Home > Maintainace in DV Act > The landmark judgment, a must read for everyone going thru D.V. Case…

The landmark judgment, a must read for everyone going thru D.V. Case…

IN THE COURT OF SH. INDER JEET SINGH,ADDL. DISTRICT & SESSION JUDGE,

DELHI

In the matter of CriminalAppeal No.12/2010

Manish Kapoor,

S/o Shri Desraj Kapoor,

R/o H. No. 7/153, First Floor,Subhash Nagar, New

Delhi……Appellan t/NonApplicant

versus

Charu Kapoor, W/o Shri Manish Kapoor,

D/o Shri Kuldeep KumarR/o H. No. 11/40, Second Floor,Subhash

Nagar, New Delhi……Responde nt/Applicant

Date of institution : 16.08.2010 (Old No. 18/12.08.2010)

Decision reserved on : 21.08.2010

Date of decision : 28.08.2010

JUDGMENT

1 .1 (Introduction) –The respondent Smt. Charu Kapoor filed anapplication under section 12 of Protection of Woman from DomesticViolence Act, 2005 (in brief the Act), against the appellant ManishKapoor. The Court of Ms. Jyoti

Klyer, Ld. Metropolitan Magistrate, Delhi,by judgment dated 29.07.2010

held that the respondent Smt. CharuKapoor is an aggrieved person and

protection order was directedagainst the appellant from causing any

domestic violence in the form ofdemand of dowry, or physical or verbal abuse towards therespondent.Further, residence order has been directed that the

appellant will notrestrained the respondent from entering and residing

in the sharedhouse at first floor of H. No. 7/153, Subhash Nagar, New

Delhi, beingher matrimonial home, for the purpose of residence. The

maintenanceof Rs. 3000/permonth in favour of respondent and

maintenance of Rs.1500/permonth in favour of minor baby namely Naisha,

besideslitigation expenses of Rs. 3000/weredirected in favour of

therespondent. Since the minor baby is in the custody of respondent,

theappellant was directed not to snatched the minor baby from

therespondent, without the procedure established by law. The request

ofthe respondent for compensation was declined for want of

specificinjury. 1.2 The appellant is aggrieved by the impugned order

and hepreferred the present appeal under section 29 of the Protection

ofWomen from Domestic Violence Act,

while reiterating the fact of thecase, the pleadings of the parties

and other records with thesubmissions that the impugned order is

contrary to the provisions oflaw, documents and pleadings placed on

record visavisthesubmissio ns presented before the Court. The impugned

judgmentsuffers from serious legal infirmities arising out

nonapplicationof mind,the conclusions are drawn by prejudgingthe case

against the appellantmerely relying upon registration of FIR No.

20/2009, under section 498A/406 IPC, which is a false and frivolous

FIR. Section 28 of the Act, inrespect of procedure, is based on the

principle of natural justice ofopportunity of being heard, the parties

file their affidavits for evidenceand matter was kept for arguments,

even the judgment has beenpassed without an opportunity to cross

examine the respective parties,whereas the matter was subjudice for

arguments and arguments wereadvanced on interim application. The

residence order should not

havebeen passed against the appellant, since the property belongs to

hisfather, who is aged about 75 years and suffering from heart

ailments. Itrequires to introduce, in precise, the case of each party.

2.1 (The case of respondent/applican t) – In nut shell, the

partiesmarried on 10.11.2003, baby Naisha was born on 01.02.2008 but

duringtheir matrimonial alliance, the respondent was maltreated on

account ofdemand of dowry or the articles like Sofa, TV, Suite were

not upto theexpectations/ choice/standard of appellant. There has been

frequentdemands from time to time, the respondent was forced to demand

truckfrom her parents to fulfill the wishes of appellant, the

respondentarranged scooter. The respondent was harassed for want of

bringingmore dowry. Respondent’s brotherinlaw( Jeth) Mr. Gulshan

Kapoor,who was respondent No. 4 in the application, but not summoned,

abuilder, has influence on the appellant, the appellant has been

acting onthe music of said

Gulshan Kapoor. The said Gulshan Kapoor and hiswife Smt. Poonam Kapoor

celebrate liquor party on each occasion,when Gulshan Kapoor completes

a project of building, the appellant andhis parents also participate

in such ceremonies. In the night of31.12.2005, the respondent was

rebuked by him and the appellant inthe presence of others that the

respondent will be thrown out of thehouse, in case money is not

brought by her or to arrange job for theappellant. The respondent was

also kicked by fist by the appellant onher inability to fulfill the

demands. The entire gold jewellery was kept bymother of appellant on

the pretext of avoiding the theft. The respondentfaced a lot of

inconvenience and harassment in order to meet dailyrequirements and

respondent/complain ant’s parents were providing gascylinder,

vegetables, articles of kitchen, medicine and charges fortreatment.

