Jammu & Kashmir High Court
Pritam Singh vs Anupam Sumbria on 29 September, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
82
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CM(M) No. 183/2023
1. Pritam Singh, Age 72 years S/o
Sh. Raghuynath Singh R/o
village Deoli, Tehsil Billawar,
District Kathua.
2. Sarishta Devi, Age 67 years
W/o Shri Pritam Singh, R/o
Village Deoli, Tehsil Billawar,
District Kathua.
...Appellant(s)/Petitioner(s)
Through: Mr. Rajesh Bhushan, Advocate
Vs.
1. Anupam Sumbria, D/o Late Krishan
Singh W/o Sh. Shiv Parshad Singh,
R/o Village Deoli, Tehsil Billawar,
District Kathua at present Amara
Khoon, Tehsil Majalta, District
Udhampur. ..... Respondent(s)
2. Shiv Parshad Singh S/o Sh. Pritam
Singh, R/o Village Deoli, Tehsil
Billawar, District Kathua.
..... Proforma respondent.
Through:
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT (ORAL)
29.09.2023
01. Through the medium of this petition, the petitioners have challenged the application filed by respondent No. 1 against them and proforma respondent No. 2 under Section 12 of the J&K, Protection of Women from 2 CM(M) NO. 183/2023 Domestic Violence Act, 2010 (hereinafter to be referred as "the DV Act"), which is stated to be pending before the Court of learned Judicial Magistrate 1st Class, Majalta. Challenge has also been thrown to order dated 12.07.2023, whereby the learned Magistrate has issued notice to the petitioners and proforma respondent No. 2.
02. As per the case of the petitioners, they happen to be the parents-in- laws of respondent No. 1, whereas, proforma respondent No. 2 happens to be the husband of respondent No. 1. According to the petitioners, respondent No. 1 is in habit of filing false and frivolous complaints and previously also, she had filed a false and frivolous complaint against the petitioners and proforma respondent No. 2 before the Police Station, Women Cell, Jammu. It has been submitted that the marriage between respondent No. 1 and respondent No. 2 was solemnized on 13.11.2010 but relations between them never remained cordial. It has been submitted that respondent No. 1 wanted respondent No. 2 to construct a separate house at village Khoon, to which he did not accede. It has been further submitted that when the differences between respondent No. 1 and respondent No. 2 could not be reconciled, respondent No. 2 filed a petition under Section 13 of the Hindu Marriage Act before the Court of District Judge, Kathua for dissolution of the marriage. The said petition was filed on 10.08.2011, wherein respondent No. 1 filed her reply on 06.08.2012. In the said reply, respondent No. 1 had admitted that she is residing in Village, Khoon and not with the petitioners. On this ground, it has been submitted that the allegations made in the impugned application under Section 12 of the DV Act are absolutely misconceived and frivolous. 3 CM(M) NO. 183/2023
03. It has been further submitted that respondent No. 1 in her pleadings before the District Judge, Kathua has also admitted that she is getting monthly salary of Rs. 65,000/- and despite this she is claiming maintenance from respondent No. 2 by way of the impugned application under Section 12 of the DV Act. It is contended that the impugned application filed by respondent No. 1 is absolutely misconceived and an abuse of process of law as no case is made out against the petitioners.
04. I have heard learned counsel for the petitioner and perused the material on record.
05. The petitioners in fact are aggrieved of the impugned application filed by respondent No. 1 under Section 12 of the DV Act against them as also order dated 12.07.2023 passed by the learned trial Magistrate on the said application, whereby notices have been issued against the petitioners.
06. So far as proceedings under Section 12 of the DV Act are concerned, the same cannot be equated with lodging of a criminal complaint or initiation of prosecution. This aspect of the matter has been considered by this Court in case of Altaf Ahmad Zargar and Ors. vs. Mst. Sana and Anr. passed in CRM(M) No. 386/2021, decided on 02.09.2022. In the said case, this Court has, while relying upon the ratio laid down by the Supreme Court in the case of Kamatch vs. Lakshmi Naryanan, 2022, SCC Online SC 446, observed as under:-
"10) The petitioners, in effect, are aggrieved of the impugned petition filed by respondent No.1 against them and the order dated 25.10.2021 passed by the learned trial Magistrate on the said petition. So far as the proceedings under Section 12 4 CM(M) NO. 183/2023 of the DV Act are concerned, the same cannot be equated with lodging of a criminal complaint or initiation of prosecution. So, the trial Magistrate, after obtaining the 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 learned Magistrate would be well within his jurisdiction to cancel the interim order of monetary compensation if he, upon going through the response of the husband and his relatives, finds that they have been unnecessarily roped in or that no case for grant of interim monetary compensation is made out. Since the proceedings under Section 12 of the DV 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"
07. Thus, from the aforesaid analysis of law on the subject, it is clear that a Magistrate if, after receiving the version of the husband or his relatives in a proceeding under Section 12 of the DV Act, comes to a conclusion that no case for proceeding against them is made out, he can drop the proceedings and he can even re-call his order of interim monetary compensation granted in favour of the aggrieved person.
08. In the instant case, it is not clear whether the petitioners have filed any reply to the impugned application before the learned trial Magistrate. If they have not done so, they are at liberty to file such reply raising all the pleas in it. The petitioners are also at liberty to file an application before the learned Magistrate for dropping of the proceedings against them. As already stated, it will be well within the jurisdiction of the learned Magistrate to drop proceeding against the petitioners or any of them, if he finds that the petitioners have been unnecessarily roped in.
09. In view of the above, this petition is disposed of at the threshold with a liberty to the petitioners to file their reply to the application under Section 5 CM(M) NO. 183/2023 12 of DV Act raising all the available pleas before the learned trial Magistrate. They shall also be at liberty to file an application for dropping of the proceedings against them and in case, the same is done by the petitioners, the learned Magistrate shall, after hearing the parties, pass appropriate orders in accordance with law expeditiously, preferably within a period of one month from the date reply/application is filed by the petitioners before the learned Magistrate.
10. A copy of this order be sent to the learned trial Magistrate.
(SANJAY DHAR) JUDGE Jammu 29.09.2023 Karam Chand/Secy.
Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No.