Court: Jammu & Kashmir High Court
Bench: JUSTICE Sanjay Kumar Gupta
Shahid Ahmed Wani Vs. Rubina Akhter On 22 September 2017
Law Point:
Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 — Sections 12, 17, 18, 19, 22, 23, 24 — Shared Household — Domestic Violence — Interim and ex parte orders — Domestic relationship — Divorced wife not entitled for relief — Petitioner and respondent wife never lived in domestic relationship at any time in house in question — Various reliefs provided under Sections 18, 19, 20, 21 and 22 dependent upon different cause of action — Scope and ambit of provisions — Observations made by Court.
JUDGEMENT
In the instant petition, the petitioners have assailed the order dated 30th April, 2016 passed by the Additional Sessions Judge, Jammu, by which the appeal filed by the petitioners (herein) against the order dated 1st March, 2016 passed by the 2nd Additional Munsiff (JMIC), Jammu under the provisions of Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 (in brevity, the Domdstic Violence Act), has been partially allowed and order of JMIC has been partially set aside the order of maintenance and upheld the rest of the order, i.e., household share in the property of the petitioner (husband) is concerned.
2. In the instant petition, it has been stated that the respondent (wife) filed a complaint against the petitioners (herein) under Section 23 of the Domestic Violence Act before the 2nd Additional Munsiff, Jammu and the same was allowed. The Trial Court directed the petitioners (herein) not to injure or endanger the health, safety and well being of the respondent, her minor children and also restrained the petitioners from dispossessing the respondent from 2nd storey of House No. 629. The Trial Court further commanded the petitioners to restore the custody of minor daughter to the respondent and to pay interim maintenance to the tune of Rs. 2,500 (Rupees Two Thousand and Five Hundred) per month along with arrears to the respondent.
3. It has been further stated that respondent (herein) filed a Complaint under Section 12 of the Domestic Violence Act and the rules framed thereunder for appropriate directions in terms of Sections 18, 19, 20 and 22, stating inter alia that respondent is the legally wedded wife of the petitioner No. 1. Their marriage was solemnized in the year 2001 in accordance with Shariat-E-Muhammadi at Jammu and they were blessed with two children. They lived for some time in cordial atmosphere and thereafter, the behaviour of petitioner No. 1 changed. It is further stated by the respondent that she and her husband, i.e., petitioner No. 1 jointly raised the construction of House No. 629, wherein presently, the respondent along with her minor children were putting up.
4. The appellants (petitioners herein) filed an appeal against the order 29th September, 2015, whereby they were directed by the Trial Court to pay monthly maintenance to the tune of Rs. 2,500. However, the appeal was dismissed by the Principal Sessions Judge, Jammu, holding that the judicial proprietor demands that the appellants should appear before the Trial Court, file the objections and raise all the pleas and grounds taken in the appeal. Accordingly, the appellants (petitioners herein) were granted liberty by the Appellate Court, i.e. Principal Sessions Court, Jammu to raise all the grounds of appeal in their objections.
5. In view of the judgment passed in the case titled, Shamim Ara v. State of UP, 100 (2002) DLT 58 (SC)=V (2002) SLT 538=AIR 2002 SC 3551, the Trial Court allowed the petition filed by the respondent (wife). The petitioners again filed an appeal before the learned Additional Sessions Judge, Jammu against the order dated 1st March, 2016 passed by the 2nd Additional Munsiff (JMIC), Jammu. The petitioners herein have prayed for dismissal of the complaint filed by the respondent before the Trial Court on the ground that the petitioner No. 1 had divorced his wife (respondent herein) by a written document prior to the date of filing of the complaint under the Domestic Violence Act.
6. It has been further submitted before the Trial Court that the Divorce Deed was executed by the petitioner No. 1 on 7th September, 2015 in presence of two witnesses, as required under law and the copy thereof was posted by the petitioners to the respondent is attached with the objections filed by him before the Trial Court. The same was sent to the respondent through registered post and she received the same. The complaint was filed by the respondent before the Trial Court under the aforesaid Act on 29th September, 2015. The petitioners in their objections further stated the relationship between the petitioner No. 1 and his wife (respondent) as a husband and wife relationship and that the respondent is not entitled to any maintenance or share in the residential house. The petitioners have also attached photocopy of Divorce Deed (Annexure-P3) with their objections. The reasons, which compelled the petitioner No. 1 to divorce his wife (respondent) are mentioned in the objections as well as in the Divorce Deed. It is stated that the respondent’s behavour with his husband (petitioner herein) and his family members right from the inception of the marriage, was quarrelsome and that the respondent would leave his (petitioner’s) house without informing him.
