Jammu & Kashmir High Court - Srinagar Bench
Showkat Hussain And Others vs Mst Nazia Jeelani And Another on 7 November, 2019
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Supplementary list
S.No.162
IN THE HIGH COURT OF JAMMU AND KASHMIR AT
SRINAGAR
...
Reserved on:23.10.2019
Pronounced on: 07.11.2019
CRM(M) 254/2019
Crl M No.850/2019
Showkat Hussain and Others
.......Petitioner(s)
Through: Mr. Showkat Ali Khan, Advocate
V/s
Mst Nazia Jeelani and Another
......Respondent(s)
Through: Mr. S.H.Salathi, Advocate
Ms. Tabasum Zaffar Jalali, Advocate
CORAM:
Hon'ble Mr Justice Sanjeev Kumar, Judge
JUDGMENT
1. Petitioners invoke the inherent jurisdiction of this Court vested in terms of Section 561-A Cr.P.C for setting aside the order dated 27th July, 2019 passed by 2nd Additional Sessions Judge Srinagar ("the Appellate Court" for short) in case No.03/App/II as also the order passed by Sub Judge Special Mobile Magistrate (under 13th Finance Commission), Srinagar (hereafter for short "the trial court'), passed in file No.82/A dated 12th March 2018. Few facts which are relevant for the disposal of this petition may be noticed first.
2. The respondents filed an application in terms of Section 12 of the Jammu and Kashmir Protection Of Women From Domestic Violence Act, 2010 (hereafter for short "the DVA"), which was contested by the petitioners by filing their objections. Apart from and in addition to meeting the contents of the application, the petitioners also took an objection with regard to the maintainability of the application. The parties led their evidence in support of their respective cases. The trial court after considering all the issues 2 CRM(M) 254/2019, CrlM No.850/2019 involved, allowed the application and granted the reliefs in favour of the petitioners therein, which are detailed in para 61 to 67 of order dated 12th March, 2018. The appeal preferred by the petitioners herein before the Appellate Court came to be dismissed on 27th July, 2019. The order of the trial court was, thus, upheld. The petitioners are, thus, aggrieved and assail the order impugned, primarily, on the following grounds:-
a) That the orders impugned are not sustainable in law, for, both the courts below have not correctly appreciated the true import of Section 2 sub section (a) and (f) of the DVA and the respondent no.1 being the divorced wife was not "an aggrieved person" to maintain the petition under Section 12 of the DVA.
b) That the courts below have failed to appreciate the evidence that was led before the trial court and have returned findings of fact which are totally perverse.
3. The petition is vehemently resisted by the respondents. It is submitted that this Court in exercise of its jurisdiction vested in terms of 561-A Cr.P.C may not re-appreciate the evidence to come to a finding of the fact which is different from the concurrent findings recorded by the two courts below. It is urged that the trial court as also the Appellate Court, after appreciating the evidence in its true perspective, have rightly concluded that the plea of the divorce put forth by the petitioners, has not been proved and that the form of divorce i.e Triple Talaq is null and void and, therefore, does not result in dissolution of marriage and severing the relationship of husband and wife between the petitioner no.1 and respondent no.1. This finding of fact recorded by the trial court and affirmed by the Appellate Court is based on proper appreciation of respondents' evidence on record and, therefore, no interference therewith is called for. The respondents have also disputed the 3 CRM(M) 254/2019, CrlM No.850/2019 proposition of law propounded by the learned counsel for the petitioners that a divorced wife is not "an aggrieved person" and, therefore, no petition/complaint under Section 12 of the DVA on behalf of divorced wife is maintainable.
4. Having heard learned counsel for the parties and perused the record, I find that following questions arise for determination in this case:
I) Whether the finding of fact recorded by the trial court and upheld by the Appellate Court suffer from perversity?
II) Whether in the face of evidence that has come on record, it is sufficiently proved that, respondent no.1 had been divorced by the petitioner no.1 and had ceased to be in domestic relationship on the date of filing of application under Section 12 of the DVA? III) If answer of Question no.II is in the affirmative; whether the divorced wife who has previously remained in domestic relationship with the husband can be said to "an aggrieved person" entitled to file an application under Section 12 of the DVA?
5. I have gone through the judgments of both the courts below carefully and do not find any perversity in the findings of the fact returned by both the courts. Both the courts have concurrently held that the petitioner no.1 has failed to prove factum of divorce. That apart, looking to the divorce deed, both the courts below have rightly concluded that the form of divorce i.e triple talaq in one go is null and void in view of the law laid down by Hon'ble the Supreme Court in case of Shayara Bano and Ors vs. Union of India & Ors, reported in JKLT 2017 Volume 4 (SC) 1.
