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2021 DIGILAW 652 (JK)

Nasir Hayat Malik v. Sheenam Wani

2021-12-10

RAJNESH OSWAL

body2021
JUDGMENT : RAJNESH OSWAL, J. 1. The petitioners have impugned the order dated 03.08.2019 passed by the Court of learned Sub-Judge JMIC, Bhaderwah (hereinafter to be referred as the trial Court) passed in an application filed under the J&K Protection of Women from Domestic Violence Act, as also the order passed by the Court of learned Sessions Judge, Bhaderwah (hereinafter to be referred as the appellate Court) dated 29.09.2020 by virtue of which the order dated 03.08.2019 was upheld by the appellate Court. Simultaneously, proceedings pending before trial court have also been impugned in the present petition. 2. The petitioner No. 1 is husband of the respondent, petitioner Nos. 2 and 3 are father-in-law and mother-in-law respectively of the respondent, petitioner Nos. 4 and 5 are brother-in-law and sister-in-law respectively of the respondent and petitioner No. 6 is the married sister-in-law of the respondent. 3. The respondent filed an application under Domestic Violence Act for grant of various reliefs and along with the said application, an application for grant of interim relief was also filed. The learned trial Court, after seeking response from the petitioners and after hearing the arguments, vide order dated 03.08.2019 directed the petitioner No. 1 to pay a sum of Rs. 6,000/- per month to the respondent and Rs. 4,000/- per month to her minor son as interim maintenance and further the petitioners were directed to provide shelter to the respondent in the shared household and further they were restrained from committing any act of domestic violence against the respondent. 4. The petitioner No. 1 thereafter assailed the said order passed by the trial Court before the appellate Court and the appellate court vide order dated 29.09.2020 dismissed the appeal and upheld the order dated 03.08.2019 passed by the trial court. 5. The petitioners have assailed both the orders before this Court and also prayed for the quashing of the proceedings pending before the trial court on the following grounds: (i) That the learned trial court has granted exorbitant maintenance to the respondent but the petitioner No. 1 does not have any financial capacity to pay the same and further that the said amount was awarded without taking into consideration that the petitioner No. 1 is a small shop keeper, selling kiryana goods and he has to pay the loan instalments as well. (ii) That both the courts have failed to appreciate that the relationship between the petitioner No. 1 and respondent as husband and wife respectively has ceased to exist after petitioner No. 1 had divorced the respondent. The petitioners have also placed on record the divorce deed. (iii) That the marriage of petitioner No. 6 was solemnized in the year 2010 and since then, she has been residing in her matrimonial house along with her husband. Both the courts have not considered the fact that there were no allegations against petitioner No. 2 to 5 as well. 6. Mr. Abhishek Wazir, learned counsel appearing on behalf of petitioners has reiterated the submissions made in the petition on behalf of the petitioners. 7. Heard learned counsel for the petitioners. Since none appeared on behalf of respondent, so this Court has examined the issue on the basis of the material available on record. 8. The respondent has filed an application under Jammu and Kashmir Protection of Women from Domestic Violence Act for grant of various reliefs including the relief of maintenance and residence to the respondent on the ground that marriage of petitioner No. 1 and respondent was solemnised on 22.09.2009 and one child, namely, Seyhan Malik was born out of the said wed lock. After the solemnization of marriage, the respondent was harassed by the petitioners for not bringing enough jewellery, household and other items and it was alleged in the application that the parties were residing as joint family. After the retirement of the petitioner Nos. 2 and 3, she was harassed by the petitioners to bring more money from her parents for liquidating the liabilities of debts of the petitioner No. 1 and further she was forced by the petitioner Nos. 3 and 6 for handing over all the gold ornaments as well as cash given to her dowry by her parents. It was also stated in the application that the petitioner No. 1 gave severe beatings to the respondent on instigation of the other petitioners. It was also alleged that it was difficult for the father of the respondent to manage ever increasing demands of the petitioner No. 1 to 5 but after seeing the sufferings of his daughter at the hands of the petitioners, the father of the respondent took a loan from the bank amounting to Rs. It was also alleged that it was difficult for the father of the respondent to manage ever increasing demands of the petitioner No. 1 to 5 but after seeing the sufferings of his daughter at the hands of the petitioners, the father of the respondent took a loan from the bank amounting to Rs. 2,00,000/- and handed over the same to the in-laws of the respondent with a hope that her miseries would come to an end. Lastly, on 11.01.2019, the petitioner No. 1 to 5 with a criminal intention in a fit of rage beat the respondent and dragged her and threw her out of her matrimonial home. 9. The first contention of raised by the petitioners is that the petitioner No. 1 is running a small Kiryana Store and a sum of Rs. 10,000/- is a huge amount taking into consideration his financial position. It is not in dispute that the respondent does not have any source of income. The petitioner No. 1 being the husband of the respondent and father of a child of nine years of age is both under legal as well moral obligation to maintain his wife and child. Sum of Rs. 10,000/- out of which Rs. 6,000/- is to be paid to the respondent and Rs. 4,000/- for the expenses of the minor son cannot be termed as an excessive amount taking into consideration the high rate of inflation and also that the minor son is a school going child. Only interim maintenance has been granted in favour of the respondent and it is for the petitioner No. 1 to prove during the course of trial that he does not have sufficient source of income. So, this contention has no force and the same is rejected. 10. The second contention is with regard to divorce pronounced upon the respondent. Merely taking any plea of divorce in the objections will not preclude the respondent to seek maintenance and residence for herself. Divorce is required to be proved like any other fact during the course of the trial. The learned trial court has to examine as to whether divorce has taken place in accordance with law or not and at this stage the wife cannot be denied interim maintenance and right of residence merely on the plea of divorce raised in the objections filed by the petitioners. 11. The learned trial court has to examine as to whether divorce has taken place in accordance with law or not and at this stage the wife cannot be denied interim maintenance and right of residence merely on the plea of divorce raised in the objections filed by the petitioners. 11. As far as the third contention is concerned, from the application filed by the respondent it is evident that the petitioner No. 6 was residing with the other petitioners in the shared household up to the time she got married. There is no denial by the respondent that the petitioner No. 6 got married in the year 2010. In the application filed by the respondent, vague allegations have been levelled against the petitioner No. 6 and merely on the basis of vague allegations, petitioner No. 6 cannot be proceeded against under the Domestic Violence Act. So far other petitioners are concerned, there are specific allegations against them and whether the allegations are true or not, the same are required to be considered during the course of trial. 12. I have gone through the orders passed both by the Trial court as well as Appellate Court and both the Courts dealt the issue in accordance with law and no fault can be found with the same. 13. In view of all, what has been discussed above, the petition filed by the petitioner Nos. 1 to 5 is dismissed and both the orders are upheld. However, the proceedings against the petitioner No. 6, who is the married sister-in-law of the respondent, pending before the learned trial court, are quashed. 14. Disposed of.