The Gujarat High Court dismissed an application requesting to quash and set aside the judgment and order dated 30.12.2022 passed by the learned 2nd Additional Sessions Judge as well as the judgment and order dated 08.08.2022 passed by the learned Judicial Magistrate.
The Court observed that Court can allow evidence on affidavit in its discretion and while considering the aims and objects of the D.V. Act including the scope of Section 28(2), the court can deviate from the procedure mentioned under Sub Section (1) of Section 28.
Brief Facts:
Respondents No.2 and 3 filed Criminal Misc. application under Section 12 of the Protection of Women from Domestic Violence Act 2005 and in that matter, respondents No.2 and 3 filed an application under Section 23 of the Act seeking interim relief. After hearing both the parties, learned JMFC, partly allowed the application of respondents no.2 and 3, directing the applicants herein to pay maintenance amount to the tune of Rs. 5,000/- per month to respondent no.2 and Rs. 2,000/- per month to the respondent no.3 till final disposal of the application. Thereafter, the applicants filed their written objections to the examination in chief filed by respondents No.2 and 3 on affidavit and requested to record their examination in chief orally.
The learned Judicial Magistrate First Class rejected the application filed by the applicants. Being aggrieved by the said order, applicants approached the learned Sessions Court wherein, the learned 2nd Additional Sessions Judge dismissed the appeal. Being aggrieved by the said order, the applicants have approached this court by way of this application.
Contentions of the Applicant:
The Learned Counsel for the Applicant submitted that both the courts below have failed to appreciate the provisions of Sections 28 of the Act and relevant rules thereof. There is no provision either in the CRPC or in the Indian Evidence Act to file an affidavit as a substitute for the oral evidence.
Further, the Counsel argued that chief examination should be by way of oral evidence and if any deviation from the said procedure, prejudice would be caused to the parties. The orders passed by the learned courts below suffer from non-application of mind and non-application of the law to the facts of the case.
Observations of the Court
The Court observed that Court can allow evidence on affidavit in its discretion and while considering the aims and objects of the D.V. Act including the scope of Section 28(2), the Court can deviate from the procedure mentioned under Sub Section (1) of Section 28 read with Rule 6(5) and devise its procedure which would include permitting evidence by way of an affidavit.
Further, the Court remarked that the 2005 Act is to provide for effective protection of the rights of women who are victims of violence of any kind occurring within the family. The Preamble also makes it clear that the reach of the Act is that violence, whether physical, sexual, verbal, emotional, or economic, is all to be redressed by the statute.
The decision of the Court:
The Gujarat High Court, dismissing the application, held that the learned trial court as well as the learned first appellate court did not commit any error in passing impugned orders, and therefore, both the impugned orders are ordered to be confirmed.
Case Title: Samirkumar Chandubhai Joshi v State of Gujarat
Coram: Hon’ble Justice Samir J. Dave
Case no.: R/SPECIAL CRIMINAL APPLICATION NO. 1303 of 2023
Advocate for the Applicant: Mr. RC Kakkad
Advocate for the Respondent: Ms. MH Bhatt
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