Deepak Pandey vs Aneeta Tiwari
2024 Latest Caselaw 4732 MP

Madhya Pradesh High Court

Deepak Pandey vs Aneeta Tiwari on 19 February, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                             1                    MCRC No.3753/2024



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
    HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
             ON THE 19th OF FEBRUARY, 2024
             MISC. CRIMINAL CASE No. 3753 of 2024

BETWEEN:-

DEEPAK PANDEY S/O SHRI KRISHNMANI
PANDEY, AGED ABOUT 33 YEARS, OCCUPATION:
AGRICULTURE R/O VILLAGE PARIHARIN
PURVA THANA ATRAILA DISTRICT REWA
(MADHYA PRADESH)
                                                     .....PETITIONER
(BY SHRI BYANKATESH PRASAD PANDEY - ADVOCATE)

AND

ANEETA TIWARI W/O SHRI VIRENDRA TIWARI,
AGED ABOUT 32 YEARS, R/O BAIJLA THANA
NAIGARHI   DISTRICT    REWA   (MADHYA
PRADESH)
                                                   .....RESPONDENTS
  (NONE)

      This application coming on for admission this day, the court
passed the following:
                                 ORDER

This application under Section 482 of CrPC has been filed against Order dated 02.11.2023 passed by Additional Sessions Judge, Sirmour, District Rewa in Criminal Revision No.11/2023 arising out of order dated 22.01.2021 and 27.01.2023 passed by JMFC, Sirmour, District Rewa in MJCR No.11/2021.

2. It is the case of the applicant that he was married to respondent on 29.04.2015. The attitude of the respondent was not familiar and good towards her matrimonial house. It is submitted that the respondent filed a complaint under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as 'DV Act') and accordingly the trial Court vide order dated 22.01.2021 issued notice to the petitioner after taking cognizance.

3. It is submitted that the said order was passed without calling the Domestic Incident Report (DIR) from Protection Officer, which is in violation of sub-section (1) of Section 12 of the DV Act. It is submitted by counsel for applicant that petition was filed by applicant under section 13 of Hindu Marriage Act, which was registered as Hindu Marriage Act Case No.53/2021. The District Judge, Tyonthar, District Rewa by order dated 15.06.2022 has severed the marital ties on the ground that behavior of the respondent was cruel towards her In- laws. Accordingly, the applicant preferred an application for dismissal of the proceedings under Section 12 of DV Act. However, by the impugned order the said application was rejected.

4. Challenging the order passed by the Courts below, it is submitted by counsel for applicant that there is already a judicial verdict in favour of applicant that it was the respondent who was cruel towards the applicant. At present, the applicant and respondent are not husband and wife, therefore the continuation of proceedings under DV Act is unwarranted. It is further submitted that cognizance was taken without calling of DIR.

5. Heard the learned counsel for the applicant.

6. So far as requirement of domestic incident report is concerned, the Supreme Court in the case of Prabha Tyagi v. Kamlesh Devi, reported in (2022) 8 SCC 90 has held as under:-

"64. Clause (e) of Section 2 defines a "domestic incident report" to be a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person. As noted from Section 12, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person including the service provider vide sub-section (1) of Section 10 of the DV Act, may present an application to the Magistrate seeking one or more reliefs under the DV Act. The proviso to sub-section (1) of Section 12 states that before passing any order on such an application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. "Protection Officer" as defined in clause (n) of Section 2, means an officer appointed by the State Government under sub- section (1) of Section 8. Sub-section (2) of Section 8 states that the Protection Officers shall, as far as possible, be women and shall possess such qualifications and experience as may be prescribed.

65. On a conjoint reading of the aforesaid provisions, it is clear that an aggrieved person on her own or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the DV Act but the proviso states that when a domestic incident reported is received by the Magistrate from the Protection Officer or the service provider, in such a case, the same shall be taken into consideration. Therefore, when an aggrieved person files an application by herself or with the assistance of an advocate and not with the assistance of the Protection Officer or a service provider, in such a case, the role of the Protection Officer or a service provider is not envisaged. Obviously, there would be no

domestic incident report received by a Magistrate from the Protection Officer or a service provider.

