SRINAGAR: A Srinagar court has directed a trial court to reconsider a woman’s application seeking to restrain her husband from contracting a second marriage, after allowing him an opportunity to file objections and hearing both sides, while dismissing his appeal against an earlier interim order as not maintainable.
The Court of 3rd Additional Sessions Judge, Srinagar, presided over by Dinesh Gupta, passed the directions on October 28, while deciding an appeal filed by Showkat Sultan Wadoo of Kalwal Mohalla, Rainawari, against an order dated April 12, 2022, passed by the Judge, Small Causes, Srinagar.
The dispute arose from a petition filed by Shazia Ali Wadoo under Section 12 of the Protection of Women from Domestic Violence Act against her husband. During the proceedings, she moved an application seeking to prevent him from contracting a second marriage during the subsistence of their first marriage.
The trial court had granted an ex-parte ad-interim order restraining the husband from entering into a second marriage until the next date of hearing, which was fixed for April 30, 2022.
Challenging the order, the husband, through Advocate Irfan Qadri, argued that the trial court had passed the direction without providing him an opportunity to present his case. He also contended that the order violated his rights under personal law.
The appellant further submitted that the marriage had already been dissolved through an order dated December 22, 2021, passed by the Islamic Court of the Shariat Board on an application moved by the respondent. On this basis, he questioned her entitlement to seek the restraint and argued that the trial court had failed to apply settled principles of law. He sought the setting aside of the impugned order.
Opposing the appeal, Advocate T.A. Joo, appearing for the wife, maintained that the trial court had passed the interim direction after considering her application. He argued that the order was ex-parte and ad-interim in nature and, therefore, could not be challenged through an appeal.
The respondent’s counsel submitted that the husband should instead have approached the trial court with an application seeking modification of the interim direction or filed objections to her application. By choosing to file an appeal instead, he had adopted a remedy that was not legally maintainable, the counsel argued.
After hearing both sides and examining the case material, including the scanned record received from the trial court, Gupta observed that the matter required consideration by the court where the original proceedings were pending.
Explaining the decision to send the matter back, the judge observed that the trial court was required to decide the wife’s application after hearing both parties and examining the material placed before it.
The order noted that deciding the matter at the appellate stage without allowing both sides to present their respective material could interfere with the trial court’s ability to adjudicate the application independently.
“If this order is upheld or set-aside by this Court, it will hamper the Court below to dispose of the application after hearing both the parties,” the judge observed.
The court further said that the aggrieved parties would naturally seek an opportunity to place relevant material on record, which could effectively turn the appellate court into the trial court.
“In such circumstances, without commenting on merits of this case, this Court deem it fit to remand the case to the Ld. Trial Court,” the order stated.
Accordingly, the judge directed the trial court to allow the husband an opportunity to file objections, hear both parties and decide the application expeditiously, preferably within two months from the date of receipt of the order.
The court dismissed the appeal as not maintainable and directed both parties to appear before the trial court. A copy of the order was also directed to be forwarded to the lower court for information.
The appeal, bearing Filing No. 1717/2022 and Registration No. 45/2022, had been instituted on June 21, 2022. The court clarified that it had not expressed any opinion on the merits of the dispute, leaving the trial court to decide the wife’s application after hearing both sides.
