Nitin Baban Jagtap v. Meenaxi Nitin Jagtap

1. This petition under Article 227 of the Constitution of India, challenges the order dated 7th August, 2019 in domestic violence proceedings RANE 2/6 WP-731-2020-sr.15 passed by the learned Judicial Magistrate First Class, Thane by which the learned Magistrate declined to conduct the enquiry in interim application filed by the respondent-wife under Section 23 of the Protection of Women from Domestic Violence (“D.V. Act” for short), following the procedure prescribed for trial in summons cases and warrant cases. The Appeal against the said order was dismissed by the Additional Sessions Judge, Thane on 30th January, 2020. Feeling aggrieved by these orders, the husband-respondent in D.V. proceedings has preferred this petition.

2. Background facts to be stated in short are, that the respondent-wife filed an application under Section 23 read with Section 12 of the D.V. Act, seeking interim maintenance. In the said application, the petitioner-husband sought, an enquiry interms of Section 28(1) of the D.V. Act as applicable to RANE 3/6 WP-731-2020-sr.15 summons cases and warrant cases. Contention is that, since the offence under Section 31 of the D.V. Act is punishable with imprisonment of either description or term which may extend to one year or fine upto Rs.25,000/- or with both, procedure prescribed for summary trial i.e. summons cases is to be followed and therefore consequently it is to be held that while conducting enquiry for action under Sections 18, 19, 20, 21, 22 and 23 of the Act, the procedure prescribed for summons cases is to be followed and it is mandatory. Counsel for the petitioner has relied on the judgment of the Karnataka High Court in the case of Krishna Murthy Nookula v. Y. Savitha, 2016 Cri. L.J.

1970. Thus, submitted that, unless procedure laid down for the, ‘summons case’ is followed, the Magistrate cannot exercise jurisdiction under Section 23(1) of the D.V. Act. RANE 4/6 WP-731-2020-sr.15

3. In my view, the submissions are misconceived and contrary the scheme of the D.V. Act. At the first place, it may be stated that the proceedings under the D.V. Act are predominantly of civil nature and it is only when there is breach of protection order contemplated under Section 31 or failure or refusal to discharge duty without any sufficient cause by the Protection Officer, as contemplated under Section 33, the proceedings assume the character of criminality. Section 28 of the D.V. Act, provides that the proceedings relating to application under Section 12 shall be governed by the Code of Criminal Procedure

1973. Rule 6(5) of the Domestic Violence Rules, 2006 says that application under Section 12 shall be dealt with and orders enforced in the same manner as laid down under Section 125 of the Code of Criminal Procedure, 1973. Therefore, the procedure to be followed in deciding the applications under Section 12 RANE 5/6 WP-731-2020-sr.15 is the procedure laid down under Section 125 of the Cr.P.C. Under Section 12, aggrieved person, may present an application to the Magistrate, seeking one or more reliefs under this Act, whereby Magistrate is invested with the jurisdiction and power to pass protection order under Section 18; residence orders under Section 19; monetary reliefs under Section 20; custody orders under Section 21; under Section 22 compensation order and interim and ex-parte orders under Section 23. Therefore, the application preferred under Section 12 seeking one or more aforestated reliefs, are to be dealt with in the manner laid down under Section 125 of the Code.

4. Therefore, the contention of the petitioner that, while dealing with the applications under Section 12 for the various reliefs, enquiry is to be conducted in the manner as per the procedure for trial of the RANE 6/6 WP-731-2020-sr.15 summons cases, is wholly misconceived. For the reasons stated above, the petition deserves no consideration. It is rejected. (SANDEEP K. SHINDE, J.)