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Madhya Pradesh High Court · body

2010 DIGILAW 488 (MP)

Arif Ahmad Quraishi v. Shajia Quraishi

2010-04-28

P.K.JAISWAL

body2010
ORDER P.K. Jaiswal, J. Heard. 1. Petitioners in this petition under Section 482 of Cr.P.C. is praying for quashment of order dated 4.3.2010 passed by IV Additional Sessions Judge, Gwalior in Criminal Revision No. 79/2010 whereby the learned revisional court affirmed the order dated 1.2.2010 passed by learned judicial Magistrate First Class, Gwalior in Criminal Case No. 2694/09. 2. The sole contention of the learned counsel for the petitioners is that the learned Magistrate erred in taking cognizance of the application filed by respondent No. 1 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act") without calling for the report from the Protection Officer. 3. The learned counsel for the petitioners while reiterating the above said contentions put forth in the petition submitted that the proceedings pending on the file of the learned Magistrate are liable to be quashed for not following the mandatory provisions contained in the Act. 4. Before considering the above said contentions put forth by the petitioners, it is necessary to refer the relevant provisions of the Act. Sections 12 and 13 of the Act read as follow : 12. 4. Before considering the above said contentions put forth by the petitioners, it is necessary to refer the relevant provisions of the Act. Sections 12 and 13 of the Act read as follow : 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 subsection (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 subsection (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. 13. Service of notice- (1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent; and on any other person, as directed, by the Magistrate within a maximum period of two days or such further reasonable. time as may- be allowed by the Magistrate from the date of its receipt. (2) A declaration of see-vice of notice made by the Protection officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved. 5. Before making an endeavour to ascertain the purport and scope of the provisions contained in Sections 12 and 13 of the Act, it will be useful to refer to the objects in enacting the above said Act. The statement of objects and reasons reads as follows : Statement of Objects and Reasons.- Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All forms of Discrimination Against Women: (CEDAW) in its General. Recommendation No.XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family. 2. The phenomenon of domestic violence is widely prevalent but has remained largely 'invisible in the public domain, Presently, where a women is subjected to cruelly by her husband or his relatives, it is an offence under section 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety. 3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide fora remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. 6. In construing the provisions of the Act, the Court has to bear in mind that it is a beneficent piece of social welfare legislation aimed at promoting and securing the well-being of the aggrieved persons and the Court will not adopt a narrow interpretation which will have the effect of defeating :the very object and purpose of the Act. 6. In construing the provisions of the Act, the Court has to bear in mind that it is a beneficent piece of social welfare legislation aimed at promoting and securing the well-being of the aggrieved persons and the Court will not adopt a narrow interpretation which will have the effect of defeating :the very object and purpose of the Act. It must be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim. 7. Keeping, the above said principles in mind, if the provisions contained in Sections 12 and 13 of the Act are considered with reference to the contentions put forth by the learned counsel for the petitioners, this Court without any hesitation comes to a conclusion that the said contentions put forth-by the counsel for the petitioners have to be rejected at a threshold. A reading of Section 12(4) of the Act shows that 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. Section 12(5) of the Act stipulates that 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. Since the Act provides for the disposal of the application filed by the aggrieved person in a time bound manner, to achieve that object, provision have been incorporated under Section Section 13 of the Act. Section 13 of the Act provides that a notice of the date of hearing fixed under Section 12 of the Act shall be given by the Magistrate to the Protection Officer who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period- of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt. A declaration of service of notice made by the Protection Officer in the form set out by the Central Government by rules shall be a proof of service of notice. Since as per Section. A declaration of service of notice made by the Protection Officer in the form set out by the Central Government by rules shall be a proof of service of notice. Since as per Section. 12(5) of the Act, it is the bounden duty of the Magistrate to make an endeavour to dispose of the application within a period of sixty days from the date of its first hearing, unless the service of notice is completed at the earliest, it may not be possible to dispose of the application within the above said stipulated time.: Therefore;.- Section 13 of the Act provides for service of notice on, the -respondent through the Protection Officer and such notice shall be-served within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate. In this context, it will be useful to refer Section 28 of the Act, which reads as follows: 28. Procedure- (1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under subs-section (2) of Section 23. 8. A reading of the Above said provision shows that sub-section 2 envisages that the Court may lay down its own procedure for disposal of an application. Thus, it is clear that apart from following the procedure provided under Sections 12 and 13 of the Act, it is open to the Magistrate to follow its own procedure for disposal of applications field under this Act. 9. The proviso to Section 12 of the Act provides that before passing any order on the application filed under Section 12(1) of the Act, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer. In this case, admittedly, the Protection order has not so far been passed and it is yet to be passed. The contention of the learned counsel for the petitioner is that the application itself should not have been taken cognizance in the absence of the domestic incident report from the Protection Office. A reading of Section 12 of the Act does not warrant such an interpretation. The contention of the learned counsel for the petitioner is that the application itself should not have been taken cognizance in the absence of the domestic incident report from the Protection Office. A reading of Section 12 of the Act does not warrant such an interpretation. Nowhere, it is provided in the Act that even for taking cognizance of the application filed by the aggrieved person, the receipt of the domestic incident report from the Protection Officer is a condition precedent. Therefore, the contention of the learned counsel for the petitioner is untenable and does not merit acceptance. 10. As stated above, this Act being a beneficent piece of legislation enacted for providing minimum relief to an aggrieved person affected by domestic violence, even if there is any minor procedural deviation such minor procedural deviation being technical in nature, need not be taken serious note off and on that ground, the proceedings pending under the Act cannot be quashed. 11. For the above mentioned reasons, no case for quashment of impugned order dated 4.3.2010 passed by the revisonal court is made of. The petition is liable to be dismissed and accordingly dismissed. With the aforesaid M.Cr.C No. 1602/2010 is accordingly dismissed.