Court Has Discretion To Allow Evidence On Affidavit And Cross-Examination To Test Of Veracity Of Evidence Under Domestic Violence Act!

Aniket Subhash Tupe vs Mrs Piyusha Aniket Tupe and anr

Bombay HC

22/03/2018

WRIT PETITION NO.2938 0F 2017

About/from the judgment:

Court Has Discretion To Allow Evidence On Affidavit And Cross-Examination To Test Of Veracity Of Evidence Under Domestic Violence Act!

 

When the language of the provision is plain, clear and unambiguous, the Courts should not extend or limit the scope of Section but read the Section as it is and interpret in a manner which makes the provision workable and not redundant or otiose.

 

Though, unlike Negotiable Instrument Act, there is no specific provision in the D.V. Act to give evidence on affidavit, section 28(2) with words plain, simple and unambiguous gives flexibility to the Court to depart from the procedure prescribed under Section (1) of Section 28 and to devise its own procedure in deciding application under Section 12 or 23(2) of the Act. This enabling provision, which intends to achieve the object of the Act, would over­ride subsection (1) of section 28 the Act as well as Rule 6(5) of D.V. Rules. Having regard to the object and scope of the Act, this provision cannot be given a narrow interpretation which will have an effect of rendering it redundant, surplus or otiose. In my considered view, such approach will defeat the very object of the Act.

 

Thus, in my considered view the Court can deviate from procedure prescribed under Sub Section (1) of Section 28 r/w Rule 6(5) and devise its own procedure, which would include permitting evidence by way of an affidavit. In other words, the court in its discretion can allow evidence on affidavit and permit cross-examination to test veracity of the evidence.

Read the Judgment

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