Mere registration of FIR is not enough to claim relief

IN THE COURT OF SH. INDER JEET SINGH,ADDL. DISTRICT & SESSION JUDGE,DELHI
In the matter of CriminalAppeal No.12/2010

Manish Kapoor,
S/o Shri Desraj Kapoor,
R/o H. No. 7/153, First Floor,Subhash Nagar, New Delhi……Appellan t/NonApplicant

versus

Charu Kapoor, W/o Shri Manish Kapoor,
D/o Shri Kuldeep KumarR/o H. No. 11/40, Second Floor,Subhash Nagar, New Delhi……Responde nt/Applicant

Date of institution : 16.08.2010 (Old No. 18/12.08.2010)
Decision reserved on : 21.08.2010
Date of decision : 28.08.2010

JUDGMENT

1 .1 (Introduction) –The respondent Smt. Charu Kapoor filed anapplication under section 12 of Protection of Woman from Domestic Violence Act, 2005 (in brief the Act), against the appellant ManishKapoor. The Court of Ms. Jyoti Klyer, Ld. Metropolitan Magistrate, Delhi,by judgment dated 29.07.2010 held that the respondent Smt. CharuKapoor is an aggrieved person and protection order was directedagainst the appellant from causing any domestic violence in the form ofdemand of dowry, or physical or verbal abuse towards therespondent.

Further, residence order has been directed hat the
appellant will notrestrained the respondent from entering and residing
in the sharedhouse at first floor of H. No. 7/153, Subhash Nagar, New
Delhi, beingher matrimonial home, for the purpose of residence. The
maintenanceof Rs. 3000/permonth in favour of respondent and
maintenance of Rs.1500/permonth in favour of minor baby namely Naisha,
besideslitigation expenses of Rs. 3000/weredirected in favour of
therespondent. Since the minor baby is in the custody of respondent,
theappellant was directed not to snatched the minor baby from
therespondent, without the procedure established by law. The request
ofthe respondent for compensation was declined for want of
specificinjury.

1.2 The appellant is aggrieved by the impugned order
and hepreferred the present appeal under section 29 of the Protection
of Women from Domestic Violence Act,
while reiterating the fact of thecase, the pleadings of the parties
and other records with thesubmissions that the impugned order is
contrary to the provisions oflaw, documents and pleadings placed on
record visavisthesubmissio ns presented before the Court. The impugned
judgmentsuffers from serious legal infirmities arising out
nonapplicationof mind,the conclusions are drawn by prejudgingthe case
against the appellantmerely relying upon registration of FIR No.
20/2009, under section 498A/406 IPC, which is a false and frivolous
FIR. Section 28 of the Act, inrespect of procedure, is based on the
principle of natural justice ofopportunity of being heard, the parties
file their affidavits for evidenceand matter was kept for arguments,
even the judgment has beenpassed without an opportunity to cross
examine the respective parties,whereas the matter was subjudice for
arguments and arguments wereadvanced on interim application.

The
residence order should not
havebeen passed against the appellant, since the property belongs to
hisfather, who is aged about 75 years and suffering from heart
ailments. Itrequires to introduce, in precise, the case of each party.

2.1 (The case of respondent/applican t) – In nut shell, the
partiesmarried on 10.11.2003, baby Naisha was born on 01.02.2008 but
duringtheir matrimonial alliance, the respondent was maltreated on
account ofdemand of dowry or the articles like Sofa, TV, Suite were
not upto theexpectations/ choice/standard of appellant. There has been
frequentdemands from time to time, the respondent was forced to demand
truckfrom her parents to fulfill the wishes of appellant, the
respondentarranged scooter. The respondent was harassed for want of
bringingmore dowry. Respondent’s brotherinlaw( Jeth) Mr. Gulshan
Kapoor,who was respondent No. 4 in the application, but not summoned,
abuilder, has influence on the appellant, the appellant has been
acting onthe music of said Gulshan Kapoor.

The said Gulshan Kapoor and hiswife Smt. Poonam Kapoor
celebrate liquor party on each occasion,when Gulshan Kapoor completes
a project of building, the appellant andhis parents also participate
in such ceremonies. In the night of31.12.2005, the respondent was
rebuked by him and the appellant inthe presence of others that the
respondent will be thrown out of thehouse, in case money is not
brought by her or to arrange job for theappellant. The respondent was
also kicked by fist by the appellant onher inability to fulfill the
demands. The entire gold jewellery was kept bymother of appellant on
the pretext of avoiding the theft. The respondentfaced a lot of
inconvenience and harassment in order to meet dailyrequirements and
respondent/complain ant’s parents were providing gascylinder,
vegetables, articles of kitchen, medicine and charges fortreatment.

