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 REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL  NO(S).516/2016 (Arising out of SLP(Crl.) No. 1537/2016)

KUNAPAREDDY @ NOOKALA SHANKA BALAJI                APPELLANT(S)

                               VERSUS

KUNAPAREDDY SWARNA KUMARI & ANR                    RESPONDENT(S)

J U D G M E N T  A.K. SIKRI,J.

Leave granted.  2. Learned counsel for both the parties have been finally heard at this stage. 3. The issue that arises for consideration in the instant case is whether a court dealing with the petition/complaint filed under the provisions of the Domestic Violence Act, 2005 (hereinafter referred to  as  'the  DV  Act')  has  power  to  allow  amendment  to  the petition/complaint originally filed.  This issue has arisen in the petition/complaint filed by respondent no. 1/wife. Respondent No. 1 herein, who is the wife of the appellant, has filed a case against the  appellant  and  his  family  members  before  the  Court  of  IInd Additional Judicial First Class Magistrate, West Godavari, Eluru under Sections 9B & 37(2)(C) of the DV Act which is registered as

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Domestic Violence Case No. 20/2008. It may be mentioned here that the said petition now stands transferred to the Court of Judicial First  Class  Magistrate  (Mobile  Court),  Eluru  and  has  been renumbered as DV Case No. 29/2012. In this case, respondent no. 1 has  leveled  various  allegations  against  the  appellant  and  his family  members  inter  alia alleging  that  the  appellant  and  his family members used to harass her physically as well as mentally and by also demanding dowry. It is further alleged that she was driven out from her matrimonial home in the month of March, 2015 and initially she took shelter at her brother's house along with the children in Eluru. Thereafter, on the appellant tendering an apology to respondent no. 1 by coming to Eluru they put up their family  together  in  Gadam  Ramakrishna's  House  at  Ashok  Nagar, Eluru,but the things did not change.  The following prayers are made in the said petition:  

“a) to provide protection to the life and limb of the complainant in the hands of the respondents;   b) to grant monthly maintenance of Rs. 5,000/- to the complainant and her children each towards her maintenance, medicines etc. and her children education and maintenance;  c) to grant such other relief or reliefs if the Hon'ble  Court  deems  fit  and  proper  in  the circumstances of the case.”

4. Respondent no.1 has also filed a divorce petition before the Court of Senior Civil Judge, West Godavari, Eluru wherein she has made an application for interim maintenance as well. Thereafter, she also filed a maintenance petition under Sections 23(2) and 24 of the Hindu Marriage Act, 1955 before the Court of Family Judge,

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Eluru.  5. On  receiving  notice  in  DV  Petition,  family  members  of  the appellant filed a petition under Section 482 Cr.P.C. in the High Court of Judicature at Hyderabad for the States of Telengana and Andhra  Pradesh  for  quashing  the  proceedings  in  the  said  DV Petition. This petition was allowed by the High Court vide order dated 17.04.2009 thereby quashing the domestic violence proceedings against the family members of the appellant on the ground that there  was  no  specific  allegations  against  them.  After  the  DV Petition  was  transferred  to  the  Court  of  Judicial  First  Class Magistrate, Eluru, respondent no. 1 filed an application seeking amendment of the petition. By way of the said amendment petition, respondent no. 1 wanted to amend the prayer clause by incorporating some more prayers, as is clear from the following amendment in this behalf which was sought by respondent no. 1:

a) To provide protection to life and limb of the complainant in the hands of the respondent. b) To grant monthly maintenance of Rs. 15,000/- to  the  complainant  and  her  2nd child  to  their maintenance instead of Rs.5000/- c) Direct the respondent to return the Sridhana amount of Rs.3,00,000/- and 15 sovereigns of gold ornaments  and  other  sari  samanas  and  marriage batuvu presented to the respondent worth about 2 sovereigns  wrist  watch,  7  sovereign  gold  chain presented by the complainant and her parents. d) Direct  the  respondent  to  pay  the compensation of Rs.15 lakhs to the complaint for subjecting  the  compliant  to  physical  and  mental harassments  besides  including  acts  of  Domestic Violence. e) Direct  the  respondent  to  return  the  sari samans  and  other  goods  like  worth  more  than Rs.10,00,000/- as per the list annexed herewith.