7. The Trial Court rejected the objections raised by the petitioner in view of the aforesaid judgment and allowed the petition filed by the respondent-wife. The Appellate Court, i.e., Additional Sessions Judge, Jammu has relied upon the judgment passed by the Hon’ble High Court in the case titled, Masrat Begum v. Abdul Rashid Khan and Anr., Crl. M.P. No. 239 of 2010, decided on 3.3.14. (J&K). The Hon’ble High Court in Masrat Begum’s case (supra) referring to different forms of divorce as recognized under the Muslim Law, various commentaries on the Islamic Laws and the Shariat Act distinguished from the Shamim Aras’s case and held that for grant of interim maintenance, there must be some material to come to a prima facie findings that the marriage between the parties subsists.
8. That from the perusal of the order of the 1st Appellate Court, it appears that an important point of law regarding share household in the petitioner’s property, i.e., 2nd storey of the house to be given to the respondent (wife) is escaped from his consideration. Once the 1st Appellate Court comes to the conclusion that the respondent has yet to prove whether the divorce has legal force and according to personal law, she cannot claim her right to live in the residential house. Reason being it is the petitioner No. 1 herein, who has divorced her and there is no domestic relationship between the two and if it is so, she is neither entitled to any maintenance nor has a right to reside in the shared household in the property. Section 17 of the aforesaid Domestic Violence Act reads as under:
(1) “Notwithstanding anything contained in any other law for the time being in force, every women in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the share household of any part of it by the respondent save in accordance with the procedure established by law.”
9. Thus, it is evident from the section (supra) that a woman, who is in a domestic relationship shall have the right to reside in a shared household. In the instant case, the respondent is a divorcee and as such, cannot take the protection under the aforesaid Domestic Violence Act.
10. Heard learned Counsel for petitioner
11. From the perusal of main file, it appears that respondent filed a petition under Section 12 of J&K Protection of Women from Domestic Violence Act stating that she is legally wedded wife of accused Shahid Ahmed Wani. That marriage was performed in accordance with Muslim Custom in Jammu. That relation between them remained cordial for some time and she performed all her duties towards husband and also performed her duties towards other family members. That out of wedlock two children one male and female was born. That both are studying in UKG in St Peter School. That after marriage, she was treated well as she has saved 4 lakh by pooling in committee. That complainant and accused No. 1 decided to increase the income so they extended the construction of house No. 629 where they were residing. It has further been stated that that accused her husband has left the house and went to the house of her father at H.No. 196, Prem Nagar Jammu few months ago. That complainant and children were left alone in H.No. 629. She had opened a beauty parlor under name Diamond Beauty Parlor in ground floor of house H.No. 629. The accused her husband without any rhyme and reason has deserted her and two children. That accused is in habit of drinking and taking other intoxication. He is not maintaining them rather creating hinderers in smooth functioning of beauty parlor where the complainant used to earn livelihood. That accused after heavily drunk used to create seen on the shop and used to chase away the customers. In this way only meager source of income of complainant has been snatched. The accused No. 2 who is father-in-law of complainant used to instigate accused No. 1 to do illegal activities to usurp the house. That due to illegal acts of accused No. 1 there is no work in shop of complainant. The minor children need Rs. 15,000 per month as fee. That on 11.9.2015 both the accused took away minor girl who is student of class III and is in custody of them. That her girl is minor and accused are poisoning the mind of minor girl. This complaint was filed on 14.9.2015 before Court below. An application under Section 12 of Act was also filed.
