Criminal Court Can Review Its Own Order At Notice Stage Under Domestic Violence Act: J&K High Court

Explaining that a petition under Section 12 of the D.V.Act cannot be equated with lodging of criminal complaint or initiation of criminal prosecution a bench of Justice Sanjay Dhar cited Kamatchi v. Lakshmi Narayanan 2022 and observed,

“…. that a criminal court cannot review its own order, would not get attracted at a stage when the notice is issued under Section 12 of the Act”.

This ruling came while dismissing a petition filed by Mudasir Ahmad Dar challenging the proceedings under DV Act initiated against him by the Additional Special Judicial Mobile Magistrate Ganderbal.

Background:

Mudasir had married respondent No.1, Mashooka, and the couple had a child, respondent No.2, from this wedlock. However, due to strained relations, Mudasir pronounced divorce on April 8, 2023. Subsequently, Mashooka secured maintenance from Mudasir's salary through the intervention of his Commandant and also obtained interim maintenance through proceedings under Section 125 of the Code of Criminal Procedure.

Mudasir contended that Mashooka was already receiving maintenance from his salary and through the Section 125 proceedings, thereby arguing that she was not entitled to any further monetary compensation under the Domestic Violence Act. He also claimed that the petition filed under Section 12 of the D.V. Act was barred by limitation as per Section 468 of the Cr.P.C.

Court Observations:

Justice Dhar observed that the trial Magistrate had only issued a notice to the petitioner, which did not equate to an interim order for monetary compensation. The petitioner's objections to the notice under Section 12 of the D.V. Act had not yet been considered by the Magistrate, the bench pointed.

“.. In view of this legal position, the petitioner should have waited for the order of the learned Magistrate after filing of objections under section 12 of the D.V.Act, but instead of doing so, he has prematurely filed the instant petition”, the bench remarked.

The court emphasised that the issuance of a notice under Section 12 is merely to call for a response from the petitioner and does not constitute a criminal complaint or prosecution.

Justice Dhar further elucidated that the legal position regarding a criminal court's inability to review its own order does not apply at the notice stage under the D.V. Act. The petitioner should have awaited the Magistrate's order post the filing of objections rather than prematurely approaching the High Court, the court said.

Regarding the claim of the petition being time-barred, Justice Dhar clarified that an application under Section 12 of the D.V. Act does not need to be filed within a specific period after the alleged acts of domestic violence. Therefore, the petitioner's contention was found to be without merit, the court maintained.

Accordingly the court dismissed the petition, allowing the petitioner to pursue the matter before the trial Magistrate in accordance with the law.

Case Title: MUDASIR AHMAD DAR Vs. MST.MASHOOKA AND ANOTHER

Citation: 2024 LiveLaw (JKL) 135

Mr.Hilal Ahmad Wani, Advocate appeared for the petitioner.

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