6. I have no reason to differ with the aforesaid finding of fact recorded by the trial court and upheld by the Appellate Court. The bare perusal of the divorce deed relied upon by the petitioner no.1 makes it abundantly clear that 4 CRM(M) 254/2019, CrlM No.850/2019 he has sought to divorce respondent no.1 by claiming that he had pronounced triple talaq on her in presence of the two witnesses. Since this form of talaq is not legally valid, as such, it cannot be said that by execution of the divorce deed and even pronouncing the talaq three times, the relationship between the petitioner no.1 and respondent no.1 as husband and wife has severed and the marriage has come to an end. That being the position, the plea of the learned counsel for the petitioners that there was no domestic relationship in existence on the date of filing of application, is totally misconceived and cannot be accepted.
7. Equally untenable is the contention of learned counsel for the petitioners that both the courts below have not appreciated the evidence on record in proper perspective and have granted the relief to the petitioner no.1 arbitrarily. The evidence led by the petitioner no.1 which includes her own statement as also the statement of her mother Shareefa Akhter, Sameer Iqbal Koul, Khursheed Ahmad Parray, Hilal Ahmad Shah, Arshid Hussain, Abdul Majeed Wani, Habibullah , Abdul Rahim Bhat and Assadullah Lone, when read in entirety, do inspire confidence of the Court. On the other hand, the evidence led by the petitioners, even if accepted to be correct on its face value, does not prove the case of the petitioners. There is no cogent evidence brought on record by the petitioners to prove the form of divorce, and, even if it is assumed that the triple talaq allegedly announced by the petitioner no.1 had been properly conveyed to the respondent no.1, yet it will not bring the domestic relationship between the petitioner and respondent no.1 to an end. At the cost of re-petition, it may be stated that the triple talaq has been held to be void and incapable of severing the matrimonial relationship in an Authoritative pronouncement of Hon'ble the Supreme Court in case Shayara Bano (supra).
5 CRM(M) 254/2019, CrlM No.850/2019
8. With regard to the grant of maintenance, I am of the view that the amount of maintenance granted by the trial court and up held by the Appellate Court is totally reasonable. Admittedly, the petitioner no.1 is working as Lecturer in the School Education Department and his salary in any case cannot be anything less than Rs.75,000/- per month. The trial court has only awarded Rs.14000/- per month to the petitioner no.1 and her minor daughter which includes Rs.3000/-per month towards the rental accommodation to which the respondents have been found entitled to. This includes a monthly maintenance of Rs.2000/- awarded to the respondent no.1 under Section 488 Cr.P.C. Similarly, the other reliefs granted are also supported by the evidence on record. As rightly pointed out by the learned counsel for the respondents, this Court, while sitting in its inherent jurisdiction vested under Section 561- A Cr.P.C, cannot re-appreciate the evidence and come to a conclusion different from the one recorded by the courts below, even if this Court is of the view that on the given evidence, a better view is possible. Such being the nature of jurisdiction vested in this Court by virtue of Section 561-A Cr.P.C, I am not inclined to accept the submission of learned counsel for the petitioners that the concurrent judgments of the two courts below suffer from perversity.
9. The legal question raised by the petitioners, in view of my decision on the aforesaid questions hereinabove, does not call for adjudication. After going through the case law on the subject, I find that there is, indeed, divergence of judicial opinion by the various High Courts of this country. Even this Court in its judgment titled Aijaz Rasool Bhat vs. Asmat, reported in 2018(2) JKJ 255, has taken a view that the divorced wife is not a "person aggrieved" as defined in Section 2(a) of the DVA and, therefore, cannot maintain a petition under Section 12 thereof. It appears that the judgment of 6 CRM(M) 254/2019, CrlM No.850/2019 Hon'ble the Supreme Court in the case of Juveria Abdul Majid Patni V/s Atif Iqbal Mansoori (2014) 10 SCC 736 has not been brought to the notice of the learned Single Judge. The Supreme Court in para 31 of the Judgment has held thus:-
"31. An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the Respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief u/s 20, Child Custody u/s 21, Compensation u/s 22 and interim or ex parte order u/s 23 of the Domestic Violence Act, 2005."
10. Be that as it may, since the petitioners have not been able to demonstrate that the relationship of husband and wife which existed between the petitioner no.1 and respondent no.1 has ceased to exist on the date of application and that there was a valid divorce pronounced by the petitioner no.1 on the respondent no.1, I do not feel it necessary to go into this aspect of the matter.
For the foregoing reasons I find no merit in this petition and the same is accordingly dismissed.
(Sanjeev Kumar) Judge SRINAGAR 07.11.2019 Sarveeda Whether the order is speaking: Yes/No Whether the order is reportable: Yes SARVEEDA NISSAR 2019.11.07 15:55 I attest to the accuracy and integrity of this document