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[Cites 13, Cited by 0]

Jammu & Kashmir High Court

Akshay Jandyal And Another vs Uma Kapahi on 27 March, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

                                                                                  99


     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                   AT JAMMU
WP(Crl) No. 12/2025
Cav No. 657/2025


Akshay Jandyal and another                        .....Appellant(s)/Petitioner(s)
                      Through: Mr. Vishal Kapoor, Adv.

                 vs
Uma Kapahi                                                  ..... Respondent(s)
                      Through: Mr. Parveen Kapahi, Adv.

Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
                                  ORDER

27.03.2025

1. The petitioners through the medium of instant writ petition under Article 226 of the Constitution have challenged order dated 24.03.2025 passed by the learned 1st Additional Sessions Judge, Jammu, whereby the learned Sessions Judge has, while exercising his appellate jurisdiction set aside order dated 14.01.2025 passed by the learned Chief Judicial Magistrate(CJM), Jammu in a case tilted, Uma Kapahi Jandyal vs Akshay Jandyal and others.

2. At the very outset, the learned counsel for the petitioners has prayed that the instant petition be treated as one under Article 227 of the Constitution. He has submitted that inadvertently, the petition has been filed under a wrong provision of law.

3. Learned counsel appearing for the respondent, who is on caveat, has contended that the petition cannot be treated as one under Article 227 of 2 WP(Crl) No.12/2025 the Constitution. He has further contended that the petition in the present form is not maintainable as a judicial order cannot be assailed by filing a petition under Article 226 of the Constitution. It is being contended that on this ground alone, the present petition deserves to be dismissed. Learned counsel for the respondent while referring to the judgments passed by the Supreme Court in Radhey Shyam and another v Chhabi Nath and others, [2015] 3 SCR 197 and Neeta Singh and others v The State of Uttar Pradesh and others, Special Leave Appeal No. 13578/2024 decided on 15.10.2024 has contended that even the prayer of the petitioners for treating the present petition as one under Article 227 of the Constitution cannot be allowed because the case has not been assigned by the Hon'ble the Chief Justice to this Court.

4. There cannot be any quarrel with the proposition of law that the judicial orders of civil/criminal courts are not amenable to the writ jurisdiction under Article 226 of the Constitution. However, challenge to the judicial orders could lie by way of an appeal or a revision or under Article 227 of the Constitution. The question that is required to be determined is as to whether the prayer of the petitioners for treating their petition as one under Article 227 of the Constitution can be allowed.

5. The present petition is at threshold and even notice has not been issued as yet. Learned counsel for the petitioners has, before opening his arguments on admission made a prayer that the petition may be treated as one under Article 227 of the Constitution. If the said prayer of the petitioners is 3 WP(Crl) No.12/2025 allowed, to the mind of this Court, no prejudice is going to be caused to the respondent particularly keeping in view the stage of the present case.

6. Learned counsel for the respondent has vehemently argued that unless the Hon'ble the Chief Justice assigns the case to this Court, the prayer of the petitioners cannot be allowed. It is correct that once a petition under Article 226 of the Constitution is treated as one under Article 227 of the Constitution, with the change in nomenclature of the petition, a judge hearing the case has to be sure that he is holding the roster for hearing the petitions under Article 227 of the Constitution or in other words such roster has been assigned to him/her and if it is not so assigned, the petition has to be placed before the learned Judge having the assignment.

7. In the instant case, this Bench is holding the roster of not only hearing writ petitions under Article 226 of the Constitution but it is also holding roster for hearing petitions under Article 227 of the Constitution. Therefore, there is no legal impediment in treating the present writ petition as one under Article 227 of the Constitution and there is also no legal impediment in hearing of the present petition even after changing its nomenclature to one under Article 227 of the Constitution. Accordingly, the prayer of the petitioners is allowed and the present petition is treated as one under Article 227 of the Constitution. The Registry shall assign the appropriate nomenclature to the present writ petition.

