Jammu & Kashmir High Court
Ajay Kaul & Ors. vs State And Ors. on 1 February, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.274/2016, IA Nos.01/2017, 01/2016
Date of order: 01.02.2019
Ajay Kaul and ors. Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Vi render Bhat, Advocate.
For respondent (s) : None for respondent Nos.1 to 3.
Mr. R. Koul, Advocate with Ms. Anjeet Kour, Advocate for respondent No.4.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C.) petitioners seek quashing of proceedings cognizance whereof has been taken as an offence by order dated 21.10.2014 and also quashing of the order dated 08.06.2015 whereby interim orders of Rs.20,000/- per month and sharing of the accommodation at Flat bearing No: 6258 (5thFloor) F-Block, FDDI Apptts. Sector-50, Noida, has been passed against petitioner No.1.
2. The case of the petitioners is that respondent No.4, who is the wife of petitioner No.1, filed an application under the provisions of J&K Protection of Women from Domestic Violence Act, 2010. It is stated that the marriage between the petitioner and respondent No.4 was solemnized on 21.04.2003 at Udhampur. The case set up by the respondent No.4 is that after marriage they stayed at Shakti Nagar, Jammu for a few months and thereafter lived either in Delhi, Mumbai, or Bangalore. The relation between the petitioner and respondent No: 4 is admittedly stated to have CRMC No.274/2016 Page 1 of 14 remained cordial for a few years and thereafter the petitioner No.1, his mother, father are allegedly started demanding dowry. The sister of the petitioner No.1 is stated to have instigated the petitioner No.1 and his parents against the respondent No.4. It is stated that perusal of the complaint of the respondent No. 4 shows that the acts of the domestic violence have taken place outside the State of J&K i.e., Delhi, Mumbai or Bangalore and she has stated that petitioner No.1 has rental income from the accommodation situated at Noida apart from the salary that he is earning. Thus, it is manifest that the property at Noida is not in his physical control or actual possession, yet respondent no.4 seeks sharing of the said accommodation. It is further stated that apart from petitioner No.1, his mother and sister too have been arrayed as respondents in the complaint under the J&K Protection for Women from Domestic Violence Act. The respondent No.2 has taken cognizance of the complaint and issued the process to the respondents by order dated 21.10.2014. Vide order dated 08.06.2015 the Court below has passed the interim orders of Rs.20,000/- per month and sharing of the accommodation at Flat bearing No:6258 (5th Floor) F-Block, FDDI Apptts. Sector-50, Noida. The said interim order was challenged in appeal and the said order has been upheld by the respondent No.3.
3. Learned counsel for the petitioners states that The Jammu And Kashmir Protection of Women from Domestic Violence Act, 2010 is a State Act. The jurisdiction of the adjudicatory authorities is confined to the incidents of domestic violence taking place within the State, may be in any district or province and with respect to the parties residing within the State of J&K. The incidents of domestic violence giving cause of action outside the State of J&K can be adjudicated under the provisions of the similar provisions under the Act operating outside the State of J&K. It is stated that scheme of the Act is manifestly clear that in terms CRMC No.274/2016 Page 2 of 14 of Section 2(i), Magistrate means the judicial Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, Samvat 1989, in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place. The definition refers to the Magistrate exercising Jurisdiction under the J&K Criminal Procedure code. Thus obviously residence of the aggrieved person or the respondent is also referable to the residence within the State where J&K Cr.P.C. operates. The place of domestic violence also refers to the place under the said code.
4. The definition of the protection officer is given under Section 2(n).
„Protection Officer‟ means an officer appointed by the Government under Sub-section (1) of Section 8. In terms of the Rules made under the said Act definition of the Government is given under Rule 2(e). „Government‟ means the Government of Jammu and Kashmir. In terms of Sub Section 5 of Section 19 the Magistrate is competent to pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person. And in terms of Sub Section 7 the Magistrate may direct the officer in charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order. Thus, the Magistrate under the Act can either order the officer incharge of the police station within his jurisdiction or officer of the nearest police station to enforce the protection order. The act is not designed to issue such order out of the State. The State legislature could not make any law which has extra territorial jurisdiction included. It would be beyond the legislative competence. The law passed by the Parliament of India, if extended to the State with concurrence of the State, may deal with the cause of action, protection order or intra State or inter State causes by any Magistrate. The Act envisages the service of the notice of hearing fixed CRMC No.274/2016 Page 3 of 14 under section 12 shall be given by the Magistrate to the Protection Officer.
