Personal attendance of respondent in domestic violence cases- not necessary.

 

Courts cannot direct personal presence of respondents (except when absolutely necessary) in proceedings under Protection of Women from Domestic Violence Act, 2005. The proceedings are civil in nature and only tried by a criminal court.

It is often seen that wives, during matrimonial discord with their husbands, often file cases under the Protection of Women from Domestic Violence Act, 2005 (“DV Act” for short). The case under the DV Act is filed before a Magistrate which is a criminal court. Further, the procedure followed is that of the Code of Criminal Procedure (Cr.P.C.) or one developed by the concerned court. The problem, however, arises from the fact that the reliefs which can be given to  a woman under the Act are all civil in nature- compensation, maintenance, protection orders, residence orders etc. (check the DV Act for different reliefs-will be discussed in some other article). However, despite the nature of reliefs, the case proceeds before a criminal court.

Due to this anomaly, many magistrates insist upon personal attendance or physical presence of respondent (sometimes incorrectly called accused) on every date as is the case with usual criminal cases. However, this can become very taxing for some respondents as they may be old and aged parents of the husband or some remote or distant relative. The respondents may also reside in a place outside the city where the case is launched.

 

Such approach of magistrates is undoubtedly illegal and is result of improper understanding of law. However, as is generally the case with courts in India, one cannot succeed on reasonable presentation of law or facts unless one cites (no matter whether overruled!) judgments. Thus, the magistrates, even on being told that they cannot/should not order personal attendance of respondents, do not listen to you unless there is some judgment to back up what you say.

 

So, fortunately, there are a few judgments of different High Courts, specifically directing the Magistrates not to insist upon physical presence of respondents unless absolutely necessary (for recording of evidence etc.). These judgments hold that there is no powers given to Magistrates to issue warrants to secure presence of respondents and that they may well appear through advocates. This prevents lot of harassment which may be caused to respondents living in far off places.

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