Sanjay Kumar Gupta, J.:— Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C), petitioners seek quashment of the complaint under Sections 12 and 23 of J&K Protection of Women from Domestic Violence Act, titled “Vandana Choudhary v. Rakesh Choudhary, pending in the court of Munsiff, Samba. Petitioners also seek quashment of ex-parte order dated 29.08.2017 passed by the said Court in the complaint, by virtue of which the trial court has directed petitioner No. 1 to pay/provide Rs. 3,000/- as monthly interim maintenance allowances to the respondent from the date of passing of the order.

2. The case of the petitioners is that marriage of petitioner No. 1 with the respondent was solemnised on 25.02.2004 at Vijayupr, District Samba, according to Hindu Rites & Customs and out of the said wedlock, one daughter, namely, Shriya Choudhary and one son, namely Udhey Choudhary were born, who are putting up with the petitioners. It is stated that respondent has left her matrimonial house without any reason, cause or excuse and is living in her parental house and has deserted/abandoned the petitioner No. 1 as well as her children and is continuously living with her parents since 5 August, 2015. The petitioner No. 1 filed a divorce petition against the respondent, which is pending in the court of Additional District, Judge (Matrimonial Cases) Jammu since September, 2015 and in the said divorce petition, the respondent appeared and also filed the objections, but in the meanwhile, the respondent filed the complaint/application under Sections 12 and 23 of J&K Protection of Women from Domestic Violence Act, 2010 against the petitioners before the court of Chief Judicial Magistrate, Samba. It is further stated that on 29.08.2017 the said complaint was transferred to the court of Munsiff Magistrate First Class, Samba and the learned Magistrate without summoning the petitioners, passed the impugned order dated 29.08.2017, thereby directing the petitioner No. 1 to pay Rs. 3000/- per month as interim maintenance allowance to the respondent from the date of passing of the said order.

3. The petitioners seek quashment of the complaint under Sections 12 and 23 of J&K Protection of Women from, Domestic Violence Act, titled “Vandana Choudhary v. Rakesh Choudhary, pending in the court of Munsiff, Samba and also the ex-parte order dated 29.08.2017 on the following grounds:—

“That the impugned order dated 29.08.2017 is against the facts and law and is liable to be set aside;

That the respondent is continuously living with her parents since 5th August, 2015 and she even has abandoned her minor children who are putting up with the petitioners;

That from the perusal of the aforesaid complaint/application under Sections 12 and 23 of the Act, no relief u/s 23 of the Act, has been sought by the respondent, but the court below without considering the contents of the complaint as well as the provisions and rules of the Act passed the ex-parte impugned order against the petitioner No. 1;

That the respondent has not placed any material on record on the basis of which the trial court could have observed its prima facie satisfaction regarding commission of any act of domestic violence, as such under said circumstances even the main complaint/application filed by respondent is not maintainable and is liable to be dismissed;

That admittedly the respondent is living separately from the petitioners since August, 2015 and has filed the aforesaid complaint in the month of August, 2017, so how could the petitioner allegedly commit act of domestic violence upon the respondent when the respondent already has been living in her parental house;

that there is no mention of any act of domestic violence in the complaint filed by the complainant, moreover neither the protection officer submitted any report of domestic incident to the Magistrate on behalf of aggrieved person nor the Magistrate received any domestic incident report from the protection Officer, but the trial court in absence of any incident regarding domestic violence passed the ex-parte impugned order which on the fact of it is contrary to the provisions and rules of the Act;

that the trial court has not issued any summon or afforded any opportunity of being heard to the petitioners before passing the impugned order, therefore, the impugned order is passed in violation of Principle of Natural Justice, as such is required to be quashed;

that the respondent has neither sought any relief under Section 23 of the Protection of Women from Domestic Violence Act, nor the respondent filed the affidavit to seek any interim relief of maintenance in terms of Section 23 of the Act, therefore, the impugned order passed by the trial court is illegal, unwarranted under law and without jurisdiction and the same is required to be quashed.”

4. I have heard the rival contentions of parties. Counsel for petitioner has reiterated all grounds taken in petition and also argued that there was no report of protection officer before taking cognizance. In support of his contention, learned counsel for the petitioners relied upon the judgments of this Court reported in 2014 (4) JKJ 347 case titled Vinay Sharma v. Shweta Sharma; and 2014 Rakesh Manhas v. Aruna Manhas. Learned counsel for the respondent has supported the order impugned and stated that petitioners have raised factual aspects, which cannot be considered in this petition.

5. I have given my thoughtful consideration to whole aspects of the matter.

6. The operative part of order dated 29.08.2017, passed by JMIC (Munsiff), Samba reads as under:—

“On the basis of the affidavit furnished by the aggrieved person and the statement recorded by this Court, this court has a reason to believe that the aggrieved person has come to the court with the terms of a ‘wife’ of respondent No. 1, namely, Rakesh Choudhary. She is the victim of physical/mental torture on the part of respondents. Admittedly, at present she is not living with the respondents, but it would not rightful to say that she is not being subjected to mental torture by respondents especially respondent No. 1 on account of the fact that she being the wife of respondent No. 1 has been neglected/deserted and thrown out by the respondents without any source of survival. She can be said to be under constant emotional/mental distress due to maltreatment caused to her by the respondents. Respondent No. 1 cannot escape easily from his liability of taking care of his wife, but it is very unfortunate as stated by the aggrieved person, the respondent No. 1 has forgotten his obligation of taking care of his wife (aggrieved person).

Aggrieved person has disclosed that she is not doing any work, having no independent source of income, so being a woman, without any sufficient source of income, victim of disloyalty of her life partner de serves to be prevented of being put to starvation and social exploitation for want of daily basic requirement of life for her survival.

