Jammu & Kashmir High Court – Srinagar Bench
Mubashir Ahmad Wani vs Meelaz Mubashir & Another on 25 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
2025:JKLHC-SGR:198
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 21.07.2025
Pronounced on:25.07.2025
CM(M) No.287/2022
MUBASHIR AHMAD WANI ...PETITIONER(S)
Through: - Mr. Aswad Attar, Advocate.
Vs.
MEELAZ MUBASHIR & ANOTHER ...RESPONDENT(S)
Through: - Mr. Rizwan-ul-Zaman Bhat, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner, through the medium of present petition,
has challenged order dated 10.10.2022, passed by the
learned Principal Sessions Judge, Anantnag, whereby, while
exercising his appellate jurisdiction under Section 29 of the
Protection of Women from Domestic Violence Act, 2005 [ for
short “the DV Act“], the learned Sessions Judge, has set
aside order dated 02.02.2021 passed by the learned Special
Mobile Magistrate, Anantnag (hereinafter referred to as “the
trial Magistrate”) dismissing the petition filed by the
respondents under Section 26 of the DV Act.
2) It appears that respondent No.1, who happens to be the
minor daughter and respondent No.2, who happens to be the
wife of the petitioner, had filed a petition under Section 488
of the J&K Cr. P. C against the petitioner before the learned
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trial Magistrate. The said petition came to be decided by the
learned trial Magistrate in terms of order dated 02.06.2018,
whereby the petitioner was directed to pay monthly
maintenance to the tune of Rs.3000/ to respondent No.1 and
Rs.5000/ to respondent No.2.
3) It appears that the respondents filed a petition for
enforcement of the aforesaid order of maintenance before the
learned trial Magistrate in accordance with the provisions
contained in sub-section (3) of Section 488 of J&K Cr. P. C.
During pendency of the said petition, the respondents filed
an application invoking the provisions of Section 26 of the
DV Act and sought order of residence in terms of Section 19
of the said Act. The said application came to be dismissed by
the learned trial Magistrate in terms of order dated
02.02.2021 by holding that the provisions contained in
Section 26 of the DV Act pre-suppose pendency of other
proceedings and that an application under Section 19 of the
DV Act would lie only if a petition under Section 12 of the
said Act is pending before the Court.
4) The aforesaid order came to be challenged by the
respondents by invoking the appellate jurisdiction of the
learned Principal Sessions Judge, Anantnag, in terms of
Section 29 of the DV Act. The learned Sessions Judge, while
allowing the appeal of the respondents, passed impugned
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order dated 10.10.2022 and set aside the order passed by
the learned trial Magistrate by observing that the provisions
contained in Section 26 of the DV Act give an option to an
aggrieved person to seek relief in any other proceedings
pending before a civil court, a family court or a criminal
court effecting the parties.
5) The petitioner has challenged the impugned order
passed by the learned Sessions Judge by urging two
contentions. First, that Section 26 of the DV Act is only an
enabling provision for grant of relief contemplated under
Sections 18 to 22 of the DV Act and that the said provision
does not vest power with the Court to grant the actual reliefs
under the DV Act in a proceeding other than a proceeding
under Section 12 of the DV Act. Second, that because order
dated 02.02.2021 was passed by the learned trial Magistrate
in proceedings under Section 488 of the J&K Cr. P. C, as
such, the same is not appealable in nature in terms of
Section 29 of the DV Act. Thus, the learned Sessions Judge
was not within his jurisdiction to exercise his appellate
power. It has further been contended that the execution
proceedings cannot be interpreted to mean ‘legal
proceedings’ within the meaning of Section 26 of the DV Act,
as such, the petition of the respondents under Section 19 of
the DV Act in execution proceedings is not maintainable.
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6) I have heard learned counsel for the parties and
perused record of the case.
7) The first question that is required to be answered is as
to whether an application under Section 19 of the DV Act by
taking aid of the provisions contained in Section 26 of the
said Act is maintainable on behalf of an aggrieved person in
a pending proceeding between the parties under Section 488
of the J&K Cr. P. C, which is in pari-materia with Section 125
of the Central Cr. P. C. In this regard, the provisions
contained in Section 26 of the DV Act are required to be
noticed which read as under:
26.Relief in other suits and legal
proceedings. (1) Any relief available under
sections 18, 19, 20, 21 and 22 may also be
sought in any legal proceeding, before a civil
court, family court or a criminal court,
affecting the aggrieved person and the
respondent whether such proceeding was
initiated before or after the commencement of
this Act.
(2) Any relief referred to in sub-section (1) may
be sought for in addition to and along with any
other relief that the aggrieved person may seek
in such suit or legal proceeding before a civil or
criminal court.