5. Learned counsel for the petitioners states that the right to reside in a shared household conferred by section 17 of the Act is applicable only to the house which is being used by the aggrieved party and the respondent as shared accommodation. This right is not available with respect to the property which is leased out to a stranger to the parties. Therefore, the order of accommodation passed by respondent No.2 and confirmed by respondent No.3 is without jurisdiction. It is further stated that under the aforesaid Act the aggrieved person has to be women in a domestic relationship with respondent. Aggrieved person is defined under Section 2(a). "Aggrieved person" means any women who is in a domestic relationship with respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Under section 2 (q) "respondent" means any adult male person who is in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provide that an aggrieved wife may also file a complaint against a relative of the husband or the male partner. The term complaint is not defined under the Act but is defined under the rules. Complaint is defined in Rule 2 (b). „Complaint‟ means any allegation, oral or written, made by any person to the Protection Officer under Section 4 of the Act. Further, that the term accused is not germane to the Act, it defines aggrieved person and respondent. Proceedings under Section 12, 18, 20, 21, 22 and 23 do not entail any punishment by way of fine or imprisonment. The scheme of the Act does not consider any act of the domestic violence as an offence. Therefore act in essence is civil in nature with option to either adopt Cr.P.C. for proceeding under Section 12, 18, 20, 21, 22 and 23 or to devise its own procedure. The option of application of Criminal CRMC No.274/2016 Page 4 of 14 Procedure is made limited to the proceedings under the said section. The appeal against the order is provided to the Session Judge and not further revision or appeal is provided under the Act.
6. Learned counsel for the petitioners further contends that the petitioner Nos.2 to 4 have been living separately and not with petitioner No.1 or the respondent 4. The petitioner No.4 is married and has never lived with petitioner No.1 or his wife. A perusal of the provisions make it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. If there is a joint family where father has several sons with daughter-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; it cannot be said that wife of each of the sons can claim a right to live in the house of the father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. It is stated that the orders impugned are without jurisdiction and, therefore, are liable to be quashed.
7. In support of his contention, learned counsel for the petitioners relies upon a decision of Hon‟ble Supreme Court in case titled Kunapareddy alias Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari and anr., reported in AIR 2016 SC 2519. Reliance is also placed on the following decisions:
1. 2016 (1) HLR 362, Om Parkash Syngal and ors vs. Shimla Garg
2. 1992 AIR (J&K) 1, K. Radha Krishnan Nayyar vs. Smt.Radha
3. 2016(1) DMC 587, Suo Motu vs. Ushaben Kishorbhai Mistry CRMC No.274/2016 Page 5 of 14
8. On the other hand, learned counsel for the respondent No.4 has supported the orders impugned and has argued that petitioners have never appeared before court below and filed objections; so factual pleas cannot be considered.
9. I have considered the rival contentions of the parties.
10. The arguments of counsel for petitioner in brief are that there is no report of Protection Officer, so complaint/petition before Court below is not maintainable; that court below has no territorial jurisdiction as parties have although solemnized marriage at Udhampur but never lived at Udhampur and no violence as alleged in complaint have been committed at Udhampur; if any sort of violence as alleged has taken place, that has taken outside the State of J&K i.e., Delhi, Mumbai or Bangalore; that order of accommodation in shared house is situated at Noida to which Magistrate has no power as it is situated outside territory of State and where provisions of Act are not applicable.
