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raju (business head)     26 July 2012

Domestic violence act

Dear Sir / Madam,

 

My bro in law filed Divorce petition in March, 2012 and his has filed 498A in april, 2012 and got arrested all of us and now we are out  on bail. Police filed charge sheet in the court a week ago. Now, we came to know that she has filed a case under Domestic Violence Act. Please advise what is to be done? Again police to investigate the matter or it will be in the purview of magistrate only? Can we approach for quashing? Awaiting for your valuable advise and Thanks in advance.



Learning

 21 Replies

Tajobsindia (Senior Partner )     26 July 2012

1. If she has filed DV Complaint directly at Magistrate Court then Magistrate will issue Notice to summon arrayed respondents via Jurisdiction Police Station subject to she filing process fee form attaching copy of the complaint.
2. On the date of hearing present yourself before the Magistrate court and as and why required file exemption application for appearance of those arrayed names whose regular presence is not required till evidence stage. Rest can follow the due process of the Court under DV Complaint case which is to file reply and brief argument over interim protection Orders. etc. are what follows herewith.
3. When final protection order are to be decided by that time Magistrate will ask for DIR from either court attached PO or failing which from jurisdiction police station in charge. Till that time not much you/your side can do.
4. Quash grounds by face of bare reading your brief are not made out at this stage (as per me) Rest may have their independent opinion on quash from your so far brief !.

 

2 Like

sandy (official)     29 July 2012

what is DIR and what is its importance? is it an evidence or it comes under procedure?

Ranee....... (NA)     30 July 2012

DIR...Domestic Incident Report.

Protection officer after investigation of the domestic violenec to the aggrieved person prepares a report and sends to The Court is DIR.

sandy (official)     30 July 2012

but what to do when there is no investigation has been done and DIR has been submitted ?

Tajobsindia (Senior Partner )     30 July 2012

  

Originally posted by : sandy

 


what is DIR and what is its importance? is it an evidence or it comes under procedure?

 

1. An application under S. 12 of Domestic Violence Act has to be treated in accordance with provisions given under the Domestic Violence Act. Domestic Violence Act provides for obtaining domestic incident report (DIR in short) hereinafter.

2. The domestic incident report proforma is given in Form 1 of the Schedule 2 of Domestic Violence Rules, 2006. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence.

3. The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of violence and when it was committed. The proforma specifies different heads of physical violence, s*xual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence. The proforma also provides for filing of documents in support of the application like medico-legal certificate, list of istridhan and other documents.

4. This domestic incident report has to be signed by the aggrieved person.

 

Originally posted by : Ranee.......
 
XXXXX
Protection officer after investigation of the domestic violenec to the aggrieved person prepares a report and sends to The Court is DIR.
 



It makes me laugh at a time pass women's reply above. Thanks heavens Lawyers Collective's 2099 published 212 pages Manual on PO's is in "English language", when this time pass women has difficulty in understanding simple English how one can expect her to understand 212 pages that also in English of the Po's Manual in public domains !!! 
Reasoning to laugh at this unique time pass women replier at LCI:


A.
A DIR is meant to be a faithful record of the complaint presented and is not a report of an investigation. The
PO need not conduct any enquiries at the time of recording the DIR. However, the PO must ensure that the DIR is completed with care and precision and accompanied by all relevant supporting documents.


B. The recording of a DIR does not trigger any judicial or investigative processes, as it is merely a public record of a complaint of domestic violence. Judicial processes are commenced only if the aggrieved person so desires. In order to initiate a judicial process, an application under S. 12 has to be filed in Court.

C. The DIR is to be attached to any such application filed. Even if the aggrieved person chooses not to file an application, the PO has to forward copies of all DIRs recorded to the Magistrate within whose jurisdiction the alleged act of domestic violence has occurred. A Magistrate has to consider any DIRs received from a PO before passing any Orders under the PWDVA. The Magistrate may, therefore, need to consider not only the DIR that is filed along with the application, but also those DIRs that may have been forwarded by the PO on earlier occasion/s. As a public record of an incident of domestic violence, the DIR constitutes valuable evidence of past incidents of domestic violence.

2 Like

Ranee....... (NA)     30 July 2012

Ok.thankyou.got that it is not investigation report, only report.should I send eSweets in PM?

