Jammu & Kashmir High Court
Akshay Jandyal And Another vs Uma Kapahi on 27 March, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
99
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(Crl) No. 12/2025
Cav No. 657/2025
Akshay Jandyal and another .....Appellant(s)/Petitioner(s)
Through: Mr. Vishal Kapoor, Adv.
vs
Uma Kapahi ..... Respondent(s)
Through: Mr. Parveen Kapahi, Adv.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
27.03.2025
1. The petitioners through the medium of instant writ petition under Article
226 of the Constitution have challenged order dated 24.03.2025 passed by
the learned 1st Additional Sessions Judge, Jammu, whereby the learned
Sessions Judge has, while exercising his appellate jurisdiction set aside
order dated 14.01.2025 passed by the learned Chief Judicial
Magistrate(CJM), Jammu in a case tilted, Uma Kapahi Jandyal vs Akshay
Jandyal and others.
2. At the very outset, the learned counsel for the petitioners has prayed that
the instant petition be treated as one under Article 227 of the Constitution.
He has submitted that inadvertently, the petition has been filed under a
wrong provision of law.
3. Learned counsel appearing for the respondent, who is on caveat, has
contended that the petition cannot be treated as one under Article 227 of
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the Constitution. He has further contended that the petition in the present
form is not maintainable as a judicial order cannot be assailed by filing a
petition under Article 226 of the Constitution. It is being contended that on
this ground alone, the present petition deserves to be dismissed. Learned
counsel for the respondent while referring to the judgments passed by the
Supreme Court in Radhey Shyam and another v Chhabi Nath and
others, [2015] 3 SCR 197 and Neeta Singh and others v The State of
Uttar Pradesh and others, Special Leave Appeal No. 13578/2024
decided on 15.10.2024 has contended that even the prayer of the
petitioners for treating the present petition as one under Article 227 of the
Constitution cannot be allowed because the case has not been assigned by
the Hon’ble the Chief Justice to this Court.
4. There cannot be any quarrel with the proposition of law that the judicial
orders of civil/criminal courts are not amenable to the writ jurisdiction
under Article 226 of the Constitution. However, challenge to the judicial
orders could lie by way of an appeal or a revision or under Article 227 of
the Constitution. The question that is required to be determined is as to
whether the prayer of the petitioners for treating their petition as one under
Article 227 of the Constitution can be allowed.
5. The present petition is at threshold and even notice has not been issued as
yet. Learned counsel for the petitioners has, before opening his arguments
on admission made a prayer that the petition may be treated as one under
Article 227 of the Constitution. If the said prayer of the petitioners is
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allowed, to the mind of this Court, no prejudice is going to be caused to
the respondent particularly keeping in view the stage of the present case.
6. Learned counsel for the respondent has vehemently argued that unless the
Hon’ble the Chief Justice assigns the case to this Court, the prayer of the
petitioners cannot be allowed. It is correct that once a petition under
Article 226 of the Constitution is treated as one under Article 227 of the
Constitution, with the change in nomenclature of the petition, a judge
hearing the case has to be sure that he is holding the roster for hearing the
petitions under Article 227 of the Constitution or in other words such
roster has been assigned to him/her and if it is not so assigned, the petition
has to be placed before the learned Judge having the assignment.
7. In the instant case, this Bench is holding the roster of not only hearing writ
petitions under Article 226 of the Constitution but it is also holding roster
for hearing petitions under Article 227 of the Constitution. Therefore,
there is no legal impediment in treating the present writ petition as one
under Article 227 of the Constitution and there is also no legal
impediment in hearing of the present petition even after changing its
nomenclature to one under Article 227 of the Constitution. Accordingly,
the prayer of the petitioners is allowed and the present petition is treated as
one under Article 227 of the Constitution. The Registry shall assign the
appropriate nomenclature to the present writ petition.
8. Issue notice to the respondent. Mr. Praveen Kapahi, Advocate, who is on
caveat, accepts notice on behalf of the respondent.
