Tag Archives: DV act misused !!

Initial Proceedings in DV act are CIVIL in nature. Magistrate not issue summons u/s 61 Cr.P.C. treating respondents as accused ! Magistrate to tread carefully.The status of the respondents should not be treated as that of accused and that would spoil the very tenor and tone with which the Act has been drafted. Only when there is a breach of protection order should the matter become criminal !!

Initial Proceedings in DV act are CIVIL in nature. Magistrate not issue summons u/s 61 Cr.P.C. treating respondents as accused ! Magistrate to tread carefully.The status of the respondents should not be treated as that of accused and that would spoil the very tenor and tone with which the Act has been drafted. Only when there is a breach of protection order should the matter become criminal !!

To quote the Honourable Madras HC
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* “..Magistrate was not justified in treating the respondents in this case as accused ….”
* “…hereafter relating to applications under Section 12 of the Protection of Women from Domestic Violence Act, the Magistrate should not issue summons under Section 61 Cr.P.C. treating the respondents as accused….”
* “…. What is contemplated under Section 13 of the Act is a notice specifying the date etc., …”
* “….The endeavour should be on the part of the officer concerned is to deal with the matter gently and treating the respondents in a gentle manner and that should not be lost sight of…”.
* “…Unless the appearance of the respondents are absolutely necessary on a particular date, they should not be simply harassed by compelling them to appear as though they are offenders….”.
* “……..The Magistrate should not loose sight of the fact that so long as the case is anterior to the protection order being passed, they should be treated only as respondents. However, after the order under Section 18 of the Act is passed and if there is violation, then the proceedings might get changed and become criminal proceedings….”.
* “….As such, the Magistrates hereafter would scrupulously adhere to the mandates contained in the Act itself…….”

* “……learned Magistrate should be extraordinary careful in selecting the appropriate persons as the respondents. Simply because the application under Section 12 of the Act might refer to large number of persons as respondents, the learned Magistrate is not duty bound to issue notice to all of them and there should be application of mind on the part of the Magistrate ….”

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM INDIAN KANOON SITE
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Madras High Court

Vijaya Baskar vs Suganya Devi on 28 October, 2010

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 28/10/2010

CORAM

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Crl.O.P.(MD).No.10280 of 2010

and

M.P.(MD) Nos.1 and 2 of 2010

1.Vijaya Baskar

2.Mariappan

3.Sorna

4.Vijayakumar

5.Balamurugan

6.Mohana … Petitioners

Vs.

Suganya Devi … Respondent

Prayer

Petition filed under Section 482 of the Code of Criminal Procedure, praying to call for the records in Domestic and Violence Case in Crl.M.P.No.2307 of 2010 on the file of the Judicial Magistrate No.II, Madurai and quash the same.

!For Petitioners … Mr.M.Venkateswaran

^For Respondent … Mr.L.Murugan

Government Advocate (Crl. Side)

********************************************

:ORDER

Heard both sides.

2. The germane facts absolutely necessary for the disposal of this petition would run thus:

The respondent herein preferred a complaint under Section 12 of the Protection of Women from Domestic Violence Act making allegations as against the husband and his relatives. The respondents 1 to 6 therein preferred this Crl.O.P.(MD) No.10280 of 2010 to get quashed the said application filed by the respondent Suganya Devi on various grounds.

3. The learned counsel for the petitioners in the present petition placing reliance on the grounds of the petition filed under Section 12 of the Protection of Women from Domestic Violence Act would submit that ex-facie and prima-facie no case has been made out so as to attract the provisions of the Protection of Women from Domestic Violence Act; certain false statements are found set out in the application that she had been driven out of the matrimonial home; she also lodged a complaint against the petitioners invoking Section 498(A) I.P.C. and other sections and the petition under Section 125 Cr.P.C. claiming maintenance was filed by her; being not satisfied with those proceedings, she has come forward with the petition under the Protection of Women from Domestic Violence Act arraying all the petitioners without any ground whatsoever; there are self contradictory statements also between the version as found set out in the Domestic Violence Act and in the previous cases. Accordingly he prays for quashment of the petition on the ground that it is filed only to harass the husband viz. the 1st petitioner and his relatives, who are in no way concerned with the actual matrimonial dispute between the husband and wife.

4. Whereas the learned counsel for the respondent would oppose the move for quashment on various grounds by pointing out that this is not a fit case for quashment and according to him, the matter has to be gone into by the Magistrate.

