# Saleem Ahmad v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 644
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-14
- **Case number:** Matters U/A 227 No. 339 of 2024
- **Bench:** Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saleem-ahmad-v-state-of-u-p-ors-51935
- **Pages:** 13

## Headnote

Civil Law - Protection of Women from
Domestic Violence Act,2005 - Sections
2(a),2(q),12,18, 19, 20, 22 & 28 -
Application u/s 12 of D.VS Act was moved
by
respondent
no.
3
seeking
an
amendment in relief clause of an earlier
application - St.d that due to inadvertent
typographical error, maintenance had been
sought for 'the minor son', whereas
applicant didn't have any minor son -
Petitioner (father of the husband of the
respondent no. 3) raised objections that no
such amendment was permissible in
criminal proceeding - Learned Magistrate
allowed the application, observed that
said application be read along with main
application - Against the order, the
petitioner
preferred
a
revision
-
Rejected, the revisional court held that
proceedings under D.VS Act are quasi
civil in nature, and amendments to
pleadings were permissible - Impugned
orders - Held, proceedings before a
magistrate, which commence with filing
of application u/s 12, seeking various
kinds of reliefs, under Chapter IV, are of
a civil nature, and upon breach of a
protection order, the said proceedings
get
transformed
into
criminal
proceedings - Power to amend the
complaint/application would have to be
read in relevant statutory provisions - No
illegality in impugned order, dismissed.
(Para 3, 4, 5, 6, 20, 42)

Petition dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,636 of 44,275. This is a partial read: ask again with offset=39636 for what follows._

644 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Resultantly, the impugned orders
passed by the Regional Level Committee
headed by the Chairman, namely, Regional
Joint Director of Education concerned, in all
the respective writ petitions are hereby
quashed.

23. All the matters are relegated back
to
the
Regional
Level
Committees
concerned to pass order afresh within a
period of three months, after calling the
records from the committee of management
as well as the District Inspectors of Schools
concerned and subsequently verifying those
records and consulting with the committee
of management, and while affording
opportunity of hearing to the teachers
concerned, if so required. The scheme
provided under Section 33-G of the Act,
1982 shall strictly be adhered to.

24. In addition, it is further provided
that the petitioners of all the writ petitions
are entitled to continue in service and shall
be paid salary without any further break. It
is further directed that the petitioner as well
as the manager of the committee of
management shall ensure their presence and
would co-operate with the Regional Level
Committee, as and when required.
----------
(2024) 5 ILRA 644
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2024
BEFORE

THE HON'BLE YOGENDRA KUMAR
SRIVASTAVA, J.

Matters U/A 227 No. 339 of 2024

Saleem Ahmad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Verma

Counsel for the Respondents:
G.A., Sri Kuldeep Singh Parmar

Civil Law - Protection of Women from
Domestic Violence Act,2005 - Sections
2(a),2(q),12,18, 19, 20, 22 & 28 -
Application u/s 12 of D.VS Act was moved
by
respondent
no.
3
seeking
an
amendment in relief clause of an earlier
application - St.d that due to inadvertent
typographical error, maintenance had been
sought for 'the minor son', whereas
applicant didn't have any minor son -
Petitioner (father of the husband of the
respondent no. 3) raised objections that no
such amendment was permissible in
criminal proceeding - Learned Magistrate
allowed the application, observed that
said application be read along with main
application - Against the order, the
petitioner
preferred
a
revision
-
Rejected, the revisional court held that
proceedings under D.VS Act are quasi
civil in nature, and amendments to
pleadings were permissible - Impugned
orders - Held, proceedings before a
magistrate, which commence with filing
of application u/s 12, seeking various
kinds of reliefs, under Chapter IV, are of
a civil nature, and upon breach of a
protection order, the said proceedings
get
transformed
into
criminal
proceedings - Power to amend the
complaint/application would have to be
read in relevant statutory provisions - No
illegality in impugned order, dismissed.
(Para 3, 4, 5, 6, 20, 42)

Petition dismissed. (E-13)

List of Cases cited:

1. Kunapareddy @ Nookala Shanka Balaji Vs
Kunapareddy Swarna Kumari & anr., (2016) 11
SCC 774

2. St. of U.P. Vs Mukhtar Singh, AIR 1957 All 505

3. SAL Narayan Row Vs Ishwarlal Bhagwandas,
AIR 1965 SC 1818
5 All. Saleem Ahmad Vs. State of U.P. & Ors.
645
4. Ram Kishan Fauji Vs St. of Har. & ors., (2017)
5 SCC 533

5. Kamatchi Vs Lakshmi Narayanan, (2022) 15
SCC 50

6. S.R. Sukumar Vs S. Sunaad Raghuram, (2015)
9 SCC 609

7. U.P. Pollution Control Board Vs Modi Distillery,
(1987) 3 SCC 684

(Delivered by Hon'ble Yogendra Kumar
Srivastava, J.)

