Remedies Sought Under Domestic Violence Act Of Civil Nature, Amendment To Application U/S 12 Are Allowed: Allahabad High Court

The Allahabad High Court has held that proceedings under Chapter IV of the Domestic Violence Act, 2005 are civil in nature and amendments to applications made to the Magistrate under Section 12 of the Act are allowed to be made.

“The proceedings before the Magistrate relating to reliefs claimed under Chapter IV of the D.V. Act, having been held essentially to be of a civil nature, the power to amend the complain/application would have to be read in relevant statutory provisions, as a necessary concomitant,” held Justice Dr.Yogendra Kumar Srivastava.

The Court relied on the decision of the Supreme Court in Kunapareddy Alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari and Another to hold that it had the power to allow amendment to applications filed under the DV Act provided no prejudice was cause to the other side. It was held that amendments could be allowed in circumstances where such amendment was necessary in light of subsequent events or to avoid multiplicity of litigation.

Case Background

Respondent No.3, daughter-in-law of the petitioner, filed an application under Section 12 of the Domestic Violence Act. Thereafter, she moved an application seeking to amend the prayer clause in the earlier application, where 'minor son' had wrongly been mentioned while seeking maintenance.

Petitioner objected to the amendment sought on the ground that such amendment was impermissible in a criminal proceeding. The Magistrate allowed the application of Respondent No.3. Against this, the petitioner preferred a revision which was rejected on grounds that proceedings under the DV Act were quasi civil in nature and thus amendments to pleadings could be allowed. Aggrieved by the same, petitioner filed the writ petition before the High Court.

Counsel for petitioner relied on the facts of the case and the defence set up by the petitioner to contend that the amendment application could not be allowed.

Per contra, counsel for respondent submitted that the amendment filed was to correct an unintended typographical error and that the petitioner had only objected to the said amendment in order to delay the proceedings. It was submitted by both the counsel for the state and private respondent that proceedings under the DV Act were civil in nature and that in a situation where amendment would be necessary, the Courts would have the power to allow it.

High Court Verdict

The Court traced the origins of the Domestic Violence Act to the General Recommendation No. XII(1989) by the United Nations Committee on Convention of Elimination of all Forms of Discrimination against women, the Vienna Accord of 1994 and the Beijing Declaration and Platform for Action(1995). Relying upon the 124^th Report on the Domestic Violence Bill, submitted by a Standing Committee of the Ministry of Human Resource Development in the Rajya Sabha, the Court observed that the legislative intent behind the Domestic Violence Act was to provide a remedy under civil law to a victim of domestic abuse. This view was further strengthened by a perusal of the statement of objects and reasons mentioned in the D.V. Act.

“The D.V. Act was enacted as a law (Act 43 of 2006) with the purpose of providing a remedy in civil law for the protection of women from being victims of domestic violence and to protect the occurrence of domestic violence in society. The enactment of law was made keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution and to provide for a remedy in the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.”

The Court noted that under Section 2(a) of the DV act, the 'aggrieved person' was defined with respect to a 'respondent' defined under Section 2(q) and not referred to an accused. The Court held that the grievances and reliefs under the Act were not in the nature of a formal accusation as in a criminal case and thus the person against whom relief was sought was not an accused.

Among the various reliefs that could be claimed under the DV Act, it was only the breach of a protection order or an interim protection by the respondent that would be considered an offence in terms of Section 31 (Penalty for breach of protection order by respondent), held the Court.

The Court examined Section 28 of the DV Act which provides the procedure for disposal application, and held that while there was a distinction between 'proceedings' under Sections 12, 18, 19, 20, 21, 22 and 23 and 'offences' under Section 31, they would be governed by the law laid down in CrPC. Further, the Court noted that Section 28(1) began with the words “save as otherwise provided by this Act” implying the exclusion of the provisions of the CrPC where procedure had expressly been provided under the Act. It was also observed that Section 28(2) commenced with a non-obstante clause which empowered the court to lay down its own procedure for disposal of an application under Section 12 or under Section 23(2) of the Act.

The Court relied on State of Uttar Pradesh v. Mukhtar Singh where the Allahabad High Court had held that whether a proceeding was civil or not depended “on the nature of the subject-matter of the proceedings and its object and not on the mode adopted or the forum provided for the enforcement of the right”.

In SAL Narayan Row v. Ishwarlal Bhagwandas, reiterated in Ram Kishan Fauji v. State of Haryana and Ors., a Constitutional Bench of the Supreme Court had considered the test to be applied for examining the nature of a proceeding before a court.

“A civil proceeding is therefor one in which a person seeks to enforce by appropriate, relief the alleged infringement of his civil rights against another person or the State, and which if the claim is proven would result in the declaration express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal right, determination of status etc.,” held the Apex Court.

Further reliance was place on Kunapareddy Alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari and Another, where the Supreme Court held that with respect to Section 28, though proceedings under Section 18 and 20 were to be governed by the provisions in the CrPC, they were “undisputedly” of a civil nature. Further, it was stated that all the reliefs under Chapter IV of the D.V. Act were by their disposition, civil.

The Court also relied on the decision in Kamatchi v. Lakshmi Narayanan where the Apex Court held that the Magistrate after hearing the parties and considering the material on record, may pass an appropriate order and only the breach of such order would constitute an offence under Section 31 of the Act.

The Court held that there was a distinction between a 'complaint' under the DV Act and the Rules thereunder and 'complaint' under the CrPC. Under Rule 2(b) of the DV Rules, a complaint had been defined as an allegation made orally or in writing to a Protection Officer, whereas, a complaint under Section 2(d) CrPC was an allegation made orally or in writing to a Magistrate with a view to taking action under the CrPC that a person had committed an offence. It was held that the filing of an application under Section 12 of the DV Act could not be equated to the lodging of a complaint or the initiation of a prosecution under the provisions of the CrPC.

The Court relied on S.R. Sukumar v. S. Sunaad Raghuram, wherein the Supreme Court held that though there was no provision in the CrPC which allowed for the amendment of a complaint or a petition, if the amendment sought was with regard to a “simple infirmity” which could be cured by a formal amendment. It was held that provided such amendment would not cause prejudice to the other side, the Court could permit the same.

The Court held that even in criminal cases governed by the CrPC, it had the power to allow amendment in certain circumstances where facts based on subsequent events were sought to be introduced or to avoid multiplicity of proceedings. It was held that an amendment would also be allowed if it were with regard to a simple infirmity, provided no prejudice is caused to the other side.

Accordingly, the writ petition was dismissed.

Case Title: Saleem Ahmad vs. State Of Up And 2 Others 2024 LiveLaw (AB) 361 [MATTERS UNDER ARTICLE 227 No. ­ 339 of 2024]

Citation: 2024 LiveLaw (AB) 361

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