Case Note & Summary
The respondent-wife filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 seeking various reliefs, along with an interim application under Section 23 for interim maintenance. The petitioner-husband objected, contending that the Magistrate must follow the procedure for trial of summons cases as prescribed under Section 28(1) of the Act, arguing that since the offence under Section 31 is punishable with imprisonment up to one year, it constitutes a summons case and thus all proceedings under Sections 18 to 23 must be conducted accordingly. The Judicial Magistrate First Class, Thane, by order dated 7 August 2019, declined to conduct the enquiry as per summons case procedure, and the Additional Sessions Judge, Thane dismissed the husband’s appeal on 30 January 2020. Aggrieved, the husband filed a writ petition under Article 227 of the Constitution of India before the Bombay High Court. The core legal issue was whether the enquiry under Section 23 for interim maintenance must follow the summons trial procedure. The petitioner relied on a Karnataka High Court judgment, Krishna Murthy Nookula v. Y. Savitha. The High Court, after examining the scheme of the Protection of Women from Domestic Violence Act, held that the proceedings under the Act are predominantly civil in nature, and only when there is a breach of protection order under Section 31 or a failure by the Protection Officer under Section 33 do they assume criminal character. Section 28 of the Act provides that proceedings relating to applications under Section 12 shall be governed by the Code of Criminal Procedure, 1973. Notably, Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2006 explicitly states that an application under Section 12 shall be dealt with and orders enforced in the same manner as laid down under Section 125 of the CrPC. The Court held that therefore, the procedure to be followed for all reliefs under Section 12, including interim orders under Section 23, is that prescribed under Section 125 CrPC, and not the procedure for trial of summons cases. The Court termed the petitioner’s contention wholly misconceived and rejected the petition, thereby upholding the lower courts’ orders.
Headnote
A) Protection of Women from Domestic Violence Act - Interim Maintenance - Procedure for Enquiry - Sections 23, 12, 28 of the Protection of Women from Domestic Violence Act, 2005; Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2006 - The question was whether the Magistrate must follow summons trial procedure while deciding an interim maintenance application under Section 23 - Held that proceedings under the Act are civil in nature, and only those under Sections 31 and 33 are criminal - Section 28 mandates CrPC governance for Section 12 applications, and Rule 6(5) specifically requires them to be dealt with as per Section 125 CrPC - Therefore, the procedure under Section 125 CrPC applies, not summons trial (Paras 3-4).
Issue of Consideration
Whether the procedure for trial of summons cases must be followed in an enquiry under Section 23 of the Protection of Women from Domestic Violence Act, 2005 for interim maintenance?
Final Decision
The petition was rejected. The Court held that the procedure for deciding applications under Section 12 of the D.V. Act, including interim relief under Section 23, is the procedure laid down under Section 125 of the Code of Criminal Procedure, 1973, and not the procedure for trial of summons cases. The lower court orders were upheld.
Law Points
- proceedings under the Protection of Women from Domestic Violence Act are predominantly civil
- criminality only under Sections 31 and 33
- Section 28 D.V. Act makes CrPC applicable to proceedings under Section 12
- Rule 6(5) Domestic Violence Rules mandates Section 125 CrPC procedure for Section 12 applications
- interim relief under Section 23 follows Section 125 CrPC not summons trial
Case Details
2021 LawText (BOM) (11) 14
WRIT PETITION NO. 731 OF 2020
Siddharth S. Deshpande, Samarth S. Karmarkar, Reshma R. Apte, Rahul Shelke, Mansi Anerao, A.D. Khamkhedkar
Meenaxi Nitin Jagtap & Anr.
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging orders of lower courts in domestic violence proceedings.
Remedy Sought
Petitioner-husband sought to quash the orders of the Magistrate and Sessions Judge and to direct that the enquiry in the interim maintenance application under Section 23 of the D.V. Act be conducted as per the procedure for trial of summons cases.
Filing Reason
The Magistrate and Sessions Court had rejected the husband’s contention that the procedure for summons cases was mandatory for deciding interim applications under the D.V. Act.
Previous Decisions
The Judicial Magistrate First Class, Thane, by order dated 7 August 2019, declined to conduct the enquiry as per summons case procedure. The Additional Sessions Judge, Thane, dismissed the appeal against that order on 30 January 2020.
Issues
Whether the enquiry in an interim application under Section 23 of the Protection of Women from Domestic Violence Act, 2005 must follow the procedure for trial of summons cases as prescribed under Section 28(1) of the Act?
Submissions/Arguments
Petitioner: The procedure for trial of summons cases is mandatory for enquiries under sections 18 to 23 of the D.V. Act because the offence under Section 31 is punishable with imprisonment up to one year, making it a summons case; relied on Krishna Murthy Nookula v. Y. Savitha (2016 Cri. L.J. 1970).
Respondents/State: Proceedings under the D.V. Act are predominantly civil and are governed by Section 125 CrPC as per Rule 6(5) of the Domestic Violence Rules, not by summons trial procedure.
Ratio Decidendi
Proceedings under the Protection of Women from Domestic Violence Act, 2005 are predominantly civil in nature; only breach of protection order under Section 31 or failure of protection officer under Section 33 are criminal. By virtue of Section 28 of the Act and Rule 6(5) of the Domestic Violence Rules, 2006, applications under Section 12, including interim relief under Section 23, are to be dealt with in the same manner as under Section 125 of the Code of Criminal Procedure, 1973, not as per the procedure for trial of summons cases.
Judgment Excerpts
the proceedings under the D.V. Act are predominantly of civil nature and it is only when there is breach of protection order contemplated under Section 31 or failure or refusal to discharge duty without any sufficient cause by the Protection Officer, as contemplated under Section 33, the proceedings assume the character of criminality.
Rule 6(5) of the Domestic Violence Rules, 2006 says that application under Section 12 shall be dealt with and orders enforced in the same manner as laid down under Section 125 of the Code of Criminal Procedure, 1973.
Therefore, the contention of the petitioner that, while dealing with the applications under Section 12 for the various reliefs, enquiry is to be conducted in the manner as per the procedure for trial of the summons cases, is wholly misconceived.
Procedural History
The respondent-wife filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 along with an interim application under Section 23 seeking interim maintenance. The petitioner-husband objected and sought enquiry as per the summons case procedure under Section 28(1). The Judicial Magistrate First Class, Thane, by order dated 2019-08-07, declined to conduct the enquiry as per summons case procedure. The husband appealed to the Sessions Court, Thane. The Additional Sessions Judge, Thane, dismissed the appeal on 2020-01-30. The husband then filed the present writ petition under Article 227 of the Constitution, which was rejected by the High Court on 2021-11-18.
Acts & Sections
- Constitution of India: Article 227
- Protection of Women from Domestic Violence Act, 2005: 12, 18, 19, 20, 21, 22, 23, 28, 31, 33
- Code of Criminal Procedure, 1973: 125
- Protection of Women from Domestic Violence Rules, 2006: Rule 6(5)
