Feroz Ahmad Khanday vs Sheeraza Bano

By the medium of this petition, filed under Section 561_A Cr. PC, the petitioner has sought indulgence of this Court for quashing the Order dated 16.07.2018, passed by the learned Principal Sessions Judge, Anantnag and the Order dated 21.11.2017, passed by the learned Chief Judicial Magistrate, Anantnag.

The facts, as come to fore from the perusal of the petition are that:-

(i) The respondent is legally wedded wife of the petitioner and the marital relationship of the parties is for last many years. The petitioner throughout his matrimonial relationship with the respondent has treated the respondent with respect, love and affection, but unfortunately the respondent has not reciprocated. However, the petitioner tried is best to make the matrimonial relationship smooth and cordial. As a result the parties have been blessed with two children. That unfortunately since the inception of marriage, the respondent has been continuously indifferent and callous towards the matrimonial relationship.

(ii) The respondent has deserted the matrimonial abode and has forcibly taken custody of the minor children by filing frivolous application under Section 100 Cr. PC. The behaviour of the respondent towards the parents of petitioner have all along been of disrespect and disdain and the respondent wanted the petitioner to abandon his parents and brothers without any reason and justification. However, the petitioner always adapted a conciliatory approach and tried his best to make the respondent see the reason. But unfortunately the petitioner failed due to indifference and stubbornness of the respondent as a result the matrimonial relationship was strained. Once the respondent without any reason and justification left the matrimonial home and also obtained custody of the children through judicial intervention under section 100 Cr. PC.

(iii) The respondent filed a false and baseless complaint under Section 12 of the J&K protection of Women from Domestic Violence Act, 2010 (hereinafter referred as the Domestic Violence Act), before the learned Chef Judicial Magistrate, Anantnag. The application filed by the respondent abovementioned was allowed in ex-parte by the learned Chief Judicial Magistrate, Anantnag, vide order dated 21.11.2017, with the direction to the petitioner to pay an amount of Rs. 8000/- in favour of the respondent from the date of application as maintenance.

(iv) The order passed by the learned Chief Judicial Magistrate, Anantnag, dated 21.11.2017, was challenged by the petitioner before the Court of learned Principal Sessions Judge, Anantnag, through an appeal in terms of Section 29 of Domestic Violence Act, on various grounds as enumerated in the memorandum of appeal. That after hearing the counsel for the parties, the learned Principal Sessions Judge, Anantnag, vide order date 16.07.2018 dismissed the appeal filed by the petitioner and upheld the order passed by the learned Chief Judicial Magistrate, Anantnag.

Aggrieved by the aforesaid orders passed by the learned Chief Judicial Magistrate and learned Principal Sessions Judge, Anantnag, the petitioner has challenged the same before this Court, inter alia, on the following grounds:

(i) In terms of impugned order dated 21.11.2017, the application/complaint has been heard and decided by the learned trial Court, which is not permissible under the provisions of J&K Protection of Women from Domestic Violence Act, 2010.

(ii) That the trial Court has taken the provisions of Domestic Violence Act, as an alternative to the provisions of Section 488 Cr. PC, which is not the actual position of law. The provisions of the Domestic Violence Act, cannot be resorted to for obtaining the purpose which can be served by Section 488 Cr. PC. It is worthwhile to mention that the learned trial Court has not bothered even to consider and take into account the earning capacity of the petitioner. The petitioner is a laborer and earns only Rs. 4000/- to 5000/- month. The quantum of maintenance by the trial Court in favour of the respondent and the minor children is beyond the means of the petitioner. An income certificate issued by Tehsildar Dooru showing the income of petitioner as Rs. 5000/- month from all sources was produced before the trial Court, but the same was not considered.

(iii) That the respondent is a habitual litigant and is often filing frivolous cases against the petitioner. In the year 2016 also, the respondent filed an application under Section 488 Cr. PC, against the petitioner in which compromise was recorded on 19.05.2016.

