WHAT IS THE CORRECT INTERPRETATION OF FOLLOWING JUDGEMENT?

Now this judgment is sought to be relied upon by the aggrieved person to say that she is not required to establish her case of Domestic Violence. In other words the aggrieved person claims that she is entitled for Maintenance u/s 20 of DV act although she does not establish her case of Domestic Violence. Does this judgment mean so?

If it in fact means so, is it not an erroneous judgment especially in view of s. 28(1) of the DV act which says except as otherwise provided in the DV act all proceedings shall be governed by the provisions of the Code of Criminal Procedure. Further DV rule 6(5) of 2006 says the application under Section 12 of the Act shall be dealt with and the orders enforced in the manner prescribed under Section 125 of the Cr.P.C. Whereas S.126(2) of Cr.P.C. says all evidence in S.125 proceedings shall be recorded in the manner prescribed for summons case. Similarly S,23(2) of DV act says that ad interim relief can be granted if the Magistrate is satisfied if the respondent is “committing” or has “committed” or there is “likelihood” of the respondent committing Domestic Violence. Thus for granting ad interim relief the Magistrate should be satisfied of domestic violence, does it not therefore mean that the aggrieved person has to establish her case of Domestic Violence before the application u/s12 is disposed of?

Well explained Anil Kumar Menon

Gud explaination has been made.

Dear Anil Ji, that is simply a classic case and your interpretation of the Judgement is simply supreb. That Judgement along with you interpretation should be pasted in the Supreme Court and all other Courts in the Country for our future guidence. Thank you Anil sahab.

Thanks Sunderraj, Rajkumar & Assumi ji

Unfortunately my arguement did not succeed before the Session Judge. He relied upon the above judgment and decided in favor of the Complaint on 7th Dcember 2009.

While the trial court relied upon the affidavit and granted mainteance  to the Complainant while holding there was no domestic violence.

The Session Court reversed the order of administration of justice. In order to sustain the order of maintenance passed in favor of the complainant, the sessions court altered the findings the findings of the trial court and came to a conclusion that there was domestic violence and in order to alter the findings he had come to a conclusion that affidavits can be the mode of recording of evidence in a DV case by relying upon the above Jharkand decision.

While S.23 of DV act clearly says that affidavit can be used for  granting interim relief. Does it not therefore mean final relief cannot be granted on the basis of affidavit?

Is it not correct that S.28 (2) empowers the magistrate to lay down its own procedure? Does it mean that the magistrate can follow any procedure without laying down the procedure?

The Hon’ble Madhya Pradesh High Court, in the matter of Madhusudan Bhardwaj & Ors. Vs Mamta Bhardwaj in Criminal Revision No. 826 of 2007 has held that

“Under Section 37 of the Act, the Rules are framed which have been published in the Gazette of India, Extra., Pt.II Sec. 3(i), dated 17^th October, 2006 vide G.S.R. No. 644(E), dated 17^th October, 2006. Thus, these Rules framed by Central Government are having statutory force and shall require to be given effect to. Although vide sub-section (3) of Section 37 of the Act the parliament can amend or disagree with the Rules, yet unless such amendment or disagreement comes in existence, the operation of these Rules will remain in force and have to be effective. Perhaps considering the ambiguous situation, that in Section 28(1) of the Act the Legislature has given a mandate to follow the procedure as laid down in Cr.P.C., but the same has not been clarified as to what procedure will be adopted in dealing with the application under Section 12 of the Act, the Rule 6(5) has been framed. It appears that now the ambiguity has been removed by Rule 6(5) in further mandatory words by mentioning, that the application under Section 12 shall be dealt with and order enforced in the same manner as laid down under Section 125 of Cr.P.C.

8-C. As observed by the three different Benches of High Court in aforementioned orders in the case of Het Ram (Supra), Sankarasetty Pompanna (Supra) and Pendiyala Sureshkumar Ramarao (Supra) without providing opportunity of leading evidence such application cannot be disposed of. Similar is the procedure required to be adopted to deal with an application under Section 12 of the Act to comply the direction under Section 28(1) of the Act read with Rule 6(5) of the Rules.”

The Hon’ble Madhya Pradesh High Court, in the aforesaid matter has further held that

“It is also true, that sub-section (2) of Section 28 provides, that nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 of the Act. By cumulative reading of Section 28 sub-sections (1) and (2) of the Act and Rule 6 (5) of the Rules, it appears that sub-section (2) of Section 28 of the Ac appears to have been enacted looking to the peculiar nature of the Act and also the existence of aforementioned ambiguity with regard to the provision of Section 28(1) of the Act, but now ambiguity has been removed by the Central Government under its powers given by Section 37 of the Act.”