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Madhusudan Bhardwaj & Ors. Vs Mamta Bhardwaj

Judgement

 

Court: Madhya Pradesh High Court

Bench: JUSTICE B.M. Gupta

Madhusudan Bhardwaj & Ors. Vs Mamta Bhardwaj On 31 March 2009

Law Point:
Protection of Women from Domestic Violence Act, 2005 — Sections 12, 18, 28(1), 28(2), 37 — Protection of Women from Domestic Violence Rules, 2006 — Rules 6(5), 15 — Criminal Procedure Code, 1973 — Sections 125, 126(2) — Maintenance — Procedure for disposal of application as laid down under Section 125, Cr.P.C. was required — Without providing opportunity of leading evidence such application cannot be disposed of — Without coming to certain and justified conclusion, passing a protection order under Section 18 of Act in favour of applicant may sometimes cause injustice to O.P.1 respondent who may be not at fault, but in reality victim of misdeed or misbehaviour of applicant — That is and cannot be intention of Legislature in enacting the Act — Two things required before passing an order in favour of aggrieved person, viz., opportunity of hearing to parties and prima facie satisfaction with regard to happening of domestic violence or likely to happen thereof — Procedure prescribed followed by Magistrate — Impugned order set aside.

 

 

JUDGEMENT

 

1. Feeling aggrieved with an order dated 6.9.2007 passed by 4th Additional Sessions Judge, Gwalior in Criminal Appeal No. 164/07, this revision has been preferred by all the three petitioners. Vide impugned order, the learned Judge has affirmed an order dated 9.7.2007 passed by Judicial Magistrate First Class, Gwalior in Criminal Case No. 5279/2007, whereby the learned Magistrate has partly allowed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the “Act”) filed by respondent-Mamta Bhardwaj, the wife of the petitioner No. 1-Madhusudan Bhardwaj and has (1) restrained the petitioners not to create any domestic violence with the respondent, (2) directed the petitioners to permit the respondent to share her residence in family house or in alternate, petitioner No. 1 to arrange suitable house of the same status for her, (3) directed the petitioners to execute their bonds of Rs. 10,000 (Rs. ten thousand only) each for a condition not to create domestic violence with the respondent, and (4) directed the petitioners to pay Rs. 10,000 as compensation to the respondent in lieu of the cruelty played by them on her. Vide impugned order, the prayer of providing stridhan to the respondent has been negated.

2. The facts of the case, in brief, are that respondent has filed aforesaid application dated 17.5.2007 in the Court of learned Magistrate mentioning therein that she is wife of the petitioner No. 1. Petitioner No. 2 is her sister-in-law (nanad) and petitioner No. 3 is her mother-in-law. Respondent was married with the petitioner No. 1 on 2.6.2006. After marriage, she started living with the petitioner No. 1 in his family house situated at 3-Saraswati Nagar, University Road, Thatipur, Gwalior. In the same house petitioner Nos. 2 and 3 are also living. Petitioner No. 2 is living along with her two minor children. Petitioner No. 2 has been deserted by her husband. On account of her desertion, she is jealous of happy family life of respondent and petitioner No. 1. After marriage on demand of Rs. 5.00,000 and a car, the behaviour of the petitioners was cruel with the respondent. She was usually beaten by them. When the cruelty could not be tolerated by the respondent, she lodged a Criminal Case No. 26/2007 against the petitioners under Section 498A of IPC. On 1.4.2007 petitioners left the respondent in the aforesaid family house and left the house after locking the rooms along with jewellery and valuables on the pretext that they are going to attend some marriage in the relationship. Thereafter, on 16.4.2007 at 11.00 p.m. petitioner Nos. 1 and 2 along with two unknown persons came and uttered filthy abuses to the respondent. They gave a threat to the respondent to leave the house else she will be killed. She informed about it to Superintendent of Police. On 26.4.2007 at about 6.40 p.m. when respondent was alone at the family house, all the three petitioners came, started beating to the respondent and forcibly deserted her from the house. At about 8.00 p.m. on the same day she lodged FIR at University Police Station, which was registered at Crime No. 57/2007. Again she was beaten by petitioner Nos. 2 and 3 at the family house. At the time of desertion petitioners kept all stridhan of the respondent amounting to Rs. 13,74,500 with them.

