Domestic Violence Act proceedings are civil in nature, requiring appropriate procedures distinct from those in criminal cases under Cr.P.C.

JUDGMENT

1. The petitioner has come before this Court with this petition under Section 482 Cr.PC with a prayer to quash the criminal proceedings in CR Case No. 110 (T) of 2021 under Section 12 of the Domestic Violence Act, (D V Act ), 2005 pending before the Court of the learned Judicial Magistrate First Class at Shillong.

2. Heard Mr. K.Ch. Gautam, learned counsel for the petitioner who has submitted that the petitioner and the respondent were married in accordance with their personal law. However, after the marriage, the relationship between the two ran into rough waters and the marriage failed leading to them living separately. The respondent thereafter filed a petition for dissolution of marriage before the Court of the Deputy Commissioner (Judicial), Shillong registered as (Mat) Div. Case No. 45(T) 2018, which case is still pending. Another case has also been filed by the respondent being CR Case No. 330 (S) 2019 pending before the court of the learned Judicial Magistrate First Class, Shillong.

3. The learned counsel has also submitted that the respondent, two years after filing of the said complaint case against the petitioner has approached the court of the Judicial Magistrate First Class, Shillong with an application under Section 12 of the Domestic Violence Act, claiming reliefs, provided under Section 18 , 19, 20 & 23 of the said Act.

4. The learned counsel then submits that there is no substance in the allegation made by the respondent in the said petition under Section 12 and even on merits, the case of the respondent will surely fail as the same was filed without any factual or legal foundation.

5. However, the main ground raised by the petitioner while assailing the impugned proceedings is that the Trial Court has approached the case without any application of mind and has exercised criminal jurisdiction where none is required.

6. In this regard the learned counsel has submitted that proceedings under Section 12 of the Domestic Violence Act are civil in nature and the procedure to be adopted by the court on receipt of an application filed by the aggrieved party is firstly to cause issue of notice upon the respondent. However, the learned Magistrate has instead issued summons upon the petitioner to appear before the court and in course of proceedings, has also issued a bailable warrant of arrest.

7. The learned counsel has submitted that this is contrary to the procedure that is envisaged under the Domestic Violence Act and even if the said application is, according to the court, deemed to be a complaint, the learned Magistrate has failed to take recourse to the provisions of Section 202 Cr.PC to postpone the issue of process against the petitioner, who apparently is residing outside the jurisdiction of the court and as submitted above, has even caused issue of a bailable warrant of arrest against the petitioner on his being absent on the date fixed for the case.

8. This is clearly an abuse of the process of the court as the learned Magistrate has exercised powers without jurisdiction and accordingly, the proceedings is liable to be set aside and quashed by this Court on this ground alone.

9. In support of his case, the learned counsel has cited the following cases:-

(i) State of Haryana v. Bhajan Lal & Ors. (1992) Supp.(1) 335 para 102(7).

(ii) Davindra v. State of UP ; (2009) 7 SCC 495, para 24.

(iii) Pepsi Food Ltd. v. Special Judicial Magistrate ; (1998) 5 SCC 749, para 28.

10. Per contra, Mr. S. Sen, learned counsel for the respondent has submitted that in response to the argument raised by the pe