The court established that the Protection of Women from Domestic Violence Act 2005 allows the court to deviate from the prescribed procedure and devise its own procedure, including permitting evidence by way of an affidavit, to provide effective protection to women who are victims of domestic violence.

JUDGMENT :

1. By way of present application, applicants have requested to quash and set aside the judgment and order dated 30.12.2022 passed by the learned 2nd Additional Sessions Judge, Gir Somnath Veraval in Criminal Appeal No. 19 of 2022 as well as judgment and order dated 08.08.2022 passed by learned Judicial Magistrate, Talala below Ex. 32 passed in Criminal Misc. Application No. 27 of 2019.

2. Brief facts of the present case are as under:

2.1 That, the respondents No.2 and 3 have filed Criminal Misc. application No. 27 of 2019 under Section 12 of the Protection of Women from Domestic Violence Act 2005 (hereinafter referred to as “the Act”) and in that matter, vide Ex. 6, respondents No.2 and 3 have filed an application Ex. 6 under Section 23 of the Act seeking interim relief and after hearing both the parties, learned JMFC, Talala vide its order dated 22.11.2021 partly allowed the application of the respondents no.2 and 3 directing the applicants herein to pay maintenance amount to the tune of Rs. 5,000/- per month to the respondent no.2 and Rs. 2,000/- per month to the respondent no.3 till final disposal of the application filed under Section 12 of the Act. Thereafter, the applicants herein have filed their written objections vide Exh. 14 in the application filed by the respondents no.2 and 3 under Section 12 of the Act. That, during such proceedings, the applicants herein have filed an application Ex. 32 in Criminal Misc. Application No. 27 of 2019 and requested to discard the examination in chief on affidavit filed by the respondents no.2 and 3 herein and direct them to give their oral submissions before the court, it means record the examination in chief orally. That, after hearing both the parties, vide order dated 08.08.2022, learned Judicial Magistrate First Class, Talala has rejected the application Ex. 32 filed by the applicants herein.

2.2 That, being aggrieved by the said order dated 08.08.2022, applicants herein approached the learned Sessions Court by filing Criminal Appeal No. 19 of 2022 wherein after hearing both the parties, the learned 2nd Additional Sessions Judge, Gir Somnath, Veraval has dismissed such appeal vide order dated 30.12.2022 and being aggrieved by the said order, applicants have approached this court by way of this application.

3. Heard learned advocate for the applicants.

4. It was submitted by learned advocate for the applicants that the orders passed by both the courts ie. JMFC as well as First Appellate Court are contrary to law and have been passed without appreciating the facts of the case and provisions of the law. That, both the courts below have failed to appreciate the provisions of Sections 28 of the Act and relevant rules thereof. That, there is no provision either in the CRPC or in the Indian Evidence Act to file an affidavit as a substitute for the oral evidence. As per Section 60 of the Indian Evidence Act, oral evidence must be direct and there is no specific provision like the NI Act to led in evidence by way of filing a proof of affidavit. That, chief examination should be by way of oral evidence and if any deviation from the said procedure, prejudice would be caused to the parties. That, the orders passed by the learned courts below suffer from non application of mind and non application of the law to the facts of the case. That, both the learned courts below have not considered the law point and provisions of law while passing both the impugned orders.

5. It was further submitted by learned advocate for the applicants that Section 28 (1) unambiguously mentions that - "Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offenses under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974)" - Now it is a Civil Law but bound by Criminal Procedure Code. Further Section 28(2) allows the learned Magistrate to lay down his own procedure while disposing the applications made under Section