Below is a attempt to bring in prudent Adv. brothers to debate on Rule 6 (5) of DV Act
Bharat Ratna DV Act interpreted in terms of Rule 6 sub Rule 5 in relation to Hon’ble M.P. High Court Judgment re. Madhusudhan Bharadwaj & Ors. Vs. Mamta Bharadwaj [2009 CrlLJ 3095]
Bharat Ratna DV Act 2005 has been classified as a Civil Law and the only one penal provision has been notified that is S. 31.
Now, looking at the Act 2005, it's various Sections and the rules defined in Bharat Ratna Domestic Violence Rules, 2006, the fundamental question one need to answer is whether the Bharat Ratna DV Act 2005 is a Civil Law or a Criminal Law?
More women groups have said that it is a civil law and as current laws does not provide ample protection and the remedies, such a law was required to restrain men from committing Acts of domestic violence.
Now prudent persons raises the following questions:-
A. It is touted as a Civil Law, but a ld. Magistrate hears the case and the cases are entered / indexed / classified as a Criminal Miscellaneous case and not as a Civil case. Of course even a family court can try these offenses. The family court is a special court with magisterial powers to deal with cases under S. 125 of Cr.P.C.
B. Applicant / aggrieved person is asking for quick remedies like maintenance and residence orders, child custody etc. - Applicant / aggrieved person have S. 125 of Cr.P.C, which is also tried by a Ld. MM providing similar relief’s and of course, Ld. MM is adapting the procedure as defined in S. 125 to 128 Cr. P. C. - Refer to Rule 6(5). Even S. 125 CrPC has a penal provision in terms of S. 125 (3), even though with Proviso.
C. Applicant / aggrieved person call this a civil law, a piece of social justice and not a criminal law. But Applicant / aggrieved person involves police - Refer to S. 5 & S. 9 (1) (b) - who otherwise cannot be involved without the support of Cr.P.C. (The Code in short). Police has no business to get involved in civil matters that also in family matters.
D. Applicant / aggrieved person calls this a Civil Law but S. 28 (1) unambiguously mentions that - "Save as otherwise provided in this Act, all proceedings under S(s) 12, 18, 19, 20, 21, 22 and 23 and offenses under S. 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974)" - Now it is a Civil Law but bound by Criminal Procedure Code. Further S. 28 (2) allows the Ld. MM to lay down his own procedure while disposing the applications made under S. 12 & Section 23 (2), which has very dangerous implications. Many a times (all most all the times qua) a lady uses this provision to avoid the process of evidence and cross-examination and hence provides a preference to a women – Which is a Clear violation of Article 14 of Constitution of India. Further, Rule 6 (5) specifies that all applications under S. 12 are dealt with and Orders are enforced as defined in S. 125 of Cr.P.C.
To get more clarity as to whether the Bharat Ratna DV Act is a Civil or a Criminal Law, one has to do a conjoint reading of the S. 28 (1) & (2) of the Act, Rule 6 (5) & S. 125 - 126 of Cr.P.C.
1. According to Rules - Rule 6(5), the procedure to be adapted is as defined in S. 125 Cr.P.C., which in turn clearly defines in S. 126 of Cr.P.C the actual procedure to be followed. Further S. 126 (2) of Cr.P.C clearly mentions that all evidences must be recorded in presence of the party against whom an order is proposed to be made and the all the evidences are recorded as defined in summons-cases.
Now take a look at Chapter 20 & 21 of Cr.P.C which deals with summons-cases & summary trials respectively.
1. S. 262 (1) in Chapter 21 of Cr.P.C very clearly defines that one need to follow the procedure defined in Chapter 20 of Cr.P.C, i.e., as defined for summons-cases are to be followed unless explicitly mentioned.
That means, that even for any trials on the applications (remember Application filed u/s 12 (1) of the Bharat Ratna DV Act is defined just an application not a complaint) filed under S. 12 of Bharat Ratna DV Act 2005, recording of plea, if not a formal statement of charge is required as per S. 251 of Cr.P.C. If one considers that the statement of objections filed by the respondent as his plea, the magistrate has the power to convict the respondent on plea of guilty as per S. 252 of Cr.P.C or proceed to recording of evidences as defined under S. 254 of Cr.P.C., and finally conclude the case.
