Jammu & Kashmir
‘Cock and bull story’: JK HC refuses to quash proceedings in domestic-violence case
Srinagar: The Jammu and Kashmir High Court has refused to quash the proceedings in a domestic violence case involving allegations of live-in partnership.
The petitioners had prayed the before High Court for quashing of proceedings under protection of Women Against Domestic Violence, Act 2010 which are impending before the Special Magistrate’s Court at Pantha Chowk.
It was argued by the petitioners’ lawyer that the allegations of the complaint were a “cock and bull story and fabricated to tarnish the reputation of the petitioners” and tantamount to the abuse of the process of Court.
Further, the petitioners’ lawyer drew distinction between GoI and State legislation on domestic violence of 2005 and 2010 respectively. It was argued by Petitioners’ lawyer that unlike the GoI Law which covers live-in relationships which according to law are “in the nature of marriage”, the erstwhile State Law did not include such an expression and therefore the respondent-complainant could be not be said to be aggrieved or to have had domestic relationship with the petitioners under the State Law of 2010.
Controverting these submissions of the petitioner’s lawyer, it was argued by the respondent’s lawyers that there had been cohabitation between the respondent and one of the petitioners as husband and wife for significant time and there was a presumption of marriage under the law laid down by Supreme Court of India. Further, it was argued that the High Court could not conduct any factual enquiry for determination of nature and character of relationship while exercising its powers under Section 482, CrPC.
Upon appreciation of submissions of lawyers, the High Court in its order observed: “This court is not oblivious to the fact that inherent power is being invoked by the petitioners while throwing challenge to the maintainability of the complaint, proceedings initiated thereon as also the impugned order. The inherent power vested in this court under section 482 is either not revisional or appellate power and the jurisdiction has to be exercised sparingly, carefully and with care and caution as being settled position of law.”
“Thus this court would refrain from expressing any opinion as to the nature and character of the relationship between the complainant respondent herein and the petitioner 1.”
“The said issue of nature and character of the relationship between the petitioner 1 and respondent complainant herein may not appropriately be dealt with in the instant proceeding by this court as the determination of such an issue goes to the root of the case and need to be appropriately dealt with and decided by the Magistrate in the first instance as a preliminary issue after providing an adequate opportunity to the parties to prove their respective case.”
Accordingly, the High Court did not allow the plea of quashing of domestic violence complaint and remanded the matter to the Magistrate’s Court at Pantha Chowk for the preliminary determination of nature of domestic relationship between the petitioner 1 and respondent, without expressing opinion on the merits of the matter.
The respodents were represented by Advocate N A Ronga, and the respondent was advocates Ashish Deep Verma and Mir Adnan Zahoor.