Husband sought quashing of a DV Act complaint and an interim maintenance order directing payment to his wife and daughters. The High Court held DIR was duly called for and considered, and following Prabha Tyagi held its absence at filing is not fatal; found economic abuse made out and declined to interfere with maintenance. Petition dismissed.
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*** IN THE HIGH COURT OF DELHI AT NEW DELHI**
versus
CORAM:
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
% J U D G M E N T
ANOOP KUMAR MENDIRATTA, J (ORAL)
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“14. Hence, it is ordered that respondent shall pay a sum of Rs. 6,000/- per month to the complainant towards rent, which is the rent to be paid for alternative accommodation, as arranged by the complainant, as per rent agreement annexed. The amount of rent @ Rs. 6,000/- per shall be payable from the date of execution of new rent agreement i.e. 23.08.2021 till the disposal of petition under section 12 D.V. Act. The earlier rent as paid towards previous rent agreement is however not subject to adjustment.
15. The respondent no. 1 is further directed to pay Rs. 9,800/- to the complainant towards the expenditure of both minor daughters and Rs. 11,460/- per month to the complainant towards her interim maintenance. The said amount shall be payable from the date of filing of the petition till the disposal of the present petition or till they are legally entitled to receive the same, whichever is earlier. The respondent is directed to pay the said amount by the 7th of each calender month. The respondent is directed to clear the arrears of said maintenance within 06 months.”
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with one Rahul and Anuj . He also alleged that the respondent had planned a hoax case of theft at home of her jewellery which she had handed over to Vinay Kumar during their illicit relationship. An FIR No.301/2018 regarding theft was lodged at P.S. Khajoori Khas,
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DIR which is mandatory under Section 12 of the DV Act, while passing interim orders.
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bank balance of Rs.32,73,693/- in account of petitioner.
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CRL.M.C. 2677/2021
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since respondent was economically abused.
Further, „domestic violence‟ under Section 3 of the DV Act means any act, omission or commission or conduct of the respondent shall constitute „domestic violence‟ in case it:
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
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clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.--For the purposes of this section,--
(i) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) "verbal and emotional abuse" includes--
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested;
(iv) "economic abuse" includes--
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, house hold necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared house hold and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
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Explanation II.--For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration .
Sub-section (1) of Section 20 of the DV Act deals with monetary reliefs which provides that while disposing of an application under subsection (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to:
Further in terms of Sub-section 2, the monetary relief granted under Section 20 shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed .
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On the face of record, the respondent appears to have been left in lurch by the petitioner by disposing the properties and shifting to rented accommodation without making any provision for maintenance of respondent and children. Prima facie , the acts and conduct of the respondent constitute „domestic violence‟ as the respondent/complainant appears to have been deprived of the economic and financial resources to which she is entitled under law. Also disposal of the household effects to which respondent had an interest and was entitled to use by virtue of domestic relationship brings the case within the ambit of „economic abuse‟ as provided in Section 3 of DV Act. It cannot be ignored that allegations of illicit relationship and relevant FIR under the provisions of Immoral Trafficking Act, as alleged by the petitioner was belatedly lodged, after the proceedings were initiated by the respondent under the DV Act. The respondent cannot be denied the benefit of interim maintenance under the DV Act merely on the basis of allegations of illicit relationship which are yet to be proved during the course of trial.
