DV Act | Magistrate Can Grant Ex-Parte Relief Even In Absence Of Domestic Incident Report: J&K High Court
In a pivotal ruling on the rights of women under the Protection of Women from Domestic Violence Act, 2005, the High Court of Jammu and Kashmir and Ladakh has held that a Domestic Incident Report (DIR) is not mandatory for a Magistrate to grant interim or ex parte relief under the statute.“Under Section 20 of the D.V. Act, an aggrieved wife is entitled to monetary relief, including...
In a pivotal ruling on the rights of women under the Protection of Women from Domestic Violence Act, 2005, the High Court of Jammu and Kashmir and Ladakh has held that a Domestic Incident Report (DIR) is not mandatory for a Magistrate to grant interim or ex parte relief under the statute.
“Under Section 20 of the D.V. Act, an aggrieved wife is entitled to monetary relief, including maintenance, to ensure that she does not suffer from deprivation or financial distress”, Justice Vinod Chatterji Koul emphasized.
Justice Koul made this observation In a petition filed by one Naveed Bashir Wani, who had challenged concurrent orders passed by the Chief Judicial Magistrate, Ganderbal and Additional Sessions Judge, Ganderbal awarding interim monetary relief to his estranged wife.
Tailoring the reasoning around the scope of Section 12 of the D.V. Act, Justice Koul emphasized,
"Section 12 does not make it mandatory for a Magistrate to consider Domestic Incident Report before passing any order under D.V. Act. Even in absence of DIR a Magistrate is empowered to pass ex parte or interim relief as well as final order under D.V. Act."
The case emanated from a petition filed by the respondent wife who alleged continuous physical, emotional, and economic abuse at the hands of petitioner Wani, her husband and in-laws since her marriage. She stated that she had been beaten mercilessly, denied medical treatment, thrown out of her matrimonial home, and subjected to repeated dowry demands. She supported her claims with photographs, affidavits, and a detailed list of personal items allegedly withheld by the respondents.
In her plea before the Chief Judicial Magistrate, she also sought interim relief under Section 23 of the Act. Upon hearing both parties, the Trial Court passed an order directing the petitioner to pay ₹12,000 per month as interim maintenance. The Trial Court, while acknowledging that the facts and claims would ultimately require trial, found the allegations substantiated for the purposes of interim relief.
The petitioner, a constable in the J&K Police Department, argued that his net salary was only ₹34,171 as per the pay slip on record, and that he had obligations including parental care and loan EMIs. However, the Trial Court noted discrepancies in the petitioner's claims. It held that while he had shown his monthly income in the affidavit as ₹23,000, his government-issued pay slips revealed a gross salary of ₹43,874 and a net income of ₹39,782. The Court firmly rejected the notion that such liabilities could justify denying maintenance to the aggrieved woman, stating:
"Even if the respondent has many other responsibilities but those responsibilities cannot be projected to throttle away the responsibilities of his wife."
The Trial Court further observed that:
"The liquidation of the loan obtained by the respondent no. 1 cannot come in the way of granting reasonable maintenance to the aggrieved person... this Court does not deem it appropriate to allow such deduction from the income shown by the respondent no. 1."
On the matter of accommodation, while the petitioner claimed willingness to take back his wife, the Court held that the aggrieved person could not be compelled to return to the matrimonial home in the presence of reasonable apprehensions. However, it left the question of providing alternate accommodation open for adjudication based on future evidence noting,
"This court feels that as far as this accommodation part is concerned, the same is deferred till progress in the instant case is made by the leading evidence..."
An appeal filed by the petitioner before the Additional Sessions Judge was also dismissed. The appellate court, in affirming the Trial Court's decision, referred to the Supreme Court's judgment in Probha Tyagi v. Kamlesh Devi (2022) 8 SCC 90, wherein it was held that the absence of a Domestic Incident Report does not fetter the powers of a Magistrate to provide necessary reliefs under the D.V. Act. It also drew from the precedent laid down in Rajnesh v. Neha (2020) 3 SCC 794, where the apex court emphasized balancing the financial capacity of the husband with the needs of the wife.
Justice Koul, concurring with the reasoning adopted by both subordinate courts, observed that the findings recorded by them were firmly rooted in law and required no interference. He concluded,
"Both Trial Court and Appellate Court have discussed in detail all aspects of the matter concerning interim relief/maintenance under and in terms of provisions of D.V. Act, which do not call for any interference, and therefore, instant petition is liable to be dismissed."
Accordingly, the High Court dismissed the petition as devoid of merit and upheld the maintenance order.
Case Title: Naveed Bashir Wani Vs Varqa Bashir & Ors
Citation: 2025 LiveLaw (JKL)