1. Through the medium of instant petition filed under Section 561-A CRPC, petitioners inter alia seek quashing of complaint titled
“Gul Amir and another vs Amir Khan and others†under Section 12(1) of J&K Protection of Women from Domestic Violence Act, 2010, pending
before the court of learned JMIC, Mendhar. Petitioners also seek quashing of order dated 12.03.2018 whereby the court below took cognizance in the
matter against the petitioners herein on the following grounds:
i) That the impugned complaint is bad both on facts and law and hence deserves to be set aside.
ii) That the impugned complaint suffers from an inherent defect and thus deserves out-rightly dismissal.
iii) That the impugned complaint is baseless as the petitioner No.1 and respondent No.1 never lived together in shared household to constitute domestic
violence, besides respondent No.2 is not the child of petitioner No.1 as respondent No.1 was pregnant prior to marriage and petitioner No.1 had its
knowledge only after marriage.
iv) That there was no live-in-relationship between the petitioner No.1 and respondent No.1 which is a blatant lie projected by respondent No.1 in her
complaint.
v) That the impugned complaint is not in accordance with the procedure prescribed under the J&K Protection of Women from Domestic Violence
Act, 2010 as it is not in accordance with the format prescribed in the Act.
vi) That the impugned complaint is not proceeded by domestic incident report which is essential for lodging a complaint under the Act, hence required
to be quashed. Besides it is a mandatory provision and has to adhere to.
vii) That the impugned complaint is vague and does not make the allegation of violence as to where they were living together, how the marriage took
place, who all committed acts of violence, why there was no police report or complaint prior to coming to court under J&K Protection of Women from
Domestic Violence Act, 2010. Hence the entire complaint is a cock and bull story fabricated to tarnish the reputation of the petitioner’s family for
extraneous consideration.
viii) That the court below cannot take cognizance and issue process against the petitioners in such a complaint without verifying the facts and
circumstances of the case and not to proceed against all the family members of the petitioner No.1 merely because all the family members are related
to each other they cannot be arrayed as respondents, nor does Magistrate gets authority over each and every relative of the husband without going
into the fact whether a domestic relationship or shared household was there between the aggrieved person and the respondent.
ix) That the Magistrate had also to verify whether the sister (petitioner No.5) who is married and lives away from his shared household cannot be
proceeded unnecessarily. Hence, the impugned order of cognizance by the court below against all the petitioners is without jurisdiction and hence
deserves to be quashed.
2. In the petition, it has been stated that petitioner No.1 is studying Civil Engineering in a Polytechnic College near Mamoon Cantt. National Highway
Pathankot, the Punjab State Board of Technical Education & Industrial Training, Chandigarh and is in his last semester. It is further stated that
petitioner No.1 got married to respondent No.1 on 20.11.2017 with great pomp and show according to Muslim customs and rituals. At the time of
marriage Rs.7.00 lacs was fixed as Haq Mehar, out of which, Rs.2.00 lacs was fixed as prompt dower and was paid immediately to the bride and
Rs.5.00 lacs as deferred dower. After the marriage, petitioner No.1 and respondent No.1 lived together in the house of petitioner No.1 in Poonch but
marriage was not consummated and petitioner No.1 returned to Punjab after three days for his exams to start on 24.11.2017 and during this time
petitioners came to know about the pregnancy of respondent No.1, who was 6 months pregnant at the time of the marriage, the fact which was kept
as a guarded secret and was concealed by the said wife of petitioner No.1 from everyone. The petitioners also came to know of the fact that
respondent No.1 had an affair with one Amjad Khan S/o Iqbal Khan and heaven fell upon the petitioner No.1 when this fact was revealed upon him;
that neither the petitioner had any affair with his wife prior to their marriage nor he had any physical relations with her and there was no pressure of
marriage from any quarter upon both petitioner No.1 and respondent No.1 and the marriage took place with the consent of family members of both
the families as well as the consent of both bride and the bridegroom; that petitioner No.1 refused to come back to his home town when he came to
know about the cheating done by his wife with him and his family, and he wanted to divorce her which triggered unrest with respondent No.1 and
after threatening the whole family she left the house of petitioner No.1 after living there for some time and strangely enough the complainant Mohd.
Shafait S/o Mohd. Rafiq R/o Village Daki, Tehsil Mendhar District Poonch who is nobody but a distant relative of respondent No.1 filed a false and
frivolous FIR No.03/2018 dated 06.01.2018 against many including the petitioners herein; that Mohd. Shafait who is the complainant is remotely
connected to the family of the petitioner and respondent No.1 and with mala fide intentions got registered a false FIR against all the members of the
Panchayat also just to dislodge them and to tarnish their reputation; that the petitioners challenged the said FIR before this Court in 561-A No.20/2018
and this Court vide order dated 19.01.2018 directed that petitioners shall be released on bail and they shall cooperate in investigation; that vide
orderdated 16.01.2018 respondent No.1 was produced before the court below in connection with the aforementioned FIR and her statement under
Section 164-A CrPC was recorded wherein she has herself admitted that she was pregnant prior to Nikah and she has concealed this fact from
everyone and no one has forcibly taken her and the complaint made by her distant uncle Mohd. Shafait is baseless and false. Respondent No.1 has
been living with her parents ever since; that in order to harass the petitioners, the respondent No.1 filed a complaint under Section 12(1) of J&K
Protection of Women from Domestic Violence Act, 2010 titled Gul Iram & Anr. vs Amir Khan & Ors. before the Court of learned JMIC, Mendhar
District Poonch and in the said complaint the court below has issued the order of cognizance dated 12.03.2018 which is patently illegal, arbitrary and in
violation of the J&K Protection of Women from Domestic Violence Act, 2010.
