Section 28 of the Protection of Women from Domestic Violence Act, 2005 is the procedural hinge of the entire statute. In two short sub-sections it does something deceptively radical: it routes an essentially civil bundle of reliefs — protection orders, residence orders, monetary relief, custody and compensation — through the machinery of a criminal court, the court of the Judicial Magistrate of the First Class or the Metropolitan Magistrate. Sub-section (1) declares that proceedings under Sections 12, 18, 19, 20, 21, 22 and 23, and offences under Section 31, are governed by the Code of Criminal Procedure, 1973. Sub-section (2) then loosens that grip, permitting the court to lay down its own procedure for disposing of a Section 12 application or an application for ex parte interim relief under Section 23(2). Understanding how these two limbs interact — and how the Supreme Court has read them in Kunapareddy, Kamatchi and Satish Chander Ahuja — is indispensable for any judiciary or CLAT-PG aspirant, because almost every contested question about limitation, amendment, evidence, appeal and quashing under the Act ultimately turns on the meaning of this single section.
The Text and Architecture of Section 28
Section 28 is headed simply “Procedure”, and its economy of language belies its importance. Sub-section (1) reads: “Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).” Sub-section (2) provides: “Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.”
Three structural features deserve attention. First, the opening words “Save as otherwise provided in this Act” make the Code of Criminal Procedure a residuary, gap-filling code rather than the master text — wherever the Act or the Protection of Women from Domestic Violence Rules, 2006 prescribe a procedure, that special procedure prevails and the Code recedes. Second, the enumeration is exhaustive: the listed provisions cover the application itself (Section 12), every substantive relief (protection, residence, monetary relief, custody, compensation under Sections 18 to 22) and interim and ex parte orders (Section 23), plus the only true penal provision, the breach offence under Section 31. Third, sub-section (2) is an enabling carve-out that hands the Magistrate a tailoring power for the two procedurally most sensitive stages — the disposal of the main application and the grant of urgent ex parte relief. For the broader scheme in which this section sits, see our note on the introduction, object, background and scheme of the Act and the Domestic Violence Act hub.
Civil Relief, Criminal Forum: The Central Paradox
The defining puzzle of Section 28 is that it makes a criminal procedural code govern reliefs that are overwhelmingly civil in character. The Supreme Court confronted this directly in Kunapareddy alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774. There the husband argued that because Section 28 attracts the Code of Criminal Procedure, and the Code contains no provision for amendment, the Magistrate had no power to allow the wife to amend her application. Rejecting this, the Court held that orders passed by a Magistrate under the Act are “primarily of a civil nature” and that the very purpose of the legislation was to provide an amalgam of civil remedies to protect women against violence within the family, a phenomenon that the ordinary civil law did not address in its entirety.
This characterisation is not merely descriptive. It supplies the interpretive key to sub-section (2): precisely because the reliefs are civil, the legislature anticipated that the rigid criminal-trial template of the Code would not always fit, and so it empowered the Magistrate to fashion a more suitable, quasi-civil procedure for the Section 12 application. The Bombay High Court echoed this in Nandkishor Pralhad Vyawahare v. Mangala (2018), observing that proceedings under the Act are predominantly civil and acquire a criminal character only where there is a breach of a protection order under Section 31 or a dereliction of duty by a Protection Officer. The civil-criminal duality also explains why questions of what constitutes domestic violence are tried on a balance of probabilities rather than to the criminal standard.
Which Court Exercises These Powers
The “court” in Section 28 is the Magistrate defined in Section 2(i) of the Act — the Judicial Magistrate of the First Class or, in metropolitan areas, the Metropolitan Magistrate exercising jurisdiction under the Code of Criminal Procedure in the area where the aggrieved person resides or carries on business, where the respondent resides or carries on business, or where the cause of action arose (Section 27). The deliberate choice of a Magistrate — an officer of the criminal judiciary — rather than a civil judge or family court, is the structural reason Section 28(1) reaches for the Code of Criminal Procedure as its default procedural law. The Magistrate is the institutional locus around which the whole enforcement architecture is built, supported by the Protection Officers who assist the court and the service providers who feed information into the system.