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9. I have heard learned counsel for the parties and perused the petition as
well as documents placed on record by the learned counsel for the parties
during the course of hearing.
10. The present case stems out of a matrimonial dispute between the petitioner
No. 1 and the respondent. It appears that besides various cases filed by the
parties against each other, a petition under Section 12 of Protection of
Women from Domestic Violence Act (for short the DV Act) was filed by
the respondent against petitioners and other family members including
brother and mother of petitioner No. 1 before the court of Chief Judicial
Magistrate(CJM), Jammu on 08.11.2024. Along with the said petition, an
application under section 23 of the DV Act was also filed by the
respondent seeking ad interim order. On the same date i.e. on 08.11.2024,
the learned CJM passed an ex parte ad interim order, whereby petitioner
No. 1 was directed to pay interim maintenance to the tune of Rs. 10,000/-
per month to the respondent herein and she was also found entitled to
reside in the shared household viz, H. No. 25, Ward No. 1 near Mandhir
Jawahar Nagar, Kathua. It seems that on 09.11.2024 i.e. a day after the
passing of aforesaid order, the petitioners herein filed an application for
review of order dated 08.11.2024 and for staying of its implementation.
On the next day i.e. on 09.11.2024, the petitioners herein filed objections
to the petition and the learned CJM posted the matter for arguments. It
also appears that there were some efforts on the part of the parties to settle
the matter amicably and the case was adjourned to 30.11.2024, whereafter,
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it came to be referred to mediation and the case was adjourned to
23.01.2025 for awaiting the report of the Mediator.
11. It appears that on 14.12.2024 during the intervening period, the respondent
filed an application for implementation of order dated 08.11.2024 and the
learned CJM issued notice of the said application to the adverse parties,
whereafter, the said application was posted to 23.01.2025 along with the
main case.
12. It appears that another execution petition came to be filed by the
respondent before the learned Trial Magistrate on 30.12.2024 for
execution of interim order dated 08.11.2024 in which instead of straight
away directing implementation of the order, notice was issued to the
adverse parties and the learned CJM also directed the parties to advance
arguments on interim application under section 23 of the DV Act and the
matter was posted to 03.01.2025.
13. The aforesaid order of issuing notice to the other side was challenged by
the respondent by way of an appeal before the learned 1 st Additional
Sessions Judge, Jammu who vide order dated 02.01.2025 set aside the
order of learned CJM and directed the said court to give fresh look to the
case and implement order dated 08.11.2024.
14. On 03.01.2025, learned CJM in pursuance to the order dated 02.01.2025
passed by the appellate court passed another order directing the parties to
advance arguments in the interim application and further directed SHO
Police Station, Kathua to implement order dated 08.11.2024.
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15. The aforesaid order came to be challenged by petitioner No. 1 and another
person by way of an appeal before the learned Principal Sessions Judge,
Jammu who vide order dated 10.01.2025 set aside the order of the learned
CJM with a direction that the learned CJM shall consider the matter afresh
and pass appropriate orders after hearing both the parties within three
working days. The matter again landed before the CJM Jammu who vide
order dated 14.01.2025, after hearing both the parties, directed petitioner
No. 1 herein to immediately deposit Rs. 20,000/- on account of arrears of
interim monetary compensation into the account of the respondent but
deferred the execution petition with regard to the order relating to shared
accommodation. The learned CJM thought it fit to call the main file which
was posted to 23.01.2025 so as to hear the arguments on interim
application as by then mediation between the parties had failed to yield
any result. It is this order which was challenged by the respondent by way
of an appeal before the learned 1st Additional Sessions Judge, Jammu.
16. By virtue of the impugned order passed by the 1st Additional Sessions
Judge, Jammu, the appeal filed by the respondent has been allowed and
order dated 14.01.2025 has been set aside.
