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Geeta Devi And Ors. vs Dr. Kavita Sharma on 7 September, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No. 484/2016, IA No. 01/2016

Date of order:07.09.2018
Geeta Devi and ors. Vs. Dr. Kavita Sharma
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearance:
For the petitioner (s) : Mrs. Monika Kohli, Advocate.
For the respondent(s) : Mr. Vikram Sharma, Advocate.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No

1. In the instant petition, the petitioners seek quashment of the Complaint
dated 28.07.2018 titled, “Dr. Kavita Sharma Vs. Dr. Susheel Sharma
and ors.”, filed by the respondent under Section 12 read with Sections 17,
18, 19, 20 and 22 of Domestic Violence At, 2010, pending before the
learned Judicial Magistrate 1st Class, Udhampur (Munsiff), by virtue of
which, the Hon’ble Court has taken cognizance of application under Section
12 read with17, 18, 19, 20 and 22 of Domestic Violence Act, 2010
(hereinafter referred to as the Act) and passed interim direction dated
28.07.2016.

2. The factual matrix of the case is that the marriage between the petitioner
No. 4 and respondent was solemnized on 28 th January, 2011 in accordance
with Hindu rites and customs. It was a dowry less marriage. The conduct
and behaviour of the respondent was not very good from the very first day
after the marriage. After two months of marriage, the respondent started
telling petitioner No. 4 that she never wanted to marry and it is a
compulsive marriage, as she is a doctor and wanted to live an independent

CRMC No.484/2016 Page 1 of 10
life and many a times, complained about some mood disorders. Petitioner
No. 4 himself being a doctor told her that they can always get a good
consultation, if she is having mood swings. The relationship between the
petitioner No. 4 and respondent remained cordial for a period of two
months, but after that respondent started showing her true colours and
started to harass the petitioner Nos. 1, 3 and 4 in front of their relatives and
started picking up quarrels. Petitioner No. 2 has already got married since
2006, i.e., for the last twelve years and is staying at her matrimonial house
and has been unnecessarily dragged in the litigation to harass her as well as
the petitioner Nos. 1, 3 4. That brother of the respondent is in the Police
Department and is serving as Sub-Inspector and further, the father of the
respondent is a retired Dy.SP from Police Department and petitioner No. 1
belongs to a very simple family having three daughters and only son, were
pressurized and harassed by the respondent’s family and the respondent
took advantage of the gentleness of the petitioners and started pressurizing
the petitioner No. 4 to live separately from his family members and when
the petitioner No. 4 objected to it, the respondent threatened him of
implicating the petitioners in false and frivolous cases. In the year 2012,
the petitioner No. 4 was transferred to District Hospital, Reasi and at that
time, respondent was going her PG, so she remained in the matrimonial
house, but instead of taking care of the old parents of the petitioner No. 4,
she started using filthy language and harassing the family members of the
petitioner No. 4. The petitioner No. 4 took her to his place of posting, i.e.,
District Hospital, Reasi, but there also when she was staying away from
other family members of the petitioner, even then did not mend her ways
and created scenes before the office staff of the petitioner No. 4. Due to
this consistent tension and pressure created by the respondent, the father of
the petitioner No. 4 fell sick in July, 2012 and ultimately, expired on
19th July, 2012. After the death of the father of petitioner No. 4, the

CRMC No.484/2016 Page 2 of 10
atrocities of the family members of the respondent increased and they
threatened the petitioners that if the petitioner No. 4 decides to stay in the
house with his mother and unmarried sister, then they will implicate him in
false and frivolous cases. The petitioner No. 4 being the only son of his
parents did not accede to such illegal and illogical demand of the
respondent. The respondent threatened the petitioners that she will inject
herself with some injection and will commit suicide. Petitioner No. 4 being
a doctor could see that there was some behaviourial disorder with the
respondent, as she frequently threatened him and his family members of
committing suicide and further used to complain that she has some mood
swings. The respondent being a doctor herself could also understand about
her behaviourial disorder, so she along with petitioner No. 4 went for her
Psychiatric check up in Government Medical College, Jammu on 20 th
December, 2012, where she was suggested by the doctor to go for therapy
and counseling sessions, but respondent became adamant and did not follow
the treatment.