The respondent’s father arranged a job for appellant at twoshowrooms

but he left it because

he was not intended to do work.Further, her father also arranged visa

for the appellant and respondentfor Dubai for job and settlement but

all went in vain, as appellant was tostart his own business. The

application further narrates the otherincident of 12.04.2008, when she

along with minor child was at herparents house and the appellant along

with others, not only abused therespondent and her parents but also

threatened to kill them. There wastender of apology and on 19.04.2008,

she was brought to hermatrimonial home with a new hope to start the

life, the police report tothis effect has been placed on the file. On

06.06.2008, the respondentalong with her child, put asylum at her

parents house, since theappellant had directed to call her parents and

he demanded truck, shewas abused and kicked, besides an attempt to

throw the child on floor.Whereas the respondent has no source of

income and has no means oflivelihood, the baby child is in her

custody. The

parties lived together atfirst floor of House No. 7/153, Subhash

Nagar, Delhi, which is alsocomprising the ground floor, built in a

plot of 50 square yards. The firstfloor comprises two bed rooms

attached, separate entrance where therespondent lived till she was

ousted. The application further narrates theproceedings took place in

one Court or the other visavisregistration ofFIR after complaint in

the Crime Against the Woman Cell. That is whythe application was filed.

2.2 (The case of appellant) – Whereas the appellant, a teetotaler,

thatsoon after the marriage, the respondent started harassing and

blackmailingthe appellant by asking for separate accommodation, she

wouldnot live and cook meal for appellant’s parents and she separated

thekitchen forcibly, from old and ailments parents of the appellant.

She wasnot looking after the household chores. She was also

pressurized theappellant to take her to Dubai during vacation, where

her sister wasliving and

despite appellant’s inability and financial constraints, theappellant

obeyed her request, since she was threatening to commitsuicide and to

rope the family in a false case. She was taken to Dubai inJuly 2004.

There she pressurized the appellant to settle therepermanently but the

appellant was not in a position to settle therebecause of his old aged

parents. They came back in September 2004and the appellant paid his

loan amount in respect of visit to Dubai, helost his job and took

another employment. The appellant denies all theaverments of

respondent’s case, reproduced hereinabove. Therespondent was asking

and demanding that he shall sell the parents’property and buy a truck

and to do the business of transport with hisfather, a transporter. The

appellant was not agreeing to it. On01.02.2008, a child was born but

she did not permit the appellant to seeher. On 14.03.2008, she took

away all the jewellery, costly items, etc.,and went to her parents

house.

The appellant repeatedly requested tosee the daughter and also

Baisakhi and Navratri festival, being anauspicious occasion, however,

the appellant and his parents were manhandled,insulted and

threatening, to which report was lodged on12.04.2008. The doctors of

Mata Chandan Devi Hospital advisedmother feeding but she was feeding

the child from bottle against writtenmedical advise. The appellant

filed a petition under section 9 ofRestitution of Conjugal Rights

under Hindu Marriage Act on 15.11.2008and Mediation proceedings were

held from time to time but she failed tojoin the matrimonial home.

