The Delhi High Court has set aside a trial court order summoning four persons on an application by a woman seeking their prosecution under the Domestic Violence Act.
Justice S.N. Dhingra dismissed the order saying that the Metropolitan Magistrate concerned had summoned the four without following the prescribed procedures under the Act for proceeding in a case of domestic violence.
The woman had sought prosecution of her husband, father-in-law and two brother-in-laws.
The Magistrate had issued the summons without receiving a report on the alleged incident. Setting aside the lower court order, Justice Dhingra said: “It is apparent from the above provision of the Domestic Violence Act that before passing an order on an application, the magistrate has to take into consideration the domestic incident report received by him by Protection Officer or Service Provider.''
“The order dated November 5, 2009, of learned MM shows that before serving notice to the respondents, the learned MM did not take into consideration anything and did not even consider the contents of the application and did not try to find out as to whether respondents mentioned in the application satisfied the definition of respondent under Section 2(q) of Domestic Violence Act,'' Justice Dhingra observed.
“No doubt Section 28(2) of the Act gives power to the MM of laying down its own procedure for disposal of an application under Section 12 or under Sub-Section 23(2) but the procedure an MM can adopt cannot be violative of the Act itself or violative of principles of natural justice.”
The Court directed the Magistrate to consider the domestic incident report and the contents of the application and find out whether the respondents had any domestic relationship with the applicant and could be fitted in the definition of the respondent as given in Section 2(q) of the Act.