Maryom Haque & Ors. vs The State Of Assam & Anr.

Heard Mr. P. K. Roychoudhury, the learned senior counsel, assisted by Mr. S. Ahmed, the learned counsel for the petitioner in Criminal Petition No. 1381/2025 and Mr. R. Majumdar, the learned counsel for the petitioner in Criminal Petition No. 334/2026. Also heard Ms. R. Choudhury, the learned senior counsel assisted by Ms. S. E. Murtaza, the learned counsel for the respondent No. 2 as well as Mr. P. S. Lahkar, the learned Additional Public Prosecutor representing the State of Assam.

By this common judgment, this Court proposes to dispose of two criminal petitions, namely, Criminal Petition No. 1381/2025 and Criminal Petition No. 334/2026, as in both the criminal petitions same relief have been prayed for namely, the quashing of the proceedings of Misc. (DV) Case No. 37/2025, pending before the Court of the learned Judicial Magistrate First Class-II, Sribhumi. In both the criminal petitions, the order dated 06.09.2025, passed in Misc. (DV) Case No. 37/2025, whereby, notices were issued to the present petitioners in the aforesaid case has also been impugned.

The facts relevant for consideration of the above-noted criminal petitions, in brief, are that the respondent No. 2, herein, namely, Ms. Sahanaz Choudhury has filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005, before the court of learned Chief Judicial Magistrate, Sribhumi. The said case was assigned for disposal to the court of the learned Judicial Magistrate First Class-II, Sribhumi.

In the complaint petition filed by the present respondent No. 2 before the Trial Court, she has contended that she was married to the petitioner of the Criminal Petition No. 334/2026, on 14.01.2024, as per Islamic rituals and law, at Batar Hashi, Karimganj, Sribhumi and after her marriage, the respondent No. 2 started living along with her husband and other family members at her matrimonial home. However, it is alleged in the complaint petition that after some time, owing to bad temperament of the husband of the respondent No. 2 and his quarrelsome attitude, matrimonial discord arose between them and she was mentally tortured by the petitioners of both the above-mentioned criminal petitions. Several other allegations have been made in the complaint petition by the respondent No. 2.

On receipt of the complaint filed by the respondent No. 2, the Trial Court, by its order dated 06.09.2025 issued notice to the above-named petitioners and fixed the next date of the case on 08.10.2025 for service report/filing of written statement/Domestic Incident Report and for disclosure of assets and liabilities of the respondents. Being aggrieved with the aforesaid orders, the above-named petitioners have approached this Court.

Mr. P. K. Roychoudhury, the learned senior counsel for the petitioners in Criminal Petition No. 1381/2025, i.e., the respondent Nos. 2 to 6 in Misc. (DV) Case No. 37/2025 has submitted that the Trial Court had erred in issuing notice to the present petitioners without complying with the procedure as laid down in Section 223 of BNSS, 2023. He submits that since the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 also arises out of domestic violence and since the said Act does not prescribe any procedure to be followed in the case under the aforesaid Act, the procedure laid down in the BNSS, 2023 is to be followed. He, therefore, submits that the Trial Court erred in issuing notice to the present petitioners and in taking cognizance of the complaint filed by the respondent No. 2 without complying with the mandate of Section 223 of the BNSS, 2023 and as such, he submits that said order is liable to be quashed.

The learned senior counsel for the petitioners in Criminal Petition No. 1381/2025 also submits that the Trial Court also erred in issuing notice to the respondent Nos. 2 to 6 in the above-mentioned complaint case without ascertaining the fact that the petitioners in Criminal Petition No. 1381/2025 were not in the domestic relationship with the respondent No. 2 within the meaning of the phrase “domestic relationship” as defined in Section 2(f) of the Protection of Women from Domestic Violence Act, 2005. He submits that one of the essential ingredients for a relationship to be regarded as a domestic relationship is that the family members, who are claimed to be in domestic relationship with the aggrieved person must have resided together or must be living together as a joint family in a shared household.

He submits that the petitioners in Criminal Petition No. 1381/2025 never stayed together with respondent No. 2 in a shared house hold. They only occasionally visited the respondent No.2’s matrimonial residence and same cannot be regarded as living together in a joint family as required by the provision contained in Section 2(f) of the Protection of Women from Domestic Violence Act, 2005.

The learned senior counsel for the petitioners further submits that the Trial Court also erred in issuing notice to the petitioners without affording the opportunity of hearing to them as required under Section 12(4) of the Protection of Women from Domestic Violence Act, 2005. He also submits that there has been a violation of requirement of Section 13 of the Protection of Women from Domestic Violence Act, 2005, when read along with Section 12(4) of the said Act.

The learned senior counsel for the petitioners in Criminal Petition No. 1381/2025 also submits that the allegations made in the complaint petition are mainly directed against the husband of the respondent No. 2 and as such, same does not make out a case against the petitioners of Criminal Petition No. 1381/2025 to justify issuance of notice to them under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

He also submits that to substantiate their claim that the petitioners were not staying with the respondent No. 2 in a shared household, they have annexed certain documents pertaining to the petitioners like Aadhaar Card, and Electronic Photo ID Card, appointment order, tenancy agreement to show that they were living separately from the respondent No. 2.

