IMPORTANT POINT
The receipt of the domestic incident report is not a pre-requisite for issuing a notice to the Respondent.

Mukta Gupta, J.— By the present petition, the Petitioner challenges the order dated 31st May, 2011 passed by the learned Metropolitan Magistrate in complaint case No. 934/2003 titled as Maujari v. Shambhu Prasad Singh, issuing notice to the Petitioner on a complaint under Section 12 of the Protection of Women from Domestic Violence Act. 2005 (in short D.V. Act) without calling for a report from the Protection Officer and the order of the Learned Additional Sessions Judge dated 4th August, 2011 dismissing the appeal filed by the Petitioner.

2. Learned counsel for the Petitioner contends that on an application under Section 12 of the D. V. Act, no notice could have been issued to the Petitioner/ husband of the complainant without calling domestic inspection report from the Protection Officer as mandated under Section 12 of the D.V. Act. Reference is made to Sections 4, 5 and 12 of the D.V. Act and Rules 4,5, 6, 8 and 9 of the Protection of Women from Domestic Violence Rules, 2006 (in short ‘D.V. Rules’). It is contended that filing of form 11 is essential along with an application under Section 6 of the Act which specifically provides that it should be accompanied by the report of the Protection Officer. The report of Protection Officer is mandatory before issuance of notice as held in Bhupender Singh Mehra & Anr. v. State of NCT of Delhi & Anr., 2010(4) JCC 2939. Thus, impugned orders be set aside.

3. Learned counsel for the Respondent on the other hand contends that Section 12 of the D.V. Act gives liberty to the complainant to apply directly to the Court or through the Protection Officer. Further Section 23 permits passing of ex parte orders. The forms provided under the D.V. Rules 6 (1 & 2) are not mandatory in nature. Distinguishing the decision of this Court in Bhupender Singh Mehra (supra), it is contended that in the said case the report of the Protection Officer was necessary as it was not clear whether the Petitioners therein were in domestic relationship. In the present case only the husband has been made as a Respondent in the application under Section 12 and there is no dispute to his being in domestic relationship.

4. I have heard learned counsel for the parties. The short issue involved in the present petition is whether at the time of issuance of notice i.e. taking cognizance on the complaint of the complainant, the Court is duty bound to issue notice to the Respondent only after the report of the Protection Officer is received. Before adverting to the issue, it would be appropriate to reproduce the relevant provisions of the D.V. Act and the D.V. Rules.

“2. Definitions.

(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

4. Information to Protection Officer and exclusion of liability of informant.

(1) Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer.

(2) No liability, civil or criminal, shall be incurred by any person for giving in good faith of information for the purpose of sub-section (1).

5. Duties of police officers, service providers and Magistrate. A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person:

(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such ord