{"id":2066,"date":"2011-01-10T10:16:49","date_gmt":"2011-01-10T04:46:49","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=2066"},"modified":"2011-01-10T10:16:49","modified_gmt":"2011-01-10T04:46:49","slug":"494-2009","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/494-2009\/","title":{"rendered":"Domestic Violence Act can’t be applied retrospectively"},"content":{"rendered":"

IN THE HIGH COURT OF JUDICATURE AT BOMBAY<\/strong><\/p>\n

CRIMINAL APPELLATE JURISDICTION
\nCRIMINAL WRIT PETITION NO. 2102 OF 2008<\/p>\n

Dr. Prakash Vinayak Joshi, Age 60 Years,
\nOccupation Diplomat,
\nR\/at. External Affairs Hostel, B33,
\nKasturba Gandhi Marg
\nNew Delhi 110 001. Petitioner<\/p>\n

Vs<\/p>\n

1. The State of Maharashtra
\n2. Mrs. Anuradha Prakash Joshi,
\nAge 58 Years, Occ : household,Residing at Plot No. 5, Shanta Society,
\nKusalkar Road, Pune 411 016.
\nWITH
\nCRIMINAL WRIT PETITION NO. 2101 OF 2008<\/p>\n

Dr. Prakash Vinayak Joshi .. Petitioner<\/p>\n

Vs
\nT
\nhe State of Maharashtra & Another .. Respondents
\nWITH
\nCRIMINAL WRIT PETITION NO. 2073 OF 2008<\/p>\n

Mrs. Anuradha Prakash Joshi .. Petitioner<\/p>\n

Vs<\/p>\n

Dr.Prakash Vinayak Joshi .. Respondent
\nShri. Nitin Deshpande for the Applicant in WP 2101\/08, 2102\/08 and for respondent in WP 2073\/08
\nShri. J. Shekhar for the respondent in WP 2101\/08 and petitioner in WP 2073\/08
\nShri. Y.M. Nakhawa, APP for State
\nWITH CRIMINAL REVISION APPLICATION NO. 41 OF 2009
\nJaiprakash Bapurao Ogle
\nAge 52, Occ : Service,
\nR\/o. Row House no. 6, Siddhivinayak
\nAngan, Sasane Nagar, Hadapsar, Pune Petitioner<\/p>\n

Vs<\/p>\n

1. Pushpa Jaiprakash Ogle
\nAge : 42 Yrs, Occ. : Housewife,
\nR\/o. Naregaon Road, Gokul Nagar,
\nBhatkute Building, 2nd Floor,Dhayri, Pune.<\/p>\n

2. State of Maharashtra. Respondents
\nWITH CRIMINAL WRIT PETITION NO. 494 OF 2009
\nMrs. Pushpa Jaiprakash Ogle .. Petitioner<\/p>\n

Vs<\/p>\n

State of Maharashtra and Another .. Respondents
\nS.R. Page for the petitioner
\nShri. Y.M. Nakhawa, APP for State<\/p>\n

CORAM : A.S. OKA, J
\nDATE : 18th JULY, 2009
\nORAL JUDGMENT :<\/p>\n

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.
\n6, 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.<\/p>\n

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

3. Criminal writ petition no.2073 of 2008 has been filed by the
\nwife. The challenge in the said petition is to the same order of the
\nSessions Court which is the subject matter of criminal writ petition no.
\n2101 of 2008. As pointed out earlier, by the order dated 6th
\nSeptember, 2008, the Sessions court directed the wife to vacate the flat
\nin question on or before 30th September 2008 and to handover
\npossession thereof to the husband.<\/p>\n

