Current AffairsIndia

Domestic Violence Act proceedings civil in nature

The Madras High Court recently opined that proceedings under the Domestic Violence Act (DV Act) are civil in nature, except in cases where Sections 31 and 33 (to do with a breach of a protection order or an interim order) come into play.

The High Court’s inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) cannot be invoked to quash complaints under the Domestic Violence Act since this provision would only apply to criminal proceedings.

In passing the ruling, Justice Anand Venkatesh also expressed his disagreement with the Kerala High Court’s contrary ruling in Baiju v. Latha.

Upon a close reading of the DV Act, this Court found that the nature of rights that were protected and enforced under the Act were purely civil in nature. However, considering the forum which was dealing with such applications, and the procedure adopted, a criminal color has been unwittingly given to these proceedings. Like a chameleon changing its colour depending on the situation, the proceedings under the D.V Act were also camouflaged due to the nature of the forum provided under the Act,” Justice Venkatesh opined.

The Court issued various guidelines regarding the manner in which applications for reliefs under the Domestic Violence Act through Section 12 are to be filed so as to ensure that its civil nature is retained.

The Court also took critical note of how such applications were being given a criminal colour remarking that many DV cases had come to a grinding halt without any progress for over three years on account of the pendency of Section 482, CrPC petitions before the High Court.

On account of viewing the DV Act proceedings as criminal in nature, the judge observed that there was a tendency to misuse the proceedings as a weapon of harassment against persons unrelated to the proceedings “by making them stand before a Magistrate like accused persons.

Amid efforts to quash the proceedings through Section 482 petitions, the DV Act case is thrown into the backburner, he said.

It is mainly on account of this abuse of process that a deluge of petitions came to be filed for quashing the proceedings under Section 12 of the D.V. Act. This sorry state of affairs was a clear clarion call that impelled this Court to undertake this exercise to bring the situation under control by laying down certain guidelines for the disposal of the applications under Section 12 of the D.V Act,” the Court stated.

DV Act proceedings are civil in nature, save for Sections 31, 33

The Court placed reliance on a number of precedents, to clarify the following:

  • Among the various reliefs given under the Domestic Violence Act,the breach of a protection order or an interim protection order alone is a cognizable and non-bailable offence under Sections 31 and 32(1) of the Act.
  • All other reliefs contemplated under Chapter IV of the Act (residence orders, monetary reliefs, custody orders, custody orders, compensation orders etc.) are civil in nature.
  • The procedure set out in the DV Act and the Rules makes a conscious deviation from the traditional modes of a criminal courttaking cognizance, issuing process and then trying the accused under the provisions of the CrPC (save in the case of offences under Sections 31 and 33 of the Act).
  • The application of the CrPC to an application under Section 12of the DV Act (application to Magistrate for relief under the Act) is residuary in nature by virtue of the mandate of Section 28(1) of the Act (which states, “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 CrPC).
  • To constitute a Criminal Court, it is not sufficient that it is one of the Courts mentioned under Section 6, CrPC (including a Magistratecourt, which is the court dealing with applications under the DV Act). To be a Criminal Court, it must also be acting as a Criminal Court. The true test depends on the character of the proceeding i.e., the nature of the right violated, and the relief claimed thereon, and not the nature of the Tribunal adjudicating such a proceeding. Merely because a Magistrate is called upon to adjudicate and enforce civil rights in an application under Chapter IV of the DV Act, it does not follow that the proceeding before it is of a criminal character. A court of Magistrate not exercising functions or determining cases of a criminal character cannot be said to be a Criminal Court.
  • A Magistrate exercising jurisdiction to grant reliefs of a civil nature does not function as a Magistrate exercising authority under CrPC.
  • The fact that a Magistrate may, at a subsequent stage under Chapter V try an offence under Section 31 of the Act for breach of an order under Sections 18 or 23 of the Act does not render a proceeding under Chapter IV of the Act as one before a criminal court. Merely because the Court of Magistrate is a criminal court in the latter stage, it does not follow that it is a criminal court in the former stage as well.

Section 482, CrPC petitions challenging Section 12, DV Act applications not maintainable.

In view of the above reasoning, the Court concluded that:

  • As the jurisdiction exercised by the Magistrate under the DV Act does not partake the character of a criminal proceeding, the result is thata Magistrate cannot be said to be exercising criminal jurisdiction as a Criminal Court while exercising jurisdiction under Chapter IV of the DV Act.
  • As such, the Judge further pointed out that Section 482, CrPC would not lie to quash complaints under Section 12 of the DV Actsince, “it is settled law that a petition under Section 482, Cr.P.C would lie only against an order of a criminal court.”
  • This does not, however, mean that an aggrieved respondent is remediless. The Magistrate exercising jurisdiction under Chapter IV of the DV Act, is certainly a subordinate Court for the purposes of Article 227, and a petition under Article 227 of the Constitution (revisional jurisdiction of the High Court)would still be available challenging the proceedings under Chapter IV of the DV Act, in an appropriate case, if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction.
  • In normal circumstances, the power under Article 227 will not be exercised, as a measure of self-imposed restriction, in view of the corrective mechanism available to the aggrieved parties before the Magistrate, and then by way of an appeal under Section 29 of the Act.

On curtailing the tendency to rope in “all and sundry” in DV Act proceedings and more

Other guidelines issued by the Court focused on the technical aspects on how to move Section 12, DV Act applications and how the Magistrate ought to treat them.

The High Court detailed the form in which the application is to be made, how notice for appearance should be issued, how the party may be permitted to appear, the power of the Magistrate to alter, modify or revoke its order on application, how witnesses may be examined, and evidence recorded etc.

Notably, the Court also emphasised that it is not mandatory for the Magistrate to issue notices to all parties arrayed as respondents in an application under Section 12 of the Act.

“… there should be some application of mind on the part of the Magistrate in deciding the respondents upon whom notices should be issued. In all cases involving relatives and other third parties to the matrimonial relationship, the Magistrate must set out reasons that have impelled them to issue notice to such parties. To a large extent, this would curtail the pernicious practice of roping in all and sundry into the proceedings before the Magistrate,” the Court opined.

It added that Magistrates must take note that the practice of mechanically issuing notices to the respondents named in the application has been deprecated by the Madras High Court nearly a decade ago in Vijaya Baskar case.

“Precedents are meant to be followed and not forgotten, and the Magistrates would, therefore, do well to examine the applications at the threshold and confine the inquiry only to those persons whose presence before it is proper and necessary for the grant of reliefs under Chapter IV of the DV Act,” the Court said.

 

Source
Via Bar & Bench
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