Mehmood Ahmed vs Shahnaz
2021 Latest Caselaw 1361 j&K

                                                                  Sr. No. 110

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU


                                              CRMC No. 30/2019
                                              CrlM No. 149/2109[1/2019]

                                              Reserved on : 28.09.2021
                                              Pronounced on: 29.10.2021


Mehmood Ahmed                                      .....Appellant(s)/Petitioner(s)

                       Through: Mr. Nigam Mehta, Advocate.

                  Vs

Shahnaz                                                      ..... Respondent(s)

                       Through: Mr. J. P. Gandhi, Advocate with
                                Ms. Saliqa, Advocate.

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                    ORDER

1. In the instant petition, inherent power of this Court is being invoked

under Section 561-A Cr.P.C (482 Cr.P.C) for quashment of order dated

20.10.2018 as also complaint titled as "Shahnaz Vs. Mehmood Ahmed and

Ors." pending before the Court of Special Mobile Magistrate, Passenger Tax,

Jammu (hereinafter for short, „Trial Court‟) including order dated 24.11.2016

and 21/02/2017. Further order dated 07.11.2017 passed by the Court of

Additional Sessions Judge (hereinafter for short, „Appellate Court‟) is also being

challenged.

2. Before adverting to the grounds of challenge urged in the petition, it

would be appropriate to refer to the facts in brief spelt out in the petition:-

(a) A petition under section 12 read with Sections 18, 20 and 22 of Protection of Women from Domestic Violence Act, 2010 (hereinafter for short, „The Act‟) is stated to have been filed by the respondent No. 1 herein against the petitioner herein and the performa respondents herein including one Dr. Rukhsana Chowdhary before the trial Court wherein a process is stated to have been issued by the trial court besides granting an amount of Rs. 12,000/- as maintenance p.m. in favour of respondent No. 1 and a further direction that the respondent herein shall not be harassed by the petitioner herein and performa respondents herein.

(b) Before the filing of the said complaint under the Act, the respondent No.1 is stated to have filed proceedings under Section 488 Cr.P.C. claiming maintenance from the petitioner herein for herself and her minor daughter, namely, Zoha Chowdhary, wherein respondent No. 1 is stated to have contended that after her marriage with the petitioner on 24.04.2002, daughter, namely, Zoha Chowdhary was born on 19.09.2008 and that she was thrown out of the matrimonial home on 15.10.2012 by the petitioner herein and that the Court granted a maintenance of Rs. 5,000/- p.m. as an interim maintenance therein in the said proceedings in favour of the respondent No. 2, and that during the pendency of the said proceedings, the petitioner herein took the respondent No. 2 along with the minor daughter back to his home in the month of April 2013 whereupon the respondent No. 1 withdrew the said maintenance case and that the respondent

No. 2 had further stated in the said maintenance proceedings that she lived with her husband from April 2013 till January 2015 and that in the month of December 2015, she came to know that the petitioner herein has given her divorce on 15.10.2012 and that thereafter she performed another marriage with petitioner on 11.01.2015 and that again she was thrown out from the home along with her daughter by the petitioner immediately thereafter and has been living since then with her mother with no source of income.

(c) It is being further stated that an appeal was preferred by the petitioner herein against order dated 24.11.2016 passed by the Trial Court which came to be dismissed by the Appellate Court in terms of order dated 22.12.2016 with the liberty to the petitioner herein to approach the trial Court, who shall make an endeavor to decide interim application under Section 23 of the Act as early as possible within a period of six weeks.

(d) It is being further stated that both the orders passed by the trial court and appellate court dated 24.12.2016 as well 22.12.2016 came to be challenged by the petitioner herein before this Court in petition under section 561-A No. 10/2017 which came to be disposed of on 11.01.2017 with a direction to the trial Court to consider the contentions of the petitioner with reference to modification/revocation, vacation of the order by filing a proper motion and to pass fresh orders after hearing the parties expeditiously and till then, the impugned orders shall not be given effect to.

(e) It is being next stated that the petitioner produced the copy of the order passed by this Court on 11.01.2017 before the

trial Court and that the trial Court on 21.02.2017, when the petitioner was not present, initiated ex-parte proceedings against the petitioner and performa respondents and fixed the case for ex-parte evidence on 11.03.2017 and that in the application for interim relief, the trial Court on the said date, i.e., 21.02.2017 made the interim order dated 24.11.2016 absolute.

