Research › Search › Judgment

Gujarat High Court · body

2010 DIGILAW 380 (GUJ)

Bipin Prataprai Bhatt v. Union of India

2010-08-23

K.M.THAKER, SUDHANSU JYOTI MUKHOPADHAYA

body2010
Judgment S.J. Mukhopadhaya, CJ.—The petitioner has challenged the proceeding in Criminal Miscellaneous Application No. 552 of 2009 initiated under Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Domestic Violence Act’) and prayed to declare Section 26(1) of the Act ultra vires of Article 20 of the Constitution of India. 2. On hearing the counsel for the petitioner, as no prima facie case was found to have been made out, no separate notice was issued on the respondents or learned Advocate General. 3. 1st petitioner - Bipin Prataprai Bhatt (husband) married with the 3rd respondent - Kiranben Bipinbhai Bhatt (wife). 2nd and 5th petitioners are in-laws of 3rd respondent. The marriage took place on 04.06.1998, but the same did not proceed smooth. 4. According to petitioners, the 1st petitioner has already taken divorce from the 3rd respondent by an agreement dated 06.12.1999 and thereafter he has married to one Meena on 17.01.2000, who is the sister of 3rd respondent (wife). 5. It appears that a proceeding under Section 125 was filed by the wife for maintenance, wherein the J.M.F.C., Gandhinagar, by order dated 19.01.2004, awarded maintenance of Rs. 500/- p.m. with effect from September 2000 and a sum of Rs. 700/- p.m. with effect from October 2001. The same was enhanced at the instance of the wife to Rs. 3,000/- p.m. 6. It further appears that a criminal case has been lodged by 3rd respondent (wife) against the 1st petitioner (husband) and his second wife Meena (2nd petitioner herein) for offences punishable under Sections 494, 497, 498, 465, 471 and 114 of the Indian Penal Code. The same is pending. Another Criminal Miscellaneous Application No. 552 of 2009 has been filed by wife - 3rd respondent under the provisions of Domestic Violence Act. The petitioner filed petition under Section 482 of the CrPC in Criminal Miscellaneous Application No. 10577 of 2009 for quashing the same, but having not granted any relief, the same was withdrawn and thereafter same very proceeding has been filed under the writ jurisdiction of this Court while challenging the constitutional validity of Section 26(1) of the Domestic Violence Act. 7. 7. The only plea taken by learned counsel for the petitioner is that the offence having taken place between the year 1999 and 2004 much prior to enactment of the Domestic Violence Act, initiation of proceeding under Section 26(1) is bad and it is violative of Article 20(1) of the Constitution of India. He would contend that there being a specific prohibition under Section 20(1) of the Constitution to prosecute a person on the basis of new law for the old offence, Section 26(1) is violative of Article 20(1) of the Constitution. 8. From the Statement of Objects and Reasons of the Domestic Violence Act, it will be evident that domestic violence is a human right issue and is a serious deterrent to development. After the Vienna Accord, 1994, followed by Beijing Declaration and the Platform for Action (1995), and after the United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women, the Central Government, having noticed that domestic violence is widely prevalent but has remained largely invisible in the public domain where a woman is subjected to cruelty by her husband or his relatives, except offence under Section 498A of the I.P.C. no civil law exists, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution of India to provide for remedy under the civil law, which is intended to protect the women from being victims of domestic violence and to prevent occurrence of domestic violence in the society. It covers those women who are or have been in relationship with the abuser where both parties have lived together and shared a household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. It provides for right of a women to reside in her matrimonial house or shared household, irrespective of right or title in such home or household; it empowers the Magistrate to pass protection orders in favour of the aggrieved persons to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and from causing violence to the aggrieved person. 9. 9. From Section 26(1) of Domestic Violence Act, it will be evident that the aggrieved person can ask for relief in other suits and legal proceedings as available under Sections 18, 19, 20, 21 and 22 of the said Act. Section 18 empowers the Magistrate to pass a protection order prohibiting respondents from committing any act of domestic violence, aiding or abetting in the commission of acts of domestic violence, entering a place of employment of the aggrieved person, etc. Under Section 19, the Magistrate, on being satisfied that domestic violence has taken place, may pass a residence order restraining the respondents from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, irrespective of legal or equitable interest of women in the shared household, etc. Section 20 deals with monetary reliefs which empowers the Magistrate to direct the respondents to pay to the aggrieved women to meet the expenses incurred and losses suffered by aggrieved person and any child of the aggrieved person as a result of the domestic violence. Under Section 21, the custody order of the child or children of the aggrieved person or the person making an application on her behalf can be passed by a Magistrate. Under Section 22, the Court is also empowered to pay compensation. 10. Section 23 empowers the Magistrate to grant interim and ex-parte orders; including the power vested under Sections 18, 19, 20, 21 and 22 of the Domestic Violence Act. All the aforesaid reliefs can be granted under other suits and legal proceedings in view of Section 26 of the Domestic Violence Act, relevant portion of which is quoted hereunder: “26. Relief in other suits and legal proceedings.—(1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.” From the aforesaid provisions of Domestic Violence Act, it will be evident that the reliefs granted are civil in nature and have nothing to do with the conviction for any offence. Under Article 20(1), no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. From the aforesaid provisions, it will be evident that Article 20(1) is attracted only in the matter of conviction for any offence and it do not relate to civil relief as may be granted without any conviction. 11. As it will be evident that Sections 18 to 22 of the Domestic Violence Act relate to relief, which can be sought for even from civil Court and they are civil in nature, the petitioner cannot derive the advantage of Article 20(1) of the Constitution to challenge the validity of Section 26 of the Domestic Violence Act. 12. Further, no case having been made out to quash the proceeding initiated under Domestic Violence Act and such relief having been earlier sought for in a petition under Section 482 of the CrPC and having withdrawn, this Court is not inclined to interfere with the proceeding in which relief has been sought by respondent-wife. In absence of any merit, writ petition is dismissed. No costs.