation and damages to the
extent of Rs. 5,00,000 in favour of the wife.

7. Indra Sarma versus V.K.V. Sarma (SC)

The Supreme Court para 55 has laid down the tests for judging a live in relationship
following which the expression “ In the nature of marriage” under section 2 (f) of D.V. Act; holding that all live in relationships are not in the nature of marriage and the court shall come to an informed decision on the basis of material available, before passing an order in such cases.

8. V.D.Bhanot versus Savita Bhanot (SC)

Section 2(s) petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26th October, 2006.

9. Inderjit Singh Grewal versus State of Punjab & Anr (SC)

Case u/s 12 DV Act afer obtaining divorce by mutual consent and later challenging the same.

10. D.Velusamy versus D.Patachaiammal (SC)

Section 2(f) domestic relationship

11. Japani Sahoo versus Chandra Shekhar Mohanty (SC) 

Provision of limitation in section 468 Cr.P.C. crucial date for computing limitation is not taking of cognizance by the magistrate but the fling of the complaint or initiation of proceedings

12. S.R. Batra & Anr versus Smt. Taruna Batra (SC)

Shared House-Hold (section 2(s)) & Sections 17 and 19(1) ) of the aforesaid Act,
The exclusive property of mother –in-law cannot be called a `shared household’

13. Chitranjan Pd. Singh versus State of Bihar (Patna High Court)

Court not empowered to decide the possession or title of the shared household or
indirectly allow relief of delivery of possession.

14. Rajesh Kumar Chaudhari versus State of U.P. & Anr (Allahabad High Court)

(On the point of limitation ) whether governed by provision of section 468 Cr.P.C.

15. Harbans Lal Malik versus Payal Malik (Delhi High Court)

The Delhi High Court  held that to constitute a family and domestic relationship under D.V. Act. It is necessary that the persons who constitute domestic relationship must be living together in the same house under one head.
The parents can be included in the family of son only when they are dependent upon the son and/or all living along with son in the same house. In case where the shared household have been at USA, the court in India directed the Brother and Father of the husband living in India to pay Rs. 50 thousand to the complainant wife jointly and severally with the husband, is set aside.

16. Sagar Sudhakar Shengde versus Mrs.Naina Sagar Shengde & Ors (Bombay High Court)

Issuance of NBW against for execution of order of maintenance well within the special procedure u/s 28 (2) D.V. Act 2005 .

17. Kunjathiri versus State of Kerela (Kerala High Court)

No necessity that the woman should be related to the person commiting wrong through
matrimony alone..A proceeding against relative of husband perfectly maintainable without husband being in the party array and without relief being sought against him.

Kunapareddy @ nooKala ShanKa Balaji VerSuS Kunapareddy Swarna Kumari & anr


OBJECTIVE SAMPLE QUESTIONS ON THE PROTECTION OF DOMESTIC VIOLENCE ACT, 2005

Powerful Legal Research enterprise

DV act applies to

  1.  Only the victim of the violence
  2. all women who are subject of 125 Cr.P.C
  3. All women who are not staying with the husband
  4. women who are victim of violence within the family

Aggrieved Person includes

  1. woman having domestic relationship
  2. A woman in live- in relations
  3. a mother whom the son not allowed to live with him
  4.  above all

DV act has retrospective effect

  1. yes
  2. no
  3. Prospective effect
  4. no 1 and three are correct

Monetary relief Can be given

  1. if aggrieved woman suffer loss due to domestic violence
  2. if subject of section 125 of Cr.P.C
  3. If husband failed to maintain the woman
  4. Only no 1 is correct

Who can be respondent

  1.  Only adult male having a domestic relationship
  2. any person with whom domestic relationship could be established
  3. relatives of the husband
  4. no 2 and 3 are correct

A divorced woman can claim in a shared household

  1. true
  2. false

A woman in live in relationship resides with her boyfriend in a rented house and later she discovered that her boyfriend is the owner of a flat in salt lake city of kolkata , whether the claim of the woman for residence in the salt lake flat is competent?

  1. yes
  2. no

The Magistrate can not proceed with the complaint u/s 12 without considering DIR

  1. true
  2. false

A woman can claim u/s 17 a residence order

  1. against the shared  house belongs to husband
  2. against the shared house belongs to father -in -law
  3. against a shared house belongs to the joint family
  4. against the shared house belongs to the relative of the husband
  5. no 1 is correct position of law
  6. no 1 and 3 is the correct position of law

An application u/s 12 of DV  Act should be filed

  1. at any time after the cause of action
  2. within three years  as per article 137 of the limitation act
  3. Any limitation has not ben prescribed in DV Act
  4. no 1  and 3 are  correct
  5. no 2 is correct

An application by wife u/s 12 of DV  Act has been disposed of by the Ld Magistrate and inter alia ordered for residence in the husband’s house in Chetla Kolkata. Now the status of the wife

  1. Like divorcee
  2.  Like judicial separation
  3. Same as a full fledge wife
  4. The husband can ask for casual sex with the wife
  5. the wife can deny sexual intercourse by telling “sexual abuse clause” but allowing a man of her choice
  6. no 3 and 4 are correct
  7. no 5 are correct
  8. no 2 and 5 are correct

“Sexual abuse” defined U/s 3 of DV Act in terms of

  1. Violation of the Dignity of woman
  2. any short of sexual advancement by the husband
  3. Husband wants to see pornography with the wife
  4. Husband asks for sodomy
  5. no 1 and 4 are correct
  6. No 1 , 2 , 3, 4 all are correct

U/s 20 of DV Act the Magistrate is competent

  1. to issue an arrest warrant on failure to pay money
  2. can only direct the employer or debtor to pay the money as ordered
  3. can create a charge on the immovable property of the respondent
  4. all are correct
  5. only no 2 is correct

U/s 23 a magistrate can grant interim Relief

  1. for past, present and future domestic violence
  2. only for past and present domestic violence
  3. which one is correct?

U/S 25 of the DV Act , whether a magistrate is competent to Recall his Order?

  1. yes
  2. no

U/s 28 of the DV Act the procedure shall be adopted by the Ld Magistrate is written in 126 of the CR.P.C

  1. true
  2.  false
  3. The magistrate can overlook Cr.P.C and adopt his own procedure
  4. The magistrate can adopt his own procedure if a thing is not provided in Cr.P.C
  5. Which one is a more appropriate answer?

A magistrate proceed with an Application u/s 12 of DV act without jurisdiction

  1. The respondent shall file a Revision as per Cr.P.C
  2.  The Respondent shall prefer an appeal as per section 29 of the DV Act.