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invoke substantive provisions of Sections 18 to 20 and 22 of the DV Act came up for consideration before Hon‟ble Supreme Court in Prabha Tyagi v. Kamlesh Devi (supra) wherein the difference of opinion expressed by different High Courts on the issue was noticed. Hon‟ble Apex Court observed that on a conjoint reading of the provisions of the DV Act, an „aggrieved person‟ on her own or any other person on behalf of the aggrieved person may represent an application before the Magistrate seeking one or more reliefs under the DV Act. However, in terms of the proviso, when a DIR is received by the Magistrate from the Protection Officer or Service Provider, in such a case, same shall be taken into consideration. As such, when an aggrieved person files an application herself or with the assistance of an Advocate and not with the assistance of a Protection Officer or Service Provider, in such a case, the role of Protection Officer or Service Provider is not envisaged. As such, it was held that the expression “shall” used in proviso to Section 12(1) of the DV Act is restricted only to those cases where a Protection Officer files any DIR or, as the case may be, Service Provider files such a report. Consequently, when a DIR is filed by a Protection Officer or Service Provider, in such a case, the Magistrate has to take into consideration the said report received by him. However, if such report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. Accordingly, it was concluded that High Court was not right in holding that the Magistrate had no authority to issue any directions in favour of the appellant under proviso to Sub-Section (1) of Section 12 of the DV Act since the application filed by the appellant therein was not accompanied by a DIR. Diversion of opinion between different High Courts was accordingly settled as observed in paragraph 49 as under:
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“49. ....... On an analysis of the aforesaid judgments from various High Courts, we find that the High Courts of Andhra Pradesh, Bombay, Delhi, Gauhati, Himachal Pradesh, Jammu & Kashmir, Karnataka, and Madhya Pradesh, are right in holding that if Domestic Incident Report has been received by the Magistrate either from the Protection Officer or the service provider then it becomes obligatory on the part of the Magistrate to take note of the said report before passing an order on the application filed by the aggrieved party, but if no complaint or application of domestic violence is received by the Magistrate from the Protection Officer or the service provider, the question of considering such a report does not arise at all. As already discussed, the D.V. Act does not make it mandatory for an aggrieved person to make an application before a Magistrate only through the Protection Officer or a service provider. An aggrieved person can directly make an application to the jurisdictional Magistrate by herself or by engaging the services of an Advocate. In such a case, the filing of a Domestic Incident Report by a Protection Officer or service provider does not arise. In such circumstances, it cannot be held that the Magistrate is not empowered to make any order interim or final, under the provisions of the D.V. Act, granting reliefs to the aggrieved persons. The Magistrate can take cognizance of the complaint or application filed by the aggrieved person and issue notice to the respondent under Section 12 of the D.V. Act even in the absence of Domestic Incident Report under Rule 5. Thus, the Magistrate has jurisdiction to take cognizance of the complaint under Section 12 of the D.V. Act in the absence of a Domestic Incident Report under Rule 5 when the complaint is not filed on behalf of the aggrieved person through a Protection Officer or service provider. Such a purposeful interpretation has to be given bearing in mind the fact that the immediate relief would have to be given to an aggrieved person and hence the proviso cannot be interpreted in a manner which would be contrary to the object of the D.V. Act which renders Section 12 bereft of its object and purpose.”
The conclusion in paragraph 52(i) may be further beneficially quoted:
“52. In view of the above discussion, the three questions raised
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in this appeal as answered as under:
(i) Whether the consideration of Domestic Incidence Report is mandatory before initiating the proceedings under Domestic Violence Act, 2005 in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act. It is held that Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the DV Act. It is clarified that even the balance of a Domestic Incident Report, a Magistrate is empowered to pass both ex-parte or interim as well as a final order under the provisions of the DV Act.”
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terms of Rajneesh v. Neha, (2021) 2 SCC 324 for consideration of the arguments on interim maintenance application. Finally, impugned order on interim maintenance was passed on 15.09.2021.
On the face of record, since the complaint under Section 12 of the DV Act was filed by the respondent on her own through counsel, there could not have been any occasion for filing the DIR by the Protection Officer or Service Provider at the said stage. However, the same was duly called for by the learned MM vide order dated 31.07.2021 and is duly reflected to have been considered while passing the interim direction for payment of rent and clearance of arrears. In the facts and circumstances, reliance placed upon Ravi Dutta v. Kiran Dutta & Anr. (supra) by the learned counsel for the petitioner which already stands overruled in Prabha Tyagi v. Kamlesh Devi (supra) is misplaced. The DIR appears to have been duly considered by the learned trial court though reference of the same has not been made in specific in the impugned order dated 15.09.2021.
On the face of record, the contentions raised by the petitioner for quashing of the proceedings under Section 12 of the DV Act are without any merit.
In the facts and circumstances, there are no cogent reasons for
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interfering in the impugned order of maintenance passed by the learned trial court. Petition is accordingly dismissed. No order as to costs. Pending application, if any, also stands disposed of.
ANOOP KUMAR MENDIRATTA, J.
JANUARY 5, 2024 /v
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CRL.M.C. 2677/2021
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3 issues framed by the court
Whether consideration of a Domestic Incident Report is mandatory before interim orders under Section 12 of the DV Act.
Whether the complaint disclosed domestic violence warranting interim maintenance under Section 23 of the DV Act.
Whether the quantum of maintenance fixed by the Magistrate required interference.
Colour shows how this judgement treated each authority
Ravi Dutta v. Kiran DuttaOverruled¶16
Ravi Dutta v. Kiran Dutta & Anr., 2018 (2014) DLT 61 · Who else cites this
Prabha Tyagi v. Kamlesh DeviFollowed¶16
Prabha Tyagi v. Kamlesh Devi, Crl. Appeal No.511/2022 decided on 22.05.2022
Rajneesh v. NehaApplied¶16
Rajneesh v. Neha, (2021) 2 SCC 324 · Who else cites this
6 provisions across 3 enactments
Ajay Kumar
Uma
Anoop Kumar Mendiratta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
