$~12 IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:-
"7th August, 2018 + CRL.M.C. 3128/2015 CRL.M.A. 11166/2015 (stay) HIMANI MAINI ........ Petitioner
Through: Mr. R.S. Rathi and Ms. Kusum, versus Advs. CHIRAG MAINI ..... Respondent Through: Mr. Navjot Kwatra, Adv. CORAM: HON'BLE MR. JUSTICE R.K.GAUBA ORDER (ORAL) 1. The petitioner is wife of the respondent, their marriage having run into rough weather. She had instituted a case (V No.210/2012) invoking the provisions contained in the Protection of Women from Domestic Violence Act, 2005 in the Court of Metropolitan Magistrate for Shahdara District with allegations, inter alia, of she having been subjected to domestic violence at the hands of the respondent husband and members of his family.
2. The parties were referred to the process of mediation to explore the possibility of amicable resolution. The settlement was recorded on 27.11.2012, on the basis of which the proceedings before the Metropolitan Magistrate stood disposed of by order dated 27.11.2012. It may be added here that as per the terms of settlement in mediation, Crl. M.C. No.3128/2015 Page 1 of 5 the parties had resolved to resume cohabitation though in a rented accommodation to be taken out by the respondent, he having agreed to “properly maintain” his wife (the petitioner) and the daughter, both sides having undertaken to respect the feelings of and cooperate with each other and to discharge their matrimonial obligations.
3. It appears, the grievances of the petitioner continued, she lodged reports with the police on 24.08.2013, 29.10.2013 and 21.09.2014 about she having continued to suffer domestic violence at the hands of the respondent. In the wake of the said police complaints, she also moved an application for revival of the proceedings in the Domestic Violence case. Her prayer was granted by the Metropolitan Magistrate by order dated 10.04.2015.
4. The respondent, feeling aggrieved, approached the Court of Sessions by revision petition (Criminal Revision No.12/2015) questioning the legality and propriety of the above-said order, his prime ground being that the Magistrate had no power to restore the petition in which the proceedings had been earlier closed. This contention was upheld by the revisional court which allowed the revision petition, by order dated 22.07.2015, thereby setting aside the order dated 10.04.2015 of the Magistrate.
5. The present petition invoking the inherent power and jurisdiction of this Court under Section 482 Cr.P.C. has been filed to assail the view taken by the revisional court. Crl. M.C. No.3128/2015 Page 2 of 5 6. The petition at hand involves interpretation of the provision contained in Section 28 of the Protection of Women from Domestic Violence Act, 2005, which 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”. The object of the special legislation which is invoked by the 7. petition is “to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto”. The petition which had been initially filed seeking reliefs under the Protection of Women from Domestic Violence Act, 2005 required the provisions of the Code of Criminal Procedure, 1973 to be followed. But then, as is clarified by sub section 2 of Section 28 quoted above, the fact that such proceedings are “governed” by the provisions of Code of Criminal Procedure, 1973 does not “prevent the court from laying down its own procedure”.
8. As is the obligation of the Court, the parties had been referred to process of mediation in the hope that they would be able to resolve their disputes amicably thereby saving the matrimonial ties, particularly, in the present case, also having regard to the best interest of the child of the parties born out of their cohabitation. Assurances were held out and the parties felt persuaded to forget the past and Crl. M.C. No.3128/2015 Page 3 of 5 move ahead looking at peaceful co-existence, as a family, under the same roof. The settlement terms which were recorded on 27.11.2012 bound each of them with proper conduct in its wake. There is nothing in the settlement agreement from which it could be deduced that the allegations leveled against each other by the parties would have effaced. It is clear from the subsequent events that they were not able to continue living together peacefully. The petitioner wife had certain grievances, her police complaints indicating she having been subjected to domestic violence, this in continuity of what she had statedly suffered prior to the filing of the domestic violence act and indeed prior to the settlement agreement.
9. She consequently was advised to approach the Court of Metropolitan Magistrate again to pursue her remedies under the Protection of Women from Domestic Violence Act, 2005. In the above chronology of events, her grievances against the respondent in the period after the settlement will have to be seen, examined, construed and adjudicated upon in the light of the past alleged conduct. There is undoubtedly a continuity of events involved. Since the law, by virtue of Section 28 (2), permitted the Metropolitan Magistrate to lay down “own procedure”, the view taken by the said court by order dated 10.04.2015 leading to the revival of the proceedings in the Domestic Violence case earlier filed cannot be faulted. The opinion on the basis of which the revisional court set the said order at naught seems to be hyper-technical and, therefore, liable to be set aside. Crl. M.C. No.3128/2015 Page 4 of 5 10. For above reasons, the petition is allowed.
11. The impugned order of the court of Sessions dated 22.07.2015 in Criminal Revision No.12/2015 is set aside. The order dated 10.04.2015 of the Metropolitan Magistrate on the application of the petitioner (V No.210/2012) is restored. Consequently, the proceedings in the original case (No.210/2012) under Protection of Women from Domestic Violence Act, 2005, which were closed earlier on 27.11.2012 shall stand revived.
12. The parties are directed to appear before the Metropolitan Magistrate, Shahdara District for proceedings in accordance with law on 20th August, 2018.
13. Nothing in this order, however, shall be construed as expression of opinion on the merits of the case of the petitioner or the contentions urged in defence by the respondent.
14. Dasti under the signature of Court Master. R.K.GAUBA, J.
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