Domestic violence is usually a one time, isolated occurrence
A. True

B. False

In DV Case the burden  lies with the Complainant

  1. true
  2. false

LIVE-IN RELATIONSHIPS IN INDIA [UPDATES]

  1. Kerala HC couple allows Muslim teenage couple to stay together[ Jun 01, 2018]
  2. Adult couple can live together without marriage: Supreme Court[May 06, 2018]
  3. Delhi court frees man of rape, false marriage charges; says woman was mature enough and was in live- in relation with the man[Apr 21, 2017]
  4. Rajasthan human rights panel turns to people for views on live-in relationships[Feb 04, 2017]
  5. Kerala HC verdict on girl’s expulsion polarises debate on live-in relationships[Jul 19, 2016]
  6. Delhi HC acquits man in rape case, says it was live-in relationship[Jun 19, 2016]

Domestic violence at a Glance

Law Library

Children-min

 Meaning of domestic violence and its scope

Domestic violence means any unlawful act, omission or behaviour which results in death or the direct infliction of physical, sexual or mental injury to any complainant by a respondent and includes the following—

(a)   physical abuse;

(b)   sexual abuse;

(c)   emotional, verbal and psychological abuse;

`     (d)   economic abuse;

(e)   intimidation;

(f) harassment;

(g)   stalking;

(h)   malicious damage to property;

(i)   forcible entry into the complainant’s residence where the parties do not share the same residence;

(j)   depriving the complainant of or hindering the complainant from access to or a reasonable share of the use of the facilities associated with the complainant’s place of residence;

(k)   the unreasonable disposal of household effects or other property in which the complainant has an interest;

(l)   abuse derived from the following cultural or customary rites or practices that discriminate against or degrade women—

(i)   forced virginity testing; or

(ii)   female genital mutilation; or

(iii)   pledging of women or girls for purposes of appeasing spirits; or

(iv)   forced marriage; or

(v)   child marriage; or

(vi)   forced wife inheritance; or

             (vii)   sexual intercourse between fathers-in-law and newly married daughters-in-law;

(m)   abuse perpetrated on the complainant by virtue of complainant’s age, or complainant’s physical or mental incapacity;

(n)   abuse perpetrated on the complainant by virtue of complainant’s physical, mental or sensory disability, including a visual, hearing or speech functional disability;

(o)   abuse perpetrated on the complainant by virtue of complainant’s mental illness, arrested or incomplete development of the mind, psychopathic disorder or any other disorder or disability of the mind;

(p) any act of domestic violence described in paragraphs (a), (b), (c), (e), (f), (g), (h) or (i) when it is perpetrated on the person or property of the complainant’s representative.

(2)  For the purposes of—

       (a)   subsection (1)(a), “physical abuse” includes any act or threatened act of physical violence towards a complainant;

       (b)   subsection (1)(b), “sexual abuse” includes any conduct that humiliates, degrades or otherwise violates the sexual integrity of the complainant;

       (c)   subsection (1)(c), “emotional, verbal and psychological abuse” means a pattern of degrading or humiliating conduct towards a complainant, including but not limited to the following—

                  (i)   repeated insults, ridicule or name-calling; or

                 (ii)   repeated threats to cause emotional pain; or

(iii) the repeated exhibition of obsessive possessiveness which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security; or

(iv)   any act, omission or behaviour constituting domestic violence as defined in subsection (1) which, when committed in the presence of minor members of the family, is likely to cause them mental injury;

       (d)   subsection (1)(d), “economic abuse” includes—

                  (i)   the unreasonable deprivation of economic or financial resources to which a complainant is entitled under the law or which the complainant requires out of necessity, including household necessities, medical expenses, school fees, mortgage bond and rent payments, or other like expenses;

                 (ii)   denying the complainant the right to seek employment or engage in any income-generating activity;

(e)   subsection (1)(e), “harassment” means engaging in a pattern of conduct that induces in a complainant the fear of imminent harm or feelings of annoyance and aggravation, including—

                  (i)   watching or loitering outside or near the building or place where the complainant resides, works, carries on business, studies or happens to be;

                 (ii)   repeatedly making or sending or causing another person to repeatedly make or send abusive phone calls or electronically-transmitted messages to the complainant, whether or not conversation ensues;

                (iii)   sending, delivering or causing the delivery of offensive or abusive letters, telegrams, packages, facsimiles, electronic mails or offensive objects to the complainant;

(f)   subsection (1)(f), “intimidation” includes uttering or conveying a threat or causing a complainant to receive a threat which induces a fear of imminent harm in the complainant;

(g)   subsection (1)(g), “stalking” includes following, pursuing, or accosting the complainant.

(3)  For the purposes of  subsection (2)(e) and (f) “imminent harm”, in relation to a complainant, includes harm that the complainant fears to be imminent taking into consideration the history of respondent’s known violent behaviour towards the complainant or other relevant factors.

2. Determination of application if Domestic Violence

(1)  The court shall as soon as possible consider an application made in terms of section 12  and may for such purposes—

       (a)   enquire whether an interim protection order or protection order has at any time been issued to either of the parties;

       (b)   call for such evidence, whether oral or by affidavit, as it considers necessary, including medical evidence:

Provided that any such medical evidence shall be supported by a police report forming the basis on which an examination of a victim of domestic violence was made;

       (c)   examine any witness before the court.

(2) Where the inquiry provided for in subsection (1)(a) reveals that there is an existing interim protection order or protection order the court shall—
(a) consider whether there is any change in circumstances that warrants the granting of a fresh protection order; and
(b) where appropriate, direct the parties to make application under section 12.

3. Issue of interim protection order
(1) Where, upon an application made in terms of section 23 ( or such type of provision), the court is satisfied that prima facie—
(a) the respondent has committed, is committing or is threatening to commit an act of domestic violence; and
(b) it is necessary or desirable to issue immediately an order to protect the complainant from serious or substantial harm or discomfort or inconvenience, whether physical, emotional or economic, which results or may result from such actual or threatened domestic violence;
the court shall issue an interim protection order against the respondent notwithstanding that he or she has not been given notice of the application or has not been before the court.
(2) An interim protection order may, where appropriate, contain any direction, prohibition or award which may be contained in a protection order issued in terms of relevant Provision.
(3) An interim protection order must be served on the respondent in the prescribed manner and must contain a notice calling upon the respondent to show cause, on a date specified in the order, why a protection order should not be issued.
(4) Whenever a court issues an interim protection order the court shall issue a warrant for the arrest of the respondent which shall be attached to the order and which shall be suspended on condition that the respondent complies with the order.
(5) Where upon an application made in terms of section 23 the court is satisfied that, prima facie, the respondent has committed, is committing or threatening to commit an act of domestic violence but that the circumstances do not justify or require the issue of an interim protection order, it may issue a notice calling upon the respondent to show cause why a protection order should not be made.
(6) An interim protection order (together with the suspended warrant of arrest issued in terms of subsection (4)) or a notice issued in terms of subsection (5) shall be served upon the respondent as soon as possible by any police officer:
Provided that, where the complainant so requires, service may be effected, at the complainant’s expense, by the messenger of the court or deputy sheriff, as the case may be.
(7)  The court that issues an interim protection order shall supply the complainant or the complainant’s representative with a certified copy of any interim protection order (together with the suspended warrant of arrest issued in terms of subsection (4)) or notice issued in terms of subsection (5), and, additionally or alternatively, forward the same to the police station nominated by the complainant or the complainant’s representative.
(8) An interim protection order shall remain in force until it is replaced by a protection order or varied or revoked by a competent court.

