Civil procedures under the Domestic Violence Act govern interim applications, rejecting the summons case argument.

JUDG M ENT :

1. This petition under A rticle 227 of the C onstitution of India, challenges the order dated 7th A ugust, 2019 in dom estic violence proceedings passed by the learned Judicial M agistrate First C lass, Thane by w hich the learned M agistrate declined to conduct the enquiry in interim application filed by the respondent-w ife under Section 23 of the Protection of W om en from Dom estic Violence (“D.V. Act” for short), follow ing the procedure prescribed for trial in sum m ons cases and w arrant cases. The A ppeal against the said order w as dism issed by the Additional Sessions Judge, Thane on 30th January, 2020. Feeling aggrieved by these orders, the husband-respondent in D.V. proceedings has preferred this petition.

2. Background facts to be stated in short are, that the respondent-w ife filed an application under Section 23 read w ith Section 12 of the D.V. Act, seeking interim m aintenance. In the said application, the petitioner-husband sought, an enquiry interm s of Section 28 (1) of the D.V. Act as applicable to sum m ons cases and w arrant cases. C ontention is that, since the offence under Section 31 of the D.V . Act is punishable w ith im prisonm ent of either description or term w hich m ay extend to one year or fine upto Rs.25,000/- or w ith both, procedure prescribed for sum m ary trial i.e. sum m ons cases is to be follow ed and therefore consequently it is to be held that w hile conducting enquiry for action under Sections 18, 19, 20, 21, 22 and 23 of the Act, the procedure prescribed for sum m ons cases is to be follow ed and it is m andatory. C ounsel for the petitioner has relied on the judgm ent of the Karnataka High C ourt in the case of Krishna M urthy Nookula v. Y. Savitha, 2016 C ri. L.J.1970. Thus, subm itted that, unless procedure laid dow n for the, ‘sum m ons case’ is follow ed, the M agistrate cannot exercise jurisdiction under Section 23(1) of the D.V. Act.

3. In m y view , the subm issions are m isconceived and contrary the schem e of the D.V. Act. A t the first place, it m ay be stated that the proceedings under the D.V. Act are predom inantly of civil nature and it is only w hen there is breach of protection order contem plated under Section 31 or failure or refusal to discharge duty w ithout any sufficient cause by the Protection O fficer, as contem plated under Section 33 , the proceedings assum e the character of crim inality. Section 28 of the D.V. Act, provides that the proceedings relating to application under Section 12 shall be governed by the C ode of C rim inal Procedure 1973. Rule 6(5) of the Dom estic Violence Rules, 2006 says that application under Section 12 shall be dealt w ith and orders enforced in the sam e m anner as laid dow n under Section 12 5 of the C ode of C rim inal Procedure, 1973. Therefore, the procedure to be follow ed in deciding the applications under Section 12 is the procedure laid dow n under Section 12 5 of the C r.P.C . Under Section 12 , aggrieved person, m ay present an application to the M agistrate, seeking one or m ore reliefs under this Act, w hereby M agistrate is invested w ith the jurisdiction and pow er to pass protection order under Section 18; residence orders under Section 19; m onetary reliefs under Section 20;

custody orders under Section 21; under Section 22 com pensation order and interim and ex-parte orders under Section 23 . Therefore, the application preferred under Section 12 seeking one or m ore aforestated reliefs, are to be dealt w ith in the m anner laid dow n under Section 12 5 of the C ode.

4. Therefore, the contention of the petitioner that, w hile dealing w ith the applications under Section 12 for the various reliefs, enquiry is to be conducted in the m anner as per the procedure for trial of the sum m ons cases, i