5. The point for consideration is as to whether there are sufficient grounds for quashment under Section 482 Cr.P.C.?

6. At this juncture, I would like to recollect and hark back to the decisions of the Honourable Apex Court as under:

1.Kunga Nima Lepcha and others v. State of Sikkim and others reported in (2010) 2 Supreme Court Cases (Cri) 878;

2.Rubabbuddin Sheikh v. State of Gujarat and others reported in (2010) 2 Supreme Court Cases (Cri) 1006.

3.Ram Lal Narang v. State (Delhi Administration) reported in (1979) 2 Supreme Court Cases 322.

4.State of Haryana v. Bhajan Lal reported in AIR 1992 SUPREME COURT 604. Certain excerpts from it, would run thus:

> “108. In the backdrop of the interpretation of the
>various relevant provisions of the Code under Chapter
>XIV and of the principles of law enunciated by this
>Court in a series of decisions relating to the
>exercise of the extraordinary powers under Article 226
>or the inherent powers under Section 482 of the Code
>which we have extracted and reproduced above, we given
>the following categories of cases by way of
>illustration wherein such power could be exercised
>either to prevent abuse of the process of any Court or
>otherwise to secure the ends of justice, though it may
>not be possible to lay down any precise, clearly
>defined and sufficiently channelised and inflexible
>guidelines or rigid formulate and to give an
>exhaustive list of myriad kinds of cases wherein such
>power should be exercised.
>
>1. Where the allegations made in the First
>Information Report or the complaint, even if they are
>taken at their face value and accepted in their
>entirety do not prima facie constitute any offence or
>make out a case against the accused.
>
>2. Where the allegations in the First Information
>Report and other materials, if any, accompanying the
>F.I.R. do not disclose a cognizable offence,
>justifying an investigation by police officers under
>Section 156(1) of the Code except under an order of a
>Magistrate within the purview of Section 155(2) of the
>Code.
>
>3. Where the uncontroverted allegations made in the
>FIR or complaint and the evidence collected in support
>of the same do not disclose the commission of any
>offence and make out a case against the accused.
>
>4. Where, the allegations in the F.I.R. do not
>constitute a cognizable offence but constitute only a
>non-cognizable offence, no investigation is permitted
>by a police officer without an order of a Magistrate
>as contemplated under Section 155(2) of the Code.
>
>5. Where the allegations made in the FIR or complaint
>are so absurd and inherently improbable on the basis
>of which no prudent person can ever reach a just
>conclusion that there is sufficient ground for
>proceeding against the accused.
>
>6. Where there is an express legal bar engrafted in
>any of the provisions of the Code or the concerned Act
>(under which a criminal proceeding is instituted) to
>the institution and continuance of the proceedings
>and/or where there is a specific provision in the Code
>or the concerned Act, providing efficacious redress
>for the grievance of the aggrieved party.
>
>7. Where a criminal proceeding is manifestly attended
>with male fide and/or where the proceeding is
>maliciously instituted with an ulterior motive for
>wreaking vengeance on the accused and with a view to
>spite him due to private and personal grudge. ”

In fact, the raison d’etre of Section 482 Cr.P.C., is based on the maxim “Quando aliquid mandatur, mandatur et omne per quod perventur ad ilud. ” (When anything is commanded, everything by which it can be accomplished is also commanded.)

7. The learned counsel for the petitioner has invited the attention of this Court to the averments in the application filed under Section 12 of the Protection of Women from the Domestic Violence Act and has argued that those are all mere narrations and not backed by probable or possible evidence. According to him, the summons issued also to the petitioners is one nomenclatured as summons to the accused person, which itself is not tenable. The petitioners are having avocation of their own and if they are dragged to the Magistrate Court, then they will not be able to carry on with their day to day work.

8. At the outset the Magistrate was not right in issuing the summons to the accused person in this case invoking Section 61 of the Code of Criminal Procedure. The learned counsel for the petitioners in this petition would appropriately and appositely refer to Section 13 of the Protection of Women from Domestic Violence Act, which is extracted hereunder for ready reference:

> “13.Service of notice. – (1) A notice of the date of
>hearing fixed under Section 12 shall be given by the
>Magistrate to the Protection Officer, who shall get it
>served by such means as may be prescribed on the
>respondent, and on any other person, as directed by
>the Magistrate within a maximum period of two days or
>such further reasonable time as may be allowed by the
>Magistrate from the date of its receipt.
>
>(2) A declaration of service of notice made by the
>Protection Officer in such form as may be prescribed
>shall be the proof that such notice was served upon
>the respondent and on any other person as directed by
>the Magistrate unless the contrary is proved. ”

Along with that, I would like to refer to Section 28 of the said Act, which reads as follows:

