Mohammad Rafiq Wani & Ors vs Zamrooda And Anr

Sanjay Dhar, J

The petitioners have challenged the complaint filed by the respondents against them under the provisions of the Protection of Women from Domestic Violence Act, 2010, as also the order dated 18.11.2021, passed by the Chief Judicial Magistrate Ganderbal. Challenge has also been thrown to order dated 26.03.2020 passed by the Additional Special Mobile Magistrate Ganderbal in proceedings under Section 125 Cr.P.C filed by the respondent No.1 against her husband i.e, petitioner No.1 herein.

I have heard learned counsel for the petitioners and perused the record.

It appears that respondent No.1, who happens to be the wife and respondent No.2, who happens to be the minor son of petitioner No.1, have filed proceedings under the provisions of the Protection of Women from Domestic Violence Act, 2010 before the court of learned Chief Judicial Magistrate, Ganderbal. In the said proceedings, the respondent No.1 has alleged that, the petitioners herein have committed the acts of domestic violence against her. The learned Chief Judicial Magistrate, has, after perusing the material on record, recorded her satisfaction that the petitioners herein have committed domestic violence against the respondent No.1. Accordingly, vide impugned order dated 18.11.2021, petitioner No.1 has been directed to pay a sum of Rs.10000/- per month to respondent No.1 and Rs.7000/- per month to respondent No.2 as interim maintenance. Besides this, petitioner No.1 has been directed to provide one room with washroom on rental basis at Ganderbal to the respondents and he has further been restrained from committing any domestic violence against respondent No.1. The order impugned has been passed in ex parte and liberty has been given to the petitioners to approach the said court for modification or vacation of the order.

So far as the impugned order dated 26.03.2020 passed by learned Additional Special Mobile Magistrate Ganderbal is concerned, vide the said order the learned Magistrate has, after hearing both the parties, directed the petitioner No.1 to pay monthly maintenance allowance of Rs.3000/- to respondent No.1. The application has been finally decided vide the aforesaid order.

So far as the impugned order passed by learned Special Mobile Magistrate Ganderbal is concerned, the same is revisable in terms of Section 397 Cr.P.C. The petitioners have, without availing the remedy of revision, approached this Court by way of present petition under Section 482 Cr.P.C. Even otherwise, the said order has been passed only against petitioner No.1 herein but the instant petition has been filed not only by the petitioner No.1 but various other persons who have no locus standi to challenge the aforesaid order. Thus the instant petition, so far as it pertains to challenge to order dated 26.03.2020 passed by learned Special Mobile Magistrate Ganderbal, is not maintainable. The petitioner No.1 is at liberty to challenge the said order in appropriate proceedings before the appropriate forum by way of a revision petition.

Coming to the proceedings initiated by the respondents against the petitioners under the provisions of the Protection of Women from Domestic Violence Act and the impugned order passed thereon, it is to be noted that the order passed by the learned Chief Judicial Magistrate is ex parte in nature and is liable to be modified or vacated upon motion by the petitioners herein. In these circumstances, it would be appropriate to dispose of this petition at threshold itself by directing the learned Chief Judicial Magistrate Ganderbal to decide the question of grant of interim relief in the proceedings under the provisions of the Protection of Women from Domestic Violence Act on merits after hearing both the parties.

Accordingly, while holding that the petition to the extent it challenges order dated 26.03.2020, passed by Additional Special Mobile Magistrate Ganderbal, is not maintainable, it is directed that the Chief Judicial Magistrate shall, after hearing the petitioners and after allowing them an opportunity of filing their pleadings, decide the question of grant of interim relief to the respondents on merits within a period of 15 days from the date a copy of this order is made available to the learned Magistrate.