Showkat Ahmad Bhat vs Rifat Bashir & Anr

M. A. Chowdhary, J

This Petition, under Article 227 of the Constitution of India, is directed against the Order dated 1st of March, 2021 passed by the Court of learned Judicial Magistrate (Munsiff/ Additional Special Mobile Magistrate), Pantha Chowk, Srinagar, in the application filed by the Respondents/ Applicants under Section 12 of the Protection of Women from Domestic Violence Act (for short “the D. V. Act”) read with Sections 18, 19, 20, 21 and 22 of the D. V. Act, whereby the Petitioner/ Non-Applicant No.1 has been directed to pay interim maintenance of Rs.4,000/-each; total Rs.8,000/-, in favour of the Applicant No.1 and her minor son, namely, Mohammad Mustafa/ Respondents herein, from the date of the application. Besides, a direction is also sought seeking strucking off the said application from the records of the Court below.

The Petitioner claims that he solemnized marriage with the Respondent No.1 on 29th of November, 2019 as per Muslim Sharia and, out of the said wedlock, the Respondent No.2 was born. It is stated that since certain disputes arose between the parties to the marriage, the Petitioner pronounced Talaq-e-Ahsan on the Respondent No.1 which was communicated to her on 28th of September, 2020 in presence of two witnesses, whereafter, the parties did not resume their marital relationship leading to the said Talaq becoming irrevocable on the completion of Iddat period.

It is pleaded that the Respondent No.1, thereafter, invoked the jurisdiction of the learned Judicial Magistrate, 1st Class, Pulwama, by filing an application under Section 125 of the Code of Criminal Procedure. In the said application filed by the Respondent No.1, on her own behalf and on behalf of the Respondent No.2 herein, the learned Magistrate, in terms of Order dated 9th of June, 2020, directed the Petitioner herein to pay an amount of Rs.1500/- each per month to the Applicants/ Respondents herein as interim maintenance from the date of institution of the application.

The Petitioner further alleges that the Respondent Nos. 1 and 2, thereafter, are stated to have filed an application under Section 12 of the D. V. Act for payment of maintenance before the Court of learned Judicial Magistrate (Munsiff/ Additional Special Mobile Magistrate), Pantha Chowk, Srinagar, who, in terms of Order dated 1st of March, 2021, while issuing notice to the Petitioner herein, directed the Petitioner to pay interim maintenance of Rs. 4,000/- each to the Applicants/ Respondents herein from the date of application. This Order dated 1st of March, 2021 has been impugned by the Petitioner, before this Court through the medium of the instant Petition.

Objections stand filed on behalf of the Respondents, wherein it is stated that the Petitioner cannot have any legitimate or legal grievance against the impugned Order dated 1st of March, 2022 passed by the Court of learned Judicial Magistrate (Munsiff/ Additional Special Mobile Magistrate), Pantha Chowk, Srinagar, as the said Order is well within the four corners of law and does not suffer from any illegality.

Learned Counsel for the Petitioner submits that it is well settled legal position that for grant of maintenance a party can either approach the Court of Magistrate under the Act soon after commission of domestic violence or under Section 125 of the Code of Criminal Procedure claiming maintenance. It is further submitted that the jurisdiction for granting maintenance under Section 125 of the Code of Criminal Procedure and the D. V. Act is parallel and that, if maintenance has been granted under Section 125 of the Code after taking into account the entire material placed before the Court, it is not necessary that another Magistrate under the D. V. Act would again adjudicate the issue of maintenance. It is contended that the law does not warrant that two parallel Courts should adjudicate the same issue separately and that, if adjudication has already been shown by a Court of Magistrate under Section 125 of the Code, then re-adjudication of the issue of maintenance cannot be done by another Court of Magistrate under the D. V. Act. It is also submitted that the proceedings before the Court of learned Judicial Magistrate (Munsiff/ Additional Special Mobile Magistrate), Pantha Chowk Srinagar, in the application under Section 12 of the Act are not maintainable as far as the issue of maintenance is concerned, as such, the Petition along with impugned Order is liable to be quashed and set aside.

Learned Counsel for the Respondents submits that the present Petition is not maintainable before this Court, inasmuch as the Petitioner has also an alternate and efficacious remedy available under Section 29 of the D. V. Act of filing an appeal before the Court of Sessions and prayed that the Petition filed by the Petitioner, thus being liable to be rejected, be dismissed.

