Jammu & Kashmir High Court - Srinagar BenchHaji Hilal Mehmood Dar vs Waheeda Mir & Others on 8 April, 2022Author:Sanjay DharBench:Sanjay DharIN THE HIGH COURT OF JAMMU & KASHMIR AND\n                     AT SRINAGAR\n\n                                               Reserved on: 04.04.2022\n                                               Pronounced on:08.04.2022\n\n\n                          CRMC No.274/2017\n\n\nHAJI HILAL MEHMOOD DAR                            ... PETITIONER(S)\n\n               Through: - Mr. Mehraj-ud-din Kathu, Advocate.\n\nVs.\n\nWAHEEDA MIR & OTHERS                            ...RESPONDENT(S)\n               Through: - Mr. Ateeb Kanth, Advocate\n\n\nCORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE\n\n\n                                JUDGMENT1)    The petitioner has challenged the proceedings under the\n\nprovisions of the J&K Protection of Women from Domestic Violence\n\nActpending against him in the Court of Judicial Magistrate, 1 st Class\n\n(City Munsiff), Srinagar. The petitioner has also challenged orders dated\n\n01.11.2017, 23.01.2017 and 04.07.2016 passed by the learned trial court\n\nin the aforesaid proceedings that have been initiated by respondent No.1\n\nagainst him.2)    It emerges from the record that respondent No.1, who happens to\n\nbe the wife of the petitioner, has filed a petition in terms of the J&K\n\nProtection of Women from Domestic Violence Actagainst the petitioner\n\nalleging commission of acts of domestic violence by the petitioner2                    CRMC No.274/2017against her. In the complaint filed before the learned trial court, the\n\nrespondent No.1 has prayed that the petitioner herein be restrained from\n\nevicting or dispossessing her from the residential house situated at Khan\n\nColony, Chanapora, Srinagar and he be also restrained from entering into\n\nthe said house. A further prayer prohibiting the petitioner herein from\n\ncommitting the acts of domestic violence and to handover back the\n\njewellery and other precious items to the petitioner, has also been made.3)    It seems that the learned trial Magistrate, after considering the\n\nobjections filed by the petitioner herein and after hearing the parties,\n\npassed order dated 04.07.2016, whereby the petitioner has been\n\nrestrained from dispossessing respondent No.1 from her house bearing\n\nNo.31-A situated at Chanapora. A further direction has been issued to\n\nthe petitioner herein not to enter into the said house and not to commit\n\nthe acts of domestic violence on the respondents. The petitioner has been\n\nfurther asked to restore back the golden ornaments and other valuables\n\nto the respondent No.1 within a period of two months and he has also\n\nbeen directed to pay a monthly maintenance of Rs.5000/ to the\n\nrespondent No.1.4)    It appears that the aforesaid order of the learned Magistrate came\n\nto be challenged by the petitioners herein by way of an appeal in terms\n\nofSection 29of the Domestic Violence Act before the Court of learned\n\n2nd Additional Sessions Judge, Srinagar. The appeal came to be\n\ndismissed vide order dated 23.12.2016 on the ground that the same is\n\nbarred by limitation.3                    CRMC No.274/20175)    The record further reveals that the petitioner had filed an\n\napplication for modification of order dated 24.07.2016 passed by the\n\nlearned Magistrate but the said application also came to be dismissed by\n\nthe learned Magistrate in terms of his order dated 07.06.2017. It also\n\nappears from the record that the aforesaid order of the learned Magistrate\n\nwas challenged by the petitioner herein by way of an appeal before the\n\nlearned 1st Additional Sessions Judge, Srinagar, but the said appeal was\n\ndismissed on merits by the said Court in terms of order dated 19.08.2017.\n\nIt also emerges from the record that two orders, one dated 23.01.2017\n\nand another dated 01.11.2017, have been passed by the learned trial\n\nMagistrate in the execution proceedings arising out of order dated\n\n04.07.2016. Both these orders are also under challenge before this Court\n\nin these proceedings under Section 561-A of J&K Cr. P. C.6)    It has been contended by the petitioner that the impugned orders\n\nhave been passed in gross violation of the law, more particularly in\n\nviolation ofSection 23of the Domestic Violence Act. The petitioner has\n\nmade allegations of tampering in order dated 04.07.2016 and he has also\n\nmade personal allegations against the learned Presiding Officer. It has\n\nbeen submitted that the petitioner has already approached the Registrar\n\nVigilance of the High Court by way of a complaint in this regard. It is\n\nfurther contended that the respondent No.1 has, while lodging the FIR\n\nNo.113/2016 for offences under Section 354, 506, 379 RPC against the\n\npetitioner, admitted that she has dissolved her marriage with the\n\npetitioner and if that is so, the proceedings initiated by her against the4                    CRMC No.274/2017petitioner under the provisions of theProtection of Women from\n\nDomestic Violence Actcannot be sustained.7)    I have heard learned counsel for the parties and perused the record\n\nof the case.8)    As already noted, vide the impugned order dated 04.07.2016, the\n\nlearned trial Magistrate has, after hearing the