A single-judge of the Bombay High Court has referred to a larger bench the question of whether applications for compensation under the Protection of Women from Domestic Violence Act (DV Act) can be quashed by the High Court during the initial stages of the matter before a magistrate [Lincen Louis Thommana & Ors v. Leena Lincen Thommana & Anr].In particular, the Court is set to examine whether such applications under Section 12 of the DV Act can be quashed by the High Court at the stage of issue of notice (when a response is sought from the opposing/other concerned party by a magistrate dealing with such applications).Under Section 12 of the Domestic Violence Act, an aggrieved person can approach a local magistrate seeking an order of compensation or damages.This application is considered by the magistrate after duly checking a report, if any, filed with a protection officer under the Act.Before the application is to be heard, the magistrate is also required to issue a notice under Section 13 of the DV Act to the protection officer and any otherconcerned party.Justice Sharmila Deshmukh was faced with the question of whether such an application for compensation could be quashed and set aside by the High Court at the stage of issuing notice under Section 13.The judge found that there were divergent views on whether such applications could be quashed by invoking the High Court's powers under Section 482 (inherent powers) of the Code of Criminal Procedure (CrPC) or Articles 226 (writ jurisdiction) or 227 (supervisory jurisdiction) of the Constitution of India.The two conflicting decisions are:
1. Daya v. State of Maharashtra, where a single-judge bench held that applications under Section 482 CrPC to quash Section 12 applications under the DV Act were not maintainable.
2. Dhananjay Zombade v. Prachi Zombade, where the Court held that the applications under Section 482 for quashing DV Act proceedings were maintainable.
Justice Deshmukh also noted that while in both cases, reliance was placed on the same Supreme Court decision in Kamatchi v. Laxmi Narayanan, the benches ultimately arrived at conflicting views.
In view of this conflict, Justice Deshmukh has now called for a reference of the matter to a larger bench of the High Court.
Justice Deshmukh also noted that the decision in the case of Daya was not placed before the bench deciding the later case of Zombade, which arrived at a conflicting decision.
"By adopting one of the views of the co-ordinate benches, there would not be any authoritative judicial pronouncement on the issue. The importance of judicial consistency cannot be undermined", the judge reasoned while making the reference.
Advocates Kirti Ahuja, Mihir Gheewala, Ishan Jani, Kanika Ahuja, Saif Mobhani, Laxman Kalel, Riddhi Badheka, Farhad Pantheki, Aditya Mehta, Chaitali Chaudhari, Nazneen S Baig, Aditya Mithe, Sachin Agawane and Karishma Tawari appearing for parties supporting maintainability of the quashing petitions
Senior advocate Mihir Desai with advocates Drishti Singh, Vriddhi Pardasany briefed by MZM Legal along with advocates Ajay Nuniwal, Dhiraj Oza, Smita Dubey, Nitin Vhatkar, Sandeep Bhupat Satkar, Shehazad Naqui, Reshma Mutha, Suryakant Choudhari, Chaitnya Bagal, Vishal Waghmare and Sachin Hande appeared for the parties opposing the maintainability of the quashing petitions.
Additional public prosecutors Shilpa Gajare, MR Tidke and Kiran Shinde appeared for State.
TAGS: Bombay High Court DV Act Quashing Larger Bench
