As argued, it is true that the opening words of the Section 18 are that- 'the Magistrate
may, after giving the aggrieved person and 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...'. On
perusal, two things are required before passing an order in favour of the aggrieved person; (1)
opportunity of hearing to the parties, and (2) on being prima facie satisfied with regard to
happening of the domestic violence or likely to happen thereof. For being prima facie satisfied
some material is required. As observed hereinabove and as provided in Rule 6(5) evidence is
required as the same is required for disposal of an application under Section 125 of Cr.P.C. It
cannot be accepted that only upon providing an opportunity of hearing such orders are required
to be passed.
10. In view of all, as discussed herein-above, for disposal of the application filed by the
respondent, adopting the procedure as laid down for disposing of an application under Section
125 of Cr.P.C. was required. Admittedly, the same has not been followed by the learned
Magistrate. Hence, the order deserves to be set aside.
Equivalent Citation: 2009CriLJ3095
IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
Decided On: 31.03.2009
Appellants: Madhusudan Bhardwaj and Ors.
Vs.
Respondent: Mamta Bhardwaj
1. Feeling aggrieved with an order dated 6/9/2007 passed by 4th Additional Sessions Judge,
Gwalior in Criminal Appeal No. 164/07, this revision has been preferred by all the three
petitioners. Vide impugned order, the learned Judge has affirmed an order dated 9/7/2007
passed by Judicial Magistrate First Class, Gwalior in criminal case No. 5279/2007, whereby the
learned Magistrate has partly allowed an application under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act") filed by
respondent-Mamta Bhardwaj, the wife of the petitioner No. 1-Madhusudan Bhardwaj and has-
(1) restrained the petitioners not to create any domestic violence with the respondent, (2)
directed the petitioners to permit the respondent to share her residence in family house or in
alternate, petitioner No. 1 to arrange suitable house of the same status for her, (3) directed the
petitioners to execute their bonds of Rs. 10,000/- (Rs. Ten Thousand Only) each for a condition
not to create domestic violence with the respondent, and (4) directed the petitioners to pay Rs.
10,000/- as compensation to the respondent in lieu of the cruelty played by them on her. Vide
impugned order, the prayer of providing stridhan to the respondent has been negated.
2. The facts of the case, in brief, are that respondent has filed aforesaid application dated
17/5/2007 in the Court of learned Magistrate mentioning therein that she is wife of the
petitioner No. 1. Petitioner No. 2 is her sister-in-law (Nanad) and petitioner No. 3 is her
mother-in-law. Respondent was married with the petitioner No. 1 on 2/6/2006. After marriage,
she started living with the petitioner No. 1 in his family house situated at 3-Saraswati Nagar,
University Road, Thatipur, Gwalior. In the same house petitioner Nos. 2 and 3 are also living.
Petitioner No. 2 is living alongwith her two minor children. Petitioner No. 2 has been deserted
by her husband. On account of her desertion, she is jealous of happy family life of respondent
and petitioner No. 1. After marriage, on demand of Rs. 5,00,000/- and a car, the behaviour of
the petitioners was cruel with the respondent. She was usually beaten by them. When the
cruelty could not be tolerated by the respondent, she lodged a criminal case No. 26/2007
against the petitioners under Section 498-A of IPC. On 1/4/2007 petitioners left the respondent
in the aforesaid family house and left the house after locking the rooms along with jewellery
and valuables on the pretext that they are going to attend some marriage in the relationship.
Thereafter, on 16/4/2007 at 11:00 p.m. petitioner Nos. 1 and 2 along with two unknown
persons came and uttered filthy abuses to the respondent. They gave a threat to the
respondent to leave the house else she will be killed. She informed about it to Superintendent
of Police. On 26/4/2007 at about 6:40 p.m. when respondent was alone at the family house, all
the three petitioners came, started beating to the respondent and forcibly deserted her from
the house. At about 8:00 p.m. on the same day she lodged FIR at University Police Station,
which was registered at Crime No. 57/2007. Again she was beaten by petitioner Nos. 2 and 3 at
the family house. At the time of desertion petitioners kept all stridhan of the respondent
amounting to Rs. 13,74,500/- with them.
3. Vide reply, all the allegations, except the fact of marriage, have been denied by the
petitioner No. 1. It was further mentioned in the reply that false allegations have been made on
behalf of the respondent to cast aspersion on the pious relationship of brother and sister. On
the ground of false allegation petitioners were to be arrested. The relation of wife and husband
has become dead and now there is no possibility of living together. On account of the cruelty
played by the respondent, the petitioner No. 1 has been compelled to live separately from his
family house. The respondent brought antisocial elements at the family residence of the
petitioners for the. purpose of hooliganism. In these circumstances, petitioner No. 1 has been
compelled to file a petition for divorce, which is pending.
