Geeta Devi And Ors. @APPELLANT@Hash Dr. Kavita Sharma

In the instant petition, the petitioners seek quashment of the Complaint dated 28.07.2018 titled, “Dr. Kavita Sharma Vs.  Dr. Susheel

Sharma and ors.â€,filed by the respondent under Section 12 read with Sections 17, 18, 19, 20 and 22 of Domestic Violence At, 2010, pending before

the learned Judicial Magistrate 1st Class, Udhampur (Munsiff), by virtue of which, the Hon’ble Court has taken cognizance of application under

Section 12 read with17, 18, 19, 20 and 22 of Domestic Violence Act, 2010 (hereinafter referred to as the Act) and passed interim direction dated

28.07.2016.Â

The factual matrix of the case is that the marriage between the petitioner No. 4 and respondent was solemnized on 28th January, 2011 in

accordance with Hindu rites and customs. It was a dowry less marriage. The conduct and behaviour of the respondent was not very good from the

very first day after the marriage. After two months of marriage, the respondent started telling petitioner No. 4 that she never wanted to marry and it is

a compulsive marriage, as she is a doctor and wanted to live an independent life and many a times, complained about some mood disorders.

Petitioner  No. 4 himself being a doctor told her that they can always get a good consultation, if she is having mood swings. The relationship

between the petitioner No. 4 and respondent remained cordial for a period of two months, but after that respondent started showing her true colours

and started to harass the petitioner Nos. 1, 3 and 4 in front of their relatives and started picking up quarrels. Petitioner No. 2 has already got married

since 2006, i.e., for the last twelve years and is staying at her matrimonial house and has been unnecessarily dragged in the litigation to harass her as

well as the petitioner Nos. 1, 3 & 4. That brother of the respondent is in the Police Department and is serving as Sub-Inspector and further, the father

of the respondent is a retired Dy.SP from Police Department and petitioner No. 1 belongs to a very simple family having three daughters and only son,

were pressurized and harassed by the respondent’s family and the respondent took advantage of the gentleness of the petitioners and started

pressurizing the petitioner No. 4 to live separately from his family members and when the petitioner No. 4 objected to it, the respondent threatened him

of implicating the petitioners in false and frivolous cases. In the year 2012, the petitioner No. 4 was transferred to District Hospital, Reasi and at

that time, respondent was going her PG, so she remained in the matrimonial house, but instead of taking care of the old parents of the petitioner No. 4,

she started using filthy language and harassing the family members of the petitioner No. 4. The petitioner No. 4 took her to his place of posting, i.e.,

District Hospital, Reasi, but there also when she was staying away from other family members of the petitioner, even then did not mend her ways and

created scenes before the office staff of the petitioner No. 4. Due to this consistent tension and pressure created by the respondent, the father of

the petitioner No. 4 fell sick in July, 2012 and ultimately, expired on       19th July, 2012. After the death of the father of petitioner No.

4, the atrocities of the family members of the respondent increased and they threatened the petitioners that if the petitioner No. 4 decides to stay in the

house with his mother and unmarried sister, then they will implicate him in false and frivolous cases. The petitioner No. 4 being the only son of his

parents did not accede to such illegal and illogical demand of the respondent. The respondent threatened the petitioners that she will inject herself

with some injection and will commit suicide. Â Petitioner No. 4 being a doctor could see that there was some behaviourial disorder with the

respondent, as she frequently threatened him and his family members of committing suicide and further used to complain that she has some mood

swings. The respondent being a doctor herself could also understand about her behaviourial disorder, so she along with petitioner No. 4 went for her

Psychiatric check up in Government Medical College, Jammu on 20th December, 2012, where she was suggested by the doctor to go for therapy and

counseling sessions, but respondent became adamant and did not follow the treatment.Â

It is also stated in the instant petition that after the death of the father of the petitioner No.4, the respondent became very adamant that the

petitioner No. 4 should leave his ailing mother, who was suffering from liver, spleen, heart enlargement and uncontrolled sugar, for which she needed

consistent supervision and attendant and his unmarried sister, i.e., petitioner No. 3, but when the petitioner No. 4 categorically refused to do the same.

