Jammu & Kashmir High Court
Rizwan Abid And Ors. vs Sabha Jaral on 16 November, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.94/2018 & IA No.1/2018
Date of order:16.11.2018
Rizwan Abid and ors. v Sabha Jaral
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For the Petitioner(s) : Mr. A. A. Malik, Advocate.
For the Respondent(s): Mr. S. S. Ahmed, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. In this petition filed under Section 561-A of the Code of Criminal Procedure, the petitioners inter alia seek quashing of complaint titled 'Sabha Jaral vs Rizwan Abid and others' and the order dated 16.01.2018 passed in the said complaint, pending before learned Sub Judge, Special Mobile Magistrate, Rajouri.
2. Brief facts of the case are that the petitioner No.1 contracted marriage with respondent in accordance with Islamic Law on 15.11.2014. Out of said marriage one son is born. Petitioner Nos. 2 and 3 are parents of petitioner No.1. Petitioner No.4 is younger brother of petitioner No.l. The relations between petitioner No.1 and respondent became strained. In any event petitioner No.1 has divorced the respondent. It is stated that the respondent has been CRMC No. 94/2018 Page 1 of 9 living in maternal home in another village Samesamat. The conjugal relationship between petitioner No.1 and respondent has become extinct and marital ties has broken/severed. Since petitioner No. 1 and respondent are living separately and there is no surviving matrimonial/conjugal relationship between them, yet in order to harass the petitioners, the respondent has filed a complaint along with application for interim relief in terms of Section 12 of the J&K Protection of Women Domestic Violence Act, 2010. In the aforesaid complaint the learned Special Mobile Magistrate Rajouri, has passed an order on 16.01.2018 in which an amount of Rs.2,500/- each has been ordered to be paid to respondent No.1 and her minor son. Petitioners feeling aggrieved of aforesaid complaint and the proceedings therein, have prayed for quashing/setting aside the same inter alia on the following grounds:
a. That the impugned complaint instituted as file No. 77 dated 09.01.2018 filed by respondent against the petitioners is totally an abuse and misuse of process of Law. The impugned order dated 16.01.2018 passed by the court below in the aforesaid complaint, it is respectfully submitted, if allowed to stand would cause injustice to petitioners. In the peculiar facts and circumstances of the case the impugned complaint and the order passed therein are liable to be quashed/set aside.
b. That the petitioner No. 1 after pronouncing amine to respondent has severed marital ties and conjugal relationship has come to an end and respondent cease to be Wife of petitioner Not 1 and on this ground alone the provision of Domestic Violence Act are not attracted in the facts of the case. The complaint under domestic violence act is not sustainable in Law.CRMC No. 94/2018 Page 2 of 9
c. That the petitioners No. 2 and 3 are parents of petitioner No. 1 they have been arrayed as party only with a view to harass them. Petitioner No. 4 is a brother of petitioner No. 1. He has been dragged in frivolous litigation only to harass him. Keeping in view the divorce neither the petitioner No.1 nor the family members of the petitioner No. 1 are liable under Domestic Violence Act. In the exceptional facts and circumstances the impugned complaint is malicious and malafide intended to harass the petitioners and amounts to abuse and misuse process of law and injustice to petitioners. The respondent being divorce is not entitled to seek protection of vires of Domestic Violence. The complaint amounts to abuse of process of Law. As such the complaint itself and the cognizance taken by the court below and proceedings therein are liable to be set aside. In this view of the matter petitioners are constrained to invoke the inherent powers of this Hon'ble Court to prevent abuse of the process of Law and secure ends of justice with a prayer for quashing the impugned complaint alongwith all further proceedings.
d. That without prejudice to the aforesaid submissions it is submitted that impugned complaint is malicious and malafide having been instituted with ulterior motive and for extraneous considerations. That apart the allegations contained in the complaint are totally false and baseless and on careful analysis the same shall show that no offence is made out. The impugned complaint has been used as a weapon/tool just to harass the petitioners.
3. This court while entertaining the instant petition, vide order dated 23.02.2018, issued notice to the respondent and proceedings before the trial court were stayed. However, the same was subject to payment of Rs.2500/- per month to the respondent.
