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2017 DIGILAW 601 (JK)

Vineet Karihullo v. Diksha Sharma

2017-08-10

JANAK RAJ KOTWAL

body2017
1. In this petition under section 561-A of the Jammu and Kashmir Code of Criminal Procedure (for short the Code) petitioners seek quashing of orders dated 15.10.2014 and 25.04.2015 passed by the trial Magistrate in an application under section 12(1) of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 (for short the Act) and order dated 04.01.2016 passed by the learned Second Additional Sessions Judge, Jammu in appeal. In addition, petitioners seek quashing of the entire proceedings in the application before the trial Magistrate. 2. Heard. I have perused the record. 3. Respondent is the wife of petitioner No. 1. Their marriage was solemnized on 19.01.2014. Petitioners 2 and 3 are the parents of petitioner No. 1. The impugned orders would show that in her application under section 12(1) of the Act respondent has alleged inter alia that after their marriage petitioner No.1 had started assaulting and beating her. The petitioners have turned her out of the matrimonial home. She is living with her parents. She has no source of income, whereas petitioner No.1 earns at least Rs.75000/ per month from his business of event management. Respondent alleged also that the petitioner No.1 has been sending unknown persons to the rental accommodation of her parents to harass them. Respondent, therefore, sought order against petitioner No.1 for providing her residence under Section 19 of the Act or to pay her Rs.7000/ per month for hiring accommodation for her. In addition, she sought order for providing her monthly maintenance allowance of Rs.15000/ under section 20 of the Act and 5 lac rupees as compensation under section 22 of the Act. Respondent No. 1 also filed application under section 23 of the Act for an interim order directing respondents to pay her an amount of Rs.10,000/ per month as interim maintenance and Rs.7000/ per month as rent for hiring accommodation. 4. Learned Magistrate vide the impugned order dated 15.10.2014 issued interim direction restraining the petitioners (therein respondents) from sending unknown persons to the residence of the respondent and also restraining them from contacting the respondent and her family members physically or through phone calls or causing any violence to the them. 5. After passing of the interim order dated 15.10.2014, the petitioners appeared before the learned trial Magistrate and filed their objections. 5. After passing of the interim order dated 15.10.2014, the petitioners appeared before the learned trial Magistrate and filed their objections. Learned Magistrate passed impugned order dated 25.042015 whereby the interim order passed on 15.10.2014 was confirmed, however, with a modification/addition that petitioner No.1 will pay Rs.1800/ per month to the respondent as maintenance allowance. 6. Feeling aggrieved, petitioners filed appeal against order dated 25.04.2015 in the court of learned Second Additional Sessions Judge, Jammu. The appellate court, however, dismissed the appeal vide its order dated 04.01.2016. 7. Learned counsel for the petitioners, Mr. N.P. Kotwal, argued that the trial Magistrate has not assigned any reason for passing the order dated 25.04.2015 inasmuch as learned Magistrate did not record his satisfaction about existence of any incidence of domestic violence. It was argued that order dated 25.04.2015 is not an ex party order as it was passed after hearing both the parties but both the courts below did not take into consideration the objections raised on behalf of the petitioners and did not appreciate the facts and material placed on record by the petitioners. Learned counsel argued that the learned Magistrate did not find sufficient case for granting interim maintenance allowance while passing the order on 15.10.2014 but committed a legal error by modifying the said order by the subsequent order dated 25.04.2015 to the extent of directing the petitioner No.1 to pay monthly maintenance allowance to the respondent. 8. It may be noticed at the outset that, besides the order dated 25.04.2015 passed by the learned Magistrate and order dated 04.01.2016 passed by the learned Appellate Court, petitioners have sought quashing of order dated 15.10.2014 passed by the Magistrate and the entire proceedings in the application filed by the respondent. 9. It is noticed that no ground of assail to the order dated 15.10.2014 and the entire proceedings in the application filed by respondent is stated in the petition. Objection in regard to maintainability of the application, however, was raised before the learned appellate court on the ground that domestic enquiry report was not called by the Magistrate before issuing process against the petitioners (therein respondents). The objection has been rejected by the learned appellate court by placing reliance on a judgment of this court in Rakesh Manhas’s case, 2015 (1) JKJ 301 . The objection has been rejected by the learned appellate court by placing reliance on a judgment of this court in Rakesh Manhas’s case, 2015 (1) JKJ 301 . The view taken by the learned appellate court does not suffer from any illegality inasmuch as this view is supported by another judgment of this Court in Vidit Mahajan and ors. v. Sunali Mahajan, 2016 (4) JKJ 242. 