While clearly reiterating that petitions under Section 482 CrPC are not maintainable for challenging the proceedings under Section 12 of the Domestic Violence Act, the Himachal Pradesh High Court in a learned, laudable, landmark and latest judgment titled Sanjeev Kumar & Ors Vs Sushma Devi in Criminal Revision No. 132 of 2021 and cited in 2023 LiveLaw (HP) 48 that was reserved on May 11 and then finally pronounced on June 1, 2023 has issued commendable directions to the lower courts to ensure their compliance in handling cases related to the Domestic Violence Act. It must be noted that a Single Judge Bench comprising of Hon’ble Ms. Justice Jyotsna Rewal Dua noted that these days diverse recourses are being adopted to challenge the proceedings under the Domestic Violence Act in the form of petitions under Section 482 of the Code or Section 397 read with Section 401 of the Code and sometimes under Article 227 of the Constitution. It was clarified by the Bench that proceedings under Chapter IV of the Protection of Women from Domestic Violence Act, 2005 are of a civil nature and not criminal and emphasized that an application under Section 12 of the Act is distinct from a complaint under the Code of Criminal Procedure and should not be equated with criminal proceedings.

At the very outset, this remarkable, robust, rational and recent judgment authored by a Single Judge Bench comprising of Hon’ble Ms. Justice Jyotsna Rewal Dua of the Himachal Pradesh High Court at Shimla sets the ball in motion by first and foremost putting forth in para 1 that:
Learned Trial Court dismissed an application moved by the respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005, primarily on the ground that the complainant (respondent herein) could not prove that she was legally wedded wife of the present petitioner. Learned Appellate Court allowed the respondent’s appeal and remanded the matter to the learned Trial Court with a direction to give an opportunity to the parties to lead further evidence and for deciding the matter afresh. The petitioner (alleged husband) has moved this petition against the order of learned Appellate Court.

To put things in perspective, the Bench envisages in para 2 that:
Facts that need to be noticed for the purpose of deciding this petition are :-

2 (i). Respondent No.1-Sushma Devi, instituted an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the ‘Act’) on 13.05.2016 for providing monetary relief, residence & protection order and compensation. She alleged that marriage between her and the present petitioner was solemnized on 01.08.1999 according to Hindu rites and ceremonies. The petitioner and his parents (proforma respondents No.3 and 4 herein) started torturing and harassing respondent No.1 on one pretext or the other. Respondent No.1 tolerated their unruly behaviour for few years with hope that her husband and in-laws would mend their ways & approach towards her, but all in vain. After three years of marriage, her husband and in-laws started saying openly that respondent No.1 will not beget any child, hence was of no use to them. She was shunted out of the matrimonial home and had to take shelter in her parental house. Respondent No.1 further alleged that she had no source of income and was not in a position to maintain herself. The petitioner was not paying her any maintenance.

2(ii). The petitioner filed reply to the application. He denied respondent No.1 to be his legally wedded wife or that she ever resided with him. The allegations levelled against him and his parents were also refuted. The petitioner also pleaded that it has come to knowledge of the respondents from reliable sources that the complainant is not competent to sexual relationship, hence she cannot contract a valid marriage. Due to this disability, the complainant is still unmarried and nobody is ready to marry her. The petitioner also pleaded that Rajni Devi (respondent No.2) was his legally wedded wife and marriage between them was solemnized on 17.01.2001.

2(iii) Parties adduced evidence. Learned Trial Court vide order dated 26.09.2016 held that respondent No.1 had failed to prove that she was legally wedded wife of the petitioner. Primarily on this basis, the application preferred under the Act was dismissed.

2(iv) The appeal against the aforesaid order was filed by respondent No.1. Learned Appellate Court held that parties were not made aware of the issues/points, which were framed and determined by the learned Trial Court in its judgment. Parties had led their evidence without issues having been framed in the matter. Procedure adopted by the learned Trial Court in framing issues in the judgment, was not proper. The approach of the learned Trial Court in focusing on the point as to whether marriage was solemnized between the contesting parties was held to be erroneous.

Learned Appellate Court also observed that the petitioner had not signed the pleadings and this irregularity needed rectification. Accordingly, the case was remanded to the learned Trial Court to give an opportunity to the parties to lead further evidence on the points framed in the judgment. The petitioner was directed to take steps to rectify the irregularities i.e. putting signature on his pleadings by filing an affidavit in support of his reply. The appeal was accordingly allowed on 29.04.2021.

2(v) In the above background, the petitioner has preferred the instant criminal revision petition, under Section 397 read with Section 401 of the Code of Criminal Procedure for setting aside the judgment dated 29.04.2021 passed by the learned Appellate Court.

