Jammu & Kashmir High Court - Srinagar Bench
Shabir Ahmad Wani vs Mst. Arshida &Anr on 25 May, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 20.05.2022
Pronounced on:25.05.2022
CRM(M) No.301/2019
c/w
CRM(M) No.253/2019
SHABIR AHMAD WANI ... PETITIONER(S)
Through: - Mr. Nazir Ahmad, Advocate.
Vs.
MST. ARSHIDA &ANR. ...RESPONDENT(S)
Through: - Mr. Shah Murteza, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) In CRM(M) No.301/2019, the subject matter of challenge is judgment dated 05.09.2019, passed by learned 1 st Additional Sessions Judge, Srinagar, whereby the learned 1st Additional Sessions Judge has, in an appeal filed under Section 29 of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 (hereinafter referred to as the DV Act), set aside order dated 11.02.2019 passed by Special Mobile Magistrate (Sub Judge), Srinagar (hereinafter referred to as the trial Magistrate).
2) In CRM(M) No.253/2019, the petitioner has challenged judgment dated 01.08.2019 passed by learned Additional Sessions Page |2 Judge, Srinagar, whereby the learned Additional Sessions Judge has dismissed the revision petition filed by the petitioner against order dated 12.05.2019 passed by the learned trial Magistrate. Since proceedings in both these cases owe their origin to one and the same order passed by the learned trial Magistrate, on 20.02.2018, whereby the learned Magistrate has passed a composite compromise order in proceedings initiated by respondents under Section 488 of the J&K Cr. P. C and DV Act, as such, it would be appropriate to dispose of these petitions together by this common order.
3) It appears that respondent No.1, who happens to be the wife of petitioner Shabir Ahmad Wani, had filed a petition under Section 488 of J&K Cr. P. C against her husband before the learned trial Magistrate claiming maintenance for herself and her minor daughter. It also appears that respondents had also filed proceedings under DV Act against the petitioners in CRM(M) No.301/2019 before the learned trial Magistrate. On the basis of a settlement arrived at between the parties, both these petitions were decided by the learned trial Magistrate in terms of its order dated 20.02.2018. The same is reproduced as under:
"Petitioner No.1 along with Ld. Counsel for the petitioners present. Respondent and his Ld. Counsel also present. During the proceedings, the parties amicably settled and resolved the difference on following terms:
1. That the parties shall admit petitioner No.2 at Minto Circle School Srinagar and all the expenses on education including tuition fee, transport etc, shall be borne by the respondent.
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2. That the respondent shall pay a monthly maintenance of Rs. 5000 to the petitioner No.1 and Rs. 3000 to the petitioner No.2 from the date of this order. Respondent shall deposit maintenance in the bank A/C No.SB 17908 J&K Bank, Nawakadal Srinagar before 10th of every month.
3. That the marital relationship between petitioner No.1 and respondent, still subsists and they will make sincere efforts to reduce the difference and bridge the marital discord. They will make endevours to bring back bonhomie in their relation.
4.That the parties will remain in touch and can visit each other at will, and the other party will not object to such a move.
5. That as of now, the petitioners will continue staying at parental house of petitioner No.1, till cordiality is revived in the relationship with respondent.
The terms of the settlement jotted down supra have been read over and explained to the parties and they have expressed satisfaction and complete agreement on them. In this regard, they have put their signature on the margin of this order sheet. Ld. Counsel of the parties have also signed on the margin. The petition is disposed of as per the terms settled above. File shall be consigned to records after its due compilation.
4) After the passing of aforesaid order, respondents filed a petition under Section 31 of the DV Act before the learned trial Magistrate. In the said petition, it was alleged by respondents that petitioner Shabir Ahmad Wani had not complied with the terms of the compromise and order dated 20.02.2018, inasmuch as he has stopped paying any maintenance to his wife, respondent No.1 herein. The petitioner Shabir Ahmad Wani contested the petition by claiming that he had pronounced divorce upon his wife, respondent No.1 herein, and, as such, he is not obliged to pay any maintenance to her in terms of the Page |4 compromise order. The learned trial Magistrate, after hearing the parties, observed that the order that was passed by him on 20.02.2018 does not amount to a protection order and, as such, proceedings under Section 31 of the DV Act cannot be initiated on account of its breach. Accordingly, the petition was dismissed by the learned trial Magistrate.