4. Shri Prashant Sharma, learned Counsel appearing on behalf of the petitioners, has assailed
the impugned order mainly on the ground, that without providing an opportunity of leading
evidence, merely on the allegations mentioned in the application and hearing the oral
arguments, the impugned order has been passed. In absence of the appropriate opportunity of
hearing including opportunity of leading evidence, the impugned order is bad in law and
deserves to be set aside. In support, he has drawn attention at Section 28 of the Act and Rule 6
(5) of the Protection of Women from Domestic Violence Rules, 2006(hereinafter referred to as
the "Rules") and has submitted that the procedure for disposal of an application under Section
125 of Cr.P.C. ought to have been adopted by the learned Magistrate. Although the learned
Magistrate is at liberty for laying down its own procedure under Sub-section (2) of Section 28 of
the Act for disposal of such application, but not by excluding the procedure as laid down in Subsection
(1) of Section 28 of the Act and Sub-rule (5) of Rule 6 of the Rules, which provides
same procedure as is applicable to applications under Section 125 of Cr.P.C. Applications under
Section 125 of Cr.P.C. cannot be disposed of without providing opportunity of leading evidence.
In support, he has drawn attention at the order of; Allahabad High Court in Het Ram v. Smt.
Ram Kunwari : 1975 CriLJ 656, Karnataka High Court in Sankarasetty
Pompanna v. State of Karnataka and Anr. : 1977 CriLJ 2072, and Gujarat
High Court in Pendiyala Sureshkumar Ramarao v. Sompally Arunbindu and Anr.
: 2005 CriLJ 1455.
5. Shri Vishal Mishra and Smt. Sudha Dwivedi, learned Counsel appearing on behalf of the
respondent have countered the aforementioned submissions of Shri Sharma. While drawing
attention at Sections 18 and 28(2) of the Act and Rule 15 (6) of the Rules, it has been
submitted that protection orders can be passed only after providing an opportunity of being
heard. The Magistrate is at liberty for laying down its own procedure for disposal of such
application. He has also submitted that copy of Adam check report, medical report, news paper
clippings and CD were produced by the respondent along with her application. Those documents
are sufficient evidence on which a Magistrate can become satisfied and issue a protection order.
There is no requirement of providing an opportunity to the parties particularly the petitioners
herein, to lead oral evidence in such cases. Although it is argued on behalf of the respondents
that the CD was watched by the trial Court as well as by the Appellate Court in the open Court
in the present of both the parties, but the same has not been admitted on behalf of the
petitioners and none of the proceedings of both the Courts is indicative of this fact.
6. For appreciating the rival contentions. the procedure as adopted by the learned Magistrate is
required to be seen at a glance, which has been mentioned in brief as under:
17/05/2007: Project Officer (Pariyojana Adhikari) Smt. Anju Shrivastava appeared
along with respondent No. 2 before the learned Magistrate and filed an application
under Section 12 of the Act supported by her affidavit along with one application of
the same nature prepared by Project Officer on the information of the respondent
and some documents, on which case No. 5279/2007 was registered. Notioes to the
petitioners were issued through the same Project Officer for 21/5/2007.
21/5/2007: Shri Prashant Sharma, learned Counsel appeared on behalf of the
petitioners. Petitioners were directed to execute bail bond for their regular presence
in the Court. They sought time to file reply. Time was given and the case was fixed
for 4/6/2007. On the same day an oral prayer was made on behalf of the
respondent to pass an interim order, but the same was negated on the ground that
no application for the purpose has been filed.
4/6/2007: Reply was filed on behalf of the petitioner No. 1. On demand, 2-3 days'
time was given to both the parties for settlement. Case was fixed for 8/6/2007.
21/6/2007: One application for interim relief under Section 23 (ii) dated 4/6/2007
was filed on behalf of the respondent.
22/6/2007: Some documents were filed on behalf of the petitioners. Arguments
heard, which could not be completed.
23/6/2007: Arguments heard. Case fixed for orders on 30/6/2007. On the same
day an application for interim relief filed on 21/6/2007 on behalf of the respondent,
was dismissed as not pressed on behalf of the respondent, as the case was already
fixed for final arguments.
28/6/2007: Before 30/6/2007 an application for early hearing was filed on behalf of
the petitioner No. 1 and filed some documents. Some documents were also filed on
behalf of the respondent along with a CD.
30/6/2007: Final order could not be passed as watching of CD was felt necessary,
hence, case was adjourned for 9/7/2007 for orders.
9/7/2007: Final order was passed.
