Bombay High Court: A Single Judge Bench comprising of Anuja Prabhudessai, J., decided a writ petition, wherein it was held that Section 28 (2) of the Protection of Women from Domestic Violence Act, 2005 allows the court to permit evidence by way of an affidavit in an application under Section 12 of the Act.
A short question arose in the petition; whether in an application under Section 12 of the Act, the applicant could be permitted to file affidavit in evidence? The respondent-wife was married to the petitioner-husband. The matrimonial dispute resulted in filing of a divorce petition by the petitioner. The respondent also filed an application under Section 12 of the DV Act. In the course of proceedings, the petitioner contended that the proceedings under the Act were to be dealt with in the manner prescribed under Section 125 CrPC and therefore, the respondent could not be allowed to file affidavit in evidence. He sought a direction to call the respondent in the witness box to adduce evidence.
The High Court perused the Act as well as various decisions of High Courts and the Supreme Court and observed that a cumulative reading of Section 28(1) read with Rule 6(5) indicates that in deciding the application under Section 12, the Court has to follow the procedure prescribed under Section 126 of CrPC and thus, record evidence in presence of the parties. It is however to be noted that Section 28(2) clearly provides that “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 Section 23(2)”. The opening words of Section 28(2) viz. “Nothing in sub-section (1) shall prevent the Court” clearly indicate that notwithstanding the procedure prescribed in Section 28(1) read with Rule 6(5), the Court is empowered to lay down its own procedure in deciding the application under Section 12 or 23(2) of the DV Act. The DV Act is a beneficial piece of social welfare legislation aimed at providing to the victims of domestic violence speedy relief, which are civil in nature. Having regard to the object and scope of the Act, this provision cannot be given a narrow interpretation which will have an effect of rendering it redundant, surplus or otiose.
Holding that the court in its discretion can allow evidence on affidavit and permit cross-examination to test veracity of the evidence, the petition was dismissed. [Aniket Subhash Tupe v. Piyusha Aniket Tupe, 2018 SCC OnLine Bom 601, decided on 22.3.2018]
