Domestic Inquiry Report Not Compulsory For Initiating Proceeding U/S 12 Domestic Violence Act: Gauhati High Court

Justice Rumi Kumari Phukan observed that whether such domestic violence was inflicted upon the respondent no.2/wife, is not a subject matter of trial and such matter cannot be decided in such petition:

"DIR is not compulsory and the court has the ample power to pass an ex parte order to provide such monetary relief and the present case is squarely covered by the observation/ conclusion that has been reached by this Court."

In the present matter the petitioner had challenged a trial court ex parte maintenance in favour of the respondent directing the petitioners to pay sum of Rs.4,500/- (rupees four thousand five hundred) until further order(s) or final disposal of the case. The petition was filed stating that the trial order is bad law and the same has been passed without hearing the petitioners' side and there is no prima facie material to show that the wife was subjected to domestic violence by the petitioners as because she only remained only for few months in her matrimonial house and after returning from there, she filed the petition before the court below after one year of her return.

Legal aid counsel Debashree Saikia appearing for the wife vehemently opposed the prayer contending that the court has ample power to pass such ex parte order under Section 23(2) and 28(2) of the PWDV Act, 2005 on being satisfied about the prima facie case and has been rightly done by the trial court, which reveals from the impugned order itself.

Court noted that in another matter before it, called Monjit Talukdar vs. Rita Talukdar and Ors it had observed that for drawing a proceeding under Section 12 of the DV Act, DIR is not compulsory and the court has the ample power to pass an ex parte order to provide such monetary relief and the present case is squarely covered by the observation/ conclusion that has been reached by this Court.

The Court observed that after going through all the documents placed on record by the wife, it is satisfied that she was subjected to such domestic violence in her matrimonial house.

"It is also noted that under Section 23 (2) of the DV Act, the Court has ample power to pass ex parte order on being satisfied all about the matter and such power of the Court cannot be frustrated by any other submission of facts that the respondent no.2 has filed the case on frivolous grounds. There being no indication of domestic violence as per Section 29 of the Act, aggrieved person can challenge every order passed by the trial court but instead of doing the same, the petitioners have come forward with the petition under Section 482/401 CrPC to challenge the ex parte order, which is also not permissible as there is alternative remedy to challenge the aforesaid order."

The Court also recorded that trial court had given liberty to the petitioners to file their objection for modification of the order by filing written statement. That being so, the petitioners had the liberty to sought for modification of the order before the trial court but same was not done. On a query made by this Court, it is submitted that the case is now at the evidence stage, fixing for cross-examination of witnesses of the respondent side.

Court observed that the trial court is in a position to decide the matter in entirety. Right of a wife to get the maintenance/interim maintenance cannot be frustrated on the pretext of faulty conduct of his wife unless the same is proved in due course of hearing. And that in case of monetary relief, it is the husband who has to comply the same by providing maintenance but not other in-laws who are also petitioners in the instant case.

In view of the above, the court directed the petitioner to comply by the trial court's order and pay the maintenance to his wife till the matter is finally disposed of.

Case Title : NILAKANTA MALAKAR @ SANTO AND 4 ORS. V THE STATE OF ASSAM AND ANR.

Citation: 2022 LiveLaw (Gau) 28

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