Women Can Seek Relief Under DV Act Even During Maintenance Enforcement Proceedings Under CrPC: J&K High Court

Justice Sanjay Dhar underscored that the phrase “legal proceedings” under Section 26 must be liberally interpreted in line with the beneficial intent of the statute.

“The expression 'legal proceedings' has to be given a liberal interpretation so as to achieve the objective of the DV Act which is to protect the rights of the women who are victims of violence of any kind occurring within the family,” observed Justice Dhar while setting aside the trial magistrate's rejection of a DV Act application filed by a wife and minor daughter during maintenance enforcement proceedings.

The dispute originated after respondent No.2 (wife) and respondent No.1 (minor daughter) of the petitioner Mubashir Ahmad Wani filed a maintenance petition under Section 488 of the J&K CrPC. On this application the Magistrate directed the petitioner to pay Rs. 3000/month to his daughter and Rs. 5000/month to his wife.

Thereafter, during the enforcement proceedings of this maintenance order under Section 488(3) J&K CrPC, the respondents moved an application under Section 26 read with Section 19 of the Domestic Violence Act seeking a residence order. This application was, however, dismissed by the trial Magistrate on the ground that reliefs under Section 19 could be granted only in proceedings initiated under Section 12 of the DV Act, and not during execution proceedings.

Aggrieved, the respondents preferred an appeal before the Principal Sessions Judge, Anantnag, under Section 29 of the DV Act. The Sessions Court set aside the Magistrate's order, holding that Section 26 indeed allowed such reliefs to be claimed in ongoing legal proceedings. This led to the instant challenge by the husband/petitioner before the High Court.

Appearing for the petitioner, Mr. Aswad Attar contended that Section 26 of the DV Act was only an enabling provision and did not vest substantive jurisdiction in a court to grant reliefs under Sections 18 to 22 in proceedings outside the DV Act. He further argued that since the trial Magistrate's order was passed in proceedings under Section 488 CrPC, the Sessions Judge had no jurisdiction to entertain an appeal under Section 29 of the DV Act.

On the other hand, Mr. Rizwan-ul-Zaman Bhat, appearing for the respondents, submitted that Section 26 squarely empowered a court to entertain reliefs under the DV Act during any ongoing legal proceeding between the parties, including proceedings under Section 488 or its enforcement.

Court's Observations & Findings:

Justice Dhar began his analysis by examining Section 26 of the Domestic Violence Act, observing that the provision explicitly allows an aggrieved person to seek reliefs available under Sections 18 to 22 in any legal proceeding, irrespective of whether such proceeding was instituted before or after the DV Act came into force.

Citing a string of Supreme Court judgments including Hiral P. Harsora v. Kusum Narottamdas Harsora (2016), Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi (2017) & Satish Chander Ahuja v. Sneha Ahuja (2021) the Court noted that Section 26 must be construed broadly to effectuate the objective of the Act.

“Thus, if a legal proceeding before a civil court, family court or a criminal court affecting the aggrieved person and the respondent is pending, the aggrieved person, by taking aid of the provisions contained in Section 26(1) of the DV Act, has a right to seek relief as contemplated under Sections 18 to 22 of the DV Act,” Justice Dhar explained.

Importantly, the Court clarified that even execution proceedings under Section 488(3) J&K CrPC qualify as “legal proceedings” under Section 26 of the DV Act.

“Thus, even a proceeding in the nature of Section 488(3) of the J&K Cr. P. C would qualify to be a 'legal proceeding' as contemplated under Section 26 of the DV Act. Therefore, the petition under Section 19 of the DV Act filed by the respondents… would definitely fall within the scope of Section 26 of the DV Act.”, the court underscored.

The High Court then turned to the second issue as to whether the Sessions Judge could have exercised appellate jurisdiction under Section 29 of the DV Act. Justice Dhar held that the Magistrate's order rejecting a Section 19 relief during a 488 CrPC proceeding could not be appealed under Section 29 of the DV Act, but only assailed via revision under Section 435 J&K CrPC (equivalent to Section 397 CrPC).

However, since the Sessions Court was competent to hear both appeals under the DV Act and revisions under the CrPC, the High Court declined to remand the case on a mere procedural technicality.

“Setting aside the impugned order passed by the learned Sessions Judge, Anantnag, and remanding the case to him for a fresh decision for exercising his revisional jurisdiction, would be a superfluous formality...”, the court opined.

While maintaining that the Sessions Judge lacked jurisdiction to entertain the matter as an appeal under Section 29 DV Act, the High Court still upheld the setting aside of the Magistrate's order. However, it also ordered,

“Order dated 02.02.2021 passed by the learned trial Magistrate is set aside and the learned Magistrate is directed to decide the application of the respondents under Section 19 of the DV Act in accordance with law,”.

APPEARANCES:

For Petitioner: Mr Aswad Attar

For Respondent: Mr Rizwan-ul-Zaman Bhat

Case Title: MUBASHIR AHMAD WANI Vs MEELAZ MUBASHIR & ANOTHER

Citation: 2025 LiveLaw (JKL)

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