Is it proper to invoke S. 482 CrPC for quashing Magistrate’s order in a proceeding under S. 12 r/w S. 23 of Domestic Violence Act on the point of maintainability? Cal HC determines

Calcutta High Court: Bibek Chaudhari, J., considered the question as to whether Section 482 CrPC is applicable in relation to an application under Section 12 of the Protection of Women from Domestic Violence Act.

The following is a summary of High Court’s determination on legal points that were before it for consideration.

 Issue

In a case set in the backdrop of allegations of violence and harassment advanced by the daughter-in-law against her husband and in-laws, the High Court determined the following questions:

(1) Whether Magistrate’s order in a proceeding under Section 12 read with Section 23 of the Protection of Women from Domestic Violence Act, 2005 on the point of maintainability of said proceeding can be quashed under the provisions of Section 482 of the Code of Criminal Procedure?

(2) Whether an appeal under Section 29 of the Domestic Violence Act shall lie against an order passed by the Judicial Magistrate or Metropolitan Magistrate upon an application filed by the respondent(s) challenging maintainability of the application under Section 12 of the said Act?

Determination

After a comprehensive discussion revolving around various provisions of the Domestic Violence Act, inherent powers of High Court and the judicial opinion on the same, the Court concluded that:

(i) Respondent(s) can challenge maintainability of an application under Section 12 of the Domestic Violence Act filed by the aggrieved person before the Court of the Magistrate immediately after appearance in the proceeding by filing appropriate petition.

(ii) The Magistrate shall dispose of such application challenging maintainability of the proceeding under Section 12 after giving the opportunity of being heard to the aggrieved person. An aggrieved party may file an appeal under Section 29 of the Domestic Violence Act against the order passed by the Magistrate before the Sessions Judge.

(iii) Against the order passed by the court of appeal, a revision under Section 397 read with Section 401 CrPC shall lie.

(iv) Alternatively, a respondent may file an application under Section 482 CrPC challenging maintainability of a proceeding under Section 12 of the Act for quashing of the proceedings immediately on receipt of notice before the High Court.

(v) An order upon an application challenging maintainability under Section 12 of the Domestic Violence Act shall not be assailed under Article 227 of the Constitution of India.

While so holding, the High Court differed from the decision of the Single Judge of Madras High Court in P. Pathmanathan v. V. Monica, (2021) 2 CTC 57, which inter alia held that the petition under Section 482 CrPC is not maintainable. The Madras High Court said that the relief under the Domestic Violence Act will be granted by a civil or criminal or family court.

It is also important to note that the High Court held that a proceeding under Section 12 of the Domestic Violence Act is final in nature affecting the rights and/or liabilities of the parties in relation to the question as to whether the aggrieved person is entitled to get relief under Section 18-22 and Section 23(2) of the said Act. [Chaitanya Singhania v. Khushboo Singhania, 2021 SCC OnLine Cal 2602, decided on 27-09-2021]


Advocates before the Court:

For the Petitioners:

Mr. Sabyasachi Banerjee, Adv. Mr. Anirban Dutta, Adv.

Mr. Abhishek Jain, Adv.

For the Respondent:

Sanjoy Bose, Adv.

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