Magistrate has power to set aside an ex-parte order under the Domestic Violence Act

advtanmoy 13/09/2023 3
Print Friendly, PDF & Email

The court has the power to set aside an ex-parte order Under Rule 7 Order IX and ex-parte judgment Under Rule 13 Order IX CPC on sufficient cause and similarly, in section 126 (2), an ex-parte order may be recalled by the Ld. MM

Print Friendly, PDF & Email

Section 28 (2) of the PWDV, Act is an enabling provision and has granted wide powers to the Ld. MM for laying down its own procedure for disposal of any application under section 121 or under sub-section (2) of section 23. Section 36 of this Act has laid down that the provisions of this Act are in addition to, and not in derogation of the provisions of any other law, for the time being in force. Even the rule of service of the summons under section 7/11/ 13 of the Act is subject to the provisions under Order V of the Civil Procedure Code, 1908, or the provisions under Chapter VI of the Code of Criminal Procedure, 1973. The consequences of non-appearance after service under Order V of the CPC, or Chapter VI of the Cr.PC shall follow, which may be the passing of an ex-parte order/judgment. Even the enforcement of interim order is also according to the provisions of section 125 / 126 of CrPC, as prescribed by Rule 6 under PWDV Rules, 2006 that applications under section 12 shall be dealt with and orders passed thereon shall be executable in the same manner as laid down by section 125 of CrPC. All the above-said sections made it clear that the Ld. Trial Court was not precluded from taking aid of the other provisions under CrPC or CPC to interpret the provisions of this Act.

Section 28 (2) of PWDV, Act came into interpretation before The Hon’ble High Court of Uttrakhand in a case titled Nirmal Jeet Kaur Versus State of Uttrakhand [(2012) SCC Online Uttrakhand 3356], in which, it was observed that the proceeding under this Act is not trial of an offence and rather proceedings are quasi civil in nature like section 125 of Cr.PC. The court has the power to set aside an ex-parte order2 Under Rule 7 Order IX and ex-parte judgment Under Rule 13 Order IX CPC on sufficient cause and similarly, in section 126 (2), an ex-parte order may be recalled by the Ld. MM, so it cannot be said that this power cannot be exercised by Ld. MM under section 28 (2) for setting aside of any order under section 28 (2) or otherwise. This interpretation of the section made it clear that the provisions of CPC may be made applicable to the proceedings under this Act.

Section 28 (2) of DV Act again came into interpretation before the Hon’ble High Court of Delhi while dealing with the review power of the court in the case titled Himani Maini v. Chirag Maini, 2018 SCC OnLine Del 10566 and the relevant observation is as under:

She consequently was advised to approach the Court of Metropolitan Magistrate again to pursue her remedies under the Protection of Women from Domestic Violence Act, 2005. In the above chronology of events, her grievances against the respondent in the period after the settlement will have to be seen, examined, construed and adjudicated upon in the light of the past alleged conduct. There is undoubtedly a continuity of events involved. Since the law, by virtue of Section 28(2), permitted the Metropolitan Magistrate to lay down “own procedure”3, the view taken by the said court by order dated 10.04.2015 leading to the revival of the proceedings in the Domestic Violence case earlier filed cannot be faulted. The opinion on the basis of which the revisional court set the said order at naught seems to be hyper-technical and, therefore, liable to be set aside.

Footnotes

  1. Section 12 in The Protection of Women from Domestic Violence Act, 2005

    Application to Magistrate.—

    (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
    (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after s uch set off.
    (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
    (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
    (5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing. ↩︎
  2. 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. ↩︎
  3. Section 28 in The Protection of Women from Domestic Violence Act, 2005
    Procedure.—
    (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
    (2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23. ↩︎

Home › Forums › Magistrate has power to set aside an ex-parte order under the Domestic Violence Act

Tagged: 

Log In Register Lost Password
Viewing 3 reply threads
  • Author
    Posts
    • 13/09/2023 at 23:49 #233012
      advtanmoy
      Keymaster

      The court has the power to set aside an ex-parte order Under Rule 7 Order IX and ex-parte judgment Under Rule 13 Order IX CPC on sufficient cause and similarly, in section 126 (2), an ex-parte order may be recalled by the Ld. MM

      [See the full post at: Magistrate has power to set aside an ex-parte order under the Domestic Violence Act]

    • 14/09/2023 at 00:01 #233019
      advtanmoy
      Keymaster

      A Magistrate exercising jurisdiction under the D.V. Act is not a Criminal Court

      A Magistrate exercising jurisdiction under the D.V. Act is not a Criminal Court within the meaning of Section 6 of the Cr.P.C. Placing reliance on the decision of the Supreme Court in Sujith Kumar Rana, supra, it was observed that the power under Section 482 Cr.P.C. can be exercised only in relation to a proceeding before a Criminal Court; as the Magistrate under the D.V. Act was not a Criminal Court, a petition under Section 482 Cr.P.C. was not maintainable to quash an application filed under Section 12 of the D.V. Act.

