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HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF
ANDHRA PRADESH
P. Naveen Rao, J.
T.V. Rao —Appellant
versus
State of Telangana, rep,
by its Principal Secretary
to Government, Department
of Women and Child
Development, Secretariat
Buildings, Saifabad,
Hyderabad and Ors. —Respondents
Writ Petition No.40818 of 2015
Decided on 19.3.2019
(A) Protection of Women from Domestic Violence Act, 2005 – Sections 12, 18, 19 and 20 – Domestic Violence – Act is a self-contained code and deals with what constitutes domestic violence and remedies available to victims and protection that is required to be provided from such violence – Unlike ordinary civil litigation, occurrence of domestic violence or imminent violence can be reported by any one and based on such report case can be registered and proceedings would commence – Aggrieved person can enforce rights flowing out of said Act by availing remedies provided under the Act – Act empowers Magistrate to pass protection orders in favour of aggrieved person to prevent respondents before Court from aiding or committing an act of domestic violence or any other specified act, entering a work place or any other place frequented by aggrieved person, attempting to communicate with her, isolating any assets used by both parties and causing violence to aggrieved person, her relatives or others who provide her assistance from domestic violence. (Para 11)
(B) Protection of Women from Domestic Violence Act, 2005 – Sections 12, 18, 19 and 20 – Criminal Procedure Code, 1973 – Sections 362 – Restoration of D.V.C., dismissed for non-prosecution – Merely because for some of provisions of Act, Code of Criminal Procedure is made applicable would not mean that orders/decisions made under the Act are governed by Code of Criminal Procedure – Though Magistrate Court is vested with jurisdiction to adjudicate cases of domestic violence, but is not constrained by Code of Criminal Procedure while adjudicating cases under the Act and has liberty to lay down its own procedure – Decision to dismiss D.V.C. on the ground of non-prosecution by petitioner therein is not a final judgment rendered on consideration of the rival claims and therefore prohibition imposed by Section 362 of Code of Criminal Procedure is not attracted – Act does not impose specific bar on power to recall/ set aside order dismissing DVC for non-prosecution. Act also does not specify that Section 362 Criminal Procedure Code is applicable – There is no express bar on restoration of DVC dismissed for non-prosecution – Magistrate is competent to entertain application to recall order dismissing DVC for non-prosecution – Petition to restore a case by setting aside order dismissing case for non-prosecution is subject to satisfaction of Court – As the Act is a special legislation to protect women against domestic violence such consideration also has to be liberal and rigors of satisfaction of Court must be relaxed. (Paras 12, 17, 20, 23, 27 and 31)
(C) Protection of Women from Domestic Violence Act, 2005 – Sections 12, 18, 19 and 20 – Domestic Violence – Proceedings arising under the Act cannot be looked into as regular civil dispute between two rival claimants – This is a hybrid enactment which takes care of rights of a victim in civil law while extending Code of Criminal Procedure to certain aspects – It is a welfare legislation aiming to root out social menace – It is intended to protect a woman from social evil in form of domestic violence – While considering an issue arising out of such enactment, technicalities cannot defeat overarching objective to redress grievance of an aggrieved person who claims to be a victim of domestic violence – It must receive liberal construction. (Para 29)
Result: Writ Petition dismissed.
JUDGMENT
P. Naveen Rao, J.—Heard learned counsel for the petitioners, learned Government Pleader for Women and Child Welfare appearing for respondents 1 and 2, learned Government Pleader for Home appearing for respondent No.3 and Smt. S. Nanda, learned counsel appearing for respondent No.4.
2. This Writ Petition is filed challenging the order of IV Metropolitan Magistrate (Traffic Mobile Court), Hyderabad, dated 27.11.2015 made in Crl.M.P.No.203 of 2015 in D.V.C.No.57 of 2013, whereunder he has set aside order dismissing the DVC for non prosecution and restored the D.V.C.
3. The facts relevant to consider the issue are as under:—
Petitioners 1 and 2 are parents of husband of respondent no.4, and petitioner No.3 is daughter of petitioners 1 and 2. Petitioners are accused in C.C.No.375 of 2012 on the file of XIII Additional Chief Metropolitan Magistrate, Hyderabad, alleging committing of crime under Section 498-A of I.P.C. With the assistance of Protection Officer, respondent No.4 filed complaint dated 28.01.2013 with respondent No.2 under ‘the Protection of Women From Domestic Violence Act, 2005’ (for short, ‘the Act’) alleging domestic violence. On the same day, the Protection Officer referred the complaint to IV Metropolitan Magistrate (Traffic Mobile Court), Hyderabad. With the assistance and verification of protection officer, she filed application in Form II under Rule 6(1) praying to grant reliefs under various provisions of the Act. The learned Magistrate has taken the same on file and registered as D.V.C.No.57 of 2013 under Section 12 of the Act for reliefs under Sections 18, 19 and 20 of the Act. Petitioners in the Writ Petition are arrayed as respondents 2 to 4. The said D.V.C. was dismissed for non-prosecution on 08.07.2014. Respondent No.4 filed Crl.M.P.No.203 of 2015 praying to restore the D.V.C. and to hear the same on merits. By the order impugned, the learned Magistrate allowed the petition and restored D.V.C.
4. The issue for consideration is, whether the decision of learned Magistrate to allow the petition filed by respondent No.4 for restoration of D.V.C., dismissed for non-prosecution is valid ?
5. XXX XXX XXX
5.1. According to learned counsel for petitioner, the petition for restoration is moved under Section 25(2) of the Act. The said Section is not applicable for restoration of case dismissed for non-prosecution. It only deals with duration and alteration of orders already made. According to learned counsel, against a decision in D.V.C. an appeal is maintainable under Section 29 of the Act to the Court of Sessions within 30 days. Respondent No.4 failed to avail the remedy provided by Section 29 of the Act and statutory period expired long ago and therefore the petition filed before the Magistrate’s Court was not maintainable. After expiry of the limitation period available to prefer appeal, no such petition could have been entertained. Learned counsel would submit that with reference to adjudication of matters arising under the Act, provisions of Code of Criminal Procedure are applicable. According to Section 362 of Code of Criminal Procedure, once final order is passed disposing of a case, the Court cannot alter or review the decision except clerical or arithmetical error. As this provision is applicable to the cases under the Act, once a decision is made, the Court becomes functus officio and has no competence to deal with the application including petition for restoration. In support of the said contention, he has placed reliance on provision in Section 28 of the Act.
5.2. According to learned counsel, respondent No.4 did not approach IV Metropolitan Magistrate with clean hands. The reasons assigned in support of the petition to restore the case are not germane to genuine circumstances in which respondent No.4 could not attend to the Court when the case was dismissed, assuming that the learned Magistrate has competence to deal with such petition. According to learned counsel, only reason assigned in p
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