Srinagar, May 9: High Court of J&K and Ladakh has ruled that criminal proceedings and the action under “Protection of Women from Domestic Violence Act” are two distinct remedies available to a wife who is subjected to cruelty by her husband.
Dismissing a plea by one A M Reshi seeking to quash FIR under Section 498-A RPC registered against him with Police Station Pantha Chowk here in 2019, a bench of Justice Sanjay Dhar said: “While the purpose of lodging the FIR and setting the criminal proceedings into motion is to punish the erring husband for his acts of cruelty in connection with demand of dowry, the purpose of proceedings under Protection of Women from Domestic Violence Act is to make provision for monetary relief and relief relating to accommodation in favour of the wife as also to prevent the husband from inflicting the acts of domestic violence against her”.
Pointing out that the contention of the counsel for the petitioner was without any merit and deserved to be rejected, the court said: “The two remedies cover different fields and do not overlap each other”.
In her compliant before the Court of Additional Special Mobile Magistrate, Pantha Chowk, the woman had alleged that she was tortured by her husband for not bringing “double door fridge, aqua guard purifier, Scorpio vehicle, a house and cash of Rs 80,000 for his hair plantation”.
The husband of the woman had challenged the FIR by contending that he had divorced her on 10 January 2019 by virtue of divorce deed.
He contended that the order passed by the Magistrate directing the police to investigate the matter was not in accordance with the law nor the action of the police in registering the FIR was legally tenable as prior to filing of the complaint before the Magistrate, the woman did not approach the police station concerned.
“So far as the contents of the FIR, which was based upon the complaint made by the woman before the Magistrate were concerned, the same clearly disclosed commission of offence under Section 498-A RPC,” Court said.
While the Court underscored that the complainant had levelled serious allegations of demands of dowry and acts of cruelty inflicted by the petitioner upon her in connection with the demand of dowry, it said the particulars of the demand and the particulars of acts of cruelty have been clearly delineated in the complaint.
“Thus, the complaint does disclose commission of cognizable offence against the petitioner”.
The court observed that once the complaint was presented before the Magistrate, two courses were open to him. “Either he could direct the police to investigate the case by taking resort to powers vested in him under Section 156(3) of the Cr PC or in the alternative he could record the preliminary evidence of the complainant and thereafter take cognizance of the offences and issue process against the accused”.
While the court pointed out that discretion as to which course was to be adopted by a Magistrate on receiving a complaint disclosing commission of cognizance offences, lies entirely with the Magistrate, it said: “This Court, in exercise of its jurisdiction under Section 482 of the Cr. P. C, cannot go into this aspect of the matter.”
“Therefore, the contention of counsel for the petitioner that the Magistrate should have adopted the course provided under Section 202 of the Cr. P. C instead of directing investigation of the case, is without any merit,” Court said.
With regard to the contention that the allegations made in the FIR and those made in the proceedings under Protection of Women from Domestic Violence Act being similar in nature and, as such, the criminal proceedings deserved to be quashed, the court said the same was without any merit.
The criminal proceedings and the proceedings under Protection of Women from Domestic Violence Act, the court said, are two distinct remedies available to a wife who has been subjected to cruelty by her husband.