PROCEDURE OF FILING APPLICATION UNDER SECTION 12 OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

Section 12 provides procedure for filing Application under seeking one or more reliefs under Protection of Women from Domestic Violence Act, 2005.

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 sub-section (1) may include a relief for issuance of an order for payment of compensation of 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 sub-section (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.

This Section provides for procedure for filing application for availing reliefs under this Act. An Application under Section 12 of the Act can be filed by an aggrieved person or a protection officer or any other person on behalf of the aggrieved person before the magistrate. Locus standi to file complaint before the magistrate has been relaxed to the extent that even protection officer or any other person on behalf of the aggrieved person can file a complaint before the magistrate under the Act. Thus access to justice has been made easier for the aggrieved person. In such application, one or more reliefs available under the Act can be sought. Before passing an order on such application, the magistrate has to consider the domestic incident report filed by the protection officer or the service provider.

Under the application, the aggrieved person or a protection officer or any other person on behalf of the aggrieved person can also seek for payment of compensation or damages. Such relief does not in any way restricts the right of the aggrieved person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent. It is pertinent to mention that this Act provides additional remedy and it does not disturb rights of aggrieved person to approach other forums.

If a decree for any amount as compensation or damages has been passed by any court in favour of an aggrieved person and an order is also passed by the magistrate for an amount to be paid to aggrieved person, such amount has to be set off against the amount payable under the decree. Balance amount, if any, is executable as decree, notwithstanding, anything, contained in the Code of Civil Procedure, 1908.

An application before the magistrate has to be made in prescribed form or as nearly as possible thereto. The magistrate has to fix the first date of hearing not beyond three days from date of receipt of application by the court.The magistrate has to make endeavour to dispose of every application within a period of sixty days from date of its first hearing. It seems that time line of 60 days is ambitious in light of huge number of pendency of cases before courts. Further this timeline of 60 days is only directory in nature and the magistrate is not bound to dispose of applications under 60 days.

Rule 6 of Protection of Women from Domestic Violence Rules, 2006 provides details of filing Application under Section 12 of the Act.

6. Application to the Magistrate – (1) Every Application of the aggrieved person under Section 12 shall be in form II or as nearly as possible thereto.

(2) An aggrieved person may seek the assistance of the Protection Officer in preparing her application under sub-rule (1) and forward the same to the concerned Magistrate.

(3) In case aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof.

(4) The affidavit to be filed under sub-section (2) of the section 23 shall be filed in Form III.

(5)The Application under Section 12 shall be dealt with and orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure, 1973.

As per Rule 6 every application under Section 12 has to be in Form II or as nearly as possible thereto. Form II, inter alia, consists of details of protection orders under Section 18, residence orders under Section 19, monetary reliefs under Section 20, custody order under Section 20 and compensation order under Section 22, which an aggrieved person may be seeking.

An aggrieved person may seek assistance of the protection officer in preparing her Application. If an aggrieved person is an illiterate person, the protection officer has to read over the application and explain its contents to the aggrieved person.

Under sub-section 2 of Section 23 of the Act, the magistrate has been empowered to pass ex parte orders against the respondent, if application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence. But such ex parte orders can only be granted on the basis of an affidavit. Such affidavit has to be in Form III.

APPLICABILITY OF PROCEDURE UNDER SECTION 125 Cr.P.C. ON DOMESTIC VIOLENCE APPLICATION

As per Rule 6 (5) of the Protection of Women from Domestic Violence Rules, 2006, application under Section 12 has to be dealt with and orders enforced in the same manner as laid down under Section 125 of Code of Criminal Procedure. Applicant under Section 12 of this Act has not to be proceeded as regular complaint under the Code of Criminal Procedure, 1973. Section 125 of Code of Criminal Procedure, 1973 provides a summary proceedings to deal with applications filed thereunder. Bombay High Court in Abhijit Bhikaseth Auti vs. State of Maharashtra and Ors. 2009CriLJ889 has observed as under :

9. Form II of the said Rules incorporates a format of the application under Sub-section (1) of Section 12. The format requires that the nature of reliefs sought shall be incorporated in the application. Sub-rule (5) of Rule 6 provides that an application under

Section 12 shall be dealt with and the orders passed thereon shall be enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the said Code”). The procedure which governs an application under Section 125 of the said Code will apply to the proceedings of an application under Section 12 of the said Act. The procedure contemplated by Chapter IX of the said Code which deals with applications under Section 125 is a summary procedure as indicated by Sub-section (2) of Section 126 of the said Code. Section 128 provides for enforcement of the order of maintenance. Thus, the orders passed by the learned Magistrate under the said Act are enforceable in the same manner as provided under Section 128 of the said Code.

The Supreme Court observed in Geddam Jhansi Vs. The State of Telangana, Special Leave Petition (Criminal ) 9556 of 2022 that in criminal cases relating to domestic vioilence, the complainats and charges should be specific, as far as possible, as against each and every member of family who are accused of such offences and sought to be prosecuted, as otherwise, it may amount to misuse of the stringent criminal process by indiscriminately dragging all the members of the family. There may be situations where some of family members or relatives may turn a blind eye to the violence or harassments perpetrated to the victim and may not extend any helpinng hand to the victim, which does not necessarily mean thant they are also prepetrators of domestic violence, unless the circumstnaces clearly indicate thier involvement and instigation. Hence, implicating all such relatives without making specific allegations and attributing offending acts to them and proceeding against them without prima facie evidence that they were complicit and had actively collaborated with the perpetrators of domestic violence would amount to abuse of process of laws.

DOMESTIC INCIDENT REPORT NOT NECESSARY FOR ISSUING NOTICE

Majority of High Courts are of opinion that the magistrate is not bound to call for report of protection officer before issuing notice to respondents or passing orders. But if domestic incident report has been received by the magistrate then the magistrate is bound to consider the report of the Protection Officer.

