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

Popular posts from this blog

Court fee - Sec.34 of A.P.C.F & S.V.Act - partition of Plaints-A and B-Schedule properties, in the manner pleaded by her, and for grant of future profits. Plaint-A Schedule comprised of, four items of immovable properties, and Plaint-B Schedule comprised of, nine items of jewellery. Pleading that the parties are in joint possession of the said properties, the petitioner paid Court-fee of Rs. 200/- under Sub-section (2) of Section 34 of the A.P. Court Fees and Suits Valuation Act, 1956 (for short 'the Act'). The trial Court returned the plaint, through its order dated 23-6-2006, directing the petitioner herein, to pay Court fee on movable properties, on her shares, as per the Act, within the time stipulated by it.= In the instant case, the petitioner asserted that, herself and the respondents are in joint possession of the Plaints-A and B-Schedule properties. In a way, the trial Court was satisfied, that the immovable properties mentioned in Plaint-A schedule are in joint possession, and in that view of the matter, it did not insist on payment of ad-valorem Court-fee, on such items. It, however, took a different view, as regards the movable properties. Neither from the plaint, nor from the endorsement made by the trial Court, it is found that there is any distinction, as to the nature of rights claimed, in respect of Plaint-A Schedule properties, on the one hand, and Plaint-B schedule properties, on the other hand. In fact, the nature and incidence of possession, of an immovable property, gives rise to, relatively greater consequences of law, than the possession of an item of movable property. The possession of an item of immovable property can be said to be more assertive, firm and lasting, than the one, of movable property. The endorsement made by the trial Court cannot be sustained, either on law, or on facts. 2015 A.P.(2006)MSKLAWREPORTS

partition of Plaints-A and B-Schedule properties, in the manner pleaded by her, and for grant of future profits. Plaint-A Schedule comprised of, four items of immovable properties, and Plaint-B Schedule comprised of, nine items of jewellery. Pleading that the parties are in joint possession of the said properties, the petitioner paid Court-fee of Rs. 200/- under Sub-section (2) of Section 34 of the A.P. Court Fees and Suits Valuation Act, 1956 (for short 'the Act'). The trial Court returned the plaint, through its order dated 23-6-2006, directing the petitioner herein, to pay Court fee on movable properties, on her shares, as per the Act, within the time stipulated by it.= In the instant case, the petitioner asserted that, herself and the respondents are in joint possession of the Plaints-A and B-Schedule properties. In a way, the trial Court was satisfied, that the immovable properties mentioned in Plaint-A schedule are in joint possession, and in that view of the matter, it
Read more

Sec.482 Cr.P.C. - Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 - Part B question Paper was missed ( said to be distributed to A1 along with other students by A2 an invigilator ) - Charge - she was negligent in performing the invigilation duties. - Their Lordships held that Mere negligence in performing invigilation duties, does not attract the offence set-forth in the Act. Therefore, in absence of any allegation that the petitioner herein has committed the offence set out in Section 5 of the Act, she cannot be subjected to prosecution for which the penalty has been provided under Section 8 of the Act.- Quashed the criminal proceedings - 2015 Telganga & A.P. msklawreports

Law  :- Sec.482 of Cr.P.C. Sub  :- Quash the criminal proceedings Offence  :-Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 Summary : -  The investigation revealed that clandestinely question paper Part-B has been removed from the exam hall and it was passed on to Accused No.1 for eventually facilitating in malpractice. However, the police after investigation, filed the charge-sheet.   The petitioner (A-2) along with A-1 is sought to be proceeded against under Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 (Act for short).     Section 5 of the Act reads as under: Prevention of leakage by person entrusted with examination works: No person who is entrusted with any work pertaining to a public examination shall, except where he is permitted by virtue of his duties so to do, directly or indirectly divulge or cause to be divulged or make known to any o
Read more

Order 38 Rule 5, only the properties of the defendant can be attached and not the properties in the hands of garnishee has no statutory support nor the support of any precedent.-2015 A.P.(2004) MSKLAWREPORTS

Order 38 Rule 5, only the properties of the defendant can be attached and not the properties in the hands of garnishee has no statutory support nor the support of any precedent. "Order 38, Rule 7 C.P.C. provides that the attachment under Order 38, Rule 5 shall be made in the manner provided for the attachment of property in execution of a decree. It is trite, the attachment envisaged under Order 38, Rule 5 CPC is an attachment before judgment. The restriction found by the learned Single Judge that under Order 38 Rule 5, only the properties of the defendant can be attached and not the properties in the hands of garnishee has no statutory support nor the support of any precedent. The attachment of debts due to the defendant from third party could be attached before judgment under Order 38 Rule 5 CPC.-2015 A.P.(2004) MSKLAWREPORTS
Read more