(9) Any person who fails to comply with the terms and conditions of an interim protection order shall be guilty of an offence and liable to a fine  or imprisonment or to both such fine and such imprisonment

4. Application for revocation, variation or extension of protection orders

(1)  Where there is a change of circumstances, a complainant, complainant’s representative or respondent may apply to the court for the revocation or variation of an interim protection order or a protection order or for the extension of any time limit attached to any direction or award contained therein.

(2)  A complainant’s representative may, with the leave of the court, apply for a revocation, variation or extension of a protection order without the consent of the complainant and the court, in determining whether or not to grant leave, shall have regard to all the circumstances including those referred to in section 7(2).

(3)  A complainant’s representative shall not, under any circumstances, make an application for a revocation, variation or extension of a protection order that may prejudice the complainant

(4) An application under subsection (1) or (2) shall be lodged with the clerk or registrar of the court who shall—
(a) fix a date for the hearing of the application; and
(b) place the application before the court as soon as possible, and in any event not later than forty-eight hours after lodging the application; and
(c) give notice of the date of hearing to other interested parties.
(5) On the date fixed for the hearing of the matter, the court shall consider the application and may for that purpose—
(a) call for such evidence, whether oral or by affidavit, as it considers necessary;
(b) examine any witness before the court.
(6) If the court is satisfied that good cause has been shown it may revoke or vary any interim protection order or protection order or may extend any such order by a period not exceeding twenty-four months.
(7) The  court shall give notice to interested parties of any revocation, variation or extension granted in terms of this section.

5. Filing false complaint and affidavit

 (1)  Any person who makes any false statement in any application or affidavit made in terms of this Act, knowing such statement to be false or not believing it to be true, shall be guilty of an offence and liable to a fine  or imprisonment five years or to both such fine and such imprisonment.

(2)  Where any offence other than one referred to in this Act is committed by a respondent upon a complainant during or in furtherance of the commission any act of domestic violence, the court convicting the respondent therefor shall regard such circumstances as aggravating when assessing the sentence to be imposed.

(3)  For the avoidance of doubt it is declared that the prosecution of a respondent under this Act or any other law shall not prevent the complainant from seeking protection and redress in terms of Domestic violence Act.

 

Status of a woman for determining monetary help 
General violence or abuse
  1. Verbal and emotional violence
  2. Insult – not attractive, not smart, doesn’t respect him/his parents
  3. Accusing/Insulting your parents
  4. Name – calling
  5. Accusations on your character or conduct etc
  6. Insult for not having a male child
  7. Insults for not bringing dowry etc
  8. Preventing you or a child in your custody from attending school, college or any other educational institutions
  9. Forcing you to leave your job
  10. Preventing you from taking up a job
  11. Preventing you or a child in your custody from leaving the house
  12. Preventing you from meeting any person in the normal course of events
  13. Threat to commit suicide

Economic Violence

  1. Not providing you money for maintaining you or your children
  2. Not providing food, clothes, medicines etc, for you or your children
  3. Stopping you from carrying on your employment
  4. Not allowing you to take up on employment or
  5. Taking away your income from your salary, wages etc
  6. Not allowing you to use your salary wages etc
  7. Forcing you out of the house you live in
  8. Stopping you from accessing or using any part of the house
  9. Not allowing use of clothes, articles, or things of general household use,
  10. Not paying rent if staying in a rented accommodation etc.

Physical violence

  1. Slapping
  2. Beating
  3. Hitting
  4. Biting
  5. Kicking
  6. Punching
  7. Pushing
  8. Shoving or
  9. Causing bodily pain or injury in any other manner
  10. Sexual Violence
  11. Forced sexual intercourse
  12. Forced you to look at pornography or any other obscene pictures or material
  13. Any act of sexual nature to abuse humiliates or degrade you, or which is otherwise violating of your dignity or any other unwelcome conduct or sexual nature

Law of England

Protection from Harassment Act 1997

An Act to make provision for protecting persons from harassment and similar conduct.

Serious Crime Act 2015

A new criminal offence of coercive or controlling behaviour against an intimate partner or family member came into force on 29 December 2015. The offence was created, following consultation, through section 76 of the Serious Crime Act 2015. The maximum penalty for someone found guilty is five years’ imprisonment or a fine, or both.

Domestic Violence, Crime and Victims Act 2004

An Act to amend Part 4 of the Family Law Act 1996, the Protection from Harassment Act 1997 and the Protection from Harassment (Northern Ireland) Order 1997; to make provision about homicide; to make common assault an arrestable offence; to make provision for the payment of surcharges by offenders; to make provision about alternative verdicts; to provide for a procedure under which a jury tries only sample counts on an indictment; to make provision about findings of unfitness to plead and about persons found unfit to plead or not guilty by reason of insanity; to make provision about the execution of warrants; to make provision about the enforcement of orders imposed on conviction; to amend section 58 of the Criminal Justice Act 2003 and to amend Part 12 of that Act in relation to intermittent custody; to make provision in relation to victims of offences, witnesses of offences and others affected by offences; and to make provision about the recovery of compensation from offenders.

Family Law Act 1996

An Act to make provision with respect to: divorce and separation; legal aid in connection with mediation in disputes relating to family matters; proceedings in cases where marriages have broken down; rights of occupation of certain domestic premises; prevention of molestation; the inclusion in certain orders under the Children Act 1989 of provisions about the occupation of a dwelling-house; the transfer of tenancies between spouses and persons who have lived together as husband and wife; and for connected purposes.

Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Bill: Briefing for Lords Stages

Establish a Domestic Violence and Abuse Commissioner
• Introduce a statutory definition of domestic violence and abuse
• Create a “consolidated new domestic abuse civil prevention and
protection order regime”
• Create a new aggravated offence if behaviour is directed at a child

Crown Prosecution service Guidelines on Domestic violence

The Government’s definition of domestic violence is:

“any incident of threatening behaviour, violence or abuse [psychological, physical, sexual, financial or emotional] between adults who are or have been intimate partners or family members, regardless of gender or sexuality.”

The Crown Prosecution Service (CPS) is concerned with criminal offences that occur in a domestic context whatever the age of the victims and abusers.

Devider

Introduction to an Ideal Domestic Violence Law

 

Ashok Kumar Vs State of Haryana[ALL SC 2010 JULY]

KEYWORDS:-the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily.

c

DATE:-08-07-2010

AIR 2010 SC 2839 : (2010) CriLJ SC 4402 : JT 2010 (7) SC 460 : (2010) 12 SCC 350 : (2010) 7 SCALE 30

(SUPREME COURT OF INDIA)

Ashok Kumar Appellant
Versus
State of Haryana Respondent

(Before : B. S. Chauhan and Swatanter Kumar, JJ.)

