Jammu & Kashmir And Ladakh High Court Weekly RoundUp: November 6 - November 12, 2023

Dr. Abid Hussain Vs State (now Union Territory) of J&K 2023 LiveLaw (JKL) 279

Syed Irfan Abdullah Vs UT of J&K 2023 LiveLaw (JKL) 280

Mrs. Syed Asma Balki Vs. Mudasir Shibzada 2023 LiveLaw (JKL) 281

ZAHOOR AHMAD DAR Vs JAMEELA BANO & ANOTHER 2023 LiveLaw (JKL) 282

A K Engineers and Contractors Pvt Ltd v. Union Territory of J&K 2023 LiveLaw (JKL) 283

Judgments/Orders:

Objections U/S 47 CPC Must Be Raised At Initial Stages, Cannot Be Entertained Once Court Has Issued Order For Effective Execution: J&K High Court

Case Title: Dr. Abid Hussain Vs State (now Union Territory) of J&K

Citation: 2023 LiveLaw (JKL) 279

The Jammu and Kashmir and Ladakh High Court clarified that objections under Section 47 CPC must be raised at the initial stages of the execution application and these objections cannot be raised once the court has already exercised its jurisdiction, issued an order for effective execution, and called for a compliance report.

Furthermore, Justice Javed Iqbal Wani stressed that objections cannot be raised once the respondents have committed to implementing the judgment and decree.

UAPA | Plea For Default Bail Filed A Day Before Expiry Of Authorized Custody Period Not Maintainable: Jammu & Kashmir High Court

Case Title: Syed Irfan Abdullah Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 280

The Jammu and Kashmir and Ladakh High Court has made it clear that a plea for default bail filed a day before the expiry of authorized custody period under the Unlawful Activities (Prevention) Act (UAPA) is not maintainable.

Finding that the appellant in this case had moved an application for default bail on the 90th day of the 90-days authorized custody period, a bench of Justices Sanjeev Kumar and Rajesh Sekhri observed,

"In the instant case we find that the appellant had moved an application for default bail on 11-04-2023 which was the 90th day of the authorized custody of the appellant. That being so, the application moved by the appellant for default bail was stillborn and not maintainable in law, We cannot lose sight of the fact that the prosecution has now presented the challan after completing the investigation within the period authorized by the NIA Court”.

Orders Passed U/S 12 Domestic Violence Act Can't Be Assailed Directly U/S 482 CrPC Unless Remedy Of Appeal Is Availed: J&K High Court

Case Title: Mrs. Syed Asma Balki Vs. Mudasir Shibzada

Citation: 2023 LiveLaw (JKL) 281

The Jammu and Kashmir and Ladakh High Court clarified that orders passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) cannot be directly challenged under Section 482 of the Criminal Procedure Code (CrPC) unless the remedy of statutory appeal is availed.

Dismissing a petition under Section 482 assailing the orders passed by the Judicial Magistrate under Sec 12 of the DV Act, Justice Sanjay Dhar observed,

“Without going into the question, whether or not the proceedings under the D.V.Act are of civil in nature, one thing is clear that the remedy of appeal is available to the petitioner against the impugned order. Without availing the said remedy the petitioner could not have rushed to this Court to file proceedings under Section 482 Cr.P.C or by invoking revisional powers of this Court”.

Muslim Wife Can't Be Denied Maintenance When Factum Of Divorce Not Properly Established: Jammu & Kashmir High Court

Case Title: ZAHOOR AHMAD DAR Vs JAMEELA BANO & ANOTHER

Citation: 2023 LiveLaw (JKL) 282

The Jammu and Kashmir High Court ordered a Muslim man to maintain his wife till the factum of divorce, as had been claimed by him, is established.

The bench reasoned that denying maintenance would defeat the purpose of Section 488 of the Criminal Procedure Code (Pari Materia with sec 125 CrPC), which aims to provide temporary financial support to women during marital disputes.

Arbitration Clause In The Original Contract Would Also Apply To Inseparable Additional Work Carried Out Without Execution Of A Formal Agreement: J&K&L High Court

Case Title: A K Engineers and Contractors Pvt Ltd v. Union Territory of J&K

Citation: 2023 LiveLaw (JKL) 283

The Jammu & Kashmir and Ladakh High Court held that the arbitration clause contained in the original contract would also govern any dispute arising out of an additional work carried out without execution of a formal agreement.

The bench of Chief Justice N. Kotiswas Singh held that when a contractor, initially tasked with constructing a single-lane bridge, is subsequently directed by the employer to expand the scope to build a two-lane bridge without formalizing a new agreement or amending the original contract, the terms of the initial contract, including the arbitration clause, extend to cover the additional work.