66. Can it be said that in the absence of a domestic incident report, the Magistrate cannot pass any order under the DV Act particularly when an application is filed before the Magistrate by the aggrieved person by herself or through a legal counsel? In our view, that is not the intention of the proviso. Although, the expression "shall" is used in the proviso, it is restricted to only those cases where a Protection Officer files any domestic incident report or, as the case may be, the service provider files such a report. When a domestic incident report is filed by a Protection Officer or a service provider, in such a case the Magistrate has to take into consideration the said report received by him. But if such a report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. Therefore, the expression "shall" has to be read in the context of a domestic incident report received by a Magistrate from the Protection Officer or the service provider as the case may be in which case, it is mandatory for the Magistrate to consider the report. But, if no such report is received by the Magistrate then the Magistrate is naturally not to consider any such domestic incident report before passing any order on the application. As already noted, this could be in a case where an aggrieved person herself approaches the Magistrate or the services of an advocate are engaged to present an application seeking one or more reliefs under the DV Act or for a valid acceptable cause/reason a domestic incident report has not been filed by a Protection Officer or a service provider, as the case may be.

67. We are, therefore, of the view that the High Court was not right in holding that the application filed by the appellant herein was not accompanied by a domestic incident report and therefore under the proviso to sub- section (1) of Section 12 of the DV Act, the Magistrate

had no authority to issue orders and directions in favour of the appellant.

68. Following are the judgments where the High Courts have held that the domestic incident report is not a sine qua non for entertaining or deciding the application under Section 12 of the DV Act by the learned Magistrate.

68.1. In Nayanakumar v. State of Karnataka [Nayanakumar v. State of Karnataka, 2009 SCC OnLine Kar 386 : ILR 2009 Kar 4295] , the High Court of Karnataka (Kalaburagi Bench) while dealing with Section 12 of the DV Act, held that in case a domestic incident report is received by the Magistrate either from the Protection Officer or from the service provider, then it becomes obligatory on the part of the Magistrate to take note of the said domestic incident report before passing an order on the application filed by the aggrieved party. It was further clarified that the scheme of the DV Act makes it clear that it is left to the choice of the aggrieved person to go before the service provider or the Protection Officer or to approach the Magistrate under Section 12 of the DV Act. 68.2. In Abhiram Gogoi v. Rashmi Rekha Gogoi [Abhiram Gogoi v. Rashmi Rekha Gogoi, 2011 SCC OnLine Gau 423 : (2011) 4 Gau LR 276] , the Gauhati High Court held that Section 9(1)(b) of the DV Act makes it clear that it is the duty of the Protection Officer to make a domestic incident report to the Magistrate upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area.

68.3. In Mohd. Basit v. State of Assam [Mohd. Basit v. State of Assam, 2011 SCC OnLine Gau 249 :

(2012) 1 Gau LR 747] , the Gauhati High Court differed with the view taken by the Madhya Pradesh

[Ajay Kant Sharma v. Alka Sharma, 2007 SCC OnLine MP 236] and Jharkhand [Rakesh Sachdeva v. State of Jharkhand, 2010 SCC OnLine Jhar 970] High Courts and held that Section 12 only contemplates as to who can file a complaint under Section 12 of the DV Act, what relief may be sought for, what the contents of the complaint must be and how the complaint ought to be examined. That if the complaint conforms to the said preconditions, the same may be taken cognizance of.

The High Court [Mohd. Basit v. State of Assam, 2011 SCC OnLine Gau 249 : (2012) 1 Gau LR 747] noted that an application under Section 12(1) of the DV Act may be filed either by an aggrieved person herself, or by a Protection Officer. The Court went on to hold that the provision does not require a Magistrate to specifically call for a domestic incident report. That it would only be mandatory to consider such report, if the same had been filed by the Protection Officer before the Magistrate. The Gauhati High Court differed with the view taken by the Madhya Pradesh and Jharkhand High Courts, to the extent that the latter Courts observed that the Magistrate would not be obligated to consider the domestic incident report even if the same was filed by the Protection Officer.

68.4. Delving on the same issue, the High Court of Himachal Pradesh in Rahul Soorma v. State of H.P. [Rahul Soorma v. State of H.P., 2012 SCC OnLine HP 2574] , held that the purpose of the DV Act is to give immediate relief to the aggrieved person; therefore, it was wrong to suggest that the Magistrate has no jurisdiction to take cognizance of the application under Section 12 of the DV Act before the receipt of a domestic incident report by the Protection Officer or the service provider.

