Under section 20 of the Protection of Women from Domestic Violence Act 2005, the Magistrate is empowered to direct the respondent to pay monetary relief to the aggrieved person and any child on account of the losses suffered by the aggrieved person and any child as a result of the domestic violence
|Case name:||Bachu Miah V/s. Ranu Begum|
|Case number:||W.A. 65 of 2014|
|Court:||High Court of Tripura|
|Bench:||Hon’ble The Chief Justice Mr. Deepak Gupta Hon’ble Mr. Justice U.B. Saha|
|Relevant Act/Sections:||The Protection of Women from Domestic Violence Act, 2005|
- BRIEF FACTS AND PROCEDURAL HISTORY
- The wife filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and she prayed for an order of protection under Section 18, an order of grant of residence under Section 19 and an order for grant of monetary relief under Section 20 in her favour. This complaint was received by the Court on 08.10.2013 and notice was ordered to be issued to the respondents for 24.10.2013. On this date, the respondent husband appeared along with his counsel and the case was transferred to the Court of the Judicial Magistrate, 1st Class, Bishalgarh for disposal in accordance with law.
- On 27.05.2014, all the parties were present and on this date, the impugned order was passed.
- On behalf of the wife, it was urged that she has been tortured and she only prayed for grant of monetary relief claiming Rs.9,00,000/- in all. The respondents contested the allegations of mental or physical torture and it was contended that the aggrieved person wife was at liberty to come and stay in the house of the husband and therefore, she is not entitled to any relief.
- Thereafter, the husband-petitioner was directed to pay Rs.3,000/- per month as monetary relief under Section 20 under the Act to the aggrieved person wife. The other respondents were discharged.
- This writ appeal is directed against the judgment dated 25.08.2014 passed in W.P(Crl.)2 of 2014. The issue raised by Sri A. Bhowmik, learned counsel, appearing for the husband is that the Magistrate passed the impugned order granting maintenance in favour of the wife without holding any inquiry and without giving any opportunity of leading evidence to the husband.
- ISSUES BEFORE THE COURT
- Whether the judgement challenged was in accordance with the principles of natural justice?
- Was an opportunity of leading evidence was given to the husband before pronouncement of the order?
- Whether the conclusion that domestic violence has taken place was established?
- RATIO OF THE COURT
- The court was of the considered view that even where the Court decides to lay down its own procedure, the said procedure must be in accordance with the rules of natural justice. The procedure cannot be such which is against the rules of natural justice.
- The court observed that the Magistrate while dealing with an application under Section 12 must follow the procedure laid down under section 125 of the Code of criminal procedure.
- The court observed that it is apparent that no evidence was recorded in the presence of the petitioner and the procedure laid down in Section 126 of Cr.P.C was not followed.
- The court observed that the power to grant relief under section 12 arises only when an incidents on domestic violence has taken place.
- The court observed that no order under section 18 can be passed unless the Magistrate prima facie satisfies himself that either domestic violence has taken place or is likely to take place. An order of residence under section 19 can only be passed if the Magistrate is satisfied that domestic violence has taken place. As far as section 20 is concerned, the Magistrate is empowered to direct the respondent to pay monetary relief to the aggrieved person and any child on account of the losses suffered by the aggrieved person and any child as a result of the domestic violence. Therefore, the Court will have to come to a finding that domestic violence has taken place.
- The court observed that before passing any order under section 20, the Magistrate must come to the conclusion that domestic violence has taken place. In the present case, we find that no such finding was arrived at by the Magistrate.
- The court observed that while assessing the maintenance, the Magistrate cannot ignore the income of the husband.
- DECISION HELD BY THE COURT
- The court, accordingly, disposed of the appeal in the aforesaid terms and also issue the following directions :-
- We reaffirm the directions given by the learned Single Judge which has been quoted above.
- That in cases falling under the Domestic Violence Act, in terms of the section 28 of the Act and Rule 6(5) of the rules, the Magistrate shall follow the procedure laid down in the Code of Criminal Procedure, 1973 for deciding petitions u/s 125 of the Cr.P.C but if the Magistrate for reasons to be recordedso decides, it may lay down its own procedure in terms of section 28(2), but such procedure must be consistent with the rules of natural justice.
- That before passing an order under section 20, the Court must come to the conclusion that domestic violence has taken place.
- While granting Protection orders under section 18, the Magistrate must prima facie satisfy himself that domestic violence has taken place.
- Before passing a Residence order under section 19, the Magistrate must be satisfied that Domestic violence has taken place.
- As far as orders under section 17 and 21 are concerned as already held above, it is not necessary to establish domestic violence.
- Even in cases of orders passed under section 22, the Magistrate can pass an order only after coming to the conclusion that domestic violence has taken place.
- That before passing orders, the respondent must be heard and a procedure consistent with the code of Criminal Procedure or the rules of natural justice must be followed.
- Section 23 empowers the Magistrate to pass interim orders and these orders can be passed at the preliminary stages also if domestic violence is apprehended or the application prima facie discloses that the respondent has committed an act of domestic violence.
- The parties through their counsel were directed to appear before the Court below on 2nd March, 2015. The Registry was directed to send the record to the learned Magistrate who shall then proceed to decide the matter and pass appropriate order u/s 20 of the Protection of Women from Domestic Violence Act, 2005 after following the law laid down hereinabove.