In Bhupender Singh Mehra & Anr. vs. State of NCT of Delhi & Anr 2010(4)JCC2939 the High Court of Delhi has taken a view that it was compulsory for magistrate to take into consideration domestic incident report submitted by the protection officer. The relevant portion of the said judgment is reproduced hereunder:

5. An application under Section 12 of Domestic Violence Act has to be treated in accordance with provisions given under the Domestic Violence Act. Domestic Violence Act provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of Domestic Violence Rules. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of violence and when it was committed. The proforma specifies different heads of physical violence, sexual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence. The proforma also provides for filing of documents in support of the application like medico-legal certificate, list of istridhan and other documents. This domestic incident report has to be signed by the aggrieved person. The application under Section 12 is required to be made in form 2 of the Rules wherein the details of various kinds of reliefs and expenses are to be given. Section 27 of the Domestic Violence Act provides which judicial magistrate Court can have jurisdiction to entertain an application under Section 12 of the Act. Where marriage took place outside Delhi and the parties have lived outside Delhi, it is incumbent upon the applicant invoking jurisdiction of Delhi Court to specify how jurisdiction of Delhi Court was made out. No doubt Section 28(2) gives power to the MM of laying down its own procedure for disposal of an application under Section 12 or under Sub-Section 23(2) but the procedure an MM can adopt cannot be violative of the Act itself or violative of principles of natural justice. The procedure adopted by the learned MM of issuing notice to the respondent without even considering domestic incident report and without going through the contents of the application and without specifying as to why each of the respondent named by the applicant was to be summoned, is contrary to the Act. Only those persons can be summoned who have been in domestic relationship with aggrieved person. Under The Protection of Women from Domestic Violence Act, 2005 an aggrieved person does not have liberty to make every relative of the husband as a respondent.

High Court of Delhi in Sambhu Prasad Singh vs. Manjri; 2013 ( 1 ) Crimes 414 ( Del. ) after going through various provisions of the Act has held that magistrate is not bound to call for report of protection officer before issuing notice to respondents, but if domestic incident report has been placed on record, the same has to be considered by the magistrate.

13. The proviso to Section 12 obliges the court to, “before passing any order on such application… take into consideration any domestic incident report received by him from the Protection Officer or the service provider.” The plenitude of the jurisdiction conferred by Section 12 is in no way affected by the proviso; all that it mandates is that before any order is made on an application (under Section 12) the magistrate “shall” take into consideration “any” report made by the Protection Officer. It is one thing to say that Parliamentary mandate to the court is to take into consideration, in every case, a protection Officers‘ report, as a precondition for exercise of jurisdiction – as the petitioner contends-and entirely another to say that if “any” such report is available, it shall be considered. This clear cut difference, in our opinion was lost sight of by the Single Judge in Bhupender Singh Mehra’s case. If Parliament had indeed mandated that in every case the Court was obliged to call for a Protection Officer’s report, and thereafter proceed with the complaint, the structure of Section 12 would have been entirely different. Such intention would have been expressed in more definitive, or imperative terms. In this context, this Court is also unpersuaded by the Petitioner’s argument that Rule 6 and the form appended to the Rules have to be read into Section 12, to discern the precondition urged. This Court sees no need to do so; it would result in artificially curtailing what is otherwise a wide power.

The Hon’ble Court has further observed in the concluding paragraph as under:

18. To conclude we answer the question referred to the Court in the negative; a Magistrate, when Petitioned under Section 12 (1) is not obliged to call for and consider the DIR before issuing notice to the respondent. However, if the DIR has already been submitted, that should be considered, in view of the proviso to Section 12 (1). In view of the fact that the Court has taken a view which results affirming the judgment of the Additional Sessions Judge as well as the concerned Metropolitan Magistrate (who had issued notice under Section 12 without calling for a report from the Protection Officer, and none was on the record) the petition is bereft of merit and it is therefore dismissed.

The High Court of Punjab & Haryana in Eshan Joshi vs. Suman II(2018)CCR449(P&H) has held that if no domestic incident report has been received by the court, then in such an eventuality there is no bar on the court to pass an order under Section 12 of this Act.

19. In the case of Abhiram Gogoi v. Rashmi Rekha Gogoi (2011) 4 Gau LR 276, it was held by Hon‘ble Gauhati High Court that it is not mandatory for a Magistrate to obtain a domestic incident report before the Magistrate passes a maintenance order under Section 18 of the DV Act. A similar view was taken by the Hon’ble Delhi High Court in the case of Shambhu Prasad Singh v. Manjari, 2012(3) R.C.R. (Criminal) 493, that receipt of domestic incident report is not a pre-requisite for issuing a notice to the respondent. Insistence to take into consideration the domestic incident report of protection officer would not apply at the stage of initiation of enquiry under Section 12 of the DV Act, because a Magistrate, on the basis of an application supported by affidavit, on being satisfied can even grant ex parte orders in favour of the aggrieved person under Sections 18, 19, 20, 21 or 22 of the DV Act. Even this High Court in the case Jag-dish Kumar Bakhri v. Manju Bakhri, 2012 SCC Online P&H 395, observed that a bare perusal of Section 12 of the DV Act would signify that it is not mandatory for the Court to call for domestic incident report on each and every date of hearing, before passing any order. If no domestic report is received in the court, then in such eventuality, there is no bar for the court to pass an order under Section 12 of the DV Act. The judgment relied upon by the counsel for the respondent in the case of Dharmendra and others v. State of M.P. and another, is contrary to the judgments referred to by this court. On a reading of the judgment, this court is not inclined to concur with the same.

The Supreme Court has also held in Prabha Tyagi Vs. Kamlesh Devi (Criminal Appeal No. 511 of 2022) that it is not mandatory for the magistrate to consider a domesic incident report. Magistrate can pass interim or final order even in absence of domestic incident report. Relevant para is as under:

It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.

