26 September 2024 - Legal Updates

1. Domestic Violence Act | Sec.25(2) can be Invoked only Based on Change In Circumstances Which Occurred After Sec. 12 Order was Passed: Supreme Court

The Supreme Court held that alteration/modification/revocation of an order passed under section 12 of the Protection of Women from Domestic Violence Act, 2005 can be sought through section 25(2) only on the basis of change of circumstances which took place subsequent to the passing of the order.

For the invocation of section 25(2) of the Act, there must be a change in the circumstances after the order being passed under the Act, the Court stated.

"Any alteration, modification or revocation of an order passed under Section 12 of the Act owing to a change in circumstances could only be for a period ex post facto, i.e., post the period of an order being made in a petition under Section 12 of the Act and not to a period prior thereto. Thus, such an application for alteration, modification or revocation filed under sub-section (2) of Section 25 of the Act cannot relate to any period prior to the order being passed, inter alia, under Section 12 of the Act,” observed a bench comprising Justices BV Nagarathna and N Kotiswar Singh.

In this case, on 23.02.2015 the Magistrate passed an order under Section 12 of the DV Act allowing Rs.10,000 as monthly maintenance and Rs.1,00,000 as compensation for the wife. The order attained finality. In 2020, the husband filed an application under Section 25(2) of the Act seeking revocation/modification of the order owing to change in circumstance. Though Magistrate dismissed the application, the Sessions Court directed the Magistrate to consider the same. The wife's revision against the Session's Court's order was dismissed by the High Court and she appealed to the Supreme Court.

The wife argued that the husband in effect was seeking the setting aside of the original order passed in 2015, which is not permissible under Section 25(2).In the application under Section 25(2), the husband sought the setting aside of the order passed in 2015 and a direction to the wife to return the entire amount received by her.

The Court observed that there cannot be a setting aside of the order dated 23.02.2015 for the period prior to such an application for revocation being made.

"Unless there is a change in the circumstance requiring alteration, modification or revocation of the earlier order owing to a change occurring subsequent to the order being passed, the application is not maintainable," Justice Nagarathna wrote in the judgment.

"Thus, the exercise of jurisdiction under sub-section (2) of Section 25 of the Act cannot be for setting aside of an earlier order merely because the respondent seeks setting aside of that order, particularly when the said order has attained finality by its merger with an appellate order as in the instant case unless a case for its revocation is made out.

Secondly, the prayers sought for by the respondent herein are for refund of the entire amount of maintenance that was paid prior to the application under sub-section (2) of Section 25 of the Act being filed and the order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 being in fact revoked. The revocation of an order, inter alia, under Section 12 of the Act sought by a party cannot relate to a period prior to such an order being passed. We find that in the instant case the second prayer was not at all maintainable."

Hence, the Court found that the application under Section 25(2) was not maintainable, as it related to period prior to the date when the original order was passed.

"In fact, the prayers sought for by the respondent are totally contrary to the spirit of sub-section (2) of Section 25 of the Act. While making such a prayer, the respondent could not have sought in substance for setting aside of the original order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 and seeking refund of the maintenance amount which was paid to the appellant pursuant to the said order," it observed allowing the appeal.

Case- S Vijikumari vs. Mowneshwarachari C

2. Defendant Can Cross-Examine Plaintiff Even if Suit is Proceeding Ex-Parte Against Him & Written Statement & Written Statement Isn’t Filed: Supreme Court

The Supreme Court observed that the failure of the defendant to file a written submission would not foreclose its right to cross-examine the plaintiff’s witnesses to prove the falsity of the plaintiff’s case.

“Even if a defendant does not file a written statement and the suit is ordered to proceed ex parte against him, the limited defence available to the defendant is not foreclosed. A defendant can always cross-examine the witnesses examined by the plaintiff to prove the falsity of the plaintiff’s case,” the court said.

It was a case where an ex-parte order was passed against the defendant due to the defendant's failure to record its appearance. However, it was contended by the defendant that he was present in the court but was under the impression that the court would not hold due to the unavailability of the presiding officer.

After that, the defendant filed an application entailing the defences against the passing of an ex-parte order. The plaintiffs also applied to strike out the defendants' defense. The plaintiff called the defendant's claim of the presiding officer's unavailability as misconceived.

The plaintiff's application was heard by the court and decided against the defendant denying him the right to file a reply to the plaintiff's application seeking the striking down of the defences urged by the defendant.