Importantly, the Supreme Court in Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, clarified that the Magistrate is not the only forum in which the rights created by the Act may be vindicated. Reliefs under the Act — particularly the right to reside in a shared household — can be claimed and adjudicated even in a civil suit (for example, a suit for possession or injunction filed by an in-law), with the civil court entitled to mould relief consistently with the Act. This is the point at which Section 28(2)'s flexibility becomes doubly significant: when an Act relief surfaces before a civil or family court rather than a Magistrate, that court too must evolve a workable procedure rather than mechanically import the Code of Criminal Procedure.
The Code of Criminal Procedure as the Default Engine
Where the Act and Rules are silent, sub-section (1) imports the Code wholesale. In practice this means several familiar criminal-procedure mechanisms operate in domestic violence proceedings. Service of notice, recording of evidence, examination and cross-examination of witnesses, the issuance of summons and warrants for securing attendance, and the recording of statements all proceed broadly along Code lines, subject to the Act and the Rules. Rule 6(5) of the 2006 Rules expressly provides that applications under Section 12 shall be dealt with and orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure — a critical cross-reference that links the Act's monetary-relief machinery to the maintenance-recovery scaffolding of the Code.
The High Court's power under Section 482 of the Code to quash proceedings that amount to an abuse of process is also available, because Section 28(1) makes the Code applicable. In Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588, the Supreme Court entertained a Section 482 petition to quash a Section 12 application where the wife's allegations of domestic violence post-dated a subsisting decree of divorce, holding that allowing the proceeding to continue would be a travesty of justice. Similarly, in Kamatchi v. Lakshmi Narayanan (2022) the entire dispute reached the Supreme Court through a Section 482 quashing petition before the Madras High Court. The availability of Section 482, however, does not convert the proceeding into an ordinary criminal prosecution — a distinction the courts have policed carefully, as the next sections show.
Sub-section (2): The Power to Lay Down Its Own Procedure
Sub-section (2) is the Act's pressure-release valve. It tells the Magistrate that nothing in sub-section (1) prevents the court from laying down its own procedure for disposing of a Section 12 application or an application for ex parte interim relief under Section 23(2). The provision recognises a practical reality: the criminal trial procedure of the Code, built for the determination of guilt, is ill-suited to the swift, protective, largely documentary adjudication the Act envisages, in which the Magistrate must fix the first hearing within three days (Section 12(4)) and endeavour to dispose of the application within sixty days (Section 12(5)).
The leading exposition is the Madras High Court's judgment in Dr. P. Pathmanathan v. V. Monica, 2021 SCC OnLine Mad 8731, which the Supreme Court approved in Kamatchi. Justice N. Anand Venkatesh held that a “complaint” under Rule 2(b) of the 2006 Rules (an allegation made to a Protection Officer) is not the same as a “complaint” under Section 2(d) of the Code (an allegation made to a Magistrate with a view to his taking action for an offence). A Section 12 application is therefore not a complaint at all; it is an application in Form II under Rule 6(1). Consequently, the cognizance-taking machinery of Section 190(1)(a) and the inquiry procedure of Chapter XV of the Code (Sections 200 to 203) have no application to a Section 12 proceeding. This is sub-section (2) in action: the Act and Rules having prescribed an application-based procedure, the criminal-complaint route is displaced. Aspirants should connect this with our note on the procedure for obtaining reliefs, where Form II and the sixty-day timeline are examined in detail.
Why There Is No 'Cognizance' and No 'Process' at the Section 12 Stage
A recurring examination favourite is whether, on receiving a Section 12 application, the Magistrate “takes cognizance” and “issues process” as in a criminal complaint. The answer, settled by Kamatchi v. Lakshmi Narayanan, is no. The Court held that the High Court had “wrongly equated filing of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution.” The notice issued on a Section 12 application merely calls for a response from the respondent so that, after hearing both sides, the Magistrate can pass an appropriate order; it is not the issuance of process on cognizance of an offence.
