S.12 DV Act | 'Domestic Incident Report' By Protection Officer Not Mandatory To Grant Interim Maintenance: Orissa High Court

The Orissa High Court has held that 'Domestic Incident Report' (DIR) from the 'Protection Officer' is not mandatory and hence, not a pre-requisite to grant relief to an aggrieved woman under Section 12(1) of the Protection of Women from Domestic Violence Act, 2005 ('the Act').

Interpreting the above provision of the Act, the Single Bench of Justice Chittaranjan Dash observed:

“Section 12(1) requires the Magistrate to take into consideration the Domestic Incident report. However the Domestic Incident Report is not mandatory for passing orders and/ or shall be taken into consideration only in cases where it has been filed.”

Brief Background

Herein, the OP No.2 had initiated a proceeding under Section 12 of the DV Act against the petitioners seeking various reliefs as she was physically and mentally harassed by the petitioners in connection with a demand of dowry amounting to Rs. 10,00,000/- or an expensive car.

The petitioners approached the High Court seeking to quash such proceeding by denying the allegations. It was pleaded that the proceeding is not maintainable as the same has not been filed in consonance with the statute which requires the application to be filed in accordance with Rule 6 of the PWDV Rules in Form No. II and affidavit to be filed in Form No. III.

The counsel for the petitioner contended that as the DIR has not been received from the Protection Officer, as required under Section 12(1) of the Act, the application is not maintainable as consideration of the said report is mandatory in nature before granting any relief. However, the counsel for the State opposed the above contention.

Court's Observations

The moot question which arose before the High Court was whether relief can be granted to the OP No.2 under Section 12(1) of the Act in absence of DIR from the protection officer.

For the purpose of answering the said question, the Court relied upon the decision of the Bombay High Court in Nandkishor v. Kavita wherein it was held that the trial court can grant relief under the Act without considering the report of Protection Officer. It observed as follows:

“The point as regards calling of the report from the Protection Officer or Service Provider is concerned one will have to interpret provisions of Section 12 of the Act and the said interpretation has to be in favour of the person, who is in need of maintenance and in particular interim maintenance…If the trial Court, who is required to pass an interim order, keeps on waiting to get the report of the Protection Officer or Service Provider, it would entail the delay and the idea of considering the case of a needy person at the interim stage will be actually defeated.”

It also made a reference to the following observation of the Jammu and Kashmir High Court in the case of Ajay Kaul & Ors. v. State of J&K:

“The proviso added to Section 12(1) of the DV Act is only to the effect that in case a domestic incident report has been received by the Magistrate, the same shall be considered before passing any order on an application received. Section 12 of the DV Act per se does not hold that a Magistrate on receipt of complaint is obligated to call for a domestic incident report, before passing any order on an application. So it is not mandatory for a Magistrate to obtain a domestic incident report before the Magistrate passes any order provided under various section of Act...”

After placing reliance upon the above decisions, the Court was of the view that quashing petition filed by the petitioners does not hold any merit as the application under Section 12 is maintainable even in absence of DIR.

Accordingly, the petition was dismissed.

Counsel for the Petitioners: Mr. D. Panda, Advocate

Counsel for the Opposite Parties: None

Citation: 2024 LiveLaw (Ori) 5

Case Title: Sk. Sadab Kadir & Ors. v. Saher Saniya

Case No: CRLMC No. 379 of 2023

Date of Order: December 01, 2023

Click Here To Read/Download Order