1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE10H DAY OF FEBRUARY, 2020 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.1217/2019 BETWEEN1 ARUN ARAVIND HABBU S/O LATE SRI ARVIND HABBU, AGED ABOUT35YEARS, 2. ANASUYA ARVIND HABBU W/O LATE SRI ARVIND HABBU, AGED ABOUT60YEARS, BOTH PETITIONERS ARE RESIDENTS OF No.565, 2ND MAIN ROAD, 6TH BLOCK, 2ND PHASE, BANASHANKARI3D STAGE, BANGALORE-560 085. …PETITIONERS (BY SRI DEEPAK B.K., ADV.) AND SMT.ARCHANA PRABHAKAR W/O ARUN ARVIND HABBU, D/O PRABHAKAR, AGED ABOUT35YEARS, R/O No.13/4, 12TH MAIN ROAD, LAKKASANDRA EXTENSION, BANGALORE-560 030. …RESPONDENT (BY SRI NANJUNDARADHYA B.G., ADV.) 2 THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION3971) READ WITH401OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE IMPUGNED ORDER
IN CRL.A.No.2147/2018 DATED0509.2019 (ANNEXURE-A) PASSED BY THE LEARNED LXVIII CITY CIVIL AND SESSIONS JUDGE (CCH-69), BENGALURU. THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER
S ON0302.2020 AND COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING: ORDER
This revision petition is filed by the petitioners being aggrieved by the order passed by the Metropolitan Magistrate Traffic Court-III, Bengaluru (hereinafter referred to as ‘Trial Court’) in Crl. Misc.No.65/2018, dated 15.10.2018 and the same was upheld by the LXVIII Additional City Civil and Sessions Court, Bengaluru (hereinafter referred to as ‘First Appellate Court’) in Crl.A.No.2147/2018, dated 05.09.2019.
2. Heard the arguments of learned counsel for the petitioners and the respondent. 3
3. The case of the petitioners is that the respondent/wife filed a petition before the trial Court under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘D.V. Act’) against these petitioners claiming relief under various provisions of the D.V. Act and also seeking maintenance from these petitioners. The trial Court also granted interim maintenance to the child at Rs.4,000/- per month. After appearance, the petitioners filed objections contending that the petition is not maintainable as it was not filed in the form prescribed under Rule 6(1) of the Protection of Women from Domestic Violence Rules, 2006 (for short D.V.Rules) and prayed for dismissing the petition as not maintainable. The trial Court after hearing the arguments rejected the said contention and posted the matter for filing objections to the main petition. Assailing the same, the petitioners filed an appeal before the First Appellate Court, which also came to be dismissed on 05.09.2019. Hence, the petitioners are before this Court by way of this revision petition. 4
4. The learned counsel for the petitioners strenuously contended that the petition filed by the respondent-wife is not maintainable as it is not in the form prescribed under the D.V. Rules. As per Rule 6 of the D.V.Rules, every application filed under Section 12 of the D.V.Act shall be in Form-II or as nearly as possible thereto. But, the very petition filed by the respondent/wife runs into 13 pages. It is drafted like a civil suit. Thereby, there is violation of Rule 6 of the D.V.Rules and as per Section 2(m) of the D.V.Act, “prescribed” means, the rules provided under the D.V.Act. Therefore, in view of the violation of Rule 6 of the D.V.Rules, the petition requires to be dismissed. In support of his contention, the learned counsel for the petitioners relied upon the following judgments of the Hon’ble Supreme Court:
1. General Insurance Council and others vs. State of Andhra Pradesh and others reported in (2007) 12 SCC354 5 2. Prakash Patel vs. State Appropriate Authority PC and PNDT Act, 1994 and others reported in 2013 (2) GLH5313. Suo Motu vs. State of Gujarat reported in 2009 Criminal Law Journal 721 (Full Bench of Gujarat High Court) 5. Per contra, the learned counsel appearing for the respondent/wife contended that the Rules under the D.V. Act is only the guidelines and directory in nature, but not mandatory. The Rules and Act were brought by the Legislature in order to help the women deserted by the husband and his relatives and it is a social legislation. If the petitioner narrates the domestic violence committed on her, in detail, that itself is not a ground to dismiss the petition on the ground of maintainability and in support of his argument, the learned counsel contended that in a similar situation the Madras High Court, Madurai Bench, has held that the Rules under the D.V. Act is only directory and not mandatory. Further, he relied upon the following judgments of this Court:
6. 1. R. Muniswamy vs. State of Karnataka in Writ Petition No.55590/2018.
2. General Secretary, Vokkaligara Sangha, Bangalore and another vs. R.Chandramouli and others reported in (2002) 4 Karnataka Law Journal 129.
3. Smt. Laxmavva vs. The State of Karnataka represented by its Secretary and others reported in ILR2007KAR1028 (Division Bench) 4. G.M.Siddeshwar vs. Prasanna Kumar reported in (2013) 4 SCC776(judgment of Hon’ble Supreme Court) Hence, prayed for dismissing the revision petition.