3. Heard learned counsel for the parties and perused the case file.
4. From bare perusal of petition under section 12 of D.V. Act, it is evident that respondent has filed this petition before court below against the
petitioners herein, with allegation that the petitioner no.1 and respondent no.l remained in live-in relationship with each other and this relation may
turned into sexual cohabitation with each other and due to this cohabitation the petitioner no.1 conceived pregnancy and finally during the month of
November, 2017 petitioner no.1 and respondent no.1 entered into Nikahnama and consequently they started living as husband and wife and out of said
relations petitioner no.2 took birth who is presently 43 days old and is milk sucking baby and living with petitioner no.1 and rest of the respondents are
relative of respondent No.1 and are relatives of petitioner No.1 through in laws relations; that shortly after the marriage all the respondents started
taunting, harassing beating and abusing the petitioner No.1 with filthy language for bringing less dowry and in connection with bringing less dowry also
threatened petitioner No.1 of dire consequences of murder. More so, the respondents also used abusive language towards the family members of the
petitioner intentionally and deliberately with the intention to humiliate the petitioner and her parent/brothers in society; that the respondents also
threatening the petitioner No.1 that they shall damage and set ablaze the dowry/gift items of petitioner and also openly threatening for disposing of all
apparel jewelry and property of petitioner No.1; that the respondent No.1 being person of means having sufficient moveable/immoveable property is
not providing any sort of maintenance to the petitioner No.1 and her minor child and the petitioner No.1 due to poverty is not in a position to maintain
herself and her minor child, and the petitioner requires reasonable residence/maintenance for meeting out the daily needs for herself and her minor
child and the daily need of petitioners exceeds Rs.2000/- keeping in view the rising price index of present inflationary time whereas the respondent
No.1 is a person of means having sufficient moveable and immovable property and his monthly income from all sources is not less than Rs. 02 lac as
respondent No.1 is also a Driver by profession; that if the maintenance as prayed herein is not granted in favour of aggrieved petitioner No.1 and her
minor child then in that eventuality the petitioner shall die due to starvation; that the petitioner has requested the respondent No.1 to pay maintenance
to her and her minor child and rest of respondents who are relatives of respondent No.1 are also requested not to raise aforesaid type of heinous
threats towards petitioner No.1 and her family members but the respondents turned deaf ear to accede to the request of petitioner and continuously
committing aforesaid acts of domestic violence; that the respondents are time and again repeating the said acts of domestic violence, and these acts of
respondents resulted in mental pain and sufferings to the petitioner No.1 as on aiding and abetting of each other the respondents are taunting and
harassing the petitioner by beating, thrashing her on many occasion and due to said joint act of respondents the petitioner sought the compensation
from the loss thus suffered from the act of torture etc of respondents which resulted to aggrieved petitioner No.1 moreover, if the personal bond with
sureties is not obtained from the respondents for preventing/repeating the said act of domestic violence then in that eventuality petitioner No.1 may
suffer severest mental torture etc. which results irreparable loss to the life/reputation of the aggrieved petitioner No.1 and her family members.
5. From bare perusal of petition filed under Section 12(1) of D.V. Act, it is evident that there is nothing substantial against petitioner Nos.2 to 5 herein;
all the allegations have been leveled against petitioner no.1, the husband. Therefore, the petition under Section 12(1) of D.V. Act pending before JMIC
Mendhar, so far as it pertains to the petitioner nos.2 to 5 herein, is quashed. Consequently, the instant petition in so far as it pertains to petitioner Nos.2
to 5 herein is allowed.
6. The argument of counsel for petitioners that there was domestic relationship between respondent No.1 and her husband (petitioner no.1); that there
is no prima facie case for launching the proceeding under D.V. Act, are not tenable, because these are facts to be decided during trial. Another
argument advanced is that there was no report of protection officer as per section of Act, so trial court has taken cognizance illegally.
7. I have considered this aspect of the matter. 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. It is complete code which includes
jurisdiction of JMIC in dealing with the petition under section 12 of D.V. Act. 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 section 12 of Act. Section 12 of act reads as under:-
“12. 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 subsection 1 within a period of sixty days from the date of its first
hearing.â€
8. Chapter IV of the D.V. Act pertains to the procedure, which has to be followed by the Magistrate to grant relief to an aggrieved person. Under
Section 12 of the D.V. 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 D.V. 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 D.V. 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 upon 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.
9. On a conjoint reading of Sections 9 and 12 of the D.V. 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 receives a complaint on domestic
violence, then he has 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 D.V. 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 D.V.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 section of Act; so receipt of domestic incident report
is not a pre-requisite for issuing a 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, 19, 20, 21 or 22 of the D.V.Act.
10. 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 provider. Section 12(1) does not directly stipulate that a report 'shall' be called for, before
any relief can be granted.
11. So, the arguments of counsel for the petitioner that report of protection officer is sine qua non for issuing process in petition under section 12 of the
Act, is not maintainable.
12. In view of what has been discussed above, this petition is disposed of thereby quashing the complaint/petition pending before JMIC Mendhar so
far as it pertains to petitioner Nos.2 to 5 herein only. With regard to petitioner no.1 herein, the court below shall proceed in accordance with law. Stay,
if any, is vacated.
