Court dealing with the application under DV Act has no power
and/or jurisdiction to allow the amendment of the said application.
If the amendment becomes necessary in view of subsequent events
[escalation of prices in the instant case] or to avoid multiplicity
of litigation, Court will the have power to permit such an
amendment. It is said that procedure is the handmaid of justice and
is to come to the aid of the justice rather than defeating it. It
is nobody’s case that respondent no. 1 was not entitled to file
another application claiming the reliefs which she sought to
include in the pending application by way of amendment. If that be
so, we see no reason, why the applicant be not allowed to
incorporate this amendment in the pending application rather than
filing a separate application. It is not that there is a complete
ban/bar of amendment in the complaints in criminal Courts which are
governed by the Code, though undoubtedly such power to allow the
amendment has to be exercised sparingly and with caution under
limited circumstances. The pronouncement on this is contained in
the recent judgment of this Court in S.R.Sukumar vs. S. Sunaad
Raghuram (2015) 9 SCC 609 in the following paras:
“17. Insofar as merits of the contention
regarding allowing of amendment application, it
is true that there is no specific provision in
the Code to amend either a complaint or a
petition filed under the provisions of the Code,
but the Courts have held that the petitions
seeking such amendment to correct curable
infirmities can be allowed even in respect of
complaints. In U.P. Pollution Control Board vs.
Modi Distillery And Ors., (1987) 3 SCC 684,
wherein the name of the company was wrongly
mentioned in the complaint that is, instead of
Modi Industries Ltd. The name of the company was
mentioned as Modi Distillery and the name
was sought to be amended. In such factual
background, this Court has held as follows:-
“…The learned Single Judge has
focused his attention only on the
[pic]technical flaw in the complaint and
has failed to comprehend that the flaw
had occurred due to the recalcitrant
attitude of Modi Distillery and
furthermore the infirmity is one which
could be easily removed by having the
matter remitted to the Chief Judicial
Magistrate with a direction to call
upon the appellant to make the formal
amendments to the averments contained
in para 2 of the complaint so as to make
the controlling company of the
industrial unit figure as the concerned
accused in the complaint. All that has
to be done is the making of a formal
application for amendment by the
appellant for leave to amend by
substituting the name of Modi
Industries Limited, the company owning the
industrial unit, in place of Modi
Distillery…. Furthermore, the legal
infirmity is of such a nature which
could be easily cured...”
18. What is discernible from the U.P. Pollution
Control Board’s case is that easily curable legal
infirmity could be cured by means of a formal
application for amendment. If the amendment
sought to be made relates to a simple infirmity
which is curable by means of a formal
amendment and by allowing such amendment, no
prejudice could be caused to the other side,
notwithstanding the fact that there is no
enabling provision in the Code for entertaining
such amendment, the Court may permit such an
amendment to be made. On the contrary, if the
amendment sought to be made in the complaint
does not relate either to a curable infirmity or
the same cannot be corrected by a formal
amendment or if there is likelihood of
prejudice to the other side, then the Court
shall not allow such amendment in the complaint.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).516/2016
KUNAPAREDDY @ NOOKALA SHANKA BALAJI
V
KUNAPAREDDY SWARNA KUMARI & ANR
Dated:APRIL 18, 2016.
Citation: (2016) 11 SCC774
2. Learned counsel for both the parties have been finally heard
at this stage.
3. The issue that arises for consideration in the instant case is
whether a court dealing with the petition/complaint filed under the
provisions of the Domestic Violence Act, 2005 (hereinafter referred
to as 'the DV Act') has power to allow amendment to the
petition/complaint originally filed. This issue has arisen in the
petition/complaint filed by respondent no. 1/wife. Respondent No. 1
herein, who is the wife of the appellant, has filed a case against
the appellant and his family members before the Court of IInd
Additional Judicial First Class Magistrate, West Godavari, Eluru
under Sections 9B & 37(2)(C) of the DV Act which is registered as
Domestic Violence Case No. 20/2008. It may be mentioned here that
the said petition now stands transferred to the Court of Judicial
First Class Magistrate (Mobile Court), Eluru and has been
renumbered as DV Case No. 29/2012. In this case, respondent no. 1
has leveled various allegations against the appellant and his
family members inter alia alleging that the appellant and his
family members used to harass her physically as well as mentally
and by also demanding dowry. It is further alleged that she was
driven out from her matrimonial home in the month of March, 2015
and initially she took shelter at her brother's house along with
the children in Eluru. Thereafter, on the appellant tendering an
apology to respondent no. 1 by coming to Eluru they put up their
family together in Gadam Ramakrishna's House at Ashok Nagar,
Eluru,but the things did not change. The following prayers are
made in the said petition:
“a) to provide protection to the life and limb
of the complainant in the hands of the respondents;
b) to grant monthly maintenance of Rs. 5,000/-
to the complainant and her children each towards
her maintenance, medicines etc. and her children
education and maintenance;
c) to grant such other relief or reliefs if the
Hon'ble Court deems fit and proper in the
circumstances of the case.”
