1 M.Cr.C. No.4112/19

THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 4112/19
(Rakhi @ Srashti Panjwani Vs. Rahul Panjwani ors.)
Gwalior, Dated 11/2/19

Shri F.A. Shah, learned counsel for the applicant.

Shri Prakhar Dhengula, learned counsel for the respondents

No. 1 and 2.

1. Inherent powers of this court u/S. 482 CrPC are invoked

assailing the interlocutory order dated 16/1/19 of the learned

Magistrate trying a petition u/S. 12 of the Protection of Women

from Domestic Violence Act, 2005 (“2005 Act” for brevity) by

which the learned trial Judge inter alia allowed the application

under Order XI Rule 12 CPC preferred by the husband directing

production of records.

2. Learned counsel for the rival parties are heard.

3. The sole contention of learned counsel for the petitioner is

that in view of the provision of Section 28 of 2005 Act, the

procedure to be adopted for conducting proceedings in petition u/S.

12 of 2005 Act (as is the case herein) are governed exclusively by

CrPC and not by the CPC. In this background, it is submitted by

learned counsel for the petitioner/wife that the trial court traveled

beyond its jurisdiction while entertaining and allowing the

application filed by the respondent/husband by invoking provisions
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of CPC (Order XI Rule 12). Learned counsel for the petitioner has

pressed into service the decision of Apex Court in the case of

Kunapareddy alias Nookala Shanka Balaji Vs. Kunapareddy

Swarna Kumari and anr. (2016) 11 SCC 774.

4. Per contra, learned counsel for the respondent/husband and

in-laws of the petitioner relies upon the single Bench decision of the

Bombay High Court in Raosaheb Pandharinath Kamble ors.

Vs. Shaila Raosaheb Kamble ors. 2010 CRI. L.J. 3596 and

Single Bench decision of Bombay High Court in Mrs. Pramodini

Vijay Fernandes Vs. Mr. Vijay Fernandes decided on 17th

February, 2010 in W.P. No. 5252/2009.

5. For ready reference and convenience, Section 28 of 2005 Act

is reproduced below:-

“28. Procedure.–

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

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

6. To adjudicate the controversy, it would be appropriate to

refer the decision of Apex Court in Kunapareddy (supra). The

Apex Court in the said decision was dealing with the controversy as

to whether the trial court has power to allow amendment to a
3 M.Cr.C. No.4112/19

petition/complaint filed u/S. 9 (1)(b) and 37 (2)(c) of 2005 Act or

not. The Apex Court while dealing with the issue held thus:-

“12. We have already mentioned the prayers which were made by
respondent no.1 in the original petition and prayer ‘A’ thereof
relates to Section 9. However, in prayer ‘B’, the respondent no.1
also sought relief of grant of monthly maintenance to her as well
as her children. This prayer falls within the ambit of Section 20 of
the DV Act. In fact, prayer ‘A” is covered by Section 18 which
empowers the Magistrate to grant such a protection which is
claimed by the respondent no.1.Therefore, the petition is
essentially under Sections 18 and 20 of the DV Act, though in the
heading these provisions are not mentioned. However, that may
not make any difference and, therefore, no issue was raised by the
appellant on this count. In respect of the petition filed under
Sections 18 and 20 of the DV Act, the proceedings are to be
governed by the Code, as provided under Section 28 of the DV
Act. At the same time, it cannot be disputed that these proceedings
are predominantly of civil nature.

13. In fact, the very purpose of enacting the DV Act was to provide
for a remedy which is an amalgamation of civil rights of the
complainant i.e aggrieved person. Intention was to protect women
against violence of any kind, especially that occurring within the
family as the civil law does not address this phenomenon in its
entirety. It is treated as an offence under Section 498A of the Indian
Penal Code. The purpose of enacting the law was to provide a
remedy in the civil law for the protection of women from being
victims of domestic violence and to prevent the occurrence of
domestic violence in the society. It is for this reason, that the
Scheme of the Act provides that in the first instance, the order that
would be passed by the Magistrate, on a complaint by the aggrieved
person, would be of a civil nature and if the said order is violated, it
assumes the character of criminality. In order to demonstrate it, we
may reproduce the introduction as well as relevant portions of the
Statement of Objects and Reasons of the said Act, as follows:

“INTRODUCTION.

The Vienna Accord of 1994 and the Beijing Declaration and
the Platform for Action (1995) have acknowledged that domestic
violence is undoubtedly a human rights issue. The United Nations
Committee on Convention on Elimination of All Forms of
Discrimination Against Women in its General Recommendations has
recommended that State parties should act to protect women against
violence of any kind, especially that occurring within the family. The
phenomenon of domestic violence in India is widely prevalent but
has remained invisible in the public domain. The civil law does not
address this phenomenon in its entirety. Presently, where a woman is
subjected to cruelty by her husband or his relatives, it is an offence
under Section 498A of the Indian Penal Code. In order to provide a
remedy in the civil law for the protection of women from being
victims of domestic violence and to prevent the occurrence of
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domestic violence in the society the protection of Women from
Domestic Violence Bill was introduced in the Parliament.
STATEMENT OF OBJECTS AND REASONS

1. Domestic violence is undoubtedly a human Right issue and
serious deterrent to development. The Vienna Accord of 1994 and
the Beijing Declaration and the Platform for Action (1995) have
acknowledged this. The United Nations Committee on Convention on
Elimination of All Forms of Discrimination Against Women
(CEDAW) in its General Recommendation NO. XII (1989) has
recommended that State parties should act to protect women against
violence of any kind especially the occurring within the family.

xxx xxx xxx

3. 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 occurrence of domestic violence in the society.

