Bhanwar Singh And Another v. Sudesh
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The present petition has been filed under Section 407 read with Section 482 Cr.P.C. seeking transfer of petition under Section 12 of the Protection of Women from Domestic Violence Act titled as 'Sudesh Vs. Bhanwsar Singh and another' bearing No. DV ACT/54/2019 (Annexure P-1), presently pending in the Court of learned Civil Judge (SD)-cum-Additional Chief Judicial Magistrate, Jhajjar, to the competent Court situated at Sonipat as petitioner No.1 is suffering from medical issue of Prolapsed Intervertebral Disc (Annexure P-2), whereas, petitioner No.2 is a 75 years old aged lady and also both the parties are residing in the same house at District Sonipat, Haryana. 2.
The brief facts of the case are that the marriage of petitioner No.1 and the respondent was solemnized on 08.06.2004 according to Hindu Rites and ceremonies at Village Majra, Tehsil Beri, District Jhajjar and thereafter, they were cohabiting together as husband and wife and out of this wedlock, one
-2female child was born. The marriage between petitioner No.1 and the respondent was conducted in a simple manner with no extravagant expenses given that it was the second marriage for both parties. It is further alleged that t % -$ ,*
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-34.
Having heard the learned counsel for the parties and after perusing the record with their able assistance, this Court is of the considered view that a petition under Section 407 read with Section 482 of the Cr.P.C. is not maintainable qua proceedings arising out of Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter 'the Act') as concluded by a Co-ordinate bench in 'Jaspal Kaur alias Pinki and others v. State of Punjab and others' in CRM-M-19553-2023 decided on 24.04.2023, after dealing with the issue in extenso.
5.
A two Judge Bench of Hon'ble Supreme Court in 'Kamatchi v. Lakshmi Narayanan' 2022 SCC Online SC 446, speaking through Justice U. U. Lalit, has opined that the ratio of law laid down in 'Adalat Prasad v. Rooplal Jindal & Others' (2004) 7 SCC 338 would not be applicable to proceedings instituted under Section 12 read with Section 13 of the Act. The relevant observations are reproduced as under:
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A perusal of the aforesaid observations makes it evident that scope of notice under Section 12 read with Section 13 of the Act is to elicit a reply from the respondent in order to pass an appropriate order. Thus, application under Section 12 of the Act cannot be treated as a complaint for initiation of prosecution. Similarly, a notice under Section 13 of the Act is not akin to taking cognizance of an offence or issuance of process by the jurisdictional Magistrate. Further, a two Judge Bench of Hon'ble Supreme Court in Kunappareddy Vs. Kunappareddy Swarna Kumari (2016) 11 SCC 774 has authoritatively held that proceedings under Section 12 of the Act are civil in nature and opined as follows:
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Since there was an apparent cleavage in the opinion between different benches with regard to nature of proceedings under Section 12 of the Act and jurisdiction of High Court under Section 482 Cr.P.C vis a vis Article 227 of the Constitution, the matter was referred to a Full Bench of Madras High
-5Court in 'Arul Daniel and others Vs. Suganya' 2022 SCC Online Mad 5435. After analysing various judicial precedents including judgments rendered by the Hon'ble Supreme Court in Kamatchi Vs. Lakshmi Narayanan(supra) and 'Kunapareddy Vs. Kunapareddy Swarna Kumari and Anr.' (2016) 11 SCC 774, the Full Bench answered the reference to the following effect: 89 '7
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In view of the above-mentioned judgments, a Co-ordinate bench of this Court in Jaspal Kaur(supra), culled out the following principles: 89%
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Learned counsel for the petitioners, on being confronted with settled law on the issue at hand, could not controvert that the present petition under Section 407 read with 482 Cr.P.C. challenging the proceedings emanating from the provisions of Section 12 of the Act is not maintainable. Accordingly, the present petition is dismissed.
10.
However the petitioners would be at liberty to invoke alternative appropriate remedy on the same cause of action in accordance with law for redressal of grievances raised in the present petition.
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