4. Criminal revision application no. 41 of 2009 and Criminal Writ
\nPetition no. 494 of 2009 also arise out of the proceedings under
\nSection 12 of the said Act of 2005. Criminal Revision application no.
\n41 of 2009 is filed by the husband. The prayer is for quashing order
\ndated 16th June,2008 passed by the learned magistrate on an interim
\napplication filed by the wife and confirmation of the said order by the
\nSessions Court. The learned magistrate passed an order directing the
\nhusband to pay monthly maintenance of Rs. 1500\/to the wife and to
\nprovide a residential accommodation to her in Hadapsar area of Pune
\nwithin a period of 15 days from the date of the order. The said order
\nwas challenged both by the husband and the wife by preferring
\nappeals. By common judgment and order, both the appeals have been
\ndismissed by the learned Sessions judge. The petition being Criminal
\nWrit Petition No. 494 of 2009 is filed by the wife for challenging the same order.<\/p>\n

5. It must be stated here that the main submissions have been
\nmade in criminal writ petition no.2101 of 2008, 2102 of 2008 and
\n2073 of 2008 only on one issue, i.e the issue of maintainability of the
\napplication under Section 12 of the said Act of 2005. The main
\nchallenge is on the ground that the alleged incidents on the basis of
\nwhich the application under Section 12 has been filed by the wife
\nrelate to the period prior to 26th October 2006, i.e, the date on which
\nthe said Act of 2005 came into force. The contention is that the said
\nAct of 2005 provides for penal consequences and therefore, the
\nprovisions of the said Act of 2005 apply prospectively. It must be
\nmade clear that by this order, this court is deciding the issue of
\nmaintainability of the application of the said Act of 2005.<\/p>\n

6. The detailed submissions have been made by the learned
\ncounsel appearing for the parties in writ petition nos. 2101 of 2009
\nand other two connected petitions. The learned counsel appearing for
\nthe husband had invited my attention to the definition of “domestic
\nviolence” in Section 3 of the said Act of 2005. He pointed out that
\nfrom the language used by the legislature, it is very clear that the Act
\nintended to have only a prospective operation. A submission was
\nmade that the said Act of 2005 is not in the nature of a declaratory
\nstatute. In the written submissions filed by the learned counsel for the
\npetitioner, it is submitted that that even looking at the statements of
\nobject and reasons of the said Act of 2005, it is apparent that the Act
\nhas been enacted for creating new rights and liabilities. He submitted
\nthat the said Act of 2005 affects substantive rights and therefore, the
\nAct will have only a prospective operation. He pointed out that the
\npenal consequences are provided in the said Act of 2005 and if the
\nprovisions of the said Act of 2005 are applied retrospectively, a person
\nwill be penalized for an act which was not illegal when it was done.
\nHe submitted that as far as penal statutes are concerned, the law is
\nvery well settled. He submitted that in view of the settled law, the
\ncourts below have committed a gross error by rejecting the application
\nmade by the petitioner husband challenging the maintainability of the
\napplication. He has placed reliance on the decision of the Apex court
\nin the case of Keshavan Madhava Menon Vs State of Bombay (AIR
\n1951 SC 128). He has also placed reliance on the decision of the Apex
\ncourt in the case of M\/s. Punjab Tin Supply Co, Chandigarh Vs Central
\nGovernment and others [(1984) 1 SCC 206)]. He invited my attention
\nto the decision of the Apex court in the case of S.L. Srinivasa Jute
\nTwine Mills P. Ltd Vs Union of India and Another [(2006)2 SCC 740].
\nHe also invited my attention to the decision of the Apex Court in the
\ncase of Kamla Devi Vs Kushal Kanwar and Another [(2006)13 SCC
\n295]. Reliance has been placed by him on the case of Hitendra Vishnu
\nThakur and others etc Vs State of Maharashtra and others (AIR 1994 SC 2623).<\/p>\n

7. The learned counsel appearing for the wife has also made
\ndetailed submissions. He invited my attention to the various
\nprovisions of the said Act of 2005. He submitted that the Act does not
\ncreate any new rights or liabilities. He submitted that in substance the
\nsaid Act of 2005 is a procedural statute. He submitted that if the
\ninterpretation put by the learned counsel for the husband is accepted,
\nit will completely defeat the object of enacting the said Act of 2005.
\nHe has also placed reliance on several decisions including certain
\ndecisions of the Apex Court. He submitted that the courts below were
\nright in holding that the application under the said Act of 2005 was maintainable.<\/p>\n