1. Heard Sri Sanjay Kumar Verma,
learned counsel for the petitioner, Sri Pankaj
Saxena, learned AGA-I for the State
respondents and Sri Kuldeep Singh Parmar,
learned counsel for respondent no. 2.

2. The present petition has been filed
seeking to assail the order dated 18.08.2022
passed by Judicial Magistrate, Ghatampur,
Kanpur Dehat in Case No. 474 of 2019
(Mashroof Raza alias Sonu Khatoon Vs.
Waseem Ahmad and others), under Section
12 of Protection of Women from Domestic
Violence Act, 20051, and the subsequent
order dated 03.10.2023 passed by the
Additional Sessions Judge, Court No. 1,
Kanpur Dehat in Criminal Revision No. 76
of 2022 (Saleem Ahmad vs. State of U.P.
and another), whereby the earlier order has
been affirmed.

3. The facts of the case as reflected
from the pleadings in the petition indicate
that an application dated 21.12.2019 was
moved by the respondent no. 3 seeking an
amendment in the relief clause of an earlier
application dated 03.08.2019 which had
been filed under Section 12 of the D.V. Act.
The application seeking amendment sought
deletion of a part of the relief clause, stating
that due to an inadvertent typographical
error, maintenance had been sought for 'the
minor son', whereas the applicant did not
have any minor son.

4. The petitioner herein, who is the
father of the husband of the respondent no.
3 (applicant in D.V. Case), raised objections
to the amendment application by contending
that no such amendment was permissible in
a criminal proceeding.

5. Learned Magistrate passed an order
dated 18.08.2022 allowing the application
dated 21.02.2019 seeking amendment, and
observing that the said application be read
along with the main application, fixed a date
for passing of further order.

6. Aggrieved against the aforesaid
order, the petitioner preferred a revision,
which has been rejected by an order dated
03.10.2023, wherein the revisional court has
held that proceedings under the D.V. Act are
quasi civil in nature, and accordingly,
amendments to pleadings were permissible.

7. The order passed by the learned
Magistrate on the amendment application
and the subsequent revisional order, are
sought to be assailed by means of the present
petition.

8. Learned counsel for the petitioner
has sought to challenge the orders passed by
the learned Magistrate and the revisional
court by referring to the factual aspects of
the case and the defence which is to be set
up on behalf of the petitioner to contest the
proceedings.

9. Learned AGA-I appearing for the
State respondents and also the counsel
appearing for the respondent no. 3 have
supported the orders passed by the learned
Magistrate and also the revisional court by
submitting that proceedings under D.V. Act
646 INDIAN LAW REPORTS ALLAHABAD SERIES
are essentially of a civil nature and in a
situation where amendment is necessary, the
Court concerned would have power to allow
such amendments.

10. It is submitted that the amendment
sought in the present case was to correct an
inadvertent typographical error, and the
objections which were sought to be raised by
the petitioner herein were solely with a view
to delay the proceedings, and the said
objections have been rightly turned down by
the learned Magistrate.

11. The question which, thus, falls for
consideration in the present case is with
regard to the extent of the powers of
amendment of pleadings exerciseable in
proceedings under the D.V. Act.

12. The proceedings under the D.V.
Act, in the instant case, were initiated
pursuant to an application filed under
Section 12 wherein the reliefs sought are
referable to the provisions under Sections
18, 19, 20 and 22 of the said Act.

13. The genesis of the D.V. Act is
traceable to the General Recommendation
No. XII (1989) made by the United Nations
Committee on Convention of Elimination of
all Forms of Discrimination against Women
(CEDAW), in terms of which it was
recommended that the State parties, should
act to protect women against violence of any
kind especially, that occurring within the
family. The Vienna Accord of 1994 and the
Beijing Declaration and Platform for Action
(1995),
acknowledged
that
domestic
violence was a human rights issue and a
serious deterrent to development.

14. The Protection from Domestic
Violence Bill, 2002 upon being tabled in the
Lok Sabha was referred to a Standing
Committee of the Ministry of Human
Resource Development in the Rajya Sabha.
The Committee submitted its 124th Report
on the Bill (2002), wherein it was stated that
the proposed legislation was aimed at
"providing a remedy under the civil law
which is intended to preserve the family and
at the same time provide protection to
victims of domestic violence."

