Are proceedings under the Domestic Violence Act civil or criminal? The Gordian Knot

Domestic violence is a household phenomenon, largely invisible in the public domain. The COVID-19 pandemic brought with it a rise in the instances of domestic violence in households.

The Madras High Court, in its judgment in the case of Dr P Pathmanathan v. Monica & Ors, has quite lucidly and comprehensively dealt with the relevant provisions under the Act and various verdicts in this sphere. The judgment swiftly took off in finding that the High Court has no jurisdiction to quash a complaint under Section 12 of the Domestic Violence Act, 2005 (DV Act), in exercise of its inherent power under Section 482 of the Code of Criminal Procedure, 1973 (CrPC).

The Court initially had explained the various reliefs that can be sought for under the Act, which include:

• Protection Orders (Section 18),

• Residence Orders (Section 19),

• Monetary Reliefs (Section 20),

• Custody Orders (Section 21)

• Compensation Orders (Section 22)

Of all of the aforesaid reliefs, the breach of a protection order or an interim protection order alone is a cognizable and non-bailable offence under Sections 31 and 32(1) of the Act. Therefore, the Court rightly interpreted that civil proceedings under Chapter IV would transform into criminal proceedings in case of aforesaid breach under Chapter V of the Act. The Court opined that an amalgamation such as this would not per se destroy the nature and identity of two separate and distinct jurisdictions.

The Court further expatiated the nature of the jurisdiction exercised by the magistrate under the DV Act and under CrPC.

The aforesaid provisions would amply prove that the procedure set out in the DV Act and the Rules make a conscious deviation from the traditional modes of a criminal court taking cognizance, issuing process and then trying the accused under the provisions of the CrPC. Thus, the application of CrPC to an application under Section 12 of the DV Act is residuary in nature by virtue of the mandate of Section 28(1) of the DV Act.

The Court, after reference to VB D’Monte v. Bandra Borough Municipal Corporation, Annie Besant v. Advocate General of Madras, State of UP v. Mukhtar Singh and SAL Narayan Row and Another v. Ishwarlal Bhagwandas, bolstered the well-founded principle that the true litmus test for determining the nature of proceedings depends upon the nature of the right violated and the relief sought, and not upon the nature of the tribunal. The Court further held that the mere existence of an appeal provision under Section 29 of the Act before the Sessions Court would not result in the metamorphosis of civil proceedings to criminal proceedings.

The next obvious conclusion of the Court was that Section 482 CrPC being the inherent criminal jurisdiction of a High Court, cannot be invoked to quash an application under Section 12 of the DV Act. However, the Court further held that the aggrieved are not remediless and they can approach the High Court under Article 227 of the Constitution, and laid down a slew of directions to be followed.

However, in P Arun Prakash and Others v. S Sudhamary, the Court took a diametrically opposite view by holding that proceedings initiated under the DV Act are criminal in nature. The Court in the above case highlighted the relevant provisions under the DV Act, and after citing Section 26 of the Act, plainly concluded that the applicability of CrPC would make the proceedings under the DV Act criminal in nature.

It is important to note that the issue in the said case pertained to a petition seeking withdrawal of a DV case from the Metropolitan Magistrate Court and to transfer the same to the file of the Family Court. As the Registry had questioned the very maintainability of the plea under Article 227, the same was posted before the High Court. The Court eventually confirmed the maintainability issues raised by the Registry and proceeded to make observations with respect to the nature of proceedings under the DV Act. Therefore, the moot issue in the said case was with respect to the very maintainability of the transfer CMP, as it did not relate to the nature of jurisdiction exercised under the DV Act

Although the earlier judgment might have reduced a large chunk of briefs for the counsel on the criminal side, it is ingeniously interpreted and made nuance findings. The subsequent judgment has taken a divergent view, without any discussion about the earlier judgment on this aspect. This anomalous position has to be resolved quickly as the lower judiciary would be in a dilemma as to which of the decisions are to be followed.

Due to the uncertainty raised by the subsequent judgment, the earlier settled position stands disturbed and the matter now stands referred to the larger bench in order to settle the dichotomy between two conflicting decisions of this Court.

One should be conscious of the object of the DV Act, which is to help insulate a woman from violence, provide her with an alternate avenue and to enable her to reconcile differences without disrupting/disintegrating harmony in the family. If harsh criminal laws are enforced against family members at the instance of the woman, then it would definitely have a deleterious impact in her matrimonial relationship and the tumultuous situation may go haywire.

Indu Kamesh is a practicing lawyer at the Madras High Court.