Given that the legislation must further justice and not
frustrate it and seeing that even if all particulars are not
mentioned the Court can call for further particulars stated in the
form set out in rules framed under the Act and accepting that as
discretionary, it follows as a matter of corollary that if the
application is not in the prescribed form and the required details
are not furnished as per Form II it should not deter any any
Magistrate or Court from granting any relief. The respondent
who is represented in the application would be entitled to bring
on record facts as are deemed essential and which are not
brought on record by the applicant. The Court would certainly
consider the merits of the case when all such facts are brought
on record by both the parties. If a form is filed, but contains
certain blanks required in the prescribed form, also the merits
would be considered.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CRIMINAL JURISDICTION
WRIT PETITION NO. 2738 OF 2011
Chandrakant Nivruti Wagh & Ors.
Vs.
Manisha C. Wagh & Anr.
CORAM : MRS. ROSHAN DALVI, J.
DATED : 4TH APRIL, 2013
Citation; 2013 ALL M R(cri)4265
Rule. Made returnable forthwith.
1. The petitioner has applied for quashing of the order dated
21st October, 2010 passed by the learned 5th Judicial Magistrate,
First Class, Kalyan on 21st October, 2010 and the dismissal of the
appeal therefrom on 8th August, 2011 by the additional Sessions
Judge, Kalyan.
2. The respondent No.1 who is the wife of petitioner No.1
filed an application under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 (DV Act) for various
reliefs under Section 17 to 22 of the Act and an application
under Section 23 of the Act for interim and exparte order. The
petitioners made an application for dismissal of her application
on the ground that an application under the DV Act cannot be
made against any adult female person under Section 2(q) of the
Act which defines the term “respondent”.
3. The petitioners also made the application that the
application under the DV Act was not in a prescribed form which
was mandatory under Section 12 as well as under Section 23 of
the Act and that the applicant has not furnished details of the
previous litigation required under form II.
4. The DV Act is a beneficial legislation. It is meant for
protection of violated women. It is upon the acceptance that
such women may not have the necessary legal advice.
5. It has been held by this Court that the DV Act being a
beneficial and protective legislation for violated women, its
provisions cannot be construed strictly. Hence in the case of
Vishal Damodar Patil Vs. Vishakha Patil 2009 Cr.L.J. 107 it
has been held that an interim relief can be claimed without a
separate interim application moved. Similarly in the case of
Raosaheb Pandharinath Kamble Vs. Shaila Raosaheb Kamble
2010 Cr.L.J. 3596 it has been held that the proceedings under
Act are quasi civil nature. Amendments thereto also can be
allowed.
6. This has been followed in the case of Nandkishor s/o.
Damodar Vinchurkar Vs. Kavita W/o. Nandkishor Vinchurkar
in a Criminal Application No.2970 of 2008 dated 5th August,
2009 in which a report of the Protection Officer is held not to
be mandatorily required to grant interim relief. It is observed:
“If the trial Court, who is required to pass an
interim order, keeps on waiting to get the report of the
Protection Officer or Service Provider, it would entail
the delay and the idea of considering the case of a
needy person at the interim stage will be actually
defeated.
7. Consequently it is held that when the necessary material is
placed before the Court in an application and the reply the
provisions relating to calling for report need not be adhered.
8. Hence it is held in the case of Karimkhan Vs. State of
Maharashtra 2011 Cr.L.J. 4793 that the interpretation of such
a protective and beneficial legislation should be to further its
objects and not to be bogged down by technicalities.
9. Consequently in the case of Manoj Harikisanji Changani
Vs. Prema Shrinivas Changani in Criminal Application No.
564 of 2011 decided on 11th January, 2012 it has been held
that the Protection Officer’s report is not mandatory and it is
discretionary for the Court to call for it. Since the format of the
report is devised keeping in view the exploratory aspects and
approach of the Act. The Protection Officer has to explore and
retrieve the information on various aspects included in the
format and inquire or investigate into the illtreatment meted out
to the applicant. Various other connected matters would surface
and the Protection Officer would bring the reality on record. It
is also observed that there are various violated women who
would claim protection under the Act. They would not be
equipped to draft an application showing all the particulars.
