Relief Under Domestic Violence Act can be granted even during maintenance enforcement proceedings under CrPC

General
1

Case Title: Mubashir Ahmad Wani v. Meelaz Mubashir & Anr.
Court: High Court of Jammu & Kashmir and Ladakh at Srinagar
Coram: Hon’ble Mr. Justice Sanjay Dhar
Date of Judgment: 25 July 2025
Citation: CM(M) No. 287/2022
Advocates:

  • For Petitioner: Mr. Aswad Attar
  • For Respondents: Mr. Rizwan-ul-Zaman Bhat

Facts:

  • The respondents, a wife (R-2) and minor daughter (R-1) of the petitioner, had earlier obtained a maintenance order under Section 488 J&K CrPC (akin to Section 125 CrPC), granting Rs. 5,000 to R-2 and Rs. 3,000 to R-1 monthly.
  • During enforcement proceedings of this maintenance order, the respondents filed an application under Section 26 read with Section 19 of the Protection of Women from Domestic Violence Act, 2005 (DV Act), seeking residence orders.
  • The Trial Magistrate dismissed the application on 02.02.2021, holding that such relief could only be sought in a proceeding initiated under Section 12 of the DV Act.
  • The respondents appealed under Section 29 of the DV Act. The Principal Sessions Judge, Anantnag, allowed the appeal and set aside the Magistrate’s order.

Issues:

  1. Whether relief under Section 19 of the DV Act can be sought in a pending proceeding under Section 488 CrPC by invoking Section 26 of the DV Act.
  2. Whether the Sessions Judge had jurisdiction to entertain an appeal under Section 29 of the DV Act against the Magistrate’s order.

Held:

  1. Maintainability of Application under Section 26 DV Act:

    • The High Court upheld the view that Section 26 of the DV Act allows reliefs under Sections 18–22 of the DV Act to be sought in any legal proceeding affecting the aggrieved person and respondent, including those under Section 488 CrPC.
    • Relying on precedents including Hiral P. Harsora v. Kusum Narottamdas Harsora and Satish Chander Ahuja v. Sneha Ahuja, the Court held that the term “legal proceedings” under Section 26 should be liberally construed.
    • Therefore, the respondents’ application under Section 19 DV Act within Section 488 proceedings was maintainable.

  2. Jurisdiction of Sessions Judge under Section 29 DV Act:

    • The Court found that while the application was maintainable, an appeal under Section 29 DV Act was not the proper remedy.
    • Since the application was made in a CrPC proceeding, the proper remedy lay in revision under Section 435 J&K CrPC (analogous to Section 397 Central CrPC).
    • However, since both appellate and revisional forums lie with the Sessions Court, the High Court treated the appeal as a revision to prevent a miscarriage of justice and avoid procedural delays.

Disposition:

  • The High Court set aside the Magistrate’s order dated 02.02.2021.
  • Directed the Trial Magistrate to reconsider the respondents’ application under Section 19 DV Act on merits.
  • Held that while the Sessions Judge erred in entertaining an appeal, the conclusion was substantively correct and did not warrant remand.

Significance:

  • This judgment reaffirms the wide scope of Section 26 of the DV Act.
  • Clarifies that residence and other protective reliefs under DV Act can be sought within ongoing CrPC proceedings if they involve the same parties.
  • It also distinguishes between procedural jurisdiction and substantive rights, prioritizing justice over technicalities.