Magistrate Cannot Issue Warrant When Respondent Skips Appearance In DV Act Case After Summons: J&K&L High Court

Holding that coercive processes like arrest warrants have no place in proceedings under Section 12 of the Domestic Violence Act unless a distinct offence under the Act is alleged, the Jammu & Kashmir and Ladakh High Court has ruled that once a respondent has been duly served with summons but fails to appear, the Magistrate is empowered only to proceed ex parte and cannot resort to warrants for securing his presence.

Justice Sanjay Dhar made it clear that “the only course open to the Magistrate is to proceed ex parte… and not to issue warrants,” while quashing the non-bailable warrant issued by the trial court.

Background:

The petition arose from proceedings initiated by one Shaziya Shah before the Additional Mobile Magistrate, Ganderbal, under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Her estranged husband, Rizwan Yousuf Qazi, the respondent before the trial court, did not appear despite service of summons. Instead of proceeding ex parte, the Magistrate issued non-bailable warrants against him, prompting Qazi to approach the High Court.

He also alleged that the trial court was not referring the matter to mediation and was withholding certified copies of certain orders essential for his defence.

Observations:

Justice Dhar began by reaffirming the settled legal position that proceedings under the Domestic Violence Act are quasi-criminal in nature, and an application under Section 12 is not a criminal complaint. This legal distinction, the Court noted, restricts the Magistrate's powers regarding coercive processes.

In a key passage, the Court explained,

“If the respondent in an application under Section 12 of the said Act does not appear before the said court despite service of summons, the only course open to the Magistrate is to proceed ex parte against him and not to issue warrants for securing his personal presence, unless any offence as defined under DV Act has been committed by the respondent.”

On this basis, the Court concluded that the Magistrate's order was legally unsustainable.

“Issuance of warrants against the petitioner by the learned trial Magistrate is, therefore, not sustainable in law; the same deserves to be quashed.”

Accordingly, the non-bailable warrant issued against the petitioner was set aside.

Regarding the petitioner's complaint that the trial court had not referred the matter to mediation or supplied certified copies of certain documents, the High Court refrained from issuing specific directions. Instead, it left these issues to be considered by the Magistrate.

“The same needs to be looked into by the learned trial Magistrate in accordance with law.”, the court concluded.

Case Title: Rizwan Yousuf Qazi Vs Shaziya Shah

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