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ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

Saturday, April 4, 2015

Whether the application under sec.12, should be filed in Form-II as prescribed under Rule 6(1) of the Rules and verified in the prescribed manner with out any modification ? - No whether calling and according consideration to Domestic Incident Report of a Protection Officer or the Service Provider is sine qua non for passing an order, interim or final, on an application under section 12(1) of the Act? - No -2015 J & K ( 2014) msklawreports



whether calling and according consideration to Domestic Incident Report of a Protection Officer or the Service Provider is sine qua non for passing an order, interim or final, on an application under section 12(1) of the Act?
A comparative reading of sections 4, 9 and 10 of the Act and Rules 4 and 8 of the Rules on one hand and section 12 of the Act on the other would make it clear that giving of information about domestic violence to the Protection Officer under section 4 or to Service Provider under section10 and making an application seeking relief under section 12(1) or two different and independent aspects of the Act. Making an application under section 12(1) to the Magistrate is no way linked with or dependent upon providing information to the Protection Officer or the Service Provider. To say the other way, giving information to Protection Officer or Service Provider and their report to the Magistrate in no way can be taken as a sine qua non for making an application under section 12(1) to the Magistrate. It is open to an aggrieved person to straightway make an application to the Magistrate under section 12(1) seeking one or more reliefs under the Act. The only interpretation that can be given to the proviso to section 12(1) of the Act is that the Magistrate before passing any order on the application of the aggrieved person will have to accord consideration to a Domestic Incident Report of a Protection Officer or a report of a Service Provider, if such a report has been received by the Magistrate. Key to such interpretation seem to have been made available in the proviso itself by use of word any . Proviso does not mandate calling for a report from a Protection Officer or Service Provider but refers to any report received from a Protection Officer or Service Provider, which, however, would be available only in a case where information to the Protection Officer or a Service Provider about an act of domestic violence had been given by the aggrieved person himself or by any person .

Whether the application under sec.12, should be filed in Form-II as prescribed under Rule 6(1) of the Rules and verified in the prescribed manner with out any modification ?
 Rule 6(1) reads as under: 6. Applications to the Magistrate.- (1) Every application of the aggrieved person under section 12 of the Act shall be in Form II or as nearly as possible thereto.
On its plain reading, it would be clear Rule 6(1) does not make it mandatory for the applicant to prepare an application under section 12(1) of the Act in Form II only. 
The Rule provides also that it may be as nearly as possible to Form-II. 
Form-II on its reading would show that it mainly provides for giving the name of the person (aggrieved person/Protection Officer/any other person on behalf of aggrieved person) who makes the application and details about the order(s) sought from the Magistrate, that is, Protection Order under section 18/Residence Order under section 19/ Monetary Reliefs under section 20/ Custody Order under section 21/Compensation Order under section.
 It may be stated in this regard that the Act is a welfare legislation to provide for effective protection of rights of women guaranteed under the Constitution, who were victims of domestic violence. A relief sought under the Act will not be defeated merely on technical defects like application having not been filed in prescribed form unless the application does not convey or make out what is required and sufficient for grant of the relief. - 2015 J & K ( 2014) msklawreports

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