The respondent’s father arranged a job for appellant at twoshowrooms
but he left it because he was not intended to do work.Further, her father also arranged visa
for the appellant and respondentfor Dubai for job and settlement but
all went in vain, as appellant was tostart his own business. The
application further narrates the otherincident of 12.04.2008, when she
along with minor child was at herparents house and the appellant along
with others, not only abused therespondent and her parents but also
threatened to kill them. There wastender of apology and on 19.04.2008,
she was brought to hermatrimonial home with a new hope to start the
life, the police report tothis effect has been placed on the file. On
06.06.2008, the respondentalong with her child, put asylum at her
parents house, since theappellant had directed to call her parents and
he demanded truck, shewas abused and kicked, besides an attempt to
throw the child on floor.

Whereas the respondent has no source of income and has no means oflivelihood, the baby child is in her
custody. The parties lived together atfirst floor of House No. 7/153, Subhash
Nagar, Delhi, which is alsocomprising the ground floor, built in a
plot of 50 square yards. The firstfloor comprises two bed rooms
attached, separate entrance where therespondent lived till she was
ousted. The application further narrates theproceedings took place in
one Court or the other visavisregistration ofFIR after complaint in
the Crime Against the Woman Cell. That is whythe application was
filed.

2.2 (The case of appellant) – Whereas the appellant, a teetotaler,
thatsoon after the marriage, the respondent started harassing and
blackmailingthe appellant by asking for separate accommodation, she
wouldnot live and cook meal for appellant’s parents and she separated
thekitchen forcibly, from old and ailments parents of the appellant.
She wasnot looking after the household chores. She was also
pressurized theappellant to take her to Dubai during vacation, where
her sister wasliving and
despite appellant’s inability and financial constraints, theappellant
obeyed her request, since she was threatening to commitsuicide and to
rope the family in a false case. She was taken to Dubai inJuly 2004.
There she pressurized the appellant to settle therepermanently but the
appellant was not in a position to settle therebecause of his old aged
parents. They came back in September 2004and the appellant paid his
loan amount in respect of visit to Dubai, helost his job and took
another employment. The appellant denies all theaverments of
respondent’s case, reproduced hereinabove. Therespondent was asking
and demanding that he shall sell the parents’property and buy a truck
and to do the business of transport with hisfather, a transporter. The
appellant was not agreeing to it. On01.02.2008, a child was born but
she did not permit the appellant to seeher. On 14.03.2008, she took
away all the jewellery, costly items, etc.,and went to her parents
house.

The appellant repeatedly requested tosee the daughter and also
Baisakhi and Navratri festival, being anauspicious occasion, however,
the appellant and his parents were manhandled,insulted and
threatening, to which report was lodged on12.04.2008. The doctors of
Mata Chandan Devi Hospital advisedmother feeding but she was feeding
the child from bottle against writtenmedical advise. The appellant
filed a petition under section 9 ofRestitution of Conjugal Rights
under Hindu Marriage Act on 15.11.2008and Mediation proceedings were
held from time to time but she failed tojoin the matrimonial home.
Since, an FIR was registered and realizingfrom the proceedings
conducted from time to time that she is adamantof not joining the
matrimonial home, the appellant was compelled towithdraw the petition
under section 9 of the HM Act but filed a freshpetition for
dissolution of marriage.

The appellant has complied all thedirections
of the Court given to him from time to
time.2.3 (Arguments of Appellant on Appeal) – In nutshell,
appellant’scontenti ons are that the Trial Court failed to follow the
procedurespecified in the Act, the process of arguments on interim
applicationwas initiated, as per proceedings dated 03.06.2009 of the
Trial Court,the case was adjourned for 14.09.2009, on the issue of
interimprotections, but the matter was decided finally. The codified
law arebased on the principle of natural justice that each party shall
be givenopportunity of complete and effective hearing, whereas, no
suchopportunity of cross examination of witnesses have been
provided,therefore, there is noncomplianceof the procedure of Section
28 of theAct.

