Indian Kanoon - Search engine for Indian Law

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 the complaint under Sections 12 and 23 of J&K Protection of Women from Domestic Violence Act, titled "Vandana 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.

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;

8. 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 the 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 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:-

10. On a conjoint reading of Sections 9 and 12 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, 19, 20, 21 or 22 of the DV 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 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 section 12 of Act, is not maintainable.