Making it clear that the nature of rights protected under the Protection of Women from Domestic Violence Act of 2005 were purely civil in nature, the Madras High Court on Monday ordered that a criminal colour should not be given to those proceedings just because the applications were dealt with by judicial magistrates.
Justice N. Anand Venkatesh directed the magistrates to ensure that applications filed by victims or others, under Section 12 of the Act, seeking protection order, residence order, monetary relief, custody order or compensation order must not be treated akin to complaints lodged under the Code of Criminal Procedure (Cr. PC).
He ordered that the respondents mentioned in the applications should not be treated like accused and issued with summons requiring their personal appearance. Instead, only notices should be issued and personal appearance should not be insisted upon ordinarily if the respondents were effectively represented through a counsel.
“In all cases, the personal appearance of relatives and other third parties to a domestic relationship shall be insisted only upon compelling reasons being shown,” the judge said. He gave liberty to the magistrates to determine the applications ex-parte if the respondents did not appear either in person or through a counsel in answer to the court notices.
Justice Venkatesh clarified that it was not mandatory for the magistrates to issue notices to every other respondent mentioned in an application. There should be some application of mind on the part of the magistrates in deciding the respondents to whom notices should be issued after setting out reasons that impelled them to issue such notices.
“To a large extent, this would curtail the pernicious practice of roping in all and sundry into the proceedings before the magistrate,” the judge said. He added that magistrates could alter, modify or revoke their orders at the instance of the respondents if the latter were able to convince the judicial officers that such modifications were necessary in the interest of justice.
Tracing the history of the 2005 law, the judge pointed out that the object behind it was to bridge the gaps between the then existing procedures in civil and criminal law by providing a civil remedy for a victim of domestic violence to obtain relief such as protection or residence orders without disrupting the harmony in the family. Only a breach of a protection order would make the act a criminal offence.
However, since magistrates had begun to follow criminal procedures right at the stage of applications made under Section 12, such applications did not get disposed of within the statutory time limit of 60 days because the respondents approach High Court and obtain stay, the judge lamented.