15. The object of the Act was to bridge
the gap between the existing procedures in
civil and criminal law by providing a civil
remedy for a complaint of domestic violence
without disrupting the harmony in the
family. This is also clear from the following
extract from the Report of the Standing
Committee:

" ...the existing civil, personal or
criminal laws leave certain gaps in
addressing the issue of Domestic Violence.
Under criminal law, if a husband perpetrates
violence on his wife, she may file a complaint
under Section-498 A of IPC. Similarly, under
the civil law, if there is disharmony in a family
and the husband and wife cannot live together,
any one of them may file a suit for separation
followed by divorce. However, the present Bill
addresses such situation where there is some
disharmony in the family but the situation has
not yet reached a stage where either
separation or divorce proceeding has become
inevitable and the aggrieved woman also for
some reasons does not want to initiate
criminal proceedings against her perpetrator.
Therefore, the Bill seeks to give the aggrieved
woman an alternative avenue whereby she can
insulate herself from violence without being
deprived of the basic necessities of life and
without disintegrating her family."

16. The D.V. Act was enacted as a law
(Act 43 of 2006) with the purpose of
providing a remedy in civil law for the
5 All. Saleem Ahmad Vs. State of U.P. & Ors.
647
protection of women from being victims of
domestic violence and to protect the
occurrence of domestic violence in society.
The enactment of law was made keeping in
view the rights guaranteed under Articles
14, 15 and 21 of the Constitution and to
provide for a remedy in the civil law which
is intended to protect the women from being
victims of domestic violence and to prevent
the occurrence of domestic violence in the
society. The scheme of the Act envisages
that the order to be passed by the Magistrate,
and a complaint by the aggrieved person,
would be of a civil nature, and if the said
order is violated, it would assume the
character of criminality. The legislative
intent of the enactment, is reflected in the
statement of objects and reasons of the Act,
which reads as follows:

"STATEMENT OF OBJECTS AND
REASONS"

Domestic violence is undoubtedly
a human Right issue and serious deterrent to
development. The Vienna Accord of 1994
and the Beijing Declaration and the
Platform
for
Action
(1995)
have
acknowledged this. The United Nations
Committee on Convention on Elimination of
All Forms of Discrimination Against
Women
(CEDAW)
in
its
General
Recommendation NO. XII (1989) has
recommended that State parties should act
to protect women against violence of any
kind especially the occurring within the
family.

2. The phenomenon of domestic
violence is widely prevalent but has
remained largely invisible in the public
domain. Presently, where a woman is
subjected to cruelty by her husband or his
relatives, it is an offence under section 498A
of the Indian Penal Code. The civil law does
not however address this phenomenon in its
entirety.

3. It is, therefore, proposed to
enact a law keeping in view the rights
guaranteed under articles 14,15 and 21 of
the Constitution to provide for a remedy
under the civil law which is intended to
protect the woman from being victims of
domestic violence and to prevent the
occurrence of domestic violence in the
society.

4. The Bill, inter alia, seeks to
provide for the following:-

(i) It covers those women who are
or have been in a relationship with the
abuser where both parties have lived
together in a shared household and are
related by consanguinity, marriage or
through a relationship in the nature of
marriage
or
adoption.
In
addition,
relationships with family members living
together as a joint family are also included.
Even those women who are sisters, widows,
mothers, single women, or living with the
abuser are entitled to legal protection under
the proposed legislation. However, whereas
the Bill enables the wife or the female living
in a relationship in the nature of marriage
to file a complaint under the proposed
enactment against any relative of the
husband or the male partner, it does not
enable any female relative of the husband or
the male partner to file a complaint against
the wife or the female partner.

(ii) It defines the expression
"domestic violence" to include actual abuse
or threat or abuse that is physical, sexual,
verbal, emotional or economic. Harassment
by way of unlawful dowry demands to the
woman or her relatives would also be
covered under this definition.

(iii) It provides for the rights of
women to secure housing. It also provides
for the right of a woman to reside in her
matrimonial home or shared household,
648 INDIAN LAW REPORTS ALLAHABAD SERIES
whether or not she has any title or rights in
such home or household. This right is
secured by a residence order, which is
passed by the Magistrate.