Criminal Appeal No. 1489 of 2004; Decided On: 08-07-2010

Dowry Prohibition Act, 1961—Section 2—Dowry—Meaning—‘Dowry’ means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with marriage, but does not include dower or mehr under Muslim Personal Law—Expression ‘in connection with marriage’ cannot be given a restricted meaning—Definition of ‘dowry’ is not restricted to agreement or demand for payment of dowry before and at time of marriage but even include subsequent demands.

Penal Code, 1860—Section 304B—Dowry death—Expressions ‘soon before her death’ cannot be given a restricted or narrower meaning—They must be understood in their plain language and with reference to their meaning in common parlance—These are provisions relating to human behaviour and cannot be given such a narrower meaning—These are penal provisions and must receive strict construction—Concept of reasonable time is best criteria to be applied for appreciation and examination of such cases.

Penal Code, 1860—Section 304B—Dowry death—Court has to attach specific significance to time of alleged cruelty and harassment to which victim was subjected to and time of her death, as well as whether alleged demand of dowry was in connection with marriage—Once these ingredients are satisfied, it would be called ‘dowry death’ and then, by deemed fiction of law, husband or relatives would be deemed to have committed that offence.

Criminal Procedure Code, 1973—Section 313—Examination of accused—Dual purpose is sought to be achieved when Courts comply with mandatory requirement of recording statement of an accused under this provision—Every material piece of evidence which prosecution proposes to use against accused should be put to him in clear terms and accused should have a fair chance to give his explanation in relation to that evidence as well as his own versions with regard to alleged involvement in crime.

Criminal Procedure Code, 1973—Section 313—Examination of accused—Use of a statement under Section 313 of Cr.P.C. as an evidence is permissible but has its own limitations—Courts may rely on a portion of statement of accused and find him guilty in consideration of other evidence against him led by prosecution—However, such statements should not be considered in isolation but in conjunction with evidence adduced by prosecution.

Criminal Law—Appreciation of evidence—It may not be possible for witnesses to make statements which would be absolute reproduction of their earlier statement or line to line or minute to minute correct reproduction of occurrence/events—Court has to adopt a reasonable and practicable approach and it is only material or serious contradictions/variations which can be of some consequence to create a dent in case of prosecution—Statements of witnesses must be appreciated and dealt with by Court upon their cumulative reading.

Dowry Prohibition Act, 1961—Section 4(2)—Penal Code, 1860—Sections 304B and 34—Criminal Procedure Code, 1973—Sections 174, 313, 142 and 173—Constitution of India, 1950—Article 20.

JUDGMENT

Swatanter Kumar, J—Inter alia but primarily the appellant has raised a question of law in the present appeal. The contention is, that every demand by the husband or his family members cannot be termed as ‘dowry demand’ within the meaning of Section 2 read with Section 4 of the Dowry Prohibition Act, 1961 (for short referred to as ‘the Act’) and consequently, the death of the deceased cannot be termed as a ‘dowry death’ within the ambit and scope of Section 304B of the Indian Penal Code (for short ‘the Code’) and, as such, the conviction and order of sentence passed against the appellant is liable to be set aside.

2. It is a settled canon of criminal jurisprudence that the question of law has to be examined in light of the facts and circumstances of a given case. Thus, reference to the facts giving rise to the present appeal would be necessary.

3. Vipin @ Chanchal @ Rekha, the deceased and Ashok Kumar, the appellant herein, were married on 9th October, 1986. Harbans Lal, the father of the deceased had given sufficient dowry at the time of her marriage according to his means, desire and capacity. But, the appellant and his family members i.e. Mukesh Kumar, the brother of the appellant and Smt. Lajwanti, the mother of the appellant were not satisfied with the dowry. They allegedly used to harass and maltreat the deceased and used to give her beatings. They had demanded a refrigerator, a television etc. One week prior to the date of occurrence, the deceased came to the house of her father at Kaithal and narrated the story. She specifically mentioned that her husband wanted to set up a new business for which he required a sum of ` 5,000/-. The father of the deceased could not manage the same due to which the appellant and his family members particularly, Lajwanti and Mukesh alleged to have burnt the deceased by sprinkling kerosene oil on her as a result of which the deceased died in the hospital at about 4.00 p.m. on 16.05.1988. The father of the deceased received information of the incident from his sister’s son Subhash Chand. Neither the appellant nor his family members informed him about the said demise.

The father of the deceased moved a complaint (Ex. PA) before SI Randhir Mohan who made endorsement (Ex. PA/1) on the basis of which FIR (Ex. PU) was recorded. This was done by SI Randhir Mohan on the basis of ruqa (Ex. PQ) received on 16.05.1988 at about 5.45 p.m. The deceased was brought to the hospital as a burnt case in gasping condition and she expired in casualty. The said officer went to the General Hospital, completed the proceedings under Section 174 of the Criminal Procedure Code (for short ‘the Cr.PC’) and during those proceedings he recorded the statements of Lajwanti, mother in law of the deceased, Ram Lal, father in law of the deceased, Khem Chand, Harbans Lal and one Arjun Dass. Thereafter, the body was sent for postmortem which was handed over to Hanbans Lal, after the post mortem. The complaint was made by Harbans Lal (PW-1) on 17th May, 1988. Site Plan (Ex. PW) as well as the photographs (Ex. P-14 to P-17) and their negatives (Ex. P-18 to P-21) were prepared by Photographer Satish Kumar (PW-10). Ex. P6 was also taken into possession which was half burnt small tin, containing 3 liters of kerosene oil under Ex. PH which was sealed. Certain other goods like hammer (Ex. PK), broken piece of a wooden door (Ex. P-11), half burnt match stick, match box etc (Ex. P-12) were also taken into possession.

4. After completing the investigation of the case and recording the statements of the relevant witnesses, the Investigating Officer submitted the charge sheet in terms of Section 173 of the Cr.PC. The case was committed to the Court of Sessions by the learned CJM vide his order dated 18th October, 1988 which framed the charge under Section 304B of the Code read with Section 34 of the Code. Upon completion of the evidence of prosecution, statement of the accused under Section 313 of Cr.PC was recorded.

5. The learned Trial Court by a detailed judgment dated 13.01.1989/16.01.1989 held all the three accused viz., Ashok Kumar, Mukesh Kumar and Lajwanti, guilty of the offence punishable under Section 304B of the Code and vide order of the same date, sentenced the accused to undergo rigorous imprisonment for a term of 10 years and to pay a fine of ` 1,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for 3 months.

6. Aggrieved by the aforesaid judgment and order of sentence passed by the Trial Court, the accused filed an appeal before the High Court of Punjab and Haryana at Chandigarh, which was partially accepted. Lajwanti and Mukesh, the mother and brother of the accused Ashok Kumar, were acquitted of the offence under Section 304B of the Code while the conviction of Ashok Kumar, accused was upheld and the order of sentence was also maintained by the High Court.

