Jammu & Kashmir High Court – Srinagar Bench
Muzaffer Hussain Farooqi And Ors vs Maryama Akhter on 25 February, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
S. No. 104
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM(M) No. 82/2025
CM No. 841/2025
Caveat No. 158/2025
Muzaffer Hussain Farooqi and Ors ...Petitioner/Appellant(s)
Through: Mr. Shafqat Nazir, Advocate.
Vs.
Maryama Akhter ...Respondent(s)
Through: Mr. Sheikh Manzoor, Advocate.
CORAM:
HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
25.02.2025
1. The instant petition has been filed by the petitioners under Article 227
of the Constitution seeking quashing of domestic violence proceedings titled
as “Maryama Akhtar Vs. Muzaffer Hussain Farooqi and Ors” instituted by
private respondent herein on 19.01.2023 and pending before the Court of
Chief Judicial Magistrate, Bandipora, including order 12.12.2024 passed
therein, where under, inter alia, the respondent therein and petitioners herein
have been directed to refrain from committing any act of domestic violence
against the petitioner-respondent herein besides directing the respondent 1,
being petitioner 1 herein, to pay an amount of Rs. 10,000/- as maintenance
and Rs. 15,000/- as rentals for accommodation for the petitioner-respondent
herein or to provide an alternative accommodation thereof.
2. The petitioners have maintained the instant petition, inter alia, on the
premise that the petitioner 1 and respondent herein entered into matrimonial
tie on 09.08.2021 and immediately, thereafter, the petitioner 1 came to know
that the respondent herein was incapable of cohabiting on account of her
medical/physiological conditions and that since the respondent herein
concealed her medical conditions and played fraud upon the petitioner 1
herein, the relationship between the petitioner 1 and respondent herein
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deteriorated whereafter the respondent being ill advised, filed a spree of cases
against the petitioners including one under Section 498-A of IPC, Section
125 Cr.PC, a complaint under Section 406 IPC and the case under the
Protection of Women From Domestic Violence Act, 2003 where under the
instant petition has arisen.
It is stated that the aforesaid criminal cases instituted by the respondent
against the petitioner came to be called in question by petitioners before
this Court wherein the proceedings in the said cases came to be stayed.
It is further stated that the petitioner 1 and respondent herein did not live
together since October, 2021 and that the complaint under the Act of
2003 came to be filed by respondent on 19.06.2023 before the Court
below on false and frivolous grounds and that the response/reply came to
be filed thereto by the petitioners herein to the said complaint on
01.09.2023 whereupon the Court below after disposing of the
application filed by the respondent herein along with the main
application under the Act of 2003, passed the impugned order.
3. The impugned order has been challenged by the petitioner in the
instant petition, inter alia on the grounds that the allegations leveled in the
complaint lacked material evidence on record as it did not specify any
particular act or instance of domestic violence allegedly committed by the
petitioners upon the respondent which would have attracted the application of
the Act of 2003 and that the filing of the impugned complaint, in fact, is an
abuse of process of law committed by the respondent herein in that the
respondent herein have had filed cases after cases against the petitioners
without any basis in order to harass the petitioners and that the Court below
without considering the case set up by the petitioners herein before it and
taking into consideration the evidence on record as also the relevant factual
position, passed the impugned order on surmise and that the complaint was
not supported by the requisite affidavit in the prescribed format which would
have entitled the complainant-respondent herein to the reliefs in the case
granted by the Court below and that even the interim maintenance and rentals
ordered by the Court below granted in favour of the respondent herein to be
payable by the petitioner 1 herein has been allowed without looking to the
fact that the petitioner 1 is a contractual employee and that the marriage inter
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se the petitioner 1 herein and respondent herein stands dissolved without
there being anything outstanding or payable by the petitioner 1 to respondent
herein under Muslim Personal Law including the maintenance which has
been granted by the Court below in favour of the respondent herein and that
the complaint has been filed by the respondent herein against the petitioners
in order to pressurize and harass the petitioner 1 and in fact the petitioner 1
has been and is at the receiving end of the domestic violence, as false
allegations of impotency leveled by the respondent against the petitioner 1
amounts to cruelty.
