In a significant ruling, the Jammu Kashmir & Ladakh High Court has emphasized that proceedings under the Protection of Women from Domestic Violence Act (DV Act) are essentially civil in nature, and magistrates should not resort to coercive measures like arrest warrants to secure the presence of respondents.
The judgment was delivered by Justice Sanjay Dhar in the case of Kamran Khan and Ors. vs. Bilkees Khanam (CM(M) No.245/2024).
Background:
The case revolves around a matrimonial dispute between Kamran Khan (petitioner No. 1) and Bilkees Khanam (respondent), who were married in 2021. The petitioners, including Kamran Khan and others, challenged a petition filed by Bilkees Khanam under Section 12 of the DV Act, as well as the order issuing process against them by the Judicial Magistrate (1st Class), Baramulla.
The petitioners alleged that Bilkees Khanam had filed a false FIR against them, which was stayed by the High Court on July 1, 2024. They contended that the petition under the DV Act was based on false allegations and that the trial court had issued summons and arrest warrants without proper consideration.
Key Legal Issues and Court’s Decision:
1. Nature of DV Act Proceedings:
The court reaffirmed that proceedings under Section 12 of the DV Act are civil, not criminal. Justice Dhar observed, “It is a settled law that the proceedings under Section 12 of the DV Act are not criminal in nature but are essentially of civil nature in which a Magistrate is not expected to procure the presence of the respondent(s) through coercive processes like warrants of arrest.”
2. Issuance of Arrest Warrants:
The court held that issuing arrest warrants in DV Act cases is improper. Justice Dhar stated, “If at all the petitioners were not responding to the summons issued by the trial court, they could have been proceeded exparte but in no case it was open to the learned trial court to issue warrants of arrest against the petitioners.”
3. Powers of the Magistrate:
The court clarified that magistrates have the power to recall orders and drop proceedings in DV Act cases. It noted, “It is a settled law that in proceedings under Section 12 of the DV Act, a Magistrate is empowered to recall his order and to drop the proceedings against the respondent.”
Court’s Direction:
While disposing of the petition, the High Court granted liberty to the petitioners to approach the trial magistrate with an application for dropping the proceedings. The court directed that if such an application is made, it should be dealt with expeditiously after hearing both parties and considering their pleadings.
Parties and Legal Representation:
– Petitioners: Kamran Khan and Others, represented by Mr. Saleem Gul, Advocate
– Respondent: Bilkees Khanam (unrepresented in this hearing)
