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2020 DIGILAW 664 (JK)

Majid Jehangir v. Munavar Bashir

2020-12-04

RAJNESH OSWAL

body2020
Judgment Rajnesh Oswal, J.—The residence order dated 08.07.2020 passed by Sub-Judge (Forest Magistrate), Srinagar (hereinafter referred to be as the Trial Court) was challenged by the petitioners in an appeal and the said appeal was also dismissed by learned 2nd Additional Sessions Judge, Srinagar (hereinafter referred to be as the Appellate Court) vide order dated 29.09.2020. 2. Through the medium of this petition under section 482 Cr.P.C, the petitioners have assailed the order dated 29.09.2020 passed by the appellate court on the ground that the appellate court had only heard the arguments on the maintainability of the appeal filed by the petitioners but had not heard the argument on the merits of the case. Besides raising this ground, the petitioners have also contended that the respondents have not placed on record any material to substantiate the allegations of domestic violence. Both the trial court as well as the appellate court, have failed to take notice about the fact that the application was filed after seven years, respondent No. 1 left the company of petitioner No. 1 and the appellate court has wrongly held that the rigors of limitation is not applicable to the proceedings. The respondent No. 1 had issued a notice on 21.01.2017 to negotiate the settlement of the future of the minor children born out of wedlock and its perusal would reveal that there are no allegations of domestic violence. It is further stated that there was suppression of material facts by respondent No. 1 and she has approached the court with unclean hands and also in view of document executed on 25.08.2014, whereby respondent No.1 acknowledged to have been divorced on 22.06.2013, the trial court could not have passed the residence order and the appellate court too has fallen in a grave error of law by upholding the same. The petitioners have also sought quashing of the application filed by respondents under section 12 of Domestic Violence Act. 3. Admittedly, the marriage between the petitioner No.1 and respondent No. 1 was solemnized on 10.05.2007 and out of the said wedlock, two male issues i.e. respondent Nos. 2 & 3 were born. The petitioners have also sought quashing of the application filed by respondents under section 12 of Domestic Violence Act. 3. Admittedly, the marriage between the petitioner No.1 and respondent No. 1 was solemnized on 10.05.2007 and out of the said wedlock, two male issues i.e. respondent Nos. 2 & 3 were born. Respondent No. 1 had filed an application under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to be as the Act) whereby the respondents sought maintenance and also residence order as well as the return of the personal belongings of the respondent No. 1. Along with the application, an application for interim relief was also filed. It is pleaded that respondent No. 1 was subjected to harassment, humiliation, torture by the petitioners. The respondents have leveled various allegations those are not necessary for the purpose of adjudication of this petition. 4. The respondents pleaded that in the month of March 2012, without any rhyme or reason, the petitioners turned the respondents out of the home. Respondent No. 1 contacted the petitioner No. 1 and requested him to take her back but he flatly refused to do so. It was further pleaded that in 2014, upon pressure generated by the petitioners, respondent No. 1 was coerced to sign a document dated 25.08.2014, whereby the respondent No. 1 was shown to have been divorced on 22.06.2013 and she has challenged the said document in a civil suit in the court of Sub Registrar, Srinagar and the same was stayed, as such respondent No. 1 continued to be the legally wedded wife of petitioner No. 1 as the divorce pronounced by the petitioner No. 1 was not in accordance with Shariah Law. The respondents further pleaded about the dearth of financial resources and also that besides good salary, petitioner No. 1 has huge movable and immovable properties which include a three storeys palatial house and another two storeys vacant house at Lal Bazar. It was also stated that respondent No. 1 has already instituted proceedings under section 488 Cr.P.C. against the petitioner No. 1 but the same shall have no bearing upon the proceedings in question. 5. The petitioners filed the objections before the trial Court. It was also stated that respondent No. 1 has already instituted proceedings under section 488 Cr.P.C. against the petitioner No. 1 but the same shall have no bearing upon the proceedings in question. 5. The petitioners filed the objections before the trial Court. It is stated in the objections that respondent No. 1 is estopped in law from filing application in view of the settlement recorded on 25.08.2014 in terms whereof the factum of confirmation of dissolution of marriage between respondent No. 1 and petitioner No. 1 on 22.06.2013 stands recorded. It was also stated that the respondent No. 1 has acknowledged to have received an amount of mehar and all golden ornaments, cash, utensils, electronic goods and other allied items from petitioner No. 1 and to retain the custody of minor children i.e. respondent Nos. 2 and 3 herein till they attain the age of 7 years. Respondent No. 1 to the utter dismay of petitioner No. 1, has chosen to retain the custody of the children with a view to use them as a tool to wreck vengeance against the petitioners. The petitioners