Mohd. Iqbal vs Naseema Begum

Vinod Chatterji Koul, J

The petitioner has challenged order dated 17.11.2016 passed by the Judicial Magistrate 1st Class, Ramban (hereinafter to be referred as the trial court) in petition filed under the provisions of Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010. The main ground on which the order impugned is sought to be set aside is that the respondent-Naseema Begum was divorced and factum of divorce was pleaded before the Magistrate and the learned Magistrate though taking note of the said ground and also observing in its order that she is separately residing form petitioner herein for the last 11 years has without deciding the fact as to whether or not she was divorced, held the petition maintainable and passed the order impugned.

The case of the petitioner precisely is that before assuming the jurisdiction and holding the petition maintainable, the petitioner therein has to establish before the court that the relationship of husband and wife is in existence and as the respondent was divorced way back on 30.01.2014 as such there was no such relationship in existence. It is the case of the petitioner that it was incumbent upon the trial court to have taken account of this fact of the case and before proceedings further or passing the order impugned ought to have considered this issue and given finding on it because existence of the relationship was necessary to the application of the provisions of the Act and exercise of the jurisdiction of the trial court. The order of the trial court was challenged in revision before the court of learned Principal Sessions Judge, Raman(hereinafter to be referred as the revision court) which rejected the same vide order dated 27.11.2017 on the ground that the order impugned is appealable, therefore, revision was not maintainable and it is submitted by learned counsel for the petitioner that though he made request for treating the revision as appeal, which was not accepted and by the time, the appeal was barred by limitation. Thus, this petition.

This petition has been filed in 2018 and vide order dated 26.04.2018 the proceeding before the trial court were stayed, which means that no effective proceedings had taken place in this case since then.

Learned counsel for the petitioner has also submitted that even the proceedings initiated by the respondent under the provision of section 488 Cr.P.C. failed because trial court held that the respondent herein has not proved willful neglect and she was residing separately. He further submits that the fact that the respondent was separately residing for the last more than 7 years, itself supports the contention of the petitioner that she was divorced. The learned trial court, while dealing with the matter has observed in its order that the plea whether the petitioner had divorced the respondent as per prevalent law and customs, is the issue which can be proved on evidence and the main point required to be proved is about the maintainability of the application before the learned trial court. Proceedings under the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 can be maintained by a wife when the relationship is in existence and when the relationship of husband and wife does not exist in terms of provisions of the Act, cannot enforced and in such case, the Magistrate has no jurisdiction to entertain such proceedings. The learned trial court without giving any finding prima facie or otherwise regarding the existence of the relationship between the petitioner and the respondent has passed the order impugned. The learned trial court ought to have first considered the issue regarding the existence of the relationship between the petitioner and the respondent and the fact as to whether she was divorced or not then should have proceeded ahead. The learned trial court by not doing so, has committed the illegality.

Learned counsel for the respondent, while making the submissions, also stated that to this extent that the learned trial court has committed an illegality and it ought to have given finding with regard to the factum whether there was a divorce or not and it is also stated by him that there is no doubt with regard to the fact that if divorce is pleaded and established, proceedings at the instance of wife respondent herein are not maintainable.

Therefore, for the reasons stated above, the order impugned dated 17.11.2016 is set aside and the matter is remanded back to the trial court. The trial court shall decide the plea raised by the respondent-wife with regard to the divorce and after deciding the said issue, proceed further in accordance with law and conclude the same within a reasonable time and while proceed with the matter, none of the parties shall be entitled to any adjournment except on sufficient and reasonable cause. The parties shall cause their appearance before the trial court on 05.01.2022.

Disposed of.