Proceedings U/S 12 DV Act Not Strictly Criminal In Nature, Bar Preventing Magistrates From Revoking Their Own Orders Is Not Applicable: J&K HC
LIVELAW NEWS NETWORK
18 Sep 2024 9:55 AM GMT
The Jammu and Kashmir and Ladakh High Court has clarified that proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) are not strictly criminal in nature. Consequently, the bar preventing Magistrates from revoking or cancelling their own orders is not applicable in these cases, it added.
In his pronouncement on the nature of proceedings under the Act Justice Sanjay Dhar emphasized that Magistrates have the authority to drop proceedings against the accused parties if they find that no case is made out against them.
The case arose from a petition filed by petitioner Dr. Tanveer Hassan Khan and others, challenging an application under Section 12 of the D.V. Act, pending before the Judicial Magistrate, Kupwara. The petitioner had entered into wedlock with Respondent Andleeba Rehman, in May 2022, and a child was born from this union.
The petitioner alleged that the respondent harassed his family and insisted that he separate from his elderly parents. Tensions escalated, and the respondent returned to her parental home. According to the petitioner, further issues arose when the respondent resumed contact with her ex-husband, an action that the petitioner disapproved of.
Challenging the proceedings the petitioners argued that the application under Section 12 of the D.V. Act should be quashed as the allegations made by Respondent No. 1 were vague and lacked specific detail. He further argued that the respondent did not reside in the territorial jurisdiction of the Court at Kupwara, rendering the proceedings invalid.
The respondents, in their reply, maintained that the petitioner had continuously harassed her and their child, necessitating the filing of the petition in Kupwara, where they claimed to have temporary residence.
Justice Dhar, after reviewing the arguments, highlighted that under Clause (a) of Subsection (1) of Section 27 of the D.V. Act, a Magistrate within whose territorial limits the aggrieved person temporarily or permanently resides has the authority to hear the case. Since Respondent No. 1 claimed temporary residence in Kupwara, the Magistrate was justified in entertaining the petition. Any dispute over the respondent's residence could only be addressed during the trial, not at this preliminary stage, he underscored.
Commenting on the Nature of the Proceedings under Section 12 of the D.V. Act the Court clarified that proceedings under the D.V. Act do not have the same character as a criminal complaint or prosecution. Therefore, a Magistrate, after hearing from both parties, can revoke an interim order or even drop proceedings altogether if it is found that the husband or his relatives were wrongly implicated or if no valid case is established for an interim order, the court reasoned.
Noting that the petitioners had approached the High Court without filing their response to the petition under Section 12 of the D.V. Act before the Magistrate the Court observed that the petitioners should first file their response or an application to drop the proceedings before the Magistrate.
“.. the learned Magistrate, after hearing both the parties, shall pass appropriate orders in accordance with law within one month from the date such application is filed by the petitioners”, the bench concluded.
Case Title: Dr Tanveer Hussain Khan & Ors Vs Andleeba Rehman & Ors.
Citation: 2024 LiveLaw (JKL) 260