The appellant has applied and obeyed the directions of
Hon. HighCourt of Delhi, while directing him to pay the maintenance @
Rs.5,000/permonth, being temporary arrangement, the appellant
alsoreturned 42 articles on 06.11.2008 and 11 items on 16.01.2009
beforethe Crime Against the
Women Cell and on the earlier occasion, therespondent took her
valuables, therefore, she had intention not to live atmatrimonial
home, she has been living with her parents from June 2008.A false case
under section 498A/406 IPC was registered against theappellant and his
parents, whereas, the chargesheetas yet not beenfiled but the Trial
Court on the basis of registration of FIR, consideredthe respondent as
an aggrieved person, as a matter of fact, there is noevidence. The
appellant’s monthly income/salary was Rs. 9,500/butthe Court ordered
Rs. 4,500/permonth, considering order of Rs.4,000/permonth of the
Court of Additional Sessions Judge, whiledealing with an application
under section 24 of the HM Act. Theconclusions have been drawn without
recording any evidence on thepoint of income of the appellant. The
appellant firstly filed the petitionunder section 9 of the HM Act but
with the passage of time and duringother judicial proceedings, when it
came to
the record that therespondent is not intending to join her matrimonial
home, the appellantwithdrew the petition and filed another petition
under section 13 of theHM Act for dissolution of marriage as well as
for custody of child, sinceall mediation proceedings had failed. The
appellant has been directedthat he will not restrained the respondent
from entering and residing inthe first floor of House No. 7/153,
Subhash Nagar, Delhi, whereas, thereis one room and a store, bathroom
but the Trial Court has directedwithout recording the evidence and the
totalities, Section 19 of the Actdoes not provide for repossession of
the household in the eventuality, the wife had left the house and she
is residing somewhere else.Otherwise, the Trial Court also failed to
consider that the house doesnot belong to the appellant but to his
father, who is aged about 75years, living in the same building at
ground floor.

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The appellant fortifieshis contentions, while relying
upon S.R. Batra vs. Tarun Batra 2006 (13)Scale 652 that there can be right
to residence in a shareholdhouse, when the house belongs to or taken
on rent by the husband or thehouse which belongs to joint family of
which husband is a member. Theappellant supplements that the case of
respondent does not fulfill thecriteria elucidated in the judgment.
Further, reliance has been placed onNidhi Kumar Gandhi vs. State 2009
(1) JCC 571, where the case wasdealt at the stage of interim order and
it was observed that evidence isto be recorded. In Neetu Mittal vs.
Kanta Mittal AIR 2009 Delhi 72, itwas held that the woman cannot
thirst herself against the parents of herhusband nor she can claim a
right to live in the house of parents of herhusband against their
consent and wishes.