Since, an FIR was registered and realizingfrom the proceedings

conducted from time to time that she is adamantof not joining the

matrimonial home, the appellant was compelled towithdraw the petition

under section 9 of the HM Act but filed a freshpetition for

dissolution of marriage. The appellant has complied all thedirections

of the Court given to him from time to

time.2.3 (Arguments of Appellant on Appeal) – In nutshell,

appellant’scontenti ons are that the Trial Court failed to follow the

procedurespecified in the Act, the process of arguments on interim

applicationwas initiated, as per proceedings dated 03.06.2009 of the

Trial Court,the case was adjourned for 14.09.2009, on the issue of

interimprotections, but the matter was decided finally. The codified

law arebased on the principle of natural justice that each party shall

be givenopportunity of complete and effective hearing, whereas, no

suchopportunity of cross examination of witnesses have been

provided,therefore, there is noncomplianceof the procedure of Section

28 of theAct. The appellant has applied and obeyed the directions of

Hon. HighCourt of Delhi, while directing him to pay the maintenance @

Rs.5,000/permonth, being temporary arrangement, the appellant

alsoreturned 42 articles on 06.11.2008 and 11 items on 16.01.2009

beforethe Crime Against the

Women Cell and on the earlier occasion, therespondent took her

valuables, therefore, she had intention not to live atmatrimonial

home, she has been living with her parents from June 2008.A false case

under section 498A/406 IPC was registered against theappellant and his

parents, whereas, the chargesheetas yet not beenfiled but the Trial

Court on the basis of registration of FIR, consideredthe respondent as

an aggrieved person, as a matter of fact, there is noevidence. The

appellant’s monthly income/salary was Rs. 9,500/butthe Court ordered

Rs. 4,500/permonth, considering order of Rs.4,000/permonth of the

Court of Additional Sessions Judge, whiledealing with an application

under section 24 of the HM Act. Theconclusions have been drawn without

recording any evidence on thepoint of income of the appellant. The

appellant firstly filed the petitionunder section 9 of the HM Act but

with the passage of time and duringother judicial proceedings, when it

came to

the record that therespondent is not intending to join her matrimonial

home, the appellantwithdrew the petition and filed another petition

under section 13 of theHM Act for dissolution of marriage as well as

for custody of child, sinceall mediation proceedings had failed. The

appellant has been directedthat he will not restrained the respondent

from entering and residing inthe first floor of House No. 7/153,

Subhash Nagar, Delhi, whereas, thereis one room and a store, bathroom

but the Trial Court has directedwithout recording the evidence and the

totalities, Section 19 of the Actdoes not provide for repossession of

the household in the eventuality, the wife had left the house and she

is residing somewhere else.Otherwise, the Trial Court also failed to

consider that the house doesnot belong to the appellant but to his

father, who is aged about 75years, living in the same building at

ground floor. The appellant fortifieshis contentions, while relying

upon

S.R. Batra vs. Tarun Batra 2006 (13)Scale 652 that there can be right

to residence in a shareholdhouse, when the house belongs to or taken

on rent by the husband or thehouse which belongs to joint family of

which husband is a member. Theappellant supplements that the case of

respondent does not fulfill thecriteria elucidated in the judgment.

Further, reliance has been placed onNidhi Kumar Gandhi vs. State 2009

(1) JCC 571, where the case wasdealt at the stage of interim order and

it was observed that evidence isto be recorded. In Neetu Mittal vs.

Kanta Mittal AIR 2009 Delhi 72, itwas held that the woman cannot

thirst herself against the parents of herhusband nor she can claim a

right to live in the house of parents of herhusband against their

consent and wishes. The appellant’s parents arealready feeling

harassed for registration of FIR against them, the regularvisit of

police officials and they were also made party to the applicationunder

section 12 of

the Act but the Trial Court had not issued notice tothem. Ld. counsel

for appellant submits that recording of evidence isnecessary in the

case. Therefore, the judgment is liable to be set aside.2.4 (Arguments

of Respondent in Appeal) – Whereas, Shri RajeshArora, Advocate for

respondent opposed the appeal that it is an abuseof process of the

Court, since neither there is any merit in the appealnor the situation

exists of noncomplianceof statutory provisions of thelaw. The judgment

is based on the basis of proceedings conducted,firstly, considering

the interim prayer, but being not pressed for, thecase came for

evidence and then for final disposal. On 03.06.2009, thecase was

adjourned for consideration of issue of interim protection butat later

point of time, the parties were asked to complete their

pleadingsvisavisto file their respective affidavits, the same was

complied andthe appellant had also filed final arguments, therefore,

at the stage

ofappeal, the issue cannot be raised that there was

noncomplianceofproc edure or opportunity for evidence was not given.

