Judgment

Rajnesh Oswal, J.—The residence order dated 08.07.2020 passed by Sub-Judge (Forest Magistrate), Srinagar (hereinafter referred to be as the Trial Court) was challenged by the petitioners in an appeal and the said appeal was also dismissed by learned 2nd Additional Sessions Judge, Srinagar (hereinafter referred to be as the Appellate Court) vide order dated 29.09.2020.

2. Through the medium of this petition under section 482 Cr.P.C, the petitioners have assailed the order dated 29.09.2020 passed by the appellate court on the ground that the appellate court had only heard the arguments on the maintainability of the appeal filed by the petitioners but had not heard the argument on the merits of the case. Besides raising this ground, the petitioners have also contended that the respondents have not placed on record any material to substantiate the allegations of domestic violence. Both the trial court as well as the appellate court, have failed to take notice about the fact that the application was filed after seven years, respondent No. 1 left the company of petitioner No. 1 and the appellate court has wrongly held that the rigors of limitation is not applicable to the proceedings. The respondent No. 1 had issued a notice on 21.01.2017 to negotiate the settlement of the future of the minor children born out of wedlock and its perusal would reveal that there are no allegations of domestic violence. It is further stated that there was suppression of material facts by respondent No. 1 and she has approached the court with unclean hands and also in view of document executed on 25.08.2014, whereby respondent No.1 acknowledged to have been divorced on 22.06.2013, the trial court could not have passed the residence order and the appellate court too has fallen in a grave error of law by upholding the same. The petitioners have also sought quashing of the application filed by respondents under section 12 of Domestic Violence Act.

3. Admittedly, the marriage between the petitioner No.1 and respondent No. 1 was solemnized on 10.05.2007 and out of the said wedlock, two male issues i.e. respondent Nos. 2 & 3 were born. Respondent No. 1 had filed an application under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to be as the Act) whereby the respondents sought maintenance and also residence order as well as the return of the personal belongings of the respondent No. 1. Along with the application, an application for interim relief was also filed. It is pleaded that respondent No. 1 was subjected to harassment, humiliation, torture by the petitioners. The respondents have leveled various allegations those are not necessary for the purpose of adjudication of this petition.

4. The respondents pleaded that in the month of March 2012, without any rhyme or reason, the petitioners turned the respondents out of the home. Respondent No. 1 contacted the petitioner No. 1 and requested him to take her back but he flatly refused to do so. It was further pleaded that in 2014, upon pressure generated by the petitioners, respondent No. 1 was coerced to sign a document dated 25.08.2014, whereby the respondent No. 1 was shown to have been divorced on 22.06.2013 and she has challenged the said document in a civil suit in the court of Sub Registrar, Srinagar and the same was stayed, as such respondent No. 1 continued to be the legally wedded wife of petitioner No. 1 as the divorce pronounced by the petitioner No. 1 was not in accordance with Shariah Law. The respondents further pleaded about the dearth of financial resources and also that besides good salary, petitioner No. 1 has huge movable and immovable properties which include a three storeys palatial house and another two storeys vacant house at Lal Bazar. It was also stated that respondent No. 1 has already instituted proceedings under section 488 Cr.P.C. against the petitioner No. 1 but the same shall have no bearing upon the proceedings in question.

5. The petition