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Sh. Rakesh Choudhary And Ors vs Smt. Vandana Choudhary on 7 June, 2019

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CRMC No.226/2018, IA
No.01/2018

Reserved on:-20.05.2019
Pronounced on:-07.06.2019

Sh. Rakesh Choudhary and ors. …….Petitioner(s)

Through:- Sh. D. S. Saini, Advocate.

V/s

Smt. Vandana Choudhary ……Respondent(s)

Through:-Sh. G. S. Thakur, Advocate.

CORAM:

HON‟BLE MR. JUSTICE SANJAY KUMAR GUPTA, JUDGE

JUDGMENT

1. Through the instant petition filed under Section 561-A of the Code of

Criminal Procedure (hereinafter for short, SectionCr.P.C), petitioners seek

quashment of the complaint under Sections 12 and 23 of JK

Protection of Women from SectionDomestic Violence Act, titled “SectionVandana

Choudhary vs. Rakesh Choudhary and ors., pending in the court of

Munsiff, Samba. Petitioners also seek quashment of ex-parte order

dated 29.08.2017 passed by the said Court in the complaint, by virtue

of which the trial court has directed petitioner No.1 to pay/provide

Rs.3,000/- as monthly interim maintenance allowances to the

respondent from the date of passing of the order.

2. The case of the petitioners is that marriage of petitioner No.1 with the

respondent was solemnised on 25.02.2004 at Vijayupr, District

Samba, according to Hindu Rites Customs and out of the said

wedlock, one daughter, namely, Shriya Choudhary and one son,
2 CRMC No.226/2018

namely Udhey Choudhary were born, who are putting up with the

petitioners. It is stated that respondent has left her matrimonial house

without any reason, cause or excuse and is living in her parental house

and has deserted/abandoned the petitioner No.1 as well as her children

and is continuously living with her parents since 5 th August, 2015.

The petitioner No.1 filed a divorce petition against the respondent,

which is pending in the court of Additional District, Judge

(Matrimonial Cases) Jammu since September, 2015 and in the said

divorce petition, the respondent appeared and also filed the objections,

but in the meanwhile, the respondent filed the complaint/application

under Sections 12 and 23 of JK Protection of Women from

SectionDomestic Violence Act, 2010 against the petitioners before the court

of Chief Judicial Magistrate, Samba. It is further stated that on

29.08.2017 the said complaint was transferred to the court of Munsiff

Magistrate First Class, Samba and the learned Magistrate without

summoning the petitioners, passed the impugned order dated

29.08.2017, thereby directing the petitioner No.1 to pay Rs. 3000/- per

month as interim maintenance allowance to the respondent from the

date of passing of the said order.

3. The petitioners seek quashment of the complaint under Sections 12

and 23 of JK Protection of Women from, SectionDomestic Violence Act,

titled “SectionVandana Choudhary vs. Rakesh Choudhary and ors., pending

in the court of Munsiff, Samba and also the ex-parte order dated

29.08.2017 on the following grounds:-

“That the impugned order dated 29.08.2017 is against the facts
and law and is liable to be set aside;

That the respondent is continuously living with her parents since
5th August, 2015 and she even has abandoned her minor children
who are putting up with the petitioners;

3 CRMC No.226/2018

That from the perusal of the aforesaid complaint/application
under Sections 12 and 23 of the Act, no relief u/s 23 of the Act, has
been sought by the respondent, but the court below without
considering the contents of the complaint as well as the provisions
and rules of the Act passed the ex-parte impugned order against
the petitioner No. 1;

That the respondent has not placed any material on record on the
basis of which h the trial court could have observed its prima facie
satisfaction regarding commission of any act of domestic violence,
as such under said circumstances even the main
complaint/application filed by respondent is not maintainable and
is liable to be dismissed;