4. Respondent no.1 has also filed a divorce petition before the
Court of Senior Civil Judge, West Godavari, Eluru wherein she has
made an application for interim maintenance as well. Thereafter,
she also filed a maintenance petition under Sections 23(2) and 24
of the Hindu Marriage Act, 1955 before the Court of Family Judge,
Eluru.
5. On receiving notice in DV Petition, family members of the
appellant filed a petition under Section 482 Cr.P.C. in the High
Court of Judicature at Hyderabad for the States of Telengana and
Andhra Pradesh for quashing the proceedings in the said DV
Petition. This petition was allowed by the High Court vide order
dated 17.04.2009 thereby quashing the domestic violence proceedings
against the family members of the appellant on the ground that
there was no specific allegations against them. After the DV
Petition was transferred to the Court of Judicial First Class
Magistrate, Eluru, respondent no. 1 filed an application seeking
amendment of the petition. By way of the said amendment petition,
respondent no. 1 wanted to amend the prayer clause by incorporating
some more prayers, as is clear from the following amendment in this
behalf which was sought by respondent no. 1:
a) To provide protection to life and limb of
the complainant in the hands of the respondent.
b) To grant monthly maintenance of Rs. 15,000/-
to the complainant and her 2nd child to their
maintenance instead of Rs.5000/-
c) Direct the respondent to return the Sridhana
amount of Rs.3,00,000/- and 15 sovereigns of gold
ornaments and other sari samanas and marriage
batuvu presented to the respondent worth about 2
sovereigns wrist watch, 7 sovereign gold chain
presented by the complainant and her parents.
d) Direct the respondent to pay the
compensation of Rs.15 lakhs to the complaint for
subjecting the compliant to physical and mental
harassments besides including acts of Domestic
Violence.
e) Direct the respondent to return the sari
samans and other goods like worth more than
Rs.10,00,000/- as per the list annexed herewith.
f) Direct the respondent to pay the cost of,
litigation to the tune of Rs.25,000/- so far spent
by the complainant persuing her litigation.
g) Direct the 1st respondent to provide separate
residence by taking rent portion with monthly rent
of Rs.10,000/-
h) Directing the respondent to return the
original study certificates, medical certificates,
deposits certificates and receipts etc.
in the prayer portion paragraphs the following
amendment by deleting the prayer original para
b) to grant monthly maintenance of Rs.5,000/-
to the complainant and her children each towards
her maintenance, medicines etc. and her children
education and maintenance.”
6. The appellant herein opposed the said application. However,
the learned Trail Court after hearing both the parties allowed the
amendment. The appellant raised an objection that there was no
power with the court to allow amendment of such a
petition/complaint in the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Code'). This contention was
rejected by the trial court on the premise that section 26 of the
DV Act, which entitles a civil court, a family court or a criminal
court as well to grant any relief which is available to the
complainant under Sections 18, 19, 20, 21 & 22 of the said Act,
gives an indication that the provisions of the Code of Civil
Procedure would squarely apply and, therefore, the court had the
power to allow amendment of the petition/complaint, more so, when
it was necessary for the purpose of determining the real matter in
controversy and to prevent multiplicity of the litigation.
7. This order was challenged by the appellant by filing an appeal
before the Court of District and Sessions Judge, Eluru. The
District and Sessions Judge, Eluru set aside the order of the Trial
Court holding that there was no specific provision for amendment of
the complaint and allowed the appeal of the appellant. Aggrieved by
that order, respondent no. 1 filed a revision petition in the High
Court which has been allowed by the High Court vide impugned
judgment permitting respondent no. 1 to amend the
petition/complaint, thereby setting aside the order of the
District and Sessions Judge and restoring the order of the Trial
Court.
8. As mentioned above, in the present appeal preferred by the
appellant questioning the validity of the order of the High Court,
the contention of the appellant is that there is no such an
provision under the DV Act which permits the Trial Court to allow
such amendment. On this issue, we have heard the learned counsel
for the parties at length.
