Only Prima Facie Satisfaction Required U/S 23 Domestic Violence Act; Meticulous Evidence Analysis To Be Avoided: J&K&L High Court

The Court made these observations while hearing a petition filed by the husband and father-in-law challenging an order passed by the Additional Sessions Judge, Ganderbal, whereby the appellate court had allowed an appeal under Section 29 of the DV Act filed by the aggrieved person (wife) and set aside the order passed by the Chief Judicial Magistrate, Ganderbal, which had refused to grant relief to the aggrieved person.

A Single Bench of Justice Sanjay Dhar observed,

“.... at the time of considering an application under Section 23 of the DV Act, the standard of proof is only prima facie satisfaction of the Court regarding the existence of domestic relationship and the likelihood of domestic violence. A meticulous analysis of the evidence on record has to be avoided by the Court at this stage.”

Background:

The aggrieved person filed a petition under Section 12 of the DV Act before the Chief Judicial Magistrate, Ganderbal, pleading that she was married to petitioner No. 1 in 2020 and joined her matrimonial home on 10.10.2021, whereafter she was subjected to domestic violence and cruel treatment by petitioner No. 1.

It was also alleged that petitioner No. 2, her father-in-law, used to occasionally molest her, causing great mental agony and humiliation. According to the aggrieved person, the petitioners were picking frequent quarrels with her on insignificant matters, subjecting her to verbal, physical and mental cruelty, and she was expelled from the matrimonial home and deprived of shelter and maintenance.

Initially, the trial Magistrate passed an ex parte interim order directing petitioner No. 1 to pay interim monetary compensation of Rs.10,000/- per month and to provide one room along with a washroom for residential purpose, with a further direction not to commit any domestic violence.

The petitioners filed objections admitting that the aggrieved person is wife of petitioner No. 1. It was alleged that the aggrieved person aborted a pregnancy without the consent and knowledge of petitioner No. 1. The petitioners denied the allegations of cruelty and molestation, claiming that the aggrieved person left the matrimonial home out of her own volition. The petitioners further claimed that petitioner No. 1 earns a modest salary and has been suspended from service on account of the complaint lodged by the aggrieved person.

After considering the pleadings and the statement of the aggrieved person, the trial Magistrate concluded that no domestic violence had taken place, having regard to the inconsistency between her statement recorded before the Court and the assertions made. The aggrieved person appealed under Section 29 of the DV Act.

The Additional Sessions Judge, Ganderbal, by an order set aside the trial court's order, awarded interim monetary assistance of Rs.5,000/- per month and directed that the aggrieved person be provided suitable residential accommodation or in the alternative be paid Rs.2,500/- per month as rent. Aggrieved, the petitioners approached High Court.

Court's Observation:

The High Court noted that a perusal of the trial Magistrate's order revealed that the court had minutely analyzed the statement of the aggrieved person by pointing out minor inconsistencies in dates mentioned by her. The Court held that such minor inconsistencies could not have been taken into consideration at the time of deciding an application under Section 23 of the DV Act.

“By undertaking meticulous examination of the statement of the aggrieved person at this stage, the learned trial Magistrate had exceeded its jurisdiction.”, the court remarked.

The Court further observed that the standard of proof under Section 23 of the DV Act is only prima facie satisfaction regarding the existence of a domestic relationship and the likelihood of domestic violence. “A meticulous analysis of the evidence on record has to be avoided by the Court at this stage,” the Court reiterated.

Another ground on which the trial Magistrate had refused the application was that the aggrieved person had not filed an affidavit relating to assets and liabilities. The High Court held that mere non-filing of such affidavit does not extinguish the right to claim maintenance or protection under the DV Act. The Court further noted that the aggrieved person had filed the requisite affidavit which was available in the trial Court record.

The petitioners contended that petitioner No. 1 has divorced the aggrieved person by virtue of deed of divorce, a copy whereof has been placed on record. The High Court observed that the deed of divorce was admittedly executed after the passing of order by the trial court. The Court held,

“The issue whether divorce has actually been pronounced by petitioner No.1 upon the aggrieved person and whether divorce would extinguish the right of aggrieved person to claim relief in terms of the DV Act, has to be dealt with by the trial Court at the time of final disposal of the petition under Section 12 of the DV Act.”

The High Court thus found no ground to interfere with the well-reasoned and lucid order passed by the Additional Sessions Judge, Ganderbal. The petition was dismissed as being without any merit. The Court directed that copies of the order be sent to both courts below.

Case Title: Rouf Ahmad Mir & Ors Vs Adfara Rahman

Citation: 2026 LiveLaw (JKL)

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