have denied the allegation that respondent No. 1 at any point of time was harassed mentally and physically. The petitioners have further pleaded that in all the earlier litigations, there was no allegation that she was subjected to such acts of domestic violence as alleged by her in her application. The petitioners have further pleaded that petitioner No. 1 in application under section 488 Cr.P.C conceded before the Magistrate to pass order directing the payment of maintenance as would be deemed reasonable for respondent Nos. 2 and 3. It is further pleaded that petitioner No. 1 has been continuously making payment of Rs. 4500/- per month and has not committed any default in making such payment. It is also stated that respondent Nos. 2 and 3 have also filed an application under section 489 Cr.P.C. seeking enhancement of maintenance. The petitioner No. 1 has also pleaded in the objections that the respondent No.1 filed a suit for restitution of conjugal rights on 13.03.2014 despite the marriage having come to an end on 22.06.2013 and during the pendency of the said suit, the petitioner No. 1 and respondent No. 1 executed a document confirming the dissolution and recording conditions about future of children and the suit so filed was, therefore, dismissed in default. Another civil suit stands also filed by the respondent No. 1 in which she has thrown a challenge to the factum of dissolution of marriage that took place in the year, 2013. It was further pleaded that the petitioner No. 1 and respondent No. 1 have been living separately for the last more than 7-8 years and there being no physical relationship between them, the respondent No. 1 is not entitled to any relief. It was also pleaded that petitioner No. 1 does not own any property and three storeys palatial house is owned and possessed by the parents of petitioner No. 1 and another two storeys house is owned and possessed by the sister of the petitioner No. 1. 6. The learned trial court after hearing both the parties decided the application for interim relief vide order dated 08.07.2020 and directed the petitioner No. 1 to provide a rented accommodation comprising of two rooms, one bathroom and one kitchen and pay the rent to the respondents for the same and the said order was upheld in appeal. 7. Mr. Sheikh Manzoor, learned counsel for the petitioners has reiterated the grounds those have been raised in his objections as well as in the memo of application under section 482 Cr.P.C. and has laid much stress that he had advanced arguments only on the issue of maintainability of the appeal and the said appeal was not argued on its merits by him. 8. On the contrary, Mr. Ishtiaq Khan, learned counsel for the respondents has vehemently argued that the matter was heard both on maintainability as well as merits and from the written arguments submitted by the petitioners, it is evident that they had made submissions on the merits of the case as well. 9. Heard and considered. I have also meticulously gone through the whole of the record placed on record by the parties. 10. From the record, it appears that vide order dated 09.03.2020 an ex parte interim relief was granted in favour of the respondents, whereby the petitioners were directed to provide two rooms, one bathroom and one kitchen in the matrimonial home. I have also meticulously gone through the whole of the record placed on record by the parties. 10. From the record, it appears that vide order dated 09.03.2020 an ex parte interim relief was granted in favour of the respondents, whereby the petitioners were directed to provide two rooms, one bathroom and one kitchen in the matrimonial home. Later on, after the objections were filed, the learned trial court modified the said order and directed the petitioner No. 1 to provide rented accommodation comprising of two rooms, one bathroom and one kitchen to the respondents and pay the rent to the respondents for the same. Much stress has been laid by learned counsel for the petitioners that the arguments were advanced only on the issue of maintainability of the appeal and not on the factual aspects of the matter. However, the perusal of the written arguments would reveal that the arguments were not only addressed by the learned counsel on the issue of maintainability of appeal but also on the factual aspects of the case. So this contention deserves to be rejected out rightly. 11. Another contention raised by the learned counsel for the petitioners is that the application under section 12 of Domestic Violence Act is barred by limitation as the same was filed 7/8 years after the parties had started residing separately. The learned counsel for the petitioners has placed much reliance upon the judgment of the Apex Court in Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588 , in which it has been held: “32. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 CrPC, that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the 2005 Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C applicable and stand fortified by the judgments of this Court in Japani Sahoo v. Chandra Sekhar Mohanty [ (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388 : AIR 2007 SC 2762 ] and NOIDA Entrepreneurs Assn. v. NOIDA [ (2011) 6 SCC 508 : (2011) 2 SCC (Cri) 1015] .” 12. v. NOIDA [ (2011) 6 SCC 508 : (2011) 2 SCC (Cri) 1015] .” 