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2022 DIGILAW 345 (JK)

Tariq Ahmad Sheikh v. Mst. Rohi

2022-07-18

SANJAY DHAR

body2022
JUDGMENT : 1. The petitioners have challenged order dated 13th August, 2018, passed by Special Mobile Magistrate (Sub Judge), Srinagar, as also order dated 7th September, 2019, passed by learned 3rd Additional Sessions Judge, Srinagar, whereby the order of the learned Special Mobile Magistrate has been upheld in an appeal. 2. It appears that the respondent had filed a petition under the provisions of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 (hereinafter referred to as the Act of 2010), alleging therein that she is legally wedded wife of petitioner No.1 and that their marriage was solemnized on 18.10.2011. Out of this wedlock, one daughter was born. It was alleged that right from the inception of marriage, the relations between petitioner No.1 and the respondent remained strained as the respondent was subjected to atrocities by petitioner No.1. It was further alleged that petitioner No.1 along with other petitioners started ignoring, thrashing and beating respondent without any rhyme or reason, as petitioner No.1 was having illicit relationship with some other woman. Ultimately, on 06.09.2013, the respondent was thrown out of her matrimonial house. It was further alleged that the respondent was subjected to persistent humiliation, physical, mental economic and emotional abuse by the petitioners. The respondent filed a petition under Section 488 of the Jammu and Kashmir Cr. P. C before Judicial Magistrate, 1st Class (3rd Additional Munsiff), Srinagar, wherein an interim monthly maintenance of Rs.900/- was granted in favour of the minor child and Rs.1200/- in favour of the respondent. 3. On the basis of the aforesaid allegations, the respondent sought compensation, an order to reside in the shared household as also a protection order against the harassment and domestic violence. 4. The petitioners filed objections to the aforesaid complaint of the respondent, in which they alleged that the respondent had filed a criminal complaint for offences under Section 405, 406 RPC against the petitioners and after failing to get the desired result, she filed a petition under Section 488 of the J&K Cr. P. C. It is further contended that during these proceedings, the respondent has herself admitted that she has left the matrimonial house on 07.09.2013 and that petitioner No.1 was at Jammu at the relevant time. P. C. It is further contended that during these proceedings, the respondent has herself admitted that she has left the matrimonial house on 07.09.2013 and that petitioner No.1 was at Jammu at the relevant time. It was further contended that the respondent has admitted that cause of action had arisen in her favour in the year 2013 and that she is not living with the petitioners since then and, as such, she is not entitled to invoke the jurisdiction of the trial Magistrate at this stage. It was further contended by the petitioners that petitioner No.1 is earning only a sum of Rs.6000/- per month and, as such, it will be difficult for him to pay the interim monetary maintenance to the respondent. 5. The learned trial Magistrate, after hearing the parties and taking into consideration the pleadings of the parties, passed the impugned order on 13.08.2018 granting the following reliefs in favour of the petitioner: a) The respondents shall refrain from committing any act (omission or commission) of domestic violence upon the petitioner and her daughter. In case the respondents failed to desist from their transgressions, the Protection Officer shall immediately come to the rescue of the petitioner and even police station cornered will take immediate cognizance of any act of domestic Violence against the petitioner and will act appropriately. b) The respondents shall readily allow and will not hinder petitioner along-with her daughter in any manner from entering and living in the share house hold, and in the event of failure, respondent No.1 shall provide them an accommodation commensurate to the shared house hold or will pay her Rs.3000/- as monthly rental for hiring an accommodation. c) The respondent No.1 in view of custody of child with her shall pay monthly maintenance of Rs.3000/- to petitioner in addition to any maintenance u/s 488 Cr.P.C, till the disposal of the main petition u/s 12 of the J&K Protection of Women from Domestic Violence Act 2010. 6. The aforesaid order came to be assailed by the petitioners in appeal before 3rd Additional Sessions Judge, Srinagar, but without any success as the same was dismissed vide the impugned order dated 07.09.2019. Both the aforesaid orders have been called into question by the petitioners through the medium of instant petition under Section 561-A of J&K Cr. P. C. 7. The aforesaid order came to be assailed by the petitioners in appeal before 3rd Additional Sessions Judge, Srinagar, but without any success as the same was dismissed vide the impugned order dated 07.09.2019. Both the aforesaid orders have been called into question by the petitioners through the medium of instant petition under Section 561-A of J&K Cr. P. C. 7. I have heard learned counsel for the parties and perused the record of the case. 8. It has been contended by learned counsel for the petitioners that the respondent has admitted during the proceedings under Section 488 of the J&K Cr. P. C