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2023 DIGILAW 76 (JK)

Syed Sarwar Amin v. Asma Farooq

2023-02-23

M.A.CHOWDHARY

body2023
JUDGEMENT 1. The present petition has been filed under section 561-A of since repealed J&K Cr.P.C. (akin to Section 482 of Central Cr.P.C.) for quashing the application filed by the respondent herein under section 12 of the Protection of Women from Domestic Violence Act, wherein the Court of Learned Special Mobile Magistrate, Jammu (hereinafter referred as 'Trial Court'), vide order dated 05.10.2018 ordered the petitioner herein to pay Rs. 5000/- per month to complainant (respondent herein) as interim maintenance which is impugned in the present petition. 2. Aggrieved of this order, the petitioner herein filed the instant petition. The impugned order has been challenged on various grounds including the main plea that the impugned application is not maintainable as the Special Mobile Magistrate, Jammu lacks jurisdiction to entertain it as provided in Section 27 of the Protection of Women from Domestic Violence Act and also petitioner had already divorced his wife respondent on 07.08.2018. 3. Despite notice to respondent, objections have not been filed. However, learned counsel for the respondent submits at bar that the alternative remedy was available to the petitioner for filing appeal before Session Court but he has not chosen to it, as such, this petition is not maintainable and prayed for its dismissal. 4. Heard and considered. 5. Instead of going into the merits of the case, a preliminary point raised by learned counsel for the respondent is required to be determined as to whether the instant petition is maintainable when alternate remedy of challenging the impugned order was available to the petitioner. The impugned order has been passed under the provisions of Jammu & Kashmir Protection of Women from Domestic Violence Act. 6. Section 29 of the Act reads as under:- "Appeal- There shall be an appeal to the court of Sessions within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondents, as the case may be, whichever is later." So, it can be deduced that as per Section 29 of the Act, all the orders passed under any of the provisions of the Act, are appealable. 7. This Court under section 561-A J&K Cr.P.C. has inherent powers to exercise. It has been a consistent view of the Constitutional courts that when alternate efficacious remedy is available, the inherent jurisdiction of the court cannot be invoked. 7. This Court under section 561-A J&K Cr.P.C. has inherent powers to exercise. It has been a consistent view of the Constitutional courts that when alternate efficacious remedy is available, the inherent jurisdiction of the court cannot be invoked. The Hon'ble Apex Court in a case titled Waryam Singh & Anr. v. Amarnath & Anr., reported as 1954 AIR SC 215, was pleased to hold that the power vested with the High Court in terms of Article 227 of the Constitution of India is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within bounds of their authority and not for correcting mere errors. The Hon'ble Apex Court again in a case titled Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329 and Lasmikant Revchand Bhojwani & Anr. v. Pratapsingh Mohansingh Pardeshi reported as (1995) 6 SCC 576 , reminded the High Courts that the inherent power cannot be assumed in terms of Article 227 as an unlimited prerogative to correct all species of hardships of wrong decision. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principle of law and justice. 8. This Court in an identical case titled Charanjeet Kour & Ors. v. Taranjeet Kour & Ors., reported as 2018 KLJ 312 , has taken similar view with regard to the inherent power under section 561-A J&K Cr.P.C. This Court in a case titled Jatinder Nath Bakshi v. State of J&K & Ors., reported as 2009 (3) JKJ 679 [HC], had held that the power under section 561-A J&K Cr.P.C. has to be exercised sparingly and in the rarest of rare cases. This inherent power cannot be exercised on mere drop of hat or merely to correct any illegality committed by the subordinate court. 9. Impugned order by its nature is interim order. Notice under section 12(4) is served to petitioner and impugned order is subject to objections from the petitioner herein. 10. In the considered opinion of this Court, the petitioner herein instead of filing appeal under section 29 of the Jammu & Kashmir Protection of Women from Domestic Violence Act, 2010 before the Sessions court, has rushed to this Court invoking its inherent power, which otherwise has to be used cautiously and sparingly. 10. In the considered opinion of this Court, the petitioner herein instead of filing appeal under section 29 of the Jammu & Kashmir Protection of Women from Domestic Violence Act, 2010 before the Sessions court, has rushed to this Court invoking its inherent power, which otherwise has to be used cautiously and sparingly. The petitioner had the alternate efficacious remedy available under the statute, and to invoke the inherent power of this Court is an abuse of process. 11. The impugned order has been passed by the Learned Magistrate in an application under section 23 of the Protection of Women from Domestic Violence Act, 2010 moved alongside with main complaint under section 12(1) of the Act and this interim order has been passed in-ex-parte issuing notice to the respondents for appearance and it was also to direct the petitioner herein to pay sum of Rs. 5000/- to the complainant-respondent as interim maintenance, the order was subject to objections from other side. The petitioner had thus an opportunity of appearing before the learned Judicial Magistrate and to raise all the plea raised in this petition by filing a reply before the Court below and also had a right to file the application before the Ld. Judicial Magistrate for dropping the proceedings against him. 12. In this background of the aforesaid discussion and without going into the merits of the rival contentions raised by the learned counsel for the parties it is provided that the petitioner may file his reply to the petition under section 12 of D. V. Act raising all the available pleas and he may also file an application before the Ld. Magistrate for dropping all the proceedings against him in case, the same is done by the petitioner the Ld. Magistrate shall after hearing the parties pass appropriate order in accordance with expeditiously preferably within a period of 30 days from the date such application is made by the petitioner before the Ld. Magistrate. 13. This petition in terms of inherent jurisdiction is thus not maintainable and is liable to be dismissed for the afore-stated reasons without going into its merits. 14. Petition, is, accordingly dismissed as not maintainable. Interim direction(s), if any, shall stand also vacated. 15. Copy of this order shall be sent down to the concerned learned Magistrate, for information and compliance.