Under section 12 of the DV Act, 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 the DV Act.
Further, the DV Act has expanded the forums under which reliefs can be sought. Section 26 of the DV Act says that, any relief available under section 18 to 22 of the DV Act may also be sought in any legal proceeding, before a civil court or a criminal court, affecting the aggrieved person and the respondent. These reliefs are in addition to and along with any other relief that the aggrieved person may seek in any legal proceeding.
The following judgments provide clarity on the jurisdiction of courts:
Hiral P. Harsora & Ors v. Kusum Narottamdas Harsora & Ors., 2016 (10) SCC 165 [Supreme Court of India, 2 Judge Bench]
The Supreme Court here was deciding an appeal from a writ proceeding in which the constitutional validity of section 2(q) which defined “respondent” was questioned. The court in deciding this question, struck down the words “adult male” before the word “person” in section 2(q), essentially bringing female members under the definition of DV Act. In deciding this question, the court examined various provisions of the DV Act, including section 26 of the DV Act.
In relation to Section 26 of the DV Act, the court held: “When we come to Section 26 of the Act, the sweep of the Act is such that all the innovative reliefs under section 18 to 22 may also be sought in any legal proceeding before a civil court, family court or criminal court affecting the aggrieved person and the respondent. The proceeding in the civil court, family court or criminal court may well include female members of a family, and reliefs sought in those legal proceedings would not be restricted by the definition of ‘respondent’ in the 2005 Act.”
OP (FC). No. 153 of 2018
The High Court was considering a challenge by the wife to an order of the family court which rejected her application for grant of temporary injunction against her husband and in-laws. Here, the wife had obtained ex parte residence orders from the Magistrate under the DV Act, which was later modified by the Magistrate. In the meantime, the wife moved an application in the proceeding pending before the family court, seeking injunction to restrain the respondents from obstructing her right of residence.
Relying on an earlier decision of the same court in the case of Raju Narayan Swamy v Beena and an analysis of section 26 the DV Act, the court held: “…an application under section 12 of the DV Act seeking various reliefs under section 18 to 22 of the said Act cannot be filed as an original or independent application before the Family Court, as the DV Act expressly stipulates that the original proceedings under section 12 of the DV Act has to be filed before the Magistrate competent to entertain the application and that the Family Court will have jurisdiction under the DV Act to grant relief to the victim of domestic violence only if there is an existing legal proceeding before the Family Court and the application under section 26 of the DV Act seeking relief under section 18 to 22 of the DV Act is filed in that pending proceedings before the Family Court concerned, etc.” In the facts of the case, it was found that the wife had not fully disclosed the details of the DV Act proceedings initiated by her and about the ex parte order of the Magistrate to the Family Court. On this ground the appeal was dismissed with the observation that the judgment will not affect the proceedings before the Magistrate.
Here the court was considering the questions: “What is the nature of proceedings under section 26 of the DV Act? and What procedure is to be followed by the court in adjudicating an application under section 26 of the DV Act?”
After an extensive analysis of several judgments of the Supreme Court and various High Court the court held the following to be the summary of principles that answer the questions it posed to itself, they are:
a) D.V. Act provides a remedy in civil law for the protection of victims of domestic violence as noted in the Statement of Object and Reasons.
b) The aggrieved person can file the application for the reliefs under the D.V. Act to the Magistrate under Section 12 of the D.V. Act.
c) If any suit or other legal proceedings affecting the aggrieved person are pending before a Civil Court, Family Court or Criminal Court, Section 26 gives an option to the aggrieved person to approach such Court for reliefs under the D.V. Act. However, no independent application is maintainable before the Civil Court or Family Court, if no proceedings are pending before them affecting the aggrieved person and the respondent.
d) The Civil Court, Family Court or Criminal Court dealing with the application under Sections 18 to 22 of the D.V. Act can formulate its own procedure under Section 28(2) of the D.V. Act. The word ‘Court’ in Section 28(2) of the D.V. Act includes Civil Court, Family Court as well as the Criminal Court.
e) The Court shall formulate the procedure after completion of pleadings in an application under Section 26 of the D.V. Act.
f) After completion of pleadings, the concerned Court shall consider whether evidence is necessary to adjudicate the application under the D.V. Act and if so, the Court shall frame the issues and record the evidence. However, if no evidence is considered necessary, the Court shall list the application for hearing.
(Proviso to section 12 of the DV Act says that before passing any order, the Magistrate shall take into consideration any domestic incident report (DIR) received by him from the Protection Officer or the service provider.)
The Division Bench of the High Court was here by way of reference arising out of conflicting judgments of two single judges considering the question: “whether calling for and considering the report of the protection officer under the DV Act is mandatory before the court can issue notice to a respondent in an application under section 12 of the DV Act.”
The court after a detailed analysis of provisions of the DV Act and a consideration of the various judgments on the question before it, held: “We answer the question referred to the Court in the negative; a Magistrate, when Petitioner 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).”