8. The question to be decided is whether an application under
\nSection 12 of the said Act of 2005 was maintainable, as the same is
\nbased on acts and omissions prior to the date of coming into force of
\nthe said Act of 2005. The settled principles which emerge from
\nvarious decisions of the Apex Court have been laid down by the Apex
\ncourt in the case of Hitendra Vishnu Thakur (Supra). In paragraph 25,
\nthe Apex Court has observed thus:
\n” From the law settled by this Court in various cases, the
\nillustrative though not exhaustive, principles which emerge with
\nregard to the ambit and scope of an Amending Act and its
\nretrospective operation may be culled out as follows:
\n(i) A statute which affects substantive rights is presumed to
\nbe prospective in operation, unless made retrospective, either
\nexpressly or by necessary intendment, whereas a statute which
\nmerely affects procedure, unless such a construction is textually
\nimpossible is presumed to be retrospective in its application,
\nshould not be given an extended meaning, and should be strictly
\nconfined to its clearly defined limits.
\n(ii) Law relating to forum and limitation is procedural in nature,
\nwhereas law relating to right of action and right of appeal, even
\nthough remedial, is substantive in nature.
\n(iii) Every litigant has a vested right in substantive law, but no
\nsuch rights exists in procedural law.
\n(iv) A procedural Statute should not generally speaking be
\napplied retrospectively, where the result would be to create new
\ndisabilities or obligations, or to impose new duties in respect of
\ntransactions already accomplished.
\n(v) A Statute which not only changes the procedure but also
\ncreates new rights and liabilities, shall be construed to be
\nprospective in operation, unless otherwise provided, either
\nexpressly or by necessary implication”<\/p>\n

9. In the light of the settled principles of law governing the
\ninterpretation of the statutes, it will be necessary to refer to the
\nprovisions of the said Act of 2005. The preamble of the said Act
\nprovides that the object of the Act is to provide for more effective
\nprotection of the rights of women guaranteed under the Constitution
\nwho are victims of violence of any kind occurring within the family
\nand for matters connected therewith or incidental thereto. In the
\nintroduction before the statement of objects and reasons , it is stated
\nthat in order to provide a remedy in civil law for the protection of
\nwoman from being victims of domestic violence and to prevent the
\noccurrence of domestic violence in the society, the Bill of the said Act
\nwas introduced. It is stated in the introduction that though there was
\na provision of Section 498A of the Indian Penal Code, civil law does
\nnot address the phenomenon of domestic violence in its entirety.
\n10. What is important is Clause 3 of objects and reasons which reads thus :
\n“It is, therefore, proposed to enact a law keeping in view the
\nrights guaranteed under articles 14, 15 and 21 of the
\nConstitution to provide for a remedy under the Civil law
\nwhich is intended to protect the woman from being victims of
\ndomestic violence and to prevent the occurrences of domestic violence in the society”[Emphasis Added]<\/p>\n

11. Thus, what is stated by the legislature is that the proposal was to
\nenact a law keeping in view the rights guaranteed under Articles 14,
\n15 and 21 of the Constitution to provide for a remedy under the civil
\nlaw which is intended to protect a woman from being victimized of
\ndomestic violence and to prevent occurrence of domestic violence in the society.<\/p>\n

12. The Act gives a very wide definition of domestic relationship
\nwhich is found in clause (f) of Section 2 of the said Act of 2005.
\nClause (f) of Section 2 thus reads as under:
\n“‘domestic relationship’ means a relationship between two persons
\nwho live or have, at any point of time, lived together in a shared
\nhousehold, when they are related by consanguinity, marriage, or
\nthrough a relationship in the nature of marriage, adoption or are
\nfamily members living together as joint family;”<\/p>\n