9. The contention of Mr. G.V.Rao, learned counsel appearing for
the appellant was that the proceedings under the DV Act are
governed by the provisions of the Code of Criminal Procedure as
prescribed under Section 28 of the DV Act and there is no provision
for amendment in the Code. He further submitted that the court
below was wrong in treating the application for amendment under
Order VI Rule 17 of the Code of Civil Procedure which has no
application to the proceedings under the DV Act.
10. In order to decide the aforesaid issue, we may take note of
some of the salient provisions of the DV Act as well as relevant
Rules framed under the said Act. We have gone through the concerned
provisions of the Code. We may start our discussion with Section 28
of the DV Act which reads as under:
“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.”
11. No doubt this provision provides that all proceedings under
Sections 12, 19 to 23 as well as offences under Section 31 are to
be governed by the provisions of the Code. The instant petition, as
noted above, is filed under Section 9B and 37(2)(C) of the DV Act.
Section 9 enumerates duties and functions of Protection Officer and
Clause (b) of sub-Section (1) thereof reads as under:
“(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;”
12. We have already mentioned the prayers which were made by
respondent no.1 in the original petition and prayer ‘A’ thereof
relates to Section 9. However, in prayer ‘B’, the respondent no.1
also sought relief of grant of monthly maintenance to her as well
as her children. This prayer falls within the ambit of Section 20
of the DV Act. In fact, prayer ‘A” is covered by Section 18 which
empowers the Magistrate to grant such a protection which is claimed
by the respondent no.1. Therefore, the petition is essentially
under Sections 18 and 20 of the DV Act, though in the heading these
provisions are not mentioned. However, that may not make any
difference and, therefore, no issue was raised by the appellant on
this count. In respect of the petition filed under Sections 18 and
20 of the DV Act, the proceedings are to be governed by the Code,
as provided under Section 28 of the DV Act. At the same time, it
cannot be disputed that these proceedings are predominantly of
civil nature.
13. In fact, the very purpose of enacting the DV Act was to
provide for a remedy which is an amalgamation of civil rights of
the complainant i.e aggrieved person. Intention was to protect
women against violence of any kind, especially that occurring
within the family as the civil law does not address this phenomenon
in its entirety. It is treated as an offence under Section 498A of
the Indian Penal Code. The purpose of enacting the law was to
provide a remedy in the civil law for the protection of women from
being victims of domestic violence and to prevent the occurrence of
domestic violence in the society. It is for this reason, that the
Scheme of the Act provides that in the first instance, the order
that would be passed by the Magistrate, on a complaint by the
aggrieved person, would be of a civil nature and if the said order
is violated, it assumes the character of criminality. In order to
demonstrate it, we may reproduce the introduction as well as
relevant portions of the Statement of Objects and Reasons of the
said Act, as follows:
“INTRODUCTION.
The Vienna Accord of 1994 and the Beijing
Declaration and the Platform for Action (1995) have
acknowledged that domestic violence is undoubtedly
a human rights issue. The United Nations Committee
on Convention on Elimination of All Forms of
Discrimination Against Women in its General
Recommendations has recommended that State parties
should act to protect women against violence of any
kind, especially that occurring within the family.
The phenomenon of domestic violence in India is
widely prevalent but has remained invisible in the
public domain. The civil law does not address this
phenomenon in its entirety. Presently, where a
woman is subjected to cruelty by her husband or his
relatives, it is an offence under Section 498A of
the Indian Penal Code. In order to provide a remedy
in the civil law for the protection of women from
being victims of domestic violence and to prevent
the occurrence of domestic violence in the society
the protection of Women from Domestic Violence Bill
was introduced in the Parliament.
STATEMENT OF OBJECTS AND REASONS
Domestic violence is undoubtedly a human Right
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 the occurring
within the family.
xxx xxx xxx
3. It is, therefore, proposed to enact a 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.
4. The Bill, inter alia, seeks to provide for
the following:-
xxx xxx xxx
(ii) It defines the expression “domestic
violence” to include actual abuse or threat or
abuse that is physical, secual, verbal, emotional
or economic. Harassment by way of unlawful dowry
demands to the woman or her relatives would also be
covered under this definition.
(iii)It provides for the rights of women to secure
housing. It also provides for the right of a woman
to reside in her matrimonial home or shared
household, whether or not she has any title or
rights in such home or household. This right is
secured by a residence order, which is passed by
the Magistrate.
(iv) It empowers the Magistrate to pass
protection orders in favour of the aggrieved person
to prevent the respondent from aiding or committing
an act of domestic violence or any other specified
act, entering a workplace or any other place
frequented by the aggrieved person, attempting the
communicate with her, isolating any assets used by
both the parties and causing violence to the
aggrieved person, her relatives or others who
provide her assistance from the domestic violence.”
