The basic relief proceedings under the Protection of Women from Domestic Violence Act (PoWDVA), 2005 are purely civil in nature though the Parliament had consciously empowered judicial magistrates to adjudicate the rights of victim women by predominantly adopting procedures prescribed under the Code of Criminal Procedure (Cr.P.C.), the Madras High Court has held.
Second Division Bench of Justices M. Duraiswamy and Sunder Mohan passed the ruling while answering references made by two single judges - Justices R. Subramanian and K. Murali Shankar - since there were contradictory verdicts on the issue by different judges of the High Court with some terming it to be criminal proceedings and others as civil proceedings.
The Bench pointed out the statement of objects and reasons of PoWDVA clearly states that it was aimed at providing civil law remedies to victims of offences or civil wrongs or both committed by adult males. It specifically states there was no civil law to address the phenomenon of domestic violence which constitutes an offence under Section 498A of Indian Penal Code.
Therefore, the PoWDVA creates a plethora of civil rights for the victim women in the nature of issuing prohibitory orders against the aggressor, right to get compensation, right from being dispossessed from a shared household and so on. Such reliefs were completely alien to criminal law. Nevertheless, the Parliament in its wisdom empowered magistrates to deal with them.
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Stating that the intention of the legislature behind empowering the magistrates, who generally deal with criminal cases, to entertain PoWDVA applications was to give more teeth to the civil law remedies, the Bench said, it was only when there was a breach of the protection orders passed by the Magistrate that the proceedings would become penal in nature.
Authoring the verdict for the Division Bench, Justice Mohan wrote: “The determination of rights under Chapter IV of the Domestic Violence Act does not result in penal consequences so as to term it as criminal proceedings... It is only when there is a breach of the protection order passed by a Magistrate, the proceedings become penal in nature.”
Limitation period
The Bench also authoritatively held that the limitation period of six months to three years provided under Section 468 of the Cr.P.C., for magistrates to take cognisance of different kinds of criminal offences would not be applicable to an application made by a victim woman before a Magistrate seeking protection orders under Section 12 of the PoWDVA.
Answering Justice Shankar’s question as to what would be the limitation period for invoking PoWDVA, the Division Bench said: “Most of the acts defined under Section 3 of the Domestic Violence Act can be continuing wrongs or offences. Therefore, in such cases, limitation would be inapplicable as long as the wrongs or offences continue.”
The Bench went on to write: “We cannot by way of a judicial exercise determine any particular period of limitation in the absence of provisions prescribing limitation under the Domestic Violence Act. It is also not possible for us to invoke Article 137 of the Limitation Act even though we find that the application is for civil remedies.”
However, the Bench observed that where the definite date of commission of offence or civil wrong could be fixed or where the continuing offence or the continuing civil wrong had terminated on a particular date, the Magistrate could take into consideration, the delay or laches while appreciating the facts in an application filed under PoWDVA.
The judges added when it comes to Section 31 (breach of protection orders) of the PoWDVA, the limitation period provided under the Cr.P.C. would certainly apply because those proceedings become penal in nature.
Transfer to Family Court
Answering yet another crucial question of law referred to it, the Bench held the High Court, by exercising its powers under Article 227 of the Constitution, could not transfer the PoWDVA proceedings from a Judicial Magistrate to a Family Court or any other civil court at the instance of the alleged aggressor.
“The Family Court cannot exercise the powers of the Magistrate while deciding the Domestic Violence Act proceedings. In the absence of such powers, we are of the view that if the Domestic Violence Act proceedings are transferred from the Magistrate to the Family Court or any other civil court, the intention of the legislature would be defeated,” the judges said.
They however held that the PoWDVA proceedings could be transferred to the Family Court at the instance of the victim, or with her consent, since she would have always have the option to waive her rights to have the case decided as per the procedures prescribed under the 2015 Act.
Inherent powers of High Court
Finally, the Division Bench ruled that the High Court could entertain applications under Section 482 (inherent powers of the High Court to pass any order as might be necessary to give effect to the provisions of Cr.P.C. or to prevent abuse of process of any court or otherwise to secure the ends of justice) of Cr.P.C. in relation to PoWDVA proceedings.
“It is needless to mention that Section 482 Cr.P.C does not confer any new power to the High Court. It only reiterates the existence of the inherent powers of the High Court. The nomenclature of the petition makes no difference. The roaster system/portfolio allocation is an administrative act for the purpose of convenience and to bring about regularity in distribution of cases.
“It does not take away the powers inherent in every judge of this court. Every judge irrespective of the portfolio can exercise inherent powers in criminal cases or powers of superintendence under Article 227 of the Constitution or the power to issue writs under Article 226,” the Bench wrote.
It further said: “When it was the Parliament’s intention to confer powers on a Magistrate/criminal court to adjudicate civil rights and confer appellate power to the Court of Sessions, we cannot rule out the criminal jurisdiction of this court alone by saying Section 482 of Cr.P.C., is inapplicable.”
