Section 28 of the Domestic Violence Act is one of the most important procedural provisions under the Protection of Women from Domestic Violence Act, 2005. While the Act primarily provides civil remedies such as protection orders, residence orders, monetary relief, custody, and compensation, Section 28 of the Domestic Violence Act sets out the procedure that courts generally follow when deciding these applications.
Understanding this provision is essential for litigants, lawyers, and anyone involved in domestic violence proceedings.
What is Section 28 of the Domestic Violence Act?
Section 28 of the Domestic Violence Act provides that proceedings under Sections 12, 18, 19, 20, 21, 22, and offences under Section 31 of the Act shall ordinarily be governed by the provisions of the Code of Criminal Procedure, 1973 (now the Bharatiya Nagarik Suraksha Sanhita, 2023, where applicable.
However, the provision contains an important exception.
Under Section 28(2), the Magistrate is empowered to lay down his or her own procedure for applications under Section 12 and applications seeking interim or ex parte relief under Section 23.
This gives the court considerable procedural flexibility while ensuring that justice is not defeated by technicalities.
Applicability of Section 28 of the Domestic Violence Act
Section 28 of the Domestic Violence Act applies to proceedings involving:
- Application under Section 12
- Protection Orders (Section 18)
- Residence Orders (Section 19)
- Monetary Relief (Section 20)
- Custody Orders (Section 21)
- Compensation Orders (Section 22)
- Breach of Protection Orders under Section 31
Although criminal procedure generally applies, the Domestic Violence Act is a welfare legislation intended to provide speedy and effective remedies to aggrieved persons.
Court’s Power Under Section 28 of the Domestic Violence Act
One of the most significant features of Section 28 of the Domestic Violence Act is the discretion given to the Magistrate under Section 28(2).
The court is not rigidly bound by procedural technicalities while dealing with applications under Sections 12 and 23. Instead, it may evolve an appropriate procedure that facilitates speedy adjudication, provided the principles of natural justice are respected.
This flexibility enables courts to:
- Pass urgent interim orders.
- Simplify procedural requirements where appropriate.
- Avoid unnecessary delays.
- Ensure effective access to justice.
The objective is to provide timely relief without compromising fairness.
Flexibility Under Section 28 of the Domestic Violence Act
The Supreme Court has repeatedly recognised that proceedings under the Domestic Violence Act are predominantly remedial in nature.
Unlike a conventional criminal trial, many proceedings under the Act seek civil reliefs such as maintenance, residence rights, protection, and compensation. Therefore, Section 28 of the Domestic Violence Act allows procedural flexibility so that deserving cases are decided efficiently.
At the same time, respondents continue to enjoy the right to receive notice, file objections, produce evidence, and contest the allegations before final relief is granted.
Thus, Section 28 strikes a balance between procedural fairness and expeditious justice.
Why Section 28 Matters
The practical importance of Section 28 of the Domestic Violence Act lies in its ability to prevent procedural delays from defeating substantive rights.
Instead of insisting on rigid procedural formalities in every situation, courts can adopt an approach that advances the legislation’s objectives while protecting the rights of both parties.
This flexibility has made the Domestic Violence Act an effective legal remedy in appropriate cases.
Conclusion
Section 28 of the Domestic Violence Act serves as the procedural backbone of the Protection of Women from Domestic Violence Act, 2005. While it generally incorporates criminal procedure, it simultaneously empowers Magistrates to adopt flexible procedures for applications under Sections 12 and 23 whenever justice so requires.
For litigants, understanding Section 28 of the Domestic Violence Act is essential because procedural strategy often plays a significant role in the outcome of domestic violence proceedings. Whether you are seeking relief or defending a case, obtaining experienced legal advice can help protect your rights throughout the process.
The above article is for information purposes only.
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Official Resources
- Supreme Court of India: https://www.sci.gov.in
- Delhi High Court: https://delhihighcourt.nic.in