COMPLAINT MAINTAINABLE EVEN IF DOMESTIC VIOLENCE COMMITTED BEFORE ENFORCEMENT OF THE ACT

Even if acts of domestic violence has been committed before coming into force of this Act, and aggrieved person is no longer living with the respondent, the Complaint under Section 12 is maintainable. Delhi High Court in Savita Bhanot vs. V. D. Bhanot; 2010(2)Crimes300 has observed as under:

7. If the court takes the interpretation that a petition under the provisions of the Protection of Women from Domestic Violence Act, 2005 cannot be filed by a woman unless she was living with the respondent, in the shared household, on the date this Act came into force, or a date subsequent thereto or that a petition under the provisions of the Act cannot be filed by a person who has been subjected to domestic violence before coming into force of the Act, that would amount to giving a discriminatory treatment to the woman who despite living with the respondent and having a domestic relationship with him before coming into force of the Act, is later compelled to live separately from him on account of the acts attributable to the respondent and to the woman who was, prior to coming into force of the Act, subjected to domestic violence, viz a viz, the women who are living with the respondent or women in respect of whom acts of domestic violence are committed after coming into force of the act. There can be no reasonable classification based upon an intelligible differentia between the women who are living with the respondent on the date of coming into force of the Act or who are subjected to domestic violence after coming into force of the Act on one hand and the women who were living with the respondent or who were subjected to domestic violence prior to coming into force of the Act, on the other hand. Therefore, any discriminatory treatment to women in either category would be violative of their constitutional right guaranteed under Article 14 of the Constitution. The court needs to eschew from taking an interpretation which would not only be violative of the rights conferred upon the citizens under Article 14 of the Constitution but would also result in denying the benefit of the beneficial provisions of the Act to the women who have been subjected to domestic violence and are compelled to live separately from the respondent on account of his own acts of omission or commission. Such an interpretation would at least partly defeat the legislative intent behind enactment of the Protection of Women from Domestic Violence Act, 2005, which was to provide an efficient and expeditious civil remedy to them, in order either to protect them against occurrence of domestic violence, or to give them compensation and other suitable reliefs, in respect of the violence to which they have been subjected.

18. For the reasons given in the preceding paragraphs, I am of the considered view that a petition under the provisions of the Protection of Women from Domestic Violence Act, 2005 is maintainable even if the acts of domestic violence have been committed prior to coming into force of the Act or despite her having in the past lived together with the respondent a shared household woman is no more living with him, at the time of coming into force of the Act. It is be open for the Magistrate to pass appropriate order under the provisions of Sections 12, 18, 19, 20, 21, 22 or 23 of the Act on a petition filed by such a woman and the person who commits breach of the protection order or interim protection order passed on an application filed by such a woman will be liable to punishment under Section 31 of the Act.

The said view has been approved by the Supreme Court in V. D. Bhanot vs. Savita Bhanot; (2012)3SCC183.

8. The attitude displayed by the Petitioner has once again thrown open the decision of the High Court for consideration. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming to force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.

In Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori (2014) 10SCC736 the Supreme Court has observed that if domestic violence has been committed subsequent decree of divorce shall will not absolve the respondent from the liability.

30. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief under Section 20 , child custody under Section 21 , compensation under Section 22 and interim or ex parte order under Section 23 of the Domestic Violence Act, 2005.

MAINTAINABILITY OF SECTION 482 Cr.P.C PETITION

Reliefs available under Sections 12, 18, 19, 20, 21, 22 and 23 are civil in nature. Exceptions are only Section 31, wherein breach of protection order has been made an offence and Section 33 wherein Protection Officer can be punished for not discharging duties. But the procedure adopted are that of Code of Criminal Procedure, 1973. Issues have arisen before courts whether the proceedings under the Act are criminal proceedings and whether Section 482 of Code of Criminal Procedure can be invoked to quash the proceedings initiated under the Act. Different High Courts have expressed different views on these issues.

The Supreme Court in Alisha Berry Vs. Neelam Berry observed that there is no justification whatsoever for the Trial Court to have issued bailable warrants in an application filed under provisions of D. V. Act. The proceedings under D. V. Act are quasi criminal which do not have any penal consequence, consequence except where there is a violation or breach of a protection order. Therefore, the learned Magistrate was absolutely unjustified in directing issuance of bailable warrants against the petitioner.

High Court of Bombay in Mangesh Sawant vs. Minal Vijay Bhosale and Ors. 2012BomCR(Cri)458 has held that power under Section 482 of Code of Criminal Procedure, 1973 can not be invoked for quashing the proceedings under Section 12 of the said Act in as the proceedings of the said application cannot be said to be criminal proceedings.

9. Thus, the said Act cannot be said to a penal statute. Merely because the jurisdiction to entertain application under Section 12 has been conferred upon the learned Magistrate, the said Act cannot be termed as a penal statute and the proceedings under the said Act cannot be treated as Criminal proceedings. The power under the Act can be exercised even by a Civil Court or a Family Court.

10. There is no question of the learned Magistrate taking cognizance of a complaint under Section 12 of the said Act. There is no provision for issuing a summons contemplated by Code of Criminal Procedure, 1973 on the application under Section 12. Therefore, power under Section 482 of the said Code cannot be invoked for quashing the proceedings of application under Section 12 of the said Act in as much as the proceeding of the said application cannot be said to be a criminal proceeding. In any case, it is well settled law that the power under Section 482 can be exercised sparingly and in only exceptional cases.

A larger bench of Bombay High Court in Nandkishor Pralhad Vyawahare vs. Mangala 2018(1)BomCR(Cri)449 has over ruled the view taken in Mangesh Sawant vs. Minal Vijay Bhosale and Ors. 2012BomCR(Cri)458. The larger bench has taken a view that proceedings under Protection of Women from Domestic Violence Act, 2005 is predominantly civil in nature but Section 482 Cr.P.C. can be invoked for quashing the same.

