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2019 DIGILAW 320 (KER)

Nirmala v. State of Kerala

2019-04-03

ALEXANDER THOMAS

body2019
ORDER : ALEXANDER THOMAS, J. 1. The prayer in the above captioned Crl.M.C seeks filed under Section 482 of Code of Criminal Procedure to quash the impugned Anenxure-D order dated 23.02.2019 rendered by the Judicial First Class Magistrate Court, Thripunithura in M.C.No.20/2018 whereby the plea of the petitioner (application for M.C.), for opportunity to adduce the petitioner's evidence by submission of proof affidavit has been denied on the ground that there is no provision in the Protection of Women from Domestic Violence Act, 2005 (PWDV) for taking referred to said the procedure. 2. Heard Shri.V.C.Rajesh, the learned counsel appearing for the petitioner and Shri.Saigi Jacob Palatty, the learned Public Prosecutor appearing for the first respondent State and Shri.N.G.Sunil, the learned counsel appearing for contesting respondents 2 and 3. 3. The petitioner has filed an application as M.C.No.20/2018 before the Judicial First Class Magistrate Court, Thripunithura under the provisions of Sec.12 of the Protection of Women from Domestic Violence Act, 2005, seeking various reliefs under sections 18, 20, 22 and 23 of the above said Act (DV Act). 4. The respondents 2 and 3 herein are the respondents in the above M.C. The petitioner is the wife of the 2nd respondent and the mother of the 3rd respondent (son). Among the various reliefs under the DV Act, petitioner also seeks grant of maintenance. Though the notices has been duly served on the above said respondents in the M.C, they had not turned up and consequently the learned Magistrate had set them ex-parte. Thereafter, petitioner has filed Annexure-C, Ex-parte proof affidavit in the above proceedings so as to adduce the evidence. However, the learned Magistrate by the impugned Annexure-B order dated 22.11.2018 has rejected to accept the said proof affidavit on the ground that there is no provisions in the PWDV Act to accept the proof affidavit in lieu of the examination in chief and accordingly, the proof affidavit was not accepted and the petitioner was directed to adduce the oral evidence. It is this order at Annexure-D that is under challenge in this proceedings. Section 28 of the DV Act 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). Section 28 of the DV Act 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 sub-section (2) of Section 23. 5. The Apex Court in the judgment in kunapareddy Alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari and another (2016) 11 SCC 774 has held in paragraph 12 of the said judgment that in fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complaint i.e. aggrieved person. Intention is to protect women against violence of any kind, especially that occurring within the family, as the civil law does not address this phenomenon in its entirety. Eventhough, Sec.498A of the IPC is a criminal offence, the purpose of enacting the DV Act is to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality. In paragraph 14 of the Kunapareddy's case, the Apex Court has held that Section 28 of the DV Act gain significance and whereas proceedings under certain sections of the DV Act as specified in Section 28(1) are to be governed by the Code of Criminal Procedure, the legislature at the same time has incorporated the provisions like Section 28(2) which empowers the Court to lay down its own procedure for disposal of the application under Section 12 or Section 23(2) of the DV Act. The provisions has been incorporated by the legislature keeping a definite purpose in mind. The provisions has been incorporated by the legislature keeping a definite purpose in mind. Under Section 12, an application can be made to a Magistrate by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to claim one or more relief under this DV Act, etc. 6. This Court in the judgment in Saramma Shyju v. Shyju Varghese and others [ 2011 (3) KHC 235 : 2011 (2) KLD 126] has held in paragraph 2 thereof that the proceedings before the learned Magistrate as per Section 12 or Section 23 of the DV Act is in essence and substances one of the civil nature. 7. The Bombay High Court in the decision in Ankit Subhash Tupe v. Piyusha Aniket Tupe and another [2018 KHC 4289 : 2018 CriLJ 3316] has held that the DV Act is a beneficial piece of social welfare legislation aimed at providing to victims of domestic violence speedy reliefs, which are civil in nature and Sec.28(2) of the DV Act with words plain, simple and unambiguous gives flexibility to Court to depart from procedure prescribed under Section 28(1) and to devise its own procedure in deciding application under Sec.12 or Sec.23(2) of the Act. This enabling provision, contained in Sec.28(2) of the Act, would override the provisions in Sec.28(1) of the DV Act and Rule 6(5) of the DV Rules. It was held that Sec.28 of the DV Act enables the court to permit the parties to filed affidavit-in-evidence in the proceedings filed under Sec.12 of the D.V.Act. Accordingly, the Bombay High Court held in paragraph 19 of the said judgment that "a cumulative reading of Section 28(1) r/w Rule 6(5) indicates that in deciding the application under Section 12,the Court has to follow the procedure procedure prescribed under Section 126 of the Cr.P.C and thus, record evidence in presence of the parties. It is however to be noted that sub-section (2) of Section 28 clearly provides that "Nothing in sub-section (1) shall prevent the Court from laying Crl.MC.No. 1741 of 2019 7 down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23". It is however