5) The aforesaid order came to be challenged by the respondents in an appeal under Section 29 of the DV Act before 1st Additional Sessions Judge, Srinagar. The learned 1st Additional Sessions Judge allowed the appeal and remanded the case back to the learned trial Magistrate for its fresh disposal. While doing so, the learned 1st Additional Sessions Judge held that the compromise order dated 20.02.2018 is a protection order in terms of Section 18 of the DV Act.
6) The record further shows that simultaneously, the respondents herein had also approached the learned trial Magistrate by filing an application under Section 490 of the J&K Cr. P. C for enforcement of order dated 20.02.2018. In the said application also, the husband, petitioner Shabir Ahmad Wani, raised a plea that he had divorced his wife i.e. respondent No.1. The learned trial Magistrate, while rejecting the plea of petitioner Shabir Ahmad Wani, observed that his plea of divorce can be considered only when he applies for modification of the order in terms of Section 489 of the J&K Cr. P. C and directed him to deposit the amount of maintenance. The said order came to be challenged by petitioner Shabir Ahmad Wani by way of a revision Page |5 petition before learned Additional Sessions Jude, Srinagar, but the revision petition was dismissed vide the impugned order dated 01.08.2019.
7) I have heard learned counsel for the parties and perused the material on record.
8) The short question which comes up for consideration in both these petitions is as to in what manner respondent, wife, could have sought the enforcement and implementation of compromise order dated 20.02.2018. According to the learned counsel appearing for respondent wife, she is entitled to seek enforcement of aforesaid order by resorting to remedies under Section 31 of the DV Act and Section 490 of the J&K Cr. P. C simultaneously as the compromise order dated 20.02.2018 is a composite order passed in the proceedings under the provisions of Section 488 of J&K Cr. P. C and the provisions of DV Act.
9) On the other hand, learned counsel for the petitioner, husband, has contended that the order awarding monetary compensation/maintenance to a wife is not a protection order and, as such, the proceedings under Section 31 of the DV Act are not maintainable.
10) In order to test the merits of the rival contentions raised by learned counsel for the parties, it would be apt to refer to the relevant Page |6 provisions of DV Act, more particularly Section 31 of the said Act, which reads as under:
31. Penalty for breach of protection order by respondent.--(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498-A of the Ranbir Penal Code or any other provision of that Code or the Dowry Restraint Act, 1960, as the case may be, if the facts disclose the commission of an offence under those provisions.
From a perusal of the aforesaid provisions, it is clear that the said provision provides for procedure for imposing penalty for the acts involving breach of a protection order or an interim protection order by making it a penal offence.
11) The expression "protection order" has been defined under Section 2(o) of the DV Act as an order made in terms of Section 18 of the Act, which reads as under:
18. Protection orders.--The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from--
(a) committing any act of domestic violence;
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(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order;
12) Thus, any breach of order which has been passed by a Magistrate under the provisions of Section 18 would come under the definition of "protection order" and breach thereof can be a subject matter of proceedings under Section 31 of the DV Act. The learned Additional Sessions has, while setting aside the order of the learned trial Magistrate, observed that the expression "domestic violence"
appearing in Section 18 would take within its purview "economic abuse" as per the definition of "domestic violence" contained in Section 3 of the Act. Thus, according to he learned Additional Sessions Judge, an order granting maintenance in favour of a Page |8 wife/aggrieved person, would qualify to be a protection order under Section 18 and can be a subject matter of proceedings under Section 31 of the Act.
