MUMBAI: In a landmark ruling that comes as a boon to wives battling for maintenance from estranged husbands under the
Domestic Violence Act, the
Bombay high court has held that an affidavit filed by the women will suffice as evidence. A woman need not depose in court to make her case. The court, though, can permit the husband to cross-examine her based on the affidavit filed.
The question before the HC was whether a woman who has filed an application under the
Protection of Women from Domestic Violence Act, 2005 (DV Act), can be allowed to submit evidence in the form of an affidavit alone. A magistrate in Pune had permitted such a submission, prompting the husband in one case to move high court to challenge it last year.
He and his lawyer
Abhijit Sarawate wanted the woman to first step into the witness box and depose.
They claimed that an affidavit cannot substitute oral evidence recorded in court in the presence of both sides in a DV case. The wife’s lawyer, Abhijeet Desai, though, argued that the magistrate was right in allowing her affidavit in evidence.
After interpreting salutary provisions of the DV Act, the high court answered in favour of the wife.
Justice Anuja Prabhudessai, who passed the judgment, held that the DV Act allows the court to devise its own procedures to ensure speedy disposal. “The court, in its discretion, can allow evidence on affidavit and permit cross-examination to test the veracity of the evidence,” she held, adding that “a narrow interpretation would defeat the purpose of the Act”.
The DV Act provides effective and speedy protection to women who are victims of domestic violence, setting out a disposal deadline of 60 days.
The DV Act came into force in 2006. “This Act was enacted keeping in view rights guaranteed under articles 14 for right to equality, 15 for prohibition of discrimination on grounds of race, sex etc, and 21 for right to life of the Constitution, to provide for a remedy under the civil law, which is intended to protect the woman from being a victim of domestic violence and to prevent occurrence of domestic violence in society,” said Justice Prabhudessai.
The question of law had emerged in a dispute between a couple that wed in 2013. Two years into the marriage, the husband filed for divorce. The case is pending before a Pune family court. The same year, in 2015, the wife filed for interim maintenance before a magistrate. Her plea was fixed for a date in November 2016 for court to record her evidence. With days to go before the hearing, though, the husband moved the magistrate to claim that she was not entitled to file an affidavit and wanted the court to direct her to step into the witness box as, he said, the proceedings have to conform with provisions for seeking maintenance under Section 125 of the Criminal Procedure Code (CrPC).
The CrPC provides for women to seek maintenance from husbands, but here they have to first depose to make out a case for maintenance.
A woman’s lawyer would ask questions and she would answer in court in the presence of the husband or his lawyer. The husband, through his lawyer, would then be allowed to cross-examine her. The trial proceedings often take a minimum of two years to even complete and are later open for appeals in higher courts. The woman, if destitute, is caught in a web of court dates, lengthy proceedings and a long time to see the colour of money if maintenance is granted.
The Pune magistrate, though, held that Section 28(2) of the DV Act permits the court to lay down its own procedures for disposal of an application for relief, filed under Section 12. Keeping in mind the 60-day time frame, the Pune court had said the wife’s deposition could be dispensed with and her evidence could be presented through an affidavit.
Last year, the husband moved high court to challenge the magistrate’s order. The court found the magistrate was justifiably right. It observed that the DV Act mandates the magistrate to fix the first date of hearing, ordinarily not beyond three days from receipt of the application by the court. The magistrate is required to endeavour to dispose the application within two months from the date of first hearing.
Section 28 of the DV Act prescribes the procedure to be followed by the magistrate. While Section 28(1) says that magistrates are governed by provisions of CrPC, Section 28(2) also says that courts can lay down their own procedures.
Applying principles of interpretation to effectuate legislative intent, the high court observed, “The DV Act is a beneficial piece of social welfare legislation aimed at providing to the victims of domestic violence speedy relief, which is civil in nature. Though..., there is no specific provision in the DV Act to give evidence on affidavit, Section 28(2)…gives flexibility to the court to depart from the procedure prescribed under Section 28(1) and to devise its own procedure in deciding application under Section 12...” This is an “enabling provision” which intends to achieve the object of the Act.
Picture for representational purpose only.
