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Petition under Article 227 of the Constitution challenging the proceedings under Chapter IV of the DV Act would be maintainable: The High Court of Jammu & Kashmir and Ladakh

There is no bar in entertaining a petition under Article 227 of the Constitution even in orders passed by criminal courts. The condition laid down is that there must be manifest miscarriage of justice occasioned, and that power is not to be exercised to correct a mistake of fact and of law. The aforesaid has been followed by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of Bilal Ahmad Ganai & ors. v. Sweety Rashid & ors. [CM(M) No.142/2021] which was decoded upon by a single judge bench comprising Justice Ali Mohammad Magrey on 11th October 2021.

The brief facts of the case are as follows. Petitioner no.1 and respondent no.1 were married in the year 2012. Respondents 2 and 3 were born out of the said wedlock. On account of some marital dispute between the couple and commencement of litigation between the two, according to the 2 petitioners, the wedlock was brought to an end by petitioner no.1 by executing Talaq-i-Rajaie and later on Talaq-i-Bayin. Respondents are residents of Wuyan, Tehsil Pampore, District Pulwama, yet they filed an application under Section 12 read with other provisions of the Protection of Women from Domestic Violence Act, 2005, (DV Act). The trial Magistrate after obtaining objections from the respondents and hearing the parties, passed order holding that as per the mandate of section 27 of the Act the court had no territorial jurisdiction to adjudicate upon the matter. The respondents filed an appeal against the aforesaid order of the trial Magistrate which was decided by the learned Additional Sessions Judge, Budgam who gave a decision without hearing the petitioners and this order has been challenged by the petitioners under the present appeal on the grounds of lack of territorial jurisdiction.

The court perused the facts and arguments presented. It relied on several judgments including Radhey Shyam v Chhabi Nath, Dr. P. Pathmanathan v Tmt. V. Monica and Hari Singh Mann v Harbhajan Singh Bajwa. It was hence of the opinion that “The present petition, is not a petition for correction of a mistake of fact or of law; it is a petition for undoing the miscarriage of justice caused by the impugned order. So far as the order passed by the learned Additional Sessions Judge, Budgam, thereby the appellate court has only directed the trial Magistrate to decide afresh the complaint on the issue of territorial jurisdiction after inviting oral and documentary evidence from the parties to the complaint and after hearing both sides and pass appropriate orders and that till then all the interim reliefs passed by the trial court shall remain in operation. This Court does not see that the appellate court has committed any illegality in remanding the case to the trial Magistrate for the aforesaid purpose.”

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Judgment Reviewed by – Aryan Bajaj

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