13. It will also be necessary to refer to the definition of shared
\nhousehold which is found in clause (s) of Section 2 of the said Act of 2005 which reads thus:
\n“‘shared household’ means a household where the person
\naggrieved lives or at any stage has lived in a domestic
\nrelationship either singly or along with the respondent and
\nincludes such a household whether owned or tenanted by the
\naggrieved person and the respondent, or owned or tenanted by
\neither of them in respect of which either the aggrieved person or
\nthe respondent or both jointly or singly have any right, title,
\ninterest or equity and includes such a household which may
\nbelong to the joint family of which the respondent is a member,
\nirrespective of whether the respondent or the aggrieved person
\nhas any right, title or interest in the shared household.”
\nOn plain reading of the said definition, the concept of shared
\nhousehold under the said Act of 2005 is certainly wider than existing
\nconcept of the matrimonial home. In view of the definition of
\n“domestic relationship”, in case of a woman living with a male partner
\nhaving a relationship in the nature of marriage, the house owned by
\nthe male partner in which they are residing together will become a
\nshared household. Section 2(g) defines a “respondent” against whom a
\nrelief can be granted on an application under Section 12 of the said Act of 2005.<\/p>\n

14. Section 3 defines “domestic violence”. The first part of Section 3 is relevant which reads thus:
\n“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,
\nwhether 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
\n(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
\n(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”
\nChapter 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:
\na. Protection orders under Section 18
\nb. Residence orders under Section 19
\nc. Monetary reliefs under Section 20
\nd. Custody orders under Section 21
\nf. Compensation orders under Section 22<\/p>\n

15. Section 23 deals with the powers of learned Magistrate to grant
\nexparte ad interim orders or interim orders in terms of reliefs provided
\nunder Sections 18, 19, 20, 21 or as the case may be under Section 22.
\nSection 26 provides that any relief which may be granted under the
\naforesaid Sections can be also sought in any legal proceedings pending
\nbefore a Civil Court, Family Court or Criminal Court affecting the
\naggrieved person and the respondent. Section 26 reads thus :
\n“Relief in other suits and legal proceedings (
\n1)Any relief available under
\nsections 18, 19, 20, 21 and 22 may also be sought in any legal
\nproceeding before a civil court, family court or a criminal Court, affecting
\nthe aggrieved person and the respondent whether such proceeding was
\ninitiated before or after the commencement of this Act.”
\n(2) Any relief referred to in subsection
\n(1) may be sought for in addition
\nto and along with any other relief that the aggrieved person may seek in
\nsuch suit or legal proceedings before a civil or criminal Court.
\n(3) In case any relief has been obtained by the aggrieved person in any
\nproceedings other than a proceeding under this Act, she shall be bound to
\ninform the Magistrate of the grant of such relief.”<\/p>\n

16. In subsection
\n(1) of Section 26, it is specifically provided that
\nreliefs as provided under the said Act can be sought in the proceedings
\npending before a Civil Court, Family Court or Criminal Court which are
\ninitiated even before the commencement of the said Act of 2005.<\/p>\n

17. Chapter V is under the title ‘miscellaneous’. In the said Chapter
\nand under the said Act of 2005, there is only one penal provision
\nagainst the respondent in an application under Section 12 which is in
\nthe form of Section 31 which reads thus:
\n“Penalty for breach of protection order by respondent (1) A
\nbreach of protection order, or of an interim protection order, by
\nthe respondent shall be an offence under this Act and shall be
\npunishable with imprisonment of either description for a term
\nwhich may extend to one year, or with fine which may extend to
\ntwenty thousand rupees, or with both.
\n(2) The offence under subsection
\n(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.
\n(3) While framing charges under subsection
\n(1), the Magistrate may also frame charges under section 498A of the Indian Penal
\nCode (45 of 1860) or any other provision of that Code or the
\nDowry Prohibition Act, 1961 (28 of 1961), as the case may be, if
\nthe facts disclose the commission of an offence under those provisions”<\/p>\n

