The second contention that has been raised is violation of Section 14 of the Act, which provides that 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 counseling with any member of a service provider who possess such qualifications and experience in counseling as may be prescribed. Sub- Section (2) provides that 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. From the expression "Magistrate may" it appears that the counseling in this case is not compulsory and only when the Magistrate comes to the conclusion that the matter can be settled by conciliation, he may ask for counseling of the parties. Thus, the Addl. Sessions Judge has erred in holding that there has been an indefensible violation of Section 14 of the Act.
Orissa High Court
Namita Mohanty vs Pankaja Kumar Mohanty And Others ... on 10 January, 2014
CRIMINAL REVISION NO. 89 OF 2013 THE HONOURABLE MR. JUSTICE S. K. MISHRA
Date of Judgment - 10.01.2014
Citation; AIR 2014(NOC) 503 Orissa
2. The aggrieved persons filed an application before the learned J.M.F.C., Jaipatna inter alia alleging that in the year 2007 she and respondent no.1, present opposite party no.1, got married as per the Hindu rites and customs. They led a happy conjugal life for a period of one year and out of the wedlock, a girl child was born on 22.03.2008 and her name is Tamana. After delivery of the child, the aggrieved persons stayed in the paternal house at Jaipatna for five months and then returned to her in-laws house at Kalampur. She found illicit relationship between the respondent no.1, i.e her husband with respondent no.5, her sister-in-law. The aggrieved person raised her objection to such relationship and made a complaint before her father-in-law and mother-in-law. On such event, all the opposite parties became united and assaulted the aggrieved person and also demanded dowry. Regarding the demand of dowry made by the respondents, the aggrieved person has already lodged an F.I.R. before the Jaipatna Police Station, for which P.S. Case No.139 of 2011 corresponding to C.T. Case No.267 of 2011 in the file of the J.M.F.C., Jaipatna was initiated. The aggrieved person after sustaining physical and mental torture stayed in her in-laws house till 03.03.2011. When the parents of the aggrieved person invited her to attend the marriage of her brother, she came back to her parental home at Jaipatna. Thereafter, the respondents did not allow her to enter their house and she was compelled to stay along with her child in her parental home at Jaipatna since 03.03.2011.
3. The respondents appeared and file their show-cause. They admitted that Tamanna Mohanty was born on 22.03.2008 out of the wed-lock between the aggrieved person and Respondent no.1. They pleaded that the aggrieved person was never interested to stay in her matrimonial home and she used to stay twenty- five days in every month in her parental house. The aggrieved person asked the respondent no.1 to leave his home and stayed with her in her parental house and the respondent no.1 denied the proposal. The aggrieved person came back to her parental house and stayed there until her husband brought her back to his house. In the month of March, 2011, one day in absence of the respondent no.1, the aggrieved person has left her in-laws house and came back to her parental house along with her daughter and she filed a case against the family members of her husband at Jaipatna Police Station. The respondents also denied the existence of any illicit relationship between her husband and her sister-in-law, demand of dowry and also any torture either physical or mental to the aggrieved person.
4. After leading evidence from both the sides, arguments were heard and the learned J.M.F.C., Jaipatna allowed the petition on contest and prohibited the respondents from alienating any assets including the Stridhana of the aggrieved person. The Respondent no.1 was directed to provide accommodation for the aggrieved person and her daughter or to pay monthly rent of Rs.1,000/- (Rupees one thousand) for the same. He was further directed to pay monthly maintenance of Rs.2,500/- (Rupees two thousand five hundred) for maintenance of the aggrieved person as well as her daughter. The Respondents Nos. 1 and 2 were directed to pay Rs.15,000/- (Rupees fifteen thousand) as compensation to the aggrieved person.
5. Being aggrieved by the order passed by the learned J.M.F.C., Jaipatna, the Respondents filed an appeal before the learned Addl. Sessions Judge, Dharamgarh, which was numbered as Criminal Appeal No. 02 of 2012. After hearing the parties and on examining the documents, the learned Sessions Judge has held that there has been violation of mandatory provision of Section 12 of the Protection of Women from Domestic Violence Act, 2005, hereinafter referred as the 'Act' for brevity, inasmuch as, the Magistrate without waiting for the Domestic Incident Report (In short "DIR") of the Protection Officer, issued notice to the respondents. Secondly, it is held that there has been violation of Section 14 of the Act, in view of the fact that the Magistrate did not make any effort to the counseling for the parties, so that conciliation can be arrived at between the parties. Thereafter, the learned Sessions Judge held that the order impugned is not sustainable and therefore he set it aside.