> “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. ”

9. A mere reading of Section 13 of the said Act would amply make the point clear that at the initial stage, the Magistrate was not justified in treating the respondents in this case as accused and as such, hereafter relating to applications under Section 12 of the Protection of Women from Domestic Violence Act, the Magistrate should not issue summons under Section 61 Cr.P.C. treating the respondents as accused. What is contemplated under Section 13 of the Act is a notice specifying the date etc., The endeavour should be on the part of the officer concerned is to deal with the matter gently and treating the respondents in a gentle manner and that should not be lost sight of. Unless the appearance of the respondents are absolutely necessary on a particular date, they should not be simply harassed by compelling them to appear as though they are offenders. The Magistrate should not loose sight of the fact that so long as the case is anterior to the protection order being passed, they should be treated only as respondents. However, after the order under Section 18 of the Act is passed and if there is violation, then the proceedings might get changed and become criminal proceedings. As such, the Magistrates hereafter would scrupulously adhere to the mandates contained in the Act itself.

10. The contention of the learned counsel for the petitioner in this Criminal Original Petition is that the case of the petitioner in the petition filed under the Protection of Women from Domestic Violence Act is false. The truth or falsity of the averments made in the petition filed under domestic violence case cannot be gone into, now in this criminal original petition in view of the dicta as found set out in the decisions cited supra. In fact, before passing the Protection Order under Section 18 of the said Act enquiry has to be conducted, only with an intention to bring together the parties. The protection officer as well as the Magistrate should encourage and enthuse the parties to burry the hatchet and have peaceful living mixed with harmony and understanding. This Court while exercising its jurisdiction under Section 482 of Cr.P.C. at this stage is not expected to interfere and stall the proceedings also.

11. Paramount, it is, to consider the gamut and the scope of the Act, namely The Protection of Women from Domestic Violence Act, 2005; certain excerpts from the objects and reasons are of immense importance which would run thus:

> “2. The phenomenon of domestic violence is widely
>prevalent but has remained largely invisible in the
>public domain. Presently, where a women is subjected
>to cruelty by her husband or his relatives, it is an
>offence under Section 4980A of the Indian Penal Code.
>The civil law does not however address this phenomenon
>in its entirety.
>
>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. ”

12. The term ‘civil law’ twice used therein is not an empty formality and that would exemplify and demonstrate, display and convey that the proceedings at the first instance should be civil in nature. The legislators were conscious of the fact that all of a sudden if criminal law is enforced on the husband and his relatives, certainly that might boomerang and have deliterious effect in the matrimonial relationship between the husband and wife. The object of the Act is that the victim lady should be enabled by law to live in the matrimonial family atmosphere in her husband/in-laws’ house. It is not the intention of the said enactment to enable the lady to get snapped once and for all her relationship with her husband or the husband’s family and for that, civil law and civil remedies are most efficacious and appropriate and keeping that in mind alone in the Act, the initiation of action is given the trappings of civil proceedings which the authorities including the Magistrate responsible to enforce the said Act should not loose sight of.

13. The status of the respondents should not be treated as that of accused and that would spoil the very tenor and tone with which the Act has been drafted. Keeping that in mind alone, Section 13 of the Act would contemplate only service of notice on the respondents and Rule 6(5) of the Protection of Women from Domestic Violence Rules, would contemplate that the applications under Section 12 shall be dealt with inconformity with Section 125 of the Code of Criminal Procedure, 1973.

14. It is obvious that the proceedings under Section 125 Cr.P.C are not in stricto sensu criminal proceedings.

15. After the passing of the protection order, if there is any violation, then only, such violation would constitute an offence under Section 31 of the said Act and Section 32 of the Act would indicate that such violation would amount to a cognizable and non-bailable offence.

16. It is, therefore, clear that the initial proceedings are civil in nature and the learned Magistrate should be extraordinary careful in selecting the appropriate persons as the respondents. Simply because the application under Section 12 of the Act might refer to large number of persons as respondents, the learned Magistrate is not duty bound to issue notice to all of them and there should be application of mind on the part of the Magistrate in selecting the respondents as to whom notice should be sent, as otherwise having too many respondents before the learned Magistrate, would constitute a stumbling block for arriving at a conclusion in summary proceedings. The famous adage “Too much of anything is good for nothing ” should not be forgotten.

17. As such, keeping in mind the spirit of the Act and the purpose sought to be achieved, the learned Magistrate should process the application.

18. As such, at this stage, this Court cannot simply quash the proceedings under the Protection of Women from Domestic Violence Act on the ground that the petitioners in the Criminal Original Petition state that the allegations made in the Domestic Violence Act are all false.