56. In the case of Sukumar Gandhi (supra), the Division Bench of this Court, however, held that because the proceedings under Section 12(1) initiated to obtain various reliefs under the Act, mainly being of civil nature, no resort to Section 482 of Cr.P.C. could be taken for the purpose of seeking their quashment. It was of the view that if such an inference is made, it would defeat the very object of the D.V. Act of providing for a speedy and effective remedy for enforcing an amalgamation of civil rights. Accordingly, it held that barring the prosecutions initiated for trying of the offences prescribed under the Act, inherent power of the High Court under Section 482 of Cr.P.C. could not be invoked for quashing of the proceedings. In view of the discussion made and the conclusions drawn in the earlier paragraphs, it is not possible for us to agree with the view so taken by the Division Bench of this Court and we declare it to be an incorrect view. If we accept the opinion of the Division Bench, the result, in our view, would be quite opposite to what has been thought of by it. That apart, making Section 482 of Cr.P.C. as not applicable may also amount to doing harm to plain and clear language of Section 28 of the D.V. Act, which expresses unequivocally and clearly the intention of the Parliament, thereby excluding the possibility of resorting to external aids and other rules of construction.

57. While there is no difference of opinion about what the intention of the Parliament is, our disagreement is with the view that this very intention gets defeated by applying the provision of Section 482 to the proceedings under Section 12(1) of the D.V. Act and it is achieved by removing its applicability. The issue can be examined from a different angle as well.

58. A plain reading of Section 482 of Cr.P.C., which saves inherent power of the High Court, indicates that the power is to be exercised by the High Court not just to quash the proceedings, rather it has to be exercised for specific as well as broader purposes. The exercise of the inherent power has been delimited to such purposes as giving effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This would show that the inherent power of the High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under the Code or to challenge any order of the Court, which amounts to abuse of the process of the Court or generally to secure the ends of justice. This would mean that not only the respondent-man but also the aggrieved person-woman may feel like approaching the High Court to give effect to any order or to prevent abuse of the process of Court or to secure ends of justice. This would show that this power is capable of being used by either of the parties and not just by the respondent seeking quashing of the proceedings under Section 12 of the D.V. Act. If this power is removed from Section 28 of the D.V. Act, the affected woman may as well or equally get adversely hit, and this is how, the very object of the D.V. Act may get defeated.

59. Now, one incidental question would arise as to from what stage the provisions of the Cr.P.C. would become applicable and in our view, the answer could be found out from the provisions of Sections 12 and 13 of the D.V. Act. A combined reading of these provisions shows that the commencement of the proceedings would take place the moment, the Magistrate applies his mind to the contents of the application and passes any judicial order including that of issuance of notice. Once, the proceeding commences, the procedure under Section 28 of the D.V. Act, subject to the exceptions provided in the Act and the rules framed thereunder, would apply. In other words, save as otherwise provided in the D.V. Act and the rules framed thereunder and subject to the provisions of sub-section (2) of Section 28, the provisions of the Cr.P.C. shall govern the proceedings under Sections 12 to 23 and also those relating to an offence under Section 31 of the D.V. Act on their commencement.

Gujarat High Court in Narendrakumar vs. State of Gujarat (2014)2GLR1353) had held that mere use of the provisions of Cr.P.C. for limited purposes of Secs. 12, 18 to 23 and 31 of D.V. Act would not ipso facto attract Sec. 482 of Cr.P.C.:

14.1. From the scheme of D.V. Act, as aforementioned, the emphasis on ‘aggrieved person’, ’domestic violence‘, ’domestic incident report’ is eloquent. As per Sec. 12, aggrieved person or protection officer or any other person on behalf of the aggrieved person is entitled to move an application, and as noticed in Sec. 2(a), ‘aggrieved person” is a woman in domestic relationship with ’respondent’ alleging a commission of domestic violence by such respondent. Thus, the application under Sec. 12 can be moved by or on behalf of a woman suffering from domestic violence. Thus the ’domestic violence‘ is only the cause of action for reliefs under Secs. 17 to 23 of the D.V. Act.

14.2. Further, the provisions are also made for establishment of various facilitators like shelter homes, service providers, protection officers to assist the Magistrate and aggrieved person as also to enhance her knowledge about rights available to her under D.V. Act or I.P.C. or Dowry Prohibition Act. Thus, the remedies contemplated under D.V. Act except the one under Sec. 31 are not remedies under criminal law. Domestic violence may confer a cause upon the aggrieved person to proceed against the ’respondent’ under criminal law and or under D.V. Act. Therefore, though the expression ‘violence’ connotes criminality referable to criminal mindset, the object of act being to assist the aggrieved person suffering from domestic violence by providing to her various reliefs as above and the act of domestic violence not being punishable under D.V. Act, it cannot be said that mere use of expression ‘violence’ would render the applications under Secs. 12, 17 to 24 of the D.V. Act as criminal proceedings. The fact that the civil remedies are provided to aggrieved person is also made eloquent by Objects and Reasons of D.V. Act as well.

14.3. True that the object of Sec. 31 is to punish the offender for violation of protection orders issued under Sec. 18 of D.V. Act. Breach of protection orders is classified as cognizable and non-bailable offence under Sec. 32, and upon testimony of the aggrieved person, the Court may conclude that offence under sub-sec. (1) of Sec. 31 has been committed by the accused. Protection order can be issued under Sec. 16 and its breach is cognizable under Sec. 32. The purpose of Secs. 31 and 32 appears to be to ensure compliance of protection orders, if necessary, by enforcing a ‘criminal machinery against the offender. It is only while hearing a case under Sec. 31 that a charge can be framed also under Sec. 498A of I.P.C. or any other provision of that Code or the Dowry Prohibition Act, as the case may be, on disclosure of the commission of an offence under those provisions. Pertinently, except in relation to few provisions like Secs. 5 and 31, there is no reference to the expression ’offence‘, ’crime‘ or the like in entire D.V. Act. Therefore, even by virtue of doctrine of exclusion, an inference that none of the commissions or omissions except those made specifically punishable, the D.V. Act not intended to punish the ’respondent’.

