The Bombay High Court has held that under the Protection of Women from Domestic Violence Act, 2005, the court is empowered by Section 28(2) to deviate from the prescribed procedure under Rule 6(5) of the DV Rules or S.125 of CrPC and in its own discretion may allow evidence on affidavit and cross-examination to test veracity of evidence.
Justice Anuja Prabhudessai dismissed the petition filed by the husband against his wife (respondent) under Section 12 of the said Act and held under Section 28(2), courts can lay down their own procedure in deciding such an application.
Both parties in the application, i.e., petitioner husband and respondent-wife, were married in 2013 and filed a divorce petition two years later in 2015, which is still pending before the family court.
The respondent-wife had also filed an application under Section 12 of the said Act before the Court of JMFC, Cantonment, Pune in 2015. The petitioner husband filed an application in 2016 contending that proceedings under the said Act are to be dealt with in the manner laid down under Section 125 of the CrPC. Meaning that the respondent wife was not entitled to file affidavit in evidence but should step into the witness box and adduce evidence.
After hearing both parties, the magistrate held that Section 28(2) of the DV Act permits the court to lay down its own procedure for disposal of an application under Section 12 and permitted affidavit in evidence to be filed, dismissing the petitioner husband’s application. Then a petition was filed in the high court by the petitioner husband questioning whether an applicant under Section 12 of the act can be allowed to file an affidavit in evidence.
The court noted that although sub-section (1) Rule (5) of Rule 6 indicates that in deciding the application under Section 12, the court has to follow the procedure prescribed under Section 126 of the CrPC and thus, record evidence in presence of the parties. However, the court also pointed out that Section 28(2) states –
Nothing in Sub Section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under Sub Section (2) of Section 23.
Referring to the decision of the Supreme Court in Balwant Singh (Dead) v Jagdish Singh and Ors, the court interpreted Section 28(2) and said-
“When the language of the provision is plain, clear and unambiguous, the Courts should not extend or limit the scope of Section but read the Section as it is and interpret in a manner which makes the provision workable and not redundant or otiose.”
The court further noted-
“Though, unlike Negotiable Instrument Act, there is no specific provision in the D.V. Act to give evidence on affidavit, section 28(2) with words plain, simple and unambiguous gives flexibility to the Court to depart from the procedure prescribed under Section (1) of Section 28 and to devise its own procedure in deciding application under Section 12 or 23(2) of the Act. This enabling provision, which intends to achieve the object of the Act, would override subsection (1) of section 28 the Act as well as Rule 6(5) of D.V. Rules. Having regard to the object and scope of the Act, this provision cannot be given a narrow interpretation which will have an effect of rendering it redundant, surplus or otiose. In my considered view, such approach will defeat the very object of the Act.
Thus, in my considered view the Court can deviate from procedure prescribed under Sub Section (1) of Section 28 r/w Rule 6(5) and devise its own procedure, which would include permitting evidence by way of an affidavit. In other words, the court in its discretion can allow evidence on affidavit and permit cross-examination to test veracity of the evidence.”