A Hindu lady left her husband in May 2005, and started leaving separately at her mother’s house since then. At the time of leaving her husband, she was two months pregnant, & she has left the Matrimonial house basically for rest during the initial period of pregnancy at her mother’s house. She delivered a baby girl in November 2005. Her marriage was solemnized on 19th December 2002.

She filed a complaint, in the month of October 2008 i.e. after lapse of 41 months under the Domestic Violence Act, claiming various reliefs, against the husband, mother-in-law & sister-in-law. All the allegation she made was for a period before the enactment of the Domestic Violence Act , which has come into effect on 13th Sep 2005. Its also pertinent to note that till October 2008 she has not even whispered any thing about the allegation, in various meeting held before the pancha & her community people, but basically wanted the husband to purchase a flat away from his parents, for which the husband refused.


The Ld. Magistrate while disposing of the application ordered the husband to pay a sum of Rs.4000/- per months to the wife & Rs.1500/- per month to the daughter as maintenance & further ordered a sum of Rs.3000/- to be paid as rent to the wife. The Ld. Magistrate rejected the complaint against the mother-in-law & sister-in-law.


While granting relief to the wife on the complaint the Ld. Magistrate recorded a finding that since May 2005 the wife was residing at her parent’s place & therefore she has not suffered domestic violence at the hands of the husband or her in laws. The Ld. Magistrate failed to record a finding as to whether the wife suffered domestic violence prior to May 2005.


The husband challenged the grant of relief to the wife in the Hon’ble Sessions Court. The case of the husband in Appeal was that the Ld. Magistrate could not have granted relief to the wife under the D.V. Act in the absence of a finding that the wife was a victim of Domestic Violence. And moreover there was no domestic incident report from the protection officer.

 Secondly, the husband contended in Appeal that the Ld. Magistrate followed an invalid and improper procedure of recording evidence on Affidavit contrary to the procedure laid down in the Domestic Violence Act & the Criminal Procedure Code.


The Ld. Sessions Court in order to sustain the relief granted by the Ld. Magistrate altered the findings and concluded that the wife has in fact suffered Domestic Violence, on the basis of assumption that otherwise she would not have left the company of her Husband, despite the fact that neither the husband nor the wife had challenged the findings. The Ld. Sessions Judge in order to  sustain his findings, did not find any fault in the procedure adopted by the Ld. Magistrate in recording the evidence on the basis of Affidavit despite the same being contrary to the provisions of Domestic Violence Act & Criminal Procedure Code.


A reading of Domestic Violence Act reveals that it does not contain any self-contained procedure for its administration. While section 23 of the D.V. Act specifically provides that ad interim relief can be granted on the basis of affidavit, the Act is silent with regard to the utility of the Affidavit for granting final relief. Relaying on the principle “Inclusion of one exclude the other” one can safely infer that a final relief under the D.V. Act can not be granted on the basis of Affidavit.  


In so far as grant of final relief is concerned the D.V. Act by the proviso to Sec.12 mandates that the Magistrate should take into consideration a domestic incident report from the protection officer before granting final relief under the D.V. Act. Secondly, Sec.28 (1) of D.V. Act specifically provides that except for matters not specifically provided for under the Act the proceedings shall by governed by the code of criminal procedure. Thirdly, Rule 6 (5) of D.V. Rules 2006 specifically provides that application under the Domestic Violence Act shall be dealt with in the manner prescribed under Sec.125 of Cr. P.C.  Sec.126 Cr. P.C prescribes the manner for proceeding u/s.125 Cr. P.C., which states the procedure to be followed, is that of summons case, which does not permit recording of evidence, based on Affidavit. In other words, a final relief under the D.V. Act can be granted after trial in accordance with the procedure for summons case and after taking into considerations the domestic incident report of a protection officer.


However, the judicial officers have started administrating the act according to there fancies relying upon Sec.28(2) of Domestic Violence Act. While Sec.28(2) states that “nothing in sub section 28(1) shall prevent the court from laying down its own procedure for disposal of an application u/s.12 or under the sub section 2 of Sec.23”, what it really means is that the D.V. Act has reserved a right in favour of the Ld. Magistrate to lay down his own procedure for administration of Act. This reservation of right does not permit the Ld. Magistrate to follow whatever procedure he wants without in the first instance laying down the procedure. In other words the powers vested in the Ld. Magistrate under Sec.28(2) of D.V. Act has to be used sparingly and in exceptional   circumstances. Ordinarily the procedure laid down in Cr.P.C. has to be followed. As the power u/s.28(2) of D.V. Act is an extra ordinary power the statute itself has tried to prevent its misuse or its arbitrary or irrational use by requiring that the Ld. Magistrate lay down the procedure. It is pertinent to note that Sec.28(2) of D.V. Act does not say that the Ld. Magistrate may follow whatever procedure he wants but states that the Ld. Magistrate ‘can lay down his own procedure’.


Thus Domestic Violence Act has to be administered in accordance with the procedure laid down in the D.V. act & the Criminal Procedure Code & the Rules therein. The Ld. Magistrate can ignore the procedure laid down in D.V. Act & Cr. P.C. only if he laid  down his own procedure in exercise of the powers vested u/s.28(2) of D.V Act, so that the parties to the litigation is also put to notice of the same.. Without laying down his own procedure, he cannot follow a procedure contrary to D.V. Act & Cr. P.C. If he does so the proceedings are liable to be quashed & set side as being in valid & in proper.

This is the only way a harmony can be brought about between Sec.28(1) & 28(2) of the D.V. Act. A different interpretation will have the effect of Sec.28 (2) of the D.V. Act repealing proviso to Sec.12, Sec.28 (1) & Rule 6(5) of D.V. Rules 2006. As both the sections are incorporated in the statute and they have to co-exist.

 Administration of D V Act by the judicial officers as in the instant case is a violation of the principle of natural justice & amounts to administration of justices in accordance with the rule of the Judge & not in accordance with the rule of law.

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