3. Vide reply, all the allegations, except the fact of marriage, have been denied by the petitioner No. 1. It was further mentioned in the reply that false allegations have been made on behalf of the respondent to cast aspersion on the pious relationship of brother and sister. On the ground of false allegation petitioners were to be arrested. The relation of wife and husband has become dead and now there is no possibility of living together. On account of the cruelty played by the respondent, the petitioner No. 1 has been compelled to live separately from his family house. The respondent brought anti-social elements at the family residence of the petitioners for the purpose of hooliganism. In these circumstances, petitioner No. 1 has been compelled to file a petition for divorce, which is pending.

4. Mr. Prashant Sharma, learned Counsel appearing on behalf of the petitioners, has assailed the impugned order mainly on the ground, that without providing an opportunity of leading evidence, merely on the allegations mentioned in the application and hearing the oral arguments, the impugned order has been passed. In absence of the appropriate opportunity of hearing including opportunity of leading evidence, the impugned order is bad in law and deserves to be set aside. In support, he has drawn attention at Section 28 of the Act and Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2006 (hereinafter referred to as the “Rules”) and has submitted that the procedure for disposal of an application under Section 125, Cr.P.C. ought to have been adopted by the learned Magistrate. Although the learned Magistrate is at liberty for laying down its own procedure under Sub-section (2) of Section 28 of the Act for disposal of such application, but not by excluding the procedure as laid down in Sub-section (1) of Section 28 of the Act and Sub-rule (5) of Rule 6 of the Rules, which provides same procedure as is applicable to applications under Section 125 of Cr.P.C. Applications under Section 125, Cr.P.C. cannot be disposed of without providing opportunity of leading evidence. In support, he has drawn attention at the order of Allahabad High Court in Het Ram v. Smt. Ram Kunwari, 1975 Cr.LJ 656 (All.). Karnataka High Court in Sankarasetty Pompanna v. State of Karnataka & Anr., 1977 Cr.LJ 2072 (Kar.) and Gujarat High Court in Pendiyala Sureshkumar Ramarao v. Sompally Arunbindu & Anr., II (2005) DMC 417=2005 Cr.LJ 1455 (Guj.).

5. Mr. Vishal Mishra and Mrs. Sudha Dwivedi, learned Counsel appearing on behalf of the respondent have countered the aforementioned submissions of Mr. Sharma. While drawing attention at Sections 18 and 28(2) of the Act and Rule 15(6) of the Rules, it has been submitted that protection orders can be passed only after providing an opportunity of being heard. The Magistrate is at liberty for laying down its own procedure for disposal of such application. He has also submitted that copy of Adam Chick report, medical report, newspaper clippings and CD were produced by the respondent along with her application. Those documents are sufficient evidence on which a Magistrate can become satisfied and issue a protection order. There is no requirement of providing an opportunity to the parties particularly the petitioners herein, to lead oral evidence in such cases. Although it is argued on behalf of the respondents that the CD was watched by the Trial Court as well as by the Appellate Court in the open Court in the presence of both the parties, but the same has not been admitted on behalf of the petitioners and none of the proceedings of both the Courts is indicative of this fact.

6. For appreciating the rival contentions, the procedure as adopted by the learned Magistrate is required to be seen at a glance, which has been mentioned in brief as under:

17.5.2007—Project Officer (Pariyojana Adhikari) Smt. Anju Shrivastava appeared along with respondent No. 2 before the learned Magistrate and filed an application under Section 12 of the Act supported by her affidavit along with one application of the same nature prepared by Project Officer on the information of the respondent and some documents, on which case No. 5279/2007 was registered. Notices to the petitioners were issued through the same Project Officer for 21.5.2007.

21.5.2007— Mr. Prashant Sharma, learned Counsel appeared on behalf of the petitioners. Petitioners were directed to execute bail bond for their regular presence in the Court. They sought time to file reply. Time was given and the case was fixed for 4.6.2007. On the same day an oral prayer was made on behalf of the respondent to pass an interim order, but the same was negated on the ground that no application for the purpose has been filed.

4.6.2007—Reply was filed on behalf of the petitioner No. 1. On demand, 203 days’ time was given to both the parties for settlement. Case was fixed for 8.6.2007.

21.6.2007—One application for interim relief under Section 23(ii) dated 4.6.2007 was filed on behalf of the respondent.

22.6.2007—Some documents were filed on behalf of the petitioners. Arguments heard, which could not be completed.