18. Thus, what is provided therein is that the breach of protection
\norder or an interim protection order, i.e, the order passed under
\nSection 18 or an interim order or exparte ad interim order passed
\nunder Section 18 shall be punishable with imprisonment of either
\ndescription which may extend to one year or with fine which may
\nextent to twenty thousand rupees or with both. Thus, in short, a
\nbreach of the protection order or an interim protection order by a
\nrespondent in an application under Section 12 has been made as an
\noffence. Section 33 is the only other penal provision under the said
\nAct of 2005. A Protection Officer who fails or refuses to discharge his
\nduties as directed by the Magistrate in the protection order without
\nany sufficient cause, shall be punished for imprisonment of either
\ndescription which may extend to one year, or with fine which may
\nextend to twenty thousand rupees, or with both.<\/p>\n

19. As far as declaration of rights is concerned, there is only one
\nstatutory provision, i.e., Section 17 which reads thus :
\n“Right to reside in a shared household (1) Notwithstanding
\nanything contained in any other law for the time being in force,
\nevery woman in a domestic relationship shall have the right to
\nreside in the shared household, whether or not she has any right,
\ntitle or beneficial interest in the same.
\n(2) The aggrieved person shall not be evicted or excluded from the
\nshared household or any part of it by the respondent save in
\naccordance with the procedure established by law.”
\nAs pointed out earlier, the Act has brought on the statute book,
\na new concept of a shared household as distinguished from the
\nconcept of matrimonial home of a married woman. Thus, Section 17
\nbrings into existence new rights in favour of a woman, who is in a
\ndomestic relationship, to reside in the shared household, whether or
\nnot she has any right, title or beneficial interest in the same. After
\nconferring the said right, it is provided that the “aggrieved person” as
\ndefined under Clause (a) of Section 2 shall not be evicted or excluded
\nfrom the shared household or any part of it by the respondent save in
\naccordance with the procedure established by law. Subsection
\n(2) of Section 17 thus, protects the woman (aggrieved person) from forcible
\ndispossession or forcible eviction from the shared household.<\/p>\n

20. All this will have to be considered in the light of clause 3 of the
\nstatements of object and reasons which gives an indication that the
\nlegislature intended to provide a remedy under civil law for protecting
\nwomen from being a victim of domestic violence and to prevent
\noccurrence of domestic violence.<\/p>\n

21. On plain reading of the said Act of 2005, it is crystal clear that
\nany acts or conduct constituting “domestic violence” is not made an
\noffence. To repeat, as far as respondent to application under Section
\n12 is concerned, the only penal provision is found in Section 31 of the
\nsaid Act. The said penal provision is attracted when the respondent
\ncommits breach of a protection order under Section 18 of the said Act
\nof 2005. The other penal provision is against the protection officer
\nwhich is attracted in the event the officer fails or refused to discharge
\nhis duties as directed by the Magistrate in the protection order.
\nKeeping this in mind, it will be necessary to refer to the reliefs which
\ncan be granted by the learned magistrate while dealing with the
\napplication under Section 12 of the said Act. Section 18 provides for
\ngrant of protection order. Before passing protection order, the
\nmagistrate has to be prima facie satisfied that any domestic violence
\nhas taken place or is likely to take place. When such prima facie
\nsatisfaction is recorded, the learned magistrate can pass the order for
\npreventing any act of domestic violence and aiding and abetting in
\nthe commission of acts of domestic violence. A preventive order can
\nbe passed for preventing the respondent from entering the place of
\nemployment of the aggrieved person or any other place frequented by
\nthe aggrieved person. The magistrate can prevent the respondent from
\nattempting to communicate in any form, whatsoever, with the
\naggrieved person, including personal, oral or written or electronic or
\ntelephonic contact. The section contemplates that preventive order
\ncan be passed restraining the respondent from operating bank lockers
\nor bank accounts belonging to both the parties. A protection order
\ncan be passed in favour of the aggrieved person by preventing
\nalienation of stridhan or a property jointly or separately held by the
\naggrieved person or respondent from being alienated. Clause (f)
\npermits the protection order to be passed prohibiting the respondent
\nfrom causing violence to the dependants or other relatives or any other
\nperson who give assistance to the aggrieved person from domestic
\nviolence. Thus, the power of learned magistrate under Section 18 is
\nto grant protection to the aggrieved person essentially for preventing
\nthe respondent from committing acts or conduct constituting “domestic
\nviolence”. To give an illustration, if an application is filed under
\nSection 12 of the said Act of 2005 on 27th October,2006 containing
\nallegation as regards domestic violence committed prior to 26th
\nOctober, 2006, the learned magistrate can always pass the protection
\norder to ensure that there is no further domestic violence on the part
\nof the respondent. The order which may be passed on such application
\nfiled on 27th October, 2006 will have prospective operation. Penal
\nprovision provided under Section 31 of the said Act will come into
\npicture only if the respondent commits breach of protection order or
\ninterim protection order. Naturally, the breach for which the
\nrespondent can be penalized under Section 31 of the said Act of 2005
\nwill be committed after coming into force of the said Act. The order
\nunder Section 18 can be passed by the learned magistrate after coming
\ninto force of the said Act for preventing domestic violence and for
\nprotecting the woman against domestic violence in future. The prima
\nfacie satisfaction contemplated by Section 18 which is required to be
\nrecorded by the learned magistrate can be on the basis of acts of
\ndomestic violence committed prior to coming into force of the said Act
\nof 2005. A protection order can be passed on or after 26th October,
\n2005 in an application under Section 12. If respondent is punished for
\nbreach of such protection orders, he will be punished for the acts or
\nbreaches committed by him after passing of the protection order. By
\nno stretch of imagination, it can be said that under Section 31, the
\nrespondent can be punished for his acts committed prior to 26th October, 2006.<\/p>\n

