JUDGMENT AND ORDER :

1. Heard Mrs. K. Deka, learned counsel for the petitioners. Also heard Mr. D.P. Borah, learned counsel representing the respondents.

2. This petition under Section 482 Cr.P.C. has been filed praying for setting aside the orders issuing process and the proceeding in Misc. Case No. 47/2016 under Section 12 of the Domestic Violence Act, 2005 pending in the Court of Sub-Divisional Judicial Magistrate (S) No. 1, Kamrup (M), Guwahati.

3. The respondent No. 2 herein is the wife of petitioner No. 1. The respondent No. 2 filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter, for short, the Domestic Violence Act) alleging domestic violence and seeking relief of residence order under Section 19, monetary relief under section 20, compensation order under section 22 as well as interim relief under section 23(2) of the Domestic Violence Act. On receipt of the application the learned Judicial Magistrate by order dated 07.06.2016 issued notice to the respondents/petitioners and also called for a domestic incident report from the concerned officer fixing the next date on 21.06.2016. On the next date fixed i.e. on 21.06.2016 the present petitioner entered appearance through counsel and sought for time to file written statement and the domestic incident report was also received on that date. The next date was fixed for filing written statement by the present petitioner on his prayer. However, instead of filing written statement the respondent/petitioner has filed the present petition under section 482 Cr.P.C. praying for setting aside the abovementioned orders passed by the learned Magistrate and also for quashing the proceeding itself.

4. Learned counsel for the petitioners, Mrs. K. Deka, submits that the impugned orders passed by the learned Magistrate were bad for not considering the domestic incident report. Further contention of the learned counsel is that there were other proceedings pending including the divorce suit and criminal cases, as such the present proceeding was instituted only to harass the petitioners and therefore prayed for quashing the proceeding.

5. Mr. D. P. Borah, learned counsel representing the respondent No. 2, referring to section 12 of the Domestic Violence Act and relying on a decision of this Court in the case Abhiram Gogoi vs. Rashmi Rekha Gogoi, 2011 (3) GLT 288, submits that for issuing process in a proceeding under Section 12 of the Domestic Violence Act, consideration of the domestic incident report is not a sine qua non. If a domestic incident report is before the Court, in that case the Magistrate is obliged to consider the domestic incident report before passing any order on such application. This Court in Abhiram Gogoi (supra) observed as under:-

“26. The question as to whether a Magistrate can pass an order, under Section 12, without a domestic incident report having been received from a Protection Officer can be well answered by referring to Section 9(1)(b) inasmuch as Section 9(1)(b) makes it clear that it is the duty of the Protection Officer to make a domestic incident report to the Magistrate upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area. This shows that a domestic incident report comes into existence only when a complaint of domestic violence is received by a Protection Officer. If no complaint of domestic violence is received by a Protection Officer, the question of his submitting a domestic incident report does not arise. Since the scheme of the said Act, nowhere, imposes an obligation on an aggrieved person to necessarily approach a Protection Officer before making an application to a Magistrate for a maintenance order, it cannot be read into the scheme of the said Act that an application by an aggrieved p

Click Here to Read the rest of this document