13) I am afraid the interpretation given by the learned Additional Sessions Judge to the expression "protection order" is not in accordance with what the Legislature intended. An order of monetary relief would not come within the purview of protection order, inasmuch as an order of monetary relief is governed by a separate provision i.e. Section 20 of the DV Act, which provides for payment of monetary relief to the aggrieved person to meet the expenses incurred and losses suffered by the aggrieved person or any child of the aggrieved person of the aggrieved person as a result of domestic violence. So, whatever monetary relief by way of maintenance is granted to an aggrieved person, the said order qualifies to be an order under Section 20 of the Act and not an order under Section 18 of the Act. Monetary relief is awarded to an aggrieved person as a consequence of "domestic violence" which includes "economic abuse". A protection order under Section 18 of the DV Act is also awarded in favour of an aggrieved person as a consequence of "domestic violence" which include "economic abuse" but its nature is quite different from an order of monetary relief granted under Section 20 of the DV Act.
14) When provisions of Section 20 are read in conjunction with Rule 6 of the Jammu and Kashmir Protection of Women from Page |9 Domestic Violence Rules, 2011, it becomes clear that an order of monetary relief has to be enforced in the same manner as laid down under Section 488 of the J&K Cr. P. C. Sub-rule (4) of Rule 6 of the aforesaid Rules, which reads as under:
"6(4):
The application under Section 12 shall be dealt with and the orders enforced in the same manner as laid down under Section 488 of the Code of Criminal Procedure, Samvat, 1989."
15) From the above it is clear that while mode of enforcing an order of monetary relief granted to an aggrieved person under Section 20 of the DV Act is by taking resort to provisions contained in Section 490 of the J&K Cr. P. C, the mode of enforcing an order of protection granted to an aggrieved person under Section 18 of the DV Act is by filing an application under Section 31 of the said Act.
16) The learned Additional Sessions Judge has, while holding that an order of monetary relief is a protection order, ignored the provisions contained in Section 20 of the DV Act and Rule 6(4) of the Rules of 2011. The procedure for enforcement of an order of monetary relief has to be the same as the procedure for enforcement of an order of maintenance granted under Section 488 of the J&K Cr. P. C and not by filing an application under Section 31 of the DV Act. In this regard, I am supported by the judgment of the Supreme Court in the case of Rajnesh vs. Neha and another, (2021) 2 SCC 324, wherein it has been laid down that the manner of enforcing an order under Section 20 of the DV Act (Central) is governed by the provisions P a g e | 10 contained in Section 125(c) of the Cr. P. C. The impugned order passed by the learned Additional Sessions Judge, therefore, is not in accordance with law whereas the order dated 11.02.2019 passed by the learned trial Magistrate appears to be well-reasoned and based on sound principles of law.
17) Now coming to the orders of the learned trial Magistrate and the Revisional Court which have been impugned in CRM(M) No.253/2019. As has been already discussed hereinbefore, an order of monetary relief granted under the provisions of DV Act is enforceable in the same manner as an order passed under Section 488(1) of the J&K Cr. P. C. The compromise order dated 20.02.2018 is a composite order passed in the proceedings under Section 488 of the J&K Cr. P. C and the proceedings under DV Act. So, whichever way we look at it, enforcement thereof has to be governed by the provisions of Section 490 of the Cr. P. C. So, the order of the learned trial Magistrate, as upheld by the Revisional Court, whereby the petitioner Shabir Ahmad Wani has been directed to pay maintenance to the respondents as per the compromise order dated 20.02.2018, is in accordance with the law and does not deserve any interference from this Court.
18) For the forgoing reasons, the petition bearing CRM(M) No.301/2019 is allowed and the impugned order dated 05.09.2019, passed by learned 1st Additional Sessions Judge, Srinagar, is quashed and order dated 11.02.2019 passed by the learned trial Magistrate is P a g e | 11 upheld. So far as the petition bearing CRM(M) No.253/2019 is concerned, the same is found to be without any merit and is dismissed accordingly.
19) Copy of the order be sent to the learned trial Magistrate for information.
(SANJAY DHAR) JUDGE Srinagar, 25.05.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No