The learned senior counsel for the petitioners further submits that this Court while considering an application under Section 528 of BNSS, 2023 for quashing a criminal proceeding can take into consideration the other attending circumstances emerging from record of the case. As such, he submits that taking into consideration the above facts, the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 filed against the petitioners of Criminal Petition No. 1381/2025 may be quashed. In support of his submissions, the learned senior counsel for the above-mentioned petitioners has cited following ruling: -

On the other hand, Mr. R. Majumdar, the learned counsel for the petitioner in Criminal Petition No. 334/2026 has submitted that he adopts the submission of learned senior counsel for the petitioners in the Criminal Petition No. 1381/2025, as regards to the objection regarding taking cognizance of the complaint filed by respondent No. 2 by the Trial Court without following the procedure as laid down in Section 223 of the BNSS, 2023.

He submits that the respondent No. 2 has lodged the complaint under the Protection of Women from Domestic Violence Act, 2005 against the present petitioner, who is the husband of respondent No.2, making vague allegations against him without mentioning any specific date or time of alleged incident of domestic violence on the respondent No. 2. He submits that after the marriage of the petitioner with the respondent No. 2, the petitioner in Criminal Petition No. 334/2026 observed certain abnormal behaviour on the part of the respondent No. 2 and on 02.07.2025, the respondent No. 2 left her matrimonial home without informing anyone. He submits that in this regard, the husband also informed the matter to the Women Police Station, Dimapur, Nagaland and on the basis of the said information, a G.D. Entry on 02.07.2025, was also made in the said Police Station. He submits that, thereafter, after rigorous search the respondent No. 2 was recovered and was referred for medical checkup at District Hospital, Dimapur.

He submits that the medical examination of the respondent No. 2 indicates that she was suffering from some psychological problems and was referred for psychiatrist consultation. He also submits that the medical examination report of the respondent No. 2 also reveals that she was also suffering from adjustment disorder and tokophobia (fear of pregnancy and child birth).

He also submits that the petitioners in Criminal Petition No. 334/2026 are ready to settle the dispute amicably with the respondent No. 2 and, therefore, he prays for referring this matter to mediation. He, otherwise, submits that for the grounds stated in the criminal petition, the proceedings of Misc. (DV) Case No. 37/2025 are liable to be quashed.

On the other hand, Ms. R. Choudhury, the learned senior counsel appearing for the respondent No. 2 submits that both the criminal petitions filed by the respondents of the Misc. (DV) Case No. 37/2025 are not maintainable in its present form. She submits that in both the criminal petitions the petitioners are aggrieved with the order dated 06.09.2025, passed by the Judicial Magistrate First Class-II, Sribhumi in Misc. (DV) Case No. 37/2025, whereby, notices were issued to the petitioners. She submits that if the petitioners are aggrieved with the aforesaid order, the proper course which was open for them was to prefer an appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 as the aforesaid order is an appealable order. She further submits that there is a limitation period prescribed for preferring that appeal, i.e. of 30 days and only to avoid the limitation prescribed in the statute, the petitioners cannot approach this Court by filing an application under Section 528 of BNSS, 2023.

She further submits that the Trial Court did not commit any mistake by issuing notice after filing of complaint by the respondent No. 2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005. She also submits that the proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is a quasi civil proceeding and no offence is alleged to have been committed in the said application. The relief prayed for by the respondent No. 2 was the relief in quasi civil nature like maintenance order, protection order and shared household order.

She submits that no cognizance of offence is taken in a proceeding under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Hence, question of following the procedure prescribed under Section 223 of the BNSS, 2023, which is required only when the court takes cognizance of an offence on a complaint, does not arise. She submits that in the instant case, the Trial Court has not taken cognizance of any offence but has taken cognizance of the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

The learned senior counsel for the respondent No. 2 has also submitted that the invoking of powers under Section 528 of the BNSS, 2023, by this Court would have been justified had the complaint filed by the respondent No. 2 did not disclose any incident of domestic violence, however, in the instant case, categorical allegations of domestic violence against the petitioners of both the criminal petitions have been made by the respondent No. 2 in her complaint. Hence, she submits that this is not a fit case to invoke the powers of this Court under Section 528 of BNSS, 2023 to quash the proceeding of the Misc. (DV) Case No. 37/2025.

She also submits that in her complaint petition, the respondent No. 2 has categorically averred that after her marriage with the petitioner of Criminal Petition No. 334/2026, she happily resided in the residence of her husband at Dimapur with other respondents. Hence, she submits that the respondent No. 2 was in a domestic relationship within the meaning of the phrase “domestic relationship” as provided in Section 2(f) of the Protection of Women from Domestic Violence Act, 2005.She also submits that the disputed questions of fact cannot be gone into a proceeding under Section 528 of the BNSS, 2023 by this Court and it is for the Trial Court to decide the same.

