PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 — Ss. 12, 23, 28(1), 28(2) —
CODE OF CRIMINAL PROCEDURE, 1973 — Ss. 125, 126 —
EVIDENCE — EXAMINATION-IN-CHIEF — AFFIDAVIT — PERMISSIBILITY
Domestic Violence proceedings — Examination-in-chief by affidavit — Objection that oral evidence alone is permissible — Rejection of objection by Magistrate and Sessions Court — Validity.
(Paras 1–2, 6)
Procedure under DV Act — S.28(1) makes CrPC applicable — S.28(2) enables Magistrate to lay down own procedure for applications under Ss.12 and 23 — Provision held enabling and discretionary — Departure from CrPC procedure permissible to achieve object of Act.
(Paras 7, 8, 10)
Evidence by affidavit — DV Act does not expressly prohibit affidavit evidence — Power under S.28(2) wide enough to permit examination-in-chief by affidavit — Such procedure does not vitiate proceedings.
(Paras 8, 10)
Beneficial legislation — Object of DV Act is to provide speedy and effective relief to women victims of domestic violence — Procedural flexibility to be interpreted to advance legislative intent.
(Paras 7, 8)
Concurrent orders of Magistrate and Sessions Court — No illegality or perversity — Interference under Article 226 not warranted — Petition dismissed at admission stage.
(Paras 10, 11)
ANALYSIS OF FACTS
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Respondents filed Criminal Misc. Application No.27 of 2019 under Section 12 of the DV Act, along with an application under Section 23, seeking interim reliefs. (Para 2.1)
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The learned JMFC, Talala partly allowed interim maintenance by order dated 22-11-2021. (Para 2.1)
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During pendency of proceedings, the applicants filed Exh.32, objecting to the respondents’ examination-in-chief by affidavit and sought a direction to record oral evidence instead. (Paras 2.1, 6)
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The JMFC rejected the objection on 08-08-2022, which rejection was affirmed by the Sessions Court on 30-12-2022. (Paras 1, 2.2)
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The applicants challenged both orders contending that affidavit evidence is impermissible under CrPC and Evidence Act, and that S.28 DV Act mandates criminal procedure. (Paras 4, 5)
ANALYSIS OF LAW
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Section 28(1) of the DV Act applies the CrPC to proceedings under the Act, but Section 28(2) expressly authorises the Magistrate to lay down his own procedure for disposal of applications under Sections 12 and 23. (Paras 5, 8)
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The Court emphasised the object and scheme of the DV Act, noting that it is a beneficial social welfare legislation intended to provide speedy and effective relief to women facing domestic violence. (Para 7)
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Relying upon precedents, including Aniket Subhash Tupe v. Piyusha Aniket Tupe and Manish Kumar Soni v. State of Bihar, the Court held that:
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S.28(2) overrides rigid procedural requirements;
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CrPC procedure under S.28(1) is directory;
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Deviation does not vitiate proceedings. (Paras 8, 9)
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Though the DV Act does not specifically provide for affidavit evidence, the discretion under S.28(2) enables the Magistrate to permit examination-in-chief by affidavit to further the purpose of the Act. (Paras 8, 10)
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The Court found no error or illegality in the concurrent findings of the courts below. (Para 10)
RATIO DECIDENDI
Section 28(2) of the Protection of Women from Domestic Violence Act, 2005 empowers the Magistrate to deviate from the procedure prescribed under the Code of Criminal Procedure and to devise an appropriate procedure for disposal of applications under Sections 12 and 23; in exercise of such discretion, permitting examination-in-chief by affidavit is legally permissible and does not vitiate the proceedings, particularly having regard to the beneficial object of the Act to provide speedy and effective relief to women victims of domestic violence.
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