The appellant’s parents arealready feeling
harassed for registration of FIR against them, the regularvisit of
police officials and they were also made party to the applicationunder
section 12 of the Act but the Trial Court had not issued notice tothem. Ld. counsel
for appellant submits that recording of evidence isnecessary in the
case. Therefore, the judgment is liable to be set aside.2.4 (Arguments
of Respondent in Appeal) – Whereas, Shri RajeshArora, Advocate for
respondent opposed the appeal that it is an abuseof process of the
Court, since neither there is any merit in the appealnor the situation
exists of noncomplianceof statutory provisions of thelaw. The judgment
is based on the basis of proceedings conducted,firstly, considering
the interim prayer, but being not pressed for, thecase came for
evidence and then for final disposal. On 03.06.2009, thecase was
adjourned for consideration of issue of interim protection butat later
point of time, the parties were asked to complete their
pleadingsvisavisto file their respective affidavits, the same was
complied andthe appellant had also filed final arguments, therefore,
at the stage
ofappeal, the issue cannot be raised that there was
noncomplianceofproc edure or opportunity for evidence was not given.
Section 23 of theAct, which deals with interim orders and
exparteorders, does notrequire that the Magistrate shall pass an order
under this Section, sinceSection 23 of the Act is a discretionary
provision, as word “may” hasbeen used in the operating part. In
addition, Section 28(2) of the Actempowers the Magistrate to devise
its own way of conducting theproceedings. Therefore, the procedure
followed by the Magistrate hassanction of subsection2 of Section 28 of
the Act. The proceedingsdated 14.09.2009, 02.12.2009 and 13.01.2010
are matter of record thatthe case was posted for filing of affidavit
for evidence and then for finalarguments. So far findings to the
effect that the respondent was anaggrieved person is based on the
record, the FIR was not registered allof a sudden but proceedings were
conducted before the Crime Againstthe
Women Cell, prior to formal registration of FIR. The Chapter
IV(Procedure for obtaining orders of reliefs) is based on the
principle ofprima facie case, satisfaction of the Magistrate and
existence ofdomestic violence, as the relief can be given when there
is domesticrelations, shareholdhouse, incident of domestic violence
and DomesticViolence Incident Report, the domestic violence is a
continuing violence.There was not only economic and financial abuse to
the respondent butalso other domestic violence in the form of
depriving or neglecting toprovide accommodation, beatings and
discharge of other obligations. Inthe Hon. High Court of Delhi,
maintenance of Rs. 5,000/permonth wasdirected, considering the income
of appellant as Rs. 8,500/permonthand there is no illegality in order
of maintenance @ Rs. 4,500/permonth by the Magistrate, while
considering his income of Rs. 9,500/permonth. The respondent has not
returned her entire articles, therespondent had
also reported the matter to police and the case wasregistered. The
appellant’s allegations are false. Since, the appellantand the
respondent resided together at the first floor of House No.7/153,
Subhash Nagar, Delhi, consisting of two rooms, bathroom,photograph s
to this effect are on file of the Trial Court, the Trial Courthas
rightly directed for residence order, monetary relief and
protectionorders. Since, the child is in the custody of respondent,
the custodyorder is also within the framework of the Act. Ld. counsel
for respondentsubmits that the law laiddownin S.R. Batra case (Supra),
does notapply to the present case firstly, the first floor of the
house is the shareholdhouse of the parties, secondly, the appellant is
still living there. Theother case Nidhi Kumar Gandhi (Supra) is in
favour of respondent, sincethere was modalities settled how the
shareholdhouse will be used bythe parties. The judgment is based on
the material available on
record,it is well reasoned judgment and the appeal is without merit,
it is liable tobe dismissed, with an exemplary cost. Ld. counsel also
relies upon P.Babu Venkatesh vs. Rani 2008 (4) LRC 148 that the
respondent hasrights in the shareholdhouse to reside and the residence
order can beenforced with the assistance of police.3.1 (Findings) –
The rival contentions are assessed in the light ofstatutory provisions
of law, particularly the Protection of Woman fromDomestic Violence
Act, 2005, the Code of Criminal Procedure, 1973. inthe case of
parties, there is no dispute that they married on 10.11.2003,baby
child Naisha was born on 01.02.2008, the parties resided togetherat
the first floor of House No. 7/153, Subhash Nagar, Delhi and
therespondent has been living with her parents with effect from
06.06.2008.The appellant resides at first floor of House No. 7/153,
Subhash Nagar,Delhi. There is also matter of record of registration of
FIR No.20/02.02. 2009
under section 498A/406/34 IPC with Police StationCrime Against Women
Cell, Nanak Pura, visavisacknowledgme nt ofreceipt of articles on