(3) In case any relief has been obtained by the
aggrieved person in any proceedings other
than a proceeding under this Act, she shall be
bound to inform the Magistrate of the grant of
such relief.
8) From a perusal of the aforesaid provision, it appears
that an aggrieved person has the option of obtaining a relief
available under Sections 18, 19, 20, 21 and 22 against the
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respondents in any legal proceeding before a civil court,
family court or a criminal court. It is also clear that such
relief can be sought by the aggrieved person in addition to
and along and other relief that the aggrieved person may
seek in any such suit or legal proceeding before a civil or
criminal court. Thus, if a legal proceeding before a civil court,
family court or a criminal court affecting the aggrieved
person and the respondent is pending, the aggrieved person,
by taking aid of the provisions contained in Section 26(1) of
the DV Act, has a right to seek relief as contemplated under
Sections 18 to 22 of the DV Act and this relief shall be in
addition to and along with other relief that such aggrieved
person may be seeking in such legal proceedings.
9) The Supreme Court has, in the case of Hiral P. Harsora
v. Kusum Narottamdas Harsora, (2016) 10 SCC 165,
considered the ambit and scope of Section 26 of the DV Act.
Para (25) of the said judgment is relevant to the context and
the same is reproduced as under:
“25. When we come to Section 26 of the Act, the
sweep of the Act is such that all the innovative
reliefs available under Sections 18 to 22 may also
be sought in any legal proceeding before a civil
court, family court or criminal court affecting the
aggrieved person and the respondent. The
proceeding in the civil court, family court or
criminal court may well include female members
of a family, and reliefs sought in those legal
proceedings would not be restricted by the
definition of “respondent” in the 2005 Act. Thus, an
invidious discrimination will result, dependingCM(M) No.287/2022 Page No. 5 of 10
2025:JKLHC-SGR:198upon whether the aggrieved person chooses to
institute proceedings under the 2005 Act or
chooses to add to the reliefs available in either a
pending proceeding or a later proceeding in a civil
court, family court or criminal court. It is clear that
there is no intelligible differentia between a
proceeding initiated under the 2005 Act and
proceeding initiated in other fora under other Acts,
in which the self-same reliefs grantable under this
Act, which are restricted to an adult male person,
are grantable by the other fora also against female
members of a family…”
10) In Vaishali Abhimanyu Joshi vs. Nanasaheb Gopal
Joshi, (2017) 14 SCC 373, the Supreme Court has, while
interpreting the provisions contained in Section 26 of the DV
Act, held that the said provision has to be interpreted in a
manner so as to effectuate the very purpose and object of the
Act. The Court went on to hold that unless determination of
claim by an aggrieved person seeking any order as
contemplated by the DV Act is expressly barred from
consideration by a civil court, the Court shall be loath to read
in bar in consideration of any such claim in any legal
proceeding before the civil court.
11) Again, in Satish Chander Ahuja v. Sneha Ahuja,
(2021) 1 SCC 414, the Supreme Court, after noticing the
provisions contained in Section 26 of the DV Act, observed
as under:
“100. As per Section 26, any relief available under
Sections 18, 19, 20, 21 and 22 of the 2005 Act may
also be sought in any legal proceeding, before a civil
court, family court or a criminal court being the
aggrieved person. Thus, the defendant is entitled to
claim relief under Section 19 in suit, which has beenCM(M) No.287/2022 Page No. 6 of 10
2025:JKLHC-SGR:198filed by the plaintiff. Section 26 empowers the
aggrieved person to claim above relief in civil courts
also. In the present suit, it was the defence of the
defendant that the house being the shared
household, she is entitled to reside in the house as
per Section 17(1) of the 2005 Act.”
12) In Shaurabh Kumar Tripathi vs. Vidhi Rawal, 2025
SCC OnLine SC 1158, the Supreme Court, while interpreting
the provisions contained in Section 26 of the DV Act, held as
under:
“24.1 Therefore, in a given case, in any legal
proceedings pending before a Civil Court or
Family Court affecting the aggrieved person,
the reliefs under Sections 18 to 22 can be
sought. Similarly, in a Criminal Court other
than the Courts of Judicial Magistrate of the
First Class and Metropolitan Magistrate,
reliefs under Sections 18 to 22 can be sought.
For example, in proceedings before a Court of
Session, such reliefs can be sought provided
the proceeding affects the aggrieved person.
We must note here that Section 26 does not
confer jurisdiction on Courts other than the
Courts mentioned in Section 27 to entertain
an application under Section 12 of the DV Act,
2005. It only enables the Courts mentioned
therein to grant the reliefs under Sections
18 to 22 in the pending legal proceedings.”
