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Judgment
Heard Mrs. K. Deka, learned counsel for the petitioners. Also heard Mr. D. P. Borah, learned counsel representing the respondents.
This petition under Section 482 Cr.P.C. has been filed praying for setting aside the orders issuing process and the proceeding in Misc. Case
No.47/2016Â under Section 12 of the Domestic Violence Act, 2005 pending in the Court of Sub-Divisional Judicial Magistrate (S) No.1, Kamrup (M),
Guwahati.
The respondent No.2 herein is the wife of petitioner No.1. The respondent No.2 filed an application under Section 12 of the Protection of Women
from Domestic Violence Act, 2005 (hereinafter, for short, the Domestic Violence Act) alleging domestic violence and seeking relief of residence
order under Section 19, monetary relief under section 20, compensation order under section 22 as well as interim relief under section 23(2) of the
Domestic Violence Act. On receipt of the application the learned Judicial Magistrate by order dated 07.06.2016 issued notice to the
respondents/petitioners and also called for a domestic incident report from the concerned officer fixing the next date on 21.06.2016. On the next date
fixed i.e. on 21.06.2016 the present petitioner entered appearance through counsel and sought for time to file written statement and the domestic
incident report was also received on that date. The next date was fixed for filing written statement by the present petitioner on his prayer. However,
instead of filing written statement the respondent/petitioner has filed the present petition under section 482 Cr.P.C. praying for setting aside the
abovementioned orders passed by the learned Magistrate and also for quashing the proceeding itself.
Learned counsel for the petitioners, Mrs. K. Deka, submits that the impugned orders passed by the learned Magistrate were bad for not
considering the domestic incident report. Further contention of the learned counsel is that there were other proceedings pending including the divorce
suit and criminal cases, as such the present proceeding was instituted only to harass the petitioners and therefore prayed for quashing the proceeding.
Mr. D. P. Borah, learned counsel representing the respondent No.2, referring tosection 12 of the Domestic Violence Act and relying on a decision
of this Court in the case Abhiram Gogoi vs. Rashmi Rekha Gogoi reported in 2011 (3) GLT 288, submits that for issuing process in a proceeding under
Section 12 of the Domestic Violence Act, consideration of the domestic incident report is not a sine qua non. If a domestic incident report is before
the Court, in that case the Magistrate is obliged to consider the domestic incident report before passing any order on such application.
 This Court in Abhiram Gogoi (supra) observed as under :-
“26.   The question as to whether a Magistrate can pass an order, under Section 12, without a domestic incident report having been received
from a Protection Officer can be well answered by referring to Section 9(1)(b) inasmuch as Section 9(1)(b) makes it clear that it is the duty of the
Protection Officer to make a domestic incident report to the Magistrate upon receipt of a complaint of domestic violence and forward copies thereof
to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and
to the service providers in that area. This shows that a domestic incident report comes into existence only when a complaint of domestic violence is
received by a Protection Officer. If no complaint of domestic violence is received by a Protection Officer, the question of his submitting a domestic
incident report does not arise. Since the scheme of the said Act, nowhere, imposes an obligation on an aggrieved person to necessarily approach a
Protection Officer before making an application to a Magistrate for a maintenance order, it cannot be read into the scheme of the said Act that an
application by an aggrieved person must necessarily be accompanied by a domestic incident report. The said Act makes it clear that an aggrieved
person can directly make an application to a Jurisdictional Magistrate if she is subjected to domestic violence. The said Act, nowhere, obliges an
aggrieved person to, first, make a complaint to a Protection Officer and, then, approach the Magistrate concerned. Section 12 takes care of a situation,
if a situation so arises, where a Magistrate has before him, apart from an application, made by an aggrieved person, a domestic incident report. This
does not mean that the absence of a domestic incident report denudes the Magistrate of his power to make a maintenance order.â€
Section 12 of the Domestic Violence Act provides that an aggrieved person ora Protection Officer or any other person on behalf of the aggrieved
person may present an application to the Magistrate seeking one or more reliefs under this Act. The proviso to sub-section (1) of Section 12 lays down
that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the
Protection Officer or the service provider.
Here in the present case the application under Section 12 of the DomesticViolence Act was filed by the aggrieved person herself and acting on that
petition the learned Magistrate issued notice and opportunity was given to the petitioner to file written statement. The learned Magistrate is also found
to have called the domestic incident report, which was already received. As the present petitioners sought for adjournment to file written statement, an
effective order was yet to be passed. At that stage the petitioner has approached this Court for quashing the proceeding basically on the two grounds
as indicated above, viz., the domestic incident report was not considered and secondly, there were other proceedings including a divorce suit and a
criminal proceeding, instituted by the respondent No.2 against the petitioner, which were suppressed.
Apparently, no effective order was passed by the learned trial Court and thematter was at the stage of issuing process only. Section 12 of the
Domestic Violence Act has given a right to the aggrieved person to approach the Court under section
12 of the Act seeking relief provided under the Act and Section 26 of the Domestic Violence Act makes it clear that reliefs sought under the provision
of Sections 18, 19, 20, 21 and 22 are in addition and along with any other relief which may be sought by the aggrieved person in other civil or criminal
proceeding. Therefore, filing of a divorce suit or a criminal proceeding cannot be an impediment in filing an application under section 12 of the
Domestic Violence Act which is an independent proceeding provided under the statute. Section 26(3) of the Domestic Violence Act only imposes an
obligation on the aggrieved person to inform the Court about the relief, if any, obtained by her in any other proceeding. Though it has been contended
by the learned counsel Mrs. Deka, that the filing of the divorce suit and other proceedings were suppressed, the petition under section 12 itself
demonstrates in paragraph V under the heading “details of previous litigations†the petitioner has elaborately stated regarding all the litigations
pending between the parties and so there was apparently no question of suppressing the previous litigations.
Since the learned Magistrate has not passed any effective order and thepetitioner being an aggrieved person is entitled to file an application under
section 12 of the Domestic Violence Act, the petitioner cannot be restrained from exercising her right provided by the statute only because she has
instituted a civil suit for divorce or other criminal proceeding as the statute has not created any bar against filing petition under Section 12 of the
Domestic Violence Act in view of the institution of divorce suit and other criminal proceeding. In that view of the matter, I am of the considered
opinion that the proceedings in the instant case does not call for interference in exercise of power under Section 482 of the Cr.P.C.
Since the learned trial Court has not passed any effective order, it will be in the fitness of the things to remand back the matter to the learned
Magistrate to adjudicate the same as per law. Accordingly, the petition is dismissed and the matter is remitted back to the learned trial Court for
disposal in accordance with law.