1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) petitioners seek quashment
of application filed by the respondent under Section 12 of the J&K (Protection of Women from Domestic Violence) Act, 2010 titled Sarvjyot Kour vs.
Kamaldeep Singh and others pending trial before the court of learned Sub Judge, Special Mobile Magistrate, Kathua. Petitioners also seek quashment
of order dated 08.08.2016, passed in the above said application.
2. The petitioners challenge the impugned order dated 08.08.2016, on the grounds that the application filed under Section 12 is totally illegal and
contrary to the provisions of J&K (Protection of Women from Domestic Violence) Act, 2010 and has been filed by the respondent for the purpose of
countering the divorce petition filed by petitioner No.2. It is stated that not only a single ingredient of Section 3 of the JK DV Act, 2010 has been made
out in the application. It is further stated that admittedly fraud has been played by the respondent by not disclosing before the learned trial court that
she herself has defied the decree of restitution of conjugal rights passed by the Court of learned Additional District Judge, (Matrimonial Cases)
Jammu. Respondent has also not disclosed before the trial court that petition filed by her under Section 488 Cr.P.C contains the same very allegations
which are made basis for maintaining the impugned application under Section 12 of the Act.
3. Learned counsel for the petitioners states that the allegations which have been leveled against the petitioners in the application are prima-facie
unbelievable and no cognizance could have been taken by the trial court.
4. I have heard rival contentions of learned counsel for the parties and gone through the file.
5. From the perusal of the record, it appears that respondent herein filed an application under Section 12 of the J&K (Protection of Women from
Domestic Violence) Act,2010 before the learned CJM Kathua on 21.07.2016. The relevant contents of the said application reads as under:-
“4. That after the marriage the complainant was taken to simbal camp Jammu from Nagri Parole where they started living as husband and wife.
Within a week’s time there after the respondent No.1, other respondents and their other relatives started showing their dissatisfaction on the
quantity and quality of dowry articles, Jewelry, clothes and also on the standard of the reception, hosted to the barat. The respondent No.1, his mother
as well as other started, teasing torturing taunting and causing Domestic violence to the complainant, and asked the complainant to take back all the
dowry, jewelry and other articles to her parental house and ask your parents to give 10,00,000/-(RS.10 lacs) minimum in cash to the respondents so
that they can themselves purchase the Jewelry and other items of dowry of their choice and requirement. Keeping in view the condition of her
parental family the complainant refused to accept the most callous and in genuine demand of the respondents. There after respondents became more,
cruel and barbaric and started even physically beating and maltreating the complainant and ultimately in the month of June 2015, the respondents
giving a severe beating to the complainant hounded out the complainant from their home telling her in most threatening that the complainant should not
dare to come back to their home unless she will bring ten lacs cash amount from her parents.
5. That the complainant thereafter is living in her parental house, where being a married woman the complainant does not feel comfortable and thinks
herself a burden on them. The complainant demanded maintenance from the respondent No.1 which was refused to her ultimately left with no other
option the complainant in September 2015 filed an application u/s 488 Cr.P.C in the court at Kathua alongwith an application for an interim
maintenance, which is being hotly contested by the respondent No.1. The court of learned Magistrate vide order dated 17.12.2015 has ordered
payment of Rs.2500/- p.m. as interim maintenance, which is very meager and is not sufficient to keep the body and soul of the complainant together.
6. That besides the respondents had whereas on one hand increased the pressure and demand of dowry on the other hand had also started threatening
and causing fear of death to the complainant. Therefore the complainant on 25.9.2015 filed a complaint before Ld. C.J.M. Kathua, which was
forwarded to SHO Concerned in terms of section 156(3) Cr.P.C upon which police registered FIR No.293/15 and started investigation and after
investigation finding truth in the accusation submitted challan in the court of law against the respondent 1-3 under sections 498-A/109,323,504 RPC,
which is pending trial and the respondents here in have been charge sheeted on 9-1-2016.
7.That as a counter blast the respondent No.1 on 26.5.2016 only with a view to harm, harass and terrorize the complainant filed à Divorce petition
against the complainant in matrimonial court at Jammu, knowingly and deliberately that pressure will be built on the complainant and she will be made
to succumb to the pressure physically, monitorily and socially as well. There is open threat to the respondents, that whenever she will come to Jammu
on the date of hearing she will be physically picked up and taken to such hide out from where even her angels will not be able to know her
whereabouts. The complainant is fully aware that respondents are so dare devils, cruel and barbaric that they can translate their threats into action.
The respondents has also threatened that they will break her arms and legs and will throw on a cross road with a begging bowl in her hand. The
complainant has now filed an application for transfer of the said divorce petition from Jammu to Kathua and the Honorable High Court has been kind
enough to pass appropriate interim order at the first instance.
8. That the constant and continuous mental as well as psychological torture meted out to the complainant, has whereas on one hand made the life of
the complainant miserable and a living hell on earth on the other hand the complainant has been engulfed in the dark sea of insecurity i.e. Insecurity of
life and limb, insecurity of food and living a safe and fear and terror free life, besides residential and physical insecurity. All these can push the
complainant in some big risk and trouble.