14.4. For the foregoing reasons, it cannot be said that the acts or omissions constituting ’domestic violence‘ as defined in Sec. 3 of D.V. Act constitute an offence under D.V. Act so as to attract Sec. 4(2) of Cr.P.C.

14.5. In contrast, in order to attract Sec. 4(2) of Cr.P.C., the commissions or omissions complained of must necessarily be an offence as defined in Sec. 2(n) of Cr.P.C. Reference to various terms as quoted in Para 13.1 of this judgment as also the constitution of various Courts to try offences; the procedure to investigate or inquire into the offences; obligations cast upon the police or others for prevention and detection of offences; provisions for maintenance of public order and tranquility etc., all go to indicate that predominant object of Cr.P.C. is to provide for the procedure to deal with offences. Since the scheme of Cr.P.C. predominantly prescribes a procedure to try offences, Sec. 482 of Cr.P.C. also can be applied in relation to offences and not in relation to civil proceedings.

14.6. The procedure contemplated under Sec. 28 of D.V. Act applying the Criminal Procedure Code to the proceedings under Secs. 12, 18 to 23 and 31 of D.V. Act would not ipso facto attract Sec. 482 of Cr.P.C. Having regard to the scheme of D.V. Act, Sec. 28 while adopting the provision of Cr.P.C. intends to apply procedure necessary for passing orders for securing the civil rights contemplated under Secs. 12, 18 to 23 of D.V. Act. To illustrate, a Magistrate may issue the summon or warrant for securing the presence of ’respondent’ as defined in Sec. 2(q) of the D.V. Act. Pertinently, Sec. 28, while referring to various provisions of D.V. Act prefixes the expression ‘offence’ to Sec. 31 only thus making the intent of the act very specific and eloquent. In other words, the expression ‘offence’ is prefixed to Sec. 31 as referred to in Sec. 28, while the said expression is omitted in Sec. 28 in reference to other provisions of D.V. Act, because Sec. 31 declares the breach of protection order an offence and other provisions do not. Further, under the very provision, Magistrate is empowered to prescribe its own procedure as well in which event the Magistrate may not have to rely upon Cr.P.C.

14.7. Thus, mere use of the provisions of Cr.P.C. for limited purposes of Secs. 12, 18 to 23 and 31 of D.V. Act would not ipso facto attract Sec. 482 of Cr.P.C.

14.8. Further, ’domestic violence‘ as defined in Sec. 3 of the Act has attributes of crime inasmuch as such acts may constitute an offence under one or other provisions of I.P.C. The Magistrate is one of the authorities contemplated under Cr.P.C. to deal with offences. It appears, that keeping the above aspect in view, it was deemed appropriate to authorise a judicial mind well-versed with the procedure dealing with crime, also to deal with the proceedings arising under D.V. Act since criminal acts as defined under Sec. 3 of D.V. Act give rise to cause of action under that Act. Furthermore, in case of breach of protection orders, the Magistrate is empowered to proceed under Sec. 31 of D.V. Act and also to frame charge for the offence under Sec. 498A of I.P.C. Therefore also it appears that the Magistrate has been selected as competent judicial authority to deal with the proceedings arising under D.V. Act and the Court of Sessions is contemplated as competent appellate authority. Thus, merely because judicial authorities contemplated under Cr.P.C. are found competent to deal with the proceedings arising under D.V. Act, it cannot be argued that such proceedings deal with crime.

15. The decision relied upon by learned Counsel for the petitioners in Inderjit Singh Grewal (supra) does not address the question as above. It merely invokes Sec. 468 of Cr.P.C. in a case arising under D.V. Act. Therefore, cannot be cited as an authority laying down the proposition of law discussed by this Court as above.

High Court of Gujarat in Suo Motu Vs. Ushaben Kishorbhai Mistry: 2016ALLMR (Cri)293 of 2015 has held that prior of initiation of proceedings under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act, any affected person may file Application under Artilce 226 of the Constitution. Once initiation of proceedings under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act, either independently or jointly on account of any judicial order passed by the learned magistrate including issuance of notice, such proceedings shall be governed by the Code of Criminal Procedure and remedies under criminal procedure will be available including remedy under Section 482 of Code of Criminal Procedure, 1973.

27. In view of the aforesaid observations and discussion, the following conclusions:

(i) The provisions of the Act provide for remedial measures for civil rights of women but the machinery provided is through criminal court.

(ii) Initiation of proceedings under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act would begin only when the Magistrate has passed any judicial order including of issuance of notice for hearing.

(iii) Any person affected by any proceedings under the Act, prior to initiation of proceedings under Section 12 of the Act may prefer Special Criminal Application under Article 226 of the Constitution if as per him, the proceedings are beyond the scope and ambit of the Act or without any authority in law. But this Court, while entertaining the petition under Article 226 of the Constitution may decline entertainment of the petition by way of self-imposed restriction in exercise of the judicial powers or may decline entertainment of the petition in exercise of its sound judicial discretion.

(iv) Once proceedings are initiated under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 either independently or jointly on account of any judicial order passed by the learned Magistrate including issuance of notice, such proceedings shall be governed by the code of Criminal Procedure coupled with the power of the Court under Section 28 (2) to lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23 of the Act.

(v) Once the applicability of the Code of Criminal Procedure has started on account of any judicial order passed by the learned Magistrate including issuance of notice either under Section 12 or 18 or 19 or 20 or 21 or 22 or 23 or 31 of the Act independently or jointly, remedial measures to the aggrieved person as provided under the Code of Criminal Procedure, 1973 can be said as available. But the higher forum under the Code of Criminal Procedure, may be the Court of Session or the High Court, may decline entertainment of such proceedings considering the facts and circumstances of the case and as per the settled principles of law and in accordance with law.

