S.12 DV Act | Magistrate Can Revoke Summons Based On Response Filed By Husband/ Relatives: J&K&L High Court

The bench comprising Justice Sanjay Dhar was hearing a plea in terms of which the petitioner had challenged the application filed by the respondent against him under Section 12 of the Protection of Women from Domestic Violence Act, 2005, which was stated to be pending before the Court of Chief Judicial Magistrate, Rajouri.

The petitioner premised his plea on the ground that the impugned application filed by the respondent against him is abuse of process as no incident of domestic violence had even, prima facie, taken place. He further submitted that once interim order of monetary compensation has been cancelled by the Magistrate, the impugned proceedings are liable to be quashed. Petitioner also contended that because the respondent never resided with the petitioner, as such, there was no domestic relationship between the parties.

Perusal of the record revealed that barely few months after marriage, the respondent left her matrimonial house along with household articles. Pleadings further revealed that the petitioner had filed a complaint against the respondent, her father and brother and in this regard an FIR stands registered in Police Station, Darhal. According to the petitioner, in order to counter the said FIR, the respondent in connivance with her family members has filed the impugned application under Section 12 of the DV Act in which an interim order under Section 23 of Act came to be passed by the Magistrate, directing the petitioner to pay interim maintenance of Rs. 8,000/- per month to the respondent.

The court also took note of the fact that the petitioner filed his detailed objections to the application filed by the respondent and when the Magistrate obtained domestic incident report from the Protection Officer, it was revealed that no incident of domestic violence had taken place against the respondent as a result of which the ex-parte interim order was cancelled by the Magistrate in terms of his order dated 3rd June, 2022. It was this pending application which was being impugned by the petitioner in the instant petition.

Adjudicating upon the matter Justice Dhar observed that so far as the proceedings under Section 12 of the D.V.Act are concerned, the same cannot be equated with lodging of a criminal complaint or initiation of prosecution and therefore a Magistrate, after obtaining 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.

"The Magistrate would be well within his jurisdiction to cancel the interim order passed by him, if upon going through the response of the husband and his relatives, he finds that they have been unnecessarily roped in or no case for grant of interim order is made out. Since the proceedings under Section 12 of the D.V.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," Justice Dhar explained.

In order to buttress this adopted stand the bench placed firm reliance on the Supreme Court judgement in the case of Kamatchi v.Lakshmi Narayanan, 2022, wherein it was observed,

" It is clear that the Magistrate has power to revoke the proceedings initiated against a person in terms of Section 12 of the D.V.Act, if and when the Magistrate finds that there is no ground to proceed against such person".

Disposing the said petition, the bench advised that the petitioner may file an application before the Magistrate for dropping of the proceedings against him and in case the same is done, the Magistrate shall, after hearing both the parties, pass appropriate orders in accordance with law.

Case Title : Mohd Hussain Vs Shabnam Ara

Citation : 2022 LiveLaw (JKL) 169

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