(iv) That the trial Court has exercised its powers of discretion arbitrarily, capriciously, perversely and in ignorance of the settled principles of law regulating refusal or otherwise of interim relief. The reliefs granted were never claimed in the petition. The prescribed format of the application has been avoided. The affidavit in prescribed format has also been avoided. Reply to affidavit has not been sought by the trial Court. Even orally the appellant has not been heard. There is no enquiry of finding with regard to any Act of Domestic Violence committed on the respondent. No supportive material has been supplied in the impugned order.

(v) That the proceedings pending against the petitioner before the Court along with the impugned orders are not sustainable in the eyes of law for the simple reason that respondent left the society of petitioner on 24.08.2017, by leaving the kids behind. The process under section 100 Cr. PC, is proof of the same. Earlier as well the respondent has targeted the parents of the petitioner and as instituted a lis against the petitioner. The matter was subsided and the respondent joined the society of the petitioner. The lis was kept alive by the respondent despite settling the controversy with the petitioner.

(vi) That the impugned orders have been passed by the Court below without giving reasonable opportunity of being heard to the petitioner. The impugned are, as such violative of principles of natural justice.

(vii) That the impugned orders are bad in law, passed in breach of provisions of the principles of natural justice and in violation of the relevant provisions of law especially in violation of Domestic Violence Act.

(viii) That the respondent was in her parental house and had returned in the month of May, 2017. The respondent again left in the month of August, 2017. Therefore, the question of maltreatment does not arise at all. The said complaint has been filed in the month of May, 2017, during which period the respondent was in the house of the petitioner and from there she used to visit the Court in absentia of the petitioner and when the terms of the parties were at level best. The respondent has stated herein above left again in the month of August, 2017, on flimsy grounds which is less accommodation in the kitchen, lack of bathroom facility etc.

It is being contended by learned counsel for the petitioner that no report of service provider or protection officer has been taken into consideration as was necessary for passing the order in terms of relevant provision under J&K Protection of Women from Domestic Violence Act, 2010, while taking note of the same along with grounds put forth in the petition. The orders impugned here are required to be set aside according to him. Thus, he has also given background of the earlier litigation between the parties and laid emphasis that the quantum fixed by the learned trial Magistrate, while passing impugned order dated 21.11.2017, had no nexus with the income and liability of petitioner.

On the other hand, learned counsel for the respondent has submitted that the petition merits dismissal. He has also referred to judgment titled Gurmeet Kour v. Amrik Singh, reported in 2006 (1) JKJ 201 (HC) & judgment titled Neeraj Kumar v. Surita Sharma, reported in 2010 (3) JKJ 818 (HC), in support of his contention, wherein the object behind enactment of Section 488 Cr. PC, has been explained.

Heard and considered.

From the perusal of file, it is evident that complaint had been filed under Section 12 of J&K Protection of Women from Domestic Violence Act, 2010, before the Court of learned Chief Judicial Magistrate, Anantnag, wherein the following prayer has been made:

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(i) It was, since the respondents ruthlessly beaten, physically harassed the complainant and throw her out forcibly from the matrimonial home and since then year she is residing at Ashajipora with her relatives.

(i) By prohibiting the respondents from repeating the acts of violence or abetting the act of violation as mentioned hereinabove as envisaged under Section 18 (a), (b) & (f) of Domestic Violence Act, 2010.

(ii) Directing the respondent/accused to return the articles like golden ornaments, copper utensils, electronic items etc.

Monetary reliefs:

(i) Directing the respondent No. 1 to pay Rs. 10,000/- per month as the expenses are escalating to meet the expenses incurred on domestic affairs as the complainant has to take and follow medicines.

(ii) To pay rupees five lacs on account of mental agony suffered by the complainant at the hands of respondents who had emotionally verbally physically harassed the complainant and had demoralized her at the estimation of general public, same has shattered the morale of the complainant.

(iii) Directing the accused persons not to dislodge or misappropriate the articles of the complainant along with gold and other articles which are at present in the shared accommodation provided to her by accused at Shangran Doru.

In application for interim relief, prayer is made as:

"That this Court may be pleased to pass order to the extent that the complainant/aggrieved person be provided Rs. 10,000/- as monthly expenses till disposal of main complaint.

Any other order which this Court may deem fit and proper be passed."

