Criminal Revision No.718 of 2014

26th May, 2015.

Petitioner Counsel: DEVENDRA DHAMA
Respondent Counsel: SYED IRFAN ALI

Cases Cited:
Aditi Chauhan Vs. State of Uttarakhand & Anr., 2014 (2) J.Cr.C. 1661 [Para 12]

JUDGMENT

JUDGMENT :- List is revised. Learned counsel for the revisionist is present.

2. Notice was served upon the opposite party no.2. However, no one appears to contest the claim so made by the present revisionist.

3. By means of the instant revision, challenge has been made to the judgment and order dated 18.01.2014 passed by the Additional Sessions Judge, Court No.4, Aligarh, in Criminal Appeal No.239 of 2013 Vinod Agarwal Vs. State of U.P. and another, allowing the appeal under Section 29 Protection of Women from Domestic Violence Act 2005, setting aside the ex parte order dated 28.09.2013 passed by the Additional Chief Judicial Magistrate, Court No.9 in Case No.550 of 2013 Shiva Agarwal Vs. Vinod Agarwal under Sections 18,19, 20, 21 and 22 Protection of Women from Domestic Violence Act 2005 (hereinafter referred to "as the Act") whereby interim maintenance has been granted in favour of the revisionist.

4. Contention has been raised on behalf of the revisionist to the extent that in this case, proceedings were initiated at the instance of the present revisionist under the Domestic Violence Act whereby the allegations were made for neglecting the revisionist and her minor son. Upon consideration of the matter during pendency of the proceedings, the learned Magistrate exercising power under Section 23 (2) of the Act had passed ex parte interim order and directed the opposite party no.2 Vinod Agarwal, husband of the present revisionist to pay Rs.8000/- and Rs.4000/- to the revisionist and her son respectively towards maintenance from the date of the application. This order was consonant and in tune with the provisions contained under Section 23 (2) of the Act.

5. Feeling aggrieved by the aforesaid order, the opposite party no.2 Vinod Agarwal preferred criminal appeal no.239 of 2013 before the Additional Sessions Judge, Court No.4, Aligarh. The appellate court after considering the matter on merits allowed the appeal under the provisions of Rules 12 (2) (a) Protection of Women from Domestic Violence Rules 2006 (hereinafter referred to "as the Rules") observing that the order dated 28.09.2013 passed by the Additional Chief Judicial Magistrate, Court No.9, Aligarh, is vitiated in the eye of law in view of the fact that opportunity of hearing was not afforded to the opposite party no.2. Consequently, the appellate court set aside the order dated 28.09.2013 passed by the Additional Chief Judicial Magistrate, Court No.9, Aligarh and remanded the matter for consideration afresh. Hence the instant revision.

6. By way of counter affidavit, the contentions so raised have been denied and in paragraph no.10 of the affidavit, it has been stated that the requirement of notice is not dispensed with under Section 23 (2) of the Act, therefore, the order so passed initially granting interim maintenance was not justified and the order was rightly set aside in appeal preferred against the same.

7. Learned AGA has supported the order impugned in the instant revision and has submitted that it is natural justice that the party who is being affected by any order should normally be heard and notice in that regard should be issued, therefore, nothing wrong has been committed by the lower appellate court.

8. Considered the above submission and also perused the orders impugned in the instant revision.

9. While proceeding further with the case, attention of the Court was engaged to Section 23 of the Act which reads as under:

23. Power to grant interim and ex parte orders.- (1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent."

10. In so far as the Rule 12 (2) (a) of the Rules is concerned, the same mandates for issuance of notice to the other side for participating in the proceedings of the case.

11. By virtue of the aforesaid mandate as contained under Section 23 of the Act, it is apparent that the power has been vested with the Magistrate to pass any interim order ex parte, if the situation so warrants provided an affidavit is also filed in support of the case for interim maintenance. Therefore, to say that providing an opportunity of hearing is sine qua non for disposal of the interim application moved under the provisions of the Act is not justified. In this view of the matter, contention raised in paragraph no.10 of the counter affidavit do not carry force for the reason that the Magistrate has been vested with the power to pass ex parte interim order on affidavit, if the situation of the case so requires.

12. Learned counsel for the revisionist has placed reliance on paragraph nos.8 and 9 of the decision in the case of Aditi Chauhan Vs. State of Uttarakhand and another reported 2014 (2) J.Cr.C. 1661. In this case, the Court accepted the similar plea and has acted upon it mandating that in case an objection is to be raised against such an interim order then proper course of action would be left for the Magistrate concerned to pass an appropriate order thereon.

13. In view of above factual and legal aspect, it can be conveniently observed that it would have been proper for the opposite party no.2 Vinod Agarwal to have moved an appropriate application before the Magistrate concerned for variation / cancellation of the order so passed. Power to pass ex parte interim order has statutory sanction which is very much clear from a reading of Section 23 (2) itself and it leaves no room for any doubt.

14. A reference of paragraph nos.8 and 9 of the aforesaid case is extracted hereinbelow:

"8. Sub-section 2 of Section 23 of the Protection of Women from Domestic Violence Act, 2005, makes it clear that Magistrate can pass ex parte order, on the basis of affidavit, if he is satisfied that prima facie respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence.

9. For example, if a legally wedded wife is being threatened by the husband or relative(s) of the husband to leave the house immediately and there is immediate danger of her dispossession forcefully; likewise, if wife is at the stage of starvation and she needs immediate maintenance and wife cannot be left to die in starvation, then of course, learned Magistrate would be justified in granting ex parte interim protection and maintenance while invoking powers under Section 23 of the Act."

In view of the above, I find force in the contentions raised on behalf of the revisionist and the same are upheld for the reason that the appellate court did not ponder over the matter keeping in view provisions contained under Section 23 (2) of the Act. By virtue of the aforesaid mandate as contained under Section 23 of the Act, the power has been vested with the Magistrate to pass any interim ex parte order and it was not proper on the part of the appellate court to have straightway quashed the impugned order dated 28.09.2013 without passing direction for presentation of proper application by the appellant Vinod Agarwal (opposite party no.2) for cancellation/variation of the interim order so passed.

15. For the reason as aforesaid, the order impugned dated 18.01.2014 passed by the Additional Sessions Judge, Court No.4, Aligarh, in Criminal Appeal No.239 of 2013 Vinod Agarwal Vs. State of U.P. is set aside and the matter is remanded back to the appellate court for consideration afresh in accordance with law.

16. Accordingly, the instant revision is allowed.

Revision allowed.