7. Aggrieved by the judgment of the High Court dated 16th December, 2003, Ashok Kumar, the appellant herein, has filed the present appeal. While impugning the judgment under appeal and besides raising the legal contention afore noticed, it is also contended that the Courts below have failed to appreciate the evidence in its correct perspective. The evidence brought on record clearly show that there was no connection between the death of the deceased and the alleged dowry demands or alleged cruelty. Further, it is contended that there was delay in registration of the FIR and no explanation has been rendered whatsoever in that behalf. The occurrence was dated 16.05.1988 at 4.00 p.m. and the FIR was lodged on 17.05.1988, while the deceased died in the hospital on 16.05.1988. Unexplained and inordinate delay in lodging FIR (Ex. PU) creates a serious doubt on the case of the prosecution. There were no specific allegations made in the FIR with regard to dowry and the allegations made, in any case, did not specify the basic ingredients of dowry demand. While criticizing the serious contradiction between the statements of prosecution witnesses, it is also contended that the prosecution has failed to prove its case beyond any reasonable doubt particularly, keeping in view the letters written (Ex. DB to DJ), no offence could be established against the accused and, as such, he is entitled to be acquitted.

8. On the contrary, it is argued on behalf of the State that by virtue of cumulative effect of the statements of Harbans Lal, the father of the deceased (PW-1), Krishna Rani, the mother of the deceased (PW-2) and Subhash Chand (PW-3) read in conjunction with documentary evidence and the statement of the Investigating Officer, the prosecution has been able to prove the charge beyond any reasonable doubt. It is contended that one witness, produced by the accused himself, has fully corroborated the case of the prosecution and, as such, the appellant was rightly convicted and sentenced by the Courts below and the judgment under appeal does not suffer from any legal or other infirmity. According to the prosecution, the appeal should be dismissed.

9. At the very outset, we would proceed to deal with the legal submissions made on behalf of the appellant. But before that, we must notice that the appellant was neither charged with the offence under Section 4 of the Act nor he has been found guilty of the said offence. Thus, the submissions have to be examined only from the point of view that the appellant has been convicted for an offence under Section 304B of the Code and the provisions of the Act are relevant only for examining the merit or otherwise of the contention raised that the expression ‘dowry’, as per explanation to the provisions of Section 304B of the Code, has to be given the same meaning as in Section 2 of the Act.

10. The appellant was charged with an offence under Section 304B of the Code. This penal section clearly spells out the basic ingredients as well as the matters which required to be construed strictly and with significance to the cases where death is caused by burns, bodily injury or the death occurring otherwise than under normal circumstances, in any manner, within 7 years of a marriage. It is the first criteria which the prosecution must prove. Secondly, that ‘soon before her death’ she had been subjected to cruelty or harassment by the husband or any of the relatives of the husband for, or in connection with, any demand for dowry then such a death shall be called ‘dowry death’ and the husband or the relative, as the case may be, will be deemed to have caused such a death. Explanation to this section requires that the expression ‘dowry’ shall have the same meaning as in Section 2 of the Act. The definition of dowry under Section 2 of the Act reads as under:

In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation II.–The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).

11. From the above definition it is clear that, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law. All the expressions used under this Section are of a very wide magnitude. The expressions ‘or any time after marriage’ and ‘in connection with the marriage of the said parties’ were introduced by amending Act 63 of 1984 and Act 43 of 1986 with effect from 02.10.1985 and 19.11.1986 respectively. These amendments appear to have been made with the intention to cover all demands at the time, before and even after the marriage so far they were in connection with the marriage of the said parties. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression ‘in connection with the marriage’ cannot be given a restricted or a narrower meaning. The expression ‘in connection with the marriage’ even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time i.e. at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be ‘in connection with the marriage’ and not so customary that it would not attract, on the face of it, the provisions of this section.

12. At this stage, it will be appropriate to refer to certain examples showing what has and has not been treated by the Courts as ‘dowry’. This Court, in the case of Ram Singh v. State of Haryana, (2008) 4 SCC 70, held that the payments which are customary payments, for example, given at the time of birth of a child or other ceremonies as are prevalent in the society or families to the marriage, would not be covered under the expression ‘dowry’. Again, in the case of Satbir Singh v. State of Punjab, AIR 2001 SC 2828, this Court held that the word ‘dowry’ should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word ‘dowry’. This Court, in the case of Madhu Sudan Malhotra v. K.C. Bhandari, (1988) 1 Suppl. SCC 424, held that furnishing of a list of ornaments and other household articles such as refrigerator, furniture and electrical appliances etc., to the parents or guardians of the bride, at the time of settlement of the marriage, prima facie amounts to demand of dowry within the meaning of Section 2 of the Act. The definition of ‘dowry’ is not restricted to agreement or demand for payment of dowry before and at the time of marriage but even include subsequent demands, was the dictum of this Court in the case of State of Andhra Pradesh v. Raj Gopal Asawa, (2004) 4 SCC 470.

13. The Courts have also taken the view that where the husband had demanded a specific sum from his father-in-law and upon not being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of ‘dowry’ under the Act. Section 4 of the Act is the penal Section and demanding a ‘dowry’, as defined under Section 2 of the Act, is punishable under this section. As already noticed, we need not deliberate on this aspect, as the accused before us has neither been charged nor punished for that offence. We have examined the provisions of Section 2 of the Act in a very limited sphere to deal with the contentions raised in regard to the applicability of the provisions of Section 304B of the Code.

14. We have already referred to the provisions of Section 304B of the Code and the most significant expression used in the Section is ‘soon before her death’. In our view, the expressions ‘soon before her death’ cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.

15. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in the case of Tarsem Singh v. State of Punjab, AIR 2009 SC 1454, held that the legislative object in providing such a radius of time by employing the words ‘soon before her death’ is to emphasize the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her. Similar view was expressed by this Court in the case of Yashoda v. State of Madhya Pradesh, (2004) 3 SCC 98, where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this Section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case.

16. The cruelty and harassment by the husband or any relative could be directly relatable to or in connection with, any demand for dowry. The expression ‘demand for dowry’ will have to be construed ejusdem generis to the word immediately preceding this expression. Similarly, ‘in connection with the marriage’ is an expression which has to be given a wider connotation. It is of some significance that these expressions should be given appropriate meaning to avoid undue harassment or advantage to either of the parties. These are penal provisions but ultimately these are the social legislations, intended to control offences relating to the society as a whole. Dowry is something which existed in our country for a considerable time and the legislature in its wisdom considered it appropriate to enact the law relating to dowry prohibition so as to ensure that any party to the marriage is not harassed or treated with cruelty for satisfaction of demands in consideration and for subsistence of the marriage.

17. The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304B. Where other ingredients of Section 304B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304B, the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304B of the Code.

18. Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304B were not satisfied, rebut the same. While referring to raising of presumption under Section 304B of the Code, this Court, in the case of Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828, stated the following ingredients which should be satisfied:

4. …

1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B, IPC).

