Karnataka High Court: While deciding the instant petition wherein the issue was whether a direction should be issued to the Court concerned to dispose of the applications filed under the Protection of Women from Domestic Violence Act, 2005 (hereinafter DV Act) within a time frame; the Bench of M. Nagaprasanna*, J., directed that from henceforth, Magistrates must decide the applications filed by the aggrieved persons under Section 12, and Sections 18, 19 or 20 of the DV Act, within 60 days from the date of its filing. The applications could be for the benefit of Sections 19 and 20 of the DV Act which are filed along with the application under Section 12 of the DV Act. Any delay beyond 60 days to consider the application should be only for reasons to be recorded in writing. “A woman, who is a victim of domestic violence, knocking at the doors of the Magistrate, under the Act seeking maintenance or shelter such grievance, will have to be addressed with immediacy. It is for this reason that the statute mandates that such applications have to be disposed of within 60 days”.
“Adherence to the timeline would be of paramount importance, as remedy under Section 12 to an aggrieved person is imperative. Therefore, timely disposal of such applications is also imperative as Section 12 is the salt of the statute; if by delay the salt would lose its savour; the statute would lose its flavour”.
Background and Legal Trajectory— The petitioner (wife) and the respondent (husband) got married in 2016 and a child was born to them in 2017. However, the relationship between the husband and wife soured and the wife instituted proceedings under the DV Act invoking Section 12 and also filed several other applications under Section 23 seeking non-alienation, encumbrance of schedule property, seeking alternative accommodation, monetary relief, ex-parte maintenance and return of valuable articles. In all, there were five applications filed by the petitioner on 15-10-2018.
The Magistrate rejected the application for non-alienation or encumbering the scheduled property and did not pass any order on any other applications.
Being aggrieved by non-passing of orders on several applications that are pending consideration for close to 5 years, the petitioner approached the High Court seeking an early disposal of those applications filed along with the claim on 15-10-2018.
Court’s Assessment: Perusing the facts and noting the pendency in deciding the applications, the Court clinically dissected the legal framework of the DV Act. Noting that the 2005 Act was promulgated in furtherance of the Vienna Accord of 1994 after several platform recognized domestic violence to be a human rights issue, the Court stated that objects and reasons of the DV Act themselves indicate that it is for the rights of women in securing them various benefits mentioned therein and also protect them from domestic violence, thus, the Magistrate has to pass appropriate orders in favour of aggrieved person.
The Court noted that Chapter-IV deals with procedure for obtaining orders of reliefs. Section 12 empowers an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to present an application. “Section 12(5) thereof mandates that the Magistrate shall endeavour to dispose of every application made under Section 12(1) within 60 days of its first hearing which would mean that when an aggrieved person approaches the Magistrate seeking one or more reliefs under the Act, it is mandatory that the Magistrate shall dispose of every, application within 60 days from the date of its first hearing”. The Court also analysed, Sections, 19, 20 and 23 of the DV Act.
It was noted that Section 12 is the heart and soul of the entire DV Act and applications under Sections 19 & 20 are clearly maintainable along with an application under Section 12. Therefore, applications under Sections 19 and 20 would also be bound by the time limit stipulated under Section 12.
After a detailed assessment of the DV Act provisions, the Court found that notwithstanding the proceedings governed by the CrPC, the Court considering the application under Section 12 is empowered to lay down its own procedure both under Section 12 and under Section 23 of the DV Act. It thus becomes its inherent power.
Relying on relevant precedents laid down by the Supreme Court and previous cases decided by Karnataka High Court, the Court stated that there is no warrant for any Magistrate to wait for the procedure as stipulated under the CrPC to get concluded, and then grant the relief that is sought in the application. Doing so would defeat the very life of the Act.
The Court pointed out that except for the one application (u/s. 19) rejected by the Magistrate, other applications filed by the petitioner are still pending for consideration despite the passage of 52 months after their filing. “It is quite appalling (…) The applications being kept pending would display apathy towards the litigants. The reason for the applications being kept pending is free fall for adjournments being granted by the concerned Court”.
The Court while invoking the maxim actus curiae neminem gravabit1 sternly observed that law courts which exist to remedy the wrong when it is brought to its notice has to act swiftly. “If an act of the Court should not prejudice any person; the Court should not permit any procrastination of the proceedings before it”.
The Court reprimanded the delay displayed by the Magistrate and pointed out that the petitioner has been denied maintenance and other benefits available under the Act for close to five years now, after she has been out of the matrimonial house. Thus, the Court issued the following directions as to avoid a situation like the one in the instant petition—
Magistrates, to henceforth decide the applications filed by the aggrieved persons within the time frame. Reasons for delay are to be recorded in writing.
For a maintenance application, the concerned Court shall direct the husband, after receipt of notice, to file his assets and liabilities statement within four weeks from the date of appearance and in the event, husband dodges appearance before Court, the Court is empowered to grant interim maintenance, on what is filed by the aggrieved person as assets and liabilities statement and as sought in the application.
Objections if any, to the application/s filed by the aggrieved person under Sections 18 and 19 by the opposite party, shall be filed within 4 weeks from the date of receipt of notice.
To achieve the said timeline, the concerned Court shall draw up and regulate its procedure in terms of its inherent power under Section 28(2) of the Act.
The instant petition was allowed, and the concerned Court was directed to dispose of the pending application within 4 weeks from the receipt of this order.
[Kavitha M. v. Raghu, 2023 SCC OnLine Kar 11, decided on 16-03-2023]
*Judgment was written by Justice M. Nagaprasanna.
Advocates who appeared in this case :
Petitioner- Nitin Ramesh, Advocate;
Respondent- H. Shanthi Bhushan, DSGI for R-4;
K.P. Yashodha, HCGP for R-5.
1. The act of Court should prejudice no person.