13) In view of the foregoing analysis of law on the subject,
it is clear that Section 26 of the DV Act is a special provision
which vests power with a civil court, family court or a
criminal court to grant relief under Sections 18 to 22 of the
DV Act. While Section 18 empowers the court to pass
protection orders of the categories enumerated therein,
Section 19 empowers the court to pass residence orders in
favour of an aggrieved person who is subjected to domestic
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violence. Similarly, Section 20 empowers the court to grant
monetary reliefs whereas Section 21 vests power with the
Magistrate to pass custody orders and Section 22 gives
power to the Magistrate to pass compensation orders. The
reliefs, which fall under the aforesaid categories, can be
granted in favour of an aggrieved person in any legal
proceeding before a civil court, family court of a criminal
court affecting the aggrieved person and the respondent by
taking aid of the provisions contained in Section 26 of the
DV Act.
14) The expression ‘legal proceedings’ has to be given a
liberal interpretation so as to achieve the objective of the DV
Act which is to protect the rights of the women who are
victims of violence of any kind occurring within the family.
Thus, even a proceeding in the nature of Section 488(3) of
the J&K Cr. P. C would qualify to be a ‘legal proceeding’ as
contemplated under Section 26 of the DV Act. Therefore, the
petition under Section 19 of the DV Act filed by the
respondents in the proceedings under Section 488(3) of the
J&K Cr. P. C, that were pending before the learned trial
Magistrate, would definitely fall within the scope of Section
26 of the DV Act and, as such, the same could not have been
dismissed by the learned trial Magistrate. The learned
Magistrate by dismissing the application of the respondents
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has failed to exercise his jurisdiction and the order passed
by him is grossly erroneous resulting in failure of justice.
15) The second question that comes up for determination
is as to whether the order passed by the learned trial
Magistrate declining to entertain the petition under Section
19 of the DV Act filed by the respondents could not have
been assailed by the respondents under Section 29 of the DV
Act. In this regard, the contention of learned counsel for the
petitioner that such an order could not have been assailed
in accordance with the procedure prescribed under the DV
Act, appears to be well-founded. This is so, because the
reliefs under Section 18 to 22 of the DV Act that are sought
by an aggrieved person in pending ‘legal proceedings’ with
the aid of Section 26 of the DV Act, align with the category
‘pending proceedings’. Thus, if an aggrieved person files an
application to seek relief of the nature as contemplated
under Sections 18 to 22 of the DV Act in a pending
proceeding under Section 488 of J&K Cr. P. C/125 of Central
Cr. P. C, an order passed on such application by the
Magistrate/Family court would be an adjunct to the relief
under Section 488 of J&K Cr. P. C/125 Central Cr. P. C and,
therefore, such an order can be assailed in the manner as
provided under the Code of Criminal Procedure or the Family
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Courts Act, as the case may be, and not in the manner as
provided under the DV Act.
16) In view of the aforesaid legal analysis, it is clear that
order dated 02.02.2021 passed by the learned trial
Magistrate could have been assailed by the respondents by
filing a revision petition in terms of Section 435 of the J&K
Cr. P. C, which is in peri-materia with Section 397 of Central
Cr. P. C, before the learned Sessions Judge and not by way
of an appeal under Section 29 of the DV Act.
17) However, in the present case, the appellate forum
under the DV Act and the revisional forum under the
Criminal Procedure Code is one and the same viz. the
Sessions Court. Setting aside the impugned order passed by
the learned Sessions Judge, Anantnag, and remanding the
case to him for a fresh decision for exercising his revisional
jurisdiction, would be a superfluous formality because this
Court has already reached a conclusion that the order
passed by the learned trial Magistrate, dismissing the
application of the respondents under Section 19 of the DV
Act, is grossly erroneous which has resulted in failure of
justice, as the learned trial Magistrate has failed to exercise
the jurisdiction vested with him.
18) In the face of aforesaid peculiar facts and
circumstances of the case, the ultimate conclusion arrived
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at by the learned Principal Sessions Judge, Anantnag, in
setting aside the order of the learned trial Magistrate, is
required to be upheld with the observation that it is was not
open to the learned Sessions Judge to entertain an appeal
under Section 29 of the DV Act against the order of the
learned trial Magistrate.
19) Accordingly, while holding that the Principal Sessions
Judge, Anantnag, did not have jurisdiction to exercise its
appellate power under Section 29 of the DV Act, order dated
02.02.2021 passed by the learned trial Magistrate is set
aside and the learned Magistrate is directed to decide the
application of the respondents under Section 19 of the DV
Act in accordance with law.
20) Copies of this order be sent to both the courts below for
information and compliance.
(Sanjay Dhar)
Judge
Srinagar,
25.07.2025
“Bhat Altaf”
Whether the JUDGMENT is reportable: YES
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