Now, it becomes clear that for disposal applications filed under S. 12 of the Bharat Ratna DV Act, 2005, procedure defined in summons-cases must be adapted.
The very classification of cases as Summons-case or Warrant case are applicable only in a criminal law and not for a Civil law. Hence, as the procedure adapted for disposal of applications filed under S. 12 of DV Act 2005 is that of summons-cases, the very Act must be held as a criminal law and not as a civil law. The fundamental principle is that "no criminal law is retrospective in nature" and if it is given such retrospective effect, it will be clear violation of Article 20 (1) of Constitution of India.
To get more clarity, refer to the Citation published in 2009 CrlLJ 3095, High Court of Madhya Pradesh (Gwalior Bench) - Case No. Cri. Rev. 826 / 2007 decided on
With all the legislation already enacted to provide social justice, speedy & civil remedies etc., was there a need to enact a new law & give it a retrospective effect? Legislation could have amended the existing legislation such as S. 125 of Cr.P.C to include residence orders, (which otherwise or any way provided by many marriage laws including Hindu Marriage Act and / or
Giving it a retrospective effect is still worst. We must be aware that a married women cannot levy dowry charges after 7 years of marriage. This law negates that limitation (saving recent Judgment of Hon’ble SC in a MCD case where ex wife files Bharat Ratna DV Act and Hon’ble Bench of SC dismissed the appeal stating CrPC limitation S. 468) In the name of the "shared household", the husband is thrown out of his own earned house or from his inherited house under the disguise of preventing further violence. In the advent of providing speedy remedies, man's voice is snubbed. It is assumed under the disguise of "prima facie" that man is always at fault. It is always assumed that women never tell lies and whatever she tells is gospel truth! Husband resists, charge him under S. 31 of the Bharat Ratna DV Act, make a separate case under S. 498a IPC, Dowry Prohibition Act etc. In Kannada there is a proverb - "Bull gave birth, tie it in backyard". No one ever attempts to check whether a Bull can ever give birth? Which is a clear violation of Article 14 of Constitution of India.
It is very clearly established that a criminal law cannot be retrospective, but a civil law can be applied retrospectively, if it is unambiguously provided in the Act itself with a properly justified reason & with a clearly defined effective date in the past. Neither the entire Bharat Ratna PWDV Act, 2005 nor the Rules mentions this unambiguously anywhere in the whole Act or in the Rules published in Gazette of India or even it has any mention as Legislative intent anywhere if one carefully reads 60 off debates of Lok Sabha and Rajya Sabha combined together till this Bharat Ratna DV Act was passed by Legislature. The language of the Act does not even give any hint that it can be applied retrospectively. Legislature has the power to issue a GO to that effect even before an Act comes into force, if it is so intended. There is nothing to that effect in the Act or in the rules and there is no GO as well. With the power under S. 37 of the Bharat Ratna DV Act, the legislature could have made the Rules applicable retrospectively, but the Government has not done it so. Hence the Act cannot be applied retrospectively. If it is allowed to Act retrospectively, then it will be a clear violation of Article 20 (1) of Constitution of India.
For the retrospective operation of civil laws, to get more clarity, let us refer to the following rulings of the Hon'ble Supreme Court of India.
In Re.: 1976 (1) SCC 906 - Govind Das & Others ETC. ETC Vs. Income Tax Officer & Another on
In Re.: 1981 (4) SCC 93 - Accountant General & Anr ETC. ETC Vs.
In Re.: 1994 (5) SCC 450 -
In Re.: 2006 (2) SCC 740 - S.L. Srinivasa Jute Twine Mills P. Ltd Vs.
Now coming to the question as why S. 26 is included in Bharat Ratna DV Act, 2005, allowing a lady to claim the any / all reliefs u/S. 18, 19, 20, 21 & 22 of the Bharat Ratna DV Act 2005.
