Allahabad High Court
Gaurav Jaiswal vs State Of U.P. And Another on 6 May, 2026
Author: Deepak Verma
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 4077 of 2026
Gaurav Jaiswal
..Applicant(s)
Versus
State of U.P. and another
..Opposite Party(s)
Counsel for Applicant(s)
:
Amit Kumar Srivastava
Counsel for Opposite Party(s)
:
G.A.
Judgement reserved on 09.04.2026
Judgement delivered on 06.05.2026
Court No. - 74
HON'BLE DEEPAK VERMA, J.
1. Heard learned counsel for the applicant and learned AGA on behalf of the State.
2. This application has been filed by the applicant for quashing the impugned order dated 12.01.2026 passed by learned Civil Judge (Junior Division)/FTC 02, Varanasi in Complaint Case No.415 of 2021 (Rajni Jaiswal vs. Gaurav Jaiswal), under section 12 of Domestic Violence Act, Police Station Kotwali, District Varanasi, pending in the court of Civil Judge (Junior Division)/F.T.C.02, Varanasi.
3. Applicant is husband of opposite party no.2. Marriage of opposite party no.2 was solemnized with the applicant on 21.01.2013. After that opposite party no.2 went to the house of the applicant and lived there. On account of some matrimonial and domestic dispute, opposite party no.2 filed application under section 12 of Protection of Women From Domestic Violence Act, 2005 and the complaint of the opposite party no.2 has been registered as Complaint Case No.415 of 2021 (Rajni Jaiswal vs. Gaurav Jaiswal). It is alleged in the present complaint that marriage of the opposite party no.2 was solemnized with the applicant on 21.01.2013. After marriage applicant and his family members started physical and mental harassment of opposite party no.2. When demand of dowry was not fulfilled, they ousted opposite party no.2. Opposite party no.2 lodged FIR in Case Crime No.156 of 2020, under sections 323, 504, 506, 377, 313, 342, 498A I.P.C. & 3/4 Dowry Prohibition Act against the applicant in Police Station Kotwali. It is submitted by learned counsel for the applicant that infact after marriage, opposite party no.2 never performed her matrimonial obligations sincerely rather she used to quarrel with her husband on petty issues and most of the time she used to reside at her parental house and after sometime she left the house of her husband for harassment taking all ornaments and her daughter. Applicant also filed Divorce Petition under section 13 of the Hindu Marriage Act, 1955 which was decreed by judgement and order dated 16.08.2024. Against the judgment and decree of divorce, opposite party no.2 filed First Appeal No.1154 of 2024, which is pending before this Court. Applicant moved application under Order 7 Rule 11 of Civil Procedure Code, 1908 seeking rejection of the application under section 12 of the Domestic Violence Act, as such, proceeding amounts to abuse of process of the Court. Learned Civil Judge by order dated 12.01.2026 rejected the application of the applicant under Order 7 Rule 11 of the Civil Procedure Code, 1908. Opposite party no.2 moved application under section 12 of Domestic Violence Act on the ground that Section 12 of The Domestic Violence Act is governed by the Criminal Procedure Code, 1973 and as per as Section 28 of the Domestic Violence Act, Civil Procedure Code would be applicable. Learned counsel for the applicant submits that order passed by learned Magistrate dated 12.01.2026 is illegal, perverse and contrary to settled law laid down by Hon'ble Supreme Court that the proceeding under section 12 of the Domestic Violence Act are not purely criminal in nature but are quasi civil proceeding and the reliefs contemplated therein is predominately civil in character, hence, impugned order is liable to be quashed. Further argument is that Section 28 Clause 2 of the Domestic Violence Act which expressly empowers the Court to lay down its own procedure for disposal of application under section 12 of the Act and does not bar application of principles of Civil Procedure Code. The order dated 12.01.2026 has been passed in disregard of the law laid down by Hon'ble Supreme Court in Kunapareddy @ Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari, wherein it has been held that proceedings under Domestic Violence Act are predominantly civil in nature and that procedural flexibility is permissible.
4. Learned counsel for the applicant has also placed reliance over the judgment of the Apex Court passed in Shaurabh Kumar Tripathi vs. Vidhi Rawal in Criminal Appeal No.2688 of 2025 and has placed reliance upon Para-22 & 22.1 of the said judgment. The same is being quoted below:-
"22. Section 28 of the DV Act, 2005 reads thus:
"28. Procedure.(1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23."