That admittedly the respondent is living separately from the
petitioners since August, 2015 and has filed the aforesaid
complaint in the month of August, 2017, so how could the
petitioner allegedly commit act of domestic violence upon the
respondent when the respondent already has been living in her
parental house;

that there is no mention of any act of domestic violence in the
complaint filed by the complainant, moreover neither the
protection officer submitted any report of domestic incident to the
Magistrate on behalf of aggrieved person nor the Magistrate
received any domestic incident report from the protection Officer,
but the trial court in absence of any incident regarding domestic
violence passed the ex-parte impugned order which on the fact of
it is contrary to the provisions and rules of the Act;

that the trial court has not issued any summon or afforded any
opportunity of being heard to the petitioners before passing the
impugned order, therefore, the impugned order is passed in
violation of Principle of Natural Justice, as such is required to be
quashed;

that the respondent has neither sought any relief under Section 23
of the Protection of Women from SectionDomestic Violence Act, nor the
respondent filed the affidavit to seek any interim relief of
maintenance in terms of Section 23 of the Act, therefore, the
impugned order passed by the trial court is illegal, unwarranted
under law and without jurisdiction and the same is required to be
quashed.”

4. I have heard the rival contentions of parties. Counsel for petitioner has

reiterated all grounds taken in petition and also argued that there was

no report of protection officer before taking cognizance. In support of

his contention, learned counsel for the petitioners relied upon the

judgments of this Court reported in 2014(4) JKJ 347 case titled

SectionVinay Sharma and ors. vs. Shweta Sharma and ors.; and 2014

Legal Eagle (JK) 82 case titled SectionRakesh Manhas vs. Aruna
4 CRMC No.226/2018

Manhas. Learned counsel for the respondent has supported the order

impugned and stated that petitioners have raised factual aspects,

which cannot be considered in this petition.

5. I have given my thoughtful consideration to whole aspects of the

matter.

6. The operative part of order dated 29.08.2017, passed by JMIC

(Munsiff), Samba reads as under:-

“On the basis of the affidavit furnished by the aggrieved person
and the statement recorded by this Court, this court has a reason
to believe that the aggrieved person has come to the court with the
terms of a „wife‟ of respondent No. 1, namely, Rakesh Choudhary.
She is the victim of physical/mental torture on the part of
respondents. Admittedly, at present she is not living with the
respondents, but it would not rightful to say that she is not being
subjected to mental torture by respondents especially respondent
No. 1 on account of the fact that she being the wife of respondent
No. 1 has been neglected/deserted and thrown out by the
respondents without any source of survival. She can be said to be
under constant emotional/mental distress due to maltreatment
caused to her by the respondents. Respondent No. 1 cannot escape
easily from his liability of taking care of his wife, but it is very
unfortunate as stated by the aggrieved person, the respondent No.
1 has forgotten his obligation of taking care of his wife (aggrieved
person).

Aggrieved person has disclosed that she is not doing any work,
having no independent source of income, so being a woman,
without any sufficient source of income, victim of disloyalty of her
life partner de serves to be prevented of being put to starvation
and social exploitation for want of daily basic requirement of life
for her survival.

Hence, for the reasons stated herein above and without
adverting upon the merits of the case, ex-parte interim relief is
desired to be granted in favour of the aggrieved person.
As the respondent No. 1 is prima-facie found to have
committed cruelty and caused the aggrieved person to suffer
physical, mental injury and emotional distress and made her to
come to the court which is the last resort for the aggrieved person
for redressal of her grievances, as such, respondent No.1 is
directed to provide Rs. 3000/- as monthly maintenance allowance,
to the applicant/petitioner from the date of passing of this order.
For further proceedings file put up on 15.09.2017″

7. The first and foremost argument of counsel for petitioners, in brief, is

that there is no report of Protection Officer, so complaint/petition

before Court below is not maintainable;

5 CRMC No.226/2018

8. The Jammu and Kashmir Protection of Women from SectionDomestic

Violence Act 2010 has been legislated for more effective protection

of the rights of women guaranteed under Constitution, who are victim

of violence. It is complete code which includes jurisdiction of JMIC

in dealing with the petition under Sectionsection 12 of D.V. Act. Section 12

of the Act empowers victim to file a petition before Magistrate

regarding domestic violence; Sectionsection 18 deals with passing of

protection order; Sectionsection 19 deals with passing of residence order;

Sectionsection 20 deals passing of monetary order; Sectionsection 21 deals with

passing of custody order and Sectionsection 22 deals with compensation

order. These types of order can be passed/ granted by Magistrate after

hearing and finally deciding the application under Sectionsection 12 of Act.