7. To conclude the controversy between the parties perusal of relevant part of the provisions of
Sections 18 and 28 of the Act and Rule 6(4) & (5) of the Rules along with the relevant part of
the provisions of Section 126 of Cr.P.C. is required. (As provided by Rule 6(5) of the Rules, the
procedure prescribed for disposal of an application under Section 125 of Cr.P.C., shall be
applied for disposing of an application under Section 12 of the Act. On perusal of Section 125 of
Cr.P.C., it provides the provision for maintenance of wives, children and parents, but procedure
for disposal of such application has been given in Section 126 of Cr.P.C. Hence, instead of
Section 125 of Cr.P.C., perusal of the procedure as prescribed in Section 126 of Cr.P.C., for
disposal of an application under Section 125 of Cr.P.C., is required.). The same have been
reproduced hereinbelow:
Section 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)to(g)....
Section 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.
Rule 6. Application to the Magistrate.- (1) Every application of the aggrieved person
under Section 12 shall be in Form II or as nearly as possible thereto.
(2) & (3)....
(4) The affidavit to be filed under Sub-section (2) of Section 23 shall be filed in
Form III.
(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).
Section 126 Cr.P.C. Procedure.-(1) ....
(2) All evidence to 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-cases:
Provided that & (3) ....
(Emphasis supplied)
8-A. It is true that nowhere in the Act any direction with regard to receiving or recording of
evidence of the parties has specifically been mentioned. While inserting the provision with
regard to procedure, Sub-section (1) of Section 28 of the Act a general and wide mandate has
been given that all the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 of the Act
(including Section 12 of the Act also) shall be governed by the provisions of Code of Criminal
Procedure, 1973. The word 'shall' gives a mandate that the procedure as laid down in Cr.P.C.
shall have to be followed. It is also true that in Cr.P.C. for various type of cases different
procedures have been mentioned e.g. in; (1) Chapter VIII, which deals with security for
keeping the peace and for good behaviour, (2) Chapter IX, which deals with order for
maintenance of wives, children and parents, (3) Chapter X, which deals with maintenance of
public order and tranquility, and (4) Chapter XVIII to Chapter XXIX, which provide different
procedures for trial of different offences. But, at the same time the Legislature in its wisdom
has inserted Section 37 in the Act vesting powers with the Central Government to make Rules
for carrying out different provisions of the Act. Sub-section (2) of Section 37 indicates that the
Rule making power of the Central Government is very wide, in which it is provided that- in
particular and without prejudice to the generality of the foregoing powers, such Rules may
provide for all or any of the following matters, namely, (a) to (m)..
8-B. Thus, although in Clause (a) to (I) some subjects have been enumerated on which the
Rules may be framed by the Central Government, but at the same time it is also mentioned
that this illustration of the subjects will not prejudice the generality of the powers given to the
Central Government for framing Rules to carry out the provisions of the Act. This intention of
the Legislature is further visible by perusing Clause (m) which provides that- rules may be
framed on any other matter which has to be, or may be, prescribed. Under Section 37 of the
Act, the Rules are framed which have been published in the Gazette of India. Extra., Pt.II,
Section 3(i), dated 17th October, 2006, vide G.S.R No. 644(E), dated 17th October, 2006.
Thus, these Rules framed by the Central Government are having statutory force and shall
require to be given effect to. Although vide Sub-section (3) of Section 37 of the Act the
parliament can amend or disagree with the Rules, yet unless such amendment or disagreement
comes in existence, the operation of these Rules will remain in force and have to be effective.
Perhaps considering the ambiguous situation, that in Section 28(1) of the Act the Legislature
has given a mandate to follow the procedure as laid down in Cr.P.C., but the same has not been
clarified as to what procedure will be adopted in dealing with the application under Section 12 of
the Act, the Rule 6(5) has been framed. It appears that now the ambiguity has been removed
by Rule 6(5) in further mandatory words by mentioning, that- the application under Section 12
shall be dealt with and order enforced in the same manner as laid down under Section 125 of
Cr.P.C.
8-C. As observed by the three different Benches of High Court in aforementioned orders in the
case of Het Ram (supra), Sankarasetty Pompanna (supra) and Pendiyala Sureshkumar Ramarao
(supra) without providing opportunity of leading evidence such application cannot be disposed
of. Similar is the procedure required to be adopted to deal with an application under Section 12
of the Act to comply the direction under Section 28(1) of the Act read with Rule 6(5) of the
Rules.
8-D. In view of the aforementioned mandate, the learned Magistrate was required to comply
with the provisions of this sub-rule read with Section 28(1) of the Act and was required to
follow the procedure as laid down in the Code of Criminal Procedure for the application under
Section 125 of Cr.P.C. Admittedly, that has not been followed. On this ground, the impugned
order appears erroneous.