23.6.2007—Arguments heard. Case fixed for orders on 30.6.2007. On the same day an application for interim relief filed on 21.6.2007 on behalf of the respondent was dismissed as not pressed on behalf of the respondent, as the case was already fixed for final arguments.

28.6.2007—Before 30.6.2007 an application for early hearing was filed on behalf of the petitioner No. 1 and filed some documents. Some documents were also filed on behalf of the respondent along with a CD.

30.6.2007— Final order could not be passed as watching of CD was felt necessary, hence, case was adjourned for 9.7.2007 for orders.

9.7.2007—Final order was passed.

7. To conclude the controversy between the parties perusal of relevant part of the provisions of Sections 18 and 28 of the Act and Rule 6(4) and (5) of the Rules along with the relevant part of the provisions of Section 126 of Cr.P.C. is required. (As provided by Rule 6(5) of the Rules, the procedure prescribed for disposal of an application under Section 125 of Cr.P.C. shall be applied for disposing of an application under Section 12 of the Act. On perusal of Section 125 of Cr.P.C. it provides the provision for maintenance of wives, children and parents, but procedure for disposal of such application has been given in Section 126 of Cr.P.C. Hence, instead of Section 125 of Cr.P.C. perusal of the procedure as prescribed in Section 126 of Cr.P.C. for disposal of an application under Section 125 of Cr.P.C. is required. The same have been reproduced hereinbelow:

Sect. 18. Protection Orders—The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that the domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from—

(a) to (g)…………………………..

Sec. 28. Procedure—(1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in Sub-section (1) shall prevent the Courts from laying down its own procedure for disposal of an application under Section 12 or under Sub-section (2) of Section 23.

Rule 6. Application to the Magistrate—(1) Every application of the aggrieved person under Section 12 shall be in Form II or as nearly as possible thereto.

(2) and (3) ………………………

(4) The affidavit to be filed under Sub-section (2) of Section 23 shall be filed in Form III.

(5) The applications under Section 12 shall be dealt with and the orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure. 1973 (2 of 1974).

Sec. 126. Cr.P.C. Procedure—(1)

(2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:

Provided that and (3)…………………

8-A. It is true that nowhere in the Act any direction with regard to receiving or recording of evidence of the parties has specifically been mentioned. While inserting the provision with regard to procedure, Sub-section (1) of Section 28 of the Act a general and wide mandate has been given that all the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 of the Act (including Section 12 of the Act also) shall be governed by the provisions of Code of Criminal Procedure, 1973. The word ‘shall’ gives a mandate that the procedure as laid down in Cr.P.C. shall have to be followed. It is also true that in Cr.P.C. for various types of cases different procedures have been mentioned e.g. in (1) Chapter VIII, which deals with security for keeping the peace and for good behaviour, (2) Chapter IX, which deals with order for maintenance of wives, children and parents, (3) Chapter X, which deals with maintenance of public order and tranquillity, and (4) Chapter XVIII to Chapter XXIA, which provide different procedures for trial in different offences. But, at the same time the Legislature in its wisdom has inserted Section 37 in the Act vesting powers with the Central Government to make rules for carrying out different provisions of the Act. Sub-section (2) of Section 37 indicates that the rule making power of the Central Government is very wide, in which it is provided that in particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely (a) to (m).

8-B. Thus, although in Clauses (a) to (1) some subjects have been enumerated on which the rules may be framed by Central Government, but at the same time it is also mentioned that this illustration of the subjects will not prejudice the generality of the powers given to the Central Government for framing rules to carry out the provisions of the Act. This intention of the Legislature is further visible by perusing Clause (m) which provides that—rules may be framed on any other matter which has to be, or may be, prescribed. Under Section 37 of the Act, the rules are framed which have been published in the Gazette of India, Extra., Pt. II Section 3(i), dated 17.10.2006. vide G.S.R. No. 644(E), dated 17.10.2006. Thus, these rules framed by the 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.

8-D. In view of the aforementioned mandate, the learned Magistrate was required to comply with the provisions of this sub-rule read with Section 28(1) of the Act and was required to follow the procedure as laid down in the Code of Criminal Procedure for the application under Section 125 of Cr.P.C. Admittedly, that has not been followed. On this ground, the impugned order appears erroneous.

9-A. 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 Act appears to have been enacted looking to the particular 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 that ambiguity has been removed by the Central Government under its powers given by Section 37 of the Act.