Heard learned counsel for the parties and perused the record.
4. Learned counsel for the petitioners while making his submissions
reiterated the pleas raised in the petition whereas on the contrary, counsel for
the respondents would insist that the instant petition is not maintainable in
presence of remedy of appeal provided under Section 29 of the Act of 2003.
5. It is an admitted fact emerging from the record that the impugned
complaint has been filed by the respondent herein under the Act of 2003 on
19.06.2023.
6. Record also reveals that the respondents in the complaint being
petitioners herein appeared before the Court below and filed objections to the
impugned complaint on 01.09.2023 and contested the complaint on merits.
7. In the present case, as has been noticed in the preceding Para’s, the
petitioners herein have questioned the maintainability of the complaint inter
alia on the grounds that the complaint did not qualify the mandate of
provisions appended to Section 12 (1), in absence whereof, the Court below
could not have either entertained the complaint, or proceeded therewith as the
the sine qua non for entertaining a complaint under Section 12 of the Act of
2003 envisaged the consideration of domestic incident report by the
Magistrate before proceeding with the complaint, thus in absence of such a
report the Magistrate committed gross error and illegality and in the process
passed the impugned order.
8. Insofar as the requirement of filing of domestic incident report in a
case filed under Section 12 is concerned, the issue stands settled by the Apex
Court in case titled as “PrabhaTyagi Vs. Kamlesh Devi” reported in 2023 (1)
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JKJ 14 (SC) wherein it has been specifically held that when an aggrieved
person files an application by herself or with the assistance of an Advocate
and not with the assistance of Protection Officer or a Service Provider, in
such a case the role of Protection Officer or Service Provider is not envisaged
and domestic incident report is not a sine qua non for entertaining and
deciding an application under Section 12 being not mandatory for the
Magistrate before passing order and even absence of domestic incident
report, the Magistrate is empowered to pass both ex parte or interim as well
as final order under the provisions of the Act of 2003.
In view of the aforesaid settled position of law, the plea of the
aforesaid petitioners cannot be accepted and challenge thrown to the
impugned complaint on this ground is, accordingly, turned down.
9. Insofar as the challenge through to the impugned complaint,
proceedings initiated thereon including the impugned order on the grounds
other than the aforesaid ground of non-compliance of provisions appended
to Section 12(1), are concerned, the grounds urged and pleas raised now in
the instant petition by the petitioners were admittedly available to the
petitioners immediately upon entering appearance before the Court below
and the petitioners indisputably having not thrown challenge to the
maintainability of the complaint on any such grounds at that relevant point
of time cannot now after participating in the proceedings before the Court
below and after passing of the impugned order through challenge to the
same as it cannot but be said to be after thought aimed at to protract the
proceedings pending before the Court below and to defeat implementation of
the impugned order passed therein.
10. Insofar as the specific plea raised by the petitioners qua the passing of
the impugned order by the Court below without there being an affidavit filed
by the complainant, respondent herein, qua the disclosure of assets and
liabilities is concerned, the said pleas as well cannot be entertained by this
Court in the instant petition, in presence of the remedy of appeal provided
under Section 29 of the Act of 2003, in that, seeking quashing of the
complaint, proceedings initiated thereon including the impugned order
without availing the alternative remedy of appeal has been held to be an
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abuse of process of law by this Court in case titled as “Nissar Ahmad Malik
Vs. Mubeena Farhat and Ors” reported in 2022 (2) JKJ 69 (HC).
11. Viewed thus, for what has been observed, considered, analyzed herein
above, this Court is not inclined to exercise inherent power in the matter
which otherwise is to be exercised rarely, sparingly and with circumspection.
12. Resultantly, the petition fails, and is, accordingly, dismissed.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR
25.02.2025
Hilal Ahmad
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