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f) Direct the respondent to pay the cost of, litigation to the tune of Rs.25,000/- so far spent by the complainant persuing her litigation. g) Direct the 1st respondent to provide separate residence by taking rent portion with monthly rent of Rs.10,000/- h) Directing  the  respondent  to  return  the original study certificates, medical certificates, deposits certificates and receipts etc. in  the  prayer  portion  paragraphs  the  following amendment by deleting the prayer original para b) to grant monthly maintenance of Rs.5,000/- to the complainant and her children each towards her maintenance, medicines etc. and her children education and maintenance.”

6. The appellant herein opposed the said application. However, the learned Trail Court after hearing both the parties allowed the amendment.  The appellant raised an objection that there was no power  with  the  court  to  allow  amendment  of  such  a petition/complaint  in  the  Code  of  Criminal  Procedure,  1973 (hereinafter  referred  to  as  'the  Code').  This  contention  was rejected by the trial court on the premise that section 26 of the DV Act, which entitles a civil court, a family court or a criminal court  as  well  to  grant  any  relief  which  is  available  to  the complainant under Sections 18, 19, 20, 21 & 22 of the said Act, gives  an  indication  that  the  provisions  of  the  Code  of  Civil Procedure would squarely apply and, therefore, the court had the power to allow amendment of the petition/complaint,  more so, when it was necessary for the purpose of determining the real matter in controversy and to prevent multiplicity of the litigation. 7. This order was challenged by the appellant by filing an appeal before  the  Court  of  District  and  Sessions  Judge,  Eluru.  The

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District and Sessions Judge, Eluru set aside the order of the Trial Court holding that there was no specific provision for amendment of the complaint and allowed the appeal of the appellant. Aggrieved by that order, respondent no. 1 filed a revision petition in the High Court  which  has  been  allowed  by  the  High  Court  vide  impugned judgment  permitting  respondent  no.  1  to  amend  the petition/complaint,  thereby  setting  aside  the  order  of  the District and Sessions Judge and restoring the order of the Trial Court.  8. As mentioned above, in the present appeal preferred by the appellant questioning the validity of the order of the High Court, the  contention  of  the  appellant  is  that  there  is  no  such  an provision under the DV Act which permits the Trial Court to allow such amendment. On this issue, we have heard the learned counsel for the parties at length. 9. The contention of Mr. G.V.Rao, learned counsel appearing for the  appellant  was  that   the  proceedings  under  the  DV  Act  are governed by the provisions of the Code of Criminal Procedure as prescribed under Section 28 of the DV Act and there is no provision for amendment in the Code.  He further submitted that the court below was wrong in treating the application for amendment under Order  VI  Rule  17  of  the  Code  of  Civil  Procedure  which  has  no application to the proceedings under the DV Act.

10. In order to decide the aforesaid issue, we may take note of some of the salient provisions of the DV Act as well as relevant Rules framed under the said Act. We have gone through the concerned

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provisions of the Code. We may start our discussion with Section 28 of the DV Act which reads as under:  

“28. 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 sub-section (2) of section 23.”

11. No doubt this provision provides that all proceedings under Sections 12, 19 to 23 as well as offences under Section 31 are to be governed by the provisions of the Code. The instant petition, as noted above, is filed under Section 9B and 37(2)(C) of the DV Act. Section 9 enumerates duties and functions of Protection Officer and Clause (b) of sub-Section (1) thereof reads as under:  

“(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be  prescribed,  upon  receipt  of  a  complaint  of domestic  violence  and  forward  copies  thereof  to the police officer in charge of the police station within  the  local  limits  of  whose  jurisdiction domestic  violence  is  alleged  to  have  been committed  and  to  the  service  providers  in  that area;”

12. We  have  already  mentioned  the  prayers  which  were  made  by respondent no.1 in the original petition and prayer ‘A’ thereof relates to Section 9.  However, in prayer ‘B’, the respondent no.1 also sought relief of grant of monthly maintenance to her as well as her children.  This prayer falls within the ambit of Section 20

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of the DV Act.  In fact, prayer ‘A” is covered by Section 18 which empowers the Magistrate to grant such a protection which is claimed by  the  respondent  no.1.  Therefore,  the  petition  is  essentially under Sections 18 and 20 of the DV Act, though in the heading these provisions  are  not  mentioned.  However,  that  may  not  make  any difference and, therefore, no issue was raised by the appellant on this count.  In respect of the petition filed under Sections 18 and 20 of the DV Act, the proceedings are to be governed by the Code, as provided under Section 28 of the DV Act. At the same time, it cannot  be  disputed  that  these  proceedings  are  predominantly  of civil nature.  13. 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 498A of the Indian Penal Code. 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. In order to demonstrate  it,  we  may  reproduce  the  introduction  as  well  as relevant portions of the Statement of Objects and Reasons of the

