Parliament had empowered magistrates, who usually deal with criminal cases, to adjourn POWDVA proceedings to further strengthen the law.
Parliament had empowered magistrates, who usually deal with criminal cases, to adjourn POWDVA proceedings to further strengthen the law.
The basic relief proceedings under the Protection of Women from Domestic Violence Act (POWDVA), 2005 are purely civil in nature, though Parliament has deliberately empowered Judicial Magistrates to judge the rights of the aggrieved women by adopting the procedures laid down under the Code of Criminal Procedure. Had given. Cr.PC), Madras High Court has conducted.
The Second Division Bench of Justice M. Duraiswami and Justice Sundar Mohan, comprising two single judges – Justice R. Subramaniam and Justice K. The judgment was pronounced while responding to references made by Murali Shankar as there were some conflicting judgments on the issue by different judges of the High Court. Describing it as a criminal proceeding and others as a civil proceeding.
The bench, while referring to the statement of objectives and reasons of POWDVA, clearly said that it was aimed at providing civil law remedies to the victims of offenses or civil wrongs committed by adult males or civil wrongs or both. It specifically states that there was no civil law to address the incident of domestic violence which constitutes an offense under Section 498A of the Indian Penal Code.
Therefore, the POWDVA creates a plethora of civil rights for the aggrieved women to issue prohibitory orders against the aggressor, the right to be compensated, the right to be evicted from a shared household and so on. Such reliefs were entirely separate from the criminal law. Nevertheless, Parliament at its discretion empowered magistrates to deal with them.
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Observing that the intention of the legislature behind empowering magistrates generally dealing with criminal cases to consider PoWDVA applications was to give more dent to the treatment of civil law, the bench said, this was only when there were safeguard orders. was violated. Passed by the magistrate that the proceedings would become punitive in nature.
Writing down the Bench’s decision, Justice Mohan wrote: “Determination of rights under Chapter IV of the Domestic Violence Act does not lead to punitive consequences so that it can be defined as a criminal proceeding… it is only when the violation is committed.” As per the protection order passed by the Magistrate, the proceedings become punitive in nature.”
limitation period
The Bench also officially held that the limitation period of six months to three years under Section 468 of CrPC would not apply to an application made by the aggrieved woman for a magistrate to take cognizance of various types of criminal offences. Magistrate seeking protection order under section 12 of PoWDVA.
Responding to Justice Shankar’s question as to what would be the limitation period for invoking the POWDVA, the Division Bench observed: “Most of the acts defined under Section 3 of the Domestic Violence Act may constitute wrongdoing or offenses. Therefore, in such cases, “So long as the mistakes or offenses continue, the limit will not apply.”
The Bench further wrote: “We cannot fix the limit of any particular period in the absence of provisions setting limits under the Domestic Violence Act through judicial exercise. It is also not possible for us to invoke Article 137 of the Limitation Act, even if we find that the application is for civil remedy. ,
However, the Bench observed that where a fixed date for the commission of an offense or a civil wrong can be fixed or where an offense issued on a particular date or a continuing civil wrong has been quashed, the Magistrate may take into account the delay. or facts in an application filed under PoWDVA while appreciating the delay.
The judges said that when it comes to Section 31 (violation of protection orders) of PoWDVA, the limitation period provided under Cr.PC will certainly apply as those proceedings become punitive in nature.
transfer to family court
Responding to another important question of law referred to it, the Bench did not allow the High Court, in exercise of its powers under Article 227 of the Constitution, to transfer the proceedings of the POWDVA from a Judicial Magistrate to a Family Court or any other Civil Court. Example of alleged attacker.
“The Family Court cannot exercise the powers of a Magistrate while adjudicating the proceedings of the Domestic Violence Act. In the absence of such powers, we are of the view that if the proceedings of the Domestic Violence Act are transferred from a magistrate to a family court or any other civil court, the intent of the legislature will be defeated,” the judges said.
However, he conceded that the proceedings of the POWDVA can be transferred to the Family Court at the instance of the victim or with her consent, as she will always have the option to waive her powers to decide the case as per the procedures laid down under the case. . 2015 Act.
Inherent Powers of High Court
Finally, the Division Bench ruled that the High Court may consider applications under section 482 (the inherent powers of the High Court to give effect to the provisions of the CrPC to pass any order or to prevent abuse of the process of any court). or otherwise to secure the end of justice) of Cr.PC in respect of PoWDVA proceedings.
“Needless to mention that Section 482 CrPC does not confer any new power on the High Court. It merely reiterates the existence of the inherent powers of the High Court. The name of the petition does not matter. The roster system/portfolio is an administrative act for the purpose of facilitating allocation and to bring about regularity in the distribution of cases.
“It does not take away the powers vested in every judge of this court. Every Judge, of whatever portfolio, may exercise the powers vested in criminal matters or the powers of superintendence under Article 227 of the Constitution or the power to issue writs under Article 226,” the bench wrote.
It further said: “While the intent of the Parliament was to confer powers on the Magistrate/Criminal Court to adjudicate civil rights and to confer appellate power on the Court of Session, we cannot simply dismiss the criminal jurisdiction of this Court by calling it Section 482. Can. Cr.PC, Not Applicable.”