12. The Hon’ble Apex Court has considered the above judgement in case, titled, Krishna Bhattacharjee v. Sarathi Choudhury, reported in (2016) 2 SCC 705 and relevant paras 3 and 32 are reproduced as under: “3. Regard being had to the nature of the legislation, a more sensitive approach is expected from the courts whereunder the 2005 Act no relief can be granted, it should never be conceived of but, before throwing a petition at the threshold on the ground of maintainability, there has to be an apposite discussion and thorough deliberation on the issues raised. It should be borne in mind that helpless and hapless “aggrieved person” under the 2005 Act approaches the court under the compelling circumstances. It is the duty of the court to scrutinise the facts from all angles whether a plea advanced by the respondent to nullify the grievance of the aggrieved person is really legally sound and correct. The principle “justice to the cause is equivalent to the salt of ocean” should be kept in mind. The court of law is bound to uphold the truth which sparkles when justice is done. Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, for the 2005 Act as we have stated is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.” 32. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realisation of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the 2005 Act came into force. In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. “Economic abuse” as it has been defined in Section 3(iv) of the said Act has a large canvass. In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. “Economic abuse” as it has been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which has been reproduced hereinbefore, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal that Section 468 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act.” 13. Now coming to the facts of the present case, a perusal of the application filed by the respondents reveals that the respondents have primarily filed the application for grant of maintenance order, residence order and return of the articles of the respondent No 1. When the aggrieved person is deprived of necessities of life, such as, food shelter and also of her articles, it would give rise to continuing cause of action. Till the filing of the application before the trial court, the status of the respondent No.1 is that of an aggrieved person, as such, the application of the respondent cannot be dismissed being time barred. 14. Till the filing of the application before the trial court, the status of the respondent No.1 is that of an aggrieved person, as such, the application of the respondent cannot be dismissed being time barred. 14. The other issue raised is whether the trial court was justified in passing the residence order in favour of the respondents in view of the stand taken by the petitioners that the marriage stood dissolved on 22.06.2013 as the same was confirmed by a document executed on 25.08.2014. It is relevant to note that the document on which much reliance has been placed by the learned counsel for the petitioners is subject matter of the civil suit and the staying the operation of the said documents has not been disputed by the learned counsel for the petitioners. It is an admitted fact that the petitioner No. 1 and respondent No. 1 got married in the year 2007 according to Muslim rites and rituals and they lived together in a shared household when they were married and it is the contention of respondent No. 1 that she was turned out in the year 2012 from her matrimonial home. Once the document dated 25.08.2014 is subject matter of the suit in civil Court, the petitioners cannot derive any benefit out of the same. The Apex Court in Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, reported in (2014) 10 SCC 736 has held: “30. 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 under Section 20, child custody under Section 21, compensation under Section 22 and interim or ex parte order under Section 23 of the Domestic Violence Act, 2005.” 15. So, even if, for the sake of arguments it is accepted that the petitioner No. 1 has divorced respondent No. 1, still the petitioner No. 1 cannot wriggle out of his liability to provide benefits/reliefs to the wife, to which she is entitled under the Domestic Violence Act 2005 as they were in domestic relationship and respondent No. 1 was allegedly turned out prior to the alleged date of dissolution of marriage. 16. 16. The other contention raised by the petitioners is that respondent No. 1 has not approached the court with clean hands and has suppressed the vital aspect of the case, which cannot be considered at this stage. The respondent No. 1 has categorically stated that she was forced to sign the document dated 25.08.2014 regarding, which suit is pending and its operation has been stayed by the civil court. So at this stage it cannot be held that there has been any misrepresentation on behalf of respondent No. 1 so this contention requires trial. Likewise. the contention that in the earlier proceedings initiated by the respondent No. 1, there is no reference to the allegations those have been levelled in the application under Domestic Violence Act, cannot be considered at this stage, the same too is a matter of trial. 17. Both the trial court and the appellate court have rightly came to the conclusion that the respondents are entitled to residence order and there is no good ground to interfere with the same. So, there is no illegality in the orders impugned and also the application filed by the respondents cannot be dismissed without trial. 18. In view of the above, this petition is found to be devoid of any merit and is hereby dismissed along with connected CrlMs.