Orders Passed U/S 12 Domestic Violence Act Can't Be Assailed Directly U/S 482 CrPC Unless Remedy Of Appeal Is Availed: J&K High Court

Dismissing a petition under Section 482 assailing the orders passed by the Judicial Magistrate under Sec 12 of the DV Act, Justice Sanjay Dhar observed,

“Without going into the question, whether or not the proceedings under the D.V.Act are of civil in nature, one thing is clear that the remedy of appeal is available to the petitioner against the impugned order. Without availing the said remedy the petitioner could not have rushed to this Court to file proceedings under Section 482 Cr.P.C or by invoking revisional powers of this Court”.

In the instant case the petitioner had filed a proceeding under the DV Act, seeking interim monetary relief and other reliefs, including shared accommodation. An ex-parte order was passed on 17th August 2022, directing the respondent to provide shelter to Mrs. Balki. However, after the respondent contested the order, the trial Magistrate modified the relief to arranging rental accommodation or providing Rs.10,000 per month to the petitioner. Aggrieved of the modified order the petitioner had preferred the instant petition under Sec 482 CrPC.

Contesting the plea the respondent raised a preliminary objection to the maintainability of the petition on the ground that the order passed by the trial Magistrate is appealable in nature and as such the petition under Section 482 Cr.P.C read with Section 397 Cr.P.C is not maintainable. The Counsel also contended that the proceedings under the D.V.Act are civil in nature and, as such, petition under Section 482 Cr.P.C is not maintainable.

Adjudicating upon the matter Justice Dhar noted that Section 29 of the DV Act explicitly provides for an appeal to the Court of Session within 30 days from the date of the Magistrate's order hence ensuring a proper legal channel exists for the redressal of grievances under the Act.

“If we have a look at the provisions contained in Section 29 of the D.V.Act, it provides that an appeal shall lie to the Court of Session within 30 days from the date on which the order is passed by a Magistrate. An order made by Magistrate under Section 12 of the D.V.Act is, therefore, appealable under Section 29 of the D.V.Act”, the court remarked.

Thus court held petitioner,  without filing the appeal under Section 29 of the D.V.Act, cannot straightway rushed to the High Court by invoking the powers under Section 482 and 397 Cr.P.C. Accordingly, it dismissed the plea.

Case Title: Mrs. Syed Asma Balki Vs. Mudasir Shibzada

Citation: 2023 LiveLaw (JKL) 281

Counsel For Petitioner: Mr.Saleem Gupkari, Advocate.

Counsel For Respondent: Mr.Altaf Haqani, Sr.Advocate with Mr. Asif Wani,Advocate

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