Section 23 of theAct, which deals with interim orders and

exparteorders, does notrequire that the Magistrate shall pass an order

under this Section, sinceSection 23 of the Act is a discretionary

provision, as word “may” hasbeen used in the operating part. In

addition, Section 28(2) of the Actempowers the Magistrate to devise

its own way of conducting theproceedings. Therefore, the procedure

followed by the Magistrate hassanction of subsection2 of Section 28 of

the Act. The proceedingsdated 14.09.2009, 02.12.2009 and 13.01.2010

are matter of record thatthe case was posted for filing of affidavit

for evidence and then for finalarguments. So far findings to the

effect that the respondent was anaggrieved person is based on the

record, the FIR was not registered allof a sudden but proceedings were

conducted before the Crime Againstthe

Women Cell, prior to formal registration of FIR. The Chapter

IV(Procedure for obtaining orders of reliefs) is based on the

principle ofprima facie case, satisfaction of the Magistrate and

existence ofdomestic violence, as the relief can be given when there

is domesticrelations, shareholdhouse, incident of domestic violence

and DomesticViolence Incident Report, the domestic violence is a

continuing violence.There was not only economic and financial abuse to

the respondent butalso other domestic violence in the form of

depriving or neglecting toprovide accommodation, beatings and

discharge of other obligations. Inthe Hon. High Court of Delhi,

maintenance of Rs. 5,000/permonth wasdirected, considering the income

of appellant as Rs. 8,500/permonthand there is no illegality in order

of maintenance @ Rs. 4,500/permonth by the Magistrate, while

considering his income of Rs. 9,500/permonth. The respondent has not

returned her entire articles, therespondent had

also reported the matter to police and the case wasregistered. The

appellant’s allegations are false. Since, the appellantand the

respondent resided together at the first floor of House No.7/153,

Subhash Nagar, Delhi, consisting of two rooms, bathroom,photograph s

to this effect are on file of the Trial Court, the Trial Courthas

rightly directed for residence order, monetary relief and

protectionorders. Since, the child is in the custody of respondent,

the custodyorder is also within the framework of the Act. Ld. counsel

for respondentsubmits that the law laiddownin S.R. Batra case (Supra),

does notapply to the present case firstly, the first floor of the

house is the shareholdhouse of the parties, secondly, the appellant is

still living there. Theother case Nidhi Kumar Gandhi (Supra) is in

favour of respondent, sincethere was modalities settled how the

shareholdhouse will be used bythe parties. The judgment is based on

the material available on

record,it is well reasoned judgment and the appeal is without merit,

it is liable tobe dismissed, with an exemplary cost. Ld. counsel also

relies upon P.Babu Venkatesh vs. Rani 2008 (4) LRC 148 that the

respondent hasrights in the shareholdhouse to reside and the residence

order can beenforced with the assistance of police.3.1 (Findings) –

The rival contentions are assessed in the light ofstatutory provisions

of law, particularly the Protection of Woman fromDomestic Violence

Act, 2005, the Code of Criminal Procedure, 1973. inthe case of

parties, there is no dispute that they married on 10.11.2003,baby

child Naisha was born on 01.02.2008, the parties resided togetherat

the first floor of House No. 7/153, Subhash Nagar, Delhi and

therespondent has been living with her parents with effect from

06.06.2008.The appellant resides at first floor of House No. 7/153,

Subhash Nagar,Delhi. There is also matter of record of registration of

FIR No.20/02.02. 2009

under section 498A/406/34 IPC with Police StationCrime Against Women

Cell, Nanak Pura, visavisacknowledgme nt ofreceipt of articles on

06.11.2008 and 16.01.2009 before the CrimeAgainst Women Cell by the

respondent, and other proceedings betweenthe parties.3.2 A question on

the point of law of following the procedure fordisposal of application

under section 12 of the Act has been raised,whether it has been

followed or not, is required to be determined.* ********* 4.1

Therefore, the question is “What is the Procedure for dealingwith

application under section 12 of Protection of Woman fromDomestic

Violence Act, 2005 ?” “Where is procedure provided ?”4.2 (Reg.

PROCEDURE)– Section 12 of the Act is in respect ofapplication by or on

behalf of aggrieved person for one or more of thereliefs provided

under the Act. Section 18 of the Act provides provisionof Protection

Orders, Section 19 in respect of Residence Orders,Section 20 is of

Monetary Relief

(inclusive of losses of earnings,medical expenses, maintenance for

aggrieved person and of children),Section 21 is of Temporary Custody

Order of child/children of aggrievedperson and Section 22 is in

respect of Payment of Compensation andDamages for the injuries

(inclusive of mental torture and emotionaldistress) .Section 23 of the

Act empowers the Magistrate to grant exparteorder and interim orders

on the basis of affidavits in the Formprescribed. Section 28 of the

Act prescribes procedure, while dealingwith the application under

section 12 visavisorders on certain reliefsprescribed under sections

18, 19, 20, 21 and 22, besides the procedureto be followed in respect

of applicability of procedure to Sections 23 and31 of the Act.