3. It is also stated in the instant petition that after the death of the father of the
petitioner No.4, the respondent became very adamant that the petitioner No.
4 should leave his ailing mother, who was suffering from liver, spleen, heart
enlargement and uncontrolled sugar, for which she needed consistent
supervision and attendant and his unmarried sister, i.e., petitioner No. 3, but
when the petitioner No. 4 categorically refused to do the same. The
respondent threatened the petitioner No. 4 that she would leave the house
and lodge a false and frivolous complaint again him and his family
members, if he did not agree, as her brother is in police department and
father is a retired Dy.SP and she left the house and did not return for two
months. The petitioners approached the respondent many a times to return
her back, as she had conceived and they were worried about her health.
After great efforts, the respondent was brought back to the matrimonial

CRMC No.484/2016 Page 3 of 10
house. Despite all this, the behaviour of the respondent did not change at
all, as she used to scream unnecessarily on the maids and also used to create
scenes in front of the relatives of the petitioner No. 4. In the year 2014, the
petitioner No. 4 was posted at Reasi and the respondent was posted in
GMC. During that time, the respondent also used to leave her matrimonial
house without the consent of the petitioners. When petitioner No. 4 used to
enquire about the same, the respondent used to become hyper and
threatened the petitioners that she will implicate them in false and frivolous
cases.

4. It is further stated in the instant petition that the petitioner told the
respondent that after the death of the father of the petitioner No. 4, he is the
only male member in his family and the respondent being daughter-in-law
should also take care of petitioner No. 1, who is suffering from various
ailments, but the respondent became hyper and shouted at the petitioner that
she cannot take care of petitioner No. 1 and further told that she cannot stay
in her matrimonial house and pressed hard that the petitioner No. 4 should
arrange a separate accommodation, the respondent then threatened the
petitioner No. 4 of dire consequences, if he did not accede to this request
and she even made an attempt to commit suicide. The petitioner No. 4
being a doctor immediately shifted her to GMC, where she became
aggressive and refused for any medical attention and the petitioner
immediately shifted the respondent to DMC, Ludhiana, where she was
admitted. It is further submitted that even the brother of the respondent,
who is in police department is also suffering from some Psychiatric
disorder, for which he has undergone medical treatment in the year 2011.
The father of the respondent also told the petitioner No. 4 that his daughter,
i.e., respondent is suffering from some medical disorder. All the medical
expenses of the respondent were borne by the petitioner No. 4 despite being
a doctor by profession and earning good amount she never used to spend a

CRMC No.484/2016 Page 4 of 10
single penny from her earnings on her own medical expenses. The
behaviour of the respondent even after coming back from her treatment in
DMC, Ludhiana did not change towards the petitioner the on 26 th June,
2016, she left her matrimonial house along with her minor daughters.
Petitioner No. 4 was also scared and threatened by his behaviour of the
respondent that she can harm herself anytime and continuous cruelty by her,
filed a Divorce Petition before learned Additional District Judge
(Matrimonial Cases), Jammu on 01st July, 2016 and summons were issued
in the same and the same were served upon and further, they appeared
before the Court on 06th July, 2016 and received copies also. But thereafter,
just to wreak vengeance, filed the Complaint under the aforesaid Act. Under
Section 12 of the aforesaid Act, the aggrieved person or a protection officer
or any other person on behalf of the aggrieved person may present an
application to the Magistrate, seeking one or more reliefs under this Act and
the Magistrate has to consider the report of the protection officer, appointed
by the Government in this regard.

