The judgment establishes that the Domestic Violence Act protects women who are living in a present domestic relationship, and a divorced woman cannot file a complaint under the Act when the relationship has ended with divorce.

Ali Mohammad Magrey, J.

Instant petition has been filed under Section 561-A Cr.PC. seeking quashment of order dated 18.03.2017 passed by learned Judicial Magistrate (City Munsiff), Srinagar, in case File No. 179/M captioned Mst. Asmat vs. Aijaz Rasool Bhat on the grounds detailed out in the petition.

Brief facts:

2. Respondent, Mst. Asmat claiming to be a legally wedded wife of petitioner, filed a complaint before learned Judicial Magistrate, Srinagar, under J&K Protection for Women from Domestic Violence Act, 2010 (for short “Domestic Violence Act”), which as stated came to be transferred to learned Judicial Magistrate (City Munsiff) Srinagar. In the complaint, it is alleged that petitioner subjected the respondent to violence and during her stay in the marital house, she was harassed and physically tortured by the petitioner and his family members and in the month of November, 2015, when respondent was in family way was given Rukhsati as a prevailing custom in the valley and thereafter petitioner has neglected her and does not allow her to reside in the house of the petitioner along with children. The instance of domestic violence alleged to have been committed are detailed out in the complaint. Besides filing of the complaint under the Domestic Violence Act, the respondent, as stated has filed a petition under Section 488 Cr. P.C., 1973 claiming maintenance for having been neglected, but despite that learned Judicial Magistrate has passed the order.

3. Petitioner on notice having raised preliminary objections regarding maintainability of the compliant with reference of the contents of the complaint being factually incorrect and legally unsustainable, as also on the ground that the respondent stands divorced.

4. Petitioner is aggrieved of the order passed by the learned Judicial Magistrate (City Munsiff), Srinagar, on 18.03.2017 and challenges the same on the grounds detailed out as under:-

(i) That the trial Court has rushed to the proceedings and in one breath says that the respondent No.1 and petitioner have put their allegations and counter allegations, which are triable issues and are to be adjudicated upon during the course of trial. The observations of the trial Court is not based on facts but have been made only to justify the impugned order, the same is liable to be set aside and quashed.

(ii) That the trial Court has miserably failed to appreciate that the respondent is a divorcee and is not living with the petitioner since November, 2017, thus the impugned order having been passed with non-application of mind deserves to be set aside and quashed.

(iii) That the petitioner admits that the respondent had married with the petitioner in June, 2001 and out of the wedlock three issues are born, however, when the petitioner has miserably failed to motivate the respondent to come back to the matrimonial house who instead declined and virtually avoided resumption of matrimonial tie on one pretext or the other and choose to stay with her parents and thereafter tried to make out stories and tried her best to harass the petitioner, the petitioner was constrained to divorce the respondent in terms of Divorce Deed. This vital aspect of the matter though specifically pleaded in the objections filed by the petitioner herein has not been considered by the trial Court while passing the impugned order, the same therefore is non est in the eyes of law and deserves to be quashed.

(iv) That it is now well settled that divorced women cannot file plaint under Domestic Violence Act. There is catena of Judgments pronounced by the Hon'ble High Courts in this behalf. A reference in this behalf for kind consideration is that Punjab and Haryana High Court in Criminal Misc. No. M-36736 of 2014 captioned Amit Agarwal and others vs. Sanjay Aggarwal and others held, “that the provisions under the Act could only be invoked during a domestic relationship, where the domestic relationship ceases, the provisions under the Act cannot be invoked”. This