(vi) The aforesaid remedial measures provided under the Code of Criminal Procedure would also include the powers of this Court under Section 482 of the Code, but the Court may, in a given case, decline entertainment of the petition when there is express remedy provided under the Code of Criminal Procedure or no case is made out to prevent the abuse of process of any Court, or no case is made out to secure the ends of justice.

DOMESTIC VIOLENCE APPLICATION CAN BE AMENDED

An Application under Section 12 of the Act can be amended. The Court is not powerless to allow amendment of application under Section 12 of the Act. The Supreme Court in K unapareddy@Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari; ( 2016 ) 11 SCC 774 has observed as under:

18. What we are emphasizing is that even in criminal cases governed by the Code, the Court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned Counsel for the Appellant, therefore, that there is no power of amendment has to be negated.

19. In this context, provisions of Sub-section (2) of Section 28 of the DV Act gain significance. Whereas proceedings under certain Sections of the DV Act as specified in Sub-section (1) of Section 28 are to be governed by the Code, the Legislature at the same time incorporated the provisions like Sub-section (2) as well 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. This provision 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 reliefs under the said Act. Section 23 deals with the power of the Magistrate to grant interim and ex-parte orders and Sub-section (2) of Section 23 is a special provision carved out in this behalf which is as follows:

(2). If the Magistrate is satisfied that an application prima facie discloses that the Respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the Respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person Under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the Respondent.

20. The reliefs that can be granted by the final order or an by interim order, have already been pointed out above wherein it is noticed that most of these reliefs are of civil nature. If the power to amend the complaint/application etc. is not read into the aforesaid provision, the very purpose which the Act attempts to sub-serve itself may be defeated in many cases.

APPLICABILITY OF LIMITATION ON DOMESTIC VIOLENCE APPLICATION

This Act does not prescribe any limitation period for filing of application under Section 12. Procedure under the Act is governed by Code of Criminal Procedure, 1973. Issues have arisen before the Court whether limitation period as prescribed under Section 468 of the Code of Criminal Procedure, 1973 is applicable or provisions of Limitation Act, 1963 are applicable on an Application filed under Section 12 of this Act.

The Supreme Court in Inderjit Singh Grewal vs.State of Punjab and Ors. (2011)12SCC588 has held that provisions of Section 468 of Code of Criminal Procedure, 1973 is applicable on Applications under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Code of Criminal Procedure, that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Code of Criminal Procedure applicable and stand fortified by the judgments of this Court in Japani Sahoo v. Chandra Sekhar Mohanty AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida and Ors. (2011) 6 SCC 508.

The Supreme Court in Krishna Bhatacharjee vs Sarathi Choudhury And Anr; ( 2016 ) 2 SCC 705 has held that limitation will not apply to domestic violence cases, which are in nature of continuing offences.

31. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realization of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the 2005 Act came into force. In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act.

“Economic abuse” as it has been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which have been reproduced hereinbefore, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal (supra) that Section 498 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act.

We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act. In the present case, the wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010.

In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January 2010 and, therefore, she had been compelled to file the application for stridhan. Regard being had to the said concept of “continuing offence” and the demands made, we are disposed to think that the application was not barred by limitation and the courts below as well as the High Court had fallen into a grave error by dismissing the application being barred by limitation.

The Hyderabad High Court in J. Shyam Babu vs. State of Telangana 2017(4)Crimes332(A.P.) has held after extensively analyzing the provisions of this Act and Code of Criminal Procedure, 1973 that limitation prescribed under Section 468 is not applicable to proceedings for getting relief under Section 18 to Section 23 of this Act. Section 468 of the Code of Criminal Procedure, 1973 is only applicable in case of nonpayment of compensation awarded or for non-implementation of the orders passed under Sections 12, 18 to 23 of the Act, which tantamount to offence.

30. Once such is the case and these aspects when not covered in any expression rendered earlier either by this court or of the Apex Court, the same is hit by sub-silentio including the expression of this court in Cri. P. No. 8935 of 2014 and the expression of the Apex Court in Inderjit Singh Grewal v. State of Punjab & another in Cri. A. No. 1635 of 2011 and it is not the case where that by referring all these provisions it was held by interpreting compensation as part of the fine or as one of the modes of sentence and thereby the limitation is applicable. This conclusion on the principle of sub-silentio can be taken aid from the expression of the Division Bench of this Court in Gadda Balaiah v. The Joint Collector, Ranga Reddy District which quoted with approval the expressions of the Apex Court in Municipal Corporation of Delhi v. Gurnam Kaur and A One Granites v. State of U.P. that a judgment sub-silentio is not law declared within the meaning of Article 141 of the Constitution of India. Accordingly and in the result, it is made clear by holding that to initiate proceedings and to take cognizance for the reliefs to be claimed outcome of domestic relationship under Sections 12 r/w 18 to 23 of the Act, the question of application of period of limitation under Chapter XXXVI of the Code does not arise and the same have no application but for from what in the Act provided in case of nonpayment of compensation awarded or for non-implementation of the orders passed under Sections 12, 18 to 23 of the Act, to enforce the same for such violation which tantamounts to an offence to cognizance of which the period of limitation provided by Chapter XXXVI of the Code arises and not otherwise. Having regard to the above all the contentions raised in the revision are groundless and the Criminal Revision Case is thereby dismissed. No order as to costs.

Madras High Court in M.G.M.Joseph Anand vs Suvitha Suganthi Crl (OP(MD)Nos.10110 & 15734 of 2011) has also held that limitation provided under Section 468 of the Code of Criminal Procedure is not applicable to the application filed under Section 12 of this Act. But Section 468 comes into play when cognizance of offence is sought under Section 31 or 33 of the Protection of Women from Domestic Violence Act, 2005.