5. It is further stated that the Trial Magistrate has treated the application, filed
by the respondent like any other Complaint and has acted in a very routine
and casual manner while dealing with the application of the respondent.
As per the specific provisions of the Act, a separate application under
Section 23 has to be moved for ex-parte orders, but from the perusal of the
Complaint and interim application, it is clear that no application under
Section 23 has been filed. It is only an application under Section 12 read
with Sections 17, 18, 19, 20 and 22 of Protection of Women from Domestic
Violence Act, 2010 and an order passed in the interim application is bad in
law as it has been passed in Application under Section 12 read with
Sections 17, 18, 19, 20 and 22 of Protection of Women from Domestic
Violence Act, 2010. As per the provisions of the Section 23 of the Act, ex-
parte interim maintenance can be granted to an applicant, if the

CRMC No.484/2016 Page 5 of 10
application is supported by an affidavit in such form, as prescribed under
law.

6. As per Rule 7 of the JK Protection of Women from Domestic Violence
Rules, 2011, which would provide that every affidavit for obtaining ex-
parte order under Sub-Section 2 of Section 23 of the Act, shall be in Form-
III, but in the instant case, affidavit has not been drafted and sworn as per
Form-III. The application filed by the respondent under Section 12 read
with Sections 17, 18, 19, 20 22 of the aforesaid Act is misconceived and
purely arise out of false and fabricated story made by the respondent. The
proceeding initiated by the learned Judicial Magistrate 1st Class, Udhampur
under Section 12 read with Sections 17, 18, 19, 20 22 of the aforesaid
Act against the petitioner without even taking into consideration the
provisions of the aforesaid Act are mere abuse of process of law and such
proceedings are liable to be quashed.

7. Heard the rival contentions.

8. The operative part of the interim order dated 28.07.2016 passed by the trial
Court reads as follows:-

“Heard learned counsel for the petitioner (Dr. Kavita Sharma)
and I have gone through material on the file. At this stage, the
case is made out for granting interim ex-parte order in favour of
the petitioner, as she is lawfully wedded wife of the respondent
No. 1 and she was living with other respondents in a shared
household in domestic relationship.

Interim ex-parte order is passed in favour of the petitioner,
prohibiting respondents from committing any acts of Domestic
Violence or entering the place of employment of the petitioner or
any other place frequented by petitioner and the respondents are
also restrained from alienating or disposing off the shared
household or encumbering the same and also restraining the
respondents from renouncing their rights in the shared
household except with the leave of the Magistrate. Respondent
No. 1 is directed to pay monthly maintenance of the daughters of
the petitioner @ Rs. 5000/- to each daughter, i.e., total amount of
Rs. 10,000/- per month, subject to the objections from the other
sides.”

CRMC No.484/2016 Page 6 of 10

9. Counsel for petitioners has reiterated the grounds and has argued that court
below has not bothered to issue notices to them prior to passing of
impugned order and even after passing of impugned order, such order on
the face of it is illegal. Whereas counsel of complainant has supported the
order and has also argued that Magistrate has power to pass ex-parte
interim order in terms of section 23(2) of Act in case of emergency.

10. I have given my thoughtful consideration to whole aspect of matter and law
on the point.

11. The Jammu and Kashmir Protection of Women from Domestic Violence
Act, 2010 has been legislated for more effective protection of the rights of
women guaranteed under Constitution, who are victim of violence.

12. Section 12 of Act empowers victim to file a petition before Magistrate
regarding domestic violence; section 18 deals with passing of protection
order; section 19 deals with passing of residence order; section 20 deals
with passing of monetary order; section 21 deals with passing of custody
order and section 22 deals with compensation order. These types of order
can be passed/ granted by Magistrate after hearing and finally deciding the
application under sections 12 of Act.

13. Section 23 of Protection of Women from Domestic Violence Act, reads as
under;-

“23. Power to grant interim and ex parte orders.–(1) In any proceeding
before him under this Act, the Magistrate may pass such interim order as he
deems just and proper.(2) If the Magistrate is satisfied that an application
prima facie discloses that the respondent is committing, or has committed an
act of domestic violence or that there is a likelihood that the respondent may
commit an act of domestic violence, he may grant an ex parte order on the
basis of the affidavit in such form, as may be prescribed, of the aggrieved
person under section 18, section 19, section 20, section 21 or, as the case may
be, section 22 against the respondent.”

