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B.M. Gupta, J.
Madhusudan Bharadwaj and others v. Mamta Bharadwaj
Criminal Revision No.826 of 2007 (Gwalior) : against the order of
IV Additional Seessions Judge, Gwalior, passed in
Criminal Appeal No. 164 of 2007; Decided on 31.3.2009.
Without providing opportunity of leading evidence such application cannot be disposed of. Similar is the procedure required to be adopted to deal with an application under section 12 of the Act to comply the direction under section 28(1) of the Act read with Rule 6(5) of the Rules.
In view of the aforementioned mandate, the learned Magistrate was required to comply with the provisions of this subd`rule read with section 28(1) of the Act and was required to follow the procedure as laid down in the Code of Criminal Procedure for the application under section 125 of CrPC. Admittedly, that has not been followed. On this ground, the impugned order appears erroneous.
There may be cases in which documents of the rival parties on record and arguments advanced by the parties in support thereof, may be contradictory on disputed facts. In such circumstances it may become difficult for a Magistrate to conclude that the stand of which of the parties is truthful. To overcome such ambiguous situation, the theory of leading evidence on oath, providing opportunity to cross-examine the witnesses of opposite party, has been followed since very long time and has also been tested on the touchstone of the principles of natural justice. 1975 CrLJ 656, 1977 CrLJ 2072 and 2005 CrLJ 1455 relied on. [Paras 8-C, 8-D & 9-B
(2) Protection of Women from Domestic Violence Act, 2005 -- S.37 -- Protection of Women from Domestic Violance Rules, 2006 -- R.6(5)-provisions of Rules framed under Ss.37 and 28 -- are valid till annulled or declared ultra vires -- Rule gives the affect to S.28(1) of the Act.
The submission on behalf of the respondent, that prescribing procedure by Central Government through framing Rules is beyond its powers, as in clause (a) to (m) this subject is not covered. To some extent it may compel to give a second thought, but on deep consideration it does not deserve favour. The reasons behind are (1) that, as already mentioned the language of section 37 is indicative that the subjects enumerated are not exhaustive but inclusive. These subjects are without prejudicing the generality of rule making powers and also under clause (m), such a rule could have been framed, (2) that, the rule has been favoured under the given authority or rule making and unless it is annulled or amended by Parliament or declared ultra vires by a competent legal forum, its existence shall be forceful, and (3) that, framing of such a rule is based on necessity, to give effect to the mandatory provisions of section 28(1) of the Act, by which the provisions of the Act can be carried out in a justified manner. In absence of this rule there was a felt difficulty, as to in what manner the mandate of section 28(1) ought to be complied with. [Para 9-C (1)
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1. Feeling aggrieved with an order dated 6.9.2007 passed by 4th Additional Sessions Judge, Gwalior in Criminal Appeal No. 164/07, this revision has been preferred by all the three petitioners. Vide impugned order, the learned Judge has affirmed an order dated 9.7.2007 passed by the Judicial Magistrate First Class, Gwalior in Criminal Case No.5279/ 2007, whereby the learned Magistrate has partly allowed an application under section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the Act") filed by respondent-Mamta Bharadwaj, the wife of the petitioner No.l-Madhusudan Bharadwaj and has (1) restrained the petitioners not to create any domestic violence with the respondent, (2) directed the petitioners to permit the respondent to share her residence in family house or in alternate, petitioner No.1 to arrange suitable house of the same status for her, (3) directed the petitioners to execute their bonds of Rs. l0,000/- (Rs. Ten thousand only) each for a condition not to create domestic violence with the respondent, and (4) directed the petitioners to pay Rs.10,000/- as compensation to the respondent in lieu of the cruelty played by them on her. Vide impugned order, the prayer of providing stridhan to the respondent has been negated.
2. The facts of the case, in brief, are that respondent has filed aforesaid application dated 17.5.2007 in the Court of learned Magistrate mentioning therein that she is wife of the petitioner No.1. Petitioner No.2 is her sister-in-law (Nanad) and petitioner No.3 is her mother-in-law. Respondent was married with the petitioner No.1 on 2.6.2006. After marriage, she started living with the petitioner No.1 in his family house situated at 3, Saraswati Nagar, University Road, Thatipur, Gwalior. In the same house petitioners No.2 and 3 are also living. Petitioner No.2 is living alongwith her two minor children. Petitioner No.2 has been deserted by her husband. On account of her desertion, she is jealous of happy family life of respondent and petitioner No.1. After marriage, on demand of Rs.5,00,000/- and a car, the behaviour of the petitioners was cruel with the respondent. She was usually beaten by them. When the cruelty could not be tolerated by the respondent, she lodged a Criminal Case No.26/2007 against the petitioners under section 498A of IPC. On 1.4.2007 petitioners left the respondent in the aforesaid family house and left the house after locking the rooms along with jewelery and valuables on the pretext that they are going to attend some marriage in the relationship. Thereafter, on 16.4.2007 at 11:00 p.m. petitioners No.1 and 2 along with two unknown persons came and uttered filthy abuses to the respondent. They gave a threat to the respondent to leave the house else she will be killed. She informed about it to Superintendent of Police. On 26.4.2007 at about 6:40 p.m. when respondent was alone at the family house, all the three petitioners came, started beating to the respondent and forcibly deserted her from the house. At about 8:00 p.m. on the same day she lodged FIR at University Police Station, which was registered at Crime No.57/2007. Again she was beaten by petitioners No.2 and 3 at the family house. At the time of desertion petitioners kept all stridhan of the respondent amounting to Rs.13, 74,500/ - with them.
3. Vide reply, all the allegations, except the fact of marriage, have been denied by the petitioner No.1. It was further mentioned in the reply that false allegations have been made on behalf of the respondent to cast aspersion on the pious relationship of brother and sister. On the ground of false allegation petitioners were to be arrested. The relation of wife and husband has become dead and now there is no possibility of living together. On account of the cruelty played by the respondent, the petitioner No.1 has been compelled to live separately from his family house. The respondent brought antisocial elements at the family residence
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