Court Can Allow Evidence On Affidavit In DV Act Case: Gujarat High Court

The Gujarat High Court recently held that a court can deviate from procedure mentioned under Section 28 (1) read with Rule 6(5) of The Protection of Women from Domestic Violence Act, 2005, and devise its own procedure which would include permitting evidence by way of an affidavit.

The single judge bench comprising Justice Samir J. Dave noted:

“….Court can allow evidence on affidavit in its discretion and while considering the aims and objects of the D.V. Act including the scope of Section 28(2), court can deviate from procedure mentioned under Sub Section (1) of Section 28 read with Rule 6(5) and devise its own procedure which would include permitting evidence by way of an affidavit.”

The wife and minor child of the present applicant filed an application under Section 12 of the D.V. Act before the JMFC, Talala. During the proceedings, the respondents before the court below filed an application and requested to discard the examination in chief on affidavit filed by the wife and her minor child and sought a direction for giving oral submissions before the court. However, the JMFC, Talala on August 8, 2022 rejected the application. The order of the JMFC was challenged in appeal before the Sessions Court which vide order dated December 30, 2022 dismissed it.

Before high court, it was argued that the orders passed by both the courts i.e. JMFC as well as First Appellate Court (Sessions Court) are contrary to law and have been passed without appreciating the facts of the case and provisions of the law. It was further submitted that both the courts have failed to appreciate the provisions of Section 28 of the D. V. Act and relevant rules thereof.

It was contended that there is no provision either in the CrPC or in the Indian Evidence Act to file an affidavit as a substitute for the oral evidence. It was further argued that the chief examination should be by way of oral evidence and if any deviation from the said procedure, prejudice would be caused to the parties.

The court noted that preamble of the D.V. Act makes it clear that violence, whether physical, sexual, verbal, emotional or economic, are all to be redressed by the statute. A plain reading of these provisions clearly indicates that the DV Act provides effective protection to women, who are victims of domestic violence, it added.

"The Act prescribes mandatory time limit for fixing the date of hearing, service of notice and disposal of the application with an intent and object of providing expeditious and speedy relief to the aggrieved women," said the court.

The court relied upon the judgment in Aniket Subhash Tupe v. Piyusha Aniket Tupe & Another in which the Bombay High Court held that Section 28 (2) of the D.V. Act provides that nothing in Sub Section (1) shall prevent the court from laying down its own procedure for disposal of an application under Section 12 or under Section 23 (2) of the D. V. Act.

The reliance was further placed upon the judgment in Manish Kumar Soni & Ors. Vs. State of Bihar and Anr wherein the Patna High Court held that though the provision under Section 28(1) of the Act stipulates that the proceeding under Section 12 of the Act shall be governed by the provisions of the CrPC, but the same is directory in nature and any departure from the provisions of Code of Criminal Procedure will not vitiate the proceeding initiated under Section 12 of the Act.

Thus, the court opined that trial court as well as first appellate court have not committed any error in passing the impugned orders.

"This court is of the view that Court can allow evidence on affidavit in its discretion and while considering the aims and objects of the D.V. Act including the scope of Section 28(2), court can deviate from procedure mentioned under Sub Section (1) of Section 28 read with Rule 6(5) and devise its own procedure which would include permitting evidence by way of an affidavit," it said.

Case Title: Samirkumar Chandubhai Joshi v. State of Gujarat & Ors

Case Citation: 2023 Livelaw (Guj) 88

Click Here to Read/Download Judgment