8. Issue notice to the respondent. Mr. Praveen Kapahi, Advocate, who is on caveat, accepts notice on behalf of the respondent.

4

WP(Crl) No.12/2025

9. I have heard learned counsel for the parties and perused the petition as well as documents placed on record by the learned counsel for the parties during the course of hearing.

10. The present case stems out of a matrimonial dispute between the petitioner No. 1 and the respondent. It appears that besides various cases filed by the parties against each other, a petition under Section 12 of Protection of Women from Domestic Violence Act (for short the DV Act) was filed by the respondent against petitioners and other family members including brother and mother of petitioner No. 1 before the court of Chief Judicial Magistrate(CJM), Jammu on 08.11.2024. Along with the said petition, an application under section 23 of the DV Act was also filed by the respondent seeking ad interim order. On the same date i.e. on 08.11.2024, the learned CJM passed an ex parte ad interim order, whereby petitioner No. 1 was directed to pay interim maintenance to the tune of Rs. 10,000/- per month to the respondent herein and she was also found entitled to reside in the shared household viz, H. No. 25, Ward No. 1 near Mandhir Jawahar Nagar, Kathua. It seems that on 09.11.2024 i.e. a day after the passing of aforesaid order, the petitioners herein filed an application for review of order dated 08.11.2024 and for staying of its implementation. On the next day i.e. on 09.11.2024, the petitioners herein filed objections to the petition and the learned CJM posted the matter for arguments. It also appears that there were some efforts on the part of the parties to settle the matter amicably and the case was adjourned to 30.11.2024, whereafter, 5 WP(Crl) No.12/2025 it came to be referred to mediation and the case was adjourned to 23.01.2025 for awaiting the report of the Mediator.

11. It appears that on 14.12.2024 during the intervening period, the respondent filed an application for implementation of order dated 08.11.2024 and the learned CJM issued notice of the said application to the adverse parties, whereafter, the said application was posted to 23.01.2025 along with the main case.

12. It appears that another execution petition came to be filed by the respondent before the learned Trial Magistrate on 30.12.2024 for execution of interim order dated 08.11.2024 in which instead of straight away directing implementation of the order, notice was issued to the adverse parties and the learned CJM also directed the parties to advance arguments on interim application under section 23 of the DV Act and the matter was posted to 03.01.2025.

13. The aforesaid order of issuing notice to the other side was challenged by the respondent by way of an appeal before the learned 1 st Additional Sessions Judge, Jammu who vide order dated 02.01.2025 set aside the order of learned CJM and directed the said court to give fresh look to the case and implement order dated 08.11.2024.

14. On 03.01.2025, learned CJM in pursuance to the order dated 02.01.2025 passed by the appellate court passed another order directing the parties to advance arguments in the interim application and further directed SHO Police Station, Kathua to implement order dated 08.11.2024. 6 WP(Crl) No.12/2025

15. The aforesaid order came to be challenged by petitioner No. 1 and another person by way of an appeal before the learned Principal Sessions Judge, Jammu who vide order dated 10.01.2025 set aside the order of the learned CJM with a direction that the learned CJM shall consider the matter afresh and pass appropriate orders after hearing both the parties within three working days. The matter again landed before the CJM Jammu who vide order dated 14.01.2025, after hearing both the parties, directed petitioner No. 1 herein to immediately deposit Rs. 20,000/- on account of arrears of interim monetary compensation into the account of the respondent but deferred the execution petition with regard to the order relating to shared accommodation. The learned CJM thought it fit to call the main file which was posted to 23.01.2025 so as to hear the arguments on interim application as by then mediation between the parties had failed to yield any result. It is this order which was challenged by the respondent by way of an appeal before the learned 1st Additional Sessions Judge, Jammu.

16. By virtue of the impugned order passed by the 1st Additional Sessions Judge, Jammu, the appeal filed by the respondent has been allowed and order dated 14.01.2025 has been set aside.

