Domestic Violence Act can’t be applied retrospectively

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2102 OF 2008

Dr. Prakash Vinayak Joshi, Age 60 Years,
Occupation Diplomat,
R/at. External Affairs Hostel, B33,
Kasturba Gandhi Marg
New Delhi 110 001. Petitioner

Vs

1. The State of Maharashtra
2. Mrs. Anuradha Prakash Joshi,
Age 58 Years, Occ : household,Residing at Plot No. 5, Shanta Society,
Kusalkar Road, Pune 411 016.
WITH
CRIMINAL WRIT PETITION NO. 2101 OF 2008

Dr. Prakash Vinayak Joshi .. Petitioner

Vs
T
he State of Maharashtra & Another .. Respondents
WITH
CRIMINAL WRIT PETITION NO. 2073 OF 2008

Mrs. Anuradha Prakash Joshi .. Petitioner

Vs

Dr.Prakash Vinayak Joshi .. Respondent
Shri. Nitin Deshpande for the Applicant in WP 2101/08, 2102/08 and for respondent in WP 2073/08
Shri. J. Shekhar for the respondent in WP 2101/08 and petitioner in WP 2073/08
Shri. Y.M. Nakhawa, APP for State
WITH CRIMINAL REVISION APPLICATION NO. 41 OF 2009
Jaiprakash Bapurao Ogle
Age 52, Occ : Service,
R/o. Row House no. 6, Siddhivinayak
Angan, Sasane Nagar, Hadapsar, Pune Petitioner

Vs

1. Pushpa Jaiprakash Ogle
Age : 42 Yrs, Occ. : Housewife,
R/o. Naregaon Road, Gokul Nagar,
Bhatkute Building, 2nd Floor,Dhayri, Pune.

2. State of Maharashtra. Respondents
WITH CRIMINAL WRIT PETITION NO. 494 OF 2009
Mrs. Pushpa Jaiprakash Ogle .. Petitioner

Vs

State of Maharashtra and Another .. Respondents
S.R. Page for the petitioner
Shri. Y.M. Nakhawa, APP for State

CORAM : A.S. OKA, J
DATE : 18th JULY, 2009
ORAL JUDGMENT :

1. As far as criminal writ petition nos. 2101 of 2008, 2102 of 2008 and 2073 of 2008 are concerned, they arise out of the same proceedings. Criminal writ petition No.2101 of 2008 has been filed by the husband. The 2nd respondent in the said petition is his wife. The marriage was solemnized in December, 1973. The petitioner and the 2nd respondent were blessed with two sons. From December, 2001,husband and the wife are residing separately. In the year 2003, the wife filed a petition for divorce in the Family Court at Pune seeking a decree of divorce on the ground of cruelty. There is another petition filed by her seeking divorce on the ground of adultery. An application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as the ‘said Act’) was filed by the wife claiming reliefs under Sections 18 , 19, 20 and 22 of the said Act. The said proceedings are being contested by the husband. An application for interim reliefs was filed by the wife in the said proceeding invoking Section 23 of the said Act of 2005. The main contention raised by the husband is that the proceedings were not maintainable in law as the said Act of 2005 has been brought into force with effect from 26th October,2006. It must be said here that on an application at Ex. 3 filed by the wife, the learned magistrate passed an order dated 18th August, 2008 directing that the wife is entitled to reside in the flat no.
6, more particularly described in the said order. The learned magistrate directed the husband to pay maintenance @ Rs. 2000/per month to the wife. By order dated 6th September, 2008, passed on the appeal preferred by the husband, the learned Additional Sessions Judge directed the wife to vacate the said flat on or before 30th September, 2008 and to handover vacant possession thereof to the husband. By the said order, the husband was directed either to secure a flat consisting of two bed rooms, hall and kitchen in or around Kothrud area, Pune on rent, on or before 1st October 2008, for the benefit of wife and sons or to pay rent @ Rs. 7000/per month to the wife towards the accommodation in the form of a rented flat. The learned Sessions Judge directed that the main application under Section 12 has to be heard expeditiously. This order is the subject matter of challenge in Criminal Writ Petition No.2101 of 2008.