22. A relief can be granted in the form of residence orders under
\nSection 19. Section 19 reads thus:”Residence orders (1) While disposing of an application under subSection (1) of section 12, the Magistrate may, on being
\nsatisfied that domestic violence has taken place, pass a residence order (
\na) restraining the respondent from dispossessing or in any other
\nmanner disturbing the possession of the aggrieved person from the
\nshared household,whether or not the respondent has a legal or
\nequitable interest in the shared household;
\n(b) directing the respondent to remove himself from the shared household;
\n(c) restraining the respondent or any of his relatives from entering
\nany portion of the shared household in which the aggrieved person resides;
\n(d) restraining the respondent from alienating or disposing off the
\nshared household or encumbering the same;
\n(e) restraining the respondent from renouncing his rights in the
\nshared household except with the leave of the Magistrate; or
\n(f) directing the respondent to secure same level of alternate
\naccommodation for the aggrieved person as enjoyed by her in the
\nshared household or to pay rent for the same, if the circumstances so require:
\nProvided that no order under clause (b) shall be passed
\nagainst any person who is a woman.
\n(2) The Magistrate may impose any additional conditions or pass
\nany other direction which he may deem reasonably necessary to
\nprotect or to provide for the safety of the aggrieved person or any
\nchild of such aggrieved person.
\n(3) The Magistrate may require from the respondent to execute a
\nbond with or without sureties, for preventing the commission of domestic violence.
\n(4) An order under subsection
\n(3) shall be deemed to be an order
\nunder Chapter VIII of the Code of Criminal Procedure, 1973 (2 of
\n1974) and shall be dealt with accordingly.
\n(5) While passing an order under subsection
\n(1), subsection (2)or subsection (3), the court may also pass an order directing the officer incharge
\nof the nearest police station to give protection to
\nthe aggrieved person or to assist her or the person making an
\napplication on her behalf in the implementation of the order.
\n(6) While making an order under subsection(1), the Magistrate
\nmay impose on the respondent obligations relating to the discharge
\nof rent and other payments, having regard to the financial needs
\nand resources of the parties.
\n(7) The Magistrate may direct the officer incharge of the police
\nstation in whose jurisdiction the Magistrate has been approached
\nto assist in the implementation of the protection order.
\n(8) The Magistrate may direct the respondent to return to the
\npossession of the aggrieved person her stridhan or any other
\nproperty or valuable security to which she is entitled to.”<\/p>\n