2) The woman was subjected to cruelty or harassment by her husband or his relatives.

3) Such cruelty or harassment was for, or in connection with, any demand for dowry.

4) Such cruelty or harassment was soon before her death.

19. In light of the above essential ingredients, for constituting an offence under Section 304B of the Code, the Court has to attach specific significance to the time of alleged cruelty and harassment to which the victim was subjected to and the time of her death, as well as whether the alleged demand of dowry was in connection with the marriage. Once these ingredients are satisfied, it would be called the ‘dowry death’ and then, by deemed fiction of law, the husband or the relatives would be deemed to have committed that offence. The learned Counsel appearing for the appellant, while relying upon the case of Tarsem Singh (supra), contended that the concept of ‘soon before the death’ is not attracted in relation to the alleged harassment or cruelty inflicted upon the deceased, in the facts of the present case. The oral and documentary evidence produced by the prosecution does not suggest and satisfy the essential ingredients of the offence.

20. Similarly, reference was also made to the judgment of this Court in the case of Appasaheb v. State of Maharashtra, (2007) 9 SCC 721, to substantiate the contention that there was no co-relation between giving or taking of the property with the marriage of the parties and, as such, the essential ingredients of Section 2 of the Act were missing. Accordingly, it is argued that there was no demand of dowry by the appellant but it was merely an understanding that for his better business, at best, the amounts could be given voluntarily by the father of the deceased. This fact was further sought to be substantiated while referring to the following abstracts of the judgment in the case of Appasaheb (supra):

6. …The learned trial Judge then sought clarification from the witnesses by putting the following question:

“Question: What do you mean by ‘domestic cause’?

Answer: What I meant was that there was a demand for money for defraying expenses of manure, etc. and that was the cause.”

In the very next paragraph she stated as under:

It is not true to suggest that in my statement before the police I never said that ill-treatment was as a result of demand for money from us and its fulfillment. I cannot assign any reason why police did not write about it in my statement.

xxx xxx xxx xxx

9. Two essential ingredients of Section 304B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to Sub-section (1) of Section 304B IPC says that “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.

xxx xxx xxx xxx

11. In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well-known social custom or practice in India. It is well-settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd. and Chemical and Fibres of India Ltd. v. Union of India, (1997) 2 SCC 664. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.

21. On the contrary, the learned Counsel appearing for the State while relying upon the judgment of this Court in Devi Lal v. State of Rajasthan (2007) 14 SCC 176, argued that the relatives and, particularly the father of the deceased, had specifically mentioned the acts of harassment and, in any case, the statement of the sister of the deceased, who was produced by the accused as his defence witness, itself clinches the entire issue and, therefore, the offence under Section 304B of the Code is made out. It was also contended that an absolute accuracy in the statement of witnesses is not a condition precedent for conviction. He relied upon the following dictum of the Court in Devi Lal’s case (supra):

25. Indisputably, before an accused is found guilty for commission of an offence, the court must arrive at a finding that the ingredients thereof have been established. The statement of a witness for the said purpose must be read in its entirety. It is not necessary for a witness to make a statement in consonance with the wording of the section of a statute. What is needed is to find out as to whether the evidences brought on record satisfy the ingredients thereof.

22. Now we may proceed to discuss the evidence led by the prosecution in the present case. In order to bring the issues raised within a narrow compass we may refer to the statement of the accused made under Section 313, Cr.PC. It is a settled principle of law that dual purpose is sought to be achieved when the Courts comply with the mandatory requirement of recording the statement of an accused under this provision. Firstly, every material piece of evidence which the prosecution proposes to use against the accused should be put to him in clear terms and secondly, the accused should have a fair chance to give his explanation in relation to that evidence as well as his own versions with regard to alleged involvement in the crime. This dual purpose has to be achieved in the interest of the proper administration of criminal justice and in accordance with the provisions of the Cr.P.C. Furthermore, the statement under Section 313 of the Cr.PC can be used by the Court in so far as it corroborates the case of the prosecution. Of course, conviction per se cannot be based upon the statement under Section 313 of the Cr.PC.

23. Let us examine the essential features of this section and the principles of law as enunciated by judgments of this Court, which are the guiding factor for proper application and consequences which shall flow from the provisions of Section 313 of the Cr.PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any, enquiry or trial but still it is not strictly an evidence in the case. The provisions of Section 313(4) of the Cr.PC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in as evidence for or against the accused in any other enquiry or trial for any other offence for which, such answers may tend to show he has committed. In other words, the use of a statement under Section 313 of Cr.PC as an evidence is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Cr.PC as it cannot be regarded as a substantive piece of evidence. In the case of Vijendrajit Ayodhya Prasad Goel v. State of Bombay, AIR 1953 SC 247, the Court held as under:

3. …As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under Section 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused’s statement and excluded the exculpatory part does not seem to be correct. The statement under Section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown.

24. From various answers given by the accused to the Court in his statement recorded under Section 313 of the Cr.P.C., it appears that the death of the deceased is not disputed. The allegation with regard to cruelty was denied. However, besides denying the case of the prosecution, the appellant took the stand that he was falsely implicated in the crime. According to him, the deceased was not happy with the marriage inasmuch as she was in love with some other boy and wanted to marry him which was not permitted by her family and that is why she committed suicide. As would be evident from this admitted position, the death of the deceased by burning is not an issue. The limited question was whether the deceased committed suicide simplicitor for the reasons given by the accused or in the alternative, the prosecution story, that it was a dowry death relatable to the harassment and cruelty inflicted upon her by the accused and his family members, is correct.

25. In the postmortem report it was noticed that the cause of death was shock and dehydration which resulted from extensive burn injuries, which were ante-mortem. The postmortem report (Ex. PO) and the body sketch (Ex. PO/1) clearly demonstrate that practically the entire body had been affected by the burn injuries. The prosecution had examined Harbans Lal, the father of the deceased (PW-1), who stated that immediately after the marriage of deceased with the accused, both were living happily and he had given dowry according to his capacity, but six months after her marriage, her husband and her in-laws started teasing her and giving taunts that she had not brought T.V. and Fridge etc. in the dowry and whenever she used to come to him she mentioned about the same and 20 days prior to her death she had told him that she was being troubled for a sum of ` 5,000/- so that her husband could change to a new business and while consoling her, he told her that he would arrange for the money in some time and took her at the house of her in-laws 7-8 days prior to her death. He also stated that Ashok Kumar, the accused, Lajwanti, the mother-in-law of the deceased and Mukesh, brother-in-law of the deceased, used to give her beatings and he had filed the complaint (Ex.PA). Ex.PB and Ex. PC were the letters which he had given to the police, however, this witness was cross-examined and confronted with Ex. PA, where the allegation about T.V. and Fridge etc. had not been recorded. He voluntarily stated that his son- in-law (the accused) used to deal in vegetables but he wanted to change to Kariyana business, and that is why he wanted a sum of ` 5,000/-. Smt. Krishna Rani, the mother of the deceased, was examined as PW-2. She admitted that a child was born from the marriage. She had also corroborated the statement of PW 1. According to her, Lajwanti told that the deceased had expired. Subhash Chand (PW-3) stated that he had informed Harbans Lal (PW-1) about the death of the deceased due to burn injuries and stated that they (the husband of the deceased and her in-laws) used to ill-treat the deceased and were demanding dowry. However, he did not refer to the demand of ` 5,000/-, as stated by other witnesses. To prove the case Karta Ram, SI (PW-6), Darshan Lal, H.C. (PW-7), Ranbir Mohan, SI (PW-8), the police officials, were also examined by the prosecution apart from Kharati Lal, Kariyana Merchant (PW-4). Dr. Manjula Bansal, Medical Officer, Civil Hospital, Jind (PW-5), was examined to prove the death of the deceased which was caused by burn injuries.