14. Procedure for obtaining order of reliefs is stipulated in
Chapter IV of the DV Act which comprises Sections 12 to 29. Under
Section 12 an application can be made to the Magistrate by the
aggrieved person or Protection Officer or any other person on
behalf of the aggrieved person. The Magistrate is empowered, under
Section 18, to pass protection order. Section 19 of the DV Act
authorizes the Magistrate to pass residence order which may include
restraining the respondent from dispossessing or disturbing the
possession of the aggrieved person or directing the respondent to
remove himself from the shared household or even restraining the
respondent or his relatives from entering the portion of the shared
household in which the aggrieved person resides etc. Monetary
reliefs which can be granted by the Magistrate under Section 20 of
the DV Act include giving of the relief in respect of the loss of
earnings, the medical expenses, the loss caused due to destruction,
damage or removal of any property from the control of the aggrieved
person and the maintenance for the aggrieved person as well as her
children, if any. Custody can be decided by the Magistrate which
was granted under Section 21 of the DV Act. Section 22 empowers the
Magistrate to grant compensation and damages for the injuries,
including mental torture and emotional distress, caused by the
domestic violence committed by the appellant. All the aforesaid
reliefs that can be granted by the Magistrate are of civil nature.
Section 23 vests the Magistrate with the power to grant interim
ex-parte orders. It is, thus, clear that various kinds of reliefs
which can be obtained by the aggrieved person are of civil nature.
At the same time, when there is a breach of such orders passed by
the Magistrate, Section 31 terms such a breach to be a punishable
offence.
15. In the aforesaid scenario, merely because Section 28 of the DV
Act provides for that the proceedings under some of the provisions
including Sections 18 and 20 are essentially of civil nature. We
may take some aid and assistance from the nature of the proceedings
filed under Section 125 of the Code. Under the said provision as
well, a woman and children can claim maintenance. At the same time
these proceedings are treated essentially as of civil nature.
16. In Ramesh Chander Kaushal vs. Venna Kaushal (1978) 4 SCC 70,
Justice Krishna Iyer, dealing with the interpretation of Section
125 of the Code, observed as follows:
“9. This provision is a measure of social justice
and specially enacted to protect women and children
and falls within the constitutional sweep of
Article 15(3) reinforced by Article 39. We have no
doubt that sections of statutes calling for
construction by courts are not petrified print but
vibrant words with social functions to fulfill.
The brooding presence of the constitutional empathy
for the weaker sections like women and children
must inform interpretation if it has to have social
functions to fulfill. The brooding presence of the
constitutional empathy for the weaker sections like
women and children must inform interpretation if it
has to have social relevance. So viewed, it is
possible to be selective in picking out that
interpretation out of two alternatives which
advance the cause of the derelicts.”
17. We understood in this backdrop, it cannot be said that the
Court dealing with the application under DV Act has no power
and/or jurisdiction to allow the amendment of the said application.
If the amendment becomes necessary in view of subsequent events
[escalation of prices in the instant case] or to avoid multiplicity
of litigation, Court will the have power to permit such an
amendment. It is said that procedure is the handmaid of justice and
is to come to the aid of the justice rather than defeating it. It
is nobody’s case that respondent no. 1 was not entitled to file
another application claiming the reliefs which she sought to
include in the pending application by way of amendment. If that be
so, we see no reason, why the applicant be not allowed to
incorporate this amendment in the pending application rather than
filing a separate application. It is not that there is a complete
ban/bar of amendment in the complaints in criminal Courts which are
governed by the Code, though undoubtedly such power to allow the
amendment has to be exercised sparingly and with caution under
limited circumstances. The pronouncement on this is contained in
the recent judgment of this Court in S.R.Sukumar vs. S. Sunaad
Raghuram (2015) 9 SCC 609 in the following paras:
“17. Insofar as merits of the contention
regarding allowing of amendment application, it
is true that there is no specific provision in
the Code to amend either a complaint or a
petition filed under the provisions of the Code,
but the Courts have held that the petitions
seeking such amendment to correct curable
infirmities can be allowed even in respect of
complaints. In U.P. Pollution Control Board vs.
