Aniket Subhash Tupe vs Piyusha Aniket Tupe And Anr
2018 Latest Caselaw 1263 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                           WRIT PETITION NO.2938 0F 2017

Aniket Subhash Tupe                                               ...Petitioner

                       Versus 

1. Mrs. Piyusha Aniket Tupe                                     ...Respondents
2. The State of Maharashtra
                                    .....
Mr. Abhijit Sarawate for the Petitioner.
Mr. Abhijeet Ashok Desai for the Respondent No.1.
Mr. Y.M. Nakhwa, APP for the Respondent No.2-State.


                                      CORAM : SMT. ANUJA PRABHUDESSAI, J. 

JUDGMENT RESERVED ON: 13/11/2017 JUDGMENT PRONOUNCED ON:22/3/2018

JUDGMENT:-

Rule. Respondents waive service. By consent, Rule is made

returnable forthwith and the petition is taken up for hearing and final

disposal.

2. A short question raised in this petition is whether in an

application filed under Section 12 of the Protection of Women from the

Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act'), the

Applicant can be permitted to file affidavit in evidence.

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3. The brief facts leading to this Petition are as under:-

The Respondent was married to the Petitioner on 15.2.2013. The

matrimonial dispute between the parties led to the Petitioner filing a

Divorce Petition being P.A. No.1223 of 2015, which is pending before

the Family Court. The Respondent-wife has also filed an application

under Section 12 of the DV Act being M.A. No.717 of 2015 before the

learned J.M.F.C., Cantonment, Pune. The Petitioner filed his reply to

the said application under Section12 of the DV Act and said

proceedings were fixed for evidence on 29.11.2016.

4. The Petitioner-husband filed an application dated

7.11.2016 contending that the proceedings under the DV Act are to be

dealt with in the manner laid down under Section 125 of the Cr.P.C.

The Petitioner therefore, claimed that the Respondent-wife is not

entitled to file an affidavit-in-evidence and sought direction to call

upon the Respondent-wife to step into the witness box and adduce

evidence.

5. The learned Magistrate, upon hearing the respective parties

held that Section 28(2) of the DV Act permits the Court to lay down its

own procedure for disposal of an application under Section 12 of the

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DV Act. The learned Magistrate further held that considering the

object of the Act and particularly the time frame within which such

applications are required to be disposed of, it is permissible to conduct

the examination-in-chief of the Respondent -wife on an affidavit.

Based on the aforesaid findings the learned Magistrate dismissed the

application filed by the Petitioner. Hence, this Petition.

6. Mr. Abhijeet Saravate, the learned counsel for the Petitioner

submitted that in view of Section 28(1) r/w Sub Rule 5 of Rule 6 of the

DV Rules, 2006 evidence in application under Section 12 is required to

be recorded in presence of the Respondent in a manner prescribed for

summons case. He contends that the Act does not contemplate filing

of affidavit-in-evidence and hence the learned Magistrate was not

justified in permitting the Respondent to file her affidavit-in-evidence.

In support of this contention, he has relied upon decisions of this Court

in Anil Ambashankar Joshi Vs. Mrs. Reena Anil Joshi in Writ

Petition 4243 of 2015 and Sachin Vs. Sushma 2015 (0) ALL MR

(Cri) 3128. He has also relied upon the decision of the Madhya

Pradesh High Court in Madhusudan Bhardwadj and Ors. Vs. Mamta

Bhardwaj 2009 (2) Crimes 284.

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7. Mr. Abhijeet Desai, the learned Counsel for the Respondent

No.1 submits that Sub Section 2 of Section 28 gives wide powers to the

Court to lay down its own procedure for disposal of applications under

Section 12 of the Domestic Violence Act. He contends that Sub Section

5 of Section 12 of the DV Act, mandates disposal of the application

under Section 12 within a time bound frame of 60 days. He therefore,

contends that to achieve this object the learned Magistrate can take

recourse to Sub Section 2 of Section 28 of the DV Act and thus permit

the Petitioner to file affidavit-in-evidence. He further submits that such

procedure does not contravene the procedure prescribed either under

Sub Section 1 of Section 28 of the DV Act or Sub Rule 5 of Rule 6

thereof. In support of this contention he has relied upon decisions of

Madras High Court in Laxman Vs. Sangeetha (2009) SCC OnLine

Mad 1626, the Karnataka High Court in M/s. K. Manjunath Reddy

Vs. Smt. Latha A.C in Criminal Petition No. 1726 of 2016 and

decision of Patna High Court in Manish Kumar Soni & Ors. Vs.