23. The orders which can be passed under Section 19 relate to the
\nshared household. In essence, the said orders are meant for protecting
\nrights created by Section 17 in favour of the aggrieved party of
\nresidence in a shared household. Restraint orders can be passed
\nrestraining the respondent from disturbing the possession of aggrieved
\nperson over the shared household. In a given case, the respondent can
\nbe ordered to remove himself from the shared household. An order
\ncan be passed restraining the respondent or any of his relatives from
\nentering in specified portion of the shared household. The magistrate
\ncan prevent the respondent from alienating his rights in respect of
\nshared household except without his permission. Another relief which
\ncan be granted under Section 19 is of directing the respondent to
\nsecure same level of alternate accommodation for the aggrieved person. Subsection
\n(3) of Section 19 gives the magistrate a power to
\nobtain a bond from the respondent for preventing commission of
\ndomestic violence. What is important is subsection
\n(4) of Section 19 which provides that order under subsection
\n3 shall be deemed to be the order under Chapter VIII of the Code of Criminal Procedure, 1973.
\nChapter VIII deals with chapter proceedings (Security for keeping
\npeace and for good behavior). Subsection(5) of Section 19 provides
\nthat the magistrate can also pass an order directing the officerincharge
\nof the nearest police station to assist the aggrieved person for
\nimplementation of the orders. It must be noted here that even under
\nthe Code of Civil Procedure, 1908, a civil court by exercising powers
\nunder Section 151 of the said Code of 1908 is empowered to direct the
\npolice machinery to render assistance for implementation of temporary injunction.
\n24. Section 20 confers powers on the learned magistrate to grant
\nmonetary relief. Section 20 reads thus:
\n“Monetary reliefs (1) While disposing of an application under
\nsubsection (1) of section 12, the Magistrate may direct the
\nrespondent to pay monetary relief to meet the expenses incurred
\nand losses suffered by the aggrieved person and any child of the
\naggrieved person as a result of the domestic violence and such relief
\nmay include, but not limited to, (a) the loss of earnings;
\n(b) the medical expenses;
\n(c) The loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person;and
\n(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.
\n(2) The monetary relief granted under this section shall be
\nadequate, fair and reasonable and consistent with the standard of
\nliving to which the aggrieved person is accustomed.
\n(3) The Magistrate shall have the power to order an appropriate
\nlump sum payment or monthly payments of maintenance, as the
\nnature and circumstances of the case may require.
\n(4) The Magistrate shall sent a copy of the order for monetary
\nrelief made under subsection
\n(1) to the parties to the application
\nand to the incharge
\nof the police station within the local limits of
\nwhose jurisdiction the respondent resides.
\n(5) The respondent shall pay the monetary relief granted to the
\naggrieved person within the period specified in the order under
\nsubsection(1)
\n(6) Upon the failure on the part of the respondent to make
\npayment in terms of the order under subsection
\n(1), the
\nMagistrate may direct the employer or a debtor of the respondent,
\nto directly pay to the aggrieved person or to deposit with the court
\na portion of the wages or salaries or debt due to or accrued to the
\ncredit of the respondent, which amount may be adjusted towards
\nthe monetary relief payable by the respondent.”<\/p>\n

25. The jurisdiction of the learned magistrate to grant monetary
\nrelief is confined to meeting the expenses incurred and loss suffered
\nby the aggrieved person as a result of domestic violence. The
\nmonetary relief in such cases includes loss of earnings and medical
\nexpenses. As far as this Section is concerned, obviously it has a
\nprospective application in the sense that monetary relief can be
\ngranted as regards domestic violence occurring on or after 26th
\nOctober, 2006 as the concept of domestic violence as defined in
\nSection 3 has been brought on statute book with effect from 26th
\nOctober, 2006. Clause (d) of subsection
\n(1) of Section 20 gives
\npower to the learned magistrate to pass the order of maintenance
\nunder Section 125 of the said Act of 1973 or any other law for the time
\nbeing in force. Thus, the said order is to be passed in accordance with
\nthe existing rights under Section 125 of the said Act of 1973, or any
\nother existing law. The order can be made effective from the date of
\nfiling an application under Section 12 of the said Act. The power
\nconferred by clause (d) is to grant maintenance, including and in
\naddition to the order of maintenance under Section 125 of the said
\nCode of 1973 or any other law for the time being in force. Even the
\norder of additional maintenance can be passed only from the date of
\nan application under Section12.<\/p>\n