(f) It is being stated that the petitioner herein preferred an appeal (being file No. 17/Cr. Appeal) against order dated 21.02.2017 before the Court of Additional Sessions Judge, Jammu which appeal is stated to have been dismissed on 07.11.2017. It is being stated that the petitioner herein being aggrieved of complaint filed by the respondent No. 2 under the Act as also orders dated 24.11.2016, order dated 21.02.2017 passed therein as well as order dated 07.11.2017 passed by the Appellate Court challenged the same before this Court in OW 104 No. 159/2017 which came to be disposed of on 30.12.2017 with a direction to the Trial Court that before proceeding further in the matter, it shall decide the objection preferred by the petitioner herein by speaking order in accordance with law after hearing all necessary parties.

(g) It is being stated that the petitioner herein filed detailed objections after the passing of the order by this Court dated 30.12.2017 and that the trial Court thereafter passed impugned order dated 20.10.2018.

3. The petitioner maintains instant petition inter alia amongst others

on the ground that the respondent No. 2 has not been an "aggrieved person"

under the Act in presence of the divorce admitted to have been pronounced

against her by the Petitioner and that there was no "domestic relationship"

between the petitioner and the respondent No. 1 and thus, the complaint filed by

the respondent No. 2 under the Act and proceedings initiated thereupon are

nullity in the eyes of law, and that both the Trial Court as well as the Appellate

Court wrongly passed the impugned orders.

4. Heard Counsel for the parties and perused the record.

5. Admittedly, the petitioner herein questioned the maintainability of the

complaint on the grounds urged by him in the instant petition in an earlier round

of litigations before this Court in 561-A petition No. 10/2017 and OW 104 No.

159/2017.

6. This court while disposing of the said petitions did not render any

decision on the merits of the case but left it upon for the Trial Court/Appellate

Court to decide the same in accordance with law after affording an opportunity

of hearing to all the necessary parties.

7. Perusal of the record tends to show that in compliance to order dated

11.01.2017 passed by this Court, the Trial Court passed an order on 21.02.2017

after the petitioner herein did not appear before it and did not file any objections.

8. Record further tends to show that aggrieved of the said order dated

21.02.2017 the petitioner preferred an appeal before the Court of Additional

District Judge, Jammu which court, however, dismissed the same upholding the

order of the trial Court dated 21.02.2017 after the Appellate Court found that the

order of the Trial Court has been passed in consonance with law.

9. Record further tends to show that in compliance to order dated

30.12.2017 passed by this Court in OW 104 No. 159/2017, the Trial Court

passed impugned order dated 20.10.2018 and perusal of the said impugned order

would reveal and suggest that the objections and contentions raised and urged by

the petitioner before the Trial Court qua the entitlement of the respondent No. 1

to maintain a petition under Section 12 of the Act, for entitlement to

maintenance as also not being an aggrieved person and also not being in a

domestic relationship with the petitioner have been addressed lucidly and with

reasons.

10. The trial Court has while considering the objections and contentions

raised by the petitioner herein rightly held that the question of divorce cannot

form a basis for dismissal of the complaint of the respondent No.1 without

deciding the said question upon leading of evidence by the parties while rightly

placing reliance on AIR 2002 SC 3551 case titled as "Shamim Ara Vs. State of

U. P & Anr."

11. The Trial Court has rightly dealt with the contentions and objections

raised by the petitioner herein that the trial Court could not pass the summoning

order without recording satisfaction about any incident/report of domestic

violence while holding that the principle laid down in "Priyanka Srivastava Vs.

State of U.P." reported in AIR 2015 SC is not applicable to the case and instead

rightly placed reliance on a judgment passed by this Court in "Rakesh Manhas

and Ors. Vs. Aruna Manhas" reported in 2015 (1) JKJ 301.

12. The Trial Court has further rightly considered the other grounds urged

and raised by the petitioner herein rightly and without any infirmity has drawn

rightful conclusions that the complaint/petition filed by the respondent No. 1

under the Act is maintainable.

13. The grounds urged in the instant petition and contentions raised by the

petitioner in view of aforesaid analysis do not call for any interference and

consequently the exercise of inherent jurisdiction is being declined in the matter

in view of law laid down by Apex Court in the case titled as "Janta Dal Vs. H.

S. Chowdhary" reported in [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : (1992) 4

SCC 305 : AIR 1993 SC 892], wherein following has been held :-

" Powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any state."

14. Resultantly, in view of what has been observed and considered herein

above, the instant petition fails and is accordingly, dismissed.

(JAVED IQBAL WANI) JUDGE

Jammu 29.10.2021 Sahil T Whether the order is speaking? : Yes Whether the order is reportable? : Yes