Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(J&K) 712

IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Shabir Ahmad Wani - Petitioner
Versus
Arshida (Mst.) & Anr. - Respondents
CCRM(M) No. 301 of 2019 c/w CRM(M) No. 253 of 2019
Decided On : 25-05-2022

Advocates Appeared:
For the Petitioner: Nazir Ahmad.
For the Respondent: Shah Murteza.

IMPORTANT POINT
An order for maintenance under the Jammu and Kashmir Protection of Women from Domestic Violence Act is not a protection order and must be enforced under the provisions of the J&K Cr.P.C., specifically Section 490, rather than Section 31 of the DV Act.

Headnote:
DOMESTIC VIOLENCE - ENFORCEMENT OF MAINTENANCE ORDERS - J&K PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2010 - SECTIONS 18, 20, 31; J&K CR.P.C. - SECTIONS 488, 490 - The court analyzed the definitions and provisions of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010, particularly focusing on the distinction between protection orders under Section 18 and monetary relief under Section 20. The court concluded that an order for maintenance does not constitute a protection order and thus cannot be enforced under Section 31 of the DV Act. The court emphasized that enforcement of maintenance orders should follow the procedures outlined in Section 490 of the J&K Cr.P.C., aligning with the legislative intent and previous judicial interpretations.
Fact of the Case:
The petitioner, Shabir Ahmad Wani, challenged the judgments of the Additional Sessions Judge regarding the enforcement of a compromise order for maintenance and other terms agreed upon in a domestic violence case initiated by his wife. The trial Magistrate had dismissed the enforcement petition, stating that the compromise order was not a protection order under the DV Act.
Finding of the Court:
The court found that the compromise order dated 20.02.2018, which included maintenance provisions, was not a protection order as defined under the DV Act. The court upheld the trial Magistrate's decision, stating that the enforcement of maintenance should be pursued under the J&K Cr.P.C. rather than the DV Act.
Issues: The primary issue was whether the compromise order constituted a protection order under the DV Act, allowing enforcement under Section 31, or if it was merely a monetary relief order enforceable under the J&K Cr.P.C.
Ratio Decidendi: The court held that an order for monetary relief does not equate to a protection order under Section 18 of the DV Act. The enforcement of such orders must follow the procedures set out in Section 490 of the J&K Cr.P.C., as monetary relief is governed by Section 20 of the DV Act.
Final Decision: The court allowed the petition CRM(M) No. 301/2019, quashing the Additional Sessions Judge's order and upholding the trial Magistrate's decision. The petition CRM(M) No. 253/2019 was dismissed as meritless.

JUDGMENT :

Sanjay Dhar, J.

1. In CRM(M) No. 301/2019, the subject matter of challenge is judgment dated 05.09.2019, passed by learned 1st Additional Sessions Judge, Srinagar, whereby the learned 1st Additional Sessions Judge has, in an appeal filed under Section 29 of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 (hereinafter referred to as the DV Act), set aside order dated 11.02.2019 passed by Special Mobile Magistrate (Sub Judge), Srinagar (hereinafter referred to as the trial Magistrate).

2. In CRM(M) No. 253/2019, the petitioner has challenged judgment dated 01.08.2019 passed by learned Additional Sessions Judge, Srinagar, whereby the learned Additional Sessions Judge has dismissed the revision petition filed by the petitioner against order dated 12.05.2019 passed by the learned trial Magistrate. Since proceedings in both these cases owe their origin to one and the same order passed by the learned trial Magistrate, on 20.02.2018, whereby the learned Magistrate has passed a composite compromise order in proceedings initiated by respondents under Section 488 of the J&K Cr.P.C. and DV Act, as such, it would be appropriate to dispose of these petitions together by this common order.

3. It appears that respondent No. 1, who happens to be the wife of petitioner Shabir Ahmad Wani, had filed a petition under Section 488 of J&K Cr.P.C. against her husband before the learned trial Magistrate claiming maintenance for herself and her minor daughter. It also appears that respondents had also filed proceedings under DV Act against the petitioners in CRM(M) No. 301/2019 before the learned trial Magistrate. On the basis of a settlement arrived at between the parties, both these petitions were decided by the learned trial Magistrate in terms of its order dated 20.02.2018. The same is reproduced as under :

"Petitioner No. 1 along with Ld. Counsel for the petitioners present. Respondent and his Ld. Counsel also present. During the proceedings, the parties amicably settled and resolved the difference on following terms:

1. That the parties shall admit petitioner No. 2 at Minto Circle School Srinagar and all the expenses on education including tuition fee, transport etc., shall be borne by the respondent.

2. That the respondent shall pay a monthly maintenance of Rs.5,000/- to the petitioner No. 1 and Rs.3,000/- to the petitioner No. 2 from the date of this order. Respondent shall deposit maintenance in the bank A/C No. SB 17908 J&K Bank, Nawakadal Srinagar before 10th of every month.

3. That the marital relationship between petitioner No. 1 and respondent, still subsists and they will make sincere efforts to reduce the difference and bridge the marital discord. They will make endeavours to bring back bonhomie in their relation.

4. That the parties will remain in touch and can visit each other at will, and the other party will not object to such a move.

5. That as of now, the petitioners will continue staying at parental house of petitioner No. 1, till cordiality is revived in the relationship with respondent.

The terms of the settlement jotted down supra have been read over and explained to the parties and they have expressed satisfaction and complete agreement on them. In this regard, they have put their signature on the margin of this order sheet. Ld. Counsel of the parties have also signed on the margin. The petition is disposed of as per the terms settled above. File shall be consigned to records after its due compilation.

4. After the passing of aforesaid order, respondents filed a petition under Section 31 of the DV Act before the learned trial Magistrate. In the said petition, it was alleged by respondents that petitioner Shabir Ahmad Wani had not complied with the terms of the compromise and order dated 20.02.2018, inasmuch as he has stopped paying any maintenance to his wife, respondent No. 1 herein. The petitioner Shabir Ahmad Wani contested the petition by claiming that he had pronounced divorce upon his wife, resp