26. Section 21 deals with the orders of custody of the child or
\nchildren to the aggrieved person and it also provides for grant of
\nvisitation rights. Section 22 confers powers on the magistrate to pass
\norders directing the respondent to pay compensation and damages for
\nthe injuries, including mental torture and emotional distress caused to
\nher by the aids ofdomestic violence by the respondent. Power under
\nSection 22 of the said Act of 2005 can be exercised on the basis of acts
\nof domestic violence taken place on or after 26th October,2005.<\/p>\n

27. As far as the argument based on the penal consequences is
\nconcerned, there is one more provision which is required to be dealt
\nwith. The said provision is Rule 6 of the Protection of Women from
\nDomestic Violence Rules, 2006. SubRule
\n5 of Rule 6 provides that the
\napplications under Section 12 shall be dealt with and the order
\nenforced in the same manner laid down under Section 125 of the Code
\nof Criminal Procedure, 1973. Thus, the procedure to be followed for
\ndeciding applications under Section 12 is the same which is followed
\nas prescribed by Section 126 of the said Code. The orders passed on
\napplication under Section 12 can be enforced in a manner provided
\nunder Section 125, i.e under subsection
\n3 thereof where a person can
\nbe penalized for committing breach of the order. Thus, if the
\nrespondent commits breach of any orders passed under the said Act, he
\ncan be dealt with in accordance with subsection
\n3 of Section 125.
\nNaturally, the said default will be attracted only on the basis of the
\norders passed on an application under Section 12.<\/p>\n

28. Merely because jurisdiction is conferred on the magistrate to
\nexercise powers under the said Act of 2005, the nature of the
\nproceedings under the said Act of 2005 is not criminal. The Act is
\nintended to provide a remedy to the aggrieved person under the Civil
\nlaw. The said Act of 2005 provides for penal consequences only in
\ncase there is a breach of order passed under Section 18.<\/p>\n

29. If all these aspects are considered, it is obvious that merely
\nbecause the aggrieved person in the application under Section 12
\nrelies upon acts of domestic violence which relate to a period prior to
\n26th October, 2005, it cannot be said that the application under
\nSection 12 is not maintainable. While recording prima facie
\nsatisfaction contemplated by Section 18 of the said Act of 2005, the
\nlearned Magistrate can consider acts of domestic violence prior to 26th
\nOctober,2005. In the circumstances, the objection raised by the
\nlearned counsel appearing for the husband in writ petition no. 2102 of 2008 has to be rejected.<\/p>\n

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.<\/p>\n

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:<\/p>\n

O R D E R
\ni. In view of what is discussed above, writ petition no. 2102 of 2008 is dismissed.
\nii. Other writ petitions be placed before the appropriate court on<\/p>\n

22nd September, 2009
\nJUDGE<\/p>\n","protected":false},"excerpt":{"rendered":"

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,…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[1690,52,2323,13764,1747,1542,897,7,13770,893,13766,13771,13763,13772,13768,13767,13769],"class_list":["post-2066","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-498a-ipc","tag-domestic-violence","tag-domestic-violence-act","tag-dr-prakash-vinayak-joshi","tag-dv-act","tag-dva","tag-feminists","tag-ipc-498a","tag-jaiprakash-bapurao-ogle","tag-law-misuse","tag-mrs-anuradha-prakash-joshi","tag-pushpa-jaiprakash-ogle","tag-retrospectively","tag-s-r-page","tag-shri-j-shekhar","tag-shri-nitin-deshpande","tag-shri-y-m-nakhawa"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/2066","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=2066"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/2066\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=2066"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=2066"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=2066"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}