The respondent threatened the petitioner No. 4 that she would leave the house and lodge a false and frivolous complaint again him and his family

members, if he did not agree, as her brother is in police department and father is a retired Dy.SP and she left the house and did not return for two

months. The petitioners approached the respondent many a times to return her back, as she had conceived and they were worried about her

health. After great efforts, the respondent was brought back to the matrimonial house. Despite all this, the behaviour of the respondent did not

change at all, as she used to scream unnecessarily on the maids and also used to create scenes in front of the relatives of the petitioner No. 4. In

the year 2014, the petitioner No. 4 was posted at Reasi and the respondent was posted in GMC. During that time, the respondent also used to leave

her matrimonial house without the consent of the petitioners. When petitioner No. 4 used to enquire about the same, the respondent used to become

hyper and threatened the petitioners that she will implicate them in false and frivolous cases.Â

It is further stated in the instant petition that the petitioner told the respondent that after the death of the father of the petitioner No. 4, he is the only

male member in his family and the respondent being daughter-in-law should also take care of petitioner No. 1, who is suffering from various ailments,

but the respondent became hyper and shouted at the petitioner that she cannot take care of petitioner No. 1 and further told that she cannot stay in her

matrimonial house and pressed hard that the petitioner No. 4 should arrange a separate accommodation, the respondent then threatened the petitioner

No. 4 of dire consequences, if he did not accede to this request and she even made an attempt to commit suicide. The petitioner No. 4 being a

doctor immediately shifted her to GMC, where she became aggressive and refused for any medical attention and the petitioner immediately shifted the

respondent to DMC, Ludhiana, where she was admitted. It is further submitted that even the brother of the respondent, who is in police department is

also suffering from some Psychiatric disorder, for which he has undergone medical treatment in the year 2011. The father of the respondent also

told the petitioner No. 4 that his daughter, i.e., respondent is suffering from some medical disorder. All the medical expenses of the respondent were

borne by the petitioner No. 4 despite being a doctor by profession and earning good amount she never used to spend a single penny from her earnings

on her own medical expenses. The behaviour of the respondent even after coming back from her treatment in DMC, Ludhiana did not change

towards the petitioner the on 26th June, 2016, she left her matrimonial house along with her minor daughters. Petitioner No. 4 was also scared and

threatened by his behaviour of the respondent that she can harm herself anytime and continuous cruelty by her, filed a Divorce Petition before learned

Additional District Judge (Matrimonial Cases), Jammu on 01st July, 2016 and summons were issued in the same and the same were served upon and

further, they appeared before the Court on 06th July, 2016 and received copies also. But thereafter, just to wreak vengeance, filed the Complaint

under the aforesaid Act. Under Section 12 of the aforesaid Act, the 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 and the Magistrate has to consider the

report of the protection officer, appointed by the Government in this regard.

It is further stated that the Trial Magistrate has treated the application, filed by the respondent like any other Complaint and has acted in a very

routine and casual manner while dealing with the application of the respondent. As per the specific provisions of the Act, a separate application under

Section 23 has to be moved for ex-parte orders, but from the perusal of the Complaint and interim application, it is clear that no application under

Section 23 has been filed. It is only an application under Section 12 read with Sections 17, 18, 19, 20 and 22 of Protection of Women from Domestic

Violence Act, 2010 and an order passed in the interim application is bad in law as it has been passed in Application under Section 12 read with

Sections 17, 18, 19, 20 and 22 of Protection of Women from Domestic Violence Act, 2010. As per the provisions of the Section 23 of the Act,

exparte interim maintenance can be granted to an applicant, if the   application is supported by an affidavit in such form, as prescribed under

law.Â

As per Rule 7 of the J&K Protection of Women from Domestic Violence Rules, 2011, which would provide that every affidavit for obtaining

exparte order under Sub-Section 2 of Section 23 of the Act, shall be in FormIII, but in the instant case, affidavit has not been drafted and sworn as per

Form-III. The application filed by the respondent under Section 12 read with Sections 17, 18, 19, 20 & 22 of the aforesaid Act is misconceived and

purely arise out of false and fabricated story made by the respondent. The proceeding initiated by the learned Judicial Magistrate 1st Class, Udhampur

under Section 12 read with Sections 17, 18, 19, 20 & 22 of the aforesaid Act against the petitioner without even taking into consideration the provisions

of the aforesaid Act are mere abuse of process of law and such proceedings are liable to be quashed.Â

Heard the rival contentions.

The operative part of the interim order dated 28.07.2016 passed by the trial Court reads as follows:-

“Heard learned counsel for the petitioner (Dr. Kavita Sharma) and I have gone through material on the file. At this stage, the case is made out

for granting interim ex-parte order in favour of the petitioner, as she is lawfully wedded wife of the respondent No. 1 and she was living with other

respondents in a shared household in domestic relationship.