6. Upon hearing the arguments of learned counsel for both the parties, the point that arises for my consideration is: “Whether filing of petition under Section 12 of D.V.Act in the Form-II as prescribed under Rule 6(1) of the Protection of Women from Domestic Violence Rules, 2006 is mandatory?.” 7 7. On perusal of the record, the relationship between the parties is not in dispute and the respondent claiming to be the wife of petitioner No.1 filed a petition under Section 12 of the D.V. Act before the trial Court and the trial Court also granted ad-interim maintenance to the respondent-wife. After appearance, the petitioners raised objections on the ground of maintainability of the petition, which was rejected by the trial Court. I have also perused the copy of the petition filed by the respondent-wife before the trial Court, which almost runs into 13 pages with detailed narration of the facts of the case. She has made allegations against the petitioners herein that they have committed domestic violence on her. It is almost filed like a private complaint under Section 200 of Cr.P.C or it is like a plaint filed in a suit. The D.V. Act provides a right for a woman, who suffers domestic violence, to file a petition under Section 12 of the D.V. Act and the legislature also framed Rules under D.V. Rules, 2006 for filing the 8 application before the Magistrate. Rule 6 of the D.V. Rules prescribes the procedure to be followed, which is as under: “6.Applications to the Magistrate – (1) Every application of the aggrieved person under section 12 shall be in Form-II or as nearly as possible thereto. (2) An aggrieved person may seek the assistance of the Protection Officer in preparing her application under sub-rule (1) and forwarding the same to the concerned Magistrate. (3) In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof. (4) The affidavit to be filed under sub- section (2) of section 23 shall be filed in Form- II. (5) The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974).” 9 8. On a bare reading of Rule 6(1) of the D.V.Rules, the application of the aggrieved person under Section 12 of the D.V.Act shall be in Form-II or as nearly as possible thereto, which itself goes show that it is only an option to file an application in Form-II and also a option or choice given to file application other than in the Form-II. It is not mandatory to file an application only in the Form-II. That apart, the provision under Rule 6(2) of the D.V.Rules provides that even the Protection Officer can also forward the application to the Magistrate and as per Rule 6(3) of the D.V.Rules, if the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof. In this regard, reliance is placed by the learned counsel on the judgment of the Madras High Court in the case of N.Vijayakumar vs. S.Geetha reported in LAWS(MAD) 2013 1 493, at para 5, which is as under: “5. As far as the next contention is concerned, Section 12(3) of the Act says that every application under sub-section (1) shall 10 be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. Rule 6 of the Protection of Women from Domestic Violence Rules is to the effect that every application of the aggrieved person under Section 12 shall be in form II or as nearly as possible thereto. Therefore, the application should be in Form II is not a mandatory one. Failure to file an application as per Form No.II does not affect the proceedings.
9. I am in respectful agreement with the principle laid down by the High Court of Madras in the above said case that filing the application under Section 12 of the D.V.Act in Form-II is not mandatory and filing the application other than the Form II does not affect the proceedings. Otherwise, filing the petition mentioning all the averments, in detail, like a complaint is also maintainable. The Division Bench of this Court in Lakshmavva’s case (supra) has held that any violation of this Rule or non compliance will not prejudice the case of the parties. In another case, a co-ordinate Bench of this 11 Court in the case of General Secretary, Vokkaligara Sangha (supra) has held that the monitory benefit cannot be deprived to a person just because the claim was not made in the prescribed format. Such hyper-technical objections are only unwarranted and deserve rejection. In another judgment, in R. Muniswamy’s case (supra), a co-ordinate Bench of this Court has taken a similar view. The Hon’ble Supreme Court has also held in the case G.M.Siddeshwar (supra), as under: “D. Election – Election Petition/Trial – Maintainability – Non-compliance with requirements of provisions of S.83 of RP Act, 1951 – Summary dismissal of election petition under S.86(1) of RP Act in case of – Permissibility – Relevant principles of law, summarized – Affidavit filed in terms of S.83(1) proviso – Defect in – Effect of - Although non-compliance with provisions of S.83 is a curable defect, yet there must be substantial compliance therewith – If there is total and complete non-compliance with provisions of S.83, petition cannot be 12 described as an election petition and may be dismissed at threshold.
10. In view of the principles laid down by the Hon’ble Supreme Court and various judgments of this Court as well as the judgment of the High Court of Madras (supra), I hold that the filing of application / petition under Section 12 of the D.V. Act in the Form-II as per Rule 6 (1) of D.V. Rules is not mandatory and the application can be filed other than the Form-II. Therefore, the application if not in Form-II, that itself is not a ground for dismissing the application on the ground of maintainability, even if there is violation of Rule 6(1) of the D.V. Rules and it is only a directory. The legislature prescribed the format only to facilitate the deserted women / victim of the domestic violence, even for helping illiterate women for approaching the Court and making out their case before the Magistrate in simple form as prescribed as per Form-II and it is only an optional and even the women are permitted to file the petition like any petition under any other law. Therefore, 13 the Court cannot dismiss the application on the ground of maintainability. Though the learned counsel for the petitioners relied upon the judgment in the case of Suo Motu vs. State of Gujarat (supra), pertaining to Pre- Conception and Pre-Natal Diagnostic Techniques, the fact in the said case is altogether different from the case on hand. In another judgment in the case of General Insurance Council (supra), the Hon’ble Supreme Court has directed strict compliance with the mandatory requirement of the Act under Section 158(6) of the Central Motor Vehicles Rules, 1989. But here in this case, under the D.V. Rules, it is not mandatory, thereby Rule 6(1) of the D.V. Rules itself gives an option to file in Form-II. Therefore, the judgments relied upon by the learned counsel are not helpful to the case of the petitioners. Therefore, I hold that the trial Court as well as the First Appellate Court have rightly rejected the objections raised by the petitioners on the ground of maintainability of the application filed under Section 12 of the D.V. Act, other than in the Form-II as per Rule 6(1) of the D.V. Rules. 14 Hence, the petition is devoid of merits and liable to be dismissed. Accordingly, the Criminal Revision Petition is dismissed. Sd/- JUDGE GBB