9-B. Apart from the above, the arguments advanced on behalf of the respondent that merely by perusing the aforementioned documents viz., Adam Chick report, medical report, newspaper clippings along with CD and also hearing of the arguments, the final order could have been passed. It neither appears in accordance with the intention of the Legislature nor practicable for a judicial forum, because there may be cases in which documents of the rival parties on record and arguments advanced by the parties in support thereof, may be contradictory on disputed facts. In such circumstance it may become difficult for a Magistrate to conclude that the stand of which of the parties is truthful. To overcome such ambiguous situation, the theory of leading evidence on oath, providing opportunity to cross-examine the witnesses of opposite party, has been followed since very long time and has also been tested on the touchstone of the principles of natural justice. On such evidence the submissions of rival parties can be evaluated by a Magistrate for coming to a right conclusion. That may help him to conclude the controversy in justified manner. Without coming to a certain and justified conclusion, passing a protection order under Section 18 of the Act in favour of the applicant may sometimes cause injustice to the opposite party/respondent who may be not at fault, but in reality a victim of the misdeed or misbehaviour of the applicant. That is not and cannot be the intention of the Legislature in enacting the Act. No doubt the intention o! the Legislature behind enacting the Act is to provide more protection to the rights of women guaranteed under the Constitution who are victims of violence of any kind within the family and for matters connected therewith or incidental therewith. It is clear that Act has been enacted for safeguarding the rights of a woman guaranteed under the Constitution and to provide protection against the victimization from domestic violence, interpretation of the provisions keeping this pious principle in mind is required. However, this principle cannot be accepted that in domestic violence always a woman is a victim or sufferer party. There may be cases where by misusing the sympathetic and favourable attitude of the society of law framers, male partners may be harassed and thereafter if Court of law gives a second push to the male partner it may cause disorder in the society. In my considered opinion, at the time of administering such laws the Courts are required to be vigilant enough in deciding the dispute as to which part of the family is a victim of the domestic violence. In view of this also, passing orders merely on the basis of the documents, without their formal proof and upon hearing the arguments has not been permitted by the law and in judicial process it ought not to be permitted and learning attitude towards one party of the lis is required to be avoided.

9-C. The submission on behalf of the respondent, that prescribing procedure by Central Government through framing rules is beyond its powers, as in Clauses (a) to (m) this subject is not covered. To some extent it may compel to give a second thought, but on deep consideration, it does not deserve favour. The reasons behind are (a) that, as already “mentioned the language of Section 37 is indicative that the subjects enumerated are not exhaustive but inclusive. These subjects are without prejudicing the generality of rule making powers and also under Clause (m), such a rule could have been framed, (2) that, the rule has been favoured under the given authority of rule making and unless it is annulled or amended by Parliament or declared ultra vires by a competent legal forum, its existence shall be forceful, and (3) that, framing of such a rule is based on necessity, to give effect to the mandatory provisions of Section 28(1) of the Act, by which the provisions of the Act can be carried out in a justified manner, in absence of this rule there was a felt difficulty, as to in what manner the mandate of Section 28(1) ought to be complied with. Hence, the submission cannot be sustained.

9-D. As argued, it is true, that the opening words of the Section 18 are that ‘the Magistrate may, after giving the aggrieved person and respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place pass a protection order in favour of the aggrieved person and prohibit the respondent from……..’ On perusal, two things are required before passing an order in favour of the aggrieved person; (1) opportunity of hearing to the parties, and (2) on being prima facie satisfied with regard to happening of the domestic violence or likely to happen thereof. For being prima facie satisfied some material is required. As observed hereinabove and as provided in Rule 6(5) evidence is required as the same is required for disposal of an application under Section 125 of Cr.P.C. It cannot be accepted that only upon providing an opportunity of hearing such orders are required to be passed.

10. In view of all, as discussed hereinabove for disposal of the application filed by the respondent, adopting the procedure as laid down for disposing of an application under Section 125 of Cr.P.C. was required. Admittedly, the same has been followed by the learned Magistrate. Hence, the order deserves to be set aside.

11. Consequently the revision is allowed. The impugned order is set aside. The case is remanded to the Court of Magistrate with a direction to take steps, as observed hereinabove, without any delay. The learned Magistrate will be at liberty to pass interim orders in accordance with law if requested and deemed fit by him under Section 23 and other provisions of the Act.

Revision allowed.

 

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