Court : MP high court
Brief : procedure in dv cases; dv to be proved
Citation : Madhusudan Bhardwaj & Ors vs Mamta Bhardwaj
[ 2009 CRI. L. J. 3095 (Madhya Pradesh High Court ) (Gwalior Bench) ::
2009 (6) ABR (NOC) 1018 (M. P.)(Gwalior Bench) ]
[MADHYA PRADESH HIGH COURT (GWALIOR BENCH)]
[ Hon'ble Judge(s): B. M. GUPTA ]
[ 2009 CRI. L. J. 3095 (Madhya Pradesh High Court ) (Gwalior Bench) ::
2009 (6) ABR (NOC) 1018 (M. P.)(Gwalior Bench) ]
Madhusudan Bhardwaj & Ors vs Mamta Bhardwaj
Criminal Revision No. 826 of 2007 - Decided On 31/03/2009
ORDER: — 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 “Actâ€) 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 “Rulesâ€) 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 sub-section (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 Cri LJ 656,
Karnataka High Court in Sankarasetty Pompanna v. State of Karnataka and
another, 1977 Cri LJ 2072, and Gujarat High Court in Pendiyala Sureshkumar
Ramarao v. Sompally Arunbindu and another, 2005 Cri LJ 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. Notices 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, Sec. 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 sub-sections (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 ultra-vires 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 hereinabove, 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.
Petition allowed
*Against order of Sunita Yadav 4th Addl. Session Judge Gwalior, Dt-
6-9-2007.