17. The petitioners have challenged the impugned order passed by the learned
1st Additional Sessions Judge on the grounds that the learned Sessions
Judge has not considered the arguments advanced by the petitioners. After
giving the factual background of the acrimonious relationship between the
respondent on the one hand and the petitioner No. 1 and his family
members on the other, it has been contended that in these circumstances, it
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is not possible for the respondent to reside in the shared accommodation
along with her parents in law particularly with father-in-law against whom
she has levelled serious allegations. It has been further contended that the
order passed by the learned CJM under Section 23 of the DV Act is ex
parte in nature, as such, the same cannot be implemented unless the
objections filed by the petitioners to the main as well as interim
application are considered on merits.
18. It has also been contended that petitioner No. 1 has offered residential
accommodation on rental basis to the respondent which has all the
amenities as such, she cannot insist upon residing in the shared
accommodation at Kathua as the same would cause harassment to the
parents of petitioner No. 1. It has further been contended that in case the
ex parte interim order so far as it relates to shared accommodation is
implemented without hearing the petitioners, it would cause grave
prejudice to them and their application for stay of the said order will be
rendered infructuous.
19. Learned counsel for the respondent has, on the other hand, contended that
the object of DV Act is to offer more effective protection of the rights of
women who are victims of violence at the hands of the husband or his
relatives. It has been contended that the Supreme Court and the various
High Courts of the Country have consistently held that the purpose of
granting an order of residence at interim stage is to avoid a situation where
a victim of domestic violence is made to take shelter on road side and
therefore, if the CJM Jammu in the instant case is allowed to drag her feet
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in implementing the order of residence, it would defeat the purpose of the
DV Act and expose the respondent to a grave situation. He has submitted
that the respondent is presently forced to take shelter in the house of her
relatives/friends because of the situation created by the petitioners and due
to non implementation of the residence order by the CJM.
20. Before coming to the merits of the case, it would be necessary to
determine as to whether the appeal filed by the respondent before the
learned 1st Additional Sessions Judge, Jammu against the order passed by
CJM Jammu on 14.01.2025 was maintainable. As has been already stated
hereinbefore, all the three appeals which have arisen out of the orders
passed by the CJM Jammu in the instant case pertain to issuance of notice
to other side in execution petition and its deferment till the decision of the
interim application under section 23 of the DV Act on its merits.
21. The question arises as to whether an appeal under Section 29 of the DV
Act is maintainable against such orders. To answer this question, it would
be necessary to notice the provisions contained in Section 29 of the DV
Act which vests jurisdiction with the Court of Sessions to adjudicate an
appeal against the order made by the Magistrate.
“29. Appeal.–There shall lie an appeal to the Court of Session
within thirty days from the date on which the order made by
the Magistrate is served on the aggrieved person or the
respondent, as the case may be, whichever is later.”
(Emphasis supplied)
22. From a perusal of the aforesaid provision, it appears that the Court of
Sessions is vested with jurisdiction to hear an appeal against “the order”
made by the Magistrate within a period of thirty days from the date such
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order is served upon the aggrieved person or the respondent. The
legislature has used the expression “the order” instead of “any order” or
“an order” in the provisions contained in section 29 of the DV Act,
meaning thereby, it is only a particular type of orders and not all orders
made by the Magistrate which are appealable under section 29 of the DV
Act. The expression “the order” takes its colour from the preceding
provisions of the DV Act which refer to protection order under section 18
of the DV Act, residence order under section 19 of the Act, monetary
reliefs under section 20 of the Act, custody order under section 21 of the
Act, compensation order under section 22 of the Act, interim order and ex
parte orders under section 23 of the Act. Thus, it is only against these
types of orders, whether it is a case of grant or refusal of such orders that
an appeal would lie before the Court of Sessions under section 29 of the
DV Act.
23. There may be a case involving dismissal of an execution petition for
implementation of any of the aforesaid orders, even such an order would
be appealable as the same would amount to refusal of such orders but
mere issuance of notice in an execution petition or in any other application
by the Magistrate in DV Act proceedings, in the opinion of this Court,
would not be appealable in terms of section 29 of the DV Act. It is only
against certain types of orders as mentioned hereinbefore that an appeal
would lie under section 29 of the DV Act before the Sessions Court but all
orders passed by the Magistrate are not appealable. An order issuing
notice in an execution application or in any other application filed before
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the Magistrate under DV Act is to be considered as an interlocutory order
as the same is procedural in nature and does not decide any substantive
rights of the parties. Such types of orders are not appealable.
