Applicability of order

Originally posted by : Jitendra
	Against Trial Courts Maintenance Order u/s '23' , I had moved Sessions  Court  an  Appeal u/s '29' of DV Act & Application for stay. The Sessions  had asked to submit 'Paper Book' and fixed date for admittance arguments and stay. In the mean time, the Applicant  has  moved application before Trial Court  with a Prayer to strike down defence due to non payment   under  Order 39 rule 11 r/w section 151 of Civil Procedure Code. Query:- (A)) Is  Civil Procedure Code applicable to case under DV Act? (B)  Is  Order 39 Rule 11 r/w  section 151 of CPC applicable for striking down defence in DV Case (C)  Any citation on the subject ? (D) Is application maintainable when  my Appeal  before Sessions Court  is still under consideration? Thanks  & Greetings on Dusherra

Hello:

Whatever order might be under section 23 of pwdva..

Once you have gone for appeal, it is your duty to ask for entire records from trial court [ie magistrate court] to the sessions court, then at the same time it is your duty to inform the magistrate that you have already gone for appeal against IA passed under section 23 of DV act.

When you go to sessions court..

First make call of records ie LCR.

Second, ask for stay on the interim order passed by trial court ie magistrate court.

Once you get stay, the petitioner ie your wife cannot ask for execution orders in trial court, as simple as that.

Hope you got the point.

CPC is enforceable under DV, in which magistrate has got right to order u/s 23 of dv act.

Thanks for your reply

1. (a) Before the sessions court, the stay application as well  as request to call for Court Records , was prayed.

(b) Hon. Sessions Court, while issuing Notice to Other party and fixing of date for Admission hearing  had asked for submission of 'paper book'' ;as it is of opinion 'due process of law" ought not to be delayed

2. HOWEVER

(a) Instead of filing "Examiner-in-Chief", resorting to filling the application under CPC to strike down defence is nothing but delay tactic ;AS

(i) Other party is already in receipt of maintenance granted to her  by other  forum; AND herein in the impugned order Trial Court has granted additional Maintenance over and above already in receipt from other forum.

3. Having said that, with respect to applicability of CPC;

(a) Section 28 of DV Act in explicit terms lays stipulation that the Proceedings under sections 12, 18,19,20,21, 22 and 23 and offences under section 31 SHALL be governed by the provisions of Code of Criminal Proceedings Procedure 1973.

(b) Hon Supreme Court vide paragraph '24' of its judgment  dated 23 Aug 2011 in the matter of CRIMINAL APPEAL NO. 1635 of 2011 Arising out of SLP(Crl.) No. 7787 of 2010)24.  had  ruled as under

"........... in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date  of the incident seem to be preponderous in view of the provisions of  Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which  make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v. Chandra Sekhar  Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508."

4. In view thereof, I beg to differ with your opinion on the subject matter of applicability of provisions of CPC to proceedings under DV Act . ( ONLY  Code of Criminal Procedure 1973 is applicable)

Regard & best wishes for Dusherra