22.1 It is true that the proceedings of an application under Sections 12 and 23 are governed by the CrPC. However, Sub-section (2) of Section 28 confers overriding power on the Court to lay down its own procedure for the disposal of an application under Section 12 or under Sub-section (2) of Section 23."
5. In view of aforesaid order passed by learned magistrate dated 12.01.2026 is illegal, arbitrary and liable to be set aside.
6. Learned AGA opposed the submission raised by learned counsel fo the applicant.
7. Considered the argument raised by learned counsel for the applicant and perused the record.
8. In the present case, counsel for the applicant has moved application under Civil Procedure Code, which has been rejected by the Court with observation that the present proceeding is criminal proceeding as such, application under Civil Procedure Code under Order 7, Rule 11 is legally not maintainable and is hence, rejected. Learned counsel for the applicant has placed reliance over the judgment, as mentioned above, and submitted that Honble Court in Kunapareddy @ Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari, has held that present proceeding under sections 12, 18, 19, 20, 21 & 23 is civil nature dispute, as such, application under Order 7, Rule 11 C.P.C. is maintainable. Learned counsel for the applicant has placed reliance upon Paras 12 & 13 of the said judgment. The same are being reproduced below:-
12. We have already mentioned the prayers which were made by respondent No.1 in the original petition and prayer 'A' thereof relates to Section 9. However, in prayer 'B', the respondent No.1 also sought relief of grant of monthly maintenance to her as well as her children. This prayer falls within the ambit of Section 20 of the DV Act. In fact, prayer 'A" is covered by Section 18 which empowers the Magistrate to grant such a protection which is claimed by the respondent No.1. Therefore, the petition is essentially under Sections 18 and 20 of the DV Act, though in the heading these provisions are not mentioned. However, that may not make any difference and, therefore, no issue was raised by the appellant on this count. In respect of the petition filed under Sections 18 and 20 of the DV Act, the proceedings are to be governed by the Code, as provided under Section 28 of the DV Act. At the same time, it cannot be disputed that these proceedings are predominantly of civil nature.
13. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498A of the Indian Penal Code. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the Scheme of the Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of a civil nature and if the said order is violated, it assumes the character of criminality. In order to demonstrate it, we may reproduce the introduction as well as relevant portions of the Statement of Objects and Reasons of the said Act, as follows:
"INTRODUCTION.
The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women in its General Recommendations has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain. The civil law does not address this phenomenon in its entirety. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A of the Indian Penal Code. In order to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society the protection of Women from Domestic Violence Bill was introduced in the Parliament.
STATEMENT OF OBJECTS AND REASONS Domestic violence is undoubtedly a human Right issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation NO. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially the occurring within the family.
3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14,15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.
4. The Bill, inter alia, seeks to provide for the following:-
(ii) It defines the expression "domestic violence" to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting the communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence."
9. Learned counsel for the applicant submits that in view of the judgment passed in Kunapareddy @ Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari, proceeding under Domestic Violence Act is civil in nature, as such, application under Civil Procedure Code is very much maintainable and order passed by learned Magistrate is liable to be set aside. Learned counsel for the applicant has also placed reliance over Para-22 of the Apex Court judgment in Shaurabh Kumar Tripathi vs. Vidhi Rawal in Criminal Appeal No.2688 of 2025, which provides procedure under section 28 of the Domestic Violence Act. The same is being reproduced below:-
22. Section 28 of the DV Act, 2005 reads thus:
28. Procedure- (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure,1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of Section 23.
22.1. It is held that it is true that the proceedings of an application under Sections 12 and 23 are governed by the Cr.P.C. However, sub-section (2) of Section 28 confers overriding power on the Court to lay down its own procedure for the disposal of an application under section 12 or under Sub-section (2) of Section 23.
23. Now we come to the issue of jurisdiction of the Courts to entertain applications under Section 12. Section 27 of the DV Act, 2005 deals with jurisdiction, which read thus:
27. Jurisdiction.- (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which-
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or (c ) the cause of action has arisen, shall be competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made under this Act shall be enforceable throughout India.