06.11.2008 and 16.01.2009 before the CrimeAgainst Women Cell by the
respondent, and other proceedings betweenthe parties.3.2 A question on
the point of law of following the procedure fordisposal of application
under section 12 of the Act has been raised,whether it has been
followed or not, is required to be determined.* ********* 4.1
Therefore, the question is “What is the Procedure for dealingwith
application under section 12 of Protection of Woman fromDomestic
Violence Act, 2005 ?” “Where is procedure provided ?”4.2 (Reg.
PROCEDURE)– Section 12 of the Act is in respect ofapplication by or on
behalf of aggrieved person for one or more of thereliefs provided
under the Act. Section 18 of the Act provides provisionof Protection
Orders, Section 19 in respect of Residence Orders,Section 20 is of
Monetary Relief
(inclusive of losses of earnings,medical expenses, maintenance for
aggrieved person and of children),Section 21 is of Temporary Custody
Order of child/children of aggrievedperson and Section 22 is in
respect of Payment of Compensation andDamages for the injuries
(inclusive of mental torture and emotionaldistress) .Section 23 of the
Act empowers the Magistrate to grant exparteorder and interim orders
on the basis of affidavits in the Formprescribed. Section 28 of the
Act prescribes procedure, while dealingwith the application under
section 12 visavisorders on certain reliefsprescribed under sections
18, 19, 20, 21 and 22, besides the procedureto be followed in respect
of applicability of procedure to Sections 23 and31 of the Act.
Sections 23 and 28 of the Act are reproduced hereunder Section23 –
Power to grant interim and exparteorders – (1) In anyproceeding before
him under this Act, the Magistrate may pass such interimorder as he
deems just as
proper.(2) If the Magistrate is satisfied that an application prima
facie disclosesthat the respondent is committing, or has committed an
act of domesticviolence or that there is a likelihood that the
respondent may commit an actof domestic violence, he may grant an
exparteorder on the basis of theaffidavit in such form, as may be
prescribed, of the aggrieved person undersection 18, section 19,
section 20, section 21 or, as the case may be, section 22against the
respondent.Section 28 – Procedure – (1) Save as otherwise provided in
this Act, allproceedings under sections 12, 18, 19, 20, 21, 22 and 23
and offences undersection 31 shall be governed by the provisions of
the Code of CriminalProcedure, 1973.(2) Nothing in subsection(1) shall
prevent the Court from laying downits own procedure for disposal of an
application under section 12 or undersubsection( 2) of Section 23.By
reading both parts of Section 28 of the Act together,procedure to be
followed
is – (i) as per the procedure provided in theAct, (ii) the proceedings
shall be governed by the procedure of Code ofCriminal Procedure, even
in respect of interim orders and exparteorders qua Section 23 of the
Act and (iii) Court may laiddownits ownprocedure in terms of
subsection2 of Section 23 of the Act. Whetherthe Act provides any
procedure.Section 37 of the Act empowers the Central Government tomake
rules and pursuant to exercising of such powers, the CentralGovernment
has framed the Protection of Women from DomesticViolence Rules, 2006
(published in the gazetted on 17.10.2006); therelevant Rule 6 reads as
follows Rule6 – Applications to the Magistrate (1) Every application
of theaggrieved person under section 12 shall be in Form II or as
nearly as possiblethereto. (2) An aggrieved person may seek the
assistance of the Protection Officerin preparing her application under
subrule(1) and forwarding the same tothe concerned Magistrate.( 3) In
case
the aggrieved person is illiterate, the Protection Officer shallread
over the application and explain to her the contents thereof.(4) The
affidavit to be filed under subsection(2) of section 23 shall befiled
in Form II.(5) The applications under section 12 shall be dealt with
and the ordersenforced in the same manner laid down under section 125
of the Code ofCriminal Procedure, 1973.Rule 6 (4) prescribes form of
affidavit in respect of exparteorders and grant of interim orders.
Rule 6 (5) states that applicationunder Section 12 of the Act shall be
dealt and the orders be enforced, aslaiddownunder section 125 Cr.P.C.
The Section 125 Cr.P.C reads asfollows Section125 Cr.P.C – Order for
maintenance of wives, children andparents (1) If any person having
sufficient means neglects or refuses tomaintain (a) his wife, unable
to maintain herself, or(b) his legitimate or illegitimate minor child,
whether marriedor not, unable to maintain itself, or(c) .. .. ..
.. .. ..(d) .. .. .. .. .. ..a Magistrate of the first class may, upon
proof of such neglect or refusal,order such person to make a monthly
allowance for the maintenance of hiswife or such child, father or
mother, at such monthly rate, as suchMagistrate thinks fit, and to pay
the same to such person as the Magistratemay from time to time
direct rovided that the Magistrate may order the father of a minor
femalechild referred to in clause (b) to make such allowance, until