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said Act, as follows:  

“INTRODUCTION. The  Vienna  Accord  of  1994  and  the  Beijing

Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue.  The United Nations Committee on  Convention  on  Elimination  of  All  Forms  of Discrimination  Against  Women  in  its  General Recommendations has recommended that State parties should act to protect women against violence of any kind, especially that occurring within the family. The  phenomenon  of  domestic  violence  in  India  is widely prevalent but has remained invisible in the public domain.  The civil law does not address this phenomenon  in  its  entirety.  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. In order 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 the protection of Women from Domestic Violence Bill was introduced in the Parliament.  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. xxx xxx xxx

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.

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

(ii) It  defines  the  expression  “domestic violence”  to  include  actual  abuse  or  threat  or abuse that is physical, secual, 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,  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.”

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14.  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 authorizes 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 include 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

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the Magistrate, Section 31 terms such a breach to be a punishable offence.  

15. 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. We may take some aid and assistance from the nature of the proceedings filed under Section 125 of the Code. Under the said provision as well, a woman and children can claim maintenance.  At the same time these proceedings are treated essentially as of civil nature. 16. In Ramesh Chander Kaushal vs. Venna Kaushal (1978) 4 SCC 70, Justice Krishna Iyer, dealing with the interpretation of Section 125 of the Code, observed as follows:  

“9. This provision is a measure of social justice and specially enacted to protect women and children and  falls  within  the  constitutional  sweep  of Article 15(3) reinforced by Article 39. We have no doubt  that  sections  of  statutes  calling  for construction by courts are not petrified print but vibrant  words  with  social  functions  to  fulfill. The brooding presence of the constitutional empathy for  the  weaker  sections  like  women  and  children must inform interpretation if it has to have social functions to fulfill.  The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has  to  have  social  relevance.  So  viewed,  it  is possible  to  be  selective  in  picking  out  that interpretation  out  of  two  alternatives  which advance the cause of the derelicts.”

17. We understood in this backdrop, it cannot be said that the Court dealing with the application under DV Act  has no power and/or jurisdiction to allow the amendment of the said application. If the amendment becomes necessary in view of subsequent events

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[escalation of prices in the instant case] or to avoid multiplicity of  litigation,  Court  will  the  have  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 no. 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. It is not that there is a complete ban/bar of amendment in the complaints in criminal Courts which are governed by the Code, though undoubtedly such power to allow the amendment  has  to  be  exercised  sparingly  and  with  caution  under limited circumstances. The pronouncement on this is contained in the recent judgment of this Court in  S.R.Sukumar vs. S. Sunaad Raghuram (2015) 9 SCC 609 in the following paras:

“17.  Insofar  as   merits   of   the   contention regarding  allowing  of amendment application, 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  vs. Modi   Distillery  And  Ors.,  (1987)  3  SCC  684, 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:-

“…The   learned   Single   Judge   has

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focused  his  attention  only  on   the [pic]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  concerned accused  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...”

18. What is discernible from  the  U.P.  Pollution Control  Board’s case is that 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  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.

19.  In  the  instant  case,  the   amendment application  was  filed  on 24.05.2007 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

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the  complaint  before  the disposal of amendment application.  Firstly, 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 of India.”

18. What  we  are  emphasis1  ing  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.  19. 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.

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This provision has been incorporated by the Legislature keeping a definite purpose in mind. Under Section 12, an application can be made to a Magistrate by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to claim one or more reliefs under the said Act. Section 23 deals with the power of  the  Magistrate  to  grant  interim  and  ex-parte  orders  and sub-Section (2) of Section 23 is a special provision carved out in this behalf which is as follows:  

“(2).If  the  Magistrate  is  satisfied  that  an application  prima  facie  discloses  that  the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.

20. The reliefs that can be granted by the final order or an by interim order, have already been pointed out above wherein it is noticed that most of these reliefs are of civil nature. If the power to amend the complaint/application etc. is not read into the aforesaid provision, the very purpose which the Act attempts to sub-serve itself may be defeated in many cases.

21 We, thus, are of the opinion that the amendment was rightly allowed by the Trial Court and there is no blemish in the impugned judgment of the High Court affirming the order of the Trial Court. This appeal is, thus, devoid of any merits and is, accordingly, dismissed with costs.

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......................J. [A.K. SIKRI]

......................J.    [R.K.AGRAWAL]

NEW DELHI; APRIL 18, 2016.