23.1. So, the Court of the Judicial Magistrate of the First Class or the Metropolitan Magistrate, as the case may be, has jurisdiction to entertain applications under Section 12 of the DV Act, 2005 as can be seen from the provisions of Sections 12 and 27 read with clause (I) of Section 2 of the DV Act, 2005.
In Para-26, Honble Apex Court has held that Chapter-II of Cr.P.C deals with the constitution of Criminal Courts and Offices. The Courts of Session, Judicial Magistrates of the First Class and in any metropolitan area, Metropolitan Magistrates, Judicial Magistrates of the Second Class and Executive Magistrates are Criminal Courts as provided in Section 6 of Cr.P.C. Therefore, the Courts of Metropolitan Magistrates and Judicial Magistrates of First Class, which are empowered to entertain applications under Section 12 and to grant reliefs under the DV Act, 2005, are Criminal Courts.
In Para-27 of the judgment, Apex court has discussed the case of Kunapareddy @ Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari, and has relied upon Paras 11 & 12 of the judgement, the same is being quoted below:-
11. We have already mentioned the prayers which were made by Respondent 1 in the original petition and Prayer A thereof relates to Section 9. However, in Prayer B, Respondent 1 also sought relief of grant of monthly maintenance to her as well as her children. This prayer falls within the ambit of Section 20 of the DV Act. In fact, Prayer A is covered by Section 18 which empowers the Magistrate to grant such a protection which is claimed by Respondent 1. Therefore, the petition is essentially under Sections 18 and 20 of the DV Act, though in the heading these provisions are not mentioned. However, that may not make any difference and, therefore, no issue was raised by the appellant on this count. In respect of the petition filed under Sections 18 and 20 of the DV Act, the proceedings are to be governed by the Code, as provided under Section 28 of the DV Act. At the same time, it cannot be disputed that these proceedings are predominantly of civil nature.
12. In fact, the very purpose of enacting the DV Act was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under Section 498-A of the Penal Code, 1860. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.
.. .. .. .. . .. .. .. ..
In Kunapareddy alias Nookala Shanka Balaji (supra), the Apex Court has held in respect of petition filed under sections 18 & 20 of the Domestic Violence Act, the proceedings are to be governed by the Code, as provided under section 28 of the Domestic Violence Act. It means the complaint under Domestic Violence Act would come under the provision of the Code of Criminal Procedure and as provided under Section 218 of the Domestic Violence Act. It is also held that it cannot be disputed that these proceedings or nature are predominantly of civil nature.
The Apex Court has held that enacting Domestic Violence Act was to provide a remedy which is an amalgamation of civil rights of the complainant i.e. aggrieved person. Intention was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address this phenomenon in its entirety. It is treated as an offence under section 498-A of the Penal Code, 1860. The Honble Apex Court in Kunapareddy alias Nookala Shanka Balaji (supra) has held that nature of the case would be civil nature but proceeding shall be given as per as provision provided under section 28 of the Domestic Violence Act. The Act itself provides under section 28 Domestic Violence Act that proceedings under sections 12, 18, 19, 20 & 23 offence under section 31 shall be governed by the provisions of the Act on criminal procedure. As such, complaint under aforesaid sections shall be filed as per as provision of Code of Criminal Procedure and proceeding may be adopted provided under Criminal Procedure Code.
10. Learned counsel for the applicant submits that since the Apex Court has held that it is civil nature dispute, as such, Criminal Procedure Code would not be applicable, cannot be accepted. Honble Apex Court has held that nature of dispute is civil but the Apex Court has nowhere held that procedure adopted by Court would be civil. The Act itself provide under section 28 of Domestic Violence Act that the provision of Cr.P.C. would be applicable in proceeding under Protection of Women From Domestic Violence Act. The provision provided under sections 27 & 28 of the Protection of Women From Domestic Violence Act itself incorporate and reveals that proceeding under Domestic Violence Act is criminal proceeding though its nature is civil. The provision of Civil Procedure Code would not be applicable. Interpretation of learned counsel for the applicant at this stage cannot be accepted, as such, the order passed by learned magistrate is just and proper and application under Civil Procedure Code under Order 7, Rule-11 CPC in the proceeding under Protection of Women From Domestic Violence Act is not maintainable and order passed by learned magistrate is just and proper. No interference is warranted.
11. Hence, the application u/s 528 B.N.S.S. is dismissed.
(Deepak Verma,J.) May 06, 2026 SKD