The Jammu and Kashmir and Ladakh High Court on Friday ruled that the proceedings under Section 12 of the Domestic Violence Act cannot be equated with lodging of a criminal complaint or initiation of prosecution and therefore a Magistrate, after obtaining the response from the husband and his relatives etc. is well within his jurisdiction to revoke his order of issuing summons to them or he can even drop the proceedings.
A bench of Justice Sanjay Dhar Observed,
\”The learned Magistrate would be well within his jurisdiction to cancel the interim order of monetary compensation if he, upon going through the response of the husband and his relatives, finds that they have been unnecessarily roped in or that no case for grant of interim monetary compensation is made out. Since the proceedings under Section 12 of the DV Act are not, in strict sense, criminal in nature, as such, bar to alter/revoke an order by a Magistrate is not attracted to these proceedings\”.
The court was hearing a plea wherein petitioners had challenged the application filed by the respondents against them under Section 12 of the Protection of Women from Domestic Violence Act, 2005 which is stated to be pending before the Court of learned Judicial Magistrate, 1st Class (1st Additional Munsiff), Srinagar.
Perusal of the record revealed that the respondent had filed an application under DV Act before Special Mobile Magistrate (13th Finance), Srinagar against the petitioners, which the respondent had subsequently withdrawn by making a statement that the parties had settled their disputes outside the Court. Accordingly the said application came to be dismissed as withdrawn by the Magistrate. Later the respondent moved a second application under sec 12 of the DV Act, which was impugned by the petitioners before the bench.
The petitioners in their plea contended that the second application under the provisions of the DV Act on same cause of action amounts to abuse of process of law and, as such, the same deserves to be quashed. Petitioners further contended that the respondent had concealed the factum of filing of earlier application under the provisions of DV Act while filing the second application.
Contesting the plea the respondents countered by submitting that the cause of action in respect of two petitions filed by respondent No.1 against the petitioner is different, inasmuch as the first petition relates to the incidents of domestic violence that had taken place in April, 2018 onwards up to the date of filing of the said application i.e. upto 24th August, 2021 whereas the subject matter of the impugned petition is the incidents of domestic violence committed by the petitioners against respondent No.1 relating to the period from 9th October, 2021 up to the date of filing of the impugned petition i.e., 21.10.2021. Thus, according to learned counsel for the respondents, it cannot be stated that the cause of action in respect of the two petitions is the same.
Descending the controversy Justice Dhar observed that proceedings under Section 12 of the DV Act are concerned, the same cannot be equated with lodging of a criminal complaint or initiation of prosecution and since the proceedings under Section 12 of the DV Act are not, in strict sense, criminal in nature, as such, bar to alter/revoke an order by a Magistrate is not attracted to these proceedings.
Fortifying the said position the bench also found it necessary to record the findings of Supreme Court in Kamatchi vs. Lakshmi Narayanan, 2022 wherein SC observed that scope of of notice under Section 12 of the DV Act is to call for a response from the respondent in terms of the Statute so that after considering rival submissions, appropriate order can be issued. The Court further held that the matter stands on a different footing and the dictum in Adalat Prasad\’s case ((2004) would not get attracted at a stage when a notice is issued under Section 12 of the Act.
Disposing the plea the bench stated that without going into merits of the rival contentions raised by the learned counsel for the parties, it is provided that the petitioners may file their reply to the petition under Section 12 of the DV Act raising all the available pleas and they may also file an application before the learned Magistrate for dropping of the proceedings against them. In case the same is done by the petitioners, the learned Magistrate shall, after hearing the parties, pass appropriate orders in accordance with law expeditiously, the bench concluded.
Source: https://www.livelaw.in/news-updates/jkl-high-court-dv-act-section-12-proceedings-criminal-complaint-208360