Section 12 of Act reads as under:-

“Application to Magistrate

(1) 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:
Provided that before passing any order on such application, the
Magistrate shall take into consideration any domestic
incident/report received by him from the Protection Officer or the
service provider.

(2) The relief sought for under sub-section (1) may include a relief
for issuance of an order for payment of compensation or damages
without prejudice to the right of such person to institute a suit for
compensation or damages for the injuries caused by the acts of
domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or
damages has been passed by any court in favour of the aggrieved
person, the amount, if any, paid or payable in pursuance of the
order made by the Magistrate under this Act shall be set off against
the amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil Procedure,
Samvat 1977 or any other law for the time being in force, be
executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form
and contain such particulars as may be prescribed or as nearly as
possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not
ordinarily be beyond three days from the date of receipt of the
application by the court.

(5) The Magistrate shall endeavour to dispose of every application
made under subSectionsection 1 within a period of sixty days from the date
of its first hearing.”

6 CRMC No.226/2018

9. Chapter IV of the DV Act pertains to the procedure that has to be

followed by the Magistrate while granting relief to an aggrieved

person. Under Section 12 of the DV Act, an application has to be

presented by an aggrieved person, either by the person herself or a

Protection Officer or any other person on behalf of the aggrieved

person to the Magistrate, seeking relief as provided under the SectionDV Act.

A proviso has been added to Section 12(1) of the Act, that before

passing any such order on any application received, the Magistrate

shall take into consideration any domestic incident report received by

him from the Protection Officer or the Service Provider. Section 9 of

the DV Act entails the duties and functions of a Protection Officer,

whose primary duty is to assist the Magistrate in the discharge of his

functions under the Act, to make a domestic incident report to the

Magistrate in the form prescribed, upon receipt of a complaint of

domestic violence, while forwarding copies of the complaint to the

Police Officer in charge of the Police Station within the local limits of

whose jurisdiction, domestic violence is alleged to have been

committed, as well as to the Service Provider. Section 9(2) of the DV

Act further provides that the Protection Officer shall be under the

control and supervision of the Magistrate and shall perform the duties

imposed on him by the Magistrate and the Government.

Moreover, Section 4 of the DV Act provides that any person, who has

reasons to believe that an act of domestic violence has been, or is

being, or is likely to be committed, may give information about it to

the concerned Protection Officer.

7 CRMC No.226/2018

10. On a conjoint reading of Sections 9 and Section12 of the DV Act, it is

manifestly clear that it is duty of the Protection Officer to work under

the control and supervision of the Magistrate and to perform duties

imposed upon him by the Magistrate and in case, he has received a

complaint on domestic violence, then to make a domestic incident

report and submit it to the Magistrate, as well as to forward copies of

the complaint to the Police Officer in charge of the police station

within local limits of whose jurisdiction, domestic violence is alleged

to have been committed. The proviso added to Section 12(1) of the

DV Act is only to the effect that in case a domestic incident report has

been received by the Magistrate, the same shall be considered before

passing any order on an application received. Section 12 of the DV

Act per se does not hold that a Magistrate on receipt of complaint is

obligated to call for a domestic incident report, before passing any

order on an application. So it is not mandatory for a Magistrate to

obtain a domestic incident report before the Magistrate passes any

order provided under various sections of the Act; so receipt of

domestic incident report is not a pre-requisite for issuing notice to the

respondent. Magistrate, on the basis of an application supported by

affidavit, on being satisfied can even grant ex parte orders in favour of

the aggrieved person under Sections 18, Section19, Section20, Section21 or 22 of the SectionDV

Act.

11. As already discussed above, proviso to Section 12(1) only stipulates

that the Magistrate shall take into consideration any domestic incident

report received by him from the Protection Officer or the service
8 CRMC No.226/2018

provider. Section 12(1) does not directly stipulate that a report ‘shall’

be called for, before any relief can be granted.

