[Domestic Violence Act] Permissible Amendments, Additional Reliefs U/S 12 Can Be Sought By Fresh Application U/S 23: Allahabad High Court

The Allahabad High Court has held that amendments and additional reliefs permissible under Section 12 of the Protection of Women from Domestic Violence Act, 2005, would be maintainable in the form of a fresh application under Section 23 of the Protection of Women from Domestic Violence Act, 2005.

“Where in the application under Section 12, permissible amendment in view of subsequent developments or otherwise is made and additional permissible relief is sought, a fresh application under Section 23 would be maintainable,” held Justice Jayant Banerjee.

Section 12 of the Protection of Women from Domestic Violence Act, 2005 empowers an 'aggrieved person' to move an application before the Magistrate for seeking reliefs including reliefs for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent.

Section 23 of the DV Act empowers the Magistrate to pass any interim order as he may deem fit in proceedings under the Act before him. When prima facie case of domestic violence is established or likelihood of domestic violence is established, the Magistrate can grant ex-parte interim orders based on the affidavit of the aggrieved person filed as per Sections 18, 19, 20, 21 or 22 of the DV Act.

Case Background

Petitioner had lived in her ancestral home of the Fort of Ramnagar since her childhood. She stated that after the death of her father, the former ruler of the State of Banaras, she was asked to leave the house and also subjected to domestic violence by Respondent No.2, her youngest sibling. It was submitted that the petitioner was misbehaved with, manhandled and tortured so that she would be forced to abandon her residence at the Ramnagar Fort and other properties, to which she was entitled. Thus, she filed an application under Section 12 read with Section 23 of the Protection of Women from Domestic Violence Act, 2005, against Respondent No.2.

The Additional Chief Judicial Magistrate, Varanasi, by order dated 21.10.11, restrained the Respondent No.2 from interfering in the properties shared between him and the petitioner. Against this, Respondent No.2 preferred a Special Leave Petition before the Supreme Court, which was dismissed. Thereafter, another application under Section 23 of the DV Act was filed by the petitioner on 30.10.2021, seeking protection under Section 18 of the DV Act for restraining Respondent No. 2 from transferring the properties claimed to be owned by her.

On 07.01.2021, the Respondent No.2 filed objections to the aforementioned application and by an order dated 12.04.2022, it was observed that the trial court would be ill suited in granting the relief sought in the application and that the matter was to be placed before the civil court. Petitioner then filed a Criminal Appeal against the order dated 12.04.2022, which was subsequently dismissed by order dated 02.06.2022. Aggrieved by the same, petitioner approached the Allahabad High Court under Article 227 of the Constitution of India.

Counsel for the petitioner contended that the properties under dispute were mentioned both in the schedule to the applications in the year 2011 and 2021. It was their submission that in the view of various definitions of prevalent terms under the DV Act, the issue of the properties in question fell under the jurisdiction of the courts under the Act.

Further, it was submitted that given the provisions of Section 26, reliefs under Section 18, 19, 20, 21 and 22 could be sought before a civil, family or criminal court regardless of whether the proceedings were initiated before or after the enactment of the DV Act. Petitioner submitted that given that Respondent No. 2 had time and again admitted into record the family settlement agreement, the courts exercising jurisdiction under the DV Act had the power to pass and order regarding the same.

It was contended that as per the decision of the Supreme Court in Satish Chander Ahuja v. Sneha Ahuja, the court while exercising jurisdiction under Section 19 of the DV Act would exercise civil jurisdiction. Lastly, it was submitted that the delay in filing the application dated 30.10.2021 was due to circumstances that were created out of Respondent No.2 transferring the properties in the year 2021.

Per Contra, counsel for respondent submitted on the strength of the orders of the High Court dated 04.01.2019 and the Supreme Court dated 02.09.2019, that the petitioners had filed the application dated 30.10.2021 just to delay the matter at hand even though they had been directed to be decided expeditiously. It was contended that the mutation of the properties in question had already taken place in favour of Respondent No.2 and that it would be the civil court which would adjudicate the matter as far as it related to the immoveable properties in dispute.

Further, it was submitted that there was no evidence of the domestic violence alleged by the petitioner as they both reside in separate portions of the premises. Counsel for respondent pointed out that there was a civil suit that was pending between the parties with regard to the property in dispute. Thus, it was contended that the application of the petitioner dated 30.10.2021 was rightly dismissed.

High Court Verdict

The Court observed that the Appellate Court, while dismissing the appeal of the petitioner, had framed a point for determination: Whether another application under Section 23 of the DV Act could be filed during the validity of the order dated 02.10.2021 passed in the previous application under Section 23 of the Act?

Relying on the decision of the Supreme Court in Himani Alloys Ltd. v. Tata Steel Ltd., Kunapareddy v. Kunapareddy Swarna Kumari & Ors., Vaishali Abhimanyu Joshi v. Nanasahed Gopa Joshi and Deoki Panjhiyara v. Shashi Bhushan Narayan Azad & Anr., the Court held that primarily, the purpose of the DV Act was to provide a remedy in civil law against the evils of Domestic Violence.

The Court held that there was no bar on allowing amendments in criminal courts governed by CrPC, although this was to be done sparingly and with caution. It was held that such an amendment could be allowed after evaluating the circumstances of the case at hand, so long as the amendment only sought to cure a “simple infirmity” which would not cause harm to the other side, despite the lack of an enabling statutory provision. Thus, it was held that on such an amendment being affected, a fresh application under Section 23 of the DV Act would be maintainable for a protection order under Section 18.

Further, the Court held that the definition of 'economic abuse' under “domestic violence” as in Section 3 of the DV Act, included the alienation of assets whether moveable or immoveable in which the aggrieved person had an interest or is entitled to use by virtue of the domestic relationship.

“Given Explanation I to Section 3, which uses the word 'includes; while defining the term “economic abuse”, and, the 'overall facts and circumstances of the case' that are required to be taken into consideration in view of Explanation II, it would bring into the ambit of the definition of “domestic violence” the properties mentioned in the Schedule to the application dated 30.10.2021 filed by the petitioner.”

The Court held that that adjudication of title of the moveable/immoveable property sought to be alienated, of an aggrieved person under the DV Act, could be done by a competent civil court. However, it was also held that a protection order regarding such properties could be passed by a Magistrate under Section 18 of the DV Act on his “prima facie satisfaction that domestic violence has taken place or is likely to take place.” Further, it was held that reliefs under Section 18, 19, 20, 21 and 22 in an application under Section 12 of the Act, could be sought before the civil court before which the petitioner had filed the suit for the title of the properties.

The Court held that the protection sought by the application dated 30.10.2021 held the characteristics of an interim relief. It was held that the reliefs available to the petitioner under the DV Act could be addressed in light of the provisions of Section 26 of the DV Act.

The Court observed that the petitioner was at liberty to move the required application before the civil court. It was directed that no-third party interests will be created over any of the properties in dispute for a period of five months.

Accordingly, the present petition was disposed of.

Case Title: Maharaj Kumari Vishnupriya v. State of U.P. and 2 Ors. [MATTERS UNDER ARTICLE 227 No. 8348 of 2023]

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