2. Criminal Writ Petition No. 2102 of 2008 has been filed by the petitioner husband.
His challenge in the said petition is again to the
order of learned magistrate as well as the order of Sessions Court. An
order was passed by the learned magistrate on exhibit 19 which was
an application made by the husband challenging maintainability of the
application under Section 12 of the said Act of 2005. The said
application was rejected. The appeal preferred by the husband against
the said order has been dismissed by the Sessions Court which the
order impugned in the said Criminal Writ Petition No. 2102 of 2008.

3. Criminal writ petition no.2073 of 2008 has been filed by the
wife. The challenge in the said petition is to the same order of the
Sessions Court which is the subject matter of criminal writ petition no.
2101 of 2008. As pointed out earlier, by the order dated 6th
September, 2008, the Sessions court directed the wife to vacate the flat
in question on or before 30th September 2008 and to handover
possession thereof to the husband.

4. Criminal revision application no. 41 of 2009 and Criminal Writ
Petition no. 494 of 2009 also arise out of the proceedings under
Section 12 of the said Act of 2005. Criminal Revision application no.
41 of 2009 is filed by the husband. The prayer is for quashing order
dated 16th June,2008 passed by the learned magistrate on an interim
application filed by the wife and confirmation of the said order by the
Sessions Court. The learned magistrate passed an order directing the
husband to pay monthly maintenance of Rs. 1500/to the wife and to
provide a residential accommodation to her in Hadapsar area of Pune
within a period of 15 days from the date of the order. The said order
was challenged both by the husband and the wife by preferring
appeals. By common judgment and order, both the appeals have been
dismissed by the learned Sessions judge. The petition being Criminal
Writ Petition No. 494 of 2009 is filed by the wife for challenging the same order.

5. It must be stated here that the main submissions have been
made in criminal writ petition no.2101 of 2008, 2102 of 2008 and
2073 of 2008 only on one issue, i.e the issue of maintainability of the
application under Section 12 of the said Act of 2005. The main
challenge is on the ground that the alleged incidents on the basis of
which the application under Section 12 has been filed by the wife
relate to the period prior to 26th October 2006, i.e, the date on which
the said Act of 2005 came into force. The contention is that the said
Act of 2005 provides for penal consequences and therefore, the
provisions of the said Act of 2005 apply prospectively. It must be
made clear that by this order, this court is deciding the issue of
maintainability of the application of the said Act of 2005.

6. The detailed submissions have been made by the learned
counsel appearing for the parties in writ petition nos. 2101 of 2009
and other two connected petitions. The learned counsel appearing for
the husband had invited my attention to the definition of “domestic
violence” in Section 3 of the said Act of 2005. He pointed out that
from the language used by the legislature, it is very clear that the Act
intended to have only a prospective operation. A submission was
made that the said Act of 2005 is not in the nature of a declaratory
statute. In the written submissions filed by the learned counsel for the
petitioner, it is submitted that that even looking at the statements of
object and reasons of the said Act of 2005, it is apparent that the Act
has been enacted for creating new rights and liabilities. He submitted
that the said Act of 2005 affects substantive rights and therefore, the
Act will have only a prospective operation. He pointed out that the
penal consequences are provided in the said Act of 2005 and if the
provisions of the said Act of 2005 are applied retrospectively, a person
will be penalized for an act which was not illegal when it was done.
He submitted that as far as penal statutes are concerned, the law is
very well settled. He submitted that in view of the settled law, the
courts below have committed a gross error by rejecting the application
made by the petitioner husband challenging the maintainability of the
application. He has placed reliance on the decision of the Apex court
in the case of Keshavan Madhava Menon Vs State of Bombay (AIR
1951 SC 128). He has also placed reliance on the decision of the Apex
court in the case of M/s. Punjab Tin Supply Co, Chandigarh Vs Central
Government and others [(1984) 1 SCC 206)]. He invited my attention
to the decision of the Apex court in the case of S.L. Srinivasa Jute
Twine Mills P. Ltd Vs Union of India and Another [(2006)2 SCC 740].
He also invited my attention to the decision of the Apex Court in the
case of Kamla Devi Vs Kushal Kanwar and Another [(2006)13 SCC
295]. Reliance has been placed by him on the case of Hitendra Vishnu
Thakur and others etc Vs State of Maharashtra and others (AIR 1994 SC 2623).