State of Bihar and Anr. II(2016) DMC 207 (pat.)

8. I have perused the records and considered the submissions

advanced by the learned counsels for the respective parties. In order to

appreciate the contentions raised on behalf of the respective parties it

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is necessary to consider the object of the DV Act and the provisions

relevant to decide the issue raised in the Petition.

9. It may be mentioned that the DV Act came into force w.e.f.

26th October, 2006. As can be seen from clause 3 of the statements of

the objects and reasons, this Act was enacted 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 intended to protect the woman

from being victim of domestic violence and to prevent the occurrence

of domestic violence in the society. The preamble of the Act states that

this Act has been enacted to provide for more effective protection of

the rights of women guaranteed under the constitution who are victims

of violence of any kind occurring within the family and for matters

connected therewith and incidental thereto. The provisions of the Act

came up for consideration before the Supreme Court in Hiral P.

Harsora and others vs. Kusum Narottamdas Harsora and Others ,

(2016) 10 SCC 165. In the said judgment, while discussing the

provisions of the Act, the Apex Court held as under:-

"14. A cursory reading of the Statement of Objects and Reasons makes it clear that the phenomenon of domestic violence against women is widely prevalent and needs redressal. Whereas criminal law does offer some redressal,

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civil law does not address this phenomenon in its entirety. The idea therefore is to provide various innovative remedies in favour of women who suffer from domestic violence, against the perpetrators of such violence.

15. xxx

16. What is of great significance is 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, are all to be redressed by the statute. That the perpetrators and abettors of such violence can, in given situations, be women themselves, is obvious. ..."

10. Now coming to the relevant provisions of the statute,

Chapter IV of the DV Act prescribes procedure for obtaining orders of

reliefs which are in the form of :-

1)       Protection order under Section 18,
2)       Residence order under Section  19
3)       Monetary relief under Section 20, 
4)       Custody order under Section 21 
5)       Compensation order under Section 22
6)       Interim and exparte order under Section 23 

11. Section 12 of the Act stipulates filing of an application for

seeking one or more reliefs under the DV Act either by the aggrieved

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person or by the protection officer or any person on behalf of the

aggrieved person. Sub section 4 of Section 12 of the DV Act mandates

the Magistrate to fix the first date of hearing, ordinarily not beyond

three days from the receipt of the application by the Court. Whereas

Sub Section 5 of Section 12 states that the Magistrate shall endeavour

to dispose of every such application within a period of sixty days from

the date of its first hearing.

12. Section 13 of the DV Act also casts a duty on the protection

officer to serve the notice on the Respondent or any other person, as

directed, within a maximum period of two days or such further

reasonable time as may be allowed by the Magistrate from the date of

its receipt.

13. Section 28 of the DV Act prescribes the procedure to be

followed by the Magistrate. Sub Section 1 of Section 28 provides that

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. Sub Section (2) of Section 28 of the DV.

Act provides that nothing in Sub Section (1) shall prevent the Court

from laying down its own procedure for disposal of an application

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under Section 12 or under Sub Section 2 of Section 23 of the DV Act.

14. Sub Rule (5) of Rule 6 of Domestic Violence Rules, 2006

provides that the application under Section 12 shall be dealt with and

the orders enforced in the same manner as laid down under Section

125 of the Code of Criminal Procedure, 1973.

15. At this stage, it would also be advantageous to refer to Sub

Section (2) of Section 126 Cr.P.C. which prescribes procedure for

dealing with applications under Section 125. This provision states that

all evidence in proceedings under Section 125 of Cr.P.C. 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 in summons case.

16. A plain reading of these provisions clearly indicates that the

DV Act provides effective protection to women, who are victims of

domestic violence. The Act prescribes mandatory time limit for fixing

the date of hearing, service of notice and disposal of the application

with an intent and object of providing expeditious and speedy relief to

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the aggrieved women.

