Proceedings Under Domestic Violence Act Civil In Nature, Can Be Transferred To Family Court With Victim's Consent: Madras High Court

The Madras High Court has held that proceedings under the Protection of Women from Domestic Violence Act, though before a Magistrate, are civil in nature. It observed that the intention of the legislature in enacting the Domestic Violence Act was to ensure civil law remedies to the victims of domestic abuse by adopting criminal procedure.The court also held that since the legislature had clear intentions while granting special powers to the Magistrate under the Act, the same could not be diluted by transferring the domestic violence proceedings to a civil court or a family court, without the victim's consent. The bench of Justice M Duraiswamy and Justice Sunder Mohan was answering a reference made by two single judge benches of Justice R Subramanian and Justice K Murali Shankar.The main questions sought to be answered through the reference were:(i) Whether the proceedings initiated under the provisions of the Protection of Women from Domestic Violence Act before the Magistrate Courts are Civil proceedings or Criminal proceedings?(ii) Assuming that the proceedings are civil in nature, whether the High Court can exercise its power under Section 482 of Cr.P.C, in respect of the said proceedings?(iii) Whether the provisions of Section 468 of Cr. P.C, are applicable for the proceedings initiated under the Domestic Violence Act?(iv) Assuming that Section 468 Cr. P.C, is not applicable, what is the period of limitation for initiating the proceedings under the Domestic Violence Act?(v) Whether the proceedings initiated under the Domestic Violence Act and pending before the Magistrate Court can be transferred to Civil Court or Family Court, by invoking Article 227 of the Constitution of India?Whether Proceedings Are Civil or Criminal With respect to the first question, the reference was made in view of two conflicting views of Justice Anand Venkatesh and Justice SM Subramaniam. Justice Anand Venkatesh had held that the proceedings under Chapter IV of the Domestic Violence Act are civil in nature while Justice SM Subramaniam held that the proceedings are criminal proceedings. The division bench opined that matter was already settled through the decision of the Supreme Court in the case of Kunapareddy v. Kunapareddy Swarna Kumari where it was laid down clearly that the proceedings under Chapter IV of the Domestic Violence Act are civil in nature. Justice Anand Venkatesh in Dr P. Pathmanathan and others v. Smt. V. Monica looked into the Statement of Objects of the Domestic Violence Act which spells out that the Act has been enacted mainly to address the absence of civil law remedies to the victims of an offence under Section 498-A IPC and also to provide a remedy under civil law to protect the women from being a victim of Domestic Violence and to prevent such occurrences. The single judge had also relied upon the judgment of the Apex Court in S.A.L. Narayan Row and another v. Ishwarlal Bhagwandas which lays down the test to be applied to determine the nature of the proceedings. The single judge, applying the test laid down by the Apex Court and having regard to the nature of reliefs that could be granted under the Domestic Violence Act, had held that the proceedings are civil in nature. The division bench opined that the above two decisions of the Apex Court were not brought to the attention of Justice SM Subramaniam which led the single judge to hold that the proceedings under the Domestic Violence Act were criminal in nature. The reasoning given by the single judge to arrive at this conclusion was that the acts defined under Section 3 of the Domestic Violence Act are criminal in nature and were regulated under the CrPC. The division bench observed that the nature of relief provided under the Domestic Violence Act are prohibitory orders, the right to get compensation, right to monetary reliefs, right of residence such as the right from being dispossessed from a shared household etc. The determination of rights under Chapter IV of the Domestic Violence Act does not result in penal consequences so as to term it as criminal proceedings. Thus, proceedings under Chapter IV of the Domestic Violence Act are civil in nature. Penal consequences follow only when there is a breach of protection order. The court further looked into the Statement of objects and reasons which clearly establishes the intention of the legislature to bring in the Act. The object behind introduction of the Act was to provide civil remedies to victims of Domestic violence. The Statement of Objects and Reasons specifically says that since there is no civil law to address the phenomenon of domestic violence, which constitutes an offence under Section 498-A IPC and there was no civil law to protect the women from domestic violence and to prevent the occurrence of domestic violence, the Act was sought to be enacted. The Act, therefore, in our view, creates a plethora of civil rights, breach of which provides various remedies ...

Proceedings Under Domestic Violence Act Civil In Nature, Can Be Transferred To Family Court With Victim's Consent: Madras High Court

Upasana Sajeev

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