Interim ex-parte order is passed in favour of the petitioner, prohibiting respondents from committing any acts of Domestic Violence or entering the

place of employment of the petitioner or any other place frequented by petitioner and the respondents are also restrained from alienating or disposing

off the shared household or encumbering the same and also restraining the respondents from renouncing their rights in the shared household except

with the leave of the Magistrate. RespondentNo. 1 is directed to pay monthly maintenance of the daughters ofthe petitioner @ Rs. 5000/- to each

daughter, i.e., total amount ofRs. 10,000/- per month, subject to the objections from the othersides.â€​

Counsel for petitioners has reiterated the grounds and has argued that court below has not bothered to issue notices to them prior to passing of

impugned order and even after passing of impugned order, such order on the face of it is illegal. Whereas counsel of complainant has supported the

order and has also argued that Magistrate has power to pass ex-parte interim order in terms of section 23(2) of Act in case of emergency. Â

I have given my thoughtful consideration to whole aspect of matter and law on the point.Â

The Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 has been legislated for more effective protection of the rights

of womenguaranteed under Constitution, who are victim of violence.

Section 12 of Act empowers victim to file a petition before Magistrate regarding domestic violence; section 18 deals with passing of protection

order;Â section 19 deals with passing of residence order;Â section 20Â deals with passing of monetary order;Â 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 sections 12 of Act.           Â

Section 23 of Protection of Women from Domestic Violence Act, reads as under;-

“23. Power to grant interim and ex parte orders.â€"(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 maybe, section 22 against the respondent.â€​

Bare perusal of this section, it is evident that Section 23 of Act empowers the Magistrate to grant ex-parte interim relief/s as Magistrate 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 ex-parte interim order during pendency of main petition under section 12 of Act; section 23(2) empowers Magistrate to pass ad-interim order

during pendency of interim petition under section 23(1) of Act.Â

The purpose of this section is to save the victim from vagrancy, continuous harassment, dispossession of victim from place of residence or share

hold, alienation of 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 an 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.Â

Hence, it is clear from the provision of section 23 of Domestic Violence Act that the Trial Court may pass an ex-parte order; and also order of

adinterim on the basis of the affidavit of the aggrieved person upon prima facie disclosure of the fact that the respondent is committing or has

committed the act of Domestic Violence or that there is likelihood that the respondent may commit an act of Domestic Violence. Section 28 of

Act states that all proceedings under section 12, 18,19,20,21,22 & 23 and section 31Â of Act shall be governed by provisions of Cr.P.C;Â sub

section (2)Â of section 28 of Domestic Violence Act gives the power to the trial court to lay down its own procedure for disposal of an application

under sections 12 and 23 of Domestic Violence Act. Under section 37 of Act Government can make rules for carrying out the provisions of Act.

Thus Govt. has also framed rules called Protection of Women from Domestic Violence rules 2011. For getting ex-parte order under section 23 (2)

of Act,an affidavit in Form III as provided under Rule 7 is required to be annexed by applicant. Counsel for petitioner has relied upon 2014 (4)

JKJ 347 in case titled Vinay Sharma and ors. Vs. Shweta Sharma and ors. wherein it is held that before passing order in ex-parte, court has to

consider domestic/incident report and affidavit should be as per Rule 7 in Form III.Â

In present case, bare perusal of impugned order it is evident that court below has granted ad-interim relief in a petition under section 23 of Act in

favour of children; Petitioners have not denied the fact of paternity of children. Further from the perusal of trial court file it is evident that, petitioners

have already filed objections to both petitions filed under section 12 and 23 of D. V. Act separately before court below. Those objections are yet to be

considered by court below; in said objections same grounds have been taken that have been taken before this Court. The purpose of granting ad-

interim monetary relief to child of the aggrieved person of domestic violence is that claimant may not feel distress or destitute till final disposal of main

petition.

This court while exercising the power under section 561-A Cr.P.C, does not function as court of trial, appeal or revision. Inherent jurisdiction has

to be exercised disparity, carefully and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary

power vested in High Court to do substantial justice. High Court cannot appreciate disputed question of facts. This is a prerogative of trial court where

proceeding is pending and petitioners herein have opportunity to advance submission before trial court that material on record do not constitute the

case of taking of cognizance under D. V. Act.Â

It is not the case of petitioners that there is some legal bar engrafted in any law for trying the case under D. V. Act; further it is not the case of

petitioners that trial court lacks jurisdiction to deal with the matter.

Further as per section 25(2)Â of Act, any order passed under this Act, can be varied or altered or revoked by Magistrate on account of change in

circumstances and on the application moved by aggrieved person or respondent. This petition is, thus, disposed of with liberty to petitioners to argue

the matter before Court below on the grounds alleged in objections or on any other grounds before court below. Court below shall decide the

application/s as per law. Trial Court file be sent back