I knew you will come here searhing this uniq time pass lady.:DYou dont have anything to do except fighting with me , nina, good girl and roshni b.(though we all ignore you ! )

sandy (official)     31 July 2012

how to tackle DIR please guide

stanley (Freedom)     01 August 2012

DIR is part of the process normally no investigation is carried out by the P.O  . Than the process of court follows wherein she would be subjected to cross examination by your lawyer and if necessary witness would be called in she would have to prove her claims .  Than she would file a claim for interiem relief for maintanence,custody( if a child is involved ),right to residence etc  where in you can have your say followed by your arguments would take place. As a matter of fact a domestic violence case should end within 60 days but be prepared for full time pass which would last for nearly 3-4 years . 

1 Like

Never Give Up (Fighter)     01 August 2012

Sirjee,


My DV case is going on without DIR..main application was filed in court directly under S 12. I got copy of it on the first date of DV case with all supportings. However i could not find DIR in that attachments. Attachments were copy of my rcr,copy of my gwa,copy of my initial notice and summons for all case.

 

Current stage is we filed reply to original petition and judge has asked bitter half to come with all proofs on next date.


Is it possible (from bitter half's view) that first case can be filed in JMFC court and then file / ask   DIR ?  What happens if there are only allegations and no proofs attached ?? Does court orders interim based on just petition filed under S12 ?

 

 



Tajobsindia (Senior Partner )     01 August 2012

 

 

Originally posted by : Never Give Up

 

My DV case is going on without DIR..main application was filed in court directly under S 12. I got copy of it on the first date of DV case with all supportings. However i could not find DIR in that attachments. Attachments were copy of my rcr,copy of my gwa,copy of my initial notice and summons for all case.
Take: Only stupid litigants allow such process in MM Courts. If there was no DIR then your side should have gone to Sessions Court showing PWDVA Rules, 2006 and got an Order from sessions Court forcing srimati ji to file DIR in assistance with Jurisdiction PO so that her case proceeds. 


Current stage is we filed reply to original petition and judge has asked bitter half to come with all proofs on next date.
Take: Have your side mentioned under preliminary objections before replying paras to S. 12 Application that there is no DIR ? DV Act Interim Protection orders are based on prime facie violence cause of action and for Interim Protection Order to pass prime facie consideration are based on S. 12 Application + Affidavit + DIR and these three are a must procedure to be followed.


Is it possible (from bitter half's view) that first case can be filed in JMFC court and then file / ask   DIR ?  What happens if there are only allegations and no proofs attached ?? Does court orders interim based on just petition filed under S12 ?
Take: Even after filing S. 12 Application DIR is required. That Order the
Magistrate Court gives to wife and to PO attached to the Jurisdiction Court. Court cannot pass Interim Protection order without DIR and unless and until DIR absence is challenged your side defense is weak. Now what she is going to do is file whatever proof / evidences she has and then PO will see those and tailor make DIR just for her as PO has no other choice because neither Court has directed PO to file DIR nor aggrieved person / wife approached a PO to record incidences of violence under various heads in a DIR he he

1 Like

Never Give Up (Fighter)     01 August 2012

Sirjee,

 

Can we modify / add new objection to existing written reply (objections)  which is already filed in the court ? And include objection that DIR is not there and no interim should not be passed .

 

If my judge follow the process that case can not proceed without S 12 application + affidavit + dir then its  great relief for me ..Let bitter half run here and there to prepare DIR, mean while i will take a chill-pill :-)

Tajobsindia (Senior Partner )     01 August 2012

 

Originally posted by : Never Give Up

 

Can we modify / add new objection to existing written reply (objections)  which is already filed in the court ? And include objection that DIR is not there and no interim should not be passed .
Take: Yes but with leave of the Court. 

If my judge follow the process that case can not proceed without S 12 application + affidavit + dir then its  great relief for me ..Let bitter half run here and there to prepare DIR, mean while i will take a chill-pill :-)
Take: Wrong thinking.

The reasoning of the Jharkhand High Court [ref.: Rakesh Sachdeva & Ors. v. State of Jharkhand & Anr 2011 CrLJ 158] and M.P. High Court [ref.: Ajay Kant & Ors. v. Alka Sharma 2008 CrLJ 264] on one hand, and the Guwahati High Court [ref.: Md. Basit v. State of Assam in CrRev. P. No 175/2011 decided on 9th June 2011] as well as Delhi HC [ref.: Shambhu Prasad Singh vs Manjari CRL.M.C. 3083/2011 & CRL.M.A.10914/2011 decided on 17th. May 2012] on the other hand is that while the former two held that the orders referred in the proviso to S. 12(1) refer to only the final orders that may be passed under Sections 19 - 22 of the Act, the latter two view declines to hold so. The Guwahati High Court as well as Delhi HC in addition, held that if the DIR is available the same must be taken into consideration before passing an order.