7. The learned counsel appearing for the wife has also made
detailed submissions. He invited my attention to the various
provisions of the said Act of 2005. He submitted that the Act does not
create any new rights or liabilities. He submitted that in substance the
said Act of 2005 is a procedural statute. He submitted that if the
interpretation put by the learned counsel for the husband is accepted,
it will completely defeat the object of enacting the said Act of 2005.
He has also placed reliance on several decisions including certain
decisions of the Apex Court. He submitted that the courts below were
right in holding that the application under the said Act of 2005 was maintainable.

READ  Earning Women No interim maintenance

8. The question to be decided is whether an application under
Section 12 of the said Act of 2005 was maintainable, as the same is
based on acts and omissions prior to the date of coming into force of
the said Act of 2005. The settled principles which emerge from
various decisions of the Apex Court have been laid down by the Apex
court in the case of Hitendra Vishnu Thakur (Supra). In paragraph 25,
the Apex Court has observed thus:
” From the law settled by this Court in various cases, the
illustrative though not exhaustive, principles which emerge with
regard to the ambit and scope of an Amending Act and its
retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to
be prospective in operation, unless made retrospective, either
expressly or by necessary intendment, whereas a statute which
merely affects procedure, unless such a construction is textually
impossible is presumed to be retrospective in its application,
should not be given an extended meaning, and should be strictly
confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature,
whereas law relating to right of action and right of appeal, even
though remedial, is substantive in nature.
(iii) Every litigant has a vested right in substantive law, but no
such rights exists in procedural law.
(iv) A procedural Statute should not generally speaking be
applied retrospectively, where the result would be to create new
disabilities or obligations, or to impose new duties in respect of
transactions already accomplished.
(v) A Statute which not only changes the procedure but also
creates new rights and liabilities, shall be construed to be
prospective in operation, unless otherwise provided, either
expressly or by necessary implication”

9. In the light of the settled principles of law governing the
interpretation of the statutes, it will be necessary to refer to the
provisions of the said Act of 2005. The preamble of the said Act
provides that the object of the Act is to provide for more effective
protection of the rights of women guaranteed under the Constitution
who are victims of violence of any kind occurring within the family
and for matters connected therewith or incidental thereto. In the
introduction before the statement of objects and reasons , it is stated
that in order to provide a remedy in civil law for the protection of
woman from being victims of domestic violence and to prevent the
occurrence of domestic violence in the society, the Bill of the said Act
was introduced. It is stated in the introduction that though there was
a provision of Section 498A of the Indian Penal Code, civil law does
not address the phenomenon of domestic violence in its entirety.
10. What is important is Clause 3 of objects and reasons which reads thus :
“It is, therefore, proposed to enact a law keeping in view the
rights guaranteed under articles 14, 15 and 21 of the
Constitution to provide for a remedy under the Civil law
which is intended to protect the woman from being victims of
domestic violence and to prevent the occurrences of domestic violence in the society”[Emphasis Added]

11. Thus, what is stated by the legislature is that the proposal was to
enact a law keeping in view the rights guaranteed under Articles 14,
15 and 21 of the Constitution to provide for a remedy under the civil
law which is intended to protect a woman from being victimized of
domestic violence and to prevent occurrence of domestic violence in the society.

12. The Act gives a very wide definition of domestic relationship
which is found in clause (f) of Section 2 of the said Act of 2005.
Clause (f) of Section 2 thus reads as under:
“‘domestic relationship’ means a relationship between two persons
who live or have, at any point of time, lived together in a shared
household, when they are related by consanguinity, marriage, or
through a relationship in the nature of marriage, adoption or are
family members living together as joint family;”

13. It will also be necessary to refer to the definition of shared
household which is found in clause (s) of Section 2 of the said Act of 2005 which reads thus:
“‘shared household’ means a household where the person
aggrieved lives or at any stage has lived in a domestic
relationship either singly or along with the respondent and
includes such a household whether owned or tenanted by the
aggrieved person and the respondent, or owned or tenanted by
either of them in respect of which either the aggrieved person or
the respondent or both jointly or singly have any right, title,
interest or equity and includes such a household which may
belong to the joint family of which the respondent is a member,
irrespective of whether the respondent or the aggrieved person
has any right, title or interest in the shared household.”
On plain reading of the said definition, the concept of shared
household under the said Act of 2005 is certainly wider than existing
concept of the matrimonial home. In view of the definition of
“domestic relationship”, in case of a woman living with a male partner
having a relationship in the nature of marriage, the house owned by
the male partner in which they are residing together will become a
shared household. Section 2(g) defines a “respondent” against whom a
relief can be granted on an application under Section 12 of the said Act of 2005.