9-A. It is also true, that Sub-section (2) of Section 28 provides, that nothing in Sub-section (1)
shall prevent the. Court from laying down its own procedure for disposal of an application under
Section 12 of the Act. By cumulative reading of Section 28 subsections (1) and (2) of the Act
and Rule 6(5) of the Rules, it appears that Sub-section (2) of Section 28 of the Act appears to
have been enacted looking to the peculiar nature of the Act and also the existence of
aforementioned ambiguity with regard to the provision of Section 28(1) of the Act, but now that
ambiguity has been removed by the Central Government under its powers given by Section 37
of the Act.
9-B. Apart from the above, the arguments advanced on behalf of the respondent that merely by
perusing the aforementioned documents viz. Adam check report, medical report, news paper
clippings along with CD and also hearing of the arguments, the final order could have been
passed. It neither appears in accordance with the intention of the Legislature nor practicable for
a judicial forum, because there may be cases in which documents of the rival parties on record
and arguments advanced by the parties in support thereof, may be contradictory on disputed
facts. In such circumstances it may become difficult for a Magistrate to conclude that the stand
of which of the parties is truthful. To overcome such ambiguous situation, the theory of leading
evidence on oath, providing opportunity to cross-examine the witnesses of opposite party, has
been followed since very long time and has also been tested on the touchstone of the principles
of natural justice. On such evidence, the submissions of rival parties can be evaluated by a
Magistrate for coming to a right conclusion. That may help him to conclude the controversy in
justified manner. Without coming to a certain and justified conclusion, passing a protection
order under Section 18 of the Act in favour of the applicant may some times cause injustice to
the opposite party/respondent who may be not at fault, but in reality a victim of the misdeed or
misbehaviour of the applicant. That is not and cannot be the intention, of the Legislature in
enacting the Act. No doubt the intention of the Legislature behind enacting the Act is to provide
more protection to the rights of women guaranteed under the Constitution who are victims of
violence of any kind within the family and for matters connected therewith or incidental
therewith. It is clear that the Act has been enacted for safeguarding the rights of a woman
guaranteed under the Constitution and to provide protection against her victimization from
domestic violence, interpretation of the provisions keeping this pious principle in mind is
required . However, this principle cannot be accepted that in domestic violence always a woman
is a victim or sufferer party. There may be cases where by misusing the sympathetic and
favourable attitude of the society or law framers, male partners may be harassed and thereafter
if Court of law gives a second push to the male partner, it may cause disorder in the society. In
my considered opinion, at the time of administering such laws the Courts are required to be
vigilant enough in deciding the dispute as to which part of the, family is a victim of the domestic
violence. In view of this also, passing orders merely on the basis of the documents, without
their formal proof and upon hearing the arguments has not been permitted by the law and in
judicial process it ought not to be permitted and leaning attitude towards one party of the lis is
required to be avoided.
9-C. The submission on behalf of the respondent, that prescribing procedure by Central
Government through framing Rules is beyond its powers, as in Clause (a) to (m) this subject is
not covered. To some extent it may compel to give a second thought, but on deep consideration
it does not deserve favour. The reasons behind are (1) that, as already mentioned the language
of Section 37 is indicative that the subjects enumerated are not exhaustive but inclusive. These
subjects are without prejudicing the generality of Rule making powers and also under Clause
(m), such a rule could have been framed, (2) that, the rule has been favoured under the given
authority of rule making and unless it is annulled or amended by parliament or declared ultravires
by a competent legal forum, its existence shall be forceful, and (3) that, framing of such a
rule is based on necessity, to give effect to the mandatory provisions of Section 28(1) of the
Act, by which the provisions of the Act can be carried out in a Justified manner. In absence of
this rule there was a felt difficulty, as to in what manner the mandate of Section 28(1) ought to
be complied with. Hence, the submission cannot be sustained.
9-D. As argued, it is true that the opening words of the Section 18 are that- 'the Magistrate
may, after giving the aggrieved person and 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...'. On
perusal, two things are required before passing an order in favour of the aggrieved person; (1)
opportunity of hearing to the parties, and (2) on being prima facie satisfied with regard to
happening of the domestic violence or likely to happen thereof. For being prima facie satisfied
some material is required. As observed hereinabove and as provided in Rule 6(5) evidence is
required as the same is required for disposal of an application under Section 125 of Cr.P.C. It
cannot be accepted that only upon providing an opportunity of hearing such orders are required
to be passed.
10. In view of all, as discussed herein-above, for disposal of the application filed by the
respondent, adopting the procedure as laid down for disposing of an application under Section
125 of Cr.P.C. was required. Admittedly, the same has not been followed by the learned
Magistrate. Hence, the order deserves to be set aside.11. Consequently the revision is allowed. The impugned order is set aside. The case is
remanded back to the Court of Magistrate with a direction to take steps, as observed
hereinabove, without any delay. The learned Magistrate will be at liberty to pass interim orders
in accordance with law if requested and deemed fit by him under Section 23 and other
provisions of the Act.
