RIZWAN ABID AND ORS. Vs. SABHA JARAL

JUDGEMENT

(1.) In this petition filed under Section 561-A of the Code of Criminal Procedure, the petitioners inter alia seek quashing of complaint titled 'Sabha Jaral vs Rizwan Abid and others' and the order dated 16.01.2018 passed in the said complaint, pending before learned Sub Judge, Special Mobile Magistrate, Rajouri.

(2.) Brief facts of the case are that the petitioner No.1 contracted marriage with respondent in accordance with Islamic Law on 15.11.2014. Out of said marriage one son is born. Petitioner Nos. 2 and 3 are parents of petitioner No.1. Petitioner No.4 is younger brother of petitioner No.l. The relations between petitioner No.1 and respondent became strained. In any event petitioner No.1 has divorced the respondent. It is stated that the respondent has been living in maternal home in another village Samesamat. The conjugal relationship between petitioner No.1 and respondent has become extinct and marital ties has broken/severed. Since petitioner No. 1 and respondent are living separately and there is no surviving matrimonial/conjugal relationship between them, yet in order to harass the petitioners, the respondent has filed a complaint along with application for interim relief in terms of Section 12 of the J&K Protection of Women Domestic Violence Act, 2010. In the aforesaid complaint the learned Special Mobile Magistrate Rajouri, has passed an order on 16.01.2018 in which an amount of Rs.2,500/- each has been ordered to be paid to respondent No.1 and her minor son. Petitioners feeling aggrieved of aforesaid complaint and the proceedings therein, have prayed for quashing/setting aside the same inter alia on the following grounds: a. That the impugned complaint instituted as file No. 77 dated 09.01.2018 filed by respondent against the petitioners is totally an abuse and misuse of process of Law. The impugned order dated 16.01.2018 passed by the court below in the aforesaid complaint, it is respectfully submitted, if allowed to stand would cause injustice to petitioners. In the peculiar facts and circumstances of the case the impugned complaint and the order passed therein are liable to be quashed/set aside. b. That the petitioner No. 1 after pronouncing amine to respondent has severed marital ties and conjugal relationship has come to an end and respondent cease to be Wife of petitioner Not 1 and on this ground alone the provision of Domestic Violence Act are not attracted in the facts of the case. The complaint under domestic violence act is not sustainable in Law. c. That the petitioners No. 2 and 3 are parents of petitioner No. 1 they have been arrayed as party only with a view to harass them. Petitioner No. 4 is a brother of petitioner No. 1. He has been dragged in frivolous litigation only to harass him. Keeping in view the divorce neither the petitioner No.1 nor the family members of the petitioner No. 1 are liable under Domestic Violence Act . In the exceptional facts and circumstances the impugned complaint is malicious and malafide intended to harass the petitioners and amounts to abuse and misuse process of law and injustice to petitioners. The respondent being divorce is not entitled to seek protection of vires of Domestic Violence. The complaint amounts to abuse of process of Law. As such the complaint itself and the cognizance taken by the court below and proceedings therein are liable to be set aside. In this view of the matter petitioners are constrained to invoke the inherent powers of this Hon'ble Court to prevent abuse of the process of Law and secure ends of justice with a prayer for quashing the impugned complaint alongwith all further proceedings. d. That without prejudice to the aforesaid submissions it is submitted that impugned complaint is malicious and malafide having been instituted with ulterior motive and for extraneous considerations. That apart the allegations contained in the complaint are totally false and baseless and on careful analysis the same shall show that no offence is made out. The impugned complaint has been used as a weapon/tool just to harass the petitioners.

(3.) This court while entertaining the instant petition, vide order dated 23.02.2018, issued notice to the respondent and proceedings before the trial court were stayed. However, the same was subject to payment of Rs.2500/- per month to the respondent.