10. Contention that by granting maintenance allowance vide the impugned order dated 25.04.2015, the learned Magistrate has reviewed or altered its order dated 15.10.2014 and that such a review or alteration is not permissible is not tenable for the reason that grant of maintenance allowance in no case can be construed as modification of the order dated 15.10.2014. In this regard, the availability of various reliefs and their pattern under the Act needs to be understood. In an application under section 12(1) of the Act an aggrieved person can seek one or more reliefs provided under the Act. The reliefs provided under the Act are: (i) Protection Order, under section 18 (ii) Residence Order, under section 19 (iii) Monetary Relief, under section 20 (iv) Custody Order, under section 21 (v) Compensation Order, under section 22 11. The monetary relief provided under section 20 of the Act inter alia includes the maintenance allowance to the aggrieved person as well as her children, if any. Clause (d) to section 20 (1) is important and is reproduced: “(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.” 12. Clause (d) of section 20 (1) of the Act on its plain reading would show that in an application under section 12(1), the Magistrate in an appropriate case can grant maintenance allowance similar to that available under section 488 of the Code of Criminal Procedure Code (for short, the Code) and even in addition to an order of maintenance under Section 488 of the Code, if already passed. The purpose behind enactment of Clause (d) of section 20 (1) seems that once an aggrieved person (wife) approaches the Magistrate by filing application under section 12(1) of the Act, she need not approach a Magistrate afresh for grant of maintenance under section 488 of the Code. 13. Sub-section (1) of section 23 of the Act empowers the Magistrate to grant such interim relief to the aggrieved person as he may deem just and proper during pendency of the proceedings in the application under section 12(1). Sub-section (2) of section 23 empowers the Magistrate to grant ex-parte interim relief available under sections 18, 19, 20, 21 and 22 subject to the fulfillment of the conditions mentioned therein. 14. The clear legal position emerging under the scheme and pattern of the reliefs provided under the Act is that specified reliefs can be granted to the aggrieved person in an application under section 12(1) of the Act. During pendency of the application, the Magistrate may pass such interim order as he may deem just and proper and can grant any of the specified reliefs during pendency of the proceedings in the application and having regard to the facts and circumstances of the case such interim relief can be granted even ex parte at the first hearing of the case. 15. In the aforementioned scheme of the Act, it is noticed that the Magistrate on the first hearing passed and ex party order temporarily restraining the petitioners (therein respondents) from sending unknown persons to the residence of the respondent (therein applicant) and further restraining them from contacting the respondent and her family members physically or through telephone calls. By the same order, Magistrate issued notice to the petitioners. By his order dated 25.04.2015, the learned Magistrate passed order directing payment of monthly maintenance allowance of Rs.1800/ by the petitioner No.1 to the respondent. Terminology of this order used by the learned Magistrate notwithstanding, grant of maintenance allowance was an independent interim direction issued in terms of section 23(1) and cannot be construed as modification of the order passed on 15.10.2014. 16. The order directing payment of monthly maintenance allowance at the rate of Rs.1800/ per month, as explained above, from its very nature is an interim measure. 16. The order directing payment of monthly maintenance allowance at the rate of Rs.1800/ per month, as explained above, from its very nature is an interim measure. Such a measure is covered within the parameters of clause (d) of Section 20(1) (supra) as also section 488 of the Code read with Section 23(1) of the Act. Learned Magistrate, therefore, cannot be said to have committed any error in making such interim measure as indisputably relation between the couple are strained and they have parted each other’s company. Likewise, no error can be found in the order passed by the learned appellate court, whereby appeal filed by the petitioners has been dismissed. The grant of maintenance allowance at this stage being a temporary and interim measure, it will be open for the petitioners to take up all the objections about the maintainability and legality of the application on any ground, whatsoever and lead evidence before the trial Magistrate to rebut the case of the respondent but no case for invoking inherent jurisdiction of this court to deprive the respondent (wife) of interim maintenance allowance during the pendency of the main application is made out. 17. For the aforementioned, this petition has no merit and is dismissed.