Print Page
may, after giving the aggrieved person and 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...'. On
perusal, two things are required before passing an order in favour of the aggrieved person; (1)
opportunity of hearing to the parties, and (2) on being prima facie satisfied with regard to
happening of the domestic violence or likely to happen thereof. For being prima facie satisfied
some material is required. As observed hereinabove and as provided in Rule 6(5) evidence is
required as the same is required for disposal of an application under Section 125 of Cr.P.C. It
cannot be accepted that only upon providing an opportunity of hearing such orders are required
to be passed.
10. In view of all, as discussed herein-above, for disposal of the application filed by the
respondent, adopting the procedure as laid down for disposing of an application under Section
125 of Cr.P.C. was required. Admittedly, the same has not been followed by the learned
Magistrate. Hence, the order deserves to be set aside.
Equivalent Citation: 2009CriLJ3095
IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
Decided On: 31.03.2009
Appellants: Madhusudan Bhardwaj and Ors.
Vs.
Respondent: Mamta Bhardwaj
1. Feeling aggrieved with an order dated 6/9/2007 passed by 4th Additional Sessions Judge,
Gwalior in Criminal Appeal No. 164/07, this revision has been preferred by all the three
petitioners. Vide impugned order, the learned Judge has affirmed an order dated 9/7/2007
passed by Judicial Magistrate First Class, Gwalior in criminal case No. 5279/2007, whereby the
learned Magistrate has partly allowed an application under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act") filed by
respondent-Mamta Bhardwaj, the wife of the petitioner No. 1-Madhusudan Bhardwaj and has-
(1) restrained the petitioners not to create any domestic violence with the respondent, (2)
directed the petitioners to permit the respondent to share her residence in family house or in
alternate, petitioner No. 1 to arrange suitable house of the same status for her, (3) directed the
petitioners to execute their bonds of Rs. 10,000/- (Rs. Ten Thousand Only) each for a condition
not to create domestic violence with the respondent, and (4) directed the petitioners to pay Rs.
10,000/- as compensation to the respondent in lieu of the cruelty played by them on her. Vide
impugned order, the prayer of providing stridhan to the respondent has been negated.
2. The facts of the case, in brief, are that respondent has filed aforesaid application dated
17/5/2007 in the Court of learned Magistrate mentioning therein that she is wife of the
petitioner No. 1. Petitioner No. 2 is her sister-in-law (Nanad) and petitioner No. 3 is her
mother-in-law. Respondent was married with the petitioner No. 1 on 2/6/2006. After marriage,
she started living with the petitioner No. 1 in his family house situated at 3-Saraswati Nagar,
University Road, Thatipur, Gwalior. In the same house petitioner Nos. 2 and 3 are also living.
Petitioner No. 2 is living alongwith her two minor children. Petitioner No. 2 has been deserted
by her husband. On account of her desertion, she is jealous of happy family life of respondent
and petitioner No. 1. After marriage, on demand of Rs. 5,00,000/- and a car, the behaviour of
the petitioners was cruel with the respondent. She was usually beaten by them. When the
cruelty could not be tolerated by the respondent, she lodged a criminal case No. 26/2007
against the petitioners under Section 498-A of IPC. On 1/4/2007 petitioners left the respondent
in the aforesaid family house and left the house after locking the rooms along with jewellery
and valuables on the pretext that they are going to attend some marriage in the relationship.
Thereafter, on 16/4/2007 at 11:00 p.m. petitioner Nos. 1 and 2 along with two unknown
persons came and uttered filthy abuses to the respondent. They gave a threat to the
respondent to leave the house else she will be killed. She informed about it to Superintendent
of Police. On 26/4/2007 at about 6:40 p.m. when respondent was alone at the family house, all
the three petitioners came, started beating to the respondent and forcibly deserted her from
the house. At about 8:00 p.m. on the same day she lodged FIR at University Police Station,
which was registered at Crime No. 57/2007. Again she was beaten by petitioner Nos. 2 and 3 at
the family house. At the time of desertion petitioners kept all stridhan of the respondent
amounting to Rs. 13,74,500/- with them.
3. Vide reply, all the allegations, except the fact of marriage, have been denied by the
petitioner No. 1. It was further mentioned in the reply that false allegations have been made on
behalf of the respondent to cast aspersion on the pious relationship of brother and sister. On
the ground of false allegation petitioners were to be arrested. The relation of wife and husband
has become dead and now there is no possibility of living together. On account of the cruelty
played by the respondent, the petitioner No. 1 has been compelled to live separately from his
family house. The respondent brought antisocial elements at the family residence of the
petitioners for the. purpose of hooliganism. In these circumstances, petitioner No. 1 has been
compelled to file a petition for divorce, which is pending.
