Sanjeev Sirohi
Published on: 30 March 2023 at 10:16 IST
While speaking out most vocally in favour of addressing the domestic violence victims with immediacy, the Karnataka High Court in a most learned, laudable, landmark and latest judgment titled Smt Kavitha M vs Sri Raghu & Others in Writ Petition No. 12703 of 2022 that was heard and reserved for order on February 8, 2023 and was then finally pronounced on March 16, 2023 has issued directions to be followed by Magistrate Courts for disposal of applications being made by an aggrieved person under the Protection of Women from Domestic Violence Act, 2005, within 60 days from the date of its filing. It merits no reiteration that these directions must be implemented most strictly in letter and spirit.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of The Hon’ble Mr Justice M Nagaprasanna of the Karnataka High Court at Bangalore sets the ball in motion by first and foremost putting forth succinctly in para 1 that, “The petitioner/wife of the 1st respondent is before this Court seeking a direction to dispose of applications dated 15.10.2018 filed by her in C.Misc.No.170 of 2018 before the II Metropolitan Magistrate Traffic Court at Bangalore under Sections 12, 19(1)(E) & (F), 20 & 22, 20 & 23(2) and 23(2) of the Protection of Women from Domestic Violence Act, 2005 (‘the Act’ for short) within the time frame.”
To put things in perspective, the Bench then envisages in para 2 while dwelling briefly on the facts stating that, “Brief facts that lead the petitioner to this court in the subject petition, as borne out from the pleadings, are as follows:-
The marriage between the petitioner and 1st respondent takes place on 16-11-2016. From the wedlock a child is born on 24-08-2017. The relationship between the petitioner and the 1st respondent appears to have turned sore and the petitioner/wife institutes proceedings under the Act invoking Section 12 of the Act and also files several other applications under Section 23 of the Act seeking non-alienation, encumbrance of schedule property, seeking alternative accommodation, monetary relief, ex-parte maintenance and return of valuable articles. In all, there were five applications filed by the petitioner on 15-10-2018. The learned Magistrate in terms of his order dated 29-10-2018 rejected the application for non-alienation or encumbering the schedule property. Except that order, the learned Magistrate did not pass any order on any other applications. The 1st respondent appeared on 03-05-2019 and filed objections to the applications. On 04-08-2021 the petitioner filed an affidavit of assets and liability statement. For filing of assets and liabilities statement of the 1st respondent seven dates were granted to the 1st respondent/husband between 04-08-2021 and 18-04-2022. The learned counsel for the petitioner submits that assets and liabilities statement is not filed by the 1st respondent even as on date. Being aggrieved by non-passing of orders on several applications that are pending consideration for close to 5 years, the petitioner is before this Court seeking an early disposal of those applications filed along with the claim on 15-10-2018.”
Be it noted, the Bench then notes in para 15 that, “On a coalesce of the aforesaid analysis of the provisions of the Act and the law laid down by the Apex Court and that of the co-ordinate Bench of this Court, what would unmistakably emerge is that applications concerning protection orders under Section 18, residence orders under Section 19 and monetary relief under Section 20, all of which direct that if the learned Magistrate is prima facie finds justification he could grant those reliefs,”.
“Section 23 of the Act empowers the learned Magistrate to grant of interim and ex-parte orders in any application under Sections 18, 19, 20 and 21 or even 22 against the respondent, granting interim relief in terms of the application/s so filed cannot be after an eon, it has to be granted anon,”.
“Therefore, there is no warrant for any Magistrate to await for the procedure as stipulated under the CrPC to get concluded, and then grant the relief that is sought in the application. It defeats the very life blood of the Act. If Section 12 is the one under which applications are filed before the concerned Court, sub-section (5) of Section 12 mandates disposal within 60 days.”
Most lamentably, the Bench then points out in para 16 that, “It is quite appalling that an application filed by the petitioner under Section 12 of the Act for the relief as available under Sections 19, 20 and 22 of the Act has been kept pending for close to 52 months after its filing, notwithstanding the fact that the mandate of the Act is disposal of those applications within 60 days. The applications being kept pending would display apathy towards the litigants,”.
“The reason for the applications being kept pending is free fall for adjournments being granted by the concerned Court. In the case at hand, close to two years have passed by and the Court has gone on granting time to the husband for filing assets and liabilities statement to determine the payment of maintenance to the wife under the provisions of the Act while the wife/aggrieved person suffers. An application that has to be disposed of within 60 days, has taken 52 months, and is yet to be disposed of.”