This has a sharp consequence for the much-cited rule in Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338, that once a Magistrate issues process he cannot recall it and the aggrieved accused must move under Section 482. In Kamatchi the Court held that Adalat Prasad “would not get attracted at a stage when a notice is issued under Section 12 of the Act,” precisely because no cognizance of any offence is being taken. The only offence under the Act is the breach offence under Section 31, and that arises only after a protection order is passed and then violated. Until then, there is no offence, no cognizance and no process — a point that flows directly from reading Section 28 together with the definitions in Section 2.
Limitation: Why Section 468 CrPC Does Not Bar a Section 12 Application
Few questions have generated as much litigation as whether the one-year limitation bar in Section 468 of the Code of Criminal Procedure — imported, the argument runs, through Section 28(1) — applies to a Section 12 application. Kamatchi v. Lakshmi Narayanan (Supreme Court, 13 April 2022, Lalit and Narasimha JJ.) resolved this definitively. The reasoning is elegant: limitation under Section 468 runs from the date of commission of an “offence”; but at the stage of filing a Section 12 application there is no offence in existence, because the only offence under the Act is the breach of an order under Section 31. As the Court put it, “By the time an application is preferred under Section 12 of the Act, there is no offence committed in terms of the provisions of the Act and as such there would never be a starting point for limitation from the date of application.” The limitation clock under Section 468 begins only when a Section 12 order is breached, triggering the Section 31 offence.
In reaching this conclusion the Court had to grapple with its own earlier observations. In Inderjit Singh Grewal, the Court had remarked (in paragraph 32) that Section 468 limitation applied to Act proceedings by virtue of Sections 28 and 32 read with Rule 15(6) of the 2006 Rules. Kamatchi distinguished Inderjit Singh Grewal, noting that what really weighed in that case was the subsisting divorce decree, and that the “effect and interplay of Sections 12 and 31 of the Act was not noticed.” It also distinguished Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705, where the limitation plea had been rejected on the footing that retention of stridhan is a continuing wrong with no fixed terminal point. The net effect: a Section 12 application is not defeated by delay measured from the acts of violence, though prolonged and unexplained delay remains a factor the Magistrate may weigh on the merits.
Power to Amend the Application
Because the Code of Criminal Procedure contains no general provision for amending a complaint, respondents frequently argue that a Section 12 application, once filed, is frozen. Kunapareddy v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774, demolished this argument. The Supreme Court held that a Magistrate dealing with an application under the Act has the power to allow amendment of the application originally filed, where the amendment is necessary in view of subsequent events or to avoid a multiplicity of proceedings. The Court grounded this power in the civil character of the reliefs: since the orders are primarily civil, the absence of an express amendment provision in the Code does not disable the court, and the analogy to Order VI Rule 17 of the Code of Civil Procedure is apt.
This is a textbook illustration of Section 28(2) and the “save as otherwise provided” clause working in tandem: the criminal-procedure default does not bind the Magistrate where the protective, civil purpose of the Act requires a more flexible procedure. The decision is frequently paired in examination answers with Kunapareddy's broader holding on the nature of the proceedings, and with the proposition that the Magistrate may evolve a procedure suited to the speedy disposal the Act demands.
Evidence, Affidavits and Mode of Proof
Section 28(2) and the Rules also shape how evidence is led. Rule 6(5), read with the application-based scheme, allows the Magistrate to receive evidence by affidavit at the interim stage, consistent with the Act's emphasis on speed. Section 23(1) permits the Magistrate to pass interim orders as he deems just and proper, and Section 23(2) permits an ex parte order on the basis of an affidavit in Form III where the Magistrate is satisfied that the respondent is committing or has committed or is likely to commit an act of domestic violence. Because Section 28(2) specifically names Section 23(2), the court has express statutory licence to fashion a streamlined, affidavit-based procedure for urgent ex parte relief without the full apparatus of a criminal trial.
