The Erudite Judge, Justice JR Midha has passed this decision on framing of issues in a DV Case.
2. The petitioner has challenged the order dated 28th March, 2017 whereby the Family Court dismissed the petitioner’s application under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’) for framing of additional issues.
From Para 9,
9. Summary of principles
9.1. D.V. Act provides a remedy in civil law for the protection of victims of the domestic violence as noted in the Statement of Object and Reasons.
9.2. The aggrieved person can file the application for the reliefs under the D.V. Act to the Magistrate under Section 12 of the D.V. Act.
9.3. If any suit or other legal proceedings affecting the aggrieved person are pending before a Civil Court, Family Court or Criminal Court, Section 26 gives an option to the aggrieved person to approach such Court for reliefs under the D.V. Act. However, no independent application is maintainable before the Civil Court or Family Court, if no proceedings are pending before them affecting the aggrieved person and the respondent.
9.4. The Civil Court, Family Court or Criminal Court dealing with the application under Sections 18 to 22 of the D.V. Act can formulate its own procedure under Section 28(2) of the D.V. Act. The word ‘Court’ in Section 28(2) of the D.V. Act includes Civil Court, Family Court as well as the Criminal Court.
9.5. The Court shall formulate the procedure after completion of pleadings in an application under Section 26 of the D.V. Act.
9.6. After completion of pleadings, the concerned Court shall consider whether evidence is necessary to adjudicate the application under the D.V. Act and if so, the Court shall frame the issues and record the evidence. However, if no evidence is considered necessary, the Court shall list the application for hearing.
From Para 10,
10. Findings
10.1. In the present case, the Family Court is dealing with the petition for dissolution of marriage filed by the petitioner under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and therefore, the petitioner’s application under Section 26 of the D.V. Act seeking reliefs under Section 18, 19, 20, 21 and 22 of the D.V. Act is maintainable before the Family Court.
10.2. The Family Court is empowered to formulate its own procedure for disposal of the petitioner’s application under D.V. Act. In that view of the matter, it is not mandatory for the Family Court to follow Cr.P.C.
10.3. The proper procedure for disposal of the petitioner’s application under Section 26 of the D.V. Act after completion of pleadings is to consider whether evidence is necessary to adjudicate the petitioner’s application under Section 26 of the D.V. Act.
10.4. If the Court finds that the evidence is not necessary, the Court shall list the application for hearing. However, if the evidence is considered necessary, the Court shall frame the issues and record the evidence along with the evidence in the divorce petition.
10.5. The respondent’s defence before the Family Court as well as this Court that the Family Court has no jurisdiction to entertain the petitioner’s application under Section 26 of the D.V. Act, is frivolous and is rejected.
10.6. The respondent attempted to mislead this Court by raising a frivolous defence with respect to the nature of proceedings under Section 26 of the D.V. Act whereas the law is clear and well settled that the Civil Court, Family Court and Criminal Court have jurisdiction to entertain and try an application under Section 26 in pending proceedings affecting the parties and the Court can formulate its own procedure to conduct the proceedings.
10.7. xxxxx
Citations : [2018 SCC ONLINE DEL 8421], [2018 DLT 248 511], [2018 HLR 2 238], [2019 HLR 1 784]
Other Sources :
https://indiankanoon.org/doc/72057276/
https://www.casemine.com/judgement/in/5ad842949eff430def4a5a08
https://vlex.in/vid/s-vs-j-709886493