19. The learned counsel for the petitioners would submit that the parties are at Chennai and the 1st petitioner is the husband, the second petitioner is the father of A1, the 3rd petitioner is the mother of A1, the 4th and 5th petitioners are the brothers of A1 and the 6th petitioner is the wife of A5 and it is difficult for them to appear before the Magistrate on every hearing.

20. Ex-facie and prima-facie, it is clear that the husband, his parents and his relatives have been summoned as accused, which the Magistrate could have avoided. Hence, I would like to sensitize that let the Magistrate apply his mind as to whether the presence of the respondents is absolutely necessary on a particular date and accordingly, send notice to such of those persons whose presence are absolutely necessary. The Magistrate shall see that the matter is dealt with as expeditiously as possible. Whenever any one or more of the respondents seek to get excuse from their absence in the proceedings, they are at liberty to petition the Magistrate which shall be considered sympathetically, but without detriment to the proceedings.

21. With the above observations, this petition is closed. Consequently, connected M.Ps. are closed.

sj

To

1.The Judicial Magistrate No.II,

***

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DV just 2 harass husband+inlaws & waste time of court. Wife never came to court !! DV dismissed. JM Chandigarh

Wife living abroad files fake DV and does NOT even appear… Husband appeals for dismissal and gets case dismissed 

Excerpts :

“…Moreover a specific plea has been taken by the applicant/respondent that on 2.3.2007 and 3.4.2007, the dates on which the alleged occurrence took place, the complainant was not even in the country. No specific reply has been given by the complainant regarding this plea….”

“….From the perusal of the case file it is also observed that the complainant also did not show the courage to at any time to come into the court. It seems that the present complaint has been filed just to harass the respondent and to waste the precious time of the court. Therefore, finding merits in the application filed by the applicant/respondent the same is hereby allowed and the present complaint is hereby dismissed. ….”

****************************************************

In the court of Sh.Sudhir Parmar, HCS, Judicial Magistrate

1st Class, Chandigarh.

Computer ID No.36014P0071692007.

Complaint No.679 of 13.4.2007.

Date of Decision: 11.10.2007.

Smt.Rashpal Kaur wife of Gurinderjit Singh Kuku aged 42 years, D/o.Sr.Mohinder Singh Kalar presently residing at H.No.3176, Industrial Co-operative House Building Limited Sector 51, Chandigarh.

….. Complainant.

Versus

1 Gurinderjit Singh Kuku son of Sh.Lal Singh, resident of H.No.207, Sector 16-A, Chandigarh.

2 Joginder Pal Kaur wife of Lal Singh, resident of H.No.207, Sector 16-A, Chandigarh second address of both above mentioned respondents village & P.O. Bhairupa, Tehsil Rampuraphul, District Bathinda.

3 Suraj Kaur wife of S.S. Channi, D/o. Lal Singh, Resident of H.No.926, Sector 39, Chandigarh.

….. Respondents.

Application for dismissal of the complaint filed by the complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 being not maintainable.

********

Present:Sh.BBS Sobti, counsel for respondents.

Sh.Pardeep Bedi, counsel for complainant.

O R D E R:

This order shall dispose of an application for dismissal of complaint filed by the complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 being not maintainable.

2. Brief facts of the application are that the complaint was filed by the complainant indicating the alleged incidents of domestic violence of 2.3.2007 and 3.4.2007. Thereafter the complainant herself moved an application for amendment of the complaint whereby she sought to amend the complaint by amending the dates of the alleged violence incidents of 2.3.2007 and 3.4.2007. The said application was dismissed by this court while passing a detailed order after hearing both the parties. After the dismissal of the said application it is admitted case of the complainant that no incident of alleged domestic violence had taken place on the dates mentioned in the present application. Most probably the complainant was not in India also. It is further submitted in the application that this court had taken cognizance on the complaint simply because the complainant had alleged in the complaint that the said incident had taken place within the jurisdiction of this court and when it is the own admission of the complainant that the incident had taken place on the said dates, therefore the present complaint is without any cause of action. Moreover, this court has entertained the complaint only on the basis of arising of the alleged cause of action as indicated in para no.16 of the complaint as envisaged under Section 27(i) (c) of The Protection of Women from Domestic Violence Act, 2005 and since now the present complaint is without any cause of action, therefore same is liable to be dismissed being not maintainable.