For final adjudication, however, the proceeding does not dispense with proof altogether. The Magistrate generally records evidence and affords the respondent an opportunity to be heard and to cross-examine, consistent with natural justice and with the Code provisions imported by Section 28(1) so far as they are not displaced. The guiding principle, drawn from Kunapareddy and Nandkishor Pralhad Vyawahare, is that the standard of proof is the civil standard of preponderance of probabilities, not proof beyond reasonable doubt, because the reliefs claimed are civil. This is one of the most practically consequential implications of correctly classifying the proceeding under Section 28.
Section 31: The One Genuinely Criminal Limb
Section 28(1) expressly extends to “offences under section 31”, and this is the point at which the Act sheds its civil skin. Section 31(1) makes the breach of a protection order, or an interim protection order, an offence punishable with imprisonment up to one year, or fine up to twenty thousand rupees, or both. Section 31(2) provides that the offence shall, as far as practicable, be tried by the Magistrate who passed the order, and Section 31(3) allows the Magistrate, while framing charges, also to frame charges under Section 498A of the Indian Penal Code or under the Dowry Prohibition Act, 1961, if the facts disclose such offences. Section 32 makes the Section 31 offence cognizable and non-bailable and, controversially, permits the court to conclude on the sole testimony of the aggrieved person that the offence has been committed.
Here the full criminal-trial procedure of the Code applies: framing of charge, recording of plea, trial as a summons or warrant case as applicable, and conviction to the criminal standard. Crucially, courts have confined Section 31 to its terms. In Kanchan v. Vikramjeet Setiya (Delhi High Court), it was held that the breach of an order of monetary relief under Section 20 does not constitute an offence under Section 31, because Section 31 is triggered only by breach of a protection order; non-payment of maintenance must instead be enforced through the recovery machinery, including Section 125(3) of the Code via Rule 6(5). The Kerala High Court has reiterated this distinction. For aspirants, the lesson is that Section 28(1)'s reference to “offences under section 31” is narrow and must not be stretched to criminalise every default under an Act order.
Appeals, Revision and the Interaction with Section 29
Section 29 of the Act provides a self-contained appeal: an appeal lies to the Court of Session against any order made by the Magistrate, to be preferred within thirty days from the date on which the order is served on the aggrieved person or the respondent, whichever is later. Because Section 28(1) is subject to the “save as otherwise provided” clause, the special appeal under Section 29 displaces the appeal and revision provisions of the Code that would otherwise have applied to a Magistrate's order. This is a frequent trap in objective questions: the correct appellate forum from a Section 12 or Section 23 order is the Sessions Court under Section 29, not the route a litigant might assume from the Code.
The interplay nonetheless leaves room for the Code where the Act is silent — for instance, the inherent and supervisory jurisdiction of the High Court under Sections 482 and 397 of the Code, exercised sparingly, remains available against orders where Section 29 does not furnish an adequate remedy. The courts have repeatedly cautioned, however, against routine recourse to the High Court at the threshold, consistent with Kamatchi's insistence that a Section 12 notice is not the issuance of process and ordinarily should not be quashed prematurely.
Quashing, Abuse of Process and Continuing Wrongs
Quashing under Section 482 of the Code is the sharpest illustration of Section 28(1) at work, but it is hedged with caution. The settled approach, drawn from Inderjit Singh Grewal and Kamatchi, is that the High Court takes the contents of the application at face value, and if they disclose a triable grievance it does not interfere; quashing is reserved for cases where continuation would be a manifest abuse of process — as where the alleged violence post-dates the dissolution of the domestic relationship and a subsisting decree, or where the proceeding is a desperate, belated attempt unsupported by any continuing wrong.
Conversely, the “continuing wrong” doctrine recognised in Krishna Bhattacharjee insulates many applications from challenge: so long as the aggrieved person's status subsists and the deprivation (for instance, of stridhan or of the right to reside in the shared household) continues, fresh cause of action arises and the proceeding is not stale. Kamatchi expressly left it to the Magistrate to decide, after hearing the respondent, whether a ten-year gap in alleged incidents reflected a continuing wrong or a fatal infirmity — underscoring that such fact-sensitive questions belong to the trial court, not the quashing court.
