While considering a petition seeking to quash orders requiring payment of Rs. 8000/- each to four children as maintenance under The Jammu and Kashmir Protection of Women From Domestic Violence Act, 2010, the Jammu & Kashmir & Ladakh High Court ruled that a petition under section 482 CrPC cannot challenge such proceedings and rather should be addressed under Article 227 of the Constitution of India.

A Single Judge Bench of Justice Rajnesh Oswal referred to the Judgement of the Full Bench of Madras High Court in Arul Daniel and others vs Suganya [2022 SCC Online Mad 5435] to observe that a petition under section 482 CrPC challenging the proceedings initiated under section 12 of the Protection of Women from Domestic Violence Act is not maintainable.

However, the Bench clarified that a petition under Article 227 of the Constitution of India is maintainable if the proceedings before the Magistrate suffered from a patent lack of jurisdiction.

Advocate M. I. Sherkhan appeared for the Petitioner, whereas Advocate Aftab Malik appeared for the Respondent.

The brief facts of the case were that the Petitioner has filed a petition seeking the quashing of orders issued by both the trial court and the appellate court in response to an application filed under section 12 of The Jammu and Kashmir Protection of Women From Domestic Violence Act, 2010, wherein the trial court directed the Petitioner to pay Rs. 8000/- each to all four children from the date of the application under section 23 of the mentioned Act.

The Petitioner contended that two of their daughters are already of legal age, and during the pendency of the proceedings under the Act of 2010, the third daughter also reached majority status. As a result, the Petitioner argued that the third Respondent (the mother) lacks the legal capacity to represent the interests of the major daughters in the Petition. Therefore, the Petitioner sought for cancellation of both Court orders on these grounds, implying that they should no longer be obligated to provide interim relief to the major daughters through the third Respondent.

After considering the submission, the Bench observed that if the legislature had intended to confer power on the Magistrate as the criminal court, then the separate reference to a criminal court under section 28 of the Act was not required at all.

The Bench further observed that merely because the procedure as provided under the Code has been made applicable to all the proceedings under sections 18, 19, 20, 21 and 22 of the Act of 2010 would not clothe the Magistrate while exercising the jurisdiction under the Act of 2010 as a criminal court.

“The Act of 2010 is in fact the complete Code in itself that not only provides for the grant of various reliefs by the Magistrate while exercising jurisdiction under the Act but also vests the powers upon the Civil. Criminal and Family court to grant the reliefs under the Act”, added the Bench.

The High Court noted that section 19(3) of the Act of 2010 empowers the Magistrate to direct the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

“In terms of sub-section (4) of section 19, the order has been deemed to be an order under Chapter VII of the Code and is required to be dealt with accordingly. It further depicts that the Magistrate exercising jurisdiction under the Act is not exercising the jurisdiction as a criminal court under the Code”, added the Court.

Accordingly, the High Court disposed of the petition by concluding that the plea raised by the petitioner that major daughters are not entitled to maintenance under the Act of 2010 and the mother cannot maintain the petition on behalf of the major children before the trial court, can be raised by the petitioner only before the Magistrate and not in a petition under Article 227 of the Constitution of India.

Cause Title: Khalid Amin Kohli v. Union Territory of J&K and others

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Jammu & Kashmir & Ladakh High CourtJustice Rajnesh OswalSection 482 CrPc

Pankaj Bajpai