The Bench comprising Justices Abhay S. Oka, Ahsanuddin Amanullah, and Augustine George Masih observed that an error was committed by the trial court while entertaining the plaintiff's application seeking striking down of the defendant's defence without affording an opportunity of hearing to the defendant.

The court said even if the defendant's right to file a written statement stands extinguished, it would not foreclose the defendant's right to lead evidence based on the plaint and the evidence led by the plaintiff.

In a nutshell, the court said that the defendant can cross-examine the plaintiff or its witnesses who deposed that defendant's claim regarding the unavailability of the presiding officer was misconceived.

Case- Ranjit Singh & Anr vs. State of Uttarakhand & Ors.

3. Cannot Assume Careless Omission By Legislature ‘Delhi HC Holds Section 174-A IPC To Fall Within Bar of Section 195 CrPC

The Delhi High Court has observed that cognizance of offence under section 174-A IPC is covered by the Bar under section 195 (1) (a) (i) CrPC which requires that cognizance of offences under sections 172 to 188 IPC could only be taken on a complaint in writing by the public servant.

The court noted that section 174-A which penalizes the non-appearance of a proclaimed offender at a specified time and place, was added through an amendment in 2005 and came into effect in 2006. It further noted that section 195 CrPC has been statute book since 1973 and includes section 172-188 IPC.

It stated, “Therefore, on the date when section 174-A of IPC was inserted, if the legislature had to exclude it out of purview of section 195 Cr.P.C, it would have included that provision.”

The Court observed that one cannot assume a careless omission by the legislature and fill in by judicial interpretation. It noted that the rule of strict and literal interpretation of statutes would prevail.

A single-judge bench of Justice Anish Dayal was considering the petitioners' challenge to the Session Court's order, which dismissed their revision petition. The petitioners had challenged the order of the Magistrate, which framed charges against them under Section 174-A of IPC.

The petitioners' had contended that cognizance of an offence under Section 174-A IPC could only have been taken on a complaint in writing by the concerned public servant and that the bar under Section 195(1)(a)(i) Cr.P.C would apply.

The Sessions Court relied on the case of Maneesh Goome vs. State (2012), where single bench of the Delhi High Court held that Section 174-A IPC was not covered by the bar of Section 195 Cr.P.C. It was observed that Section 195 Cr.P.C. was not correspondingly amended to include Section 174-A IPC which was brought into with effect from 2006, and that the Legislature was conscious that though all other offences under Chapter X of CrPC are non-cognizable, offence punishable under Section 174-A IPC is cognizable.

Here, the petitioner's counsel argued that Maneesh Goomer incorrectly noted that offences prescribed under Section 195 Cr.P.C are all non-cognizable. The counsel thus contended the test to determine whether Section 174-A would fall within the bar contained in 195 Cr.P.C., is not relatable to whether the offence is cognizable or not.

The High Court referred to the Supreme Court case of C. Muniappan & Ors v State of Tamil Nadu, where the Apex Court reiterated that law does not permit taking cognizance of an offence under Section 188 IPC in absence of a complaint by a public servant, in view of the bar under Section 195 Cr.P.C.

Referring to this case, the High Court noted “Therefore, logically and fundamentally, Section 188 IPC being cognizable, the same reasoning would also apply to an offence under Section 174-A IPC, which is also cognizable.” It further noted “Even though, the Supreme Court in C. Muniappan (supra) does not deal with Section 174-A directly, it would be difficult to draw an artificial distinction between Section 174-A IPC and Section 188 IPC, despite both being covered in the category of Sections 172-188, in Section 195(1)(a)(i) Cr.P.C.”

The Court noted that in Maneesh Goomer, the Court did not take into account the decision of C. Muniappan and that an independent analysis and interpretation were done. It stated that the interpretation of Maneesh Goomer would be difficult to support in view of C. Muniappan.

Additionally, the Court referred to the recently introduced acts of BNS and BNSS, which replaced IPC and CrPC. It noted that the equivalent provision of 174-A IPC (Section 209 BNS has been excluded from the equivalent provision of Section 195 Cr.P.C (Section 215 BNSS).

It remarked, “It could be argued that, since now the legislature has sought to exclude the equivalent of Section 174-A IPC, the legislative intent even prior to BNS and BNSS was the same, although not specified in the statute in IPC/Cr.P.C. This, however, will remain in the realm of legislative speculation and it would be encroaching upon the legislative function by providing such interpretation by judicial dicta, which is not permissible.”

The Court thus set aside the order of the Sessions Court.

Case- Amandeep Gill & Anr vs. The State Govt. of NCT Delhi