10.It is true that Section 28 of the Central Act 43 of 2005 states that all proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 shall be governed by the provisions of Code of Criminal Procedure, 1973. Therefore, applicability of Cr. P. C. to a proceeding initiated under Section 12 of the D.V act 2005 cannot be in doubt. But, now the question is whether Section 468 of Cr. P. C. can be said to apply to a petition filed under Section 12 of the D.V Act, 2005. Section 468 of Cr.PC engrafts a bar to taking cognizance after lapse of the period of limitation. Chapter 36 of Cr.P.C. which includes Section 467 to 473 bears the title “Limitation for taking cognizance of certain offences”. Therefore, this Chapter and particularly Section 468 of Cr.PC cannot have any bearing or applicability in respect of proceedings which do not deal with taking cognizance of offences.

11. Section 31 of the Central Act 43 of 2005 prescribes penalty for breach of protection order by the respondent. Section 33 embodies penalty for not discharging duty by Protection Officer. Therefore, Section 468 of Cr.PC will come into play when cognizance is sought to be taken in respect of offences set out under the Protection of Women from Domestic Violence Act, 2005. When a person aggrieved seeks certain reliefs under provisions such as 12, 18, 19, 20, 21 and 22 etc., she does not call upon the court concerned to take cognizance of any offence committed by the opposite party. She only wants certain reliefs to be ordered in her favour. Therefore, respectfully following the later decision of the Hon’ble Supreme Court reported in (2016) 2 SCC 705 ( Krishna Bhattarchargee Vs. Sarathi Choudhary) , I hold that Section 468 of Cr.PC does not apply to a petition filed under Section 12 of the Prevention of Women from Domestic Violence Act, 2005. Hence, the contention raised by the learned Senior Counsel appearing for the petitioner deserves to be negatived.

The Gujarat High Court in T. Armstrong Changsan vs. Neikol Changsan; 2018(2)GLT411 has held that general law of limitation will apply to an application under Section 12 of this Act.

37. When the domestic violence per-se is not made punishable under the D.V. Act nor violation of all orders under the D.V. Act is made punishable; except the offence as contemplated in Section 31 & 33 of the Act. Therefore, applicability of Section 468 Cr.P.C. in case of D.V. Act shall be limited only in case of offences under Section 31 & 33 of the D.V. Act and the said provision of Section 468 Cr.P.C. cannot be invoked in case of filing an application under Section 12 of the D.V. Act for any relief under Section 18, 19, 20, 21 or 22.

38. However, from the ratio laid down by the Apex Court that concept of continuing offence gets attracted to domestic violence, it can be held as corollary that law of limitation shall apply to an application under Section 12 of the D.V. Act, though Section 468 Cr.P.C. may not be made applicable in case of filing an application under Section 12 of D.V. Act, having regard to the scheme and object of the act and the relief prescribed under various provisions of the D.V. Act as well as the scope of the provisions of Section 468 of the Cr.P.C. Needless to say, that when application under Section 12 of D.V. Act is filed seeking relief under the D.V. Act alleging domestic violence, which from the nature of violence attracts the concept of continuing offence, the same necessarily shall be governed by the concept of continuing offence, so far the starting point of limitation is concerned. When the provision of limitation as provided by Section 468 of the Cr.P.C. is limited to the offence only, necessarily question will arise, what shall be the period of limitation for filing an application under Section 12 of the D.V. Act which does not deal with any offence under the D.V. Act. Having regard to the object and scheme of the Act, this court is of the view that general law of limitation i.e. Limitation Act shall apply to an application under Section 12 of the D.V. Act.

13. (1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who 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 maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of the receipt.

(2) A declaration of service 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.

A notice of application under section 12 has to be served to the respondents through protection officer. Such notice has to be served within two days or such reasonable time as may be allowed by the magistrate.

Rule 12 of Protection of Women from Domestic Violence Rules, 2006 provides detail procedure of serving notice to the Respondents.

12. Means of service of notices- (1) The notice for appearance in respect of the proceedings under the Act shall contain the names of persons alleged to have committed domestic violence, the nature of domestic violence and such other details which may facilitate the identification of person concerned.

(2) The service of notices shall be made in the following manner, namely:-

(a) The notices in respect of the proceedings under the Act shall be served by the Protection Officer or any other person directed by him to serve the notice, on behalf of the protection officer, at the address where the respondent is stated to be ordinarily residing in India by the complainant or aggrieved person or where the respondent is gainfully employed by the complainant or the aggrieved person as the case may be.

(b) The notice shall be delivered to any person in charge of such place at the moment and in case of such delivery not being possible it shall be pasted at a conspicuous place on the premises.

(c) For serving the notices under Section 13 or any other Provision of the Act, the provisions under Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) as far as practicable may be adopted.

(d)Any order passed for such service of notices shall entail the same consequences, as an order passed under Order V of the Civil Procedure Code, 1908(5 of 1908) or Chapter VI of the Code of Criminal Procedure, 1973 (2 of 1974) respectively, depending upon the procedure found efficacious for making an order for such service under section 13 or any other provision of the Act and in addition to the procedure prescribed under the Order V or Chapter VI, the Court may direct any other steps necessary with a view to expediting the proceedings to adhere to the time limit provided in the Act.

(3) On a statement on the date fixed for appearance of the respondent , or a report of the person authorized to serve the notices under the Act, that service has been affected appropriate orders shall be passed by the Court on any pending application for interim relief, after hearing the complainant or the respondent or both.

(4) When a protection order is passed restraining the respondent from entering the shared household or the respondent is ordered to stay away or not to contact the Petitioner, no action of the aggrieved person including an invitation by the aggrieved person shall be considered as waiving the restraint imposed on the respondent, by the order of the Court unless such protection order is duly modified in accordance with provisions of sub-section (20 of Section 25.