Same has been disposed of on 21.11. 2017, wherein it has been observed that the petitioner herein failed to submit the objections.

The learned Magistrate, after giving reference of the averments of the complaint and objective behind the Domestic Violence Act, has given his conclusion as:-

" I have perused the application as well as record accompanying and copy of the composition memo executed in per se the parties in the Court of JMIC Doru, in an application tendered by the complainant under Section 488 Cr. PC, for grant of maintenance, wherein the respondent has admitted relationship with the complainant and also undertaken to treat the complainant with love and affection and will maintain the complainant and her minor children properly. From the composition memo which has been hammered between the parties satisfaction is recorded to the extent that the respondent has caused violence upon the complainant and has left her in lurch and has failed to maintain her who gave birth to the two children. Despite intervention of respectables, respondent executed undertaking not to repeat the acts of violence, the complainant is not being treated and is not being properly maintained and complainant despite violence and torture and domestic violence can be best illustrated by the fact that she has received kicks on her body, however, tried to remain in the shared accommodation. The complaint in order to maintain herself and her children has to incur huge expenses which are being managed by the relatives of the complainant and respondent despite demand has forced the complainant to starvation and destitution and has led the minor children to fell into evil hands. In order to prevent repetition of acts of violence and to meet out daily expenses the following directions are passed.

An order of maintenance because the complainant and her children are dependent and have no source of income to the tune of Rs. 3000/- per month in favour of complainant and Rs. 2500/- to minor children each, in total Rs. 8000/- from the date of application. The application thereafter shall come up on 28.11.2017 for consideration."

The learned Magistrate has granted maintenance in favour of respondent herein and also children whose particulars are not referred either in the order or in the complaint. The observations made about the harm caused to the respondent in the estimation of learned Magistrate has been reflected in a way as if learned Magistrate was disposing of the main matter after recording evidence of parties and who had availed the right to cross examine the witnesses. He has referred to recitals of earlier composition in the proceedings under Section 488 Cr. PC. The learned Magistrate has stated that the respondent herein has received kicks on her body and she had tried to remain in the shared accommodation. The basis from which the inference has been made is not quoted, however.

The perusal of record called from learned trial Court depicts that the respondent herein in her statement (summary) recorded on 27.05.2017, does not make mention of any date on which violence, if any, was inflicted on her. The affidavit annexed in support of the complaint has been sworn before the Oath Commissioner. Same is in breach of the mandate of Section 539 Cr. PC. Any evidence to be relied during an inquiry, in terms of provision of Code of Criminal Procedure, if in the form of an affidavit has to be attested before a Magistrate, Section 28 of J&K Protection of Women from Domestic Violence Act, 2010, clearly lays down:

"28. Procedure-(1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 & 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, Samvat 1989.

(2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23."

The copy of composition related with the proceedings under Section 488 Cr. PC, on record of trial Court, does not give a mention of any act of violence though learned Magistrate referred to it in the impugned order.

There is no evidence on record for making a safe inference about income of the petitioner and liabilities of the respondent herein. There is no indication either in the minutes of proceedings or order as to how the maintenance was ordered to be paid in favour of children who were not party before the Magistrate and whose particulars were not available on file. Even the affidavit, which as noted above was not admissible in evidence, did not give any reference of children or any act of violence. General and vague allegations of maltreatment are difficult to be understood as substitute for acts of violence contemplated by Section 12 of the Act for commencement of proceedings and consequent directions passed under Section 23 of the Act.

I, as such, am of the opinion that miscarriage of justice has been occasioned by passing of the impugned order in this manner. The Court of learned Principal Sessions Judge, which has been approached in appeal, too appears to have failed to consider properly the submissions made in terms of memo presented before it for examining propriety of order regarding interim maintenance. I, as such, am of the view that ground has been made out for exercise of powers under Section 561-A Cr. PC, for quashment of orders, which accordingly are quashed and trial Court is directed to pass orders afresh after hearing the parties (in the application for grant of interim maintenance during the pendency of the petition, which had led to filing of instant proceedings). Learned counsel for the parties are directed to cause the appearance of the parties before the trial Court on 15-04-2019.

Record of trail Court be send down.