17. It is to be noted that though the reliefs which can be

granted under Section 17 to 22 are civil in nature, Sub Section (1) of

Section 28 mandates that such proceedings shall be governed by the

provisions of the Criminal Procedure Code. The Act or the Rules do

not contain any specific provision as regards mode of receiving or

recording evidence. Nevertheless, Rule 6(5) stipulates that the

application under Section shall be dealt with and the orders enforced

in the same manner laid down under Section 125 of Cr.P.C., 1973. In

Anil Ambashankar Joshi (supra) this Court has held that in an

application under Section 125 of Cr.P.C. the provisions of order XVIII

Rule 4 of CPC are not applicable. It is further held that in terms of

Section 126 of Cr.P.C. the evidence in proceeding under Section 125 of

Cr.P.C. has to be recorded in the manner prescribed for a summons

case.

18. It is pertinent to note that the procedure to deal with

applications under Section 125 is prescribed in Section 126 of Cr.P.C.

Sub Section (2) of Section 126 provides that evidence in proceedings

under Section 125 shall be taken in presence of the person against

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whom the order of payment of maintenance is proposed to be made.

The evidence in such matters is to be recorded in a manner prescribed

for summons case. There is no dispute about the proposition that in

the absence of any other enabling provision akin to Section 28(2) of

the D.V. Act, the Magistrate cannot give a go by to the procedure

contemplated in Section 126(2) of Cr.P.C. and permit filing of affidavit-

in-evidence.

19. The question in the instant case is whether section 28(2) of

the D.V. Act enables the court to permit the parties to file affidavit-in-

evidence in the proceedings filed under Sec. 12 of Domestic Violence

Act. A cumulative reading of Sub Section (1) of Section 28 r/w. Sub

Rule (5) of Rule 6 indicates that in deciding the application under

Section 12, the Court has to follow the procedure prescribed under

Section 126 of the Cr.P.C. and thus, record evidence in presence of the

parties. It is however to be noted that Sub Section (2) of Section 28

clearly provides that-"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". The opening words

of Sub Section (2) of Section 28 viz.-"Nothing in Sub Section (1) shall

prevent the Court" clearly indicate that notwithstanding the procedure

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prescribed in 28(1) r/w. Rule 6(5) the Court is empowered to lay down

its own procedure in deciding the application under Section 12 or

23(2) of the D.V.Act.

20. Now coming to the decisions relied upon by the learned

counsel for the Petitioner, in Sachin V/s. Sushma 2014(4) Mh.L.J.

Cri. 290, the learned Magistrate taking recourse to Section 28(2) of

the DV Act had issued NBW for recovery of the amount towards

interim maintenance. While setting aside the said order this Court had

observed that the Magistrate had to follow the procedure laid down in

Cr.P.C. for recovery of maintenance. In this context it was held that

Sub Section 2 of Section 28 can be pressed into service only when

there is no provision available for implementing a particular order

passed under the Domestic Violence Act. The issue of filing of

affidavit-in-evidence by invoking provisions of Section 28(2) of the D.V.

Act did not fall for consideration in the case of Sachin (supra) This

decision would therefore not be applicable to decide the controversy

involved in this petition.

21. Relying upon the decision of the Madhya Pradesh High

Court in Madhusudan Bhardwaj (supra) the learned counsel for the

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Petitioner submits that the recording of evidence in application under

Section 12 has to be in conformity with the procedure prescribed in

Rule 6(5) of Domestic Violence Rules, 2006. It may be mentioned that

the facts in case of Madhusudan Bhardwaj (supra) are

distinguishable. In the said case no opportunity was given to the

parties to lead evidence and the application under Section 12 was

allowed mainly on the basis of allegations stated in the application and

upon hearing the oral arguments. In this circumstance, it was held

that the Magistrate was required to comply with the provisions of

Section 28(1) and Sub Rule (5) of Rule 6 and follow the procedure

under Section 126 of Cr.P.C. in disposing of the application under

Section 12 of the Act.

22. Referring to the observations in paragraph 9(A) in

Madhusudan Bhardwaj (supra) the learned counsel for the Petitioner

submits that the procedure adopted by the learned Magistrate is

contrary to the provisions under Section 28(1) r/w Rule 6(5) of the DV

Act. Paragraph 9(A) of the decision supra reads thus:-

"It is also true, that sub-section (2) of section 28 provides, that nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 of the Act. By cumulative

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reading of section 28 sub-sections (1) and (2) of the Act and Rule 6(5) of the Rules, it appears that sub-section (2) of section 28 of the Act appears to have been enacted looking to the peculiar nature of the Act and also the existence of aforementioned ambiguity with regard to the provision of section 28(1) of the Act, but now that ambiguity has been removed by the Central Government under its powers given by section 37 of the Act."

