Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Vinod Chatterji Koul has dismissed a petition challenging concurrent orders passed by the Trial and Appellate Courts directing interim maintenance under the Protection of Women from Domestic Violence Act. The Court affirmed that the interim maintenance of Rs. 12,000/- per month awarded to the aggrieved person was lawful, based on available pay records, and found no justification for interference under Article 227 of the Constitution of India.

The Court held that the petition was devoid of merit, affirming that the Trial Court had correctly limited its adjudication to interim relief and had relied on authenticated pay slips rather than unsubstantiated income allegations. The Appellate Court had upheld this assessment, and the High Court refused to intervene, stating the statutory rights of the aggrieved person under the D.V. Act. The court concluded that no material irregularity or jurisdictional error was made by the courts below, and thus, the petition deserved to be dismissed in limine.

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The petitioner filed the present petition under Article 227 of the Constitution of India seeking to challenge the order dated 06.05.2024 passed by the Chief Judicial Magistrate, Ganderbal, and the appellate order dated 25.02.2025 passed by the Additional Sessions Judge, Ganderbal. These orders had directed the petitioner to pay interim maintenance of Rs. 12,000/- per month to the aggrieved person under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act).

The respondent had instituted proceedings under Section 12 of the D.V. Act, accompanied by an application for interim relief. In her petition, she alleged instances of domestic violence perpetrated by the petitioner and his family, including physical abuse, mental harassment, and illegal dowry demands. She submitted that she had been compelled to leave her matrimonial home and was undergoing medical treatment due to the violence.

In support of her claims, the respondent filed photographs, medical records, affidavits, and a detailed application. It was stated that she was forced out of her matrimonial home and had no means of sustenance. The Trial Court, upon hearing both parties and considering their respective affidavits of assets and liabilities, found prima facie material to constitute domestic violence and granted interim maintenance.

The petitioner, represented by counsel, contested the allegations and submitted that the case was fabricated. It was argued that no specific dates of alleged incidents were mentioned and that no domestic incident report or police complaint had been filed. He further contended that the aggrieved person had voluntarily left the matrimonial home after surgery and was welcomed back by the family. The petitioner submitted that he was a constable earning a monthly net salary of approximately Rs. 34,000/- to Rs. 39,000/-, which was subject to deductions including EMIs for a personal loan. He also claimed responsibility for maintaining his aged parents and cited financial hardship.

The respondent, however, maintained that the petitioner earned substantially more and failed to disclose his full income. It was also argued that irrespective of deductions and personal liabilities, the petitioner had a legal obligation to provide for his wife.

The Trial Court noted that the domestic relationship and subsistence of marriage were undisputed. It held that prima facie material existed to conclude the occurrence of domestic violence within the meaning of Section 3 of the D.V. Act. It relied on authenticated government pay slips submitted by the petitioner, showing gross salary figures ranging from Rs. 38,720/- to Rs. 43,874/- with net salary around Rs. 39,782/-. The Court held that deductions on account of loans or other personal expenditures could not override the respondent's statutory right to maintenance.

The Trial Court observed that while the aggrieved person had alleged additional income from property and business, those claims were unsubstantiated. It, therefore, fixed maintenance based solely on the petitioner’s government salary. Considering the respondent's medical needs and daily requirements, it directed that the interim maintenance of Rs. 12,000/- per month continue until final adjudication of the main petition.

The petitioner filed an appeal under Section 29 of the D.V. Act before the Additional Sessions Judge, Ganderbal. In the appellate proceedings, the petitioner challenged the legality and fairness of the Trial Court's order. It was argued that the order had been passed without due regard to the objections and evidence placed on record. The petitioner submitted that no specific acts of violence had been established, and no domestic incident report existed. He also contended that the Trial Court misapplied the standards of monetary relief under the D.V. Act and equated it with maintenance under Section 125 Cr.PC.

The respondent opposed the appeal, stating that she was subjected to harassment, abuse, and economic deprivation by the petitioner and his family. She maintained that she had been denied access to her personal property and that the environment created by the petitioner was unsafe.

The Appellate Court considered all submissions and upheld the Trial Court's order. It cited the Supreme Court judgment in Probha Tyagi v. Kamlesh Devi [(2022) 8 SCC 90], which held that a Domestic Incident Report is not mandatory for a Magistrate to grant relief under the D.V. Act. The Court also referred to Rajnesh v. Neha [(2020) 3 SCC 794] for principles governing maintenance, particularly the need to assess the standard of living, earning potential, and ability of the husband to provide support.

The Appellate Court held that "the aggrieved person/respondent no.1 cannot be left to struggle for survival merely because the appellant/petitioner claims financial liabilities, like repaying of loan. He has a wife and he is liable to take care of her." It concluded that the petitioner’s loan repayments and financial obligations could not override his primary responsibility of maintaining his spouse.

The High Court examined the case in detail and noted that "this Court cannot return finding with respect to genuineness or ingenuineness of these allegations as these are subject matter of proof". However, it held that the Trial Court had acted correctly in taking the allegations at face value, supported by affidavit, to constitute prima facie acts of domestic violence.

"From the inception of the marriage on 15.09.2022, the respondents have resorted to incidents of domestic violence and this domestic violence... continued to be perpetuated on her in different forms such as, physical and mental torture, assaulting on her, beating her and putting forward constant demands for dowry."

The Court noted that the income disclosed in the affidavit by the petitioner was contradicted by official pay slips. "The income disclosed by the respondent no. 1 in affidavit of assets and liabilities is ignored and the income certificate of pay slip is considered for disposal of this application."

On the issue of accommodation, the Trial Court had recorded: "The aggrieved person, at this stage, cannot be forced to resume matrimonial relations and live in the matrimonial home but however, if she willingly chooses to stay with her parents, when the respondents offer accommodation in the matrimonial home, she will not be entitled for such choice accommodation."

The Court also observed, "If the aggrieved person chooses to stay at matrimonial home it shall always remain the responsibility of the respondent no. 1 to ensure that the congenial and safe environment is created for the aggrieved person and there is no harm caused or likely to be caused on the aggrieved person."

Regarding maintenance, the Court stated, "This court feels that the aggrieved person has genuinely projected her monthly requirements for her basic necessities including her medicine and medical expenses as well." It further recorded that "even if the respondent has many other responsibilities... those responsibilities cannot be projected to throttle away the responsibilities of his wife."

The High Court affirmed that the Trial Court and Appellate Court had given due consideration to the facts and documents presented and had acted within the statutory framework. It concluded that "no interference is warranted in the concurrent findings of fact recorded by the courts below."

"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."

"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."

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"The Trial Court while considering application of respondent for interim relief/maintenance, has not taken into note the claim of respondent that petitioner herein has Rs.90,000/- income per month but has relied upon a Pay Salary Slip of petitioner herein of the month of May 2022 although there has been contention of aggrieved person/respondent herein before the Trial Court that petitioner has other sources of income as well."

"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."

"Hence the instant petition is without any merit and is accordingly dismissed."

Advocates Representing the Parties:

For the Petitioner: Mr. Muzaffar A. Bhat, Advocate

For the Respondents: Mr. Lone Altaf, Advocate

Case Title: Naveed Bashir Wani v. Varqa Bashir & Others

Case Number: CM(M) No. 117/2025

Bench: Justice Vinod Chatterji Koul