Most forthrightly, the Bench minces just no words to lament in para 17 observing that, “The law Courts which exist to remedy the wrong when it is brought to its notice has to act swiftly, as it is trite that, actus curiae neminem gravabit that the act of Court should prejudice no person. If an act of the Court should not prejudice any person; the Court should not permit any procrastination of the proceedings before it,”.
“A woman, who is a victim of domestic violence, knocking at the doors of the Magistrate, under the Act seeking maintenance or shelter such grievance, will have to be addressed with immediacy. It is for this reason that the statute mandates that such applications have to be disposed of within 60 days in terms of sub-section (5) of Section 12 of the Act,”.
“The mandate is unequivocal as sub-section (5) mandates that the Magistrate shall endeavour to dispose every application; every application would mean each and every, not a few or more. If the delay takes away the very soul of the enactment, such delay would definitely deny justice. It is, therefore, often said that “justice delayed is justice denied”. If the facts of the case at hand are taken note of, it would display that the petitioner has been denied maintenance and other benefits available under the Act for close to five years now, after she has been out of the matrimonial house.”
As a corollary, the Bench then propounds in para 18 that, “In the aforesaid circumstances, it becomes necessary for this Court to direct the Magistrates, to henceforth decide the applications filed by the aggrieved persons within the time frame,”.
“The applications could be for the benefit of Sections 19 and 20 of the Act which are filed along with the application under Section 12 of the Act. Any delay beyond 60 days to consider the application should be only for reasons to be recorded in writing,”.
“For a maintenance application, the concerned Court shall direct the husband, after receipt of notice, to file his assets and liabilities statement within four weeks from the date of appearance and in the event, he would dodge appearance before Court, the Court is empowered to grant interim maintenance, on what is filed by the aggrieved person as assets and liabilities statement and as sought in the application, failing which, such cases, like the one that is brought before this Court, would mushroom and defeat the very purpose of the promulgation of the Act.”
Most significantly, the Bench then after taking into account everything directs in para 19 holding that, “In view of the preceding analysis, I deem it appropriate to issue the following directions:
(a) Applications filed along with the application under Section 12 be it under Section 18, 19 or 20 of the Act, the concerned Court shall decide those applications filed along with the petition under Section 12 within 60 days from the date of its filing;
(b) The husband shall be granted 4 weeks time to file his assets and liabilities statement for a decision on an application filed under Section 20 of the Act. If it is not filed within the time frame, the concerned Court shall accept the application filed by the wife/aggrieved person and pass appropriate orders in accordance with law;
(c) Objections if any, to the application/s filed by the aggrieved person under Sections 18 and 19 by the opposite party, shall be filed within 4 weeks from the date of receipt of notice, failing which, the Court concerned will be at liberty to pass appropriate orders in accordance with law;
(d) To achieve the said timeline, the concerned Court shall draw up and regulate its procedure in terms of its inherent power under Section 28(2) of the Act.
The concerned Court shall strictly adhere to what is indicated hereinabove and its deviation can only be for reasons to be recorded in writing while passing orders on the applications.”
Most remarkably, the Bench then minces just no words to enunciate in para 20 that, “Adherence to the aforesaid timeline would be of paramount importance, as remedy under Section 12 to an aggrieved person is imperative. Therefore, timely disposal of such applications are also imperative as Section 12 is the salt of the statute; if by delay the salt would lose its savour; the statute would lose its flavour.”
Finally, the Bench concludes by holding in para 21 that, “For the aforesaid reasons, I pass the following:
O R D E R
(i) Writ Petition is allowed.
(ii) The concerned Court is directed to dispose of the applications as sought for in the prayer within four weeks from the date of receipt of a copy of this order, if not earlier.
(iii) It is needless to observe that the parties to the lis shall cooperate with the Court to pass appropriate orders on the applications, failing which, the Court should be at liberty to pass ex-parte orders in terms of Section 23 of the Act.
(iv) The Registry is directed to circulate this order to all the concerned Courts handling cases arising out of the Protection of Women from Domestic Violence Act, 2005.
I.A.No.2 of 2022 also stands disposed, as a consequence.”
In conclusion, we thus see that the Karnataka High Court has made it indubitably clear that the domestic violence victims must be addressed with immediacy.
There should be no dilly-dallying by the Magistrates in providing relief to the domestic violence victims whenever they knock the doors of the courts. The directions that have been listed out in this leading case by the Karnataka High Court for timely disposal by Magistrate Courts must be implemented most strictly, most promptly and most effectively!