Case Title:
Altaf Ahmad Zargar & Anr Vs Mst. Sana & Anr
Date of Order:
September 2, 2022
Bench:
Justice Sanjay Dhar
Parties:
Petitioners- Altaf Ahmad Zargar & Anr
Respondents- Mst. Sana & Anr
SUBJECT
This petition was challenging an application filed by the respondents under Section 12 of the Protection of Women from Domestic Violence Act, 2005. This application was pending before the First Class Judicial Magistrate of Srinagar. On hearing both sides, the Court concluded that the proceedings under Section 12 of the DV Act cannot be equated to lodging of a criminal complaint or initiation of prosecution. It was stated that the petitioners can go forward and file all their pleas to drop proceedings regarding the application filed against them under Section 12 of the DV Act, before the Magistrate. Thus the petition was disposed of.
IMPORTANT PROVISIONS
- Section 12 in The Protection of Women from Domestic Violence Act, 2005- This Section is about application that can be filed before the Magistrate by an aggrieved person or a Protection Officer or any other person on behalf of that person. The application may be seeking reliefs of monetary compensation or damages for the injuries caused by domestic violence by the respondent, provided that a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person.
OVERVIEW
- In the year 2016, the petitioner got into a wedlock with the respondent, of which a child was born. The petitioner alleges that from the beginning itself the respondent wanted the petitioner to stay away from his ailing mother and no attempts of settling the differences between them saw result. For these reasons, the petitioner divorced the respondent, as of 23.08.21.
- As a reaction to this, the respondent filed an application against the petitioners under the DV Act to the Special Mobile Magistrate, Srinagar. The Magistrate had tried to negotiate a settlement between the parties.
- It was alleged that in the last week of October, the respondent and her relatives assaulted the petitioner and family members, by entering their house and forcibly throwing them out. When trying to file a complaint about this, the petitioners came to know that the police is taking no action regarding the act because the respondent had filed another application under Section 12 of the DV Act before the Chief Judicial Magistrate of First Class. This was the application that was challenged in this case.
- It was found that the respondent had also given a statement that the parties had settled the matter outside Court, regarding the first application filed before the Special Mobile Magistrate, under the DV Act, and had sought to withdraw the same, following which the Magistrate withdrew it.
ISSUES RAISED
- Whether the cause of action with respect to the two applications filed by the respondent under the DV Act was the same and would it amount to abuse of due process of law.
ARGUMENTS ADVANCED BY THE PETITIONERS:
- The petitioners contended that the both applications filed by the respondent had the same cause of action and this would be an abuse of the due process of law and that the application under question deserves to be quashed.
- The respondent, while filing the second application, hid the fact that she had already filed an application under the DV Act.
- The respondent made false statements before the Special Mobile Magistrate in order to withdraw the first application filed by her. If this statement made by her was true, why would she file the second application that was under question in this case.
- When the respondent failed to obtain an interim order from the Magistrate on her first application, she filed the second application and obtained the interim order, by which the petitioner had to pay a sum of Rs. 3000 to her and other respondents. It was stated that this act of the respondent amounts to forum shopping, that is, she made her case heard in a Court from which she was more likely to receive a favourable judgement.
ARGUMENTS ADVANCED BY THE RESPONDENTS:
- The cause of action in both applications filed were different. While the first one was regarding incidents of domestic violence that took place in April, 2018, upto the date of 24th August, 2021, on which the application was filed. The second one, which is under question in this case, was regarding acts of domestic violence that the petitioners inflicted upon the respondent from 9th October, 2021 to the date in which the petition was filed that is 21st October, 2021. It was stated that each cause of action for an incident of domestic violence are different from each other for the aggrieved person to file a petition under Section 12 of the DV Act.
- It has been clearly disclosed in the para(3) of the second application that an application under Section 12 of the DV Act has been filed against the petitioners, before the Special Mobile Magistrate. This fact was also taken into consideration by the learned trial Magistrate while granting the interim monetary compensation in favour of the respondents. Thus, the contention made by the petitioner that the respondent had hidden this fact, stands false.
JUDGEMENT ANALYSIS
- The proceedings under Section 12 of the DV Act cannot be equated to lodging of a criminal complaint or initiation of prosecution.
- If the trial Magistrate after hearing the responses of the husband and his relatives, and is convinced that the charges against them are unnecessary and do not stand, it would be well within its jurisdiction to revoke the order it had issued summoning them, or to drop all proceedings against them. As the charges under Section 12 of the DV Act are not strictly criminal in nature, nothing bars a Magistrate from altering or revoking an proceedings made under this Section.
- The Court cited the Supreme Court judgement in Kamatchi vs. Lakshmi Narayanan, [2022 SCC OnLine SC 446] to explain the scope of a notice issued under Section 12 of the DV Act. It was to call for a response from the respondent against whome an application was filed, so that after hearing relevant submissions, the Court can issue an appropriate order.
- Therefore, after hearing the husband and his relatives against whome the application was filed, if the Court was convinced that no case need to be proceeded against them, it can drop all proceedings against them and even revoke the order granting the respondent interim monetary compensation.
- The petitioners have the liberty to approach the Court for revoking the said order. Thus the petition is disposed of.
CONCLUSION
The Court concluded that the provisions under Section 12 of the DV Act and a lodging of criminal complaint or initiation of prosecution are not of the same nature. Two applications filed by the respondent before the Magistrate cannot be seen as having the same course of action. The petitioners can approach the Magistrate and can be heard before the Court. If the Court was convinced that no case stands against them, the order passed by the second application can be revoked.
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