MUBASHIR AHMAD WANI Vs. MEELAZ MUBASHIR

JUDGEMENT

(1.) The petitioner, through the medium of present petition, has challenged order dtd. 10/10/2022, passed by the learned Principal Sessions Judge, Anantnag, whereby, while exercising his appellate jurisdiction under Sec. 29 of the Protection of Women from Domestic Violence Act, 2005 [ for short "the DV Act"], the learned Sessions Judge, has set aside order dtd. 2/2/2021 passed by the learned Special Mobile Magistrate, Anantnag (hereinafter referred to as "the trial Magistrate") dismissing the petition filed by the respondents under Sec. 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 Sec. 488 of the J&K Cr. P. C against the petitioner before the learned trial Magistrate. The said petition came to be decided by the learned trial Magistrate in terms of order dtd. 2/6/2018, whereby the petitioner was directed to pay monthly maintenance to the tune of Rs.3000.00 to respondent No.1 and Rs.5000.00 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-sec. (3) of Sec. 488 of J&K Cr. P. C. During pendency of the said petition, the respondents filed an application invoking the provisions of Sec. 26 of the DV Act and sought order of residence in terms of Sec. 19 of the said Act. The said application came to be dismissed by the learned trial Magistrate in terms of order dtd. 2/2/2021 by holding that the provisions contained in Sec. 26 of the DV Act pre-suppose pendency of other proceedings and that an application under Sec. 19 of the DV Act would lie only if a petition under Sec. 12 of the said Act is pending before the Court.