14. Section 3 defines “domestic violence”. The first part of Section 3 is relevant which reads thus:
“Definition of domestic violence For the purposes of this Act,any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it (a) harms or injures or endangers the health, safety, life, limb or wellbeing,
whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse ; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”
Chapter III of the said Act of 2005 deals with powers and duties of protection officers, service providers etc. with which we are not concerned for the purposes of deciding the issue involved. Chapter IV of the said Act incorporates the procedure for grant of reliefs and nature of reliefs which may be granted under the said Act. The proceedings under the said Act of 2005 are required to be initiated on the basis of an application contemplated by Section 12. The application can be filed by the aggrieved person or a protection officer or any other person on behalf of the aggrieved person. The Act provides for grant of different kinds of reliefs which are as under:
a. Protection orders under Section 18
b. Residence orders under Section 19
c. Monetary reliefs under Section 20
d. Custody orders under Section 21
f. Compensation orders under Section 22

15. Section 23 deals with the powers of learned Magistrate to grant
exparte ad interim orders or interim orders in terms of reliefs provided
under Sections 18, 19, 20, 21 or as the case may be under Section 22.
Section 26 provides that any relief which may be granted under the
aforesaid Sections can be also sought in any legal proceedings pending
before a Civil Court, Family Court or Criminal Court affecting the
aggrieved person and the respondent. Section 26 reads thus :
“Relief in other suits and legal proceedings (
1)Any relief available under
sections 18, 19, 20, 21 and 22 may also be sought in any legal
proceeding before a civil court, family court or a criminal Court, affecting
the aggrieved person and the respondent whether such proceeding was
initiated before or after the commencement of this Act.”
(2) Any relief referred to in subsection
(1) may be sought for in addition
to and along with any other relief that the aggrieved person may seek in
such suit or legal proceedings before a civil or criminal Court.
(3) In case any relief has been obtained by the aggrieved person in any
proceedings other than a proceeding under this Act, she shall be bound to
inform the Magistrate of the grant of such relief.”

16. In subsection
(1) of Section 26, it is specifically provided that
reliefs as provided under the said Act can be sought in the proceedings
pending before a Civil Court, Family Court or Criminal Court which are
initiated even before the commencement of the said Act of 2005.

17. Chapter V is under the title ‘miscellaneous’. In the said Chapter
and under the said Act of 2005, there is only one penal provision
against the respondent in an application under Section 12 which is in
the form of Section 31 which reads thus:
“Penalty for breach of protection order by respondent (1) A
breach of protection order, or of an interim protection order, by
the respondent shall be an offence under this Act and shall be
punishable with imprisonment of either description for a term
which may extend to one year, or with fine which may extend to
twenty thousand rupees, or with both.
(2) The offence under subsection
(1) shall be as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused.
(3) While framing charges under subsection
(1), the Magistrate may also frame charges under section 498A of the Indian Penal
Code (45 of 1860) or any other provision of that Code or the
Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if
the facts disclose the commission of an offence under those provisions”

READ  Guidelines for LOC, RCN and its purpose,FRRO and NCW powers in 498a case

18. Thus, what is provided therein is that the breach of protection
order or an interim protection order, i.e, the order passed under
Section 18 or an interim order or exparte ad interim order passed
under Section 18 shall be punishable with imprisonment of either
description which may extend to one year or with fine which may
extent to twenty thousand rupees or with both. Thus, in short, a
breach of the protection order or an interim protection order by a
respondent in an application under Section 12 has been made as an
offence. Section 33 is the only other penal provision under the said
Act of 2005. A Protection Officer who fails or refuses to discharge his
duties as directed by the Magistrate in the protection order without
any sufficient cause, shall be punished for imprisonment of either
description which may extend to one year, or with fine which may
extend to twenty thousand rupees, or with both.