6. The opposite parties, though were noticed did not appear in this case. Learned counsel for the petitioner, in course of hearing, relied upon the case of Sambhu Prasad Singh v. Manjari, reported in 2013 (1) Crimes 414 (Del.), wherein a Division Bench of Delhi High Court held as follows :
"14. The proviso to Section 12 obliges the Court to, "before passing any order on such application ... take into consideration any domestic incident report received by him from the Protection Officer or the service provider." The plenitude of the jurisdiction conferred by section 12 is in no way affected by the proviso; all that it mandates is that before any order is made on an application (under Section 12) the Magistrate "shall" take into consideration "any" report made by the Protection Officer. It is one thing to say that Parliamentary mandate to the Court is to take into consideration, in every case, a Protection Officers' report, as a precondition for exercise of jurisdiction - as the petitioner contends and entirely another to say that if "any" such report is available, it shall be considered. This clear cut difference, in our opinion was lost sight of by the Single Judge in Bhupender Singh Mehra's case. If Parliament had indeed mandated that in every case the Court was obliged to call for a Protection Officer's report, and thereafter proceed with the complaint, the structure of Section 12 would have been entirely different. Such intention would have been expressed in more definitive, or imperative terms. In this context, this Court is also unpersuaded by the Petitioner's argument that Rule 6 and the form appended to the rules have to be read into Section 12, to discern the precondition urged. This Court sees no need to do so; it would result in artificially curtailing what is otherwise a wide power"
Thereafter, in paragraph 19, the Division Bench has held as follows:"19. To conclude we answer the question referred to the Court in the negative a Magistrate, when Petitioned under Section 12(1) is not obliged to call for and consider the DIR before issuing notice to the respondent. However, if the DIR has already been submitted, that should be considered, in view of the proviso to Section 12(1)."7. Thus, it is apparent from the records that it is not necessary to call for a domestic enquiry report and thereafter the Magistrate can issue notice to the respondents. The expression that appears in the proviso to Section 12(1) of the Act is therefore quoted hereunder:"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."
It does not say that it is necessary to call for a domestic enquiry report from the Protection Officer, but such an enquiry report if available, the Court must take the same into consideration. Similar view has been taken by the Bombay High Court in Manoj Harikisanji Changani and others v. Sau Prema Shrinivas Changani and others, reported in 2013 (1) Crimes 435 (Bom.). In that view of the matter, the Court comes to the conclusion that it is not necessary for the Magistrate to wait for the domestic enquiry report before issuing notice to the respondents.
8. The second contention that has been raised is violation of Section 14 of the Act, which provides that 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 counseling with any member of a service provider who possess such qualifications and experience in counseling as may be prescribed. Sub- Section (2) provides that 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. From the expression "Magistrate may" it appears that the counseling in this case is not compulsory and only when the Magistrate comes to the conclusion that the matter can be settled by conciliation, he may ask for counseling of the parties. Thus, the Addl. Sessions Judge has erred in holding that there has been an indefensible violation of Section 14 of the Act.
9. Having gone through the records and examining the impugned judgment of the appellate court, this Court comes to the conclusion that the learned Addl. Sessions Judge has based his findings on the conjectures and surmises. Furthermore, the learned Addl. Sessions Judge held that the allegations leveled against the appellants are not the mitigating factors of a domestic violence, as those allegations stand not proved beyond reasonable doubt. It is further held by the learned Addl. Sessions Judge that it appears that the aggrieved person is bent upon for taking revenge against the appellants and putting them behind bars. Thus, it is clear that the learned Addl. Sessions Judge has come to the conclusion looking for the proof to the allegations made by the aggrieved person beyond all reasonable doubt, which is required in a criminal case. An application under Section 12 of the Act is in the nature of a quasi civil proceeding. Though violation of any order passed by the court is punitive, the aggrieved person need not establish the allegations made by her to be true beyond any reasonable doubt. Such allegations can be held to be sufficient if it is proved by preponderance of evidence.
10. In view of the aforesaid discussions, this Court comes to the conclusion that the order passed by the learned Additional Sessions Judge is not sustainable and accordingly the judgment and order dated 6.12.2012 passed in Criminal Appeal No. 02 of 2012 is hereby set aside and the order dated 05.05.2012 passed by the learned J.M.F.C., Jaipatna in I.C.C. No. 12 of 2011 is restored.
With such observation, the Revision Application is allowed.
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S.K.Mishra, J.
Orissa High Court, Cuttack Dated, January 10, 2014/JNS.
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