she attains hermajority, if the Magistrate is satisfied that the
husband of such minorfemale child, if married, is not possessed to
sufficient means.What is “proof” or how the facts or documents are
proved,Chapter IV, Chapter V and Chapter X of the Indian Evidence Act,
1872defines them, the relevant provisions of Sections 59, 60, 61
andSections 135, 137 and 138 are reproduced hereunder Section59 –
Proof of facts by oral evidence – All facts, except the(contents of
documents or
electronic records), may be proved by oralevidence. Section 60 – Oral
evidence must be direct Oralevidence must, in allcases whatever, be
direct; that is to say ifit refers to a fact which could be seen, it
must be the evidence of a witnesswho says he saw it;if it refers to a
fact which could be heard, it must be the evidence of awitness who
says he heard it;if it refers to a fact which could be perceived by
any other sense or in anyother manner, it must be the evidence of a
witness who says he perceived itby that sense in that manner;if it
refers to an opinion or to the grounds on which that opinion is held,
itmust be the evidence of the person who holds that opinion on
thosegrounds rovided .. .. .. .. .. ..Section 61 – Proof of contents
of documents – The contents ofdocuments may be proved either by
primary or by secondary evidence.Section135 – Order of production and
examination of witnesses Theorder in which witnesses are produced and
examined shall be regulatedby the law and practice for the time being
relating to civil and criminalprocedure respectively, and, in the
absence of any such law, by the discretionof the Court.Section 137 –
Examinationinchief– The examination of a witness bythe party who calls
him shall be called his examinationinchief. Crossexamination– The
examination of a witness by the adverseparty shall be called his
crossexamination. Reexamination– The examination of a witness,
subsequent to thecrossexamination by the party who called him, shall
be called his reexamination. Section 138 – Order of examination –
Witnesses shall be first examinedinchief, then (if the adverse party
so desires) crossexamined, then (if theparty calling him so desires)
reexamined.The examination and crossexaminationmus t relate to
relevant facts,but the crossexaminationnee d not be confined to the
facts to which thewitness testified on his examinationinchief.
Direction of
reexamination– The reexaminationshall be directedto the explanation of
matters referred to in crossexamination; and, ifnew matter is by
permission of the Court, introduced in reexamination, the adverse
party may further crossexaminationupo nthat matter.Section 125 Cr.P.C
is not in isolation. Procedure forapplication under section 125 Cr.P.C
is prescribed in Section 126Cr.P.C, since there are substantive
provisions as well as adjectiveprovisions ; as Chapter XI (Section 125
to 128) of Cr.P.C is a Code initself in respect of order for
maintenance. Rule 6 (5) of the Rules 2006talks about orders as well as
its enforcement; maintenance orders andtheir enforcement are governed
by Chapter XI of Cr.P.C. This Chapter XIdeals with the applications,
the applications are not the complaint, ascomplaints are subject
matter of Chapter XV of complaints to Magistrate.Section 126 Cr.P.C is
relevant, it reads as follows Section126 Cr.P.C – Procedure – (1)
Proceedings
under section 125 maybe taken against any person in any district
(a) .. .. .. .. .. ..(b) .. .. .. .. .. ..(c) .. .. .. .. .. ..(2) All
evidence in such proceedings shall be taken in the presence ofthe
person against whom an order for payment of maintenance is proposedto
be made, or, when his personal attendance is dispensed with, in
thepresence of his pleader, and shall be recorded in the manner
prescribed forsummonscases: Provided that if the Magistrate is
satisfied that the person against whoman order for payment of
maintenance is proposed to be made is wilfullyavoiding service, or
wilfully neglecting to attend the Court, the Magistratemay proceed to
hear and determine the case exparteand any order so mademay be set
aside for good cause shown on an application made within threemonths
from the date thereof subject to such terms including terms as
topayment of costs to the opposite party as the Magistrate may think
just andproper.(3) .. .. .. .. ..
..Section 126 Cr.P.C mandates that in the application formaintenance,
the evidence is required to be recorded in the mannerprescribed for
summons cases. Chapter XXIII (evidence in inquiries andtrials),
prescribes mode of taking and recording evidence and Section274 Cr.P.C
is in respect of summons cases, it is reproduced as follows Section274
Cr.P.C – Record in summonscasesand inquires (1) Inall
summonscasestried before a Magistrate, in all inquiries undersections
145 to 148 (both inclusive), and in all proceedings under section
446otherwise than in the course of a trial, the Magistrate shall, as
theexamination of each witness proceeds, make a memorandum of
thesubstance of his evidence in the language of the Court rovided
that if the Magistrate is unable to make such memorandumhimself, he
shall, after recording the reason of his inability, cause
