Case Note & Summary
The petitioner-husband filed a writ petition challenging the order of the learned Judicial Magistrate First Class, Cantonment, Pune, which permitted the respondent-wife to file an affidavit-in-evidence in proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act). The parties were married on 15 February 2013, and matrimonial disputes led to the husband filing a divorce petition (P.A. No.1223 of 2015) before the Family Court, while the wife filed an application under Section 12 of the DV Act (M.A. No.717 of 2015) before the Magistrate. The husband filed a reply and, on 7 November 2016, an application contending that proceedings under the DV Act must be dealt with in the manner laid down under Section 125 of the Code of Criminal Procedure, 1973, and that the wife was not entitled to file an affidavit-in-evidence but must step into the witness box. The learned Magistrate dismissed the husband's application, holding that Section 28(2) of the DV Act permits the court to lay down its own procedure and that, given the object of the Act and the time frame for disposal, examination-in-chief on affidavit is permissible. Aggrieved, the husband filed the present writ petition. The High Court considered the submissions of both sides, including the petitioner's reliance on Section 28(1) read with Rule 6(5) of the DV Rules, 2006, and the respondent's reliance on Section 28(2). The court held that Section 28(2) empowers the court to adopt its own procedure, and the Magistrate's order permitting affidavit-in-evidence was justified to expedite proceedings and fulfill the Act's objectives. The petition was dismissed, and the rule was discharged.
Headnote
A) Domestic Violence - Procedure - Affidavit-in-Evidence - Section 28(2) Protection of Women from Domestic Violence Act, 2005 - The court 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, and considering the object of the Act and the time frame for disposal, it is permissible to conduct examination-in-chief on affidavit. The learned Magistrate was justified in permitting the respondent-wife to file her affidavit-in-evidence. (Paras 2-5) B) Domestic Violence - Procedure - Section 28(1) read with Rule 6(5) of DV Rules, 2006 - The petitioner argued that evidence must be recorded in the manner prescribed for summons cases, but the court held that Section 28(2) overrides the general procedure and allows flexibility to achieve the Act's objectives. (Paras 6-7)
Issue of Consideration
Whether in an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the applicant can be permitted to file affidavit in evidence.
Final Decision
The petition is dismissed. The order of the learned Magistrate permitting the respondent-wife to file affidavit-in-evidence is upheld. Rule is discharged.
Law Points
- Section 28(2) of the Protection of Women from Domestic Violence Act
- 2005 empowers the court to lay down its own procedure for disposal of applications under Section 12
- permitting affidavit-in-evidence to expedite proceedings
- Section 28(1) read with Rule 6(5) of the DV Rules
- 2006 does not mandate oral examination-in-chief in summons case manner
