Crl.
Misc.
M-13414 of 2012 -1- In the High Court of Punjab and Haryana at Chandigarh Crl.
Misc.
M-13414 of 2012 Date of Decision: May 06, 2014 Mehkar Singh and another ---Petitioners versus State of Haryana and another ---Respondents Coram: Hon'ble MRS.Justice Rekha Mittal Present: Mr.Rakesh Nehra, Advocate for the petitioners Ms.Loveleen Dhaliwal Singla, Sr.DAG, Haryana for respondent-State.
Mr.S.S.Dinarpur, Advocate for respondent No.2 *** 1.
Whether Reporters of local papers may be allowed to see the judgment?.
2.
To be referred to the Reporter or not?.
3.
Whether the judgment should be reported in the Digest?.
*** REKHA MITTAL, J.
The present petition under Section 482 of the Code of Criminal Procedure (for short “the Code”.) has been preferred seeking quashing of application under Section 12 of the Prevention of Women from Domestic Violence Act, 2005 (for short “the Act”.) titled “Smt.
Garima Sumran versus Anshuman Kaler and others”.
(Annexure P-3) pending in the Court of Chief Judicial Magistrate, Kurukshetra and proceedings emanating therefrom.
Counsel for the petitioners contends that Garima Sumran, respondent No.2 was married with Anshuman Kler son of the petitioners on Saini Paramjit Kaur 2014.05.15 14:41 I attest to the accuracy and integrity of this document Chandigarh Crl.
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M-13414 of 2012 -2- 21.1.2006.
The respondent gave birth to a female child on 12.6.2007 at Muzaffarnagar i.e.in the house of the petitioneRs.The petitioners always treated the respondent as their daughter but they in their old age are being harassed due to litigation initiated by the respondent who earlier registered a false and frivolous FIR No.423 dated 17.8.2007 for offence under Sections 498-A, 406, 323, 506 read with Section 34 of the Indian Penal Code (for short “IPC”.) in police Station City Thanesar, District Kurukshetra against all the family members of the husband.
It is argued that the respondent left the matrimonial home in the year 2007 and lodged proceedings under Section 12 of the Act in the year 2012 with an intent to wreak vengeance and cause harassment to the petitioners and otheRs.Respondent No.2 is working as a teacher and has sufficient means to maintain herself and the minor child.
It is further argued that as the respondent is in employment at Kurukshetra, there is no question of her residing in the alleged shared household in Muzaffarnagar and this fact alone is sufficient to show that the proceedings initiated by the respondent under Section 12 of the Act are nothing but abuse and misuse of process of law thus, liable to be quashed.
Counsel for the respondent, on the contrary, argues that petition under Section 482 of the Code seeking quashing of an application under Section 12 of the Act is not maintainable as these are not criminal proceedings but civil in nature.
Any order passed under the Act can be challenged by way of appeal under Section 29 of the Act before the Court of Sessions.
The petitioneRs.without waiting for the decision by the Court concerned have hurriedly filed the instant petition to stifle proceedings before the trial Court and right of respondent to reside in the shared Saini Paramjit Kaur 2014.05.15 14:41 I attest to the accuracy and integrity of this document Chandigarh Crl.
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M-13414 of 2012 -3- household.
I have heard counsel or the parties and perused the case file.
Chapter IV of the Act provides for obtaining orders/reliefs.
Section 12 under Chapter IV of the Act deals with application to Magistrate seeking one or more reliefs under the Act, that is to say: (i) Right to reside in a shared household (Section 17) (ii) Protection order (Section 18) (iii) Residence orders (Section 19) (iv) Monetary reliefs (Section 20) (v) Custody orders (Section 21) (vi) Compensation orders (Section 22) (vii) Power to grant interim and ex parte orders (Section 23) Section 28 of the Act deals with procedure and a relevant extract therefrom is quoted hereunder:- 28.
Procedure.-(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.”
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Section 29 provides for remedy of appeal to the Court of Sessions within 30 days from the date on which the order made by the Magistrate is served upon aggrieved person or the respondent, as the case may be.
There are only two provisions under the Act which provide for penalty in the form of imprisonment or fine or both and these are under Saini Paramjit Kaur 2014.05.15 14:41 I attest to the accuracy and integrity of this document Chandigarh Crl.
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M-13414 of 2012 -4- Sections 31 and 33 of the Act.
Counsel for the petitioners is fair enough to concede that in proceedings under Section 12 of the Act for claiming any of the aforesaid reliefs, the presence of the respondent(s) therein cannot be procured by coercive means i.e.warrants (bailable or non-bailable).It is also not denied that personal appearance of the respondent(s) is not required during pendency of the proceedings and the respondent can be represented through a duly appointed counsel.
Admittedly, in the present case, no order has been passed against the petitioners which is otherwise amenable to challenge by way of an appeal before the Court of Sessions in view of provisions of Section 29 of the Act.
This apart, the disputed questions of fact in regard to entitlement of the respondent to the claimed relief or otherwise cannot be decided in the instant proceedings.
Keeping in view the cumulative effect of the facts and circumstances discussed hereinbefore, I do not think it to be a fit case wherein intervention in exercise of jurisdiction under Section 482 of the Code is warranted.
As a result, the petition is dismissed without prejudice to the rights of the petitioners to raise all available pleas before the trial court.
(REKHA MITTAL) JUDGE May 06, 2014 PARAMJIT Saini Paramjit Kaur 2014.05.15 14:41 I attest to the accuracy and integrity of this document Chandigarh