4. Shri Prashant Sharma, learned Counsel appearing on behalf of the petitioners, has assailed
the impugned order mainly on the ground, that without providing an opportunity of leading
evidence, merely on the allegations mentioned in the application and hearing the oral
arguments, the impugned order has been passed. In absence of the appropriate opportunity of
hearing including opportunity of leading evidence, the impugned order is bad in law and
deserves to be set aside. In support, he has drawn attention at Section 28 of the Act and Rule 6
(5) of the Protection of Women from Domestic Violence Rules, 2006(hereinafter referred to as
the "Rules") and has submitted that the procedure for disposal of an application under Section
125 of Cr.P.C. ought to have been adopted by the learned Magistrate. Although the learned
Magistrate is at liberty for laying down its own procedure under Sub-section (2) of Section 28 of
the Act for disposal of such application, but not by excluding the procedure as laid down in Subsection
(1) of Section 28 of the Act and Sub-rule (5) of Rule 6 of the Rules, which provides
same procedure as is applicable to applications under Section 125 of Cr.P.C. Applications under
Section 125 of Cr.P.C. cannot be disposed of without providing opportunity of leading evidence.
In support, he has drawn attention at the order of; Allahabad High Court in Het Ram v. Smt.
Ram Kunwari : 1975 CriLJ 656, Karnataka High Court in Sankarasetty
Pompanna v. State of Karnataka and Anr. : 1977 CriLJ 2072, and Gujarat
High Court in Pendiyala Sureshkumar Ramarao v. Sompally Arunbindu and Anr.
: 2005 CriLJ 1455.
5. Shri Vishal Mishra and Smt. Sudha Dwivedi, learned Counsel appearing on behalf of the
respondent have countered the aforementioned submissions of Shri Sharma. While drawing
attention at Sections 18 and 28(2) of the Act and Rule 15 (6) of the Rules, it has been
submitted that protection orders can be passed only after providing an opportunity of being
heard. The Magistrate is at liberty for laying down its own procedure for disposal of such
application. He has also submitted that copy of Adam check report, medical report, news paper
clippings and CD were produced by the respondent along with her application. Those documents
are sufficient evidence on which a Magistrate can become satisfied and issue a protection order.
There is no requirement of providing an opportunity to the parties particularly the petitioners
herein, to lead oral evidence in such cases. Although it is argued on behalf of the respondents
that the CD was watched by the trial Court as well as by the Appellate Court in the open Court
in the present of both the parties, but the same has not been admitted on behalf of the
petitioners and none of the proceedings of both the Courts is indicative of this fact.
6. For appreciating the rival contentions. the procedure as adopted by the learned Magistrate is
required to be seen at a glance, which has been mentioned in brief as under:
17/05/2007: Project Officer (Pariyojana Adhikari) Smt. Anju Shrivastava appeared
along with respondent No. 2 before the learned Magistrate and filed an application
under Section 12 of the Act supported by her affidavit along with one application of
the same nature prepared by Project Officer on the information of the respondent
and some documents, on which case No. 5279/2007 was registered. Notioes to the
petitioners were issued through the same Project Officer for 21/5/2007.
21/5/2007: Shri Prashant Sharma, learned Counsel appeared on behalf of the
petitioners. Petitioners were directed to execute bail bond for their regular presence
in the Court. They sought time to file reply. Time was given and the case was fixed
for 4/6/2007. On the same day an oral prayer was made on behalf of the
respondent to pass an interim order, but the same was negated on the ground that
no application for the purpose has been filed.
4/6/2007: Reply was filed on behalf of the petitioner No. 1. On demand, 2-3 days'
time was given to both the parties for settlement. Case was fixed for 8/6/2007.
21/6/2007: One application for interim relief under Section 23 (ii) dated 4/6/2007
was filed on behalf of the respondent.
22/6/2007: Some documents were filed on behalf of the petitioners. Arguments
heard, which could not be completed.
23/6/2007: Arguments heard. Case fixed for orders on 30/6/2007. On the same
day an application for interim relief filed on 21/6/2007 on behalf of the respondent,
was dismissed as not pressed on behalf of the respondent, as the case was already
fixed for final arguments.
28/6/2007: Before 30/6/2007 an application for early hearing was filed on behalf of
the petitioner No. 1 and filed some documents. Some documents were also filed on
behalf of the respondent along with a CD.
30/6/2007: Final order could not be passed as watching of CD was felt necessary,
hence, case was adjourned for 9/7/2007 for orders.
9/7/2007: Final order was passed.