17. The petitioners have challenged the impugned order passed by the learned 1st Additional Sessions Judge on the grounds that the learned Sessions Judge has not considered the arguments advanced by the petitioners. After giving the factual background of the acrimonious relationship between the respondent on the one hand and the petitioner No. 1 and his family members on the other, it has been contended that in these circumstances, it 7 WP(Crl) No.12/2025 is not possible for the respondent to reside in the shared accommodation along with her parents in law particularly with father-in-law against whom she has levelled serious allegations. It has been further contended that the order passed by the learned CJM under Section 23 of the DV Act is ex parte in nature, as such, the same cannot be implemented unless the objections filed by the petitioners to the main as well as interim application are considered on merits.

18. It has also been contended that petitioner No. 1 has offered residential accommodation on rental basis to the respondent which has all the amenities as such, she cannot insist upon residing in the shared accommodation at Kathua as the same would cause harassment to the parents of petitioner No. 1. It has further been contended that in case the ex parte interim order so far as it relates to shared accommodation is implemented without hearing the petitioners, it would cause grave prejudice to them and their application for stay of the said order will be rendered infructuous.

19. Learned counsel for the respondent has, on the other hand, contended that the object of DV Act is to offer more effective protection of the rights of women who are victims of violence at the hands of the husband or his relatives. It has been contended that the Supreme Court and the various High Courts of the Country have consistently held that the purpose of granting an order of residence at interim stage is to avoid a situation where a victim of domestic violence is made to take shelter on road side and therefore, if the CJM Jammu in the instant case is allowed to drag her feet 8 WP(Crl) No.12/2025 in implementing the order of residence, it would defeat the purpose of the DV Act and expose the respondent to a grave situation. He has submitted that the respondent is presently forced to take shelter in the house of her relatives/friends because of the situation created by the petitioners and due to non implementation of the residence order by the CJM.

20. Before coming to the merits of the case, it would be necessary to determine as to whether the appeal filed by the respondent before the learned 1st Additional Sessions Judge, Jammu against the order passed by CJM Jammu on 14.01.2025 was maintainable. As has been already stated hereinbefore, all the three appeals which have arisen out of the orders passed by the CJM Jammu in the instant case pertain to issuance of notice to other side in execution petition and its deferment till the decision of the interim application under section 23 of the DV Act on its merits.

21. The question arises as to whether an appeal under Section 29 of the DV Act is maintainable against such orders. To answer this question, it would be necessary to notice the provisions contained in Section 29 of the DV Act which vests jurisdiction with the Court of Sessions to adjudicate an appeal against the order made by the Magistrate.

"29. Appeal.--There shall lie an appeal to the Court of Session 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."

(Emphasis supplied)

22. From a perusal of the aforesaid provision, it appears that the Court of Sessions is vested with jurisdiction to hear an appeal against "the order"

made by the Magistrate within a period of thirty days from the date such 9 WP(Crl) No.12/2025 order is served upon the aggrieved person or the respondent. The legislature has used the expression "the order" instead of "any order" or "an order" in the provisions contained in section 29 of the DV Act, meaning thereby, it is only a particular type of orders and not all orders made by the Magistrate which are appealable under section 29 of the DV Act. The expression "the order" takes its colour from the preceding provisions of the DV Act which refer to protection order under section 18 of the DV Act, residence order under section 19 of the Act, monetary reliefs under section 20 of the Act, custody order under section 21 of the Act, compensation order under section 22 of the Act, interim order and ex parte orders under section 23 of the Act. Thus, it is only against these types of orders, whether it is a case of grant or refusal of such orders that an appeal would lie before the Court of Sessions under section 29 of the DV Act.

23. There may be a case involving dismissal of an execution petition for implementation of any of the aforesaid orders, even such an order would be appealable as the same would amount to refusal of such orders but mere issuance of notice in an execution petition or in any other application by the Magistrate in DV Act proceedings, in the opinion of this Court, would not be appealable in terms of section 29 of the DV Act. It is only against certain types of orders as mentioned hereinbefore that an appeal would lie under section 29 of the DV Act before the Sessions Court but all orders passed by the Magistrate are not appealable. An order issuing notice in an execution application or in any other application filed before 10 WP(Crl) No.12/2025 the Magistrate under DV Act is to be considered as an interlocutory order as the same is procedural in nature and does not decide any substantive rights of the parties. Such types of orders are not appealable.

