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HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
SANJAY DHAR, J.
Shameema Begum (Mst) - Appellant
Versus
Javid Iqbal Khan - Respondent
CRM(M) No. 36 of 2023
Decided on : 21-08-2024
Key Points: - The Magistrate has jurisdiction to grant interim residence orders under Section 23 of the DV Act based on prima facie evidence of domestic violence, without awaiting the trial’s conclusion. (!) - Interim residence orders can be granted by a Magistrate while considering an application under Section 12, based on prima facie evidence of violence, and need not await full trial, to provide urgent relief. (!) (!) - Section 19 enumerates the conditions for residence orders and supports interim relief; a final residence order can be passed at the final disposal of the petition, but interim orders may be granted if prima facie conditions are satisfied. (!) (!) - The impugned appellate order, which claimed residence relief could be granted only after trial, is contrary to the provisions of the DV Act and the object of providing immediate relief. (!) - The petition is allowed; the impugned order setting aside interim relief is set aside. (!)
JUDGEMENT
1. The petitioner has challenged order dated 14.12.2022 passed by learned Principal Sessions Judge, Kupwara, whereby the appeal filed by the respondent against order dated 07.12.2021 passed by learned Judicial Magistrate 1st Class (Munsiff), in a complaint filed by the petitioner under section 12 of the Protection of Women from Domestic Violence Act (hereinafter referred to as "the DV Act"), has been allowed and the order of the trial Magistrate has been set aside.
2. Notice of the petition was served upon the respondent but despite service, he did not choose to appear and contest the case.
3. I have heard learned counsel for the petitioner and perused record of the case.
4. It appears that the petitioner, who happens to be the wife of the respondent, filed a petition under section 12 of the DV Act against her husband (respondent herein) before the Court of Judicial Magistrate 1st Class (Munsiff), Kupwara (hereinafter referred to as "the trial Magistrate"). Along with the said petition, the petitioner also filed an application for grant of interim relief in terms of Section 23 of the DV Act. In the petition filed before the trial Magistrate, the petitioner alleged that she is legally wedded wife of the respondent and out of the said wedlock, no issue has born. According to the petitioner, she was subjected to verbal, emotional and physical violence by the respondent and she was not even provided the basic amenities of life like food, medicine and shelter. She sought monetary compensation as well as the order relating to residence from the respondent.
5. On 16.07.2021, the trial Magistrate, in exercise of his powers under section 23 of the DV Act, passed an exparte interim order directing the respondent to provide accommodation comprising kitchen, bathroom and washroom to the petitioner and also to provide her sufficient protection.
6. The aforesaid order was challenged by the respondent by way of an appeal under section 29 of the DV Act before the learned Principal Sessions Judge, Kupwara, who, vide order dated 06.08.2021 dismissed the appeal and gave liberty to the respondent to appear before the trial Magistrate and seek variation of order dated 16.07.2021 as the said order was made subject to modification.
7. It seems that the respondent appeared before the learned trial Magistrate and filed his objections to the petition, whereafter the trial Magistrate passed order dated 07.12.2021 after hearing the parties. Vide the said order, the learned trial Magistrate declined the relief of interim monetary compensation to the petitioner on the ground that she is working as a Government Teacher and has sufficient income. However, the learned trial Magistrate directed the respondent to provide safe and secure residence to the petitioner in the shared household.
8. The aforesaid order was challenged by the respondent by way of an appeal before the learned Principal Sessions Judge, Kupwara. Vide impugned order dated 14.12.2022, the learned Sessions Judge allowed the appeal and set aside the order of the trial Magistrate, presumably, on the ground that the relief relating to residence to an aggrieved person can be granted only after trial while disposing of an application under section 12 of the DV Act finally.
9. The learned counsel appearing on behalf of the petitioner has assailed the impugned order by contending that the learned Appellate Court has misconstrued the provisions contained in Sections 19 and 23 of the DV Act, as a result of which grave miscarriage has been committed by the said Court while passing the impugned order.
10. The issue which is required to be determined in this petition is as to whether a Magistrate, while considering the grant of interim order in favour of an aggrieved person in terms of Section 23 of the DV Act, can pass an order of residence even before the trial of the main case has concluded. In order to determine this issue, the provisions contained in Section 23 of the DV Act are required to be notice
A Magistrate can grant interim residence orders under the DV Act based on prima facie evidence of domestic violence, without concluding the trial.
A Magistrate can grant interim residence orders under Section 23 of the DV Act without concluding a trial, ensuring immediate relief for aggrieved persons.
Point of law: Provision of the Section 29 of the Act, appeal lies against any order passed by the trial court but without preferring the appeal, the petitioner has sought for quashing of the order af....
An appeal against an interim order under the DV Act is maintainable, and the appellate court has the power to pass interim orders.
Criminal revision not maintainable against interlocutory interim maintenance order under DV Act per BNSS Section 438(2).
An interim order preventing a woman from being dispossessed from a shared household qualifies as a protection order under the Domestic Violence Act, enforceable under Section 31.
DV Act – Domestic voilence - It is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt.
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