that she has left her matrimonial house in the year 2013 when her husband was not present over there and, as such, there was no domestic relationship between respondent and the petitioners right from the year 2013 up to the time when the respondent filed the petition before the trial Magistrate on 24.06.2016, and, as such, the respondent cannot initiate the proceedings under the provisions of the Act of 2010 against the petitioners. It is further contended that cause of action, if any, had arisen in favour of the respondent in the year 2013, when she was allegedly thrown out of her matrimonial house by the petitioners but she waited for three years to file the proceedings under the Act of 2010 which are hopelessly time barred. It has also been contended that petitioner No.1 is earning only Rs.6000/ per month, as such, it is not possible for him to pay the monetary relief that has been granted by the trial Magistrate in favour of the respondent. 9. So far as the first contention of learned counsel for the petitioners that there was no domestic relationship between petitioners and the respondent at the time when the proceedings under the Act of 2010 were initiated, is concerned, the same appears to be without any merit. ‘Domestic relationship’ has been defined in Section 2(f) of the Act of 2010 to mean a relationship between two persons who live or have, at any point of time, lived together in a shared household. ‘Domestic relationship’ has been defined in Section 2(f) of the Act of 2010 to mean a relationship between two persons who live or have, at any point of time, lived together in a shared household. Thus, it is clear from the definition of ‘domestic relationship’ that it is not only when the two persons are living together in a shared household but even if they have lived together in a shared household at any point of time in the past and are related by consanguinity, marriage, adoption or are family members living together as a joint family, it would amount to a domestic relationship. In the instant case, admittedly, the respondent was living with petitioner No.1 and other petitioners as wife of petitioner No.1. She may have been turned out from her matrimonial house in the year 2013 and she may have been living separately as on the date of filing of the complaint before the trial Magistrate because of certain circumstances, but that does not mean that the domestic relationship between petitioners and the respondent had ceased. 10. It has been contended by learned counsel for the petitioners that petitioner No.1 has pronounced ‘Talaq’ upon the respondent. However, there is no pleading in this regard in the objections filed by the petitioners before the trial Magistrate. Even if it is assumed that petitioner No.1 has pronounced ‘Talaq’ upon respondent, the validity and effect of such an action is a matter to be decided during trial of the case. At the time of considering an application for grant of interim relief in terms of Section 23 of the Act of 2010, this issue cannot be determined. 11. The second contention raised by learned counsel for the petitioners is that the respondent has initiated proceedings under the Act of 2010 after three years of the alleged acts of domestic violence and, as such, her complaint is hopelessly time barred. 12. So far as the acts of domestic violence are concerned, the same gives rise to a continued cause of action. The definition of ‘domestic violence’ includes economic abuse and because the petitioners have allegedly deprived the respondent from shared household as also the adequate monetary relief, as such, the economic abuse of respondent continued even after she was turned out of her matrimonial house. The definition of ‘domestic violence’ includes economic abuse and because the petitioners have allegedly deprived the respondent from shared household as also the adequate monetary relief, as such, the economic abuse of respondent continued even after she was turned out of her matrimonial house. Therefore, she was well within her rights to file the complaint under the provisions of the Act of 2010 against the petitioners. 13. Lastly, it has been contended that the petitioner No.1 is earning only an amount of Rs.6000/- per month and he is unable to pay the amount of monetary relief awarded by the trial Magistrate in favour of the respondent. A perusal of the impugned order passed by the trial Magistrate reveals that he has awarded a sum of Rs.3000/- on account of monthly rental as an alternative to the relief relating to provision of shared accommodation and he has also awarded a sum of Rs.3000/- as monthly maintenance to the respondent. The amount of maintenance awarded by the Magistrate in the proceedings under Section 488 of the J&K Cr. P. C is only Rs.900/- per month which is too meagre for a lady to make her both ends meet. Therefore, it cannot be stated that the interim monetary maintenance awarded by the trial Magistrate vide the impugned order in favour of the respondent is either exorbitant or unreasonable. Even otherwise, this Court in exercise of its jurisdiction under Section 561-A of the J&K Cr. P. C would not interfere in the concurrent findings of the trial Magistrate and Appellate Court on this aspect of the matter. 14. For the foregoing reasons, there is no merit in this petition. The same is, accordingly, dismissed. 15. A copy of this order be sent to learned trial court for information.