4. The Bill, inter alia, seeks to provide for the following:-

xxx xxx xxx

(ii) It defines the expression “domestic violence” to include actual
abuse or threat or abuse that is physical, secual, verbal, emotional
or economic. Harassment by way of unlawful dowry demands to the
woman or her relatives would also be covered under this definition.

(iii)It provides for the rights of women to secure housing. It also
provides for the right of a woman to reside in her matrimonial home
or shared household, whether or not she has any title or rights in
such home or household. This right is secured by a residence order,
which is passed by the Magistrate.

(iv) It empowers the Magistrate to pass protection orders in favour
of the aggrieved person to prevent the respondent from aiding or
committing an act of domestic violence or any other specified act,
entering a workplace or any other place frequented by the aggrieved
person, attempting the communicate with her, isolating any assets
used by both the parties and causing violence to the aggrieved
person, her relatives or others who provide her assistance from the
domestic violence.”

14. Procedure for obtaining order of reliefs is stipulated in Chapter
IV of the DV Act which comprises Sections 12 to 29. Under Section
12 an application can be made to the Magistrate by the aggrieved
person or Protection Officer or any other person on behalf of the
aggrieved person. The Magistrate is empowered, under Section 18,
to pass protection order. Section 19 of the DV Act authorizes the
Magistrate to pass residence order which may include restraining
the respondent from dispossessing or disturbing the possession of
the aggrieved person or directing the respondent to remove himself
from the shared household or even restraining the respondent or his
relatives from entering the portion of the shared household in which
the aggrieved person resides etc. Monetary reliefs which can be
granted by the Magistrate under Section 20 of the DV Act include
giving of the relief in respect of the loss of earnings, the medical
5 M.Cr.C. No.4112/19
expenses, the loss caused due to destruction, damage or removal of
any property from the control of the aggrieved person and the
maintenance for the aggrieved person as well as her children, if any.
Custody can be decided by the Magistrate which was granted under
Section 21 of the DV Act. Section 22 empowers the Magistrate to
grant compensation and damages for the injuries, including mental
torture and emotional distress, caused by the domestic violence
committed by the appellant. All the aforesaid reliefs that can be
granted by the Magistrate are of civil nature. Section 23 vests the
Magistrate with the power to grant interim ex-parte orders. It is,
thus, clear that various kinds of reliefs which can be obtained by the
aggrieved person are of civil nature. At the same time, when there is
a breach of such orders passed by the Magistrate, Section 31 terms
such a breach to be a punishable offence.

15. In the aforesaid scenario, merely because Section 28 of the DV
Act provides for that the proceedings under some of the provisions
including Sections 18 and 20 are essentially of civil nature. We may
take some aid and assistance from the nature of the proceedings
filed under Section 125 of the Code. Under the said provision as
well, a woman and children can claim maintenance. At the same
time these proceedings are treated essentially as of civil nature.”

6.1 A careful scrutiny of the aforesaid exposition by the Apex

Court, it is seen that the Apex Court analyzing the language

employed by Section 28 and the nature of proceedings contemplated

under the 2005 Act came to a just conclusion that though

application of CPC is excluded by Section 28 in respect of

proceedings under certain sections mentioned therein, but all the

proceedings under 2005 Act, barring those cases where offence

arising out of breach of 2005 Act is alleged, are essentially and

predominantly civil in nature.

6.2 The Apex Court further went ahead in Para 12 of the said

judgment to hold that initiation of proceedings under the 2005 Act

are civil in nature but once the complainant alleges violation by the

respondent of any provision of 2005 Act, then the proceedings
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assume criminal character.

6.3 The Apex Court also observed that the procedure is merely

the hand maiden of justice and thus should not be given prominence

and dominance over substantive law.

6.4 The aforesaid law laid down by the Apex Court is further

found to be in line with the object behind the 2005 Act which is

bolstered by the fact that the opposite party against whom a

complaint is filed under the 2005 Act is nomenclatured as a

“respondent” defined in Sec. 2 (q) of 2005 Act and not an accused.

This lends support to the decision of Apex Court in Kunapareddy

(supra).

7. The petitioner has also cited three Judge Bench decision of

Bombay High Court (Bench at Nagpur) dated 3/5/18 passed in

Criminal application [APL] No. 578/2011 (Nandkishor Pralhad

Vyawahare Vs. Mangala) which need not to be considered in view

of the aforesaid decision of Apex Court in Kunapareddy (supra)

which finds reference in the Nandkishor Pralhad Vuawahare

(supra).

8. In view of above, the contention of the learned counsel for

the petitioner that since the impugned order was passed in a petition

preferred by the petitioner u/S. 12 of 2005 Act which is one of the

sections mentioned in Section 28 and thus the respondent/husband
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was prohibited from invoking the provision of CPC, appears to be

attractive at the first blush but is rejected on the ground that the

aspect of procedure cannot be given such prominence and

dominance as would supplant substantive law. This becomes more

pronounced when viewed from the angle that all proceedings

initiated under the 2005 Act are predominantly civil in nature.

9. Consequently, this court is afraid that it can not countenance

the contention of learned counsel for the petitioner/wife and

therefore, rejects the present petition sans cost.

(Sheel Nagu)
Judge
ojha

YOGENDRA
OJHA
2019.02.13
17:19:53

-08’00’