Reserved On: 21.02.2023 vs Asma Farooq
2023 Latest Caselaw 355 j&K

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 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT JAMMU

                                      CRMC No. 41/2019

                                      Reserved on: 21.02.2023
                                      Announced on: 23.02.2023
Syed Sarwar Amin

                                           ...Petitioner (s)

      Through: Mr. Intikhab H. Shah, Advocate
                 Vs.

Asma Farooq.

                                           ...Respondent(s)

      Through: Mr.Irfan Khan, Advocate .



CORAM: HON'BLE MR. JUSTICE M.A. CHOWDHARY, JUDGE

                   JUDGMENT

1. The present petition has been filed under section 561-A of since

repealed J&K CrPC (akin to section 482 of Central CrPC) for

quashing the application filed by the respondent herein under Section

12 of the Protection of Women from Domestic Violence Act,

wherein the Court of Learned Special Mobile Magistrate, Jammu

(hereinafter referred as 'Trial Court'), vide order dated 05.10.2018

ordered the petitioner herein to pay Rs. 5000/- per month to

complainant (respondent herein) as interim maintenance which is

impugned in the present petition.

2. Aggrieved of this order, the petitioner herein filed the instant

petition. The impugned order has been challenged on various

grounds including the main plea that the impugned application is not

maintainable as the Special Mobile Magistrate, Jammu lacks Page |2

jurisdiction to entertain it as provided in Section 27 of the Protection

of Women from Domestic Violence Act and also petitioner had

already divorced his wife respondent on 07.08.2018.

3. Despite notice to respondent, objections have not been filed.

However, learned counsel for the respondent submits at bar that the

alternative remedy was available to the petitioner for filing appeal

before Session Court but he has not chosen to it, as such, this petition

is not maintainable and prayed for its dismissal.

4. Heard and considered.

5. Instead of going into the merits of the case, a preliminary point

raised by learned counsel for the respondent is required to be

determined as to whether the instant petition is maintainable when

alternate remedy of challenging the impugned order was available to

the petitioner. The impugned order has been passed under the

provisions of Jammu & Kashmir Protection of Women from

Domestic Violence Act.

6. Section 29 of the Act reads as under:-

"Appeal- There shall be an appeal to the court of Sessions within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondents, as the case may be, whichever is later."

So, it can be deduced that as per Section 29 of the Act, all the orders

passed under any of the provisions of the Act, are appealable.

7. This Court under Section 561-A J&K Cr.PC has inherent powers to

exercise. It has been a consistent view of the Constitutional courts

that when alternate efficacious remedy is available, the inherent Page |3

jurisdiction of the court cannot be invoked. The Hon'ble Apex Court

in a case titled Waryam Singh & Anr. Vs. Amarnath &

Anr., reported as 1954 AIR 215, was pleased to hold that the power

vested with the High Court in terms of Article 227 of the

Constitution of India is to be exercised most sparingly and only in

appropriate cases in order to keep the subordinate courts within

bounds of their authority and not for correcting mere errors. The

Hon'ble Apex Court again in a case titled Shalini Shyam Shetty &

Anr. Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 and Lasmikant

Revchand Bhojwani & Anr. Vs. Pratapsingh Mohansingh Pardeshi

reported as (1995) 6 SCC 576, reminded the High Courts that the

inherent power cannot be assumed in terms ofArticle 227 as an

unlimited prerogative to correct all species of hardships of wrong

decision. Its exercise must be restricted to grave dereliction of duty

and flagrant abuse of fundamental principle of law and justice.

8. This Court in an identical case titled Charanjeet Kour & Ors. Vs.

Taranjeet Kour & Ors., reported as 2018 KLJ 312, has taken similar

view with regard to the inherent power under Section 561-A J&K

Cr.PC. This Court in a case titled Jatinder Nath Bakshi Vs. State of

J&K & Ors., reported as 2009(3) JKJ 679(HC), had held that the

power under Section 561-A J&K Cr.PC has to be exercised sparingly

and in the rarest of rare cases. This inherent power cannot be

exercised on mere drop of hat or merely to correct any illegality

committed by the subordinate court.

9. Impugned order by its nature is interim order. Notice under section

12(4) is served to petitioner and impugned order is subject to

objections from the petitioner herein.

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10.In the considered opinion of this Court, the petitioner herein instead

of filing appeal under Section 29 of the Jammu & Kashmir

Protection of Women from Domestic Violence Act, 2010 before the

Sessions court, has rushed to this Court invoking its inherent power,

which otherwise has to be used cautiously and sparingly. The

petitioner had the alternate efficacious remedy available under the

statute, and to invoke the inherent power of this Court is an abuse of

process.

11. The impugned order has been passed by the Learned Magistrate in

an application under Section 23 of the Protection of Women from

Domestic Violence Act, 2010 moved alongside with main complaint

under Section 12(1) of the Act and this interim order has been passed

in-ex-parte issuing notice to the respondents for appearance and it

was also to direct the petitioner herein to pay sum of Rs. 5000/- to

the complainant-respondent as interim maintenance, the order was

subject to objections from otherside. The petitioner had thus an

opportunity of appearing before the learned Judicial Magistrate and

to raise all the plea raised in this petition by filing a reply before the

Court below and also had a right to file the application before the Ld.

Judicial Magistrate for dropping the proceedings against him.

12. In this background of the aforesaid discussion and without going

into the merits of the rival contentions raised by the learned counsel

for the parties it is provided that the petitioner may file his reply to

the petition under Section 12 of D. V. Act raising all the available

pleas and he may also file an application before the Ld. Magistrate

for dropping all the proceedings against him in case, the same is

done by the petitioner the Ld. Magistrate shall after hearing the Page |5

parties pass appropriate order in accordance with expeditiously

preferably within a period of 30 days from the date such application

is made by the petitioner before the Ld. Magistrate.

13. This petition in terms of inherent jurisdiction is thus not

maintainable and is liable to be dismissed for the afore-stated

reasons without going into its merits.

14. Petition, is, accordingly dismissed as not maintainable. Interim

direction(s), if any, shall stand also vacated.

15. Copy of this order shall be sent down to the concerned learned

Magistrate, for information and compliance.

(MA CHOWDHARY) JUDGE Jammu 23.02.2023 Mujtaba