26. The accused had led defence and examined as many as six witnesses. Dr. Bhushan Aggarwal, Incharge Swami Salagram Ashram Charitable Hospital, Jind (DW-1) was examined to primarily show that a child was born on 30th August, 1987. Vijay Laxmi (DW-3) and Lekh Raj (DW-4) were examined to show that there were no dowry demands and Harbans Lal, the father of the deceased had not complained to them about the same at any point of time. But, the most important witness examine by the accused was Vijay Laxmi (DW-3), who is the daughter of Harbans Lal, aged about 14 years. She mentioned that the letter (Ex. DJ) was written by her and she stated that sometimes Ashok Kumar, the accused used to take the deceased to her father’s house. She admitted that two days prior to writing of the letter (Ex. DJ), her sister and sister’s son had come to her house and she stated that whatever is written in the letter is correct. But, in her cross-examination, she stated as under:

Whenever my sister visited our home after marriage, she would complain that her husband and in-laws demanded dowry and also they used to give her beating. She came to our home 20 days prior to her death. At that time she told that her in-laws etc. were demanded a T.V. and ` 5,000/-. My father took her to her husband’s home. My sister was not suffering from my disease. She was having good health.

27. The above statement of this witness (DW-3) in cross- examination, in fact, is clinching evidence and the accused can hardly get out of this statement. The defence would be bound by the statement of the witness, who has been produced by the accused, whatever be its worth. In the present case, DW-3 has clearly stated that there was cruelty and harassment inflicted upon the deceased by her husband and in-laws and also that a sum of ` 5,000/- was demanded. The statement of this witness has to be read in conjunction with the statement of PW-1 to PW-3 to establish the case of the prosecution. There are certain variations or improvements in the statements of PWs but all of them are of minor nature. Even if, for the sake of argument, they are taken to be as some contradictions or variations in substance, they are so insignificant and mild that they would no way be fatal to the case of the prosecution.

28. This Court has to keep in mind the fact that the incident had occurred on 16.05.1988 while the witnesses were examined after some time. Thus, it may not be possible for the witnesses to make statements which would be absolute reproduction of their earlier statement or line to line or minute to minute correct reproduction of the occurrence/events. The Court has to adopt a reasonable and practicable approach and it is only the material or serious contradictions/variations which can be of some consequence to create a dent in the case of the prosecution. Another aspect is that the statements of the witnesses have to be read in their entirety to examine their truthfulness and the veracity or otherwise. It will neither be just nor fair to pick up just a line from the entire statement and appreciate that evidence out of context and without reference to the preceding lines and lines appearing after that particular sentence. It is always better and in the interest of both the parties that the statements of the witnesses are appreciated and dealt with by the Court upon their cumulative reading.

29. As already noticed, the expression ‘soon before her death’ has to be accorded its appropriate meaning in the facts and circumstances of a given case. In the present case, there is definite evidence to show that nearly 20-22 days prior to her death the deceased had come to her parental home and informed her father about the demand of ` 5,000/- and harassment and torture to which she was subjected to by the accused and her in-laws. Her father had consoled her ensuring that he would try to arrange for the same and thereafter took her at her matrimonial home 7-8 days prior to the incident.

30. On face of the aforesaid evidence read in conjunction with the statement of DW-3, we are convinced that ingredients of Section 304B have been satisfied in the present case. It was for the accused to prove his defence. He had taken up the stand that the deceased was in love with another boy and did not want to marry the accused and the marriage of the deceased with the accused being against her wishes was the real cause for her to commit the suicide. However, he has led no evidence in this regard and thus, the Court cannot believe this version put forward by the accused.

31. The argument raised on behalf of the appellant that there was inordinate and unexplained delay in registering the FIR is without any substance. The incident occurred at 4.00 p.m. on 16.05.1988 whereafter the family of the deceased was informed. It is a normal conduct of a normal person that the entire concentration would be upon looking after and saving the deceased rather than to run up to the police or other persons instantaneously. Unfortunately, she died at 9.00 p.m. on the same day and the FIR was lodged on the next day i.e. on 17.05.1988. The purpose of raising such a contention is to show and prove that there was a planned effort on the part of the complainant or the prosecution to falsely implicate the accused. Here, such a situation does not exist. We have already noticed that the complaint (Ex.PA) has been lodged resulting in registration of FIR (Ex. PU) at 7.30 p.m. on 17.05.1988 which obviously means that the complainant had reached the police station even prior thereto. The conduct of the complainant and the witnesses is in line with the behaviour of a person of common prudence and the facts and circumstances of the case clearly demonstrate proper exercise of due diligence on the part of these witnesses. Firstly, the complainant family got the information of the death of the deceased from a relative named Subhash Chand (PW-3) and, thereafter, they must have tried to get the body subjected to the postmortem and have the same released for performing the last rites. The incident occurred on 16.05.1988 and the FIR was registered on 17.05.1988, therefore, there was no abnormal or inordinate delay in lodging the FIR in the facts of this case. Even if we presume the delay, it is not of such a nature that would entail any benefit to the accused. Thus, in our view, there is no inordinate or unexplained delay in lodging the FIR.

32. Having found no infirmity in the concurrent judgments of the learned Sessions Judge and the High Court, we see no reason to interfere in these judgments in law or on facts. Thus, we sustain the conviction of the accused.

33. Coming to the question of quantum of punishment, there are few factors of which we must take note of. It is not even the case of the prosecution that at the time of occurrence, the accused-appellant was present at home and he failed to protect or save the deceased from burning which caused her death. Secondly, the marriage itself has survived for a short period of nearly one and a half year. The cruelty and harassment to the deceased was stated to be caused by Lajwanti, the mother in law of the deceased and Mukesh, the brother in law of the deceased. As already noticed, Lajwanti and Mukesh have been acquitted by the High Court for total lack of evidence. Neither the State nor the complainant has preferred an appeal against judgment of acquittal. The accused is a young person of 48 years. Keeping in view the facts and circumstances of the case and in exercise of powers under Article 142 of the Constitution of India to do complete justice, we are of the considered view that ends of justice would be met by awarding him the minimum sentence provided in law, i.e. 7 years of rigorous imprisonment. Resultantly, the appeal is partially accepted and the accused-appellant is awarded sentence of 7 years rigorous imprisonment for an offence under Section 304B of the Code.