24. In the face of the aforesaid discussion, the learned 1st Additional Sessions Judge, Jammu has, while entertaining appeal against order dated 14.01.2025 passed by the CJM vide which consideration of execution petition to the extent of order of residence was deferred till the hearing of the application under section 23 of the DV Act on its merits, exercised the jurisdiction which was not vested with him. Similarly, the previous appeal filed before the learned 1st Additional Sessions Judge, Jammu against the order whereby notice was issued by the learned CJM in the execution petition could also not have been entertained by the said court. Same is true of the appeal that was filed by petitioner No. 1 against order dated 03.01.2025 passed by the CJM Jammu.

25. A remedy of appeal is a statutory right and unless the statute specifically provides for right of appeal against a particular order, a Superior Court cannot entertain an appeal against such order. By interfering in even the interlocutory orders passed by the learned CJM Jammu, the learned 1st Additional Sessions Judge, Jammu as well as Principal Sessions Judge, Jammu have exceeded their jurisdiction. If even the interlocutory orders passed by a Magistrate are allowed to be interfered by the Superior Courts, it would be difficult for the Magistrates to function. Such tendency by the Superior Courts has to be curbed particularly when no such jurisdiction is 11 WP(Crl) No.12/2025 vested with the Sessions Court. On this ground alone, the impugned order passed by 1st Additional Sessions Judge, Jammu deserves to be set aside.

26. There is yet another aspect of the matter, which is required to be noticed.

After passing of ex parte interim order under section 23 of the DV Act by the learned CJM on 08.11.2024, immediately on the next day, the petitioners filed an application on 09.11.2024 seeking review of the aforesaid order with a prayer for staying its implementation. It was incumbent upon the learned CJM to take a decision on the said application before proceeding to execute order dated 08.11.2024. This is what has been done by the learned CJM. Deferring the decision on the application filed by the petitioners on 09.11.2025 would have rendered their application infructuous because once the ex parte interim order dated 08.11.2024 is implemented, the prayer of the petitioners herein for staying the said order would have been rendered infructuous.

27. Apart from the above, order dated 08.11.24 passed by the learned CJM is ex parte in nature and the same is subject to objections of the other side. Once the petitioners immediately upon coming to know of the said order filed their objections to the application under section 23 of the DV Act filed by the respondent, their objections were required to be considered on merits. The Supreme Court has, in the case of Kamatchi vs Lakshmi Narayanan, Criminal Appeal No. 627/2022, decided on 13.04.2022, held that it is open to the Magistrate dealing with petition under section 12 of the DV Act to even recall his/her order. Since order dated 08.11.2024 was passed in ex parte and once the petitioners herein filed objections, the 12 WP(Crl) No.12/2025 CJM, thought it appropriate to deal with the objections of the petitioners herein in the right earnest. The course adopted by the learned CJM could not have been interfered with by the Superior Courts as the said approach of the learned CJM was neither illegal nor improper.

28. In view of the foregoing discussion and without going into the merits of the allegations and counter allegations made by the parties against each other, in these proceedings, the impugned order dated 24.03.2025 passed by the 1st Additional Sessions Judge, Jammu is set aside and the learned CJM is directed to decide the interim application under section 23 of the DV Act on its merits most expeditiously preferably within a period of 15 days from the date a copy of this order is made available to the said court.

29. Till such time, the application is decided by the learned CJM, interim order dated 08.11.2024 passed by the learned CJM to the extent of grant of residential order in favour of the respondent in the shared accommodation shall remain in abeyance.

(SANJAY DHAR) JUDGE Jammu:

27.03.2025 Rakesh PS Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Rakesh Kumar 2025.04.03 18:19 I attest to the accuracy and integrity of this document