suchmemorandum to be made in writing or from his dictation in open
Court.(2) Such memorandum shall be
signed by the Magistrate and shallform part of the record.4.3 On the
plain reading of statutory provisions of the Act, Rulesframed under
the Act and the borrowed provision of Cr.P.C. in respectof procedure
to be followed, in respect of application under section 12 ofthe Act,
the following conclusions are drawn, to elucidate Section 28 ofthe Act
(i) there exists provisions of procedure under the Act itself, to be
followed in respect of theapplication, more particularly rule 6 of the
Rules, 2006; Act is a parent statute and CentralGovernment framed
Rules under the scheme of parent statute; and(ii) the provisions of
Code of Criminal Procedure has also been adopted for dealing
theapplication. To say, for the purposes of procedure, in terms of
subsection1 of Section 28 ofthe Act, there exists provisions in the
Act to be followed by the Magistrate and the same will begoverned by
the Code of Criminal Procedure. It is a mandatory provision. So far
subsection2of
Section 28 of the Act is concerned, it empowers the Court to lay its
own procedure inrespect of disposal of application under section 12 of
the Act or in respect of exparteordersand interim order under section
23 (2) of the Act.Whether the Magistrate/Court shall devise its own
procedure under section 2 of 28of the Act, during the existence of
procedure under the Act read with the provisions of Cr.P.C.Since it is
the mandatory requirement of subsection1 of Section 28 of the Act,
that theprocedure established under the Act governed by the provisions
of Cr.P.C, should be followedby the Court but subsection2 of Section
28 of the Act does not prevent the Court to laiddownits own procedure.
By reading the intent of legislature and the scheme of the Act, the
subsection2 of Section 28 of the Act does not empowers the Court to
ignore the mandatoryprovisions of subsection1 of Section 28 of the
Act, while devising its own procedure. Further,in the eventuality when
the provisions are not available in the Act itself or to be governed
byCr.P.C, the Court/Magistrate cannot lay a procedure, which is
contrary to the establishprinciples of adjudicating law. To say, the
procedure to be led by the Magistrate/Court, shouldbe – (a) within the
policy of law, (b) which is not contrary to the establish procedure or
Section28 (1) of the Act in respect of dealing the applications and
(c) the parties should be informed ofthe procedure laiddownor to be
followed in a particular case, so that it is known to the partieswhat
procedure is to be followed, as ordinarily the procedure is known to
the parties throughthe piece of legislation and on similar lines, the
procedure devised by the Court should beknown to them.4.4 Hence, it is
concluded that there is procedure prescribed.There are identical
provisions in the Act and the Code of CriminalProcedure for interim
maintenance orders and exparteorder; theinterim orders and
exparteorder
under the Act, are governed by Codeof Criminal Procedure. Further,
evidence is one of the necessaryrequiremen t of law, while dealing
with the application under section 12of the Act and for the
aforementioned analysis, following is theprocedure for dealing with
the application under section 12 of the Act,which cannot be curtailed
(i) pleadings of the parties in terms of Rules;(ii) affidavit of the
applicant in the prescribed Form to be filed in support ofapplication
either for exparteorder or for interim orders;(iii) evidence to be
recorded as summons case, inclusive of examinationinchief,
crossexamination or reexamination, crossexamination of the parties
ortheir witnesses as the case may be in terms of provisions of Cr.P.C
and IndianEvidence Act;(iv) documentary evidence may also be led;(v)
arguments;(vi) the final satisfaction of Magistrate will be on the
basis of judicialproceedings conducted and the evidence on record; but
on the basis ofaffidavit, while
dealing with the interim/exparteorde rs; and(vii) in case (i) to (vi),
above, do not meet the requirement, the Court maydevise the procedure
under subsection2 of Section 28 of the Act, but underthe general
Policy of Law and Scheme of the Act.4.5 It is without prejudice to
counseling proceedings. 4.6 The intention of legislature, that
evidence is necessary in suchapplication of maintenance, can also be
gathered from other piece oflegislation and the Muslim Women
(Protection of Rights on Divorce) Act,1986 and the Muslim Women
(Protection of Rights on Divorce) Rules,1986 (although, it does not
apply to the parties of present appeal),which have been framed by the
Central Government, pursuant to theSection 6 of the Act, 1986;
relevant Rule 4, reads as follows Rule4 – Evidence – All evidence in
the proceedings under the Act shall betaken in the presence of the
respondent against whom an order for thepayment of provision and
maintenance, Mahr or (dower) or
the delivery ofproperty is proposed to be made or, when his personal
attendance is dispensedwith, in the presence of his pleader, and shall
be recorded in the mannerspecified for summary trial under the