The notice for appearance has to contain names of persons who have been alleged to commit domestic violence and nature of domestic violence. Such notice has to have details of nature of domestic violence also.

Notices have to served through protection officer or any other person directed by Protection Officer on behalf of protection officer. Such notices have to served where the respondent is residing or where the respondent is gainfully employed. The notice has to be delivered to any person in charge of such place at the moment and in case such delivery is not possible, the notice has to be pasted at a conspicuous place on the premises.

While serving the notice, the provisions of Order V of the Civil Procedure Code 1908 or Provisions under Chapter VI of the Code of Criminal Procedure as far as practicable may be adopted. Any order passed for such service of notices shall entail the same consequences, as the order passed under Order V of the Civil Procedure Code, 1908 or Chapter VI of the Code of Criminal Procedure, 1973 respectively. The Court may direct any other steps necessary with a view to expediting the proceedings to adhere to the time limit provided in the act.

Thus magistrate has a wide discretion over the procedure to be adopted to serve notice on the respondent. The magistrate can issue notice as per procedure provided under the Code of Civil Procedure or Code of Criminal Procedure. Only determining factor is practicability and efficaciousness of such step.

Patna High Court in Manish Kumar Soni and Ors. vs. The State of Bihar and Ors. 2016(4)Crimes236(Pat.) has observed that service of notice on an application filed under Section 12 or interim relief under Section 23, must be in the manner provided under the Code of Civil Procedure

15. Section 13 of the Act which is under Chapter IV of the Act provides the mode of service of notice, which stipulates that notice will 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.

16. Sub-section (2) of Section 13 stipulates that any declaration of service 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. Hence, Section 13 provides that 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, within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate.

17. It appears from the record that the application under Section 12 of the Act was filed by O.P. No. 2 on 25.11.2013 in the court of the learned Chief Judicial Magistrate, Vaishali at Hajipur, when the matter was transferred under Section 192 Cr.P.C., to the Court of the learned S.D.J.M. On 28.11.2013 the applicant was examined on S.A. by the learned S.D.J.M. and report was called for, from the District Protection Office, Vaishali, as to whether any complaint alleging torture has been filed earlier or not. On 12.12.2013 the enquiry witness was examined. The learned S.D.J.M. vide order dated 20.12.2013 directed for issuance of notice to the petitioners through the Project Manager-cum-District Woman Rights Protection Officer. The order dated 03.01.2014 reflects that reminders were directed to be issued for service of notice since the opposite parties did not appear after service of notice and the matter was adjourned for 10.01.2014 when the report was submitted by the Project Manager-cum-District Woman Rights Protection Officer to the effect that in spite of valid service of notice, the Opposite parties failed to appear. Thereafter, the matter was adjourned for 13.01.2014 and vide order dated 18.01.2014 it was recorded to the effect that in spite of service of notice, the opposite parties are not appearing. On 22.01.2014 only one witness C.W. No. 1 Priyanka Kumari, Project Manager-cum-District Woman Rights Protection Officer was examined and on request of O.P. No. 2 evidence was closed and the matter was posted for ex-parte hearing.

18. Though Rule 12 of the Rules provides the means of service of notice. Sub-rule (1) of Rule 12 of the Rules does not specifically prescribe that notice is to be issued to the person concerned in Form VII, but when Section 13(1) is read along with Form VII, it can only be construed that the notice provided under Rule 12(1) should be in Form VII. If so, the Magistrates, before whom application under Section 12 of the Act are filed, are required to issue notices to the person alleged to have committed domestic violence, in Form VII as prescribed under the Rules. It is pertinent to note that the Form VII notice directs the person concerned to appear either personally or through a duly authorized counsel to show cause why the reliefs claimed against him shall not be granted and on the failure to appear that court shall ultimately proceed ex-parte against him. Clause (c) of Sub-rule (2) of Rule 12, makes it clear that for serving notices under Section 13 or any other provision of the Act, the provisions of Order V of the Code of Civil Procedure or the provisions under Chapter VI of the Code of Criminal Procedure, as far as practicable may be adopted.

19. As is clear from the Statement of Objects and Reasons, the Protection of Women from Domestic Violence Act is enacted to provide for a remedy under the civil law, which is intended to protect the women from being the victims of domestic violence and to prevent the occurrence of domestic violence in the society. Therefore, essentially the reliefs provided under the Act are civil remedies. The penal provisions are only Sections 31 and 33. Therefore, service of notice on an application filed under Section 12 or interim relief under Section 23, must be in the manner provided under the Code of Civil Procedure.

Notice under Section 12 of this Act is different than summon under Section 61 of Code of Criminal Procedure, 1973. Magistrate can not issue summon under Section 12 of the Act. Only if a protection order is passed and the same is not complied with, it will constitute offence, and then only summon can be issued to the Respondent. The Madras High Court in Sowdammal vs Meena MANU/TN/3085/2017 has observed as under:

9. A mere reading of Section 13 of the said Act would amply make the point clear that at the initial stage, the Magistrate was not justified in treating the respondents in this case as accused and as such, hereafter relating to applications under Section 12 of the Protection of Women from Domestic Violence Act, the Magistrate should not issue summons under Section 61 Cr.P.C. treating the respondents as accused. What is contemplated under Section 13 of the Act is a notice specifying the date etc., The endeavour should be on the part of the officer concerned is to deal with the matter gently and treating the respondents in a gentle manner and that should not be lost sight of. Unless the appearance of the respondents are absolutely necessary on a particular date, they should not be simply harassed by compelling them to appear as though they are offenders. The Magistrate should not lose sight of the fact that so long as the case is anterior to the protection order being passed, they should be treated only as respondents. However, after the order under Section 18 of the Act is passed and if there is violation, then the proceedings might get changed and become criminal proceedings. As such, the Magistrates hereafter would scrupulously adhere to the mandates contained in the Act itself.

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