Heard learned Counsel for the parties, perused the pleadings on record and considered the matter.

The Petitioner, though, in his Petition, has pleaded that once the Respondents were granted maintenance in terms of Section 125 of the Code of Criminal Procedure, they are not entitled to apply for maintenance in terms of the D. V. Act. Further, the learned Counsel for the Petitioner, while arguing, has raised some other points as well that the Order impugned has been passed by the learned Magistrate unmindful of the directions laid down by the Hon’ble Apex Court in a case titled ‘Rajnesh v. Neha & Anr.’ with regard to grant of maintenance under various statutes and the Code. He has submitted that in view of the aforesaid Judgment of the Apex Court, the Respondents herein, as Petitioners, were under an obligation to, not only plead in their application that they had moved an application for the grant of maintenance under Section 125 of the Code before the Magistrate, but also the order passed thereon with regard to grant of maintenance, besides furnishing of affidavit disclosing the details as have been required to be disclosed by the Hon’ble Apex Court. He has argued that the application of the Respondents before the Court below is thus, not maintainable in view of suppression of facts in their pleadings and the required affidavit and that the learned Magistrate had misdirected herself while granting maintenance without consideration of the aforesaid defects in the application.

It would be profitable to refer to the directions passed by the Apex Court in case titled ‘Rajnesh v. Neha & Anr.’, reported as ‘(2021) 2 Supreme Court Cases 324’ while interpreting the overlapping jurisdiction for the grant of maintenance under various statutes and the Code of Criminal Procedure. It had also been mandated by the Court to furnish the affidavit of assets and liabilities while moving an application for grant of maintenance. The Apex Court has very eloquently and elaborately discussed the law on the subject and, in Para 128, passed directions as under:

“128. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/ District Courts/ Magistrate Courts throughout the country. We direct that:

128.1. (i) Where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set-off, of the amount awarded in the previous proceeding(s), while determining whether any further amount is to be awarded in the subsequent proceeding.

128.2. (ii) It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding.

128.3. (iii) If the order passed in the previous proceeding(s) requires any modification or variation, it would be required to be done in the same proceeding.”

The Order impugned, on the application moved by the Respondents, is an ex parte Order, with a notice to the Petitioner herein to file Objections and the Order was subjected to alteration or modification as well. The Petitioner, instead of filing Objections before the Court below and asking for alteration/ modification of the Order or even dropping of proceedings, as alleged by the Petitioner to be not in consonance with the law laid down by the Apex Court which is binding on all in view of Article 141 of the Constitution of India, has filed the instant Petition before this Court under Article 227 of the Constitution of India which has a limited scope. The Petitioner had also an efficacious and alternate remedy to file an appeal in terms of Section 29 of the D. V. Act. In view of the alternate and efficacious remedy provided under the Statute, this Petition filed by the Petitioner is thus, not maintainable before this Court. Moreover, all the points raised in this Petition can be raised before the Court below, including the dropping of the proceedings. The Respondents, as wife and child of the Petitioner herein, are entitled to the grant of maintenance under overlapping/ concurrent jurisdiction provided under various statutes and the Code of Criminal Procedure.

Since, the proceedings under Section 12 of the D. V. Act are not in strict sense criminal in nature, as such, bar to halt/ revoke an order by a Magistrate is not attracted to these proceedings. The Supreme Court, in a case titled ‘Kamatchi v. Lakshmi Narayanan’, reported as ‘2022 SCC Online SC 446’ has observed that scope of notice under Section 12 of the D. V. Act is to call for a response from the Respondents in terms of the Statute so that, after considering the rival submissions, appropriate order can be issued. The grounds urged in the instant Petition can also be raised by the Petitioner before the learned Magistrate and, if, on consideration of the same, the learned Magistrate finds that no case for proceeding against the Petitioner is made out, the Magistrate would be at liberty to recall the order of summoning and to drop the proceedings against the Petitioner.

For the foregoing reasons and observations made hereinabove, this Petition, in view of the alternate and efficacious remedy available under the D. V. Act, is not maintainable in the present form and is liable to be rejected. As a result, the Petition is dismissed, along with the connected CM. Interim direction(s), if any subsisting as on date, shall stand vacated. The Petitioner, however, shall be at liberty to move the Court below with all the points that have been raised in this Petition through his Objections, which shall be considered by the learned Magistrate in terms of the Judgment supra of the Supreme Court.