19. As far as declaration of rights is concerned, there is only one
statutory provision, i.e., Section 17 which reads thus :
“Right to reside in a shared household (1) Notwithstanding
anything contained in any other law for the time being in force,
every woman in a domestic relationship shall have the right to
reside in the shared household, whether or not she has any right,
title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the
shared household or any part of it by the respondent save in
accordance with the procedure established by law.”
As pointed out earlier, the Act has brought on the statute book,
a new concept of a shared household as distinguished from the
concept of matrimonial home of a married woman. Thus, Section 17
brings into existence new rights in favour of a woman, who is in a
domestic relationship, to reside in the shared household, whether or
not she has any right, title or beneficial interest in the same. After
conferring the said right, it is provided that the “aggrieved person” as
defined under Clause (a) of Section 2 shall not be evicted or excluded
from the shared household or any part of it by the respondent save in
accordance with the procedure established by law. Subsection
(2) of Section 17 thus, protects the woman (aggrieved person) from forcible
dispossession or forcible eviction from the shared household.

20. All this will have to be considered in the light of clause 3 of the
statements of object and reasons which gives an indication that the
legislature intended to provide a remedy under civil law for protecting
women from being a victim of domestic violence and to prevent
occurrence of domestic violence.

21. On plain reading of the said Act of 2005, it is crystal clear that
any acts or conduct constituting “domestic violence” is not made an
offence. To repeat, as far as respondent to application under Section
12 is concerned, the only penal provision is found in Section 31 of the
said Act. The said penal provision is attracted when the respondent
commits breach of a protection order under Section 18 of the said Act
of 2005. The other penal provision is against the protection officer
which is attracted in the event the officer fails or refused to discharge
his duties as directed by the Magistrate in the protection order.
Keeping this in mind, it will be necessary to refer to the reliefs which
can be granted by the learned magistrate while dealing with the
application under Section 12 of the said Act. Section 18 provides for
grant of protection order. Before passing protection order, the
magistrate has to be prima facie satisfied that any domestic violence
has taken place or is likely to take place. When such prima facie
satisfaction is recorded, the learned magistrate can pass the order for
preventing any act of domestic violence and aiding and abetting in
the commission of acts of domestic violence. A preventive order can
be passed for preventing the respondent from entering the place of
employment of the aggrieved person or any other place frequented by
the aggrieved person. The magistrate can prevent the respondent from
attempting to communicate in any form, whatsoever, with the
aggrieved person, including personal, oral or written or electronic or
telephonic contact. The section contemplates that preventive order
can be passed restraining the respondent from operating bank lockers
or bank accounts belonging to both the parties. A protection order
can be passed in favour of the aggrieved person by preventing
alienation of stridhan or a property jointly or separately held by the
aggrieved person or respondent from being alienated. Clause (f)
permits the protection order to be passed prohibiting the respondent
from causing violence to the dependants or other relatives or any other
person who give assistance to the aggrieved person from domestic
violence. Thus, the power of learned magistrate under Section 18 is
to grant protection to the aggrieved person essentially for preventing
the respondent from committing acts or conduct constituting “domestic
violence”. To give an illustration, if an application is filed under
Section 12 of the said Act of 2005 on 27th October,2006 containing
allegation as regards domestic violence committed prior to 26th
October, 2006, the learned magistrate can always pass the protection
order to ensure that there is no further domestic violence on the part
of the respondent. The order which may be passed on such application
filed on 27th October, 2006 will have prospective operation. Penal
provision provided under Section 31 of the said Act will come into
picture only if the respondent commits breach of protection order or
interim protection order. Naturally, the breach for which the
respondent can be penalized under Section 31 of the said Act of 2005
will be committed after coming into force of the said Act. The order
under Section 18 can be passed by the learned magistrate after coming
into force of the said Act for preventing domestic violence and for
protecting the woman against domestic violence in future. The prima
facie satisfaction contemplated by Section 18 which is required to be
recorded by the learned magistrate can be on the basis of acts of
domestic violence committed prior to coming into force of the said Act
of 2005. A protection order can be passed on or after 26th October,
2005 in an application under Section 12. If respondent is punished for
breach of such protection orders, he will be punished for the acts or
breaches committed by him after passing of the protection order. By
no stretch of imagination, it can be said that under Section 31, the
respondent can be punished for his acts committed prior to 26th October, 2006.

