"Not only wiping tears of the cheeks of aggrieved but restoring what is snatched.." reiterates the High Court

A domestic violence petition was filed by Mst. Batool under the Sindh Domestic Violence (Prevention & Protection) Act 2013, alleging offenses of domestic violence committed by her husband. She claimed that her husband failed to provide maintenance for her and their adopted child, Haya Batool, and cited threatening voice messages from the applicant.

Legal Basis: The case revolves around alleged violations of Sections 5(f)(ii), 5(f)(vi), and 5(o) of the Domestic Violence Act, 2013, which define various forms of domestic violence, including emotional and psychological abuse.

Challenge by the Applicant: Other side counsel argued that the trial court erred in taking cognizance of the case without following proper procedure, particularly citing the absence of mandatory counseling under Section 8 of the Act and lack of sufficient material evidence.

Magistrate’s and Sessions Court’s Decisions: Both the lower courts had taken cognizance of the case, allowing the petition to proceed based on prima facie evidence. This included voice recordings and other evidence provided by both parties, which led the courts to determine that the allegations merited further investigation.

Key Legal Considerations:

1. Section 2 of the Domestic Violence Act, 2013: Defines an "aggrieved person" as any woman or vulnerable person who has been subjected to domestic violence. The court accepted that Mst. Batool fell under this definition due to her relationship with the applicant.
2. Section 8(1) of the Act-2013: The applicant's counsel emphasized that the magistrate failed to mandate counseling as required under this section. However, the court clarified that this provision is discretionary (using the word “may”) and does not mandate compulsory counseling before proceeding with the case.
3. Evidence and Procedural Issues: Both parties submitted USBs containing voice recordings as evidence of threats. The court held that the allegations had been sufficiently supported by prima facie evidence, allowing the case to move forward, despite the applicant’s claim of insufficient proof.

Court’s Ruling:

The High Court found that the trial court had correctly applied the provisions of the Domestic Violence Act and upheld the orders issued by both the Civil Judge and the Sessions Court. The High Court emphasized the importance of protecting victims of domestic violence and highlighted the magistrate's role in ensuring justice, even if interim orders are issued based on preliminary evidence. It referred to a precedent (Mst. Hina v. Province of Sindh) to support the argument that the court should prioritize the safety and well-being of victims in domestic violence cases. The following was mentioned in para 15:

15. Importance of the Act-2013 recently emphasized in a case of Mst. Hina v. Province of Sindh through Secretary Home Department Sindh at Karachi and 04 others (PLD 2019 Sindh 363), wherein pivotal role of the Magistrate is highlighted with a hope that the Magisterial Court(s), shall feel courageous in dealing with such situation(s) by passing interim order(s) but on being satisfied of prima facie substance and the trial Court in above case in hand while passing the impugned order prima facie found the aforementioned offences have been made out. While deciding the case of Mst. Hina (ibid), directions issued to the Magistrates relevant to this case are reproduced as under:

“The Magistrates shall ensure what the object of the Act demands of them i.e. not only wiping tears of the cheeks of aggrieved but restoring what is snatched or attempted to be snatched of them while making them a victim of ‘domestic violence’.”

Conclusion:

The court dismissed the Criminal Miscellaneous Application filed by Ghulam Shabbir, affirming the lower courts' decision to take cognizance of the domestic violence petition filed by Mst. Batool. The ruling reinforced the importance of safeguarding the rights of domestic violence victims and upheld the legal process under the Domestic Violence (Prevention and Protection) Act, 2013.

This case highlights the challenges in litigating domestic violence issues, especially when it comes to evidence and procedural nuances. It underscores the judiciary's role in striking a balance between procedural fairness and the urgent need to protect vulnerable individuals from domestic violence.