11. The Jammu and Kashmir Protection of Women from Domestic Violence Act 2010 has been legislated for more effective protection of the rights of women guaranteed under Constitution, who are victim of violence. It is complete code which includes jurisdiction of JMIC in dealing the petition under section 12 of D.V. Act. Section 12 of Act empowers victim to file a petition before Magistrate regarding domestic violence; section 18 deals with passing of protection order; section 19 deals with passing of residence order; section 20 deals passing of monetary order; 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 section 12 of Act. Section 12 of act reads as under:-
CRMC No.274/2016 Page 6 of 14"Application to Magistrate (1) An 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:
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident/report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, Samvat 1977 or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every application made under subsection 1 within a period of sixty days from the date of its first hearing."
12. Chapter IV of the DV Act pertains to the procedure has to be followed by the Magistrate to grant relief to an aggrieved person. Under Section 12 of the DV Act, an application has to be presented by an aggrieved person, either by the person herself or a Protection Officer or any other person on behalf of the aggrieved person to the Magistrate, seeking relief as provided under the DV Act. A proviso has been added to Section 12(1) of the Act, that before passing any such order on any application received, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the Service Provider. Section 9 of the DV Act entails the duties and functions of a Protection Officer, whose primary duty is to assist the Magistrate in the discharge of his functions under the Act, to make a CRMC No.274/2016 Page 7 of 14 domestic incident report to the Magistrate in the form prescribed, upon receipt of a complaint of domestic violence, while forwarding copies of the complaint to the Police Officer in charge of the Police Station within the local limits of whose jurisdiction, domestic violence is alleged to have been committed, as well as to the Service Provider. Section 9(2) of the DV Act further provides that the Protection Officer shall be under the control and supervision of the Magistrate and shall perform the duties imposed on him by the Magistrate and the Government.
Moreover, Section 4 of the DV Act provides that any person, who has reasons to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer.
13. On a conjoint reading of Sections 9 and 12 of the DV Act, it is manifestly clear that it is duty of the Protection Officer to work under the control and supervision of the Magistrate and to perform duties imposed upon him by the Magistrate and in case, he has received a complaint on domestic violence. then to make a domestic incident report and submit it to the Magistrate, as well as to forward copies of the complaint to the Police Officer in charge of the police station within local limits of whose jurisdiction, domestic violence is alleged to have been committed. The proviso added to Section 12(1) of the DV Act is only to the effect that in case a domestic incident report has been received by the Magistrate, the same shall be considered before passing any order on an application received. Section 12 of the DV Act per se does not hold that a Magistrate on receipt of complaint is obligated to call for a domestic incident report, before passing any order on an application. So it is not mandatory for a Magistrate to obtain a domestic incident report before the Magistrate passes any order provided under various section of Act; so receipt of domestic incident report is not a pre-requisite for issuing a notice to the CRMC No.274/2016 Page 8 of 14 respondent. Magistrate, on the basis of an application supported by affidavit, on being satisfied can even grant ex parte orders in favour of the aggrieved person under Sections 18, 19, 20, 21 or 22 of the DV Act.
14. As already discussed above, proviso to Section 12(1) only stipulates that the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. Section 12(1) does not directly stipulate that a report 'shall' be called for, before any relief can be granted.
15. So argument of counsel for petitioner that report of protection officer is sine qua non for issuing process in petition under section 12 of Act, is not maintainable.
16. Second argument of counsel for petitioners with regard to territorial jurisdiction of CJM Udhampur to entertain the petition and passing of order impugned is concerned, section 27 of Act reads as under:-
"Jurisdiction The Court of Judicial Magistrate of the First Class within the local limits of which
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act."
17. From bare reading of the said Section would show that only such courts are competent to entertain a complaint where the aggrieved person/respondent permanently or temporarily resides or carries on business or is employed, or where cause of action arises. It is argued that merely on account of the fact that the respondent No.4 herein is temporarily residing with her parents at Udhampur, the court at Udhampur would not have jurisdiction to entertain the petition.