Code rovided that if the Magistrate is satisfied that the respondent
is wilfullyavoiding service or wilfully neglecting to attend the
Court, the Magistrate mayproceed to hear and determine the case
exparteand any order so made maybe set aside for good cause shown on
application made within seven days fromthe date thereof subject to
such terms as to payment of cost to the oppositeparty as the
Magistrate may think just and proper.***** *****5.1 Now the next
question is whether the procedure prescribedhas been followed by the
Court of Magistrate in the application ofrespondent, against which the
present appeal has been preferred by theappellant. Let the record be
scrutinized. 5.2 On plain reading of proceedings of the Trial Court,
on03.06.2009 and on
14.09.2009, it was directed for completion ofpleadings and
consideration on the issue of interim protection but lateron, both the
parties were directed for filing of their evidence by affidavitsand
final disposal, without any whisper qua interim reliefs/ orders.
Boththe parties filed their affidavits accompanying certainrecord/
photocopies and one of the party has also filed photographs/
positives. The same have been taken on record and considered in
thearguments and it result into final judgment dated 29.07.2010.
Inparagraph 11 of the impugned judgment, the Trial Court narrated that
alldocuments and the pleadings have been perused and thereafter,
thejudgment was given, which disposed of the respondent’s
applicationunder section 12 of the Act.It is apparent from the
proceedings that the procedure, asdetailed in paragraph 4, above, of
this judgment, has not been followedby the Trial Court. There is no
order by the Magistrate as to whichprocedure has been
devised, if the Magistrate felt that there does notexist procedure in
the Act or the Code of Criminal Procedure, whereas,there exists the
procedure, which is narrated in paragraph 4, above.5.3 The pleadings
have been treated as an evidence but pleadingsare not evidence.
Although, both the parties have placed on record theiraffidavits but
merely filing of affidavit does not amount evidence, asprovisions of
Section 59, 60 and 61 of the Indian Evidence Act, for proofof facts
orally and by documentary evidence, have not been complied;the other
procedure of examination of witnesses or their crossexamination,
envisaged under section 135, 137 and 138 of the IndianEvidence Act,
have also not been complied, as there was noopportunities to the
parties to appear in the witness box or to go throughthe process of
their test of cross examination of statement on Oath. Thesubstance of
FIR was considered as a piece of evidence to concludethat the
respondent was an
“aggrieved person”, whereas, FIR is stillunder investigation, as
informed; thus, chargesheetis yet to be filed,cognizance is yet to be
taken, therefore, merely registration of FIR,would not tantamount to
consider it a conclusive proof. There is noevidence of income of
parties or their liabilities, therefore, an order(under section 24 of
the Hindu Marriage Act, which is passed on thelines of interim order,
pendentelitethe petition), was also considered forgranting monetary
relief. The respondent has been living with herparents for the last
about two years and the first floor of House No.7/153, Subhash Nagar,
Delhi has accommodation (according toappellant – one room and a store,
bathroom and according torespondent – two rooms and bathroom but with
a single entryexitdoor) ,however, the Trial Court has not gone through
the feasibility ofresidence order or modalities or alternate relief in
the form of rent, sinceno evidence was recorded.6.1
(Conclusion) – The impugned judgment dated 29.07.2010 is setaside and
consequently, the other order dated 13.08.2010, which arethe
directions to the SHO, Police Station Rajouri Garden, Delhi, standset
aside. The appeal is allowed, while remanding the case/
applicationunder the title “Charu Kapoor vs. Manish Kapoor” to the
Court of Ld.Metropolitan Magistrate, Delhi, to dispose off the
application undersection 12 of the Act, as per law and the procedure
established, alsoelucidated in paragraph 4 of the judgment. Copy of
the judgment bealso certified to the Trial Court along with the Trial
Court record, fordisposal of the application expeditiously. 6.2
(Further Directions) – Since, the Trial Court of MetropolitanMagistr
ate, Delhi (Mahila Court), is dealing with the cases under
theProtection of Woman from Domestic Violence Act, 2005 read
withProtection of Woman from Domestic Violence Rules, 2006, the
Courtshall ensure that in all the cases, the
procedure established is beingfollowed. 6.3 Copy of this judgment be
also sent to Ld. Chief MetropolitanMagistr ate, Delhi to circulate it
amongst the Courts dealing with theapplication under section 12 of the
Act, so that the procedure elucidatedin paragraph 4 of the judgment,
may operate as a guidance for them.With these observations, the appeal
stands disposed off.

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(Announced in the open (INDER JEET SINGH)Court on 28th August, 2010)
ADDL. DISTRICT & SESSION JUDGEN DELHI

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