24. In the face of the aforesaid discussion, the learned 1st Additional Sessions
Judge, Jammu has, while entertaining appeal against order dated
14.01.2025 passed by the CJM vide which consideration of execution
petition to the extent of order of residence was deferred till the hearing of
the application under section 23 of the DV Act on its merits, exercised the
jurisdiction which was not vested with him. Similarly, the previous appeal
filed before the learned 1st Additional Sessions Judge, Jammu against the
order whereby notice was issued by the learned CJM in the execution
petition could also not have been entertained by the said court. Same is
true of the appeal that was filed by petitioner No. 1 against order dated
03.01.2025 passed by the CJM Jammu.
25. A remedy of appeal is a statutory right and unless the statute specifically
provides for right of appeal against a particular order, a Superior Court
cannot entertain an appeal against such order. By interfering in even the
interlocutory orders passed by the learned CJM Jammu, the learned 1st
Additional Sessions Judge, Jammu as well as Principal Sessions Judge,
Jammu have exceeded their jurisdiction. If even the interlocutory orders
passed by a Magistrate are allowed to be interfered by the Superior Courts,
it would be difficult for the Magistrates to function. Such tendency by the
Superior Courts has to be curbed particularly when no such jurisdiction is
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vested with the Sessions Court. On this ground alone, the impugned order
passed by 1st Additional Sessions Judge, Jammu deserves to be set aside.
26. There is yet another aspect of the matter, which is required to be noticed.
After passing of ex parte interim order under section 23 of the DV Act by
the learned CJM on 08.11.2024, immediately on the next day, the
petitioners filed an application on 09.11.2024 seeking review of the
aforesaid order with a prayer for staying its implementation. It was
incumbent upon the learned CJM to take a decision on the said application
before proceeding to execute order dated 08.11.2024. This is what has
been done by the learned CJM. Deferring the decision on the application
filed by the petitioners on 09.11.2025 would have rendered their
application infructuous because once the ex parte interim order dated
08.11.2024 is implemented, the prayer of the petitioners herein for staying
the said order would have been rendered infructuous.
27. Apart from the above, order dated 08.11.24 passed by the learned CJM is
ex parte in nature and the same is subject to objections of the other side.
Once the petitioners immediately upon coming to know of the said order
filed their objections to the application under section 23 of the DV Act
filed by the respondent, their objections were required to be considered on
merits. The Supreme Court has, in the case of Kamatchi vs Lakshmi
Narayanan, Criminal Appeal No. 627/2022, decided on 13.04.2022,
held that it is open to the Magistrate dealing with petition under section 12
of the DV Act to even recall his/her order. Since order dated 08.11.2024
was passed in ex parte and once the petitioners herein filed objections, the
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CJM, thought it appropriate to deal with the objections of the petitioners
herein in the right earnest. The course adopted by the learned CJM could
not have been interfered with by the Superior Courts as the said approach
of the learned CJM was neither illegal nor improper.
28. In view of the foregoing discussion and without going into the merits of
the allegations and counter allegations made by the parties against each
other, in these proceedings, the impugned order dated 24.03.2025 passed
by the 1st Additional Sessions Judge, Jammu is set aside and the learned
CJM is directed to decide the interim application under section 23 of the
DV Act on its merits most expeditiously preferably within a period of 15
days from the date a copy of this order is made available to the said court.
29. Till such time, the application is decided by the learned CJM, interim
order dated 08.11.2024 passed by the learned CJM to the extent of grant of
residential order in favour of the respondent in the shared accommodation
shall remain in abeyance.
(SANJAY DHAR)
JUDGE
Jammu:
27.03.2025
Rakesh PSWhether the order is speaking: Yes/No
Whether the order is reportable: Yes/NoRakesh Kumar
2025.04.03 18:19
I attest to the accuracy and
integrity of this document