CRMC No.484/2016 Page 7 of 10

14. Bare perusal of this section, it is evident that Section 23 of Act empowers
the Magistrate to grant ex-parte interim relief/s as Magistrate deems just
and proper during pendency of application under section 12 of Act. Section
23 of Act consists of two parts; section 23(1) empowers Magistrate to pass
ex-parte interim order during pendency of main petition under section 12 of
Act; section 23(2) empowers Magistrate to pass ad-interim order during
pendency of interim petition under section 23(1) of Act.

15. The purpose of this section is to save the victim from vagrancy, continuous
harassment, dispossession of victim from place of residence or share hold,
alienation of such place of residence or shared household etc. If the
Magistrate is satisfied that an application prima facie discloses that the
respondent is committing, or has committed an act of domestic violence or
that there is a likelihood that the respondent may commit an act of domestic
violence, he may grant an ex parte order on the basis of an affidavit in such
form, as may be prescribed, of the aggrieved person under section 18,
section 19, section 20, section 21 or, as the case may be.

16. Hence, it is clear from the provision of section 23 of Domestic Violence
Act that the Trial Court may pass an ex-parte order; and also order of ad-
interim on the basis of the affidavit of the aggrieved person upon prima
facie disclosure of the fact that the respondent is committing or has
committed the act of Domestic Violence or that there is likelihood that the
respondent may commit an act of Domestic Violence. Section 28 of Act
states that all proceedings under section 12, 18,19,20,21,22 23 and
section 31 of Act shall be governed by provisions of Cr.P.C; sub section
(2) of section 28 of Domestic Violence Act gives the power to the trial
court to lay down its own procedure for disposal of an application under
sections 12 and 23 of Domestic Violence Act. Under section 37 of Act
Government can make rules for carrying out the provisions of Act. Thus

CRMC No.484/2016 Page 8 of 10
Govt. has also framed rules called Protection of Women from Domestic
Violence rules 2011. For getting ex-parte order under section 23 (2) of Act,
an affidavit in Form III as provided under Rule 7 is required to be annexed
by applicant. Counsel for petitioner has relied upon 2014 (4) JKJ 347 in
case titled Vinay Sharma and ors. Vs. Shweta Sharma and ors. wherein
it is held that before passing order in ex-parte, court has to consider
domestic/incident report and affidavit should be as per Rule 7 in Form III.

17. In present case, bare perusal of impugned order it is evident that court
below has granted ad-interim relief in a petition under section 23 of Act in
favour of children; Petitioners have not denied the fact of paternity of
children. Further from the perusal of trial court file it is evident that,
petitioners have already filed objections to both petitions filed under section
12 and 23 of D. V. Act separately before court below. Those objections are
yet to be considered by court below; in said objections same grounds have
been taken that have been taken before this Court. The purpose of granting
ad-interim monetary relief to child of the aggrieved person of domestic
violence is that claimant may not feel distress or destitute till final disposal
of main petition.

18. This court while exercising the power under section 561-A Cr.P.C, does not
function as court of trial, appeal or revision. Inherent jurisdiction has to be
exercised disparity, carefully and with great caution. These powers cannot
be used to stifle the legitimate prosecution. This is discretionary power
vested in High Court to do substantial justice. High Court cannot appreciate
disputed question of facts. This is a prerogative of trial court where
proceeding is pending and petitioners herein have opportunity to advance
submission before trial court that material on record do not constitute the
case of taking of cognizance under D. V. Act.

CRMC No.484/2016 Page 9 of 10

19. It is not the case of petitioners that there is some legal bar engrafted in any
law for trying the case under D. V. Act; further it is not the case of
petitioners that trial court lacks jurisdiction to deal with the matter.

20. Further as per section 25(2) of Act, any order passed under this Act, can be
varied or altered or revoked by Magistrate on account of change in
circumstances and on the application moved by aggrieved person or
respondent. This petition is, thus, disposed of with liberty to petitioners to
argue the matter before Court below on the grounds alleged in objections or
on any other grounds before court below. Court below shall decide the
application/s as per law. Trial Court file be sent back.

(Sanjay Kumar Gupta)
Judge
Jammu
07.09.2018
Ram Krishan

CRMC No.484/2016 Page 10 of 10

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