7. To conclude the controversy between the parties perusal of relevant part of the provisions of
Sections 18 and 28 of the Act and Rule 6(4) & (5) of the Rules along with the relevant part of
the provisions of Section 126 of Cr.P.C. is required. (As provided by Rule 6(5) of the Rules, the
procedure prescribed for disposal of an application under Section 125 of Cr.P.C., shall be
applied for disposing of an application under Section 12 of the Act. On perusal of Section 125 of
Cr.P.C., it provides the provision for maintenance of wives, children and parents, but procedure
for disposal of such application has been given in Section 126 of Cr.P.C. Hence, instead of
Section 125 of Cr.P.C., perusal of the procedure as prescribed in Section 126 of Cr.P.C., for
disposal of an application under Section 125 of Cr.P.C., is required.). The same have been
reproduced hereinbelow:
Section 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)to(g)....
Section 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.
Rule 6. Application to the Magistrate.- (1) Every application of the aggrieved person
under Section 12 shall be in Form II or as nearly as possible thereto.
(2) & (3)....
(4) The affidavit to be filed under Sub-section (2) of Section 23 shall be filed in
Form III.
(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).
Section 126 Cr.P.C. Procedure.-(1) ....
(2) All evidence to 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-cases:
Provided that & (3) ....
(Emphasis supplied)
8-A. It is true that nowhere in the Act any direction with regard to receiving or recording of
evidence of the parties has specifically been mentioned. While inserting the provision with
regard to procedure, Sub-section (1) of Section 28 of the Act a general and wide mandate has
been given that all the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 of the Act
(including Section 12 of the Act also) shall be governed by the provisions of Code of Criminal
Procedure, 1973. The word 'shall' gives a mandate that the procedure as laid down in Cr.P.C.
shall have to be followed. It is also true that in Cr.P.C. for various type of cases different
procedures have been mentioned e.g. in; (1) Chapter VIII, which deals with security for
keeping the peace and for good behaviour, (2) Chapter IX, which deals with order for
maintenance of wives, children and parents, (3) Chapter X, which deals with maintenance of
public order and tranquility, and (4) Chapter XVIII to Chapter XXIX, which provide different
procedures for trial of different offences. But, at the same time the Legislature in its wisdom
has inserted Section 37 in the Act vesting powers with the Central Government to make Rules
for carrying out different provisions of the Act. Sub-section (2) of Section 37 indicates that the
Rule making power of the Central Government is very wide, in which it is provided that- in
particular and without prejudice to the generality of the foregoing powers, such Rules may
provide for all or any of the following matters, namely, (a) to (m)..
8-B. Thus, although in Clause (a) to (I) some subjects have been enumerated on which the
Rules may be framed by the Central Government, but at the same time it is also mentioned
that this illustration of the subjects will not prejudice the generality of the powers given to the
Central Government for framing Rules to carry out the provisions of the Act. This intention of
the Legislature is further visible by perusing Clause (m) which provides that- rules may be
framed on any other matter which has to be, or may be, prescribed. Under Section 37 of the
Act, the Rules are framed which have been published in the Gazette of India. Extra., Pt.II,
Section 3(i), dated 17th October, 2006, vide G.S.R No. 644(E), dated 17th October, 2006.
Thus, these Rules framed by the Central Government are having statutory force and shall
require to be given effect to. Although vide Sub-section (3) of Section 37 of the Act the
parliament can amend or disagree with the Rules, yet unless such amendment or disagreement
comes in existence, the operation of these Rules will remain in force and have to be effective.
Perhaps considering the ambiguous situation, that in Section 28(1) of the Act the Legislature
has given a mandate to follow the procedure as laid down in Cr.P.C., but the same has not been
clarified as to what procedure will be adopted in dealing with the application under Section 12 of
the Act, the Rule 6(5) has been framed. It appears that now the ambiguity has been removed
by Rule 6(5) in further mandatory words by mentioning, that- the application under Section 12
shall be dealt with and order enforced in the same manner as laid down under Section 125 of
Cr.P.C.
8-C. As observed by the three different Benches of High Court in aforementioned orders in the
case of Het Ram (supra), Sankarasetty Pompanna (supra) and Pendiyala Sureshkumar Ramarao
(supra) without providing opportunity of leading evidence such application cannot be disposed
of. Similar is the procedure required to be adopted to deal with an application under Section 12
of the Act to comply the direction under Section 28(1) of the Act read with Rule 6(5) of the
Rules.
8-D. In view of the aforementioned mandate, the learned Magistrate was required to comply
with the provisions of this sub-rule read with Section 28(1) of the Act and was required to
follow the procedure as laid down in the Code of Criminal Procedure for the application under
Section 125 of Cr.P.C. Admittedly, that has not been followed. On this ground, the impugned
order appears erroneous.