    • 14/09/2023 at 00:05 #233020
      advtanmoy
      Keymaster

      Jurisdiction Meaning

      The word “jurisdiction” relates to the power of the Court to decide a class or classes of cases. The import of the expression has been considered by the Supreme Court in Nusli Neville Wadia v Ivory Properties (21 (2020) 6 SCC), wherein, it was observed as under:

      “The word “jurisdiction” is derived from Latin words “juris” and “dico”, meaning “I speak by the law” and does not relate to rights of parties as between each other but to the power of the court. Jurisdiction relates to a class of cases to which a particular case belongs. Jurisdiction is the authority by which a judicial officer takes cognizance and decides the cases. It only presupposes the existence of a duly constituted court having control over subject matter which comes within classification limits of the law under which the court has been established. It should have control over the parties’ litigant, control over the parties’ territory, it may also relate to pecuniary as well as the nature of the class of cases.

      Jurisdiction is generally understood as the authority to decide, render a judgment, inquire into the facts, to apply the law, and to pronounce a judgment. When there is the want of general power to act, the court has no jurisdiction. When the court has the power to inquire into the facts, apply the law, render binding judgment, and enforce it, the court has jurisdiction.

      Judgment within a jurisdiction has to be immune from collateral attack on the ground of nullity. It has a co-relation with the constitutional and statutory power of tribunal or court to hear.

    • 14/09/2023 at 00:15 #233021
      advtanmoy
      Keymaster

      In a divorce petition on the grounds of cruelty in Family Court, the wife can seek reliefs under Sections 18-22 r/w Sec 26 of the D.V. Act.

      The legislative scheme of the D.V. Act clearly envisages two independent proceedings: proceedings before the Magistrate under Section 12 of the D.V. Act and “proceedings before a Civil Court, Family Court or a Criminal Court, as mentioned in Section 26 of the D.V. Act” (vide paragraphs 140 & 144 of Satish Chander Ahuja,).

      ii. Section 26 deals with “reliefs” in “other suits and proceedings” and does not concern itself with Section 12 of the D.V. Act at all. Section 26 is an enabling provision where reliefs provided in Sections 18-22 of the D.V. Act may be sought in a “legal proceeding” pending before a Civil Court, Family Court or Criminal Court.

      iii. Similarly, such reliefs can be prayed for as part of other reliefs in collateral proceedings before a Family Court/Civil Court/Criminal Court.

      The following illustrations will give clarity:

      i. The wife files a divorce petition on the ground of cruelty in the Family Court. In the same petition, she can seek reliefs under Sections 18-22 r/w Section 26 of the D.V. Act.

      ii. The husband files a petition for restitution of conjugal rights in the Sub Court. The wife can file a counter-resisting the prayer and also seeking relief under Sections 18-22 r/w Section 26 of the D.V. Act.

      In the above two illustrations, the Family Court/Sub Court is not governed by the Code of Criminal Procedure. The enquiry for the reliefs claimed under the D.V. Act will be held under the procedure that applies to the Family Court or Sub Court, as the case may be. The appeals from these Courts will be to the usual forum, viz., under Section 19 of the Family Courts Act or under Section 96 read with Order XLI, C.P.C., as the case may be.

      iv. Section 27 of the D.V. Act is the sole repository of jurisdiction for an application under Section 12, ibid., and the Magistrate is the statutorily designated forum to entertain an application under Section 12, ibid., and also to try offences under the D.V. Act.

      v. The power of transfer postulates that the Court to which transfer or withdrawal is sought, is competent to exercise jurisdiction over the case. vi. No power has been vested with the Family Court, either under the D.V. Act or the Family Courts Act, 1984, to entertain an application under Section 12 of the D.V. Act. Similarly, no power has been vested with the Civil Court to entertain an application under Section 12 of the D.V. Act.

  • Author
    Posts
Log In Register Lost Password
Viewing 3 reply threads
  • You must be logged in to reply to this topic.

Next Post

The court like any other institution does not enjoy immunity from fair criticism

Thu Sep 14 , 2023
The judiciary is the bedrock and handmaid of democracy. If people lose faith in justice parted by a Court of law, the entire democratic setup would crumble down. In this background, observations of Lord Denning M.R. in Metropolitan Properties Ltd. v. Lennon (1968) 3 All E.R. 304 are relevant: "Justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking - the Judge is based."
justice

You May Like

  • A judge is the pillar of entire justice system and public has a right to demand virtually irreproachable conduct from a judge (SC-10/12/2019) - A person discharging judicial duties acts on behalf of the State in discharge of its sovereign functions. Dispensation of justice is not only an onerous duty but has been considered as akin to discharge of a pious duty, and therefore, is a very serious matter. The standards of probity, conduct, integrity that may be relevant for discharge of duties by a careerist in another job cannot be the same for a judicial officer. A judge holds the office of a public trust. Impeccable integrity, unimpeachable independence with moral values embodied to the core are absolute imperatives which brooks no compromise. A judge is the pillar of the entire justice system and the public has a right to demand virtually irreproachable conduct from anyone performing a judicial function. Judges must strive for the highest standards of integrity in both their professional and personal lives.
  • A daughter has no right u/s 14 of Hindu Succession Act of her father’s property if it is occupied by her brother through adverse possession (SC-28/08/2023) - A Hindu daughter has no right u/s 14 of Hindu Succession Act on the property of her father if it is occupied by her brother through adverse possession (SC-28/08/2023)- [See Pritam Singh v. State, AIR (1950) SC 169: (1950) SCR 453, Hem Raj v. State of Ajmer AIR (1954) SC 462: (1954) SCR 1133, Bengal Chemical & Pharmaceutical Works Ltd. v. Employees