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The court noted that the Magistrate, after receiving a response from the husband and his relatives, has the authority to revoke interim orders or dismiss the case if the respondents were unnecessarily implicated or if no valid case is established
The Jammu & Kashmir and Ladakh High Court has clarified that proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act), are not strictly criminal in nature. Therefore, Magistrates are empowered to revoke interim orders and drop proceedings if no valid case is made out.
The court, presided over by Justice Sanjay Dhar, observed : “The proceedings under Section 12 of the D.V.Act are not in strict sense criminal in nature, as such, bar to revoke the order by the Magistrate is not attracted in these proceedings,” while directing the petitioners to file their response and any application for dropping the proceedings before the Magistrate.
This ruling came in response to a petition filed by Dr. Tanveer Hassan Khan and others, challenging a domestic violence complaint under Section 12 of the D.V. Act, which was pending before the Judicial Magistrate, Kupwara. Dr. Khan married the Respondent, Andleeba Rehman, in May 2022, and the couple had a child. According to Dr. Khan, Rehman began harassing him and his elderly parents, demanding he separate from them. When he resisted, she left the matrimonial home and returned to her parents. Dr. Khan further alleged that Rehman resumed contact with her ex-husband, which worsened their relationship. He further argued that Rehman’s domestic violence complaint was filed to harass him, particularly since she neither resided permanently nor temporarily within the jurisdiction of the Kupwara court. He also contended that the allegations were vague and lacked sufficient details to support the case.
Rehman, in her defence, claimed she and her child were subjected to harassment by Dr. Khan, which forced her to file the petition in Kupwara, where she asserted temporary residence. She also accused Dr. Khan of using abusive language, which led to the registration of an FIR under Section 498A of the Indian Penal Code.
The court observed that the primary argument raised by the petitioners to challenge the respondent’s application was the absence of specific allegations against them. Another point raised by the petitioners was that Respondent No.1 had never resided within the territorial jurisdiction of the trial Magistrate, making it improper for her to file the petition in that court.
Upon examining the petition, it was noted that the respondents listed their current address as Khumriyal, Kupwara. The petitioners contested this, arguing that Respondent No.1 had never lived at this address and does not reside there presently. Based on this, the petitioners contended that the Magistrate lacked jurisdiction to hear the petition.
The court, in response, referred to Clause (a) of Subsection (1) of Section 27 of the D.V. Act, which states that a Magistrate within the local limits where the aggrieved person resides, either permanently or temporarily, has the authority to grant protection orders. The court emphasised that the issue of whether the respondents were residing within the jurisdiction can only be determined after trial. Since the respondents had indicated temporary residence in Kupwara, the Magistrate was justified in accepting the petition. “If the assertion of the respondents about their residence at Kupwara is being disputed by the petitioners, this issue can be decided only after trial of the case and not in present proceedings,” stated the court.
Addressing the other grounds raised by the petitioners, the court clarified that proceedings under Section 12 of the D.V. Act are not equivalent to criminal complaints or prosecutions. Therefore, a Magistrate, after receiving responses from the husband and his relatives, has the discretion to revoke any interim orders or even drop the proceedings if no case is found against them. If the Magistrate concludes that the husband and his family were wrongly implicated or no valid case for interim orders is made out, the proceedings can be cancelled, emphasising that the bar on revoking orders does not apply. The court supported this view by citing the Supreme Court’s decision in Kamatchi v. Lakshmi Narayanan (2022).
In the present case, the court pointed out that the petitioners approached the High Court without first filing their response to the petition in the trial court. The court noted that “the petitioners have rushed to this Court without even filing their response to the petition filed by the respondents. It was open to the petitioners to file response to the petition or to file application for dropping of the proceedings before the learned trial Magistrate, but instead of doing so they have invoked the jurisdiction of this Court under Section 482 Cr.P.C.”
Therefore, without delving into the merits of the case, the court directed the petitioners to file their response or an application to drop the proceedings before the trial Magistrate.
The Magistrate, after hearing both parties, was instructed to pass appropriate orders within one month from the date of filing.
Cause Title: Dr. Tanveer Hassan Khan & Ors vs. Andleeba Rehman & Ors [CRM(M) No.125/2023]
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