CRMC No.274/2016 Page 9 of 1418. The expression „temporary resides‟ in Section 27 implies something more than a causal stay and implies some concrete intention to stay at a particular place. The temporary residence means where an aggrieved person is compelled to take shelter or to take job or do some business, in view of domestic violence within her matrimonial home. Temporary residence so includes a place where an aggrieved person was compelled to reside in view of commission of domestic violence. Section 27 of the DV Act permits a Court to entertain a complaint of a person residing temporarily within its jurisdiction. Needless to say that after being subjected to domestic violence, it may not be possible for a woman to reside within the same jurisdiction as where the incident of domestic violence occurred and would shift and relocate to a place where she can reside/pick up a job or has some support, be it with her parents or near kith and kin.
19. In the instant case, the respondent No.4 is residing with her parents at Udhampur, which is natural residence of victim after she was thrown out of her matrimonial house. So in terms of section 27 of Act, CJM has jurisdiction to entertain the petition under section 12 of Act.
20. Another argument of counsel for petitioners is that magistrate has no power to direct the petitioners to allow respondent No.2 to share the accommodation at Flat bearing No: 6258 (5thFloor) F-Block, FDDI Apptts. Sector-50, Noida, because property is situated outside State to which this Act has no application. This argument is without any basis. Section 23 of Protection of Women from Domestic Violence Act, reads as under:
"23. Power to grant interim and ex parte orders.--(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 CRMC No.274/2016 Page 10 of 14 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 may be, section 22 against the respondent.
21. From 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.
22. 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 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 may be.
23. Section 19 reads as under:-
"Residence order (1) While disposing of an application under sub- section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order--
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the CRMC No.274/2016 Page 11 of 14 shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, Samvat 1989 and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-
section (3), the Court may also pass an order directing the officer incharge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer incharge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to."
24. Section 20 reads as under:-
"Monetary reliefs (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to, CRMC No.274/2016 Page 12 of 14
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 488 of the Code of Criminal Procedure, Samvat 1989 or any other law for the time being in force. (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub section (1) to the parties to the application and to the incharge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub- section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent."
25. From bare perusal of these relevant sections, it is evident that magistrate has been vested with power to pass appropriate order of residence in shared household as well as order of monetary relief. This depends upon facts of each case. The argument of counsel for petitioner that residence order cannot be passed with regard to property which is situated outside State, is not tenable. As in D.V. Act, there is nothing which debars the magistrate to pass such order with regard to property situated outside State. The aim and objects of D.V. Act can be gathered from the language used in preamble which says that "An Act to provide for more effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto". If it CRMC No.274/2016 Page 13 of 14 is held that magistrate cannot pass order with regard to property situated outside State, then very purpose of Act would be defeated.
26. Rest petitioners have taken grounds which are factual in nature; from perusal of order of court below, it is evident that petitioners have never appeared before court below and filed objections. So factual grounds taken in this petition cannot be considered at this stage. So far as petitioner no.4- Neetu Raina is concerned, who is sister in law of respondent No.4, I find nothing substantial against her in complaint/ petition; against her general allegation has been levelled in para 4 of petition, that whenever she comes home, she used to harass and humiliate respondent No.4 and except this allegation, there is nothing incriminating against her. So complaint/petition pertaining to petitioner No.4 is quashed. Rest of petitioners i.e. petitioner Nos.1 to 3 may file objections before court below. The law cited by counsel for petitioners is not applicable. The law cited in Om Parkash Syngal‟s case (supra) is pertaining to different set of circumstances; K. Radha Krishnan Nayyar‟s case (supra) is pertaining to Hindu Marriage Act; and Suo Motu vs. Ushaben Kishorbhai‟s case (supra) is also on different facts.
27. In view of the foregoing discussion, the petition in hand is hereby dismissed, being devoid of any merits. Before parting with this judgment, it is made clear that any observation made by this court hereinabove is only for the purpose of deciding the instant petition and shall have no affect on the merits of the case.
Jammu
01.02.2019 ( Sanjay Kumar Gupta )
Narinder Judge
CRMC No.274/2016 Page 14 of 14