to be noted that sub-section (2) of Section 28 clearly provides that "Nothing in sub-section (1) shall prevent the Court from laying Crl.MC.No. 1741 of 2019 7 down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23". The opening words of sub-section (2) of Section 28 "Nothing in sub-section (1) shall prevent the Court" clearly indicate that notwithstanding the procedure prescribed in 28(1) r/w Rule 6(5) the Court is empowered to lay down its own procedure in deciding the application under Section 12 or 23(2) of the D.V Act. In the light of the above said aspects, the Bombay High Court has categorically held in paragraph 29 of the said decision that keeping in mind the aim and object of the Act and scope of Section 28(2), the Court can deviate from procedure prescribed under sub-section (1) of Section 28 r/w Rule 6(5) and devise its own procedure, which would include permitting evidence by way of an affidavit. In other words, the Court in its discretion can allow evidence on affidavit and permit cross-examination to test veracity of the evidence. 8. After hearing all the parties concerned, this Court is in respectful concurrence with the above said considered views of the Bombay High Court rendered in Ankit Subhash Tupe (supra). Section 28(1) stipulates that the same as otherwise provided the Act, all proceedings under Section 12, 18, 19, 20, 21, 22 and 23 and offence under Section 31 shall be governed by the Provisions of the Code of the Civil Procedure, 1973. However, subsection 2 of Section 28 make a inroad into the clause provisions in Sec.28(1) and that it is categorically mandated therein that nothing in Sec. 28(1) shall prevent the Court from laying down its own procedure for disposal of an to dismiss the application under Section 12 or under Section 23(2) of the DV Act. However, the rigour of Ext.28(1) could be strictly followed as far as the proceedings under the other provisions of the Act as in Section 18, 19, 20, 21, 22 and 31 as afore mentioned Section 28(1) of the Act is concerned. 9. Accordingly, it is only to be held that the impugned rejection order as per Annexure-B is illegal and improper and the same will stand set aside. 10. 9. Accordingly, it is only to be held that the impugned rejection order as per Annexure-B is illegal and improper and the same will stand set aside. 10. The learned Counsel for respondents 2 and 3 submits that they could not appear before the Court below, due to certain unforeseen reasons and that this Court may permit them to file separate application to set aside the ex-parte order, so that they could also participate in the proceedings an as to avail a reasonable opportunity of being heard in the matter. The learned counsel for the petitioner on the basis of instructions of the party has fairly not opposed to said plea of the contesting respondents 2 and 3. However, inorder to obviate further delay this Court has queried to the parties concerned as to whether this court learning that aspect of the matter to the learned Magistrate dealing with the DV Act application whether this Court pass appropriate orders on that issue, instead of delaying the matter by learning it to the learned Magistrate. The learned counsel for the petitioner and the learned counsel for the respondents 2 and 3 would it would be better that this Court may pass such orders on that issue. Accordingly, it is also ordered that the proceedings of the learned Magistrate to extent contesting respondents 2 and 3 have been set ex-parte will stand set aside. The contesting respondents 2 and 3 will file their written objections/counter statements, etc., as the case may be, in the above said proceedings before the learned Magistrate without any further delay, at any rate, within 3 weeks from the date notified for receiving certified copies of this judgment. Time in that regard is granted to the contesting respondents 2 and 3 as last chance. Since what has been filed by the petitioner in Annexure-C filed is ex-parte proof affidavit, petitioner may ensure that after the written objections/counter statements of contesting respondents 2 and 3 is filed, the petitioner may file proof affidavit in the matter and copies there of should be given in advance to the contesting respondents 2 and 3. Parties also submit that they are amended to seek mandatory efforts. 11. Accordingly, it is ordered that the learned Magistrate will also ensure that after completion of the pleadings and after filing of the proof affidavit, parties may be referred to the nearest mediation center. Parties also submit that they are amended to seek mandatory efforts. 11. Accordingly, it is ordered that the learned Magistrate will also ensure that after completion of the pleadings and after filing of the proof affidavit, parties may be referred to the nearest mediation center. Thereupon, the learned Magistrate will pass necessary orders to refer the parties to the nearest mediation centre. The mediation centre will endeavor to complete the mediation process within six weeks. The mediation centre may furnish report regarding the final outcome of the mediation process to the learned Magistrate concerned without delay. If the mediation process is successful, then the learned Magistrate may pass orders, so as to ensure that the matter stands regulated and governed by the terms and conditions of the mediated settlement. On the other hand, if the mediation process is not successful then the matter will have to be decided by the learned Magistrate, on merits, after opportunity to both sides to adduce evidence. etc. With the above observations and directions the above Crl.M.C stands disposed of.