A domestic relationship under the D.V. Act exists even if the parties are not currently living together, provided they have cohabited in the past.

ORDER :

1. The petitioner through the medium of present petition has challenged order dated 12.07.2024 passed by learned 4th Additional Sessions Judge, Srinagar in an appeal filed under Section 29 of the Protection of Women from Domestic Violence Act (hereafter for short “the D.V.Act ”) against order dated 13.12.2023 passed by learned Judicial Magistrate 1 st Class (2nd Additional Munsiff) Srinagar (for short “the trial Magistrate).

2. Issue notice to the respondents. Ms. Zeenat Nazir, Advocate accepts notice on behalf of the respondents.

3. Heard and considered.

4. It appears that the respondents filed a petition under Section 12 of the D.V.Act against the petitioner and his brother, before the learned Page 2 of 5 trial Magistrate. It was pleaded in the said petition that respondent No.1 entered into wedlock with the petitioner in the year 2002 and out of the said wedlock two daughters respondent Nos.2 and 3 were born. It was further pleaded that in the year 2005, the petitioner had pronounced divorce upon respondent No.1, whereafter upon reconciliation respondent No.1 again entered into wedlock with the petitioner in the year 2011. According to the respondents the petitioner started abusing respondent No.1 physically, economically and emotionally without any cause, as a result of which, she suffered at his hands. It was also pleaded that the respondent No.1 sold her share from her ancestral property and purchased a residential house in which the parties started living. It was pleaded that the petitioner pressurized respondent No.1 to transfer the said house in his name and when she refused to do so he started ill treating her as well as her children by abusing them and by giving beating to them. According to the respondents the petitioner has failed to maintain them and he has left the company of the respondents leaving them without any sustenance.

5. The learned trial Magistrate vide his order dated 30.12.2022 issued notice to the petitioner as well as his brother and directed the petitioner to pay monthly interim monetary compensation of Rs.10,000/- to respondent No.1 and Rs.5000/- each to respondent Nos. 2 and 3. The said order was made subject to objections of other side. After the petitioner filed his objections to the petition before the trial Magistrate, an order came to be passed on 10.05.2023, whereby, order dated Page 3 of 5 30.12.2022 was modified and it was directed that the interim monetary compensation of Rs.6000/- per month shall be payable only to respondent No.1 and not to her daughters who are major. It seems that the petitioners approached this Court by filing a petition under Article 227 of the Constitution bearing CM(M) No.267/2023, whereby they called in question order dated 30.12.2022. In the said petition it was inter alia pleaded by the petitioners therein that the petition filed under the D.V.Act pending before the Court of learned 2nd Additional Munsiff Srinagar is not maintainable. This Court in terms of order dated 18.10.2023 remanded the case to the trial Magistrate for deciding the issue of maintainability.

6. Pursuant to the aforesaid direction of this Court, the learned trial Magistrate by virtue of order dated 13.12.2023 held that the petition is maintainable against the petitioner herein but not against his brother who was implicated as respondent No.2 in the petition under the D.V Act. Accordingly, proceedings against him were dropped.

7. The aforesaid order came to be challenged by the petitioner by way of appeal under Section 29 of the D.V Act before learned 4th Additional Sessions Judge, Srinagar and the same has been dismissed by virtue of the impugned order.

8. It has been contended that as per report of the SHO concerned the petitioner is not residing with respondent No.1 since a long time, as such, it was not open to the learned trial Magistrate to proceed against the petitioner. It has been submitted that the petitioner has filed a Civil Page 4 of 5 Suit against respondent No.1 and the pro