68.5. Further, the High Court of Andhra Pradesh in A. Vidya Sagar v. State of A.P. [A. Vidya Sagar v. State of A.P., 2014 SCC OnLine Hyd 715] , rejected the contention of the petitioner therein that a domestic

violence case can be instituted and taken cognizance of on the basis of the domestic incident report only and not otherwise.

68.6. In its judgment in Ravi Kumar Bajpai v. Renu Awasthi Bajpai [Ravi Kumar Bajpai v. Renu Awasthi Bajpai, 2015 SCC OnLine MP 7631 : ILR 2016 MP 302] , the High Court of Madhya Pradesh speaking through J.K. Maheshwari, J., while discussing on the legislative intent of the DV Act, held that if the legislative intent was to call for a report from the Protection Officer as a precondition by the Magistrate to act upon a complaint of aggrieved person, then it would have expressed that intention emphasising the words in the main section. The High Court relied on various judgments pertaining to the interpretation of a provision and proviso thereof.

68.7. The Division Bench of the High Court of Delhi in Shambhu Prasad Singh v. Manjari [Shambhu Prasad Singh v. Manjari, 2012 SCC OnLine Del 2895 : (2012) 190 DLT 647] , speaking through Ravindra Bhat, J. dealt with the conflicting views [Ed. : The reference appears to be to Shambhu Prasad Singh v. Manjari, 2012 SCC OnLine Del 1371 and Bhupender Singh Mehra v. State (NCT of Delhi), 2010 SCC OnLine Del 4778] of the two Single Judges on the question whether a Magistrate can act straightaway on the complaint made by an aggrieved person under the DV Act. It was held that Section 12(1) of the DV Act does not mandate that an application seeking relief under the said DV Act must be accompanied with a domestic incident report or even that it should be moved by a Protection Officer. So also, Rule 6 which stipulates the form and manner of making an application to a Magistrate does not require that the domestic incident report must accompany an application for relief under Section 12. It was further held that an obligation to submit a domestic incident report is imposed only on the Protection Officers under Section 9 of the DV Act and upon the

service providers under Section 10 of the DV Act and the learned Magistrate "shall" take into consideration, the domestic incident report if it is filed and not otherwise.

         68.8. In Rakesh                   Choudhary v. Vandana
         Choudhary [Rakesh                 Choudhary v. Vandana

Choudhary, 2019 SCC OnLine J&K 512] , the High Court of Jammu and Kashmir rejected the argument of the petitioner therein that the report of the Protection Officer is sine qua non for issuing process in a petition under Section 12 of the DV Act. The Court held that the proviso to Section 12(1) of the DV Act only stipulates that the learned Magistrate shall take into consideration the domestic incident report filed by the Protection Officer or the service provider, but it does not stipulate that a report "shall be called for" before any relief could be granted.

68.9. Further, the High Court of Bombay at Aurangabad Bench, while dealing with a criminal writ petition in Vijay v. Savita Vijay Gaikward [Vijay v. Savita Vijay Gaikward, 2017 SCC OnLine Bom 10136 : (2018) 1 HLR 295] , observed that if the matter is before the Court and the wife preferred not to approach the Protection Officer, the Court is not bound to call the report of Protection Officer.

68.10. Lastly, in Suraj Sharma v. Bharti Shrama [Suraj Sharma v. Bharti Shrama, 2016 SCC OnLine Chh 1825] , the High Court of Chhattisgarh while expressing its view on Section 12 of the DV Act also held that the domestic incident report shall not be conclusive material for making any order."

7. Under the circumstances, it is clear that the production of domestic incident report is not sine qua non for maintaining the complaint by the applicant.

8. So far as the question of divorce decree is concerned, it is fairly conceded by counsel for applicant that ex-parte decree for divorce was passed during the pendency of complaint under the Domestic Violence Act. However, it is not known as to whether ex- parte decree has been challenged or not ?

9. Under these circumstances, this Court is of considered opinion that it is not necessary for this Court to consider as to whether the complaint under Section 12 of Domestic Violence Act, can be instituted after the decree of divorce was granted because in the present case, ex-parte decree was passed during the pendency of complaint, and therefore application under Section 12 of the Domestic Violence Act was maintainable.

10. Accordingly, no case is made out warranting interference.

11. The application fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

VB* VINAY KUMAR BURMAN 2024.03.05 18:46:05 +05'30'