Power of Magistrate to grant interim and ex parte orders under Domestic Violence Act

Section 23 in The Protection of Women from Domestic Violence Act, 2005

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.


Interim General Order  and Contested Order (Cl-1)

In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

Suo Motu X by Application

In any proceeding

before him under this Act,

the Magistrate may pass

such interim order

as he deems just

and proper.

Against the Respondent

Against the Applicant

A balanced order

∑ – X/3 = ∞


Reconstructed 23(1)

In any proceeding before him under this Act if the Magistrate is satisfied Suo Motu or that an application prima facie discloses or on the basis of an affidavit, the Magistrate may pass such interim order as he deems just and proper to protect the aggrieved person, the respondent or any conceren person, as the case may be.

In Poppatlal Shah v. State of Madras reported in AIR 1953 SC 274, the Supreme Court held that, it is settled rule of construction that to ascertain the legislative intent all the constituent parts of a statute are to be taken together and each word, phrase and sentence is to be considered in the light of the general purpose and object of the Act itself.


Interim order Ex-parte(Cl-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.

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.

∑ – X/1 = Ω


Affidavit: In M.Veerabhadra Rao v. Tek Chand reported in AIR 1985 SC 28, the Supreme Court explained the word, affidavit as follows:

The expression ‘affidavit’ has been commonly understood to mean a sworn statement in writing made especially under oath or on affirmation before an authorised Magistrate or officer. Affidavit has been defined in sub-cl. (3) of Sec. 3 of the General Clauses Act, 1897 to include ‘affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing.’ The essential ingredients of an affidavit are that the statements or declarations are made by the deponent relevant to the subject matter and in order to add sanctity to it, he swears or affirms the truth of the statements made in the presence of a person who in law is authorised either to administer oath or to accept the affirmation.

 Just: Judicial Dictionary – K.J.Aiyer:

Just. The term ‘just’ is derived from the Latin word justus. It has various meanings which are often governed by the context. The word ‘just’ may apply in nearly all of its senses, either to ethics of law, denoting something which is morally right and fair and sometimes that which is right and fair according to positive law. It cannotes reasonableness and something conforming to rectitude and justice, something equitable and fair. [Corpus Juris Secundum, Vol.50, p.1100]. Words and Phrases, West Publishing Co, Vol.23, p.438, the true meaning of the word ‘just’ states in these terms: ‘the word ‘just’ is derived from the Lain ‘justus’ which is from the Latin jus, which means a right and more technically, a legal right-a law. Thus ‘jus dicere’ was to pronounce the judgment to give the legal decision. The word ‘just’ is defined by the Century Dictionary as ‘right in law or ethics’, and in Standard Dictionary as ‘conforming to the requirements of right or of positive law’, and in Anderson’s Law Dictionary as ‘probable, reasonable’. Kinneys’s Law Dictionary defines the word ‘just’ as ‘fair, adequate, probable, reasonable’, and justa causa as ‘a just cause; lawful ground.’ [Bergman v. Kress 81 NYS 1072 (1073), 83 App Div.1].

Proper. Natural; suitably; correct; just; right; becoming. The word is also used in the sense of ‘own’.

The Law Lexicon – P.Ramanatha Aiyar:

Just. As an adjective fair; adequate; reasonable; probable; right in accordance with law and justice; right in law or ethics; rightful, legitimate, well founded; comformable to laws; conforming to the requirements of right or positive law; conformed to rules or principle of justice, 2 Bom. LR 845.

Application – The original application u/s 12 and not any second application apart from an affidavit.

Interpretation: In Visitor Amu v. K.S.Misra reported in 2007 (8) SCC 594, the Supreme Court held that, It is well settled principle of interpretation of the statute that it is incumbent upon the Court to avoid a construction, if reasonably permissible on the language, which will render a part of the statute devoid of any meaning or application. The Courts always presume that the legislature inserted every part thereof for a purpose and the legislative intent is that every of the statute should have effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. It is not a sound principle of construction to brush aside words in a statute as being in apposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute.

In Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., reported in (2008) 4 SCC 755, the Supreme Court, at Paragraphs 52, 54, 55 and 56, held as follows:

52. No doubt ordinarily the literal rule of interpretation should be followed, and hence the court should neither add nor delete words in a statute. However, in exceptional cases this can be done where not doing so would deprive certain existing words in a statute of all meaning, or some part of the statute may become absurd.

 Thus, in Surjit Singh Kalra v. Union of India [1991 (2) SCC 87] this Court has observed that sometimes courts can supply words which have been accidentally omitted.

In Satheedevi v. Prasanna reported in (2010) 5 SCC 622, the Supreme Court held as follows:

12. Before proceeding further, we may notice two well-recognised rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act.

The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately ariseKanai Lal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907]

Interpretation of Rules: In Keshav Chandra Joshi v. Union of India reported in AIR 1991 SC 284, the Supreme Court explained, as to how, the rules, which are legislative in character, to be interpreted. At Paragraph 3, it held as follows:

3. Since the rules are legislative in character, they must harmoniously be interpreted as a connected whole giving life and force to each word, phrase and rule and no part thereof should be rendered nugatory or a surplusage. Resort to iron out the creases could be had only when the construction of the relevant rule, phrase or word Would lead to unintended absurd results.

Three Doctrine same effect-It is no doubt true that the doctrine of Noscitur A Sociis, meaning thereby, that it is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them i.e. when two or more words which are susceptible of analogous meaning are clubbed together, they are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general is restricted to a sense analogous to a less general. The philosophy behind it is that the meaning of the doubtful words may be ascertained by reference to the meaning of words associated with it. This doctrine is broader than the doctrine of ejusdem generis. This doctrine was accepted by this Court in catena of cases but its application is to be made to the context and the setting in which the words came to be used or associated in the statute or the statutory rule. Equally the doctrine of contemporanea expositio is also being invoked to cull out the intendment by removing ambiguity in its understanding of the statute by the executive. This Court (sic) in a latest case Mitra Prakashan Pvt. Ltd. v. Collector of Customs, 1991 (51) ELT 111 (115, para 15) cited all the decisions up-to-date and applied the doctrine to the understanding by the revenue of the provisions in Income-tax Act. In Desh Bandhu Gupta v. Delhi Stock Exchange, (1979) 3 SCR 373, this Court held that this principle can be invoked, though the same will not always be decisive on the question of construction. But the contemporaneous construction placed by administrative or executive officers charged with executing the statute, although not controlling, is nevertheless entitled to considerable weight as highly pursuasive. We may also add that if the .interpretation is erroneous, court would without hesitation refuse to follow such construction. This Court also equally expressed the view that its application was in restricted sense to ancient legislation in J. K. Cotton Spinning and Weaving Mills Ltd. v. Union of India, (1987) Suppl. SCC 350; and in Doypack Systems Pvt. Ltd. case, (1988) 2 SCR 962 at page No. 1000 F to H. In State of Madhya Pradesh v. M/s. G. S. Dall and Flour Mills, (1992) 1 Suppl. SCC 150 at page No. 153, para 18, this Court doubted the application of the doctrine of contemporanea expositio as given to the construction or its applicability to a recent statute that too in the first few years of its enforcement. In this case also the question whether toilet soap is a household soap had arisen within a short period after the Amendment Act, 1964 came into force. Therefore, the understanding by the executive and its interpretation in bringing toilet soap in sub-item (2) “other sorts” instead of Item I “household” being of formative period of statutory operation the doctrine became inapplicable.

The Division Bench of the High Court culled-out the principles for the applicability of the rule of ejusdem generis from the judgments of this Court in Jage Ram v. State of Haryana, (1971) 1 SCC 671 and Amar Chandra Chakkraborty v. Collector of Customs, AIR 1972 SC 1863. Construing S.443 of the Act the High Court found that “theatre, circus, cinema house, dancing hall” have been specifically mentioned followed by the expression “other similar places of public resort, recreation or amusement” which are of general nature. Applying the principles of ejusdem generis, the Division Bench came to the conclusion that the general words are intended to have a restricted meaning in the sense that “other similar places” must fall within the class enumerated by the specific words [AIR 1995 SC 419 : (1994) 2 Suppl. SCR 23 : (1994) 5 SCC 690 : JT 1994 (4) SC 463 : (1994) 3 SCALE 456] Read more