BTW in all above 4 citations the challenge before HC was Notice and or Ex-parte Order and not Interim Protection Order which is where crucial fine line of difference lies.

Mind it I didn’t challenge in your above query if DIR "is a must" for issue of Notice (a Notice is also interim Order) or for ex parte (this is also a interim order). All that I advised you to challenge before Sessions Court was that even after issue of Notice as well as after submission of reply by respondent(s) the Magistrate as is your case has given now an Order whereby directing in your case the aggrieved person / wife to submit "evidences/ proof" of domestic violence under different prayed headings of her S. 12 Application and there is no whisper of DIR to be filed or not?.

 

That is where the difference lies as no HC's till date has clarified this position and suppose after "evidences / proofs" submissions by your wife an Order (Interim Protection) is passed and still no DIR filing Order there then what that Interim Order is all about is one question (people will say it is prime facie Order – I say how)? Moreover it is well known fact that "interim order merges with final order" - right, so even after passing of Interim Order still no direction for DIR is passed then what for under Rule 6 and the Form (DIR) appended to the Rules have to be read (import) into S. 12 is my prudent question here? It also means there is not necessarily to even file DIR even when Final Order is about to be passed OR only at final order passing stage DIR becomes a must as formality because it is mentioned in Rules and or DIR is called for by same Magistrate! But then where the question goes "interim order merges wi th final order" and is it highly unlikely that say as eg. during Interim order without DIR Magistrate has passed 10 K as interim maintenance will he now after "evidence/proof" has power to resend it to 2 K or to nil at the time of passing of Final Order even in absence of DIR?  Have you seen such Judgment from a Magistrate Court?

Another illustration suppose without DIR Magistrate has passed interim order for residence rights and at final order stage can he resend it to no residence rights order all of sudden that now DIR is called for by the Court?

Donot readers find “fine line of no clear cut clarity” on DIR is there by various HC’s?

Donot reader think that this question of Law should go to SC as no HC has given clarity if DIR is a must or not and when it becomes must i.e. at the time of passing of Interim Order and/or at Final Order stage?

Take another crude import of above two illustrations suppose in S. 125 CrPC interim order is stated to be 10 K does it after production of “evidence / proof” of wife gets lower down to 2 K or nil by same Magistrate Court? I know in S. 125 CrPC concept of DIR is not there which is besides the fundamental point I am raising, but DV is similar to S. 125 CrPC – right or wrong!

Under DV Act it clearly states no prosecution against "good intent" of a PO. So what the Magistrates are doing in name of "prime facie" is giving readymade materials to PO to NOW MAKE DIR as I have already given Interim and or Final Order in this complaint case!



Every State’s duty is to appoint an PO at the earliest. PO’s pool is from Social Science young graduate background who get roughly 12 K on an national average as stipend per month. Every Court gets a pool of such PO to run DV Complaint cases and even in their absence Jurisdiction Police Station has been given power to make DIR and or even if that route not followed then you have option that a NGO or registered Service Provider has been given power to make DIR by instructions of a Court. So in a way Magistrates are giving readymade materials to all 4 above people to now make DIR so where you are going to challenge if suppose an adversial Interim order is announced and do you think currently any HC has made position clear when and at what stage DIR becomes must and how it can become must when Interim protection Order in the absence of DIR is already passed?


To me it looks absurd "interpretation of legislative intent" at same
Magistrate Court hearing a DV proceedings on DIR.

 

1 Like

stanley (Freedom)     01 August 2012

Yeah ready made material is given to file DIR and the points in it are so vague  . Like for example the respondent is capable of selling utensils from the house,the applicant may be driven to commit sucide due to the behaviour of the respondent   where in there is a tick box for the P.O to just tick it and all the P.O does it tick marks it and then there is a clause in the DV act that the P.O cannot be prosecuted . The very meaning of a domestic incident report mean's  a incident that has taken place and not the prospects of a incident or predication taking place in the future .  

wonder (fgh)     08 November 2012

Till the protection orders are decided, is there no way that the accused can get the copy of either DIR or Medical Record ?

If yes then what are the ways ?


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