Haji Hilal Mehmood Dar vs Waheeda Mir & Others

Sanjay Dhar, J

1) The petitioner has challenged the proceedings under the provisions of the J&K Protection of Women from Domestic Violence Act pending against him in the Court of Judicial Magistrate, 1st Class (City Munsiff), Srinagar. The petitioner has also challenged orders dated 01.11.2017, 23.01.2017 and 04.07.2016 passed by the learned trial court in the aforesaid proceedings that have been initiated by respondent No.1 against him.

2) It emerges from the record that respondent No.1, who happens to be the wife of the petitioner, has filed a petition in terms of the J&K Protection of Women from Domestic Violence Act against the petitioner alleging commission of acts of domestic violence by the petitioner against her. In the complaint filed before the learned trial court, the respondent No.1 has prayed that the petitioner herein be restrained from evicting or dispossessing her from the residential house situated at Khan Colony, Chanapora, Srinagar and he be also restrained from entering into the said house. A further prayer prohibiting the petitioner herein from committing the acts of domestic violence and to handover back the jewellery and other precious items to the petitioner, has also been made.

3) It seems that the learned trial Magistrate, after considering the objections filed by the petitioner herein and after hearing the parties, passed order dated 04.07.2016, whereby the petitioner has been restrained from dispossessing respondent No.1 from her house bearing No.31-A situated at Chanapora. A further direction has been issued to the petitioner herein not to enter into the said house and not to commit the acts of domestic violence on the respondents. The petitioner has been further asked to restore back the golden ornaments and other valuables to the respondent No.1 within a period of two months and he has also been directed to pay a monthly maintenance of Rs.5000/ to the respondent No.1.

4) It appears that the aforesaid order of the learned Magistrate came to be challenged by the petitioners herein by way of an appeal in terms of Section 29 of the Domestic Violence Act before the Court of learned 2nd Additional Sessions Judge, Srinagar. The appeal came to be dismissed vide order dated 23.12.2016 on the ground that the same is barred by limitation.

5) The record further reveals that the petitioner had filed an application for modification of order dated 24.07.2016 passed by the learned Magistrate but the said application also came to be dismissed by the learned Magistrate in terms of his order dated 07.06.2017. It also appears from the record that the aforesaid order of the learned Magistrate was challenged by the petitioner herein by way of an appeal before the learned 1st Additional Sessions Judge, Srinagar, but the said appeal was dismissed on merits by the said Court in terms of order dated 19.08.2017. It also emerges from the record that two orders, one dated 23.01.2017 and another dated 01.11.2017, have been passed by the learned trial Magistrate in the execution proceedings arising out of order dated 04.07.2016. Both these orders are also under challenge before this Court in these proceedings under Section 561-A of J&K Cr. P. C.

6) It has been contended by the petitioner that the impugned orders have been passed in gross violation of the law, more particularly in violation of Section 23 of the Domestic Violence Act. The petitioner has made allegations of tampering in order dated 04.07.2016 and he has also made personal allegations against the learned Presiding Officer. It has been submitted that the petitioner has already approached the Registrar Vigilance of the High Court by way of a complaint in this regard. It is further contended that the respondent No.1 has, while lodging the FIR No.113/2016 for offences under Section 354, 506, 379 RPC against the petitioner, admitted that she has dissolved her marriage with the petitioner and if that is so, the proceedings initiated by her against the petitioner under the provisions of the Protection of Women from Domestic Violence Act cannot be sustained.

7) I have heard learned counsel for the parties and perused the record of the case.

8) As already noted, vide the impugned order dated 04.07.2016, the learned trial Magistrate has, after hearing the parties, passed a detailed order issuing certain directions against the petitioner herein including an order restraining him from entering the house where the respondent is residing. A direction for interim maintenance and a direction asking the petitioner not to inflict the acts of domestic violence upon the respondent have also been passed. The said order has been challenged by the petitioner before the learned 2nd Additional Sessions Judge, Srinagar, without any success.

9) It has been contended by learned counsel for the petitioner that the impugned order has been pre-dated by making a tampering therein, as a result of which he could not file an appeal within the prescribed period of limitation on account of unrest which took place in Kashmir Valley in the year 2016. This is an issue which cannot be gone into in these proceedings. The petitioner has already made a complaint before the Registrar Vigilance of this Court and whether the order has been tampered with or not and if so, who has tampered with it, is a subject matter of enquiry before the Registrar Vigilance as per the own showing of the petitioner. Even otherwise, these grounds were taken by the petitioner in his application for condonation of delay in filing the appeal before the Appellate Court but the same did not find favour with the said Court. The order of the Appellate Court has not been assailed by the petitioner and, as such, the same has acquired finality. Without laying any challenge to the order of the Appellate Court, it is not open to this Court to review the findings recorded by the learned Appellate Court. Even otherwise, the petitioner’s attempt to seek modification of the impugned order dated 04.07.2016 has also met with no success as the learned Magistrate has, vide order dated 07.06.2017, refused to modify the impugned order dated 04.07.2016. The appeal against the said order has also been dismissed and the order passed by the Appellate Court has not been assailed by the petitioner. Therefore, the impugned order dated 04.07.2016 and the order rejecting the prayer for its modification both have acquired finality and, as such, the same cannot be interfered with in these proceedings.

10) So far as the orders dated 01.11.2017 and 23.01.2017 are concerned, the same have been passed by the learned Magistrate in furtherance of execution of order dated 04.07.2016. Vide the aforesaid orders, directions have been issued to the DDO of the petitioner to deduct the amount of monthly maintenance from his salary. It was well within the jurisdiction of the learned Magistrate to pass such orders, particularly when the petitioner had failed to deposit the amount of maintenance granted in terms of order dated 04.07.2016. Thus, no fault can be found with the aforesaid two orders passed by the learned Magistrate in the execution proceedings. The same do not deserve to be interfered with by this Court in these proceedings.

11) Lastly, it has been contended by the petitioner that the then learned Sub-Registrar was having some personal affiliation with the respondents and on account of this, he has passed the impugned orders. In this regard, it is to be noted that the petitioner has himself admitted that he had filed a criminal transfer application seeking transfer of petition filed under Protection of Women from Domestic Violence Act from the Court of Judicial Magistrate, 1st Class (Sub Registrar), Srinagar, to the Court of City Munsiff, Srinagar, or any other Court of competent jurisdiction and vide order dated 31.10.2017 passed by learned Additional Sessions Judge, Srinagar, the case has been transferred from the Court of Judicial Magistrate, 1st Class (Sub-Registrar), Srinagar, to the Court of Judicial Magistrate, 1st Class (City Munsiff), Srinagar. The orders passed by the Court of Sub Registrar, Srinagar, which are under challenge in these proceedings, relate back to the year 2017 and by now several Presiding Officers have changed positions in the said Court. Therefore, even if petitioner had any apprehension as regards the impartiality of the Presiding Officer of the relevant time, the same does not survive as of today.

12) So far as the contention of the petitioner that the respondent has admitted that she has been divorced by him is concerned, it is open to the petitioner to raise this contention before the learned trial Magistrate by placing on record the documents relevant to the issue during the trial of the main petition whereafter the learned Magistrate shall, after considering the case on its merits, pass appropriate orders in the main petition.

13) For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed.

14) A copy of this order be sent to the learned Magistrate for information and compliance.