Proceedings under the Protection of Women from Domestic Violence Act, 2005 sit at an unusual junction: the reliefs are largely civil in nature — residence, maintenance, compensation, protection — yet the forum is ordinarily a Magistrate and the procedural spine is the criminal procedure code. Section 28 of the DV Act is the provision that manages this hybrid. It applies the criminal procedure code to DV proceedings, but then, in sub-section (2), permits the court to lay down its own procedure for disposal of applications. Understanding this architecture explains much of what happens — and what need not happen — in a Delhi DV courtroom.
The default rule: criminal procedure applies
Section 28(1) declares that, save as otherwise provided in the Act, all proceedings under Sections 12 (application to Magistrate), 18 (protection orders), 19 (residence orders), 20 (monetary relief), 21 (custody orders), 22 (compensation) and 23 (interim and ex parte orders), and offences under Section 31, are governed by the criminal procedure code. For proceedings instituted after 1 July 2024 that framework is supplied by the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced the CrPC; pending matters continue under the old code by virtue of its savings provision.
In practical terms the default rule supplies the machinery a Magistrate needs: issuing notice to the respondent, securing appearance, recording evidence, and enforcing orders. The DV Rules add their own layer — notably service of notice through the Protection Officer under Rule 12 and the form of the domestic incident report.
The escape hatch: Section 28(2)
Sub-section (2) is short but consequential: nothing in Section 28(1) prevents the court from laying down its own procedure for disposal of an application under Section 12 or under Section 23(2). Two features stand out.
The flexibility is not unlimited. Whatever procedure the court devises must respect natural justice: the respondent must have notice of the case and a fair opportunity to answer it before final orders are passed. The power is to streamline, not to shut out.
What the hybrid means at each stage
Why this matters strategically
For the aggrieved person, Section 28(2) is the answer to dilatory objections that demand full-trial formality at the interim stage; the provision exists so that protection does not wait on procedure. For respondents, the hybrid character cuts the other way: a DV proceeding is not a criminal prosecution, and treating it as one — refusing to file income affidavits, contesting jurisdiction as if summoned as an accused — usually damages the respondent\'s position. The sensible defensive course is a complete reply on merits, full financial disclosure, and, where the application is abusive, a considered challenge before the appellate court under Section 29 rather than procedural trench warfare before the Magistrate.
Appeals against orders of the Magistrate lie to the Court of Session under Section 29 within thirty days. The flexibility of Section 28 applies to the trial court\'s own procedure; it does not alter appellate remedies or limitation.
Frequently Asked Questions
Is a DV case a criminal case?
The proceedings under Section 12 are quasi-civil in nature — the reliefs are protective and compensatory, and the respondent is not an accused facing punishment. Criminal consequences arise only on breach of a protection order, which Section 31 makes a punishable offence, tried by the procedure applicable to offences.
What does Section 28(1) of the DV Act provide?
It provides that proceedings under Sections 12, 18, 19, 20, 21, 22 and 23, and offences under Section 31, shall be governed by the criminal procedure code — originally the CrPC 1973, whose role is now performed by the BNSS 2023 for new proceedings. This supplies the default framework for notice, appearance, evidence and disposal.
Can the Magistrate depart from the standard procedure?
Yes. Section 28(2) expressly saves the court's power to lay down its own procedure for disposal of an application under Section 12 or under Section 23(2), which is the provision for ex parte interim orders. Courts use this flexibility to decide applications on affidavits, regulate cross-examination, and avoid importing the full rigour of a criminal trial.
Does strict proof beyond reasonable doubt apply in DV proceedings?
No. Because the core reliefs are civil-protective in character, the standard applied is preponderance of probabilities, not the criminal standard. The criminal standard applies only to prosecution for breach of a protection order under Section 31.