22. A relief can be granted in the form of residence orders under
Section 19. Section 19 reads thus:”Residence orders (1) While disposing of an application under subSection (1) of section 12, the Magistrate may, on being
satisfied that domestic violence has taken place, pass a residence order (
a) restraining the respondent from dispossessing or in any other
manner disturbing the possession of the aggrieved person from the
shared household,whether or not the respondent has a legal or
equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering
any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the
shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the
shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her in the
shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed
against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass
any other direction which he may deem reasonably necessary to
protect or to provide for the safety of the aggrieved person or any
child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a
bond with or without sureties, for preventing the commission of domestic violence.
(4) An order under subsection
(3) shall be deemed to be an order
under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of
1974) and shall be dealt with accordingly.
(5) While passing an order under subsection
(1), subsection (2)or subsection (3), the court may also pass an order directing the officer incharge
of the nearest police station to give protection to
the aggrieved person or to assist her or the person making an
application on her behalf in the implementation of the order.
(6) While making an order under subsection(1), the Magistrate
may impose on the respondent obligations relating to the discharge
of rent and other payments, having regard to the financial needs
and resources of the parties.
(7) The Magistrate may direct the officer incharge of the police
station in whose jurisdiction the Magistrate has been approached
to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the
possession of the aggrieved person her stridhan or any other
property or valuable security to which she is entitled to.”

READ  Even District Judge needs 17 years to get his divorce

23. The orders which can be passed under Section 19 relate to the
shared household. In essence, the said orders are meant for protecting
rights created by Section 17 in favour of the aggrieved party of
residence in a shared household. Restraint orders can be passed
restraining the respondent from disturbing the possession of aggrieved
person over the shared household. In a given case, the respondent can
be ordered to remove himself from the shared household. An order
can be passed restraining the respondent or any of his relatives from
entering in specified portion of the shared household. The magistrate
can prevent the respondent from alienating his rights in respect of
shared household except without his permission. Another relief which
can be granted under Section 19 is of directing the respondent to
secure same level of alternate accommodation for the aggrieved person. Subsection
(3) of Section 19 gives the magistrate a power to
obtain a bond from the respondent for preventing commission of
domestic violence. What is important is subsection
(4) of Section 19 which provides that order under subsection
3 shall be deemed to be the order under Chapter VIII of the Code of Criminal Procedure, 1973.
Chapter VIII deals with chapter proceedings (Security for keeping
peace and for good behavior). Subsection(5) of Section 19 provides
that the magistrate can also pass an order directing the officerincharge
of the nearest police station to assist the aggrieved person for
implementation of the orders. It must be noted here that even under
the Code of Civil Procedure, 1908, a civil court by exercising powers
under Section 151 of the said Code of 1908 is empowered to direct the
police machinery to render assistance for implementation of temporary injunction.
24. Section 20 confers powers on the learned magistrate to grant
monetary relief. Section 20 reads thus:
“Monetary reliefs (1) While disposing of an application under
subsection (1) of section 12, the Magistrate may direct the
respondent to pay monetary relief to meet the expenses incurred
and losses suffered by the aggrieved person and any child of the
aggrieved person as a result of the domestic violence and such relief
may include, but not limited to, (a) the loss of earnings;
(b) the medical expenses;
(c) The loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person;and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973(2 of 1974) (hereinafter referred to as “said Act of 1973″) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be
adequate, fair and reasonable and consistent with the standard of
living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate
lump sum payment or monthly payments of maintenance, as the
nature and circumstances of the case may require.
(4) The Magistrate shall sent a copy of the order for monetary
relief made under subsection
(1) to the parties to the application
and to the incharge
of the police station within the local limits of
whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the
aggrieved person within the period specified in the order under
subsection(1)
(6) Upon the failure on the part of the respondent to make
payment in terms of the order under subsection
(1), the
Magistrate may direct the employer or a debtor of the respondent,
to directly pay to the aggrieved person or to deposit with the court
a portion of the wages or salaries or debt due to or accrued to the
credit of the respondent, which amount may be adjusted towards
the monetary relief payable by the respondent.”