12. Court below recorded the preliminary statement of respondent on same day and posted the matter for 29.9.2015. On 29.9.2015, Court below passed an ex parte order in petition under Section 23 of the Act thereby directing husband/petitioner herein to allow the complainant/wife to share the share hold accommodation i.e. H.No. 629 situated at Prem Nagar and to prohibit violence against the complainant/applicant with further direction to non-applicant No. 1 to pay maintenance of Rs. 2,500 p.m. as interim maintenance. This order was challenged by petitioner herein before Sessions Judge, Jammu in appeal which was dismissed on 11.1.2016 on the ground that petitioner should firstly approach Trial Court by filing objections. Accordingly petitioner approached the Court below and filed objections. Petitioner in objections stated that he has divorced the wife, so she is not entitled to any relief under Section 23 of Act
13. On 1.3.2016 Court below after hearing the parties kept the order dated 29.5.2015 intact. Petitioners herein then filed another appeal before Additional Sessions Judge, Jammu who partly allowed the petition and set aside the order of maintenance passed by Court below, but upheld other part of order. This order has been passed by Court below on 30.4.2016. This order is now under challenge before this Court.
14. I have given my thoughtful consideration to whole aspects of matter and law on the point.
15. The Jammu and Kashmir Protection of Women from Domestic Violation Act, 2010 has been legislated for more effective protection of the rights of women guaranteed under constitution, who are victim of violence.
16. Section 12 of Act empowers victim to file a petition before Magistrate regarding domestic violation; Section 18 deals with passing of protection order; Section 19 deals with passing of residence order; Section 20 deals passing of monetary order Section 21 deals with passing of custody order and Section 22 deals with compensation order. These types of order can be passed/granted by Magistrate after hearing and finally deciding the application under Sections 12 of Act.
17. Section 23 of Protection of Women from Domestic Violence Act, reads as under:
“23. Power to grant interim and ex parte orders—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent.”
18. Bare perusal of this Section it is evident that Section 23 of Act empowers the Magistrate to grant interim relief/s as Magistrate deems just and proper during pendency of application under Section 12 of Act. Section 23 of Act consists of two parts; Section 23(1) empowers Magistrate to pass interim order during pendency of main petition under Section 12 of Act; Section 23 (2) empowers Magistrate to pass ad interim order during pendency of interim petition under Section 23(1) of Act.
19. The purpose of this section is to save the victim from vagrancy, continuous harassment, dispossession of victim from place of residence or share hold, alienation of such place of residence or shared household etc. If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant interim order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or Section 22 , as the case may be.
20. Now I shall appreciate the order passed by the Court below in light of the above mentioned provisions of DV Act and rules.
21. Petitioner has challenged the order passed by Court below with regard to dismissal of his appeal against the order passed by 2nd Munsiff, Jammu, whereby it has been directed to petitioner herein not to injure and endanger the health ,safety of wife and children; and also not to dispossess the wife and children from second storey of house No. 629 and also to restore the minor children. The only ground taken is that, when Court below has held that till the matter of divorce is considered by JMIC by way of summary evidence, the relief under Section 20 cannot be given. So reliefs under Sections 18, 19 and 21 of Act passed by Court below were also liable to be set aside.
22. This argument is of no avail to petitioners, because various reliefs provided under Section 18 (protection order); Section 19 ( residence order); Section 20 (monetary order); Section 21 ( custody order ) and Section 22 ( compensation order) are dependent upon different cause of action.
23. The relief of shared house has been provided under Section 19 of Act. It reads as under:
“19. Residence orders—(1) While disposing of an application under Sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—
(a) Restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) Directing the respondent to remove himself from the shared household;
(c) Restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) Restraining the respondent from alienating or disposing of the shared household or encumbering the same;
(e) Restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) Directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under Clause (b) shall be passed against any person who is a woman.
24. Shared house in Act has been defined as under:
“shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”
25. Bare perusal of these provisions, it is evident that, it does not say that divorced wife is entitled for this relief. As per definition of shared house where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent, is entitled for relief under Section 19 of the Domestic Violence Act. In present case, it is not denied that petitioner and respondent–wife never lived in domestic relationship at any time in the house in question.
26. In view of above discussion, this petition is dismissed having no merit. Record of Court below be sent back along with copy of this order. Interim stay, if any, is vacated.
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