2018 (5) TMI 2140 - HC - Indian Laws

Court clarifies civil nature of Protection of Women from Domestic Violence Act, allowing criminal aspects in breach cases.

Nandkishor Pralhad Vyawahare Versus Mangala

The court determined that proceedings under the Protection of Women from Domestic Violence Act, 2005 are primarily civil in nature, transitioning to a ... Monetary relief under Section 20 of the D.V. Act - proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings or not? - Whether or not the High Court can exercise its powers under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005? - HELD THAT:- A proceeding in which the party asserts the existence of civil rights conferred by the civil law or by statute and claims a relief for breach thereof would be a proceeding of civil nature and the proceeding which upon conclusion results in the imposition of sentences, such as death, imprisonment, fine or forfeiture of property would be a proceeding of criminal nature. The provision made for designating the Court of Judicial Magistrate or the Metropolitan Magistrate as the Court where application under Section 12 (1) of the D.V. Act can be made, appears to have been done only with a view to provide teeth to the powers of the Court - Making of criminal and civil courts simultaneously as appropriate fora to obtain the reliefs provided under the D.V. Act is a certain pointer to the fact that the character of the proceeding is not dependent upon the nature of the tribunal which is invested with the authority to grant relief, but upon the nature of the right violated and the kind of relief that may be had. Applicability of provisions of the Cr.P.C. and providing of criminal consequences for breaches are only indicative of the intention of the Parliament to make various civil remedies available under the D.V. Act more effective and meaningful. Parliament thought in it's wisdom that mere giving of remedies of civil nature or an order of injunction or prohibition for that matter, may not be sufficient to enable the aggrieved person realise the benefits of civil remedies. It were the speed and fear of the criminal procedure generally and the penal consequences visiting the respondent for some of his indiscretions would what really make a disobedient respondent behave - keeping with the vision of Parliament which sees domestic violence as a human rights issue and a serious impediment to development. Unless a wide array of remedies is provided, and it is possible only in civil law and not in criminal law and the remedies are also made speedy and effective, which is possible by infusing them with criminality, the issues of human rights and development cannot be addressed properly. This is what seems to be the overall scheme and theme of the D.V. Act. Proceedings under the Protection of Women from Domestic Violence Act, 2005 are predominantly of civil nature and it is only when there is a breach of the protection order as is contemplated under Section 31 and 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. Whether or not the High Court can exercise its power under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005? - HELD THAT:- The literal rule of construction is about what the law says and means, as understood from the plain language of the law and not what the law should and ought to be, as understood by taking recourse to the external aids of construction. It is also well settled that literal construction should not be excluded only because the consequences lead to some undesirable results or penalty - In the case of TATA CONSULTANCY SERVICES VERSUS STATE OF ANDHRA PRADESH [2004 (11) TMI 11 - SUPREME COURT], the Hon'ble Supreme Court has cautioned the Courts by observing that the Court should not be overzealous in searching for ambiguities or obscurities in the words which are plain. Sub-section (1) of Section 28 clearly lays down that all proceedings taken under Sections from 12 to 23 and in respect of offence under Section 31 shall be governed by the provisions of Cr.P.C. except as otherwise provided in the D.V. Act. It means that only such of the provisions of the Act as would lay down a particular procedure to be followed by the Magistrate, which would have prevalence over the provisions of the Cr.P.C. to the extent of their inconsistency with the specific provisions of the D.V. Act. 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 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. The reference is returned accordingly. Issues Involved:1. Whether the proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings.2. Whether the High Court can exercise its powers under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005.Issue-Wise Detailed Analysis:1. Nature of Proceedings under the D.V. Act:The court examined whether proceedings under the D.V. Act are criminal or civil in nature. The D.V. Act does not explicitly define the nature of the proceedings. The court analyzed the object and scheme of the Act, noting that it aims to provide protection to women against domestic violence and offers various civil remedies such as protection orders, residence orders, monetary relief, custody orders, and compensation.The court referred to the Supreme Court's judgment in Kunapareddy v. Kunapareddy Swarna Kumari, which held that proceedings under Sections 18 and 20 of the D.V. Act are predominantly civil in nature. The court highlighted that the reliefs provided under the D.V. Act are civil remedies, not typically found in criminal law, and the initial notice issued under Section 12(1) is civil in nature.Despite the civil nature of the reliefs, the D.V. Act incorporates procedural and penal provisions from the Cr.P.C. to ensure the effectiveness of these remedies. Sections 31 and 33 of the D.V. Act create distinct offences for breach of protection orders and failure of protection officers to perform their duties, which are criminal in nature. However, the court concluded that these provisions do not alter the predominantly civil nature of the proceedings under Section 12(1).Conclusion: Proceedings under the D.V. Act are predominantly of civil nature, but they assume a criminal character when there is a breach of protection orders under Section 31 or failure of protection officers under Section 33.2. Applicability of Section 482 Cr.P.C. to D.V. Act Proceedings:The court examined whether the High Court's inherent powers under Section 482 Cr.P.C. can be invoked in proceedings under the D.V. Act. Section 28 of the D.V. Act states that all proceedings under Sections 12, 18, 19, 20, 21, 22, and 23, and offences under Section 31, shall be governed by the Cr.P.C., except as otherwise provided in the Act.The court emphasized the rule of literal construction, stating that the language of Section 28 is clear and unambiguous, indicating the legislature's intent to apply the Cr.P.C. to proceedings under the D.V. Act. The court noted that the applicability of the Cr.P.C. is general and omnibus, subject to specific procedural requirements laid down in the D.V. Act and the rules framed thereunder.The court also considered the enabling provision of Section 28(2), which allows the court to lay down its own procedure for disposing of applications under Section 12 or Section 23(2). This provision is intended to ensure the effective and speedy disposal of applications, without excluding the general applicability of the Cr.P.C.The court referred to the Gujarat High Court's judgment in Ushaben v. Kishorbhai Mistry, which held that the remedy under Section 482 Cr.P.C. is available to an aggrieved person, subject to self-imposed restrictions by the High Court.Conclusion: The High Court can exercise its inherent powers under Section 482 Cr.P.C. in respect of proceedings under the D.V. Act, subject to the self-imposed restrictions and the availability of alternate remedies under Section 29 of the D.V. Act.Final Judgment:The court concluded that proceedings under the D.V. Act are predominantly civil in nature, with criminal elements when there is a breach of protection orders or failure of protection officers. The High Court's inherent powers under Section 482 Cr.P.C. are applicable to proceedings under the D.V. Act, ensuring the effectiveness and enforcement of the remedies provided. The reference was answered accordingly.