Judgement - Domestic Violence

Court: Delhi District Court

Bench: Sh. Inderjeet Singh

Manish Kapoor vs Charu Kapoor on 28 August, 2010

Law Point:
Trial court ordered residence rights in the property of father, Session court overturned. Landmark Judgement in DV.

JUDGEMENT

1.1 (Introduction) – The respondent Smt. Charu Kapoor filed an application under section 12 of Protection of Woman from Domestic Violence Act, 2005 (in brief the Act), against the appellant Manish Kapoor. The Court of Ms. Jyoti Klyer, Ld. Metropolitan Magistrate, Delhi, by judgment dated 29.07.2010 held that the respondent Smt. Charu Kapoor is an aggrieved person and protection order was directed against the appellant from causing any domestic violence in the form of demand of dowry, or physical or verbal abuse towards the respondent. Further, residence order has been directed that the appellant will not restrained the respondent from entering and residing in the shared house at first floor of H. No. 7/153, Subhash Nagar, New Delhi, being her matrimonial home, for the purpose of residence. The maintenance of Rs. 3000/­ per month in favour of respondent and maintenance of Rs. 1500/­ per month in favour of minor baby namely Naisha, besides litigation expenses of Rs. 3000/­ were directed in favour of the respondent. Since the minor baby is in the custody of respondent, the appellant was directed not to snatched the minor baby from the respondent, without the procedure established by law. The request of the respondent for compensation was declined for want of specific injury.

1.2 The appellant is aggrieved by the impugned order and he preferred the present appeal undersection 29 of the Protection of Women from Domestic Violence Act, while reiterating the fact of the case, the pleadings of the parties and other records with the submissions that the impugned order is contrary to the provisions of law, documents and pleadings placed on record vis­a­vis the submissions presented before the Court. The impugned judgment suffers from serious legal infirmities arising out non­application of mind, the conclusions are drawn by pre­judging the case against the appellant merely relying upon registration of FIR No. 20/2009, under section 498­ A/406 IPC, which is a false and frivolous FIR. Section 28 of the Act, in respect of procedure, is based on the principle of natural justice of opportunity of being heard, the parties file their affidavits for evidence and matter was kept for arguments, even the judgment has been passed without an opportunity to cross examine the respective parties, whereas the matter was subjudice for arguments and arguments were advanced on interim application. The residence order should not have been passed against the appellant, since the property belongs to his father, who is aged about 75 years and suffering from heart ailments. It requires to introduce, in precise, the case of each party. 2.1 (The case of respondent/applicant) – In nut shell, the parties married on 10.11.2003, baby Naisha was born on 01.02.2008 but during their matrimonial alliance, the respondent was maltreated on account of demand of dowry or the articles like Sofa, TV, Suite were not upto the expectations/choice/standard of appellant. There has been frequent demands from time to time, the respondent was forced to demand truck from her parents to fulfill the wishes of appellant, the respondent arranged scooter. The respondent was harassed for want of bringing more dowry. Respondent’s brother­in­law (Jeth) Mr. Gulshan Kapoor, who was respondent No. 4 in the application, but not summoned, a builder, has influence on the appellant, the appellant has been acting on the music of said Gulshan Kapoor. The said Gulshan Kapoor and his wife Smt. Poonam Kapoor celebrate liquor party on each occasion, when Gulshan Kapoor completes a project of building, the appellant and his parents also participate in such ceremonies. In the night of 31.12.2005, the respondent was rebuked by him and the appellant in the presence of others that the respondent will be thrown out of the house, in case money is not brought by her or to arrange job for the appellant. The respondent was also kicked by fist by the appellant on her inability to fulfill the demands. The entire gold jewellery was kept by mother of appellant on the pretext of avoiding the theft. The respondent faced a lot of inconvenience and harassment in order to meet daily requirements and respondent/complainant’s parents were providing gas cylinder, vegetables, articles of kitchen, medicine and charges for treatment. The respondent’s father arranged a job for appellant at two showrooms but he left it because he was not intended to do work. Further, her father also arranged visa for the appellant and respondent for Dubai for job and settlement but all went in vain, as appellant was to start his own business. The application further narrates the other incident of 12.04.2008, when she along with minor child was at her parents house and the appellant along with others, not only abused the respondent and her parents but also threatened to kill them. There was tender of apology and on 19.04.2008, she was brought to her matrimonial home with a new hope to start the life, the police report to this effect has been placed on the file. On 06.06.2008, the respondent along with her child, put asylum at her parents house, since the appellant had directed to call her parents and he demanded truck, she was abused and kicked, besides an attempt to throw the child on floor. Whereas the respondent has no source of income and has no means of livelihood, the baby child is in her custody. The parties lived together at first floor of House No. 7/153, Subhash Nagar, Delhi, which is also comprising the ground floor, built in a plot of 50 square yards. The first floor comprises two bed rooms attached, separate entrance where the respondent lived till she was ousted. The application further narrates the proceedings took place in one Court or the other vis­a­vis registration of FIR after complaint in the Crime Against the Woman Cell. That is why the application was filed.

2.2 (The case of appellant) – Whereas the appellant, a teetotaler, that soon after the marriage, the respondent started harassing and black­ mailing the appellant by asking for separate accommodation, she would not live and cook meal for appellant’s parents and she separated the kitchen forcibly, from old and ailments parents of the appellant. She was not looking after the household chores. She was also pressurized the appellant to take her to Dubai during vacation, where her sister was living and despite appellant’s inability and financial constraints, the appellant obeyed her request, since she was threatening to commit suicide and to rope the family in a false case. She was taken to Dubai in July 2004. There she pressurized the appellant to settle there permanently but the appellant was not in a position to settle there because of his old aged parents. They came back in September 2004 and the appellant paid his loan amount in respect of visit to Dubai, he lost his job and took another employment. The appellant denies all the averments of respondent’s case, reproduced herein­above. The respondent was asking and demanding that he shall sell the parents’ property and buy a truck and to do the business of transport with his father, a transporter. The appellant was not agreeing to it. On 01.02.2008, a child was born but she did not permit the appellant to see her. On 14.03.2008, she took away all the jewellery, costly items, etc., and went to her parents house. The appellant repeatedly requested to see the daughter and also Baisakhi and Navratri festival, being an auspicious occasion, however, the appellant and his parents were man­ handled, insulted and threatening, to which report was lodged on 12.04.2008. The doctors of Mata Chandan Devi Hospital advised mother feeding but she was feeding the child from bottle against written medical advise. The appellant filed a petition under section 9 of Restitution of Conjugal Rights under Hindu Marriage Act on 15.11.2008 and Mediation proceedings were held from time to time but she failed to join the matrimonial home. Since, an FIR was registered and realizing from the proceedings conducted from time to time that she is adamant of not joining the matrimonial home, the appellant was compelled to withdraw the petition under section 9 of the HM Act but filed a fresh petition for dissolution of marriage. The appellant has complied all the directions of the Court given to him from time to time. 2.3 (Arguments of Appellant on Appeal) – In nutshell, appellant’s contentions are that the Trial Court failed to follow the procedure specified in the Act, the process of arguments on interim application was initiated, as per proceedings dated 03.06.2009 of the Trial Court, the case was adjourned for 14.09.2009, on the issue of interim protections, but the matter was decided finally. The codified law are based on the principle of natural justice that each party shall be given opportunity of complete and effective hearing, whereas, no such opportunity of cross examination of witnesses have been provided, therefore, there is non­compliance of the procedure of Section 28 of the Act. The appellant has applied and obeyed the directions of Hon. High Court of Delhi, while directing him to pay the maintenance @ Rs. 5,000/­ per month, being temporary arrangement, the appellant also returned 42 articles on 06.11.2008 and 11 items on 16.01.2009 before the Crime Against the Women Cell and on the earlier occasion, the respondent took her valuables, therefore, she had intention not to live at matrimonial home, she has been living with her parents from June 2008. A false case undersection 498­A/406 IPC was registered against the appellant and his parents, whereas, the charge­sheet as yet not been filed but the Trial Court on the basis of registration of FIR, considered the respondent as an aggrieved person, as a matter of fact, there is no evidence. The appellant’s monthly income/salary was Rs. 9,500/­ but the Court ordered Rs. 4,500/­ per month, considering order of Rs. 4,000/­ per month of the Court of Additional Sessions Judge, while dealing with an application under section 24 of the HM Act. The conclusions have been drawn without recording any evidence on the point of income of the appellant. The appellant firstly filed the petition under section 9 of the HM Act but with the passage of time and during other judicial proceedings, when it came to the record that the respondent is not intending to join her matrimonial home, the appellant withdrew the petition and filed another petition under section 13 of the HM Act for dissolution of marriage as well as for custody of child, since all mediation proceedings had failed. The appellant has been directed that he will not restrained the respondent from entering and residing in the first floor of House No. 7/153, Subhash Nagar, Delhi, whereas, there is one room and a store, bathroom but the Trial Court has directed without recording the evidence and the totalities, Section 19 of the Act does not provide for repossession of the household in the eventuality, the wife had left the house and she is residing somewhere else. Otherwise, the Trial Court also failed to consider that the house does not belong to the appellant but to his father, who is aged about 75 years, living in the same building at ground floor. The appellant fortifies his contentions, while relying upon S.R. Batra vs. Tarun Batra 2006 (13) Scale 652 that there can be right to residence in a share­hold house, when the house belongs to or taken on rent by the husband or the house which belongs to joint family of which husband is a member. The appellant supplements that the case of respondent does not fulfill the criteria elucidated in the judgment. Further, reliance has been placed on Nidhi Kumar Gandhi vs. State2009 (1) JCC 571, where the case was dealt at the stage of interim order and it was observed that evidence is to be recorded. In Neetu Mittal vs. Kanta Mittal AIR 2009 Delhi 72, it was held that the woman cannot thirst herself against the parents of her husband nor she can claim a right to live in the house of parents of her husband against their consent and wishes. The appellant’s parents are already feeling harassed for registration of FIR against them, the regular visit of police officials and they were also made party to the application under section 12 of the Act but the Trial Court had not issued notice to them. Ld. counsel for appellant submits that recording of evidence is necessary in the case. Therefore, the judgment is liable to be set aside. 2.4 (Arguments of Respondent in Appeal) – Whereas, Shri Rajesh Arora, Advocate for respondent opposed the appeal that it is an abuse of process of the Court, since neither there is any merit in the appeal nor the situation exists of non­compliance of statutory provisions of the law. The judgment is based on the basis of proceedings conducted, firstly, considering the interim prayer, but being not pressed for, the case came for evidence and then for final disposal. On 03.06.2009, the case was adjourned for consideration of issue of interim protection but at later point of time, the parties were asked to complete their pleadings vis­a­vis to file their respective affidavits, the same was complied and the appellant had also filed final arguments, therefore, at the stage of appeal, the issue cannot be raised that there was non­compliance of procedure or opportunity for evidence was not given. Section 23 of the Act, which deals with interim orders and ex­parte orders, does not require that the Magistrate shall pass an order under this Section, since Section 23 of the Act is a discretionary provision, as word “may” has been used in the operating part. In addition,Section 28(2) of the Act empowers the Magistrate to devise its own way of conducting the proceedings. Therefore, the procedure followed by the Magistrate has sanction of sub­section 2 of Section 28 of the Act. The proceedings dated 14.09.2009, 02.12.2009 and 13.01.2010 are matter of record that the case was posted for filing of affidavit for evidence and then for final arguments. So far findings to the effect that the respondent was an aggrieved person is based on the record, the FIR was not registered all of a sudden but proceedings were conducted before the Crime Against the Women Cell, prior to formal registration of FIR. The Chapter IV (Procedure for obtaining orders of reliefs) is based on the principle of prima facie case, satisfaction of the Magistrate and existence of domestic violence, as the relief can be given when there is domestic relations, share­hold house, incident of domestic violence and Domestic Violence Incident Report, the domestic violence is a continuing violence. There was not only economic and financial abuse to the respondent but also other domestic violence in the form of depriving or neglecting to provide accommodation, beatings and discharge of other obligations. In the Hon. High Court of Delhi, maintenance of Rs. 5,000/­ per month was directed, considering the income of appellant as Rs. 8,500/­ per month and there is no illegality in order of maintenance @ Rs. 4,500/­ per month by the Magistrate, while considering his income of Rs. 9,500/­ per month. The respondent has not returned her entire articles, the respondent had also reported the matter to police and the case was registered. The appellant’s allegations are false. Since, the appellant and the respondent resided together at the first floor of House No. 7/153, Subhash Nagar, Delhi, consisting of two rooms, bathroom, photographs to this effect are on file of the Trial Court, the Trial Court has rightly directed for residence order, monetary relief and protection orders. Since, the child is in the custody of respondent, the custody order is also within the framework of the Act. Ld. counsel for respondent submits that the law laid­down in S.R. Batra case (Supra), does not apply to the present case firstly, the first floor of the house is the share­ hold house of the parties, secondly, the appellant is still living there. The other case Nidhi Kumar Gandhi (Supra) is in favour of respondent, since there was modalities settled how the share­hold house will be used by the parties. The judgment is based on the material available on record, it is well reasoned judgment and the appeal is without merit, it is liable to be dismissed, with an exemplary cost. Ld. counsel also relies upon P. Babu Venkatesh vs. Rani 2008 (4) LRC 148 that the respondent has rights in the share­hold house to reside and the residence order can be enforced with the assistance of police.

3.1 (Findings) – The rival contentions are assessed in the light of statutory provisions of law, particularly the Protection of Woman from Domestic Violence Act, 2005, the Code of Criminal Procedure, 1973. in the case of parties, there is no dispute that they married on 10.11.2003, baby child Naisha was born on 01.02.2008, the parties resided together at the first floor of House No. 7/153, Subhash Nagar, Delhi and the respondent has been living with her parents with effect from 06.06.2008. The appellant resides at first floor of House No. 7/153, Subhash Nagar, Delhi. There is also matter of record of registration of FIR No. 20/02.02.2009 under section 498­A/406/34 IPC with Police Station Crime Against Women Cell, Nanak Pura, vis­a­vis acknowledgment of receipt of articles on 06.11.2008 and 16.01.2009 before the Crime Against Women Cell by the respondent, and other proceedings between the parties.

3.2 A question on the point of law of following the procedure for disposal of application undersection 12 of the Act has been raised, whether it has been followed or not, is required to be determined. *****­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­***** 4.1 Therefore, the question is “What is the Procedure for dealing with application under section 12 of Protection of Woman from Domestic Violence Act, 2005 ?” “Where is procedure provided ?” 4.2 (Reg. ­ PROCEDURE) – Section 12 of the Act is in respect of application by or on behalf of aggrieved person for one or more of the reliefs provided under the Act. Section 18 of the Act provides provision of Protection Orders, Section 19 in respect of Residence Orders, Section 20 is of Monetary Relief (inclusive of losses of earnings, medical expenses, maintenance for aggrieved person and of children), Section 21 is of Temporary Custody Order of child/children of aggrieved person and Section 22 is in respect of Payment of Compensation and Damages for the injuries (inclusive of mental torture and emotional distress).

Section 23 of the Act empowers the Magistrate to grant ex­ parte order and interim orders on the basis of affidavits in the Form prescribed. Section 28 of the Act prescribes procedure, while dealing with the application under section 12 vis­a­vis orders on certain reliefs prescribed undersections 18, 19, 20, 21 and 22, besides the procedure to be followed in respect of applicability of procedure to Sections 23 and 31 of the Act. Sections 23 and 28 of the Act are reproduced hereunder ­ Section 23 – Power to grant interim and ex­parte orders – (1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just as proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex­parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18,section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.

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

By reading both parts of Section 28 of the Act together, procedure to be followed is – (i) as per the procedure provided in the Act, (ii) the proceedings shall be governed by the procedure of Code of Criminal Procedure, even in respect of interim orders and ex­parte orders qua Section 23of the Act and (iii) Court may laid­down its own procedure in terms of sub­section 2 of Section 23 of the Act. Whether the Act provides any procedure.

Section 37 of the Act empowers the Central Government to make rules and pursuant to exercising of such powers, the Central Government has framed the Protection of Women from Domestic Violence Rules, 2006 (published in the gazetted on 17.10.2006); the relevant Rule 6 reads as follows ­ Rule 6 – Applications to the Magistrate ­ (1) Every application of the aggrieved person under section 12 shall be in Form II or as nearly as possible thereto.

(2) An aggrieved person may seek the assistance of the Protection Officer in preparing her application under sub­rule (1) and forwarding the same to the concerned Magistrate.

(3) In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof.

(4) The affidavit to be filed under sub­section (2) of section 23 shall be filed in Form II.

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

Rule 6 (4) prescribes form of affidavit in respect of ex­parte orders and grant of interim orders. Rule 6 (5) states that application under Section 12 of the Act shall be dealt and the orders be enforced, as laid­down under section 125 Cr.P.C. The Section 125 Cr.P.C reads as follows ­ Section 125 Cr.P.C – Order for maintenance of wives, children and parents ­ (1) If any person having sufficient means neglects or refuses to maintain ­

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) .. .. .. .. .. ..

(d) .. .. .. .. .. ..

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct :

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed to sufficient means. What is “proof” or how the facts or documents are proved, Chapter IV, Chapter V and Chapter X of the Indian Evidence Act, 1872 defines them, the relevant provisions of Sections 59, 60, 61 andSections 135, 137 and 138 are reproduced hereunder ­ Section 59 – Proof of facts by oral evidence – All facts, except the (contents of documents or electronic records), may be proved by oral evidence.

Section 60 – Oral evidence must be direct ­ Oral evidence must, in all cases whatever, be direct; that is to say ­ if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense in that manner;

if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds :

Provided .. .. .. .. .. ..

Section 61 – Proof of contents of documents – The contents of documents may be proved either by primary or by secondary evidence.

Section 135 – Order of production and examination of witnesses ­ The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.

Section 137 – Examination­in­chief – The examination of a witness by the party who calls him shall be called his examination­in­chief.

Cross­examination – The examination of a witness by the adverse party shall be called his cross­examination.

Re­examination – The examination of a witness, subsequent to the cross­examination by the party who called him, shall be called his re­ examination.

Section 138 – Order of examination – Witnesses shall be first examined­ in­chief, then (if the adverse party so desires) cross­examined, then (if the party calling him so desires) re­examined.

The examination and cross­examination must relate to relevant facts, but the cross­examination need not be confined to the facts to which the witness testified on his examination­in­chief.

Direction of re­examination – The re­examination shall be directed to the explanation of matters referred to in cross­examination; and, if new matter is by permission of the Court, introduced in re­ examination, the adverse party may further cross­examination upon that matter.

Section 125 Cr.P.C is not in isolation. Procedure for application under section 125 Cr.P.C is prescribed in Section 126 Cr.P.C, since there are substantive provisions as well as adjective provisions; as Chapter XI (Section 125 to 128) of Cr.P.C is a Code in itself in respect of order for maintenance. Rule 6 (5) of the Rules 2006 talks about orders as well as its enforcement; maintenance orders and their enforcement are governed by Chapter XI of Cr.P.C. This Chapter XI deals with the applications, the applications are not the complaint, as complaints are subject matter of Chapter XV of complaints to Magistrate. Section 126 Cr.P.C is relevant, it reads as follows ­ Section 126 Cr.P.C – Procedure – (1) Proceedings under section 125 may be taken against any person in any district ­

(a) .. .. .. .. .. ..

(b) .. .. .. .. .. ..

(c) .. .. .. .. .. ..

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

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex­parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

(3) .. .. .. .. .. ..

Section 126 Cr.P.C mandates that in the application for maintenance, the evidence is required to be recorded in the manner prescribed for summons cases. Chapter XXIII (evidence in inquiries and trials), prescribes mode of taking and recording evidence and Section 274 Cr.P.C is in respect of summons cases, it is reproduced as follows ­ Section 274 Cr.P.C – Record in summons­cases and inquires ­ (1) In all summons­cases tried before a Magistrate, in all inquiries under sections 145 to148 (both inclusive), and in all proceedings under section 446 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of his evidence in the language of the Court :

Provided that if the Magistrate is unable to make such memorandum himself, he shall, after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in open Court.

(2) Such memorandum shall be signed by the Magistrate and shall form part of the record.

4.3 On the plain reading of statutory provisions of the Act, Rules framed under the Act and the borrowed provision of Cr.P.C. in respect of procedure to be followed, in respect of application under section 12 of the Act, the following conclusions are drawn, to elucidate Section 28 of the Act ­

(i) there exists provisions of procedure under the Act itself, to be followed in respect of the application, more particularly rule 6 of the Rules, 2006; Act is a parent statute and Central Government framed Rules under the scheme of parent statute; and

(ii) the provisions of Code of Criminal Procedure has also been adopted for dealing the application.

To say, for the purposes of procedure, in terms of sub­section 1 of Section 28 of the Act, there exists provisions in the Act to be followed by the Magistrate and the same will be governed by the Code of Criminal Procedure. It is a mandatory provision. So far sub­section 2 of Section 28 of the Act is concerned, it empowers the Court to lay its own procedure in respect of disposal of application under section 12 of the Act or in respect of ex­parte orders and interim order undersection 23 (2) of the Act.

Whether the Magistrate/Court shall devise its own procedure under section 2 of 28 of the Act, during the existence of procedure under the Act read with the provisions of Cr.P.C. Since it is the mandatory requirement of sub­section 1 of Section 28 of the Act, that the procedure established under the Act governed by the provisions of Cr.P.C, should be followed by the Court but sub­section 2 of Section 28 of the Act does not prevent the Court to laid­down its own procedure. By reading the intent of legislature and the scheme of the Act, the sub­ section 2 of Section 28 of the Act does not empowers the Court to ignore the mandatory provisions of sub­section 1 of Section 28 of the Act, while devising its own procedure. Further, in the eventuality when the provisions are not available in the Act itself or to be governed by Cr.P.C, the Court/Magistrate cannot lay a procedure, which is contrary to the establish principles of adjudicating law. To say, the procedure to be led by the Magistrate/Court, should be – (a) within the policy of law, (b) which is not contrary to the establish procedure or Section 28 (1) of the Act in respect of dealing the applications and (c) the parties should be informed of the procedure laid­down or to be followed in a particular case, so that it is known to the parties what procedure is to be followed, as ordinarily the procedure is known to the parties through the piece of legislation and on similar lines, the procedure devised by the Court should be known to them.

4.4 Hence, it is concluded that there is procedure prescribed. There are identical provisions in the Act and the Code of Criminal Procedure for interim maintenance orders and ex­parte order; the interim orders and ex­parte order under the Act, are governed by Code of Criminal Procedure. Further, evidence is one of the necessary requirement of law, while dealing with the application under section 12 of the Act and for the aforementioned analysis, following is the procedure for dealing with the application under section 12 of the Act, which cannot be curtailed ­

(i) pleadings of the parties in terms of Rules;

(ii) affidavit of the applicant in the prescribed Form to be filed in support of application either for ex­parte order or for interim orders;

(iii) evidence to be recorded as summons case, inclusive of examination­in­ chief, cross­examination or re­examination, cross­examination of the parties or their witnesses as the case may be in terms of provisions of Cr.P.C and Indian Evidence Act;

(iv) documentary evidence may also be led;

(v) arguments;

(vi) the final satisfaction of Magistrate will be on the basis of judicial proceedings conducted and the evidence on record; but on the basis of affidavit, while dealing with the interim/ex­parte orders; and

(vii) in case (i) to (vi), above, do not meet the requirement, the Court may devise the procedure under sub­section 2 of Section 28 of the Act, but under the general Policy of Law and Scheme of the Act.

4.5 It is without prejudice to counseling proceedings. 4.6 The intention of legislature, that evidence is necessary in such application of maintenance, can also be gathered from other piece of legislation and the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the Muslim Women (Protection of Rights on Divorce) Rules, 1986 (although, it does not apply to the parties of present appeal), which have been framed by the Central Government, pursuant to theSection 6 of the Act, 1986; relevant Rule 4, reads as follows ­ Rule 4 – Evidence – All evidence in the proceedings under the Act shall be taken in the presence of the respondent against whom an order for the payment of provision and maintenance, Mahr or (dower) or the delivery of property is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner specified for summary trial under the Code :

Provided that if the Magistrate is satisfied that the respondent is wilfully avoiding service or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex­parte and any order so made may be set aside for good cause shown on application made within seven days from the date thereof subject to such terms as to payment of cost to the opposite party as the Magistrate may think just and proper.

*****­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­***** 5.1 Now the next question is whether the procedure prescribed has been followed by the Court of Magistrate in the application of respondent, against which the present appeal has been preferred by the appellant. Let the record be scrutinized.

5.2 On plain reading of proceedings of the Trial Court, on 03.06.2009 and on 14.09.2009, it was directed for completion of pleadings and consideration on the issue of interim protection but later on, both the parties were directed for filing of their evidence by affidavits and final disposal, without any whisper qua interim reliefs/ orders. Both the parties filed their affidavits accompanying certain record/photocopies and one of the party has also filed photographs/ positives. The same have been taken on record and considered in the arguments and it result into final judgment dated 29.07.2010. In paragraph 11 of the impugned judgment, the Trial Court narrated that all documents and the pleadings have been perused and thereafter, the judgment was given, which disposed of the respondent’s application under section 12 of the Act.

It is apparent from the proceedings that the procedure, as detailed in paragraph 4, above, of this judgment, has not been followed by the Trial Court. There is no order by the Magistrate as to which procedure has been devised, if the Magistrate felt that there does not exist procedure in the Act or the Code of Criminal Procedure, whereas, there exists the procedure, which is narrated in paragraph 4, above. 5.3 The pleadings have been treated as an evidence but pleadings are not evidence. Although, both the parties have placed on record their affidavits but merely filing of affidavit does not amount evidence, as provisions of Section 59, 60 and 61 of the Indian Evidence Act, for proof of facts orally and by documentary evidence, have not been complied; the other procedure of examination of witnesses or their cross examination, envisaged under section 135,137 and 138 of the Indian Evidence Act, have also not been complied, as there was no opportunities to the parties to appear in the witness box or to go through the process of their test of cross examination of statement on Oath. The substance of FIR was considered as a piece of evidence to conclude that the respondent was an “aggrieved person”, whereas, FIR is still under investigation, as informed; thus, charge­sheet is yet to be filed, cognizance is yet to be taken, therefore, merely registration of FIR, would not tantamount to consider it a conclusive proof. There is no evidence of income of parties or their liabilities, therefore, an order (under section 24of the Hindu Marriage Act, which is passed on the lines of interim order, pendente­lite the petition), was also considered for granting monetary relief. The respondent has been living with her parents for the last about two years and the first floor of House No. 7/153, Subhash Nagar, Delhi has accommodation (according to appellant – one room and a store, bathroom and according to respondent – two rooms and bathroom but with a single entry­exit door), however, the Trial Court has not gone through the feasibility of residence order or modalities or alternate relief in the form of rent, since no evidence was recorded.

6.1 (Conclusion) – The impugned judgment dated 29.07.2010 is set aside and consequently, the other order dated 13.08.2010, which are the directions to the SHO, Police Station Rajouri Garden, Delhi, stand set aside. The appeal is allowed, while remanding the case/ application under the title “Charu Kapoor vs. Manish Kapoor” to the Court of Ld. Metropolitan Magistrate, Delhi, to dispose off the application under section 12 of the Act, as per law and the procedure established, also elucidated in paragraph 4 of the judgment. Copy of the judgment be also certified to the Trial Court along with the Trial Court record, for disposal of the application expeditiously.

6.2 (Further Directions) – Since, the Trial Court of Metropolitan Magistrate, Delhi (Mahila Court), is dealing with the cases under the Protection of Woman from Domestic Violence Act, 2005 read with Protection of Woman from Domestic Violence Rules, 2006, the Court shall ensure that in all the cases, the procedure established is being followed.

6.3 Copy of this judgment be also sent to Ld. Chief Metropolitan Magistrate, Delhi to circulate it amongst the Courts dealing with the application under section 12 of the Act, so that the procedure elucidated in paragraph 4 of the judgment, may operate as a guidance for them. With these observations, the appeal stands disposed off.

DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citations in the Court of Law. For a court admissible copy contact your advocate.

You may contact me for consultation or advice by visiting Contact Us