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Not Mandatory For Magistrate To Consider Domestic Incident Report Before Passing Any Order In Application Filed By Aggrieved Person Herself Or Her Advocate: Supreme Court
Ashok KM
12 May 2022 3:21 PM GMT
The Supreme Court held that it is not mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order in application filed by the aggrieved person herself or her advocate under the Domestic Violence Act.Even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as...
The Supreme Court held that it is not mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order in application filed by the aggrieved person herself or her advocate under the Domestic Violence Act.
Even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the DV Act, the court clarified.
The bench clarified that the Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider.
In this case, the Uttarakhand High Court had held that as per the provisions of Section 12 (1) of the D.V. Act, a Domestic Incident Report is required to be mandatorily filed by a Protection Officer or a service provider before the Magistrate and the Magistrate may take cognizance of an offence under the D.V. Act on the basis of such report.
In appeal before the Apex court the issue raised was whether the consideration of Domestic Incident Report is mandatory before initiating the proceedings under D.V. Act, in order to invoke substantive provisions of Sections 18 to 20 and 22 of the Act?
The court noted that as per Section 12, an aggrieved person on her own or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act but the proviso states that when a Domestic Incident Reported is received by the Magistrate from the Protection Officer or the service provider, in such a case, the same shall be taken into consideration. The court therefore considered whether in the absence of a Domestic Incident Report, the Magistrate can pass any order under the D.V. Act particularly when an application is filed before the Magistrate by the aggrieved person by herself or through a legal counsel?
Although, the expression 'shall' is used in the proviso, it is restricted to only those cases where a Protection Officer files any Domestic Incident Report or, as the case may be, the service provider files such a report. When a Domestic Incident Report is filed by a Protection Officer or a service provider, in such a case the Magistrate has to take into consideration the said report received by him. But if such a report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. Therefore, the expression 'shall' has to be read in the context of a Domestic Incident Report received by a Magistrate from the Protection Officer or the service provider as the case may be in which case, it is mandatory for the Magistrate to consider the report. But, if no such report is received by the Magistrate then the Magistrate is naturally not to consider any such Domestic Incident Report before passing any order on the application. As already noted, this could be in a case where an aggrieved person herself approaches the Magistrate or the services of an advocate is engaged to present an application seeking one or more reliefs under the D.V. Act or for a valid acceptable cause/reason a Domestic Incident Report has not been filed by a Protection Officer or a service provider, as the case may be."
The court observed that if the intention of the Parliament had been that filing of the Report by the Protection Officer is a condition precedent for the Magistrate to act upon the complaint filed by an aggrieved person even when she files it by herself or through her advocate then it would have been so expressed.
"Thus, the plenitude of power under Section 12 of the D.V. Act is accordingly interpreted and pre-requisite for issuing notice to the respondent on an application filed by the aggrieved person without the assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise. If a contrary interpretation is to be given then the opening words of Sub-Section (1) of Section 12 would be rendered otiose and it would be incumbent for every aggrieved person to first approach a Protection Officer or a service provider, as the case may be, and get a Domestic Incident Report prepared and thereafter to approach the Magistrate for reliefs under the D.V. Act, which is not the intention of the Parliament."
The court also overruled various High Court judgments which held otherwise.
Case details
Prabha Tyagi vs Kamlesh Devi | 2022 LiveLaw (SC) 474 | CrA 511 OF 2022 | 12 May 2022
Coram: Justice MR Shah and BV Nagarathna
Headnotes
Protection of Women from Domestic Violence Act, 2005 ; Section 17,19 - It is not mandatory for the aggrieved person to have actually lived or resided with those persons against whom the allegations have been levelled at the time of seeking relief. If a woman has the right to reside in a shared household, she can accordingly enforce her right under Section 17(1) of the D.V. Act. If a woman becomes an aggrieved person or victim of domestic violence, she can seek relief under the provisions of the D.V. Act including her right to live or reside in the shared household under Section 17 read with Section 19 of the D.V. Act. (Para 52, 22-41)
Protection of Women from Domestic Violence Act, 2005 ; Section 12 - There should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-Ã -vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting - Even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act. (Para 52, 42-44)
Protection of Women from Domestic Violence Act, 2005 ; Section 12 - Not mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order- Even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order - The Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider. (Para 52, 45-51)
Protection of Women from Domestic Violence Act, 2005 ; Section 17(1) - Every woman in a domestic relationship has a right to reside in the shared household even in the absence of any act of domestic violence by the respondent - she cannot be evicted, excluded or thrown out from such a household even in the absence of there being any form of domestic violence - If a woman in a domestic relationship seeks to enforce her right to reside in a shared household, irrespective of whether she has resided therein at all or not, then the said right can be enforced under Section 17(1). (Para 25-30)
Protection of Women from Domestic Violence Act, 2005 ; Sections 2(f), 17 - The expression 'joint family' cannot be understood as understood in Hindu Law - The expression 'family members living together as a joint family', means the members living jointly as a family. In such an interpretation, even a girl child/children who is/are cared for as foster children also have a right to live in a shared household and are conferred with the right under Sub-Section (1) of Section 17 of the D.V. Act. When such a girl child or woman becomes an aggrieved person, the protection of Section 17(2) comes into play. (Para 36)
Interpretation of Statutes - Principles that govern the interpretation to be given to proviso in the context of main provision discussed. (Para 50)