Sections 23 and 28 of the Act are reproduced hereunder Section23 –

Power to grant interim and exparteorders – (1) In anyproceeding before

him under this Act, the Magistrate may pass such interimorder as he

deems just as

proper.(2) If the Magistrate is satisfied that an application prima

facie disclosesthat the respondent is committing, or has committed an

act of domesticviolence or that there is a likelihood that the

respondent may commit an actof domestic violence, he may grant an

exparteorder on the basis of theaffidavit in such form, as may be

prescribed, of the aggrieved person undersection 18, section 19,

section 20, section 21 or, as the case may be, section 22against the

respondent.Section 28 – Procedure – (1) Save as otherwise provided in

this Act, allproceedings under sections 12, 18, 19, 20, 21, 22 and 23

and offences undersection 31 shall be governed by the provisions of

the Code of CriminalProcedure, 1973.(2) Nothing in subsection(1) shall

prevent the Court from laying downits own procedure for disposal of an

application under section 12 or undersubsection( 2) of Section 23.By

reading both parts of Section 28 of the Act together,procedure to be

followed

is – (i) as per the procedure provided in theAct, (ii) the proceedings

shall be governed by the procedure of Code ofCriminal Procedure, even

in respect of interim orders and exparteorders qua Section 23 of the

Act and (iii) Court may laiddownits ownprocedure in terms of

subsection2 of Section 23 of the Act. Whetherthe Act provides any

procedure.Section 37 of the Act empowers the Central Government tomake

rules and pursuant to exercising of such powers, the CentralGovernment

has framed the Protection of Women from DomesticViolence Rules, 2006

(published in the gazetted on 17.10.2006); therelevant Rule 6 reads as

follows Rule6 – Applications to the Magistrate (1) Every application

of theaggrieved person under section 12 shall be in Form II or as

nearly as possiblethereto. (2) An aggrieved person may seek the

assistance of the Protection Officerin preparing her application under

subrule(1) and forwarding the same tothe concerned Magistrate.( 3) In

case

the aggrieved person is illiterate, the Protection Officer shallread

over the application and explain to her the contents thereof.(4) The

affidavit to be filed under subsection(2) of section 23 shall befiled

in Form II.(5) The applications under section 12 shall be dealt with

and the ordersenforced in the same manner laid down under section 125

of the Code ofCriminal Procedure, 1973.Rule 6 (4) prescribes form of

affidavit in respect of exparteorders and grant of interim orders.

Rule 6 (5) states that applicationunder Section 12 of the Act shall be

dealt and the orders be enforced, aslaiddownunder section 125 Cr.P.C.

The Section 125 Cr.P.C reads asfollows Section125 Cr.P.C – Order for

maintenance of wives, children andparents (1) If any person having

sufficient means neglects or refuses tomaintain (a) his wife, unable

to maintain herself, or(b) his legitimate or illegitimate minor child,

whether marriedor not, unable to maintain itself, or(c) .. .. ..