9-A. It is also true, that Sub-section (2) of Section 28 provides, that nothing in Sub-section (1)
shall prevent the. Court from laying down its own procedure for disposal of an application under
Section 12 of the Act. By cumulative reading of Section 28 subsections (1) and (2) of the Act
and Rule 6(5) of the Rules, it appears that Sub-section (2) of Section 28 of the Act appears to
have been enacted looking to the peculiar nature of the Act and also the existence of
aforementioned ambiguity with regard to the provision of Section 28(1) of the Act, but now that
ambiguity has been removed by the Central Government under its powers given by Section 37
of the Act.
9-B. Apart from the above, the arguments advanced on behalf of the respondent that merely by
perusing the aforementioned documents viz. Adam check report, medical report, news paper
clippings along with CD and also hearing of the arguments, the final order could have been
passed. It neither appears in accordance with the intention of the Legislature nor practicable for
a judicial forum, because there may be cases in which documents of the rival parties on record
and arguments advanced by the parties in support thereof, may be contradictory on disputed
facts. In such circumstances it may become difficult for a Magistrate to conclude that the stand
of which of the parties is truthful. To overcome such ambiguous situation, the theory of leading
evidence on oath, providing opportunity to cross-examine the witnesses of opposite party, has
been followed since very long time and has also been tested on the touchstone of the principles
of natural justice. On such evidence, the submissions of rival parties can be evaluated by a
Magistrate for coming to a right conclusion. That may help him to conclude the controversy in
justified manner. Without coming to a certain and justified conclusion, passing a protection
order under Section 18 of the Act in favour of the applicant may some times cause injustice to
the opposite party/respondent who may be not at fault, but in reality a victim of the misdeed or
misbehaviour of the applicant. That is not and cannot be the intention, of the Legislature in
enacting the Act. No doubt the intention of the Legislature behind enacting the Act is to provide
more protection to the rights of women guaranteed under the Constitution who are victims of
violence of any kind within the family and for matters connected therewith or incidental
therewith. It is clear that the Act has been enacted for safeguarding the rights of a woman
guaranteed under the Constitution and to provide protection against her victimization from
domestic violence, interpretation of the provisions keeping this pious principle in mind is
required . However, this principle cannot be accepted that in domestic violence always a woman
is a victim or sufferer party. There may be cases where by misusing the sympathetic and
favourable attitude of the society or law framers, male partners may be harassed and thereafter
if Court of law gives a second push to the male partner, it may cause disorder in the society. In
my considered opinion, at the time of administering such laws the Courts are required to be
vigilant enough in deciding the dispute as to which part of the, family is a victim of the domestic
violence. In view of this also, passing orders merely on the basis of the documents, without
their formal proof and upon hearing the arguments has not been permitted by the law and in
judicial process it ought not to be permitted and leaning attitude towards one party of the lis is
required to be avoided.
9-C. The submission on behalf of the respondent, that prescribing procedure by Central
Government through framing Rules is beyond its powers, as in Clause (a) to (m) this subject is
not covered. To some extent it may compel to give a second thought, but on deep consideration
it does not deserve favour. The reasons behind are (1) that, as already mentioned the language
of Section 37 is indicative that the subjects enumerated are not exhaustive but inclusive. These
subjects are without prejudicing the generality of Rule making powers and also under Clause
(m), such a rule could have been framed, (2) that, the rule has been favoured under the given
authority of rule making and unless it is annulled or amended by parliament or declared ultravires
by a competent legal forum, its existence shall be forceful, and (3) that, framing of such a
rule is based on necessity, to give effect to the mandatory provisions of Section 28(1) of the
Act, by which the provisions of the Act can be carried out in a Justified manner. In absence of
this rule there was a felt difficulty, as to in what manner the mandate of Section 28(1) ought to
be complied with. Hence, the submission cannot be sustained.
9-D. As argued, it is true that the opening words of the Section 18 are that- 'the Magistrate
may, after giving the aggrieved person and 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...'. On
perusal, two things are required before passing an order in favour of the aggrieved person; (1)
opportunity of hearing to the parties, and (2) on being prima facie satisfied with regard to
happening of the domestic violence or likely to happen thereof. For being prima facie satisfied
some material is required. As observed hereinabove and as provided in Rule 6(5) evidence is
required as the same is required for disposal of an application under Section 125 of Cr.P.C. It
cannot be accepted that only upon providing an opportunity of hearing such orders are required
to be passed.
10. In view of all, as discussed herein-above, for disposal of the application filed by the
respondent, adopting the procedure as laid down for disposing of an application under Section
125 of Cr.P.C. was required. Admittedly, the same has not been followed by the learned
Magistrate. Hence, the order deserves to be set aside.11. Consequently the revision is allowed. The impugned order is set aside. The case is
remanded back to the Court of Magistrate with a direction to take steps, as observed
hereinabove, without any delay. The learned Magistrate will be at liberty to pass interim orders
in accordance with law if requested and deemed fit by him under Section 23 and other
provisions of the Act.
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