Synthesis and Exam Pointers
For the examination hall, Section 28 is best remembered as a section of defaults and exceptions. The default (sub-section 1) is that the Code of Criminal Procedure governs proceedings under Sections 12 and 18 to 23 and the Section 31 offence. The exceptions are everywhere: the “save as otherwise provided” clause subordinates the Code to the Act and the 2006 Rules; sub-section (2) empowers the Magistrate to craft his own procedure for Section 12 and Section 23(2); and the special appeal in Section 29 displaces the Code's appellate scheme. The unifying thread, supplied by Kunapareddy and Nandkishor Pralhad Vyawahare, is that the reliefs are civil, so the criminal procedure is borrowed only as a convenient vehicle.
Three high-yield ratios should be at your fingertips: (1) a Section 12 application is not a “complaint” and involves no cognizance or process, so Section 468 limitation and Adalat Prasad do not bite at that stage (Kamatchi, approving Dr. P. Pathmanathan); (2) the Magistrate may amend the application despite the Code's silence (Kunapareddy); and (3) Section 31 alone is the criminal limb, confined to breach of protection orders, with monetary defaults enforced through the Section 125 CrPC machinery (Kanchan v. Vikramjeet Setiya). Tie these to the wider scheme through our notes on the procedure for obtaining reliefs and the powers and duties of Protection Officers, and Section 28 ceases to be a dry procedural clause and becomes the organising principle of the Act's enforcement.
Frequently asked questions
Does the Code of Criminal Procedure apply to all proceedings under the Domestic Violence Act?
Not unconditionally. Section 28(1) makes the Code of Criminal Procedure, 1973 govern proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31, but only ‘save as otherwise provided in this Act’. Wherever the Act or the 2006 Rules prescribe a procedure — or where Section 28(2) lets the Magistrate frame his own procedure for a Section 12 or Section 23(2) application — that special procedure prevails over the Code.
Is a Section 12 application a criminal complaint, and does the Magistrate take cognizance of an offence?
No. In Kamatchi v. Lakshmi Narayanan (2022) the Supreme Court, approving the Madras High Court in Dr. P. Pathmanathan v. V. Monica, held that a Section 12 application is an application in Form II under Rule 6(1), not a ‘complaint’ under Section 2(d) of the Code. The Magistrate takes no cognizance of any offence and issues no process; the notice merely calls for the respondent's response.
Does the one-year limitation under Section 468 CrPC bar a Section 12 application filed long after the violence?
No. Kamatchi v. Lakshmi Narayanan held that Section 468 runs from the commission of an offence, and at the Section 12 stage there is no offence — the only offence under the Act is breach of an order under Section 31. Limitation therefore has no starting point at the application stage, though unexplained delay may be weighed on the merits, and a continuing wrong (as in Krishna Bhattacharjee) keeps the application alive.
Can a Magistrate allow a domestic violence application to be amended even though the CrPC has no amendment provision?
Yes. In Kunapareddy v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774, the Supreme Court held that because orders under the Act are primarily civil in nature, the Magistrate has power to permit amendment of the application where needed due to subsequent events or to avoid multiplicity of litigation, the absence of an express provision in the Code notwithstanding.
Is breach of a maintenance (monetary relief) order an offence under Section 31?
No. Section 31 penalises breach of a protection order or interim protection order only. In Kanchan v. Vikramjeet Setiya the Delhi High Court held that non-compliance with a monetary-relief order under Section 20 does not attract Section 31; such defaults are enforced through the recovery machinery, including Section 125(3) of the Code via Rule 6(5) of the 2006 Rules. The Kerala High Court has taken the same view.
What is the appellate remedy against a Magistrate's order under the Act?
Section 29 provides a special appeal to the Court of Session against any order of the Magistrate, to be filed within thirty days of service of the order. Because Section 28(1) is subject to the ‘save as otherwise provided’ clause, this Section 29 appeal displaces the appellate and revisional scheme of the Code; the High Court's inherent powers under Section 482 remain available only sparingly where Section 29 affords no adequate remedy.