.. .. ..(d) .. .. .. .. .. ..a Magistrate of the first class may, upon

proof of such neglect or refusal,order such person to make a monthly

allowance for the maintenance of hiswife or such child, father or

mother, at such monthly rate, as suchMagistrate thinks fit, and to pay

the same to such person as the Magistratemay from time to time

direct :Provided that the Magistrate may order the father of a minor

femalechild referred to in clause (b) to make such allowance, until

she attains hermajority, if the Magistrate is satisfied that the

husband of such minorfemale child, if married, is not possessed to

sufficient means.What is “proof” or how the facts or documents are

proved,Chapter IV, Chapter V and Chapter X of the Indian Evidence Act,

1872defines them, the relevant provisions of Sections 59, 60, 61

andSections 135, 137 and 138 are reproduced hereunder Section59 –

Proof of facts by oral evidence – All facts, except the(contents of

documents or

electronic records), may be proved by oralevidence. Section 60 – Oral

evidence must be direct Oralevidence must, in allcases whatever, be

direct; that is to say ifit refers to a fact which could be seen, it

must be the evidence of a witnesswho says he saw it;if it refers to a

fact which could be heard, it must be the evidence of awitness who

says he heard it;if it refers to a fact which could be perceived by

any other sense or in anyother manner, it must be the evidence of a

witness who says he perceived itby that sense in that manner;if it

refers to an opinion or to the grounds on which that opinion is held,

itmust be the evidence of the person who holds that opinion on

thosegrounds :Provided .. .. .. .. .. ..Section 61 – Proof of contents

of documents – The contents ofdocuments may be proved either by

primary or by secondary evidence.Section135 – Order of production and

examination of witnesses Theorder in which witnesses are produced and

examined shall be regulatedby the law and practice for the time being

relating to civil and criminalprocedure respectively, and, in the

absence of any such law, by the discretionof the Court.Section 137 –

Examinationinchief– The examination of a witness bythe party who calls

him shall be called his examinationinchief. Crossexamination– The

examination of a witness by the adverseparty shall be called his

crossexamination. Reexamination– The examination of a witness,

subsequent to thecrossexamination by the party who called him, shall

be called his reexamination. Section 138 – Order of examination –

Witnesses shall be first examinedinchief, then (if the adverse party

so desires) crossexamined, then (if theparty calling him so desires)

reexamined.The examination and crossexaminationmus t relate to

relevant facts,but the crossexaminationnee d not be confined to the

facts to which thewitness testified on his examinationinchief.

Direction of

reexamination– The reexaminationshall be directedto the explanation of

matters referred to in crossexamination; and, ifnew matter is by

permission of the Court, introduced in reexamination, the adverse

party may further crossexaminationupo nthat matter.Section 125 Cr.P.C

is not in isolation. Procedure forapplication under section 125 Cr.P.C

is prescribed in Section 126Cr.P.C, since there are substantive

provisions as well as adjectiveprovisions ; as Chapter XI (Section 125

to 128) of Cr.P.C is a Code initself in respect of order for

maintenance. Rule 6 (5) of the Rules 2006talks about orders as well as

its enforcement; maintenance orders andtheir enforcement are governed

by Chapter XI of Cr.P.C. This Chapter XIdeals with the applications,

the applications are not the complaint, ascomplaints are subject

matter of Chapter XV of complaints to Magistrate.Section 126 Cr.P.C is

relevant, it reads as follows Section126 Cr.P.C – Procedure – (1)

Proceedings

under section 125 maybe taken against any person in any district

(a) .. .. .. .. .. ..(b) .. .. .. .. .. ..(c) .. .. .. .. .. ..(2) All

evidence in such proceedings shall be taken in the presence ofthe

person against whom an order for payment of maintenance is proposedto

be made, or, when his personal attendance is dispensed with, in

thepresence of his pleader, and shall be recorded in the manner

prescribed forsummonscases: Provided that if the Magistrate is

satisfied that the person against whoman order for payment of

maintenance is proposed to be made is wilfullyavoiding service, or

wilfully neglecting to attend the Court, the Magistratemay proceed to

hear and determine the case exparteand any order so mademay be set

aside for good cause shown on an application made within threemonths

from the date thereof subject to such terms including terms as

topayment of costs to the opposite party as the Magistrate may think

just andproper.(3) .. .. .. .. ..

