S.482 CrPC Cannot Be Invoked To Challenge Proceedings Initiated U/S 12 J&K Domestic Violence Act: High Court

The Jammu & Kashmir High Court has held that Section 482 of the Code of Criminal Procedure (CrPC) cannot be used to challenge the proceedings initiated under Section 12 of the Jammu and Kashmir Protection of Women From Domestic Violence Act, 2010 or the orders passed thereunder.

The decision was passed by Justice Rajnesh Oswal in a petition filed under Section 482 CrPC seeking to quash the orders of Sessions Court and Magistrate Court, directing the petitioner to maintain his four children.

Section 12 of the 2010 Act provides that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act. The Act provides for grant of various reliefs to the aggrieved person in the form of protection orders, residence orders, monetary reliefs, custody orders and compensation orders. 

Petitioner contended that three of the children were already major and the fourth child attained majority during the pendency of the proceedings. He argued that the mother could not maintain the petition on behalf of the major daughters.

The mother on the other hand questioned the maintainability of the instant petition, arguing a petition under Section 482 CrPC is not maintainable to challenge proceedings under the 2010 Act.

At the outset, the Court noted that reliefs provided in terms of Sections 12, 18, 19, 20, 21 and 22 of the Act of 2010 are primarily civil in nature. It also referred to Section 26 of the 2010 Act which allows relief sought under Sections 18, 19, 20, 21, and 22 to be sought in any legal proceedings before a civil court, family court, or criminal court. It observed that the 2010 Act itself provides for various reliefs and vests powers on civil, criminal, and family courts to grant such reliefs.

The Court further noted that Section 28 of the 2010 Act provides that proceedings under Sections 12, 18, 19, 20, 21, 22, and 23, and offences under Section 31 of the Act, shall be governed by the provisions of CrPC. However, the court emphasized that the Magistrate under the Act is not acting as a criminal court but as a Judicial Magistrate 1st Class exercising jurisdiction under the Code.

“If the intention of the legislature had been to confer power on the Magistrate as the criminal court, then the separate reference to a criminal court under section 28 of the Act was not required at all. Merely because of the procedure as provided under the Code has been made applicable to all the proceedings under sections 18, 19, 20, 21 and 22 of the Act of 2010 would not clothe the Magistrate while exercising the jurisdiction under the Act of 2010 as a criminal court”, the bench reasoned.

It held that a petition under section 482 CrPC. cannot be filed for the purpose of challenging the proceedings initiated under Section 12 of the 2010 Act or the orders passed thereunder. Court added,

"If the respondent or the aggrieved person is aggrieved of any order passed by the appellate court in terms of section 29 of the Act of 2010, the respondent or aggrieved person can approach the High Court under Article 227 of the Constitution of India."

Case Title: Khalid Amin Kohli Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 194

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