Dismissed

Mushtaq Ahmed and Another v. Bholi Bibi

J&K HC2 Feb 2022CRM(M)/50/2022

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against interim maintenance orders under the Protection of Women from Domestic Violence Act. It held that courts were justified in awarding sustenance to the wife and minor children during the interim stage before evidence was led, regardless of the appellants' other liabilities.

What did the court decide?

The appeal petition was dismissed; the interim maintenance orders of Rs. 10,500/- per month were upheld.

Mushtaq Ahmed and Another Vs Bholi Bibi — Domestic Violence | J&K HC (2022)

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Sr. No.75

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU (Through Virtual Mode)

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CRM(M) No.50/2022 CrlM No. 101/2022

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Mushtaq Ahmed and another

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…..Appellant(s)/Petitioner(s)

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Through: Ms. Anju Sharma, Advocate.

Bholi Bibi

.…. Respondent(s)

Through:

Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

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ORDER

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02.02.2022

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1. The petitioners have challenged two orders, one passed by learned

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Additional Special Mobile Magistrate (Munsiff), Reasi on 27.08.2021 whereby in an application filed by the respondent against the petitioners under Section 23 of the Protection of Women from Domestic Violence Act (hereinafter referred to as ‘the Act’ ), the learned Magistrate has awarded interim maintenance of Rs. 14,500/- per month in favour of the respondent and the second order passed by the learned Sessions Judge, Reasi on 30.12.2021 in a revision petition filed by the petitioners herein against the aforesaid order of learned Magistrate whereby, the order of the learned Magistrate has been modified to the extent that quantum of interim relief granted in favour of respondent has been slashed down to Rs. 10, 500/- per month.

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2 CRM(M) No.50/2022

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2. The facts which emerge from the record are that petitioner No.1 and respondent No.1 had entered into a wedlock in the year 2015 and out of said wedlock one son and one daughter was born. It appears that the marriage between petitioner No.1 and respondent ran into rough weather and respondent approached the Court of learned Additional Special Mobile Magistrate, Reasi with a petition under Section 23 of the Act and in the said petition the respondent leveled allegations of mal-treatment and cruelty against the petitioners herein. The application was resisted by the petitioners by filing a reply thereto in which these allegations were vehemently denied by them.

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3. The learned Magistrate after hearing the parties awarded interim relief to the tune of Rs.14, 500/- per month in favour of the respondent and her two minor children. This order came to be challenged by petitioners by way of a revision petition before Revisional Court i.e., Principal Sessions Judge, Reasi, who vide the impugned order dated 30.12.2021 upheld the right of respondent to claim interim relief from the petitioner No.1 but slashed down the quantum of interim relief from Rs.14, 500/- to Rs.10, 500/per month.

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4. The petitioners have challenged the impugned orders primarily on the grounds that they have not committed any act of domestic violence against the respondent; that there are no specific allegations regarding instances of domestic violence mentioned in the petition under Section 23 of the Act; that the orders impugned have been passed by learned Courts below in a routine manner without evaluating the allegations made in the petition; that petitioner No.1 has all along maintained his wife and minor children and

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3 CRM(M) No.50/2022

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paid maintenance to them and this aspect of the matter has been ignored by the Courts below; that the respondent has left the matrimonial home of her own accord, as such, there is no question of her harassment; and that the orders impugned are not sustainable in law.

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5. I have heard learned counsel for the petitioners and perused the record.

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6. A perusal of the petition filed by respondent against the petitioners herein under Section 12 of the Protection of Women from Domestic Violence Act clearly indicates that there are specific allegations made by respondent against the petitioners as regards the ill treatment meted out to her. Respondent has given vivid details of nature of ill treatment in the petition and has clearly alleged that petitioner No.1 herein has neglected and refused to maintain his wife and minor children. The petitioners herein in their response have denied these allegations. The veracity of the allegations made in the petition under Section 23 of the Act cannot be determined at the interim stage when parties are yet to lead the evidence. Till such time the veracity of these allegations is tested on the basis of evidence led by the parties before the trial Magistrate, the wife and her minor children who are without any sustenance, cannot be left high and dry. Therefore, the learned Magistrate as well as the learned Revisional Court were well within their jurisdiction to award interim sustenance in favour of the respondent and minor children, with whom petitioner No.1 does not deny his relationship.

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7. It has been contended by learned counsel for the petitioners that petitioner No.1 has other liabilities to discharge and it will not be practically

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4 CRM(M) No.50/2022

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possible for him to pay the maintenance which has been awarded in favour of the respondent. It is not in dispute that the respondent happens to be wife of petitioner No.1 and the petitioner also does not dispute his relationship with the minor children. Maintenance of wife and the children is the paramount responsibility of a husband. All other responsibilities have secondary importance. Therefore, the primary duty of the petitioner is to provide sustenance to his minor children and wife. Thus the contention of petitioner No.1 that he has other liabilities to shoulder does not hold any merit.

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8 . For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed . Copies of this order be sent to both the Courts below i.e., the Revisional Court as well as to the trial Court.

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(Sanjay Dhar) Judge

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Jammu 02.02.2022 Surinder

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SURINDER KUMAR 2022.02.04 17:25 I attest to the accuracy and integrity of this document

Mushtaq Ahmed and Another v. Bholi Bibi

Case brief

What is this about?

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Mushtaq Ahmed and Another v. Bholi Bibi

Case brief

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