23. As stated earlier, Sub Rule 2 of Section 28 enables the Court

to lay down its own procedure in deciding the applications under Sec-

tion 12 or 23 of the DV Act. The rules framed in exercise of powers un-

der Section 37 of the Act cannot override this substantive provision un-

der the Act. As regards interpretation of the statute or any provision, in

Visitor & Ors vs K.S. Misra [2007(8) SCC 593 the Apex Court has

held that:-

" It is well-settled principle of interpretation of the statute that it is incumbent upon the court to avoid a construction, if reasonably permissible on the language, which will ren- der a part of the statute devoid of any meaning or applica- tion. The courts always presume that the legislature insert- ed every part thereof for a purpose and the legislative intent is that every part of the statute should have effect. The leg-

islature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if

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they can have appropriate application in circumstances conceivably within the contemplation of the statute. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., p. 68.)"

24. Reference can also be made to the decision in Balwant

Singh (Dead) Vs. Jagdish Singh and Ors. (2010) 8 SCC 685, wherein

the Apex Court has elucidated the approach to be adopted by a Court

in such cases and held as under:

"It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In oth- er words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious."

25. It is thus well settled that when the language of the

provision is plain, clear and unambiguous the Courts should not extend

or limit the scope of Section but read the Section as it is and interpret

in a manner which makes the provision workable and not redundant

or otiose. The interpretation, which renders the operation of the

provision otiose, must be eschewed and endeavour should be to give an

interpretation which would be consistent with the provisions of the Act

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and would effectuate the intention of the legislature in inserting the

said provision.

26. These principles have to be borne in mind while

interpreting the provision under section 28 (2) D.V.Act. As stated

earlier the D.V.Act is a beneficial piece of social welfare legislation

aimed at providing to the victims of domestic violence speedy reliefs,

which are civil in nature. Though, unlike Negotiable Instrument Act,

there is no specific provision in the D.V. Act to give evidence on

affidavit, section 28(2) with words plain, simple and unambiguous

gives flexibility to the Court to depart from the procedure prescribed

under Section (1) of Section 28 and to devise its own procedure in

deciding application under Section 12 or 23(2) of the Act. This

enabling provision, which intends to achieve the object of the Act,

would over-ride sub section (1) of section 28 the Act as well as Rule

6(5) of D.V. Rules. Having regard to the object and scope of the Act,

this provision cannot be given a narrow interpretation which will have

an effect of rendering it redundant, surplus or otiose. In my

considered view, such approach will defeat the very object of the Act.

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27. Similar view has been taken by Karnataka High Court in K.

Manjunath Reddy (supra). It has been held that :

"3. Having regard to the object of and the scope of the legislation, the prescription of such enabling provision is obviously not to cramp the style of the court which requires to address issues with some expedition. Therefore, the section providing that the court can form its own procedure, would also over-ride sub-section (1) of Section 28 to rule 6(5) of the Rules as well.

4. There is no illegality, as the court in exercise of its inherent power while prescribing the procedure for disposal of the application, would even permit evidence by way of an affidavit in such cases. And where the deponent would be available for cross-examination to test the veracity of the evidence, there is no miscarriage of justice or other illegality in such a procedure being adopted."

28. Similarly, in Manish Kumar Soni (supra) it has been held

as under :-

"27. Hence, though the provision under Section 28(1) of the Act stipulates that the proceeding under Section 12 of the Act shall be governed by the provisions of the Code of Criminal Procedure, but the same is directory in nature and any departure from the provisions of Code of Criminal Procedure will not vitiate the proceeding initiated under Section 12 of the Act."

29. Thus, keeping in mind the aim and object of the Act and

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scope of Section 28(2), in my considered view the Court can deviate

from procedure prescribed under Sub Section (1) of Section 28 r/w

Rule 6(5) and devise its own procedure, which would include

permitting evidence by way of an affidavit. In other words, the court

in its discretion can allow evidence on affidavit and permit cross

examination to test veracity of the evidence.

30. Under the circumstances and in view of discussion supra,

there is no merit in the petition. The petition is accordingly dismissed.

                                         (ANUJA PRABHUDESSAI, J.)




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