parties, passed a detailed\n\norder issuing certain directions against the petitioner herein including an\n\norder restraining him from entering the house where the respondent is\n\nresiding. A direction for interim maintenance and a direction asking the\n\npetitioner not to inflict the acts of domestic violence upon the respondent\n\nhave also been passed. The said order has been challenged by the\n\npetitioner before the learned 2nd Additional Sessions Judge, Srinagar,\n\nwithout any success.9)    It has been contended by learned counsel for the petitioner that the\n\nimpugned order has been pre-dated by making a tampering therein, as a\n\nresult of which he could not file an appeal within the prescribed period\n\nof limitation on account of unrest which took place in Kashmir Valley in\n\nthe year 2016. This is an issue which cannot be gone into in these\n\nproceedings. The petitioner has already made a complaint before the\n\nRegistrar Vigilance of this Court and whether the order has been\n\ntampered with or not and if so, who has tampered with it, is a subject\n\nmatter of enquiry before the Registrar Vigilance as per the own showing\n\nof the petitioner. Even otherwise, these grounds were taken by the\n\npetitioner in his application for condonation of delay in filing the appeal5                     CRMC No.274/2017before the Appellate Court but the same did not find favour with the said\n\nCourt. The order of the Appellate Court has not been assailed by the\n\npetitioner and, as such, the same has acquired finality. Without laying\n\nany challenge to the order of the Appellate Court, it is not open to this\n\nCourt to review the findings recorded by the learned Appellate Court.\n\nEven otherwise, the petitioner's attempt to seek modification of the\n\nimpugned order dated 04.07.2016 has also met with no success as the\n\nlearned Magistrate has, vide order dated 07.06.2017, refused to modify\n\nthe impugned order dated 04.07.2016. The appeal against the said order\n\nhas also been dismissed and the order passed by the Appellate Court has\n\nnot been assailed by the petitioner. Therefore, the impugned order dated\n\n04.07.2016 and the order rejecting the prayer for its modification both\n\nhave acquired finality and, as such, the same cannot be interfered with in\n\nthese proceedings.10)   So far as the orders dated 01.11.2017 and 23.01.2017 are\n\nconcerned, the same have been passed by the learned Magistrate in\n\nfurtherance of execution of order dated 04.07.2016. Vide the aforesaid\n\norders, directions have been issued to the DDO of the petitioner to deduct\n\nthe amount of monthly maintenance from his salary. It was well within\n\nthe jurisdiction of the learned Magistrate to pass such orders, particularly\n\nwhen the petitioner had failed to deposit the amount of maintenance\n\ngranted in terms of order dated 04.07.2016. Thus, no fault can be found\n\nwith the aforesaid two orders passed by the learned Magistrate in the6                     CRMC No.274/2017execution proceedings. The same do not deserve to be interfered with by\n\nthis Court in these proceedings.11)      Lastly, it has been contended by the petitioner that the then learned\n\nSub-Registrar was having some personal affiliation with the respondents\n\nand on account of this, he has passed the impugned orders. In this regard,\n\nit is to be noted that the petitioner has himself admitted that he had filed\n\na criminal transfer application seeking transfer of petition filed underProtection of Women from Domestic Violence Actfrom the Court of\n\nJudicial Magistrate, 1st Class (Sub Registrar), Srinagar, to the Court of\n\nCity Munsiff, Srinagar, or any other Court of competent jurisdiction and\n\nvide order dated 31.10.2017 passed by learned Additional Sessions\n\nJudge, Srinagar, the case has been transferred from the Court of Judicial\n\nMagistrate, 1st Class (Sub-Registrar), Srinagar, to the Court of Judicial\n\nMagistrate, 1st Class (City Munsiff), Srinagar. The orders passed by the\n\nCourt of Sub Registrar, Srinagar, which are under challenge in these\n\nproceedings, relate back to the year 2017 and by now several Presiding\n\nOfficers have changed positions in the said Court. Therefore, even if\n\npetitioner had any apprehension as regards the impartiality of the\n\nPresiding Officer of the relevant time, the same does not survive as of\n\ntoday.12)      So far as the contention of the petitioner that the respondent has\n\nadmitted that she has been divorced by him is concerned, it is open to the\n\npetitioner to raise this contention before the learned trial Magistrate by\n\nplacing on record the documents relevant to the issue during the trial of7                   CRMC No.274/2017the main petition whereafter the learned Magistrate shall, after\n\nconsidering the case on its merits, pass appropriate orders in the main\n\npetition.13)     For the foregoing reasons, I do not find any merit in this petition.\n\nThe same is, accordingly, dismissed.14)     A copy of this order be sent to the learned Magistrate for\n\ninformation and compliance.(Sanjay Dhar)\n                                                         Judge\nSrinagar\n08.04.2022\n"Bhat Altaf, PS"Whether the order is speaking:        Yes/No\n                   Whether the order is reportable:      Yes/No