The presumption here is that a lady, who is subjected to violence, cruelty etc., or her spouse would have initiated some proceeding either under any marriage Act or S. 125 Cr.P.C or under other criminal or civil provisions prior to commencement of the Bharat Ratna DV Act on 26-10-2006, and as there are some short comings in previous provisions such as:
1. neither the marriage Acts nor the Cr.P.C 125 nor IPC S. 498a provides for Protection / restraint orders to be passed.
2. while the marriage Acts provide for residence & child custody orders, Cr.P.C. 125 & other criminal provisions does not explicitly provide for such reliefs.
Hence in order to enable a lady to get the protection orders & other reliefs as defined in S(s) 18, 19, 20, 21 & 22 of the Bharat Ratna DV Act, S. 26 must have been included. This explanation also means that Bharat Ratna DV Act 2005, by the virtue of it is not retrospective in nature, but only certain Sections – viz. S(s) 18,19,20,21 & 22 - of the Act can be read along with the other applicable law in force under which the Application / complaint has already been filed. That means that apart from passing the order for reliefs as defined in specific Acts, the magistrate or the family court judge can also pass protection / restraint order subsequent to the whole Act coming into force, provided that such cases / disputes between the parties are pending before the courts.
Now, it becomes very clear that as the Bharat Ratna DV Act, 2005 is fundamentally a criminal law, retrospective operation is barred under article 20 (1) of the Constitution of India. It is like saying "they were unequal some 20 years ago and by making this Act operational retrospectively, legislature is removing that inequality that existed in the past" and such a bald reasoning is not allowed under Constitution of India.
The real issue here is the order for interim reliefs under S. 23 of the DV Act. Interim reliefs are provided upon receiving a mere affidavit by the Applicant / aggrieved person overlooking the applicable laws at the time when the cause of Action has arisen, and the violation of the same leads to cases under S. 31 & also under S. 125 (3) of Cr.P.C.
Now how does one question that the ld. Court cannot hold the person guilty for violation of interim Order as interim Order would have been made subsequent to commencement of the Act and it's violation would definitely become contempt of Court?
About inclusion of S. 26 in the Bharat Ratna DV Act:
1. All or any reliefs under S(s). 18,19,20,21 & 22 of the Act can only be claimed along with the application / petition filed u/s 12 (1) of the Act or under any other provisions under which the cases may be pending before a criminal Court or a family Court or a civil Court but not independently.
2. If the reliefs under those Sections are claimed along with petition filed u/s 12 of the DV Act, one need to see, when the cause of Action has arisen, whether the Act was in force at that time or not?. If the cause of Action dates prior to commencement of the Act, then the very petition filed u/s 12 (1) becomes null & void and no reliefs can be granted.
Madras HC decision can be considered as right in holding the violation of protection order is punishable under DV Act S. 31 is also my view.
Let us look at it from this perspective.
According to S. 26, S(s). 18,19,20,21,22 of Bharat Ratna DV Act can be read with along with either HMA, or Cr.P.C 125 and protection & orders for other reliefs can be passed either by a magistrate or by a family judge. DV Act is retrospective only to within the scope of S. 26 is my view. But filing fresh petition under Section 12 (1) of the Act is barred if, the cause of Action dates back prior to
Now, if the protection order U/s 18, residence orders U/s 19, monetary reliefs U/s 20 (not applicable if pending case is under HMA or Hindu Maintenance & Adoptions Act or under other matrimonial laws), custody orders U/s 21 (again not applicable if the pending case is under HMA or order matrimonial laws), compensation orders U/s 22 are passed under any other case already pending before magistrate or a family judge, under the scope of S. 26 of DV Act, violation of any of the orders are chargeable under penal Section i.e. U/s 31. In this case question of retrospective operation of the Act does not arise at all as these orders under the scope of S. 26 would have got passed in already pending cases subsequent to commencement of the Act. If such orders under already pending cases are passed even before commencement of the Act, they are still rendered null & void. In the former case, the Article 20 (1) of constitution of
The doctrine of Casus Omissus does not apply to Bharat Ratna DV Act and retrospective effect to the DV Act cannot be taken as an obvious interpretation of the intent of the statute. There is a limited retrospective effect that is only to the extent and scope as defined in Section 26. Even if one argues that it is a case of omission, then the fundamental question that arises is, whether the fine print like "E&OE (Errors & Omissions are Expected") are allowed to be a part of a statute that is bound to govern the country and the society? If yes, what is legislature's proposal to handle the chaos & the disorder in the society that may the result of such omissions? Who proposes to compensate the adversary who may end up as the looser because of such omissions?
