In a drastic move, Madras High Court on has said that the Domestic Violence Cases are civil in nature, except for in cases where protection / interim order is breached by the accused, in cases where Sections 31 and 33 are in play.
While dismissing close of 1000 of Crl. O.P filed before the High Court, by invoking its inherent powers under Section 482 of the Code of Criminal Procedure (CrPC), MHC stated that, Sec. 483 cannot be invoked to quash complaints under the Domestic Violence Act since this provision would only apply to criminal proceedings.
Justice Anand Venkatesh said, “Upon a close reading of the DV Act, this Court found that the nature of rights that were protected and enforced under the Act were purely civil in nature. However, considering the forum which was dealing with such applications, and the procedure adopted, a criminal colour has been unwittingly given to these proceedings. Like a chameleon changing its colour depending on the situation, the proceedings under the D.V Act were also camouflaged due to the nature of the forum provided under the Act.”
Some key takeaways from the judgement as follows:-
- Among the various reliefs given under the Domestic Violence Act, the breach of a protection order or an interim protection order alone is a cognizable and non-bailable offence under Sections 31 and 32(1) of the Act.
- All other reliefs contemplated under Chapter IV of the Act (residence orders, monetary reliefs, custody orders, custody orders, compensation orders etc.) are civil in nature.
- The procedure set out in the DV Act and the Rules makes a conscious deviation from the traditional modes of a criminal court taking cognizance, issuing process and then trying the accused under the provisions of the CrPC (save in the case of offences under Sections 31 and 33 of the Act).
- The application of the CrPC to an application under Section 12 of the DV Act (application to Magistrate for relief under the Act) is residuary in nature by virtue of the mandate of Section 28(1) of the Act (which states, “Save as otherwise provided in this Act, all proceedings under sections 12,18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the CrPC).
- To constitute a Criminal Court, it is not sufficient that it is one of the Courts mentioned under Section 6, CrPC (including a Magistrate court, which is the court dealing with applications under the DV Act). To be a Criminal Court, it must also be acting as a Criminal Court. The true test depends on the character of the proceeding i.e., the nature of the right violated and the relief claimed thereon, and not the nature of the Tribunal adjudicating such a proceeding. Merely because a Magistrate is called upon to adjudicate and enforce civil rights in an application under Chapter IV of the DV Act, it does not follow that the proceeding before it is of a criminal character. A court of Magistrate not exercising functions or determining cases of a criminal character cannot be said to be a Criminal Court.
- A Magistrate exercising jurisdiction to grant reliefs of a civil nature does not function as a Magistrate exercising authority under CrPC.
- The fact that a Magistrate may, at a subsequent stage under Chapter V try an offence under Section 31 of the Act for breach of an order under Sections 18 or 23 of the Act does not render a proceeding under Chapter IV of the Act as one before a criminal court. Merely because the Court of Magistrate is a criminal court in the latter stage, it does not follow that it is a criminal court in the former stage as well.
The Judgement was delivered by the Hon’ble Justice N. ANAND VENKATESH. in Dr.P.Pathmanathan & 2 Ors V. V.Monica & Anr. in Crl. O.P. No. 28458 of 2019, Madras High Court, on 18th January 2021. The judgement is available on the official website of MHC, and also shared herein with this post below.