She also submits that there is no requirement of law that at the time of filing the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the agreed person must be living with the respondents. What is required is that she had lived at any point of time with them and was subjected to the incident of domestic violence, which she submits that has been categorically averred in the averments made in the complaint filed by the respondent No. 2.

She also submits that the petitioners have failed to make out a case for invoking the jurisdiction of this Court under Section 528 of BNSS, 2023 in the light of the guidelines laid down by the Apex Court in various judgments, including the judgment of “State of Haryana And Others Vs. Bhajanlal And Others” reported in “1992 Supp(1) SCC 335”. She has also cited another ruling of the Apex Court in the case of “Prabha Tyagi Vs. Kamlesh Devi” reported in “(2022) 8SCC 90.”

The learned senior counsel for the respondent No. 2 has also submitted that on an earlier occasion wherein, an offer of mediation was made by the other side, it was communicated to the respondent side that the husband of the respondent No. 2 is not eager to take her back. Hence, there may not be any likelihood of an amicable settlement between the parties in mediation. However, she submits that the efforts of mediation can still be made before the Trial Court, where the complaint of the petitioner is pending. She, therefore, submits that both the criminal petitions filed by the petitioners are liable to be dismissed.

I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.

In a catena of judgments, the Apex Court has held that the extraordinary inherent jurisdiction of the High Court should be exercised sparingly with circumspection to quash a criminal proceeding. The power of quashing a complaint should be exercised as an exception rather than an ordinary rule.

The contention raised by the learned senior counsel for the petitioners as to whether in issuing notice to the respondents in a complaint case registered under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the procedural requirement contained in the first proviso to Section 223 (1) of the BNSS, 2023 is required to be followed or not is the pertinent question which is required to be answered in this Criminal Petition.

For the sake of convenience, the provisions contained in Section 223 of the BNSS, 2023 is reproduced hereinbelow:

On a bare perusal of the aforesaid provision, it would reveal that the said provision is applicable in case of exercising jurisdiction by Magistrate for taking cognizance of offence on a complaint. The term “complaint” has been defined under Section 2 (h) of the BNSS, 2023 meaning any allegation made orally or in writing to a Magistrate with a view to his taking action under BNSS, 2023, that some person whether known or unknown has committed an offence, but does not include a police report. Thus, the allegation of commission of offence is an essential ingredient to decide whether any written or oral allegation would be regarded as a complaint or not. Similarly, Section 2 (q) of the BNSS, 2023 defines the term “offence” meaning any act or omission punishable by law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871. The question which is now to be considered is as to whether in an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 any accusation against the respondents is made by the aggrieved person regarding commission of any offence and whether the Magistrate has to take any cognizance on the basis of such an application.

Now, let us, for the sake of convenience reproduce the provisions contained in Section 12 of the Protection of Women from Domestic Violence Act, 2005, herein below:

On a bare perusal of the aforesaid provision, it appears that an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is filed by an aggrieved person for seeking reliefs under the provisions of the said Act. It is not a complaint within the meaning of Section 2(h) of the BNSS, 2023 making an allegation regarding commission of any offence by the respondent. The purpose of filing an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is not to punish the respondent, but to seek reliefs from the respondent under the aforesaid Act like maintenance order, protection order and shared household orders etc. As such, the question of taking cognizance of offence by the Magistrate does not arise in an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. This Court is in agreement with the submissions made by the learned senior counsel for the respondent No.2 that the reliefs sought for in an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 are quasi civil in nature. Under such circumstances, the question of applicability of the bar provided for in the first proviso to Section 223 (1) of the BNSS, 2023 does not arise.

As regards, the submission of the learned counsel for the petitioners that the respondent No. 2 have never resided in a share household with the petitioners of the Criminal Petition No.334/2026, this Court is of the considered opinion that in view of the settled law in this regard such a requirement is not there for maintainability of an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 in view of the observations made by the Apex Court in the case of “Prabha Tyagi Vs. Kamlesh Devi” (Supra). For the sake of convenience, the same is quoted herein below:

As regards the truthfulness of the averments made by the respondent No.2 against the present petitioner in her application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is concerned, same cannot be gone into in a proceeding under Section 528 of the BNSS, 2023. The veracity of facts alleged in such an application is to be ascertained by the Magistrate before whom, such an application has been filed. Mere allegation of falsehood of the averment made in an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 may not be a ground justifying invocation of inherent powers of this Court under Section 528 of the BNSS, 2023 for quashing the said proceedings.

As regards, referring the parties to mediation is concerned, such a course shall always be open to the parties even before the Magistrate, who is dealing with the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, as such same may also not be a reason for invoking extraordinary inherent jurisdiction of this Court under Section 528 of the BNSS, 2023 for quashing the said proceeding.

In view of the discussions made and reasons stated in the foregoing paragraphs, both the above-mentioned Criminal Petitions are found devoid of any merit and accordingly, dismissed.

Let a copy of this judgment be forwarded to the concerned Magistrate.