25. The jurisdiction of the learned magistrate to grant monetary
relief is confined to meeting the expenses incurred and loss suffered
by the aggrieved person as a result of domestic violence. The
monetary relief in such cases includes loss of earnings and medical
expenses. As far as this Section is concerned, obviously it has a
prospective application in the sense that monetary relief can be
granted as regards domestic violence occurring on or after 26th
October, 2006 as the concept of domestic violence as defined in
Section 3 has been brought on statute book with effect from 26th
October, 2006. Clause (d) of subsection
(1) of Section 20 gives
power to the learned magistrate to pass the order of maintenance
under Section 125 of the said Act of 1973 or any other law for the time
being in force. Thus, the said order is to be passed in accordance with
the existing rights under Section 125 of the said Act of 1973, or any
other existing law. The order can be made effective from the date of
filing an application under Section 12 of the said Act. The power
conferred by clause (d) is to grant maintenance, including and in
addition to the order of maintenance under Section 125 of the said
Code of 1973 or any other law for the time being in force. Even the
order of additional maintenance can be passed only from the date of
an application under Section12.

26. Section 21 deals with the orders of custody of the child or
children to the aggrieved person and it also provides for grant of
visitation rights. Section 22 confers powers on the magistrate to pass
orders directing the respondent to pay compensation and damages for
the injuries, including mental torture and emotional distress caused to
her by the aids ofdomestic violence by the respondent. Power under
Section 22 of the said Act of 2005 can be exercised on the basis of acts
of domestic violence taken place on or after 26th October,2005.

27. As far as the argument based on the penal consequences is
concerned, there is one more provision which is required to be dealt
with. The said provision is Rule 6 of the Protection of Women from
Domestic Violence Rules, 2006. SubRule
5 of Rule 6 provides that the
applications under Section 12 shall be dealt with and the order
enforced in the same manner laid down under Section 125 of the Code
of Criminal Procedure, 1973. Thus, the procedure to be followed for
deciding applications under Section 12 is the same which is followed
as prescribed by Section 126 of the said Code. The orders passed on
application under Section 12 can be enforced in a manner provided
under Section 125, i.e under subsection
3 thereof where a person can
be penalized for committing breach of the order. Thus, if the
respondent commits breach of any orders passed under the said Act, he
can be dealt with in accordance with subsection
3 of Section 125.
Naturally, the said default will be attracted only on the basis of the
orders passed on an application under Section 12.

28. Merely because jurisdiction is conferred on the magistrate to
exercise powers under the said Act of 2005, the nature of the
proceedings under the said Act of 2005 is not criminal. The Act is
intended to provide a remedy to the aggrieved person under the Civil
law. The said Act of 2005 provides for penal consequences only in
case there is a breach of order passed under Section 18.

29. If all these aspects are considered, it is obvious that merely
because the aggrieved person in the application under Section 12
relies upon acts of domestic violence which relate to a period prior to
26th October, 2005, it cannot be said that the application under
Section 12 is not maintainable. While recording prima facie
satisfaction contemplated by Section 18 of the said Act of 2005, the
learned Magistrate can consider acts of domestic violence prior to 26th
October,2005. In the circumstances, the objection raised by the
learned counsel appearing for the husband in writ petition no. 2102 of 2008 has to be rejected.

30. Writ petition no. 2102 of 2008 is filed for impugning the order passed on application at Ex. 19 by which the prayer was made by the husband for dismissing the application filed by the wife on the ground that same is not maintainable. In view of the discussion made above,the court below was justified in rejecting the said application and therefore, criminal writ petition no. 2102 of 2008 is required to be dismissed.

31. In the other petitions, a challenge is on the merits of the order and therefore those petitions will have to be heard and decide on merits and those petitions will have to be placed before the appropriate court to enable the parties to canvass their submissions on merit. Considering the heavy pressure of work, this judgment may not be ready immediately. Hence, the other petitions will have to be placed before the court in third week of September, 2009, to enable the petitioner / husband to take appropriate steps on the basis of this order. Hence, I pass the following order:

O R D E R
i. In view of what is discussed above, writ petition no. 2102 of 2008 is dismissed.
ii. Other writ petitions be placed before the appropriate court on

22nd September, 2009
JUDGE

Leave a Comment

Your email address will not be published. Required fields are marked *