34. The appeal is disposed off in the above terms.

35. The accused is on bail. His bail bonds and surety stand discharged. He be taken into custody to undergo the remaining period of his sentence.

Aviral Bhatla Vs Bhawana Bhatla[ALL SC 2009 FEBRUARY]

KEYWORDS:- DOMESTIC VIOLENCE-SETTLEMENT

c

DATE:-18-02-2009

AIR 2009 SCW 6622 : (2009) 3 SCALE 120 : (2009) 3 SCC 448

(SUPREME COURT OF INDIA)

Aviral Bhatla Appellant
Versus
Bhawana Bhatla Respondent

(Before : Arijit Pasayat And Asok Kumar Ganguly, JJ.)

Transfer Petn. (Civil) Nos. 431 with 1052 of 2008, Decided on : 18-02-2009.

Hindu Marriage Act, 1955—Sections 9 and 13(1)(ia)—Criminal Procedure Code, 1973—Section 125—Protection of Women From Domestic Violence Act, 2005—Section 12—Dowry Prohibition Act, 1961—Section 4.

Counsel for the Parties:

Ajai Bhalla, Abhinav Jain, Shefali Jain, K. D. Prasad, Abha R. Sharma, for Appellants

Pinky Anand, Geeta Luthra, D. N. Goburdhan, Jatin, for Respondent.

Judgment

Arijit Pasayat, J—These transfer petitions have been filed by Aviral Bhatla (hereinafter referred to as the ‘husband’) seeking transfer of several cases pending before learned Chief Judge, Family Court, Gwalior, in proceedings under Section 9 of the Hindu Marriage Act, 1955 (in short the ‘Act’) and Section 125 of the Code of Criminal Procedure, 1973 (in short the ‘Code’). The parties were married on 20-1-2006 at Surajkund, Haryana. It appears that there were some irreconcilable differences between the parties and despite concerted and serious efforts the parties were not able to resolve their disputes and were living separately since 10-10-2007. It appears that after the transfer petitions were filed before this Court, learned counsel for the parties made efforts to bring about a comprehensive settlement of the dispute relating to the matrimonial discord. The Mediation Centre of the Delhi High Court also played a vital role in arriving at a settlement. The details of the litigations between the parties are as follows :

(i) The petitioner has filed a case/petition under Section 13(1)(ia) read with Section (iii) of the Hindu Marriage Act, 1955 titled Aviral Bhatla vs. Bhawna Bhatla bearing case No. 48/07 which is pending in the Court of Mr. Ashok Bhardwaj, ASG Gurgaon, Haryana.

(ii) Respondent has filed a case under The Protection of Women from Domestic Violence Act, 2005 being complaint case No. 3086/1/2007 dated 3-11-2007, under Section 12 of the Domestic Violence Act, which is pending in the Court of Ms. Veena Rani Metropolitan Magistrate at Patiala House, New Delhi.

(iii) Respondent has filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in Gwalior bearing No. 501(a)/07 against the Petitioner pending before Ms. Saroj Maheshwari Jain, Chief Judge, Family Court, Gwalior. The said proceedings have been stayed by this Hon’ble Court in the Transfer Petition No. 1052/2008.

(iv) Respondent has filed a petition u/S. 125 Criminal Procedure Code, 1973 being case No. 435 of 2007 titled as Bhavna Bhatla vs. Aviral Bhatla, pending before Ms. Saroj Maheshwari Jain, Chief Judge, Family Court, Gwalior (MP). The Petitioner has filed a transfer petition for the transfer of this matter bearing Transfer Petition No. 431/2008 and such proceeding has been stayed by this Court in the Transfer Petition No. 431/2008.

(v) Respondent has filed an FIR bearing No. 68/2007 dated 26-11-2007, against Petitioner and his family members under Section 406 r/w 34 and 498A of the IPC read with Section 4 of Dowry Prohibition Act which is pending investigation in Mahila Police Station Padav, Gwalior.

(vi) That petitioner’s father has filed a case bearing Case No. 18664/1/08 titled as M.K. Bhatla vs. Chitvan Sharma and Ors. u/Ss. 420, 465, 468, 471 and 120B pending before the Court of Mr. Sudesh Kumar MM Patiala House, New Delhi.

(vii) The Petitioner has filed two Transfer Petitions bearing TP (C) No. 1052 of 2008 and TP (Crl.) No. 431 of 2008 before this Court inter alia praying transfer of the petition u/S. 9 of the Hindu Marriage Act, 1955 filed by the Respondent pending before the Chief Judge, Family Court at Gwalior and transfer of proceedings under Section 125 Criminal Procedure Code, 1973 filed by Respondent pending before the Chief Judge, Family Court at Gwalior (MP).

The agreed terms of settlement are as follows :

“That the Petitioner agrees and undertakes that he shall pay an amount of ` 12 lacs (Rupees Twelve Lacs) to Respondent in the form of a Pay Order in favour of Ms. Bhavna Bhatla, at the time of making of statements/grant of divorce/quashing of all the criminal and civil proceedings as a full and final settlement of all her claims. Furthermore the petitioner agrees and undertakes to hand over all the household articles as mentioned in settlement agreement dated 14-11-2008 before Ld. Mediator of High Court of Delhi in the presence of both the parties, which are lying at House No. E-8/10, 3rd Floor, Malviya Nagar, New Delhi, within 7 days from the date of signing of the present petition, the same will be collected by the respondent and the expenses for the transportation will be borne by her.

The respondent agrees and undertakes that after the receipt of ` 12 lacs, she and/or any of her family member will have no claim on account of alimony (past, present and future, maintenance, dowry, stridhan or will have no right of claim on any of the property movable or immovable, self acquired, ancestral, joint or HUF of the petitioner or his parents, or his family for any past, present or future claims which have all been settled in terms of the present Consent Terms. Similarly, petitioner and his family members will also have no claim against the respondent and her family members.

That both the parties agree and undertake that all the cases/complaints in any forum or Court which have been filed by the parties and their family members against each other including the ones listed above will be treated as compromised and settled in terms of the present application of divorce by mutual consent under Article 142 of the Constitution of India and this Court may also pass order for quashing of Criminal proceedings as mentioned above.”

2. In view of the factual situation and the settlement arrived at by the parties we direct that a decree of divorce by mutual consent be passed. All the proceedings referred to above which are pending shall stand quashed. We record our appreciation for the effective manner in which the Mediation Centre of Delhi High Court helped the parties to arrive at a settlement.

3. The transfer petitions are accordingly disposed of.

Shri Naorem Shamungou Singh  Vs.  Smt. Moirangthem Guni Devi[ ALL HC MANIPUR 2014 FEBRUARY]

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.