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Ajay Kumar vs Uma on 21 March, 2022

Author: Yogesh Khanna

Bench: Yogesh Khanna

                                $~29
                                *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                +    CRL.M.C. 2677/2021, CRL.M.A.17165/2021
                                     AJAY KUMAR                                   ..... Petitioner
                                                     Through: Mr.Kirti Uppal, Sr Advocate with
                                                               Mr.Harsh Kumar, Mr.Anees Dewan
                                                               and Ms.Riya Gulati, Advocates.

                                                           versus
                                      UMA                                                 ..... Respondent
                                                           Through:       Mr.Deepak Mehra, Advocate.
                                      CORAM:
                                      HON'BLE MR. JUSTICE YOGESH KHANNA
                                                      ORDER

% 21.03.2022

1. This petition is filed challenging the impugned order dated 15.09.2021 passed by the learned Trial Court, alleged to be in violation of proviso to Section 12 of the Prevention of Women from Domestic Violence Act, 2005 (hereinafter referred as the DV Act).

2. Proviso (1) to Section 12 of the DV Act notes:-

12. Application to Magistrate.--

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

3. The learned senior counsel for the petitioner submits no order can be passed under Section 12 (1) without considering the Domestic Incident Report (DIR) by the learned Magistrate.

4. On the contrary, the learned counsel for the respondent submits the impugned order is an interim order passed under Section 23 of the DV Act, which notes:-

23. Power to grant interim and ex parte orders.--

(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.

5. Further, he also refer to Section 28 of the DV Act, which interalia notes:-

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.

6. Moreso, it is submitted the impugned order was passed after receipt of the DIR though its content may not find mention in the impugned order.

7. It is also submitted order under Section 12(1) of the DV Act is different than an interim order under Section 23 of the DV Act.

8. The learned senior counsel for petitioner refers to Ravi Dutta vs Kiran Dutta & Another 2014 SCC OnLine Del 657 to say before passing an order under Section 12 of the DV Act, DIR has to be seen by the learned Magistrate. The learned counsel for the respondent seeks time to produce the case law.

9. At this stage, the learned counsel for the respondent submits the respondent has not been paid the interim maintenance as was ordered by the Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:22.03.2022 15:07 impugned order. The learned senior counsel for petitioner however, disputes the same submitting the salary of petitioner is deducted and maintenance amount is being credited to the account of respondent.

10. In case the interim maintenance amount is not being released in the bank account of respondent, the learned Trial Court to take steps for such release.

11. List again on 23.05.2022 and in the meanwhile, the direction as contain in para No.3 of order dated 20.12.2021 shall continue.

YOGESH KHANNA, J.

MARCH 21, 2022 M Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:22.03.2022 15:07