Hence, for the reasons stated herein above and without adverting upon the merits of the case, ex-parte interim relief is desired to be granted in favour of the aggrieved person.

As the respondent No. 1 is prima-facie found to have committed cruelty and caused the aggrieved person to suffer physical, mental injury and emotional distress and made her to come to the court which is the last resort for the aggrieved person for redressal of her grievances, as such, respondent No. 1 is directed to provide Rs. 3000/- as monthly maintenance allowance, to the applicant/petitioner from the date of passing of this order. For further proceedings file put up on 15.09.2017”

7. The first and foremost argument of counsel for petitioners, in brief, is that there is no report of Protection Officer, so complaint/petition before Court below is not maintainable;

8. The Jammu and Kashmir Protection of Women from Domestic Violence Act 2010 has been legislated for more effective protection of the rights of women guaranteed under Constitution, who are victim of violence. It is complete code which includes jurisdiction of JMIC in dealing with the petition under section 12 of D.V. Act. Section 12 of the Act empowers victim to file a petition before Magistrate regarding domestic violence; section 18 deals with passing of protection order; section 19 deals with passing of residence order; section 20 deals passing of monetary order; section 21 deals with passing of custody order and section 22 deals with compensation order. These types of order can be passed/granted by Magistrate after hearing and finally deciding the application under section 12 of Act. Section 12 of Act reads as under:—

“Application to Magistrate

(1) An aggrieved person or a 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:

Provided 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.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, Samvat 1977 or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every application made under subsection 1 within a period of sixty days from the date of its first hearing.”

9. Chapter IV of the DV Act pertains to the procedure that has to be followed by the Magistrate while granting relief to an aggrieved person. Under Section 12 of the DV Act, an application has to be presented by an aggrieved person, either by the person herself or a Protection Officer or any other person on behalf of the aggrieved person to the Magistrate, seeking relief as provided under the DV Act. A proviso has been added to Section 12(1) of the Act, that before passing any such order on any application received, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the Service Provider. Section 9 of the DV Act entails the duties and functions of a Protection Officer, whose primary duty is to assist the Magistrate in the discharge of his functions under the Act, to make a domestic incident report to the Magistrate in the form prescribed, upon receipt of a complaint of domestic violence, while forwarding copies of the complaint 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, as well as to the Service Provider. Section 9(2) of the DV Act further provides that the Protection Officer shall be under the control and supervision of the Magistrate and shall perform the duties imposed on him by the Magistrate and the Government. Moreover, Section 4 of the DV Act provides that any person, who has reasons to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer.

10. On a conjoint reading of Sections 9 and 12 of the DV Act, it is manifestly clear that it is duty of the Protection Officer to work under the control and supervision of the Magistrate and to perform duties imposed upon him by the Magistrate and in case, he has received a complaint on domestic violence, then to make a domestic incident report and submit it to the Magistrate, as well as to forward copies of the complaint to the Police Officer in charge of the police station within local limits of whose jurisdiction, domestic violence is alleged to have been committed. The proviso added to Section 12(1) of the DV Act is only to the effect that in case a domestic incident report has been received by the Magistrate, the same shall be considered before passing any order on an application received. Section 12 of the DV Act per se does not hold that a Magistrate on receipt of complaint is obligated to call for a domestic incident report, before passing any order on an application. So it is not mandatory for a Magistrate to obtain a domestic incident report before the Magistrate passes any order provided under various sections of the Act; so receipt of domestic incident report is not a pre-requisite for issuing notice to the respondent. Magistrate, on the basis of an application supported by affidavit, on being satisfied can even grant ex parte orders in favour of the aggrieved person under Sections 18, 19, 20, 21 or 22 of the DV Act.

11. As already discussed above, proviso to Section 12(1) only stipulates that the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. Section 12(1) does not directly stipulate that a report ‘shall’ be called for, before any relief can be granted.

12. So argument of counsel for petitioners that report of protection officer is sine qua non for issuing process in petition under section 12 of Act, is not maintainable.

13. Another argument of counsel for petitioners is that court cannot grant exparte order under section 23 of Act thereby granting monetary relief under section 20 of Act. This argument is without any basis. Section 23 of Protection of Women from Domestic Violence Act, reads as under:

“23. Power to grant interim and ex parte orders.—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper. (2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.

14. Section 20 reads as under:—

“Monetary reliefs

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 488 of the Code of Criminal Procedure, Samvat 1989 or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub section (1) to the parties to the application and to the incharge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under subsection (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.”

15. From bare perusal of section 23, it is evident that the magistrate is empowered to grant interim relief/s as he/she deems just and proper during pendency of application under section 12 of Act. Section 23 of Act consists of two parts; section 23(1) empowers Magistrate to pass interim order during pendency of main petition under section 12 of Act or in any proceedings; section 23 (2) empowers magistrate to pass exparte order on the basis of affidavit under various sections mentioned in this section. This will certainly includes that magistrate would also have power to grant ad interim exparte order during pendency of main interim application under section 23(1) of Act.

16. The purpose of this section is to save the victim from vagrancy, continuous harassment, dispossession of victim from place of residence or shared household, alienation of victim from such place of residence or shared household etc. If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed under section 20 or any other section, as the case may be.

17. Rest petitioners have taken grounds which are factual in nature; from perusal of order of court below, it is evident that petitioners have not filed statutory appeal against the impugned order before Sessions Court, before filing the present petition. The laws cited are not applicable in present facts and circumstances of case. Firstly, facts are to be seen, then law is to be applied.

18. In view of the foregoing discussion, the petition in hand is hereby dismissed, being devoid of any merits. Before parting with this judgment, it is made clear that any observation made by this court hereinabove is only for the purpose of deciding the instant petition and shall have no affect on the merits of the case.