1 M.Cr.C. No.4112/19 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 4112/19 (Rakhi @ Srashti Panjwani Vs. Rahul Panjwani & ors.) Gwalior, Dated 11/2/19 Shri F.A. Shah, learned counsel for the applicant. Shri Prakhar Dhengula, learned counsel for the respondents
No. 1 and 2.
1. Inherent powers of this court u/S. 482 CrPC are invoked assailing the interlocutory order dated 16/1/19 of the learned Magistrate trying a petition u/S. 12 of the Protection of Women from Domestic Violence Act, 2005 (“2005 Act” for brevity) by which the learned trial Judge inter alia allowed the application under Order XI Rule 12 CPC preferred by the husband directing production of records.
2. Learned counsel for the rival parties are heard.
3. The sole contention of learned counsel for the petitioner is that in view of the provision of Section 28 of 2005 Act, the procedure to be adopted for conducting proceedings in petition u/S. 12 of 2005 Act (as is the case herein) are governed exclusively by CrPC and not by the CPC. In this background, it is submitted by learned counsel for the petitioner/wife that the trial court traveled beyond its jurisdiction while entertaining and allowing the application filed by the respondent/husband by invoking provisions of CPC (Order XI Rule 12). Learned counsel for the petitioner has pressed into service the decision of Apex Court in the case of Kunapareddy alias Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari and anr. (2016) 11 SCC 774.
4. Per contra, learned counsel for the respondent/husband and in-laws of the petitioner relies upon the single Bench decision of the Bombay High Court in Raosaheb Pandharinath Kamble & ors. Vs. Shaila Raosaheb Kamble & ors. 2010 CRI. L.J. 3596 and Single Bench decision of Bombay High Court in Mrs. Pramodini Vijay Fernandes Vs. Mr. Vijay Fernandes decided on 17th February, 2010 in W.P. No. 5252/2009.
5. For ready reference and convenience, Section 28 of 2005 Act is reproduced below:-
(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.”
6. To adjudicate the controversy, it would be appropriate to refer the decision of Apex Court in Kunapareddy (supra). The Apex Court in the said decision was dealing with the controversy as to whether the trial court has power to allow amendment to apetition/complaint filed u/S. 9 (1)(b) and 37 (2)(c) of 2005 Act or not. The Apex Court while dealing with the issue held thus:-
“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 theScheme 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:
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
1. 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.
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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:-
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(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 19of 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.” 6.1 A careful scrutiny of the aforesaid exposition by the Apex Court, it is seen that the Apex Court analyzing the language employed by Section 28 and the nature of proceedings contemplated under the 2005 Act came to a just conclusion that though application of CPC is excluded by Section 28 in respect of proceedings under certain sections mentioned therein, but all the proceedings under 2005 Act, barring those cases where offence arising out of breach of 2005 Act is alleged, are essentially and predominantly civil in nature.
6.2 The Apex Court further went ahead in Para 12 of the said judgment to hold that initiation of proceedings under the 2005 Act are civil in nature but once the complainant alleges violation by the respondent of any provision of 2005 Act, then the proceedings assume criminal character.
6.3 The Apex Court also observed that the procedure is merely the hand maiden of justice and thus should not be given prominence and dominance over substantive law.
6.4 The aforesaid law laid down by the Apex Court is further found to be in line with the object behind the 2005 Act which is bolstered by the fact that the opposite party against whom a complaint is filed under the 2005 Act is nomenclatured as a “respondent” defined in Sec. 2 (q) of 2005 Act and not an accused. This lends support to the decision of Apex Court in Kunapareddy (supra).
7. The petitioner has also cited three Judge Bench decision of Bombay High Court (Bench at Nagpur) dated 3/5/18 passed in Criminal application [APL] No. 578/2011 (Nandkishor Pralhad Vyawahare Vs. Mangala) which need not to be considered in view of the aforesaid decision of Apex Court in Kunapareddy (supra) which finds reference in the Nandkishor Pralhad Vuawahare (supra).
8. In view of above, the contention of the learned counsel for the petitioner that since the impugned order was passed in a petition preferred by the petitioner u/S. 12 of 2005 Act which is one of the sections mentioned in Section 28 and thus the respondent/husband was prohibited from invoking the provision of CPC, appears to be attractive at the first blush but is rejected on the ground that the aspect of procedure cannot be given such prominence and dominance as would supplant substantive law. This becomes more pronounced when viewed from the angle that all proceedings initiated under the 2005 Act are predominantly civil in nature.
9. Consequently, this court is afraid that it can not countenance the contention of learned counsel for the petitioner/wife and therefore, rejects the present petition sans cost.
(Sheel Nagu) Judge ojha YOGENDRA OJHA 2019.02.13 17:19:53