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Criminal proceedings and actions under PWDV Act are distinct remedies, not overlapping: HC

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Srinagar: In a domestic violence case, the J&K High Court Monday ruled that the criminal proceedings and the actions under Protection of Women from Domestic Violence Act are two distinct remedies available to a wife subjected to cruelty by her husband.

Justice Sanjay Dhar who heard the matter said that the purpose of lodging an 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, he said.

 The bench observed that the rationale behind this Act is to provide relief relating to accommodation in favor of the wife and to prevent the husband from inflicting the acts of domestic violence against her adding “the two remedies cover different fields and do not overlap each other”.

The ruling came in a petition by one Ali Mohammad Reshi who had challenged a 2019 FIR against him for offence under Section 498-A RPC (Husband or relative of husband of a woman subjecting her to cruelty). The FIR was registered with Police Station, Pantha Chowk. 

Reshi’s wife had filed a complaint before the Court of Additional Special Mobile Magistrate, Pantha Chowk. She alleged that Reshi tortured her which left her in deep shock. 

She alleged that Reshi, her husband, kept on torturing her for not bringing double door fridge, aqua guard purifier, Scorpio vehicle, a house and cash of Rs.80,000 for his hair plantation. 

The lady’s complaint was forwarded by the Magistrate to SHO, P/S, Pantha Chowk, with a direction to investigate and submit the report. On the basis of this direction, an FIR was registered.

The petitioner Reshi challenged the FIR contending that he has divorced the complainant lady. The divorce deed dated 10.01.2019 was duly dispatched to her and also circulated in a newspaper, he stated. 

He further averred that the complainant lady had also filed an application under the provisions of the Protection of Women from Domestic Violence Act which was also contested with objections thereto. 

He contended that the Magistrate had not applied his mind before passing the order directing investigation. There is no scope for submission of report once an order for investigation is made, he said.

The court after hearing the parties observed that once a complaint of domestic violence nature was presented before the Magistrate, two courses were open to him. 

He can direct the police to investigate the case by taking resort to powers vested in him under Section 156(3) of the Cr. P. C. He (Magistrate) and can even record the preliminary evidence of the complainant and thereafter take cognizance of the offences and issue process against the accused. 

“Discretion as to which course is to be adopted by a Magistrate on receiving a complaint disclosing commission of cognizance offences, lies entirely with the Magistrate”, Justice Dhar said. 

So far as the contention of the counsel for the petitioner that the allegations made in the impugned FIR and those made in the proceedings under Protection of Women from Domestic Violence Act being similar in nature, as such, the criminal proceedings deserve to be quashed. It is without any merit, he said further. 

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