Bhupender Singh Mehra vs State Nct Of Delhi & Anr.
2010 Latest Caselaw 4757 Del

               * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of Reserve: September 24, 2010
                                               Date of Order: 8th October, 2010
+ Crl.M.C.No. 1766/2010
%                                                               08.10.2010

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

                Versus


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


+ Crl.M.C.No. 1773/2010
%                                                               08.10.2010

        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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