It is worth noting that the Bench enunciates in para 4(iii) that:
In the instant case, parties led evidence in support of their respective pleadings. The record makes it apparent that the parties led their evidence without any points/issues having been framed in the matter.

The record also shows that it is only while deciding the case that the learned Trial Court framed following points/issues in the judgment for determination:

1. Whether the applicant is legally wedded wife of respondent No.1 as alleged ? OPA.
2. Whether applicant is entitled for protection order, residence order, monetary relief, compensation etc. as prayed for? OPA.
3. Whether the complaint is not maintainable as alleged? OPR.
4. Whether complainant has no cause of action to file the present complaint, as alleged ? OPR.
5. Final Order.

Not only the points/issues were framed by the learned Trial Court in its judgment but the onus to prove such issues was also fastened upon respective parties, who were not even aware of formulation of the issues leave aside the onus to prove them. This approach was wholly erroneous. The parties were required to be made aware of the issues or the points they needed to prove in the case before directing them to lead evidence.

This would have been not only in the interest of justice and fair play, but would have also provided the parties an opportunity to know the issues required to be proved by them. In accordance with provisions of the Act, demonstration by the complainant of existence of a relationship in the nature of marriage with the petitioner would have been sufficient under the Act.

The complainant accordingly led her evidence. However, the learned Trial Court held the complainant could not establish that she was lawfully married to the petitioner. The complainant was not made aware of the points/issues framed by the learned Trial Court that she was required to prove her marriage with the petitioner in order to be successful in the proceedings.

In case in the given facts, learned trial Court was of the view that the respondent-complainant was required to prove solemnization of her marriage with the petitioner, then the correct procedure would have been to make this issue known to the parties before ordering them to lead evidence.

Framing of issues, for the first time, only in the judgment, placing burden of proving such issues on respective parties, deciding the case on the basis of such issues about which parties have not even been made aware of, is a procedure alien to well established legal and procedural conventions. It was imperative for the learned Trial Court to have framed issues/points for determination before directing the parties to lead evidence.

The order passed by the learned Trial Court determining the points/issues and fixing the onus of proving those issues/points at the time of deciding the case was not in consonance with law. The order passed by the learned Trial Court was, therefore, justly interfered with by the learned First Appellate Court.

The learned First Appellate Court also correctly observed that the petitioner had not signed the pleadings before the learned Trial Court. Accordingly, it gave an opportunity to the petitioner to rectify this irregularity by filing his affidavit before the learned Trial Court in support of unsigned pleadings.

Briefly stated, the Bench states in para 5(ii) that:
A combined and holistic reading of the provisions of the DV Act, leads to a definite inference that proceedings before a Magistrate under Chapter IV of the Act are not criminal proceedings before a criminal Court. An application under Section 12 of the DV Act is not akin to the complaint under Section 2 (d) of the Code of Criminal Procedure. Application under Section 12 of the DV Act is to be on a specified format as prescribed under the DV Rules. Notice for appearance under the DV Act is to be in terms of Form-VII appended to the DV Rules. Personal appearance of parties is not mandatory under the DV Act.

Finally and far most significantly, the Bench concludes by holding in para 5(ii) that:
In view of the above discussion, following observations/directions are made/issued :-

1. The remedies available under Chapter IV of the Protection of Women from Domestic Violence Act, 2005 are civil in nature.
2. The Courts dealing with applications under Section 12 or 23 (2) of the Domestic Violence Act, in the given facts and circumstances of the case, may deviate from the procedure prescribed under Section 28(1) of the DV Act and may formulate their procedure in accordance with enabling provision of Section 28(2) of the DV Act.
3. In case, evidence is considered necessary for the adjudication, the issues/points that arise for determination, shall be formulated and framed in accordance with law before directing the parties to lead evidence.
4. In case the evidence is considered not necessary, the application shall be heard and decided.
5. Petitions under Section 482 of the Code of Criminal Procedure are not maintainable for challenging the proceedings under Section 12 of the DV Act. In appropriate cases, however, recourse can be made to Article 227 of the Constitution of India on satisfaction of well-established parameters.

Learned Registrar General of this Court shall ensure conveying the directions to all the concerned Courts in the State of Himachal Pradesh for compliance.

The petition too stand disposed of on above terms read with para 4(iv) of this judgment. All pending applications, if any, to also stand disposed of.

In summary, we thus see that it is made indubitably clear in this notable judgment that petitions under Section 482 CrPC are not maintainable for challenging proceedings under Section 12 of the Domestic Violence Act. What the Himachal Pradesh High Court has laid down in this leading case must definitely be always adhered to by all the courts in such cases. No denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.