Judgment Analysis - Roop Lal & Ors Vs Manpreet Kaur - Dismissal of DV u/s 482 IPC?

 In a famous PnH HC judgment, Roop Lal & Ors Vs Manpreet Kaur, this matter was looked in detail by Hon'ble Justice Fatte Deep Singh and judgment passed on 5th Nov 2019.

In the matter, 14 different quash applications under 482 were combined and dismissed with the reason that power under 482 are to be sparingly used and respondents can run to HC after passing of some judicial order. The mere 'application' by the 'abla nari' and phone calls from the Protection Officer should not worry the husbands. 

Observations by the court:

1. This legislation has remained in oblivion and indifferent to the Domestic Violence instances concerning men in domestic relationship and thus falls short of constitutional obligation as enshrined under Articles 14 and 15 of the Constitution and violates Legal Egalitarianism as well as Article 7 of Universal Declaration of Human Rights.

2. The (DV) Act has tried to concretely deal with the problems of domestic violence from feminist perspective of law

3. The motive behind DV act was "The Universal Declaration of Human Rights had voiced its concern against discrimination and holding out that all human beings are born free with equal rights and dignity and thus, are all entitled to equal treatment. It was stressed to ensure equal rights to men and women. That is how Declaration on the Elimination of Discrimination against Women came into being and it is with this end in view United Nations resolved the member States to adopt appropriate legislation. The Protection of Women from Domestic Violence Act, 2005 is one of the most aggressive approach while enacting such a progressive Act which is enacted in favour of women’s rights."

4. It cannot be ignored that less out of social need and more out of political compulsions, multiple Laws are being evolved which are lopsided heavily weighing in favour of women offering them multiple remedies for the same very grievance and for which the present Act is one.

5. The parliamentary committee while passing the law was of the view that "under Criminal Law if a husband perpetrates violence on his wife, she may file a complaint under Section 498-A IPC. Similarly under the Civil Law if there is disharmony in a family and the husband and wife cannot live together, any of them may file a suit for separation followed by divorce. However, the intention of the Bill addresses such situation where there is some disharmony in the family but the situation has not reached a stage where either separation or divorce proceeding has become inevitable and the aggrieved woman also for some reasons does not initiate criminal proceedings against her perpetrator and therefore, the Bill seeks to give the woman an alternative avenue whereby she can insulate herself from violence without being deprived of the basic necessities of life and without disintegrating her family."

6. Even the Law Commission in its report made in August 2012, propagated the essential provisions in the Act of appointment of Protection Officers under the control and supervision of a Judicial Magistrate of First Class and the essentiality of sending domestic incident Report to Magistrate, Police Station and service providers. The same is by way of adequate safeguard for effectively assisting the victim for shelter counseling, medical treatment, legal/monetary aid and to advice and act on her behalf. The Commission acknowledged that the Act was essentially of civil nature with a mix of penal provisions. With this background as to the genesis of the Act, the Scheme of the Act needs to have a relook at.

7. The provisions of Section 2(q) of the Act are more so akin to Section 498-A of IPC.

8. The Act has comprehensively detailed the appointment, duties and functions of Protection Officers, provisions of medical facilities, of shelter homes, Service Providers. But it is sad to observe that in spite of the obligation having been cast upon the Central and State Governments by enacting Section 11, but it would not be encouraging to note that in the States of Punjab, Haryana and Union Territory Chandigarh, it is a dismal scenario. As is the information sought/gathered, there are only 21 Protection Officers in the State of Haryana out of which there is no male Protection Officer; in the UT there are only 5 all males while in Punjab out of total 154 Protection Officers, 30 are males while rest 124 are females, and majority out of these are having additional charges and thus unable to carry on fully their obligations under the Act. Sad to observe, there is only one specifically notified shelter home under the Act which is in UT Chandigarh and both the other States are yet to open their account on that score solely for the purposes of this Act.

9. There is lack of experts like psychologists, psychiatrics for this purpose, including marriage counsellors, for which fixed budget allocation needs to be made as well.

10. The proceedings under the Act are predominantly civil in nature and in case of violation of the order it takes the character of criminal proceedings. Reliance placed on 2016 (3) RCR(Criminal) 315 ‘Kunapareddy @ Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari & another’. Apparently, the framers of the Act of that time were of the view that application of Code of Criminal Procedure to the proceedings would give more teeth to the Act and deter the perpetrators of violence.

11. With a view for providing speedy remedy, the framers of the Act have provided time bound manner of service of notice as well as disposal of the application for which provisions of Sections 13 and 12 have been enacted thus, casts upon the Courts trying such matters to ensure speedy disposal of such ‘applications’ which are often misnomered as ‘complaints’.

12. To ensure and prevent undue injustice to the parties, the Act has carved out right of Appeal under Section 29 as well as alteration of orders passed under the Act on the application of the respondent or the aggrieved party by the aid of Section 25.

13. The parties need to refrain from approaching the High Court straightaway every time with the aid of Section 482 Cr.P.C. which exercise of inherent powers is to be sparingly made, for which reliance is placed on ‘State of Haryana and others v. Ch.Bhajan Lal and others’ 1992 AIR SC 604.

14. Moreover, till the stage of mere issuance of notice, which is a pure ministerial function, and calling for the domestic incident report, the Magistrate has yet to apply its mind and is yet to pass any judicial order, as consequent thereupon as per the scheme of the Act enjoins upon the Magistrate a duty and an obligation to make efforts at counselling and ensure if there could be a chance to repair the matrimony damage.

15. The Act does not lay down at what stage a Magistrate can pass interim orders by way of protection orders, residency orders, monetary reliefs, custody orders, compensation orders etc. (Sections 17 to 22 of the Act) under interim relief but the Courts need to be slow in doing so at the preliminary stage before taking cognizance of the application, else the provisions of reconciliation/counselling might become a casualty.

16. It is often seen and is so on mere issuance of notice, which cannot be equated with summons when the Magistrate is only dealing with its ministerial function, the respondent side gets alarmed and rush to this Court by invoking inherent powers of this Court by the aid of Section 482 Cr.P.C. It is desired for the Courts to discourage such a practice else the very spirit and the object of the Act stands jeopardized. Only when the Magistrate passes a judicial order, a party may exercise its right under the Act and the law as already enumerated above keeping the principle of judicial hierarchy intact.

17. This Court usually at the very filing of the application under Section 12, the Courts embark upon a journey of dealing with the respondent as a “criminal” which is in fact not in the true spirit of the Act and even goes to the extent of issuing arrest warrants, thus compelling a party to seek shelter of this Court and which needs to be discouraged.

Conclusion:

Nothing much useful for men except stating the obvious that arrest warrants should not be issued in DV just on mere petition by wife. Lopsided laws created due to political compulsions and there's lack of psychologists/psychiatrists etc. Also, if the different petitions had different facts, evidence and pleading, then combining them into single petition may not have given justice to all.

Full Judgment link: here

Media coverage:

1) https://indianexpress.com/article/india/domestic-violence-political-compulsions-behind-lopsided-laws-that-weigh-heavily-in-favour-of-women-says-punjab-haryana-hc-6144020/