Modi Distillery And Ors., (1987) 3 SCC 684,
wherein the name of the company was wrongly
mentioned in the complaint that is, instead of
Modi Industries Ltd. The name of the company was
mentioned as Modi Distillery and the name
was sought to be amended. In such factual
background, this Court has held as follows:-
“…The learned Single Judge hasPage 13
13
focused his attention only on the
[pic]technical flaw in the complaint and
has failed to comprehend that the flaw
had occurred due to the recalcitrant
attitude of Modi Distillery and
furthermore the infirmity is one which
could be easily removed by having the
matter remitted to the Chief Judicial
Magistrate with a direction to call
upon the appellant to make the formal
amendments to the averments contained
in para 2 of the complaint so as to make
the controlling company of the
industrial unit figure as the concerned
accused in the complaint. All that has
to be done is the making of a formal
application for amendment by the
appellant for leave to amend by
substituting the name of Modi
Industries Limited, the company owning the
industrial unit, in place of Modi
Distillery…. Furthermore, the legal
infirmity is of such a nature which
could be easily cured...”
18. What is discernible from the U.P. Pollution
Control Board’s case is that easily curable legal
infirmity could be cured by means of a formal
application for amendment. If the amendment
sought to be made relates to a simple infirmity
which is curable by means of a formal
amendment and by allowing such amendment, no
prejudice could be caused to the other side,
notwithstanding the fact that there is no
enabling provision in the Code for entertaining
such amendment, the Court may permit such an
amendment to be made. On the contrary, if the
amendment sought to be made in the complaint
does not relate either to a curable infirmity or
the same cannot be corrected by a formal
amendment or if there is likelihood of
prejudice to the other side, then the Court
shall not allow such amendment in the complaint.
19. In the instant case, the amendment
application was filed on 24.05.2007 to carry out
the amendment by adding paras 11(a) and 11
(b). Though, the proposed amendment was not a
formal amendment, but a substantial one, the
Magistrate allowed the amendment application mainly
on the ground that no cognizance was taken of
the complaint before the disposal of amendment
application. Firstly, Magistrate was yet to
apply the judicial mind to the contents of the
complaint and had not taken cognizance of the
matter. Secondly, since summons was yet to be
ordered to be issued to the accused, no prejudice
would be caused to the accused. Thirdly, the
amendment did not change the original nature of
the complaint being one for defamation. Fourthly,
the publication of poem ‘Khalnayakaru’ being in
the nature of subsequent event created a new cause
of action in favour of the respondent which could
have been prosecuted by the respondent by filing a
separate complaint and therefore to avoid
multiplicity of proceedings, the trial court
allowed the amendment application. Considering
these factors which weighed in the mind of the
courts below, in our view, the High Court rightly
declined to interfere with the order passed by
the Magistrate allowing the amendment application
and the impugned order does not suffer from any
serious infirmity warranting interference in
exercise of jurisdiction under Article 136 of the
Constitution of India.”
18. What we are emphasis1 ing is that even in criminal cases
governed by the Code, the Court is not powerless and may allow
amendment in appropriate cases. One of the circumstances where such
an amendment is to be allowed is to avoid the multiplicity of the
proceedings. The argument of the learned counsel for the appellant,
therefore, that there is no power of amendment has to be negated.
19. In this context, provisions of Sub-Section(2) of Section 28 of
the DV Act gain significance. Whereas proceedings under certain
sections of the DV Act as specified in sub-Section (1) of Section
28 are to be governed by the Code, the Legislature at the same time
incorporated the provisions like sub-Section(2) as well which
empowers the Court to lay down its own procedure for disposal of
the application under Section 12 or Section 23(2) of the DV Act.
This provision has been incorporated by the Legislature keeping a
definite purpose in mind. Under Section 12, an application can be
made to a Magistrate by an aggrieved person or a Protection Officer
or any other person on behalf of the aggrieved person to claim one
or more reliefs under the said Act. Section 23 deals with the power
of the Magistrate to grant interim and ex-parte orders and
sub-Section (2) of Section 23 is a special provision carved out in
this behalf which is as follows:
“(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.
20. The reliefs that can be granted by the final order or an by
interim order, have already been pointed out above wherein it is
noticed that most of these reliefs are of civil nature. If the
power to amend the complaint/application etc. is not read into the
aforesaid provision, the very purpose which the Act attempts to
sub-serve itself may be defeated in many cases.
21 We, thus, are of the opinion that the amendment was rightly
allowed by the Trial Court and there is no blemish in the impugned
judgment of the High Court affirming the order of the Trial Court.
This appeal is, thus, devoid of any merits and is, accordingly,
dismissed with costs.
......................J.
[A.K. SIKRI]
......................J.
[R.K.AGRAWAL]
NEW DELHI;
APRIL 18, 2016.
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