Some others could have obtained legal advice and would be able
to do so on their own. The domestic violence report would be
required in the former cases and not in the latter. It is observed
in para 17 that:
“reading the provision as regard scaling the report of
Protection Officer as a mandatory rule and equipping a
respondent with a device of getting the application of a
woman dismissed on the ground that Domestic Violence
Report is not called would be at treatment harsher than the
ailment”.
10. Given that the legislation must further justice and not
frustrate it and seeing that even if all particulars are not
mentioned the Court can call for further particulars stated in the
form set out in rules framed under the Act and accepting that as
discretionary, it follows as a matter of corollary that if the
application is not in the prescribed form and the required details
are not furnished as per Form II it should not deter any
Magistrate or Court from granting any relief. The respondent
who is represented in the application would be entitled to bring
on record facts as are deemed essential and which are not
brought on record by the applicant. The Court would certainly
consider the merits of the case when all such facts are brought
on record by both the parties. If a form is filed, but contains
certain blanks required in the prescribed form, also the merits
would be considered.
11. The relevant aspects of the form would be considered on
merits upon hearing the respondents/opponents in each
application. The contention of the petitioners that those are
mandatory and that any application made not upon the
prescribed forms are liable to be rejected is incorrect. The
beneficial legislation is required to be interpreted to enhance
justice to women and not to frustrate it.
12. It may be mentioned that under Section 12(3), which was
relied upon by the petitioners themselves, it is clear that the
particulars to be mentioned to be in the form are as prescribed
or “as nearly as possible thereto”. The further Section 28(2) of
the DV Act allows the Magistrate to lay down his own procedure
for disposal of an application under Section 12 of the Act.
Section 28 (2) runs thus:
“28. Procedure: –
(1) ….
(2) Nothing in subsection (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.”
13. This would include acceptance of a form adopted by a
violated woman who applies under the DV Act.
14. In the Judgment in the case of Sagar Sudhakar Shendge
Vs. Naina Sagar Shendge in Criminal Writ Petition No. 236 of
2013 dated 4th April, 2013 it has been held that the Magistrate
is free to follow his own procedure as allowed under Section
28(2) of the D.V. Act by which he can issue NBW for obtaining
compliance of his own order by arresting the defaulting party in
not obeying the order of maintenance even if it is not in
compliance with Section 125(3) of the Cr.P.C as required under
Section 28(1) of the D.V. Act as the spirit of the beneficial
legislation made for protection of women has to be maintained.
15. Hence the technical aspects insisted upon by the
petitioners in their application made as opponents in the learned
Magistrate's Court, therefore, are required to be rejected and are
rightly rejected by the learned Magistrate.
16. The aspect of law with regard to who the respondent
should be, has been considered by the learned Magistrate upon
the case law cited before me.
17. The learned Magistrate has considered the case of
Archana Hemant Naik Vs. Urmilaben I. Naik 2010 Cri. L.J.
751 of this Court directly on the issue whether a respondent to
an application could be a male relative and holding that under
Section 2(q) of the DV Act relied upon by the petitioners herein
(the opponents in that application) it has been held that it is
clear from the proviso to Section 2(q) that the relatives referred
in the proviso would not be only a male relatives. Section 2(q)
including Act runs thus:
Section 2(q) of the Act, the term respondent has been
defined as under:
“(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”.
18. The proviso does not specify a male relative. Hence
female relatives cannot be exempted therefrom. Besides, the
proviso to Section 19 specifies an order under 19(1)(b) alone
not to be passed against a woman. This also implies that an
order under all other such clauses of Section 19 being (a), ( c ),
(d), (e) and (f) can be passed against a woman also. Hence
those women would have to be made respondents.
19. The learned Magistrate has also considered the judgment
relied upon by the petitioners herein in the case of Tehmina
Qureshi Vs. Shazia Qureshi 2010 All MR (Cri.) Journal 97
Madhya Pradesh High Court and correctly distinguished it on
the ground that that was in the case of Muslim parties where the
concept of joint hindu family and coparcenary parties would
not apply in the relationship.
20. Consequently learned Magistrate has been within the
specific framework of the law. The order of the learned
Magistrate cannot be faulted. The appeal of the petitioners is,
therefore, rightly dismissed considering the case of Archana
Naik (Supra).
21. Consequently, the petition is seen to be wholly
misconceived. It is dismissed.
22. The learned Magistrate shall proceed to decide the
application on merits against all the opponents/respondents
before him/her.
(MRS. ROSHAN DALVI, J.)
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