MOHD. IQBAL Vs. NASEEMA BEGUM

JUDGEMENT

(1.) The petitioner has challenged order dtd. 17/11/2016 passed by the Judicial Magistrate 1st Class, Ramban (hereinafter to be referred as the trial court) in petition filed under the provisions of Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010. The main ground on which the order impugned is sought to be set aside is that the respondent-Naseema Begum was divorced and factum of divorce was pleaded before the Magistrate and the learned Magistrate though taking note of the said ground and also observing in its order that she is separately residing form petitioner herein for the last 11 years has without deciding the fact as to whether or not she was divorced, held the petition maintainable and passed the order impugned.

(2.) The case of the petitioner precisely is that before assuming the jurisdiction and holding the petition maintainable, the petitioner therein has to establish before the court that the relationship of husband and wife is in existence and as the respondent was divorced way back on 30/1/2014 as such there was no such relationship in existence. It is the case of the petitioner that it was incumbent upon the trial court to have taken account of this fact of the case and before proceedings further or passing the order impugned ought to have considered this issue and given finding on it because existence of the relationship was necessary to the application of the provisions of the Act and exercise of the jurisdiction of the trial court. The order of the trial court was challenged in revision before the court of learned Principal Sessions Judge, Raman(hereinafter to be referred as the revision court) which rejected the same vide order dtd. 27/11/2017 on the ground that the order impugned is appealable, therefore, revision was not maintainable and it is submitted by learned counsel for the petitioner that though he made request for treating the revision as appeal, which was not accepted and by the time, the appeal was barred by limitation. Thus, this petition.

(3.) This petition has been filed in 2018 and vide order dtd. 26/4/2018 the proceeding before the trial court were stayed, which means that no effective proceedings had taken place in this case since then.