12. So argument of counsel for petitioners that report of protection officer

is sine qua non for issuing process in petition under Sectionsection 12 of Act,

is not maintainable.

13. Another argument of counsel for petitioners is that court cannot grant

exparte order under Sectionsection 23 of Act thereby granting monetary relief

under Sectionsection 20 of Act. This argument is without any basis. Section

23 of Protection of Women from SectionDomestic Violence Act, reads as

under:

“23. Power to grant interim and ex parte orders.–(1) In any
proceeding before him under this Act, the Magistrate may pass such
interim order as he deems just and proper. (2) If the Magistrate is
satisfied that an application prima facie discloses that the
respondent is committing, or has committed an act of domestic
violence or that there is a likelihood that the respondent may
commit an act of domestic violence, he may grant an ex parte order
on the basis of the affidavit in such form, as may be prescribed, of
the aggrieved person under Sectionsection 18, Sectionsection 19, Sectionsection 20, Sectionsection
21 or, as the case may be, Sectionsection 22 against the respondent.

Section 20 reads as under:-

“Monetary reliefs
(1) While disposing of an application under sub-section (1) of section
12, the Magistrate may direct the respondent to pay monetary relief
to meet the expenses incurred and losses suffered by the aggrieved
person and any child of the aggrieved person as a result of the
domestic violence and such relief may include, but not limited to,

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any
property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children,
if any, including an order under or in addition to an order of
maintenance under Sectionsection 488 of the Code of Criminal Procedure,
Samvat 1989 or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate,
fair and reasonable and consistent with the standard of living to
which the aggrieved person is accustomed.

9 CRMC No.226/2018

(3) The Magistrate shall have the power to order an appropriate
lump sum payment or monthly payments of maintenance, as the
nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief
made under sub section (1) to the parties to the application and to
the incharge of the police station within the local limits of whose
jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the
aggrieved person within the period specified in the order under sub-
section (1).

(6) Upon the failure on the part of the respondent to make payment
in terms of the order under sub-section (1), the Magistrate may
direct the employer or a debtor of the respondent, to directly pay to
the aggrieved person or to deposit with the court a portion of the
wages or salaries or debt due to or accrued to the credit of the
respondent, which amount may be adjusted towards the monetary
relief payable by the respondent.”

14. From bare perusal of Sectionsection 23, it is evident that the magistrate is

empowered to grant interim relief/s as he/she deems just and proper

during pendency of application under Sectionsection 12 of Act. Section 23 of

Act consists of two parts; Sectionsection 23(1) empowers Magistrate to pass

interim order during pendency of main petition under Sectionsection 12 of

Act or in any proceedings; Sectionsection 23 (2) empowers magistrate to pass

exparte order on the basis of affidavit under various sections

mentioned in this section. This will certainly includes that magistrate

would also have power to grant ad interim exparte order during

pendency of main interim application under Sectionsection 23(1) of Act.

15. The purpose of this section is to save the victim from vagrancy,

continuous harassment, dispossession of victim from place of

residence or shared household, alienation of victim from such place of

residence or shared household etc. If the Magistrate is satisfied that

an application prima facie discloses that the respondent is committing,

or has committed an act of domestic violence or that there is a

likelihood that the respondent may commit an act of domestic

violence, he may grant an ex parte order on the basis of the affidavit
10 CRMC No.226/2018

in such form, as may be prescribed under section 20 or any other

section, as the case may be.

16. Rest petitioners have taken grounds which are factual in nature; from

perusal of order of court below, it is evident that petitioners have not

filed statutory appeal against the impugned order before Sessions

Court, before filing the present petition. The laws cited are not

applicable in present facts and circumstances of case. Firstly, facts

are to be seen, then law is to be applied.

17. In view of the foregoing discussion, the petition in hand is hereby

dismissed, being devoid of any merits. Before parting with this

judgment, it is made clear that any observation made by this court

hereinabove is only for the purpose of deciding the instant petition

and shall have no affect on the merits of the case.

Jammu
01.02.2019 ( Sanjay Kumar Gupta )
Narinder Judge

NARINDER KUMAR SHARMA
2019.06.07 14:07
I attest to the accuracy and
integrity of this document

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