4. Learned counsel for the respondent has filed objections wherein it is stated that aforesaid complaint is liable to be dismissed as the Hon'ble Apex Court has time and again held that the High Courts should be loath in quashing the proceedings under its inherent power unless there is abuse of process of law which is missing in CRMC No. 94/2018 Page 3 of 9 the instant case. In the present case the trial court has exercised its power within the parameters of law in a complaint filed by the respondent under the J&K Protection of Women from Domestic Violence Act, 2010 and thus the above titled petition being devoid of merit is liable to be dismissed. In nutshell the respondent has been a victim of domestic violence and the only ground of challenge in the petition is that the petitioner No.1 has pronounced divorce and the marital relationship has come to an end and as the respondent ceases to be the wife and on this score only the provisions of Domestic Violence Act are not attracted in the facts of the case. In this regard, it is vehemently denied that the respondent has been divorced, as a matter of fact, the marital knot is intact and there is no valid divorce under Muslim law amongst petitioner No. 1 and the respondent. The petitioner No.1 has alleged the pronouncement of divorce just to save himself and his family members from the proceedings of the complaint sub-judice before the Learned Trial Court at Rajouri. The proceedings before the trial court are required to be resumed as the interim directions have been obtained by the petitioners by misleading this Hon'ble Court. Further, no good ground has been made by the petitioners to invoke the inherent jurisdiction of this Court and for this reason the instant petition is liable to be dismissed. It is further stated that the allegations leveled by the petitioners that the impugned complaint is malicious and mala fide having been instituted with ulterior motive and for extraneous considerations, are misconceived and denied. The complaint filed by the respondent satisfies the CRMC No. 94/2018 Page 4 of 9 ingredients of the Domestic Violence Act and the offences are clearly made out and hence the above titled petition is liable to be dismissed.
5. Heard learned counsel for the parties and perused the case file.
6. Petitioners have challenged the order dated 16.01.2018 passed by court below by virtue of which petitioner No.1 has been asked to pay monthly interim maintenance of Rs.2,500/- each to respondent and her son. Respondent filed a petition under section 12 of D.V. Act on various grounds before court below on 09.01.2018 against her husband, parents in law and brother in law; Along with main petition an application for interim relief under section 23 of Act was also filed; Court below issued notices to respondents. On next date, notices sent to respondents were received back without effecting service except respondent no.2. The court below on same date on 16.01.2018 granted interim relief as prayed.
7. I have given my thoughtful consideration to whole aspects of the matter.
8. 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. 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 CRMC No. 94/2018 Page 5 of 9 monetary order; section 21 deals with passing of custody order and section 22 deals with compensation order. These types of orders can be passed/granted by Magistrate after hearing and finally deciding the application under sections 12 of Act.
9. 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 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.
10. 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. The purpose of this section is to save the victim from vagrancy, CRMC No. 94/2018 Page 6 of 9 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.
11. Hence, it is clear from the provision of section 23 of Domestic Violence Act that the Trial court may pass an ex-parte order; and also order of ad-interim on the basis of the affidavit of the aggrieved person upon prima facie disclosure of the fact that the respondent is committing or has committed the act of Domestic Violence or that there is likelihood that the respondent may commit an act of Domestic Violence. But for passing such relief, court has to come to definite conclusion that, applicant has prima facie case that domestic violence has been committed or there is likelihood that respondent/s may commit domestic violence.
12. Section 28 of Act states that all proceedings under sections 18, 19, 20, 21, 22, 23 and section 31 of Act shall be governed by provisions of Cr.P.C; sub-section (2) section 28 of Domestic Violence Act gives the power to the trial court to lay down its own procedure for disposal of an application under sections 12 and 23 CRMC No. 94/2018 Page 7 of 9 of Domestic Violence Act. Under section 37 of Act, Government can make rules for carrying and in order to give effects to provisions of Act. Thus, Govt. has also framed rules called Protection of Women from Domestic Violence Rules 2011.
13. The only ground taken by petitioners is that the relations between petitioner No.1 and respondent became strained; in any event petitioner No.1 has divorced the respondent; so conjugal relationship between petitioner No.1 and respondent has become extinct and marital ties has broken/severed; that since petitioner No.1 and respondent are living separately and there is no surviving matrimonial/conjugal relationship between them, yet in order to harass the petitioners the respondent has filed a complaint along with application for interim relief in terms of section 12 of the J&K Protection of Women Domestic Violence Act, 2010.
14. These entire pleas are finding of facts, which petitioners are required to prove before Court below by filing objections and leading evidence. These pleas cannot be considered in this petition. Power of court under section 561-A Cr.P.C are limited to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiably subjected to an undeserving prosecution or if an ex- facie all merited prosecution is throttled at the threshold without allowing the material in support of it. This court while exercising the power under section 561-A Cr.P.C., does not function as court CRMC No. 94/2018 Page 8 of 9 of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate prosecution. It is not case of petitioners that there is some legal bar engrafted in law for proceeding in matter before court below.
15. Further petitioner no.1 has stated that he has divorced respondent, but there is no documentary evidence in this regard. In view of above, this petition is dismissed, having no merit. Stay, if any, is vacated.
( Sanjay Kumar Gupta ) Judge Jammu, 16.11.2018 Vijay CRMC No. 94/2018 Page 9 of 9