Advocates:
['SHOWKAT ALI KHAN', '', 'ABDUL OWAIS PANDIT', 'M A MAKHDOOMI', '', 'T H KHAWJA']

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

…

CRMC no.34/2019

IA no.01/2019

Reserved on: 09.08.2021

Pronounced on: 25.08.2021

Irshad Ahmad Sofi

…….Petitioner(s)

Through: Mr Abu Owais Pandit, Advocate

Versus

Afshana Shah

……Respondent(s)

Through: Mr T.H.Khawja, Advocate

CORAM:

HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT

1. Setting-aside of the Order dated 19^th September 2018, passed by Forest

Magistrate (Judicial Magistrate 1^st Class), Srinagar (for brevity “Trial

Court”) passed in a petition under J&K Protection of Women from

Domestic Violence Act, 2010, as also Order dated 18^th January 2019,

passed by Additional District Judge, Srinagar (for short “Appellate Court”)

in Cross Appeals, on the grounds made mention of therein.

2. I have heard learned counsel for parties and considered the matter.

3. Learned counsel for petitioner states that impugned order of the Trial Court

qua granting interim monthly maintenance of Rs.4,000/- in addition to

maintenance granted to child by the court of Sub-Judge, 13^th Finance, is

bad. It is contended that Trial Court has lost sight of proviso to Subsection

(2) of Section 12 read with Subsection (3) of Section 26, where it is duty of

the person that he has to inform the court trying application under Domestic

Violence Act about any maintenance given to the said person. According

2

CRMC no.34/2019

to him informing the court as regards maintenance already granted to

aggrieved person, is not just a mere formality but carries a purpose that

maintenance granted by one court has to be considered and is to be deducted

by other court.

4. Learned counsel for petitioner also avers that both Trial Court as well as

Appellate Court have not taken into consideration the fact that no

maintenance was prayed for the child nor was minor party before the Trial

Court. As has been said by counsel for petitioner, both Trial Court as well

as Appellate Court have made observations contrary to the law, more

particularly Subsection (3) of Section 26 of Domestic Violence Act.

5. It is discernible from the record that on an application, preferred by

respondent, the court of Sub-Judge/Special Mobile Magistrate, Srinagar,

vide Order dated 13^th September 2019, held respondent herein entitled to

monthly interim maintenance of Rs.3500/-.

6. Another application under Domestic Violence Act had also been preferred

by respondent before Trial Court, in which order dated 19^th September 2018

was passed, declining payment of maintenance to respondent herein.

However, petitioner was directed to pay an amount of Rs.4000/- per month

to the minor. Against aforesaid order, Cross Appeals were preferred. The

Appellate Court found that amount of maintenance fixed by Trial Court vis-

à-vis minor was not too excessive. The Appellate Court disallowed appeal

of respondent to the extent where respondents 2 to 6were deleted from the

array of respondents, has been disallowed and Trial Court order to this

extent has been maintained. However. The Appeal to the extent where the

Trial Court dismissed respondent’s claim for maintenance has been allowed

3

CRMC no.34/2019

and order to this extent has been set-aside and Trial Court has been directed

to hear the parties afresh in the matter or the Trial Court to ask parties to

lead evidence to prove their respective claims. Appeal filed by petitioner to

the extent where quantum of monetary relief of Rs.4000/- granted in favour

of minor child, has been rejected and the Trial Court order to this extent has

been maintained. Petitioners is aggrieved of both the orders of the Trial

Court as well as Appellate Court.

7. Appellate Court while deciding the appeal of both petitioner as well as

respondent has given an elaborate, comprehensive and lucid judgement.

The Trial Court has discussed all the aspects of the matters as were required

to be looked into and squared off. The Trial Court has exp