Zahoor Ahmad Bhat vs Shaista Akhter

Petitioner, through the medium of instant petition, seeks quashment of the order dated 17.01.2019 passed by the Court of Additional Special Mobile Magistrate, Pantha Chowk, Srinagar.

On perusal of the order dated 17.01.2019, it appears that an application under Section 12 of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 (hereinafter for short Domestic Violence Act) had been presented before the Court of Additional Special Mobile Magistrate, Pantha Chowk Srinagar, for the following reliefs:

I. To punish the respondents/accused persons for subjecting complainant/aggrieved person to Domestic violence;

II. To provide a right to the applicant to reside in the matrimonial home/shared household;

III. To order for payment of appropriate compensation and damages to the complainant for the damages and injuries caused the acts of domestic violence committed by the respondents against the complainant;

IV. To order for protection of the complainant and prohibit the respondents from committing any act of domestic violence;

V. To direct the respondents to secure accommodation for the aggrieved person.

Interim assistance had also been claimed in terms of one more application field therein which has been disposed of in terms of order dated 17.01.2019, which is impugned in the instant petition.

The grievance of the petitioner as projected, in terms of the instant petition, is that the objections and the contentions raised at Bar have not been properly appreciated by the learned Magistrate. In case, according to him, same would have been given thought, interim assistance would not have been granted.

It would be proper herein to have reference of the contentions raised at Bar and also in the objections, which find reference in the order impugned:

"The complaint is misuse of the legislation as there is no domestic relationship between the parties since last five months. The complainant has been putting up with her parents despite requests of the respondent to return to her matrimonial home. The relationship has come to an end on 14th July, 2018, when respondent No.1 has divorced the petitioner by means of a divorce deed executed and sent to the petitioner through registered post. After the complainant received the divorce deed, she approached the police concerned where she admitted having received the divorce and asked for compensation which accused No.1 denied and after that, the instant petition came to be filed. Prior to the execution of divorce deed, the respondent No.1 not only went himself and sent his elders requesting the complainant to return, he also approached the Chairman District Legal Services Authorities with pre-litigation application requesting the petitioner to come forward for peaceful settlement, however, the petitioner did not come forward which forced the respondent to withdraw the application. The respondent was left with no option but to divorce the complainant which he did on 14th July, 2018. The respondent No.5 has no relation with the accused and he is only friend of respondent No.1 and there is no domestic relationship between the complainant and respondent No.5. The respondent No.1 has never mal-treated the petitioner and was actually interested to have her company despite she having being declared unable to procure any child by the doctors but the petitioner left the house of the respondent and did not return for unknown reasons. The respondent No.2, 3 and 4 have been unnecessarily roped by the complainant. The respondent has been living separately for last so many years and there has been no such domestic relationship between the complainant and accused No.2, 3 and 4. Had there been any truth in the complaint, the police would have taken action against the accused but the police did not take any action which proves that the complaint is false. It was argued by the counsel for the respondent before the Magistrate that the petition suffers on technical, factual and legal aspects. He resisted the application mainly on the ground that the petition has not been moved in accordance with D. V. Act and rules framed thereunder. He argued that the petition under the Act needs to be filed in terms of form 2 provided under the Act, however, the same has not been done. He further argued that the affidavit accompanying the application needs to be filed in terms of form 3 as provided under the rules, however, this has not been done. He further argued that the application needs to be verified which the petitioner has failed to do. He further argued that there is no domestic relationship between the parties as Talak has been pronounced upon the petitioner when all the reconciliatory steps failed as the applicant did not appear in pre-litigation matter which was pending before Chairman, DLSA, Pulwama. In support of his arguments, he relied upon law laid down in 2014 (4) JKJ 347, wherein it has been held that before passing any order, Magistrate is required to consider the domestic incident report. He further relied upon law laid down in Criminal Revision No.30/2016, MP No.01/2016 of J&K High Court, wherein it has been held that the divorcee is not entitled to any interim relief in terms of D. V. Act. He further relied upon law laid down in 561-A No.56/2017, MP No.1/2017, wherein it has been laid down that no interim maintenance can be granted when divorce copy is placed on record."

Mr. Wani, learned counsel appearing for the petitioner submitted that in view of the fact that miscarriage of justice has occasioned due to passing of impugned order, inherent powers have been invoked in terms of Section 561-A Cr. P. C read with remedy provided undersection 104 and 103 of the J&K Constitution. No bar, according to him, exists for exercising powers by the High Court in the circumstances quoted in the petition and a remedy provided under Section 29 of the Domestic Violence Act too would not be sufficient to decline invoking of jurisdiction of the High Court.

Considered the submissions and have also gone through the impugned order along with the material placed on record by the petitioner. It is evident from the perusal of the order that the petitioner herein had raised certain objections as to the maintainability of the proceedings, reference of which is given hereinabove. In my opinion, an adequate remedy exists for taking care of the grievance which is prayed to be taken note of while entertaining the instant petition by availing the remedy under Section 29 of the Domestic Violence Act.

Section 29 of the Domestic Violence Act provides against an order passed by the Magistrate. Proper herein it would be to have a glance of Section 29:

"29. Appeal. -There shall lie an appeal to the Court of Sessions within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later."

It may be proper herein to state that the Hon'ble Apex Court in "Pratibha v. Rameshwari Devi & Others, in Criminal Appeal No. 1242 of 2007 arising out of SLP (Crl) No. 6334 of 2004 and this Court in "Jatinder Nath Bakshi Vs. State of J&K & Ors." reported in 2009(3) JKJ 679 (HC), have held that the power under Section 561-A Cr. P. C has to be exercised sparingly and in the rarest of rare cases. Similarly, the Hon'ble Apex Court has stated that the power under Article 227 of the Constitution of India, which is akin to Section 104 of the Constitution of J&K State, cannot be exercised on mere drop of fact or merely to correct any illegality committed by the subordinate Court.

Their Lordships of Hon'ble Apex Court in "Waryam Singh and another v. Amarnath and another" reported in 1954 AIR 215, have referred to the observations made by Harries C. J. in "Dalmia Jan Airways Ltd. v. Sukumar Mukherjee (2) that the power vested with the High Court in terms of Article 227 of the Constitution of India is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within bounds of their authority and not for correcting mere errors.

In "Shalini Shyam Shetty & anr vs. Rajendra Shankar Patil" (2010) 8 SCC 329, the Hon'ble Apex Court while referring to the case of "Laxmikant Revchand Bhojwani and another vs. Pratapsingh Mohansingh Pardeshi" reported in (1995) 6 SCC 576, reminded the High Courts that the power cannot be assumed in terms of Article 227 as an unlimited prerogative to correct all species of hardships of wrong decision. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principle of law and justice. Their Lordships also remarked that the jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. It has been also the observation of Their Lordships that the High Court cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it.

Having regard to what has been stated above, I do not find any scope for interference. Accordingly, there appears to be no merit and substance in the petition of the petitioner. The petition entails dismissal and is, accordingly, dismissed in limini along with connected IAs. The petition The petitioner is left free to avail appropriate remedy and may, if cause survives, thereafter approach this Court.

Copy of this order be sent to the learned Magistrate for information.