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2022 DIGILAW 209 (JK)

Zahoor Ahmad Mir v. Nusrat Ibrahim

2022-05-06

SANJAY DHAR

body2022
JUDGMENT : 1. The petitioner has called in question order dated 14.09.2018, passed by District Mobile Magistrate, Anantnag (hereinafter referred to as the learned trial Magistrate) whereby in a proceeding under section 12 of the J&K Protection of Women from Domestic Violence Act, 2010, the petitioner has been directed to pay a monthly monetary benefit of Rs.5000/- to the respondent from the date of the application. The aforesaid order has been upheld in an appeal filed against the aforesaid order of the trial Magistrate by the Court of learned Principal Sessions Judge, Anantnag (hereinafter referred to as the Appellate Court) in terms of its order dated 30.12.2019. The said order has also been challenged by the petitioner by way of instant petition. 2. It appears from the record that the respondent had filed a petition under section 12 of the J&K Protection of Women from Domestic Violence Act, 2010 (hereinafter referred to as the Act of 2010) against her husband i.e., the petitioner herein before the learned trial Magistrate. In the said application, the respondent had claimed that her husband i.e., petitioner herein, has inflicted acts of domestic violence upon her by maltreating her and throwing her out from the matrimonial house with her minor daughter. It was further alleged that the respondent has no accommodation for herself and that she is in dire need of accommodation and sustenance. The petitioner herein filed objections to the aforesaid application and raised a plea that he has divorced the respondent and, as such there exists no relationship between the parties. Thus, according to the petitioner, the proceedings are not maintainable. 3. The learned trail Magistrate after hearing the parties, while disposing of the application, directed the petitioner to pay a monthly maintenance of Rs.5000/- to the respondent and to provide her a separate accommodation. 4. The aforesaid order came to be challenged by the petitioner by way of an appeal before the learned Appellate court. Before the said court, it was contended by the petitioner that since there was no relationship of husband and wife existing between him and the respondent, as such, respondent does not fall within the definition of 'aggrieved person' as contained in Section 2(a) of the Act of 2010. The aforesaid contention of the petitioner was negatived by the learned Appellate Court and the order of the learned trail Magistrate was upheld. 5. The aforesaid contention of the petitioner was negatived by the learned Appellate Court and the order of the learned trail Magistrate was upheld. 5. In the instant petition, the petitioner has again raised the plea that because he has pronounced divorce upon the respondent, as such, there exists no domestic relationship between the parties. Thus, the proceedings against the petitioner under the provisions of the Protection of Women from Domestic Violence Act are not maintainable. It has been contended by learned counsel for the petitioner that there is a marked difference between the definition of 'aggrieved person' as contained in the provisions of the Act of 2010 and the definition of 'aggrieved person' as contained in the provisions under the Protection of Women from Domestic Violence, 2005 (hereinafter referred to as the Act of 2005). According to the learned counsel for the petitioner, this marked distinction in the definition of 'aggrieved person' in the two legislations has not been appreciated by the courts below and, as such, the impugned orders deserve to be set aside. 6. I have heard learned counsel for the parties and perused the record of the case. 7. In order to appreciate the contentions raised by the petitioner, it would be apt to refer to the relevant provisions relating to definition of 'aggrieved person' as contained in the Act of 2010 and the Act of 2005. Section 2(a) of the Act of 2010 reads as under:- "aggrieved person" means any woman who is in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Section 2(a) of the Act of 2005 reads as under:- “aggrieved person” means any women who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of Domestic violence by the respondent. 8. From a bare perusal of the aforesaid provisions, it appears that there is a distinction between the definitions of 'aggrieved person' as contained in the two legislations. In the Act of 2010, an 'aggrieved person' means a woman who is in relationship with the respondent whereas under the Act of 2005, an 'aggrieved person' means a woman who is or has been in a domestic relationship with the respondent. In the Act of 2010, an 'aggrieved person' means a woman who is in relationship with the respondent whereas under the Act of 2005, an 'aggrieved person' means a woman who is or has been in a domestic relationship with the respondent. On this ground, it has been contended that because the petitioner had divorced the respondent, as such, there was no domestic relationship between the parties though at one point in time they were in domestic relationship. 9. It is contended that the respondent may be an 'aggrieved person' as per the definition of said expression contained in the Act of 2005 but she cannot be an 'aggrieved person' within the meaning of the Act of 2010. While advancing this argument, the petitioner is pre-supposing that divorce and dissolution of marriage between the parties is an admitted fact. Such is not the case. The respondent has clearly stated in her application under section 12 of the Protection of Women from Domestic Violence Act that her relationship with the petitioner as his wife is subsisting, though the same is being disputed by the petitioner. The question whether the petitioner has pronounced Talaq upon the respondent in accordance with the principles of Muslim Personal Law and whether this Talaq has been validly communicated to her, are triable issues which cannot be decided without leading evidence. At this moment of time, the material on record before the learned trial Magistrate suggests that the petitioner and respondent had entered into a wedlock. It is claimed by the petitioner that he has divorced the respondent. The burden of showing that there has been cessation of relationship between the parties is upon the petitioner because it is he who has alleged the said fact. Unless he discharges this burden by leading cogent and convincing evidence, it cannot be stated that relationship between the parties has ceased to exist. In the instant case, prima facie, it appears that the parties are and have been in a domestic relationship. Therefore, it can be safely stated that the petitioner is obliged to pay maintenance and make provision for accommodation to the respondent. In the instant case, prima facie, it appears that the parties are and have been in a domestic relationship. Therefore, it can be safely stated that the petitioner is obliged to pay maintenance and make provision for accommodation to the respondent. The question whether a divorced wife comes within the definition of 'aggrieved person' as contained in Section 2(a) of the Act of 2010, is required to be gone into when the petitioner succeeds in proving that he has divorced the respondent by leading evidence in support of the said fact during the trial of the main case. 10. For the foregoing reasons, I do not find any illegality or impropriety in the order passed by the learned trial Magistrate as upheld by the learned Appellate Court. The petition lacks merit and is dismissed accordingly. 11. A copy of this order be sent to the learned Magistrate for information.