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2015 Supreme(Tri) 61
THE HIGH COURT OF TRIPURA AGARTALA
DEEPAK GUPTA and U.B. SAH, JJ.
Bachu Miah - Appellant
Vs.
Ranu Begum - Respondent
W.A. 65 of 2014
Decided On : 05.02.2015
Advocate Appeared:
For the appellant:Mr. A. Bhowmik, Advocate.
For the respondents:Mr. A.K. Bhowmik, Sr. Advocate. Mr. R. Datta, Advocate.
The Magistrate must establish domestic violence before granting relief and provide an adequate opportunity for the respondent to present evidence.
Headnote:
PWDV Act - Directions on filing application, notice of hearing, and monetary relief - Sections 2(a), 9, 12, 13, 18, 19, 20, 21, 22, 23, 28; Rules 5, 6 of PWDV Rules, 2006
Fact of the Case:
The wife filed a petition under Section 12 of the PWDV Act, seeking protection, residence, and monetary relief. The Magistrate granted monetary relief without holding an inquiry or giving the husband an opportunity to lead evidence.
Finding of the Court:
The Court found that the Magistrate did not follow the prescribed procedure and did not establish domestic violence before granting monetary relief. The Court modified the maintenance amount and directed the Magistrate to reassess the maintenance.
Issues: Failure to follow prescribed procedure, lack of finding on domestic violence, inadequate opportunity for the respondent to present evidence.
Ratio Decidendi: The Magistrate must follow the prescribed procedure, establish domestic violence before granting relief, and provide an adequate opportunity for the respondent to present evidence.
Final Decision: The Court modified the maintenance amount and directed the Magistrate to reassess the maintenance. It issued directions on the procedure to be followed under the PWDV Act.
Deepak Gupta, J.
This writ appeal is directed against the judgment dated 25.08.2014 passed in W.P(Crl.)2 of 2014 whereby a learned Single Judge of this Court after discussing the entire law on the subject issued the following directions:-
[17] On study of the various provisions of the PWDV Act, 2005, this Court holds as under:
(i) An aggrieved person within the meaning of Section 2(a) of the PWDV Act, 2005 may directly approach the Magistrate for passing any order under Section 12 read with Sections 18/19/20/21/22 & 23 of the PWDV Act without making any report to the Protection Officer.
(ii) When an aggrieved person or any other person gives information to the Protection Officer, the Protection Officer is under obligation under Section 9(1)(d) to make a Domestic Incident Report (DIR) to the Magistrate in the Form I under Rule 5 of the of the PWDV Rules, 2006.
(iii) If such DIR is available, the aggrieved person may file an application to the Magistrate under Section 12 of the PWDV Act, 2005 in Form II under Rule 6 of the PWDV Rules, 2006 taking or without taking assistance of the Protection Officer in preparing her application and forwarding the same to the concerned Magistrate. Even the Protection Officer may prepare application if the aggrieved person is illiterate. Such application shall be affirmed by affidavit in terms of Section 23(2) if there is any prayer for interim protection or order. Such affidavit shall be filed in Form III under Rules 6(4) and 7 of the PWDV Rules, 2006.
(iv) Rules 6(1) of the PWDV Rules, 2006 has not left any confusion which might arise whether the application in Form II can be filed without the DIR. A keen reading of the said Rules 6(1) would attract attention to the Clause =or as merely as possible thereto‘ as appearing in Rule 6(1) of the PWDV Rules, 2006. It purports and imports that when the aggrieved person would directly file the application under Section 12 of the PWDV Act, the Form II may suitably be modified.
(v) When Section 12 of the PWDV Act enables an aggrieved person present an application to the Magistrate seeking one or more reliefs under of the PWDV Act without approaching the Protection Officer and when from a survey of the provisions of the PWDV Act it appears without any ambiguity that neither the Act, nor the Rules made thereunder, provide for getting a Domestic Incident Report from the Protection Officer or the service provider by the Magistrate before passing any order under Section 12 of the PWDV Act it cannot be said that the application filed under Section 12 can only be entertained by the Magistrate only on getting a Domestic Incident Report.
(vi) The Magistrate at his discretion, however may call for a Domestic Incident Report from the concerned Protection Officer before passing any order under Section 12 of the PWDV Act. But at no stretch of interpretation it can be held that the Magistrate cannot pass any order Under Section 12 in absence of the DIR.
(vii) It is obligatory for the Magistrate to take into consideration any DIR received by him from the Protection Officer or the service provider before passing any order under Section 12 of the PWDV Act. But again it is not obligatory for a Magistrate to call such report. The Magistrate, however, may consider the said report at any stage of the proceeding without any inhibition. But under no circumstances the report shall bind the Magistrate in any manner. The report is for assistance of the Magistrate in the enquiry for granting one or various reliefs by an order under Section 12 of the PWDV Act to the aggrieved person. The words appearing in proviso to Section 12 of the PWDV Act =shall take into consideration‘ does not mean Magistrate has to act upon or accept the DIR. It only obliges the Magistrate to take note of the said report at the time of passing any order under Section 12 of the PWDV Act.
(viii) Section 13 of the PWDV Act provides that a notice of the date of hearing fixed under Sec