Even in case of casus omissus is assumed to apply to Bharat Ratna DV Act, the resulting situation is governed by the general law, in this case the retrospective effect cannot be taken beyond the scope defined in Section 26.
No law which impairs or takes away the fundamental rights of any citizen guaranteed by the Constitution of India or impairs or takes away the protection enjoyed till passing of such laws cannot be made to operate retrospectively and that is the governing law. If one attempts to employ casus omissus rule to Bharat Ratna DV Act.
Now, one can simply pose one question, what if a lady is found to be abusing the beneficial provisions of law? Does the statute provide any remedy? The simple answer is "No". Then, under casus omissus principle, the interpretation under general law applies and there is S. 340 of CrPC is my view.
Bharat Ratna DV Act has been specifically (in particular, the other references to Article 14 & Article 21 are just name sake) passed under Article 15 (3) of Constitution of India – “Nothing in this article shall prevent the State from making any special provision for women and children” and this Act has only been made as a "welfare legislation" only to guarantee social justice and to provide more protection. The Bharat Ratna DV Act is touted as a "second chance" to erring husbands & male partners and to Act as a deterrent to the people who are indulged in treating their female partners with cruelty. In the advent of making a piece of legislation to give more protection to weaker sections of the society (read as weaker s*x) the legislation / statute / rules therein cannot take away the other citizens rights guaranteed by constitution of India and if they attempt to take away such rights, such legislation / statute / rules therein are deemed to be void to such an extent of derogation - Read Article 13 of Constitution of India. The law should have helped the weaker Section (read weaker s*x) to come into the main stream of the society, on the other hand, it is helping the mischievous & extra intelligent ladies to take revenge & to blackmail husband(s) and in laws (grabbing propertiers in the name of residence rights). That is to be construed as the failure of legislation.
Bharat Ratna DV Act is not class legislation and class legislation is barred under Article 14 of Constitution of India. When looked vis-a-vis with S. 125 of CrPC, which is classified as a piece of "social justice & a welfare legislation" and HMA & HAMA provide equal opportunities to get reliefs to both spouses and they do not come under either classification. The S. 125 CrPC, provides the opportunity not only to destitute wives but also to destitute parents & children to claim maintenance from the Husband, Father or the Son as it is accepted principle & practice of Indian society that male children have to take care of their parents, father is responsible for his children till the children attains majority and husband is expected to take care of a wife who is not capable of maintaining herself.
Appended hereto is an article about class legislation and the Hon’ble Supreme court's views about the same.
Also, for a Statute to be called as the one which is "reasonably classified", it has to adhere to Article 14 of constitution of India - "Equal Protection before Law" and should pass the tests as laid down by the Hon'ble Supreme Court.
Bharat Ratna DV Act is not a class legislation in any manner and to call it a "reasonably classified" statute, it fails the tests laid down as it attempts to take away the male partner's rights which are guaranteed by the classification. Hence, it's aim is only to bring in social parity and to help the deprived to come into the mainstream breaking the shackles. In other words, the Act is to perform as a deterrent to those erring male partners and hence have been causing the domestic violence. Even under this theory, the statute cannot be allowed to operate retrospectively.
Also, it is important to note that there can be no presumption that only male partners are causing the domestic violence and it can be opposite also. Hence, it is important for the Hon’ble Courts to be vigilant and analyse, which part of the section of the litigant(s) are subjected to domestic violence and to analyse the same, it is important that the Hon’ble Courts ensures that the parties lead their evidence and are subjected to cross-examination as laid down by Hon'ble High Court of Madhya Pradesh in opening re. citation herein.