6. From the perusal of the impugned order dated 08.08.2016, it appears that notice was issued to the respondents (petitioners herein). It further reveals
that petitioner nos. 1 and 2, namely, Kamaldeep Singh and Manjeet Kour appeared before the court below, but petitioner No. 3 did not appear and
fresh notice was issued to him.
7. Learned counsel for the petitioners contends that vide order dated 16.04.2016, decree for restitution of conjugal rights has already been passed by
the Court of Additional District Judge (Matrimonial Cases) Jammu, so the application under Section 12 of the J&K (Protection of Women from
Domestic Violence) Act, 2010 filed by the respondent-Sarvjyot Kaur, is not maintainable. This argument is of no help to the petitioners, because
perusal of aforesaid judgment dated 16.04.2016 would reveal that it has been passed in ex-parte. It is further evident from the pleadings that
Kamaldeep Singh immediately after 40 days of passing of decree has filed a divorce petition.
8. Another argument of learned counsel for the petitioners is that respondent has not disclosed the fact of decree of restitution of conjugal rights
passed by the Court of Additional District Judge (Matrimonial Cases) Jammu. This argument is also not sustainable, because as stated above, the said
order dated 16.04.2016 has been passed in ex-parte, so there was no occasion for the respondent to have knowledge of passing of the said decree at
the time of filing petition under section 12 of D.V. Act.
9. Learned counsel for the petitioners further contends that respondent while filing application under Section 12 of the J&K (Protection of Women
from Domestic Violence) Act, 2010 before the learned Chief Judicial Magistrate; Kathua has not disclosed that she had already filed a petition under
Section 488 Cr.P.C. for maintenance. This argument is also not sustainable, because in para 5 of the application filed under Section 12 of the Act,
respondent has specifically mentioned that she has filed an application under Section 488 Cr.P.C. and the Magistrate vide order dated 17.12.2015, has
ordered payment of Rs.2,500/- per month as maintenance.
10. The Jammu and Kashmir (Protection of Women from Domestic Violence) Act 2010 has been legislated for more effective protection of the rights
of women guaranteed under Constitution, who are victim of violence.
11. Section 12 of Act empowers victim to file a petition before Magistrate regarding domestic violence; section 18 deals with passing of protection
order; section 19 deals with passing of residence order; section 20 deals with passing of monetary order; section 21 deals with passing of custody
order and section 22 deals with compensation order. These types of order can be passed/ granted by Magistrate after hearing and finally deciding the
application under sections 12 of Act. The term Domestic Violence has been given a specific connotation under Section 3 of the Act and any act,
omission and commission or conduct of the respondent shall constitute domestic violence in case it:
(a) harms or injuries or endangers the health, safety, life, limb or wellbeing, whether mental or physical, of the aggrieved person or tends to do so and
includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any lawful
demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) Otherwise injuries or causes harm, whether physical or mental, to the aggrieved person.
12. Thus, in order to claim relief under Section 12 of the Act which permits an “aggrieved person†to present an application to the magistrate
seeking one or more reliefs under the Act, leveling the allegations of Domestic Violence. Thus, the reliefs contemplated under the Act are thus
available to an aggrieved person who alleges that she is or has been in domestic relationship with the respondent and was subjected to any Act of
Domestic Violence by the respondent.
13. Domestic violence is not physical violence alone. Domestic violence is any behavior the purpose of which is to gain power and control over a
spouse. Physical abuse can include hitting, biting, slapping, battering, shoving, punching, pulling hair, burning, cutting, pinching, etc. (any type of violent
behavior inflicted on the victim). Physical abuse also includes denying someone medical treatment and forcing drug/alcohol use on someone. Sexual
abuse occurs when the abuser coerces or attempts to coerce the victim into having sexual contact or sexual behavior without the victim's consent.
This often takes the form of marital rape, attacking sexual body parts, physical violence that is followed by forcing sex, sexually demeaning the victim,
or even telling sexual jokes at the victim's expense. Emotional abuse involves invalidating or deflating the victim's sense of self-worth and/or self-
esteem. Emotional abuse often takes the form of constant criticism, name-calling, injuring the victim's relationship with his/her children, or interfering
with the victim's abilities. Economic abuse takes place when the abuser makes or tries to make the victim financially reliant. Economic abusers often
seek to maintain total control over financial resources, withhold the victim’s access to funds, or prohibit the victim from going to school or work.
14. All these are factual matrix which can be inferred after the evidence is produced by parties. At initial stage when only notices have been issued,
proceeding cannot be quashed on the basis of averments made in this petition and documents annexed, which were never before the trial court.
15. As already held, petitioners have neither filed objections before court below nor have produced any documents before court below, so these
pleadings and documents cannot be considered at this stage.
16. It is not the case of petitioners that there is some legal bar engrafted in any law for trial court to proceed with the matter. Hence, this petition is
dismissed. Stay, if any, is vacated.