(iv) It empowers the Magistrate to
pass protection orders in favour of the
aggrieved person to prevent the respondent
from aiding or committing an act of
domestic violence or any other specified act,
entering a workplace or any other place
frequented
by
the
aggrieved
person,
attempting the communicate with her,
isolating any assets used by both the parties
and causing violence to the aggrieved
person, her relatives or others who provide
her assistance from the domestic violence.

(v) It provides for appointment of
Protection Officers and registration of nongovernmental organisations as service
providers for providing assistance to the
aggrieved person with respect to her
medical examination, obtaining legal aid,
safe shelter, etc."

17. An 'aggrieved person' is defined
under Section 2(a) of the D.V. Act to mean
any woman who is, or has been, in a
domestic relationship with the respondent
and who alleges to have been subjected to
any Act of domestic violence by the
respondent. It is noticeable that the
grievance of the 'aggrieved person' under the
D.V. Act, is to be considered against a
'respondent' as defined under Section 2(q) of
the Act. The grievances which may be raised
and the reliefs that may be sought under the
D.V. Act, are not to be in the nature of a
formal accusation as in a criminal case, and
the person against whom the relief is sought,
is therefore not referred to as an accused.

18. The procedure for obtaining orders
of reliefs are provided under Chapter IX of
the D.V. Act, and in terms thereof the
various reliefs that can be granted are as
follows: (i) protection orders under Section
18; (ii) residence order under Section 19;
(iii) monetary reliefs under Section 20; (iv)
custody orders under Section 21; and (v)
compensation orders under Section 22.

19. Amongst the various reliefs that
may be claimed under the D.V. Act, it is
only the breach of a protection order, or of
an
interim
protection
order
by
the
respondent, that is held to be an offence in
terms of Section 31 with a penalty specified,
and in terms of Section 32, the said offence
is cognizable and non-bailable.

20. The proceedings before a
magistrate, which are to commence with
filing of an application under Section 12,
seeking various kinds of reliefs, provided
for, under Chapter IX, are essentially of a
civil nature, and it is only upon breach of a
protection order, or of an interim protection
order, that the said proceedings get
transformed into criminal proceedings.

21. The breach of protection order or
of an interim protection order, is held to be
an offence under Section 31(1), and Section
31(2) uses the expression 'accused' only
when an offence i.e., a breach of a protection
order or of an interim protection order is
alleged to have been committed.

22. It would be seen that criminality
under Section 31 is attached only to breach
of a protection order under Section 18, or of
an interim protection order under Section 23
order, or under Section 33 for failure of a
Protection Officer to discharge his duties
without sufficient cause.

23. The question as to whether the
reliefs envisaged under Chapter IX of the
D.V. Act are of a civil nature, was examined
in Kunapareddy Alias Nookala Shanka
5 All. Saleem Ahmad Vs. State of U.P. & Ors.
649
Balaji Vs. Kunapareddy Swarna Kumari
and Another, wherein after considering the
purpose of the enactment and its scheme, it
was held that the order that is to be passed
by the Magistrate on a complaint by the
aggrieved person, would be of a civil nature,
and it is only when the said order is violated
that it assumes the character of criminality.
The observations made in the judgment, in
this regard, are as follows:

"12. In fact, the very purpose of
enacting the DV Act was to provide for a
remedy which is an amalgamation of civil
rights of the complainant i.e. aggrieved
person. Intention was to protect women
against violence of any kind, especially that
occurring within the family as the civil law
does not address this phenomenon in its
entirety. It is treated as an offence under
Section 498-A of the Penal Code, 1860. The
purpose of enacting the law was to provide
a remedy in the civil law for the protection
of women from being victims of domestic
violence and to prevent the occurrence of
domestic violence in the society. It is for this
reason, that the scheme of the Act provides
that in the first instance, the order that
would be passed by the Magistrate, on a
complaint by the aggrieved person, would
be of a civil nature and if the said order is
violated, it assumes the character of
criminality.....

......