..Section 126 Cr.P.C mandates that in the application formaintenance,

the evidence is required to be recorded in the mannerprescribed for

summons cases. Chapter XXIII (evidence in inquiries andtrials),

prescribes mode of taking and recording evidence and Section274 Cr.P.C

is in respect of summons cases, it is reproduced as follows Section274

Cr.P.C – Record in summonscasesand inquires (1) Inall

summonscasestried before a Magistrate, in all inquiries undersections

145 to 148 (both inclusive), and in all proceedings under section

446otherwise than in the course of a trial, the Magistrate shall, as

theexamination of each witness proceeds, make a memorandum of

thesubstance of his evidence in the language of the Court :Provided

that if the Magistrate is unable to make such memorandumhimself, he

shall, after recording the reason of his inability, cause

suchmemorandum to be made in writing or from his dictation in open

Court.(2) Such memorandum shall be

signed by the Magistrate and shallform part of the record.4.3 On the

plain reading of statutory provisions of the Act, Rulesframed under

the Act and the borrowed provision of Cr.P.C. in respectof procedure

to be followed, in respect of application under section 12 ofthe Act,

the following conclusions are drawn, to elucidate Section 28 ofthe Act

(i) there exists provisions of procedure under the Act itself, to be

followed in respect of theapplication, more particularly rule 6 of the

Rules, 2006; Act is a parent statute and CentralGovernment framed

Rules under the scheme of parent statute; and(ii) the provisions of

Code of Criminal Procedure has also been adopted for dealing

theapplication. To say, for the purposes of procedure, in terms of

subsection1 of Section 28 ofthe Act, there exists provisions in the

Act to be followed by the Magistrate and the same will begoverned by

the Code of Criminal Procedure. It is a mandatory provision. So far

subsection2of

Section 28 of the Act is concerned, it empowers the Court to lay its

own procedure inrespect of disposal of application under section 12 of

the Act or in respect of exparteordersand interim order under section

23 (2) of the Act.Whether the Magistrate/Court shall devise its own

procedure under section 2 of 28of the Act, during the existence of

procedure under the Act read with the provisions of Cr.P.C.Since it is

the mandatory requirement of subsection1 of Section 28 of the Act,

that theprocedure established under the Act governed by the provisions

of Cr.P.C, should be followedby the Court but subsection2 of Section

28 of the Act does not prevent the Court to laiddownits own procedure.

By reading the intent of legislature and the scheme of the Act, the

subsection2 of Section 28 of the Act does not empowers the Court to

ignore the mandatoryprovisions of subsection1 of Section 28 of the

Act, while devising its own procedure. Further,in the eventuality when

the provisions are not available in the Act itself or to be governed

byCr.P.C, the Court/Magistrate cannot lay a procedure, which is

contrary to the establishprinciples of adjudicating law. To say, the

procedure to be led by the Magistrate/Court, shouldbe – (a) within the

policy of law, (b) which is not contrary to the establish procedure or

Section28 (1) of the Act in respect of dealing the applications and

(c) the parties should be informed ofthe procedure laiddownor to be

followed in a particular case, so that it is known to the partieswhat

procedure is to be followed, as ordinarily the procedure is known to

the parties throughthe piece of legislation and on similar lines, the

procedure devised by the Court should beknown to them.4.4 Hence, it is

concluded that there is procedure prescribed.There are identical

provisions in the Act and the Code of CriminalProcedure for interim

maintenance orders and exparteorder; theinterim orders and

exparteorder

under the Act, are governed by Codeof Criminal Procedure. Further,

evidence is one of the necessaryrequiremen t of law, while dealing

with the application under section 12of the Act and for the

aforementioned analysis, following is theprocedure for dealing with

the application under section 12 of the Act,which cannot be curtailed

(i) pleadings of the parties in terms of Rules;(ii) affidavit of the

applicant in the prescribed Form to be filed in support ofapplication

either for exparteorder or for interim orders;(iii) evidence to be

recorded as summons case, inclusive of examinationinchief,

crossexamination or reexamination, crossexamination of the parties

ortheir witnesses as the case may be in terms of provisions of Cr.P.C

and IndianEvidence Act;(iv) documentary evidence may also be led;(v)

arguments;(vi) the final satisfaction of Magistrate will be on the

basis of judicialproceedings conducted and the evidence on record; but

on the basis ofaffidavit, while

dealing with the interim/exparteorde rs; and(vii) in case (i) to (vi),

above, do not meet the requirement, the Court maydevise the procedure

under subsection2 of Section 28 of the Act, but underthe general

Policy of Law and Scheme of the Act.4.5 It is without prejudice to

counseling proceedings. 4.6 The intention of legislature, that

evidence is necessary in suchapplication of maintenance, can also be

gathered from other piece oflegislation and the Muslim Women

(Protection of Rights on Divorce) Act,1986 and the Muslim Women

(Protection of Rights on Divorce) Rules,1986 (although, it does not

apply to the parties of present appeal),which have been framed by the

Central Government, pursuant to theSection 6 of the Act, 1986;

relevant Rule 4, reads as follows Rule4 – Evidence – All evidence in

the proceedings under the Act shall betaken in the presence of the

respondent against whom an order for thepayment of provision and

maintenance, Mahr or (dower) or

the delivery ofproperty is proposed to be made or, when his personal

attendance is dispensedwith, in the presence of his pleader, and shall

be recorded in the mannerspecified for summary trial under the

Code :Provided that if the Magistrate is satisfied that the respondent

is wilfullyavoiding service or wilfully neglecting to attend the

Court, the Magistrate mayproceed to hear and determine the case

exparteand any order so made maybe set aside for good cause shown on

application made within seven days fromthe date thereof subject to

such terms as to payment of cost to the oppositeparty as the

Magistrate may think just and proper.***** *****5.1 Now the next

question is whether the procedure prescribedhas been followed by the

Court of Magistrate in the application ofrespondent, against which the

present appeal has been preferred by theappellant. Let the record be

scrutinized. 5.2 On plain reading of proceedings of the Trial Court,

on03.06.2009 and on

14.09.2009, it was directed for completion ofpleadings and

consideration on the issue of interim protection but lateron, both the

parties were directed for filing of their evidence by affidavitsand

final disposal, without any whisper qua interim reliefs/ orders.

Boththe parties filed their affidavits accompanying certainrecord/

photocopies and one of the party has also filed photographs/

positives. The same have been taken on record and considered in

thearguments and it result into final judgment dated 29.07.2010.

Inparagraph 11 of the impugned judgment, the Trial Court narrated that

alldocuments and the pleadings have been perused and thereafter,

thejudgment was given, which disposed of the respondent’s

applicationunder section 12 of the Act.It is apparent from the

proceedings that the procedure, asdetailed in paragraph 4, above, of

this judgment, has not been followedby the Trial Court. There is no

order by the Magistrate as to whichprocedure has been

devised, if the Magistrate felt that there does notexist procedure in

the Act or the Code of Criminal Procedure, whereas,there exists the

procedure, which is narrated in paragraph 4, above.5.3 The pleadings

have been treated as an evidence but pleadingsare not evidence.

Although, both the parties have placed on record theiraffidavits but

merely filing of affidavit does not amount evidence, asprovisions of

Section 59, 60 and 61 of the Indian Evidence Act, for proofof facts

orally and by documentary evidence, have not been complied;the other

procedure of examination of witnesses or their crossexamination,

envisaged under section 135, 137 and 138 of the IndianEvidence Act,

have also not been complied, as there was noopportunities to the

parties to appear in the witness box or to go throughthe process of

their test of cross examination of statement on Oath. Thesubstance of

FIR was considered as a piece of evidence to concludethat the

respondent was an

“aggrieved person”, whereas, FIR is stillunder investigation, as

informed; thus, chargesheetis yet to be filed,cognizance is yet to be

taken, therefore, merely registration of FIR,would not tantamount to

consider it a conclusive proof. There is noevidence of income of

parties or their liabilities, therefore, an order(under section 24 of

the Hindu Marriage Act, which is passed on thelines of interim order,

pendentelitethe petition), was also considered forgranting monetary

relief. The respondent has been living with herparents for the last

about two years and the first floor of House No.7/153, Subhash Nagar,

Delhi has accommodation (according toappellant – one room and a store,

bathroom and according torespondent – two rooms and bathroom but with

a single entryexitdoor) ,however, the Trial Court has not gone through

the feasibility ofresidence order or modalities or alternate relief in

the form of rent, sinceno evidence was recorded.6.1

(Conclusion) – The impugned judgment dated 29.07.2010 is setaside and

consequently, the other order dated 13.08.2010, which arethe

directions to the SHO, Police Station Rajouri Garden, Delhi, standset

aside. The appeal is allowed, while remanding the case/

applicationunder the title “Charu Kapoor vs. Manish Kapoor” to the

Court of Ld.Metropolitan Magistrate, Delhi, to dispose off the

application undersection 12 of the Act, as per law and the procedure

established, alsoelucidated in paragraph 4 of the judgment. Copy of

the judgment bealso certified to the Trial Court along with the Trial

Court record, fordisposal of the application expeditiously. 6.2

(Further Directions) – Since, the Trial Court of MetropolitanMagistr

ate, Delhi (Mahila Court), is dealing with the cases under

theProtection of Woman from Domestic Violence Act, 2005 read

withProtection of Woman from Domestic Violence Rules, 2006, the

Courtshall ensure that in all the cases, the

procedure established is beingfollowed. 6.3 Copy of this judgment be

also sent to Ld. Chief MetropolitanMagistr ate, Delhi to circulate it

amongst the Courts dealing with theapplication under section 12 of the

Act, so that the procedure elucidatedin paragraph 4 of the judgment,

may operate as a guidance for them.With these observations, the appeal

stands disposed off.(Announced in the open (INDER JEET SINGH)Court on

28th August, 2010) ADDL. DISTRICT & SESSION JUDGEN DELHI

STOP

Advertisements
  1. No comments yet.
  1. No trackbacks yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Fight for Justice

A crusaders blog for inspiring thought.

Stand up for your rights

Gender biased laws

MyNation Foundation - News

News Articles from MyNation, india - News you can use

498afighthard's Blog

Raising Awareness About Gender Biased Laws and its misuse In India

The WordPress.com Blog

The latest news on WordPress.com and the WordPress community.

%d bloggers like this: