Delhi HC- PWDVA-an aggrieved person does not have liberty to make every relative of the husband as a respondent. Prerequisite considerations for Magistrate to follow. Analysis of Domestic incident report and form 1 of the schedule 2 of Domestic violence Rules must before summoning

 

Crl.MC No. 1766/10 & 1773/10             

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve:   September 24, 2010 Date of Order: 8th  October, 2010 

  Bhupender Singh Mehra          ... Petitioner
        Through: Mr. Brajesh Kumar, Advocate

Versus

  State  NCT of Delhi & Anr.        ... Respondent
        Through: Mr. Anurag, Advocate for R-2

  Diwan Singh Mehra          ... Petitioner
        Through: Mr. Brajesh Kumar, Advocate
Versus

  State  NCT of Delhi & Anr.        ... Respondent
        Through: Mr. Anurag, Advocate for R-2

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?

JUDGMENT

By the present petition, the petitioners have assailed order dated 5th   November, 2009 passed by the learned Metropolitan  Magistrate  on an application under Section 12 of  The Protection of Women from Domestic Violence Act, 2005  (in short  Domestic Violence Act)  made by the respondent.  Petitioners are father-in-law and brother-in-law (elder brother of husband) of respondent.  The husband in this case was working in New  Zealand and had come to India for marriage.  It seems that the marriage did not take off at all.  The allegations made by the parties against each other are not relevant for deciding these petitions.  

2.    The respondent in her application under Section 12 of Domestic Violence Act  made husband, father-in-law and brother-in-law  (jeth) and another brother-in-law (nandoi) as respondents giving  a common address.  On making of  this application,  the learned  Metropolitan Magistrate,  on the very first day,  passed the impugned order directing that the complaint be checked and registered as per  rules  and  issued  notice to the  Protection
Officer for filing DIB and directed respondents to be served through Protection Officer with or without help of police/Nazarat branch.

3.    Section 12 of the Domestic Violence Act reads as under:

  12. Application to Magistrate.-

(1) An aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person may
present an application to the Magistrate seeking one or
more reliefs under this Act:
Provided that before passing any order on such
application, the Magistrate shall take into consideration any
domestic incident report received by him from the
Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include
a relief for issuance of an order for payment of
compensation or damages without prejudice to the right of
such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic
violence committed by the respondent:
Provided that where a decree for any amount  as
compensation or damages has been passed by any court
in favour of the aggrieved person, the amount, if any, paid
or payable in pursuance of the order made by the
Magistrate under this Act shall be set off against the 
amount payable under such decree and  the decree shall,
notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), or any other law for the time
being in force, be executable for the balance amount, if
any, left after such set off.

(3) Every application under sub-section (1) shall be in such
form and contain such particulars as may be prescribed or
as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which
shall not ordinarily be beyond three days from the date of
receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every
application made under sub-section (1) within a period of
sixty days from the date of its first hearing.

4.    It is apparent from the above provision of Domestic Violence Act that before passing an order on application,  the magistrate has  to take  into consideration the domestic incident report received from him by  Protection Officer or Service Provider.   The order dated 5th November, 2009 of learned MM shows that before serving notice to the respondent,  the learned MM did not take into consideration anything and did not even consider the contents of the application and did not try to find out as to whether respondents mentioned in the application satisfied the definition of respondent under Section 2(q) of Domestic Violence Act. 

Section 2(q) reads as under:

2(q)  “respondent” means any adult male person who is or
has been in a domestic relationship with the aggrieved
person and against whom the aggrieved person has sought
any relief under this Act:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file a
complaint against a relative of the husband or the male
partner. 

5.    An application under Section 12 of Domestic Violence Act has to be treated in accordance with provisions given under the Domestic Violence Act.  Domestic Violence Act provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of Domestic Violence Rules.  This proforma is in detailed analytical form wherein the details of each incident of domestic violence are  to be entered with date, time and place of violence and person who caused domestic violence.  The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of  violence and when it was committed.  The proforma specifies different  heads  of physical violence, sexual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence.  The proforma also provides for filing of documents in support of the application like medico-legal certificate,  list of  istridhan  and other documents.  This domestic incident report has to be signed by the aggrieved person.  The application under Section 12 is required to be made in form 2 of the  Rules wherein the details of various  kinds of reliefs  and expenses are to be given.  Section 27 of the Domestic Violence Act provides which  judicial magistrate Court  can have jurisdiction to  entertain  an application under Section 12 of the Act.  Where marriage took place outside Delhi and the  parties have lived  outside Delhi,  it is incumbent upon the applicant invoking jurisdiction of Delhi Court to specify how jurisdiction of Delhi Court was made out.  No doubt Section 28(2) gives power to the MM of
laying down its own procedure for disposal of an application under Section 12  or under Sub-Section 23(2) but the procedure  an MM can adopt cannot be violative of the Act itself  or violative of principles of natural justice.   The procedure  adopted by the learned MM of issuing notice to the respondent without even considering domestic incident report and without going through the contents of the application and without specifying as to why each of the respondent named by the applicant was to be summoned,  is contrary to the Act.    Only those persons can be summoned who have been in domestic relationship with aggrieved person.  Under The Protection of Women from Domestic Violence Act, 2005 an aggrieved person does not have liberty to make every relative of the husband as a respondent.

6.    The order dated 5th November, 2009 passed by the learned MM is therefore set aside.  The learned MM is directed to consider the domestic incident report and  consider the contents of the application and  find out whether the respondents  (petitioners herein)  had any domestic relationship with the applicant and could be fitted in the definition of the  “respondent” as given in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 and then only issue notice to them.  

September , 2010       SHIV NARAYAN DHINGRA, J.
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