13. Procedure for obtaining order
of reliefs is stipulated in Chapter IV of the
DV Act which comprises Sections 12 to 29.
Under Section 12 an application can be
made to the Magistrate by the aggrieved
person or Protection Officer or any other
person on behalf of the aggrieved person.
The Magistrate is empowered, under
Section 18, to pass protection order. Section
19 of the DV Act authorises the Magistrate
to pass residence order which may include
restraining
the
respondent
from
dispossessing or disturbing the possession
of the aggrieved person or directing the
respondent to remove himself from the
shared household or even restraining the
respondent or his relatives from entering the
portion of the shared household in which the
aggrieved person resides, etc. Monetary
reliefs which can be granted by the
Magistrate under Section 20 of the DV Act
includes giving of the relief in respect of the
loss of earnings, the medical expenses, the
loss caused due to destruction, damage or
removal of any property from the control of
the aggrieved person and the maintenance
for the aggrieved person as well as her
children, if any. Custody can be decided by
the Magistrate which was granted under
Section 21 of the DV Act. Section 22
empowers
the
Magistrate
to
grant
compensation and damages for the injuries,
including mental torture and emotional
distress, caused by the domestic violence
committed by the appellant. All the
aforesaid reliefs that can be granted by the
Magistrate are of civil nature. Section 23
vests the Magistrate with the power to grant
interim ex parte orders. It is, thus, clear that
various kinds of reliefs which can be
obtained by the aggrieved person are of civil
nature. At the same time, when there is a
breach of such orders passed by the
Magistrate, Section 31 terms such a breach
to be a punishable offence."

24. The procedure to be followed by
the court in 'proceedings' under the D.V.
Act, is prescribed under Section 28 of the
Act. Sub-section (1) of Section 28, while
drawing a distinction between 'proceedings'
under Sections 12, 18, 19, 20, 21, 22 and 23,
and 'offences' under Section 31, states that
that they would be governed by the
provisions of the Cr.P.C. For ease of
650 INDIAN LAW REPORTS ALLAHABAD SERIES
reference, Section 28 of the D.V. Act is
being extracted below:

"Procedure.--(1)
Save
as
otherwise
provided
in
this
Act,
all
proceedings under sections 12, 18, 19, 20,
21, 22 and 23 and offences under section 31
shall be governed by the provisions of the
Code of Criminal Procedure, 1973. (2 of
1974).

(2) 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 subsection (2) of section 23."

25. It is noticeable that Section 28(1)
commences with the expression "save as
otherwise provided by this Act", the effect
of which would be to exclude the application
of the Code in areas where the procedure has
been expressly provided under the D.V. Act
or under the Protection of Women from the
Domestic Violence Rules, 20063.

26. It is further noticeable that Section
28(2) begins with a non obstante clause
which empowers the court to lay down its
own procedure for disposal of an application
under Section 12 or under Section 23(2).

27. The aforesaid may be seen as
exceptions to the general rule with regard to
the applicability of the provisions of the
Cr.P.C. to proceedings under the D.V. Act.

28. The 'Statement of Objects and
Reasons' of the enactment is clearly
indicative that the legislature was conscious
that in a situation where a woman is
subjected to cruelty by her husband or her
relatives, it would be an offence under
Section 498 A of I.P.C.; however, the civil
law does not address the phenomena in its
entirety. The legislation, was, accordingly,
brought in place, keeping in view the rights
guaranteed under Articles 14, 15 and 16 of
the Constitution and to provide for a remedy
under the civil law intended to protect a
woman from being victim of domestic
violence and to prevent the occurrence of
domestic violence in society.

29. The procedure set out under the
D.V. Act and the D.V. Rules, is sufficiently
indicative of a conscious deviation from the
manner in which a criminal court proceeds
to take cognizance, issue process and try the
accused under the provisions of the Cr.P.C.
It is only in case of a breach of a protection
order or of an interim protection order,
passed under the provisions of the D.V. Act,
that an element of criminality is sought to be
attached. At the stage of the proceedings
related to an application under Section 12,
the applicability of the Cr.P.C., would be
seen to be circumscribed by the provisions
under Section 28 of the D.V. Act.

30. The question as to whether a
proceeding is civil or not, was examined in
State of Uttar Pradesh Vs. Mukhtar
Singh and it was stated thus:

"Whether a proceeding is civil or
not depends, in my opinion, on the nature of
the subject-matter of the proceeding and its
object, and not on the mode adopted or the
forum provided for the enforcement of the
right. The expression "civil rights" in a
broad sense comprises the entire bundle of
private rights that a human being or any
person recognises by law as a juristic entity
might, as such, possess under law and for
the recognition, declaration or enforcement
of which law makes a provision."

31. The test to be applied for
examining the character of a proceeding
before a Court or authority, and the
5 All. Saleem Ahmad Vs. State of U.P. & Ors.
651
distinction between a 'civil proceeding' and
a 'criminal proceeding', was formulated by a
Constitution Bench of the Supreme Court in
SAL
Narayan
Row
Vs.
Ishwarlal
Bhagwandas, and it was held as follows:

"8. ......The expression "civil
proceeding"
is
not
defined
in
the
Constitution, nor in the General Clauses
Act. The expression in our judgment covers
all proceedings in which a party asserts the
existence of a civil right conferred by the
civil law or by statute, and claims relief for
breach thereof. A criminal proceeding on
the other hand is ordinarily one in which if
carried to its conclusion it may result in the
imposition of sentences such as death,
imprisonment, fine or forfeiture of property.
It also includes proceedings in which in the
larger interest of the State, orders to prevent
apprehended breach of the peace, orders to
bind down persons who are a danger to the
maintenance of peace and order, or orders
aimed
at
preventing
vagrancy
are
contemplated to be passed.

"......The
character
of
the
proceeding, in our judgment, depends not
upon the nature of the tribunal which is
invested with authority to grant relief, but
upon the nature of the right violated and the
appropriate relief which may be claimed. A
civil proceeding is therefore one in which a
person seeks to enforce by appropriate,
relief the alleged infringement of his civil
rights against another person or the State,
and which if the claim is proved would result
in the declaration express or implied of the
right claimed and relief such as payment of
debt, damages, compensation, delivery of
specific property, enforcement of personal
rights, determination of status etc."

32. The distinction between a 'civil
proceeding' and a 'criminal proceeding', and
the test to be applied for the purpose was
reiterated in Ram Kishan Fauji Vs. State
of Haryana and Others. It was observed as
follows:

31. "...... As far as criminal
proceeding
is
concerned,
it
clearly
stipulates that a criminal proceeding is
ordinarily one which, if carried to its
conclusion, may result in imposition of (i)
sentence, and (ii) it can take within its ambit
the larger interest of the State, orders to
prevent apprehended breach of peace and
orders to bind down persons who are a
danger to the maintenance of peace and
order. The Court has ruled that the
character of the proceeding does not depend
upon the nature of the tribunal which is
invested with the authority to grant relief but
upon the nature of the right violated and the
appropriate relief which may be claimed."

33. The question as to whether the
nature of proceedings under the various
provisions of the D.V. Act, would be of a
civil or criminal nature, was clarified in
Kunapareddy Alias Nookala Shanka
Balaji Vs. Kunapareddy Swarna Kumari
and Another, wherein referring to Section
28, it was observed that in respect of a
petition filed under Sections 18 and 20,
though proceedings are to be governed by
the Cr.P.C., such proceedings, undisputedly;
would be predominantly of a civil nature. It
was also observed that all the reliefs
stipulated under Chapter IV of the D.V. Act,
which comprises Sections 12 to 29 and can
be granted by a Magistrate, are of a civil
nature. The observations made in the
judgment, are as follows:

"12. In fact, the very purpose of
enacting the DV Act was to provide for a
remedy which is an amalgamation of civil
rights of the complainant i.e. aggrieved
person. Intention was to protect women
652 INDIAN LAW REPORTS ALLAHABAD SERIES
against violence of any kind, especially that
occurring within the family as the civil law
does not address this phenomenon in its
entirety. It is treated as an offence under
Section 498-A of the Penal Code, 1860. The
purpose of enacting the law was to provide
a remedy in the civil law for the protection
of women from being victims of domestic
violence and to prevent the occurrence of
domestic violence in the society. It is for this
reason, that the scheme of the Act provides
that in the first instance, the order that
would be passed by the Magistrate, on a
complaint by the aggrieved person, would
be of a civil nature and if the said order is
violated, it assumes the character of
criminality......."

13. Procedure for obtaining order
of reliefs is stipulated in Chapter IV of the
DV Act which comprises Sections 12 to 29.
Under Section 12 an application can be
made to the Magistrate by the aggrieved
person or Protection Officer or any other
person on behalf of the aggrieved person.
The Magistrate is empowered, under
Section 18, to pass protection order. Section
19 of the DV Act authorises the Magistrate
to pass residence order which may include
restraining
the
respondent
from
dispossessing or disturbing the possession
of the aggrieved person or directing the
respondent to remove himself from the
shared household or even restraining the
respondent or his relatives from entering the
portion of the shared household in which the
aggrieved person resides, etc. Monetary
reliefs which can be granted by the
Magistrate under Section 20 of the DV Act
includes giving of the relief in respect of the
loss of earnings, the medical expenses, the
loss caused due to destruction, damage or
removal of any property from the control of
the aggrieved person and the maintenance
for the aggrieved person as well as her
children, if any. Custody can be decided by
the Magistrate which was granted under
Section 21 of the DV Act. Section 22
empowers
the
Magistrate
to
grant
compensation and damages for the injuries,
including mental torture and emotional
distress, caused by the domestic violence
committed by the appellant. All the
aforesaid reliefs that can be granted by the
Magistrate are of civil nature. Section 23
vests the Magistrate with the power to grant
interim ex parte orders. It is, thus, clear that
various kinds of reliefs which can be
obtained by the aggrieved person are of civil
nature. At the same time, when there is a
breach of such orders passed by the
Magistrate, Section 31 terms such a breach
to be a punishable offence.

14. In the aforesaid scenario,
merely because Section 28 of the DV Act
provides for that the proceedings under
some of the provisions including Sections 18
and 20 are essentially of civil nature.......

34. The nature of proceedings
instituted upon an application under Section
12 of the D.V. Act, and whether the filing of
such application can be equated to lodging
of a complaint or initiation of prosecution,
was examined in a recent decision in
Kamatchi Vs. Lakshmi Narayanan and
clarifying the law on the subject it was held
that the Magistrate after hearing the parties
and considering the material on record, may
pass an appropriate order under Section 12,
and only thereafter, the breach of such order
would constitute an offence as provided
under Section 31; at the time when the
application under Section 12 is preferred, no
offence is committed as per the terms of the
provisions of the D.V. Act.

35. There is a marked distinction
between a 'complaint' contemplated under
the D.V. Act and the D.V. Rules, and a
'complaint' under the Cr.P.C.. A complaint
5 All. Saleem Ahmad Vs. State of U.P. & Ors.
653
under Rule 2(b) of the D.V. Rules, has been
defined as an allegation made orally or in
writing by any person to a Protection
Officer, whereas a complaint under Section
2(d) Cr.P.C. is any allegation made orally or
in writing to a Magistrate with a view to
taking action under Cr.P.C. that some person
whether known or known has committed an
offence. The Magistrate dealing with an
application under Section 12 is not called
upon to take action for the commission of an
offence; hence what is contemplated is not a
complaint but an application to a Magistrate
as set out in Rule 6(1) of the D.V. Rules. The
filing of an application under Section 12 of
the D.V. Act, can, therefore, not be equated
to the lodging of complaint or initiation of
prosecution as contemplated under the
provisions of the Cr.P.C.

36. The question as to whether an
amendment would be permissible in a
criminal complaint or a petition filed under
the provisions of Cr.P.C., was examined in
S.R. Sukumar Vs. S. Sunaad Raghuram,
and laying down principles for the purpose
it was held that although there was no
specific provision in the Cr.P.C. to permit
amendment of a complaint or a petition, if
the amendment sought to be made related to
a simple infirmity, which was curable by
means of a formal amendment and by
allowing such amendment no prejudice
would be caused to other side, the court may
permit such amendment to be made.
Referring to and earlier decision in U.P.
Pollution
Control
Board
v.
Modi
Distillery it was observed as follows:

"18. Insofar as merits of the
contention
regarding
allowing
of
amendment application is concerned, it is
true that there is no specific provision in the
Code to amend either a complaint or a
petition filed under the provisions of the
Code, but the courts have held that the
petitions seeking such amendment to correct
curable infirmities can be allowed even in
respect of complaints. In U.P. Pollution
Control Board v. Modi Distillery wherein
the name of the company was wrongly
mentioned in the complaint, that is, instead
of Modi Industries Ltd. the name of the
company was mentioned as Modi Distillery
and the name was sought to be amended. In
such factual background, this Court has
held as follows:

"6. ...The learned Single Judge
has focussed his attention only on the
technical flaw in the complaint and has
failed to comprehend that the flaw had
occurred due to the recalcitrant attitude of
Modi Distillery and furthermore the
infirmity is one which could be easily
removed by having the matter remitted to the
Chief Judicial Magistrate with a direction to
call upon the appellant to make the formal
amendments to the averments contained in
Para 2 of the complaint so as to make the
controlling company of the industrial unit
figure as the accused concerned in the
complaint. All that has to be done is the
making of a formal application for
amendment by the appellant for leave to
amend by substituting the name of Modi
Industries Limited, the company owning the
industrial unit, in place of Modi Distillery.
... Furthermore, the legal infirmity is of such
a nature which could be easily cured."

19. What is discernible from U.P.
Pollution Control Board case is that an
easily curable legal infirmity could be cured
by means of a formal application for
amendment. If the amendment sought to be
made relates to a simple infirmity which is
curable by means of a formal amendment
and by allowing such amendment, no
prejudice could be caused to the other side,
notwithstanding the fact that there is no
enabling provision in the Code for
654 INDIAN LAW REPORTS ALLAHABAD SERIES
entertaining such amendment, the court may
permit such an amendment to be made. On
the contrary, if the amendment sought to be
made in the complaint does not relate either
to a curable infirmity or the same cannot be
corrected by a formal amendment or if there
is likelihood of prejudice to the other side,
then the court shall not allow such
amendment in the complaint.

20. In the instant case, the
amendment application was filed on 24-52007 to carry out the amendment by adding
Paras 11(a) and 11(b). Though, the
proposed amendment was not a formal
amendment, but a substantial one, the
Magistrate
allowed
the
amendment
application mainly on the ground that no
cognizance was taken of the complaint
before
the
disposal
of
amendment
application. Firstly, the Magistrate was yet
to apply the judicial mind to the contents of
the complaint and had not taken cognizance
of the matter. Secondly, since summons was
yet to be ordered to be issued to the accused,
no prejudice would be caused to the
accused. Thirdly, the amendment did not
change the original nature of the complaint
being one for defamation. Fourthly, the
publication of poem Khalnayakaru being in
the nature of subsequent event created a new
cause of action in favour of the respondent
which could have been prosecuted by the
respondent by filing a separate complaint
and therefore, to avoid multiplicity of
proceedings, the trial court allowed the
amendment application. Considering these
factors which weighed in the mind of the
courts below, in our view, the High Court
rightly declined to interfere with the order
passed by the Magistrate allowing the
amendment application and the impugned
order does not suffer from any serious
infirmity warranting interference in exercise
of jurisdiction under Article 136 of the
Constitution."

37. The aforesaid authorities lead to
the conclusion that even in criminal cases
governed by the Cr.P.C., the court is not
powerless and may allow amendment in
appropriate cases, which may be in
situations where an amendment seeks to
introduce facts based on subsequent events,
or to avoid multiplicity of the proceedings.
An amendment may also be permissible if it
relates to a simple infirmity which is curable
by means of a formal amendment and in
allowing such amendment no prejudice is
likely to be caused to the other side.

38. There would, thus, be no complete
or absolute bar in seeking amendment even
in complaints before criminal courts which
are governed by Cr.P.C., although the power
to allow such amendment would have to be
exercised with due caution and sparingly, in
appropriate circumstances.

39. The question as to whether a court
dealing with an application filed under the
D.V. Act has the power to allow
amendments to the application originally
filed,
was
also
examined
in
the
Kunapareddy (supra) case and after
considering the provision contained under
sub-section (2) of Section 28, which
empowers the court to lay down its
procedure for disposal of an application
filed under Section 12 or under Section 23,
it was held that the court is not powerless in
this regard and may allow amendments in
appropriate cases. This would be in
situations where the amendment becomes
necessary, in view of the subsequent events
or to avoid multiplicity of litigation. It was
observed as follows:

"16. ....It cannot be said that the
court dealing with the application under the
DV Act has no power and/or jurisdiction to
allow
the
amendment
of
the
said
5 All. Saleem Ahmad Vs. State of U.P. & Ors.
655
application. If the amendment becomes
necessary in view of subsequent events
(escalation of prices in the instant case) or
to avoid multiplicity of litigation, court will
have the power to permit such an
amendment. It is said that procedure is the
handmaid of justice and is to come to the aid
of the justice rather than defeating it. It is
nobody's case that Respondent 1 was not
entitled to file another application claiming
the reliefs which she sought to include in the
pending application by way of amendment.
If that be so, we see no reason, why the
applicant be not allowed to incorporate this
amendment in the pending application
rather than filing a separate application.....

17. What we are emphasising is
that even in criminal cases governed by the
Code, the Court is not powerless and may
allow amendment in appropriate cases. One
of the circumstances where such an
amendment is to be allowed is to avoid the
multiplicity
of
the
proceedings.
The
argument of the learned counsel for the
appellant, therefore, that there is no power
of amendment has to be negated.

18. In this context, provisions of
Sub-Section(2) of Section 28 of the DV Act
gain significance. Whereas proceedings
under certain sections of the DV Act as
specified in sub-Section (1) of Section 28 are
to be governed by the Code, the Legislature
at the same time incorporated the provisions
like sub-Section(2) as well which empowers
the Court to lay down its own procedure for
disposal of the application under Section 12
or Section 23(2) of the DV Act. This
provision has been incorporated by the
Legislature keeping a definite purpose in
mind.