Sunday, April 1, 2018

No need for women to depose in domestic violence cases, says HC

Swati.Deshpande@timesgroup.com   01.04.2018

 
   TIMES OF INDIA 
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 would 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.

The question before the high court 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.

Narrow interpretation would defeat purpose of DV Act, says Bombay HC

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.

“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 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 first hearing.

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...”

FOR SPEEDY DISPOSAL

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