3. The complaint was also not maintainable against respondent no.3 who is the married sister-in-law of the complainant being sister of respondent no.1, who was married much before the marriage of the complainant with the respondent no.1 and was residing separately since long and as such she by no stretch of imagination falls within the definition of domestic relationship as defined under Section 2(f) of the Act. Dismissal of the application has been prayed for.

4. Reply of the same has been filed by the complainant stating therein that the complaint is false and frivolous. Mentioned of the incidents is a matter of record and the application for amendment of complaint is also a matter of record. The complaint cannot be dismissed on the short ground that the dates of occurrence mentioned in the complaint are not correct. The occurrence mentioned in the complaint is a fact which can be proved by leading evidence by complainant as well as her witnesses. Even the incorrect date will not affect the complaint in as much as the acts of physical violence can be proved by the complainant. It is immaterial if there is a discrepancy in the dates or the incorrect dates have been mentioned. Though the application for amendment of the complaint was moved by the complainant and even if the said application for amendment having been dismissed, it does not render the complaint of the complainant having been filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 a nullity. This court has come to the conclusion as to whether the complainant was subjected to the acts of physical violence on the basis of the evidence which is put on the file. Other averments made in the application have specifically been denied and dismissal of the application has been prayed for.

5. I have heard the learned counsel for the parties and have perused the case file minutely.

6. The Domestic Violence is undoubtedly a human rights issue and serious deterrent to development. The phenomena of Domestic Violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives it is an offence under Section 498-A of the Indian Penal Code. The civil law does not however address this phenomena in its entirety. Therefore, the present Act has been enacted to provide for more protection of the rights of woman guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Section 27 of The Protection of Women from Domestic Violence Act describes the jurisdiction of the court of Judicial Magistrate 1st Class or the Metropolitan Magistrate which describes as under:-

“(1)The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be within the local limits of which-

(a)the person aggrieved permanently or temporarily resides or carries on business or is employed; or

(b)the respondent resides or carries on business or its employed; or

(c)the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.

(2) Any order made under this Act shall be enforceable throughout India”.

7. This Section lays down that the Magistrate, within the local limits of whose jurisdiction the aggrieved person permanently or temporarily resides or carried on business or is employed or the respondent resides or carried on business or is employed or the cause of action has arisen, shall be the competent Magistrate to grant protection orders and other orders and to try offences under the Act. Sub-section (2) provides that any order made under the proposed legislation shall be enforceable throughout India. In the present complaint as per its fact the cause of action which gave rise to the present complaint occurred on 2.3.2007 when the respondent no.1 thrown away the complainant and her children from the matrimonial home and on 3.4.2007 when the respondent visited in the house of complainant in Sector 51, Chandigarh and insulted and humiliated her and created a scene thereon. On that very day the respondents also threatened the complainant that in case she will not leave the city then she will be eliminated and the children will be kidnapped. This act has created terror in the mind of the complainant and her children, therefore, the present complaint has been filed. Lateron, it is the admitted case of complainant that the incidence of violence as mentioned on the dates 2.,3.2007 and 3.4.2007 were actually happened on 8.4.2007 in place of 3.4.2007 and in this regard an application for making correction in the incidence has been filed which was dismissed by this court while passing a detailed order dated 23.7.2007. The said order was never challenged by the complainant. From these facts it is observed that infact no incidence of any violence had taken place with the complainant. The present complaint has been filed just to harass the respondents. Moreover a specific plea has been taken by the applicant/respondent that on 2.3.2007 and 3.4.2007, the dates on which the alleged occurrence took place, the complainant was not even in the country. No specific reply has been given by the complainant regarding this plea. It seems that complainant has admitted this fact that she was not in the country on these dates. Therefore, it is abundantly clear that no cause of action accrued to the complainant against the respondents on the dates mentioned in para no.16 of the complaint. So, the present complaint does not satisfy the ingredients of Section 27(c) of The Protection of Women from Domestic Violence Act.

8. Further more, during the course of arguments it is observed that respondent no.3 is married sister-in-law of the complainant who was married much before the marriage of the complainant and has been residing separately since long with her husband, therefore, respondent no.3 does not fall within the definition of Domestic violence as envisaged under Section 2(f) of the Act. Therefore, no case is made out against the respondent no.3 also. From the perusal of the case file it is also observed that the complainant also did not show the courage to at any time to come into the court. It seems that the present complaint has been filed just to harass the respondent and to waste the precious time of the court. Therefore, finding merits in the application filed by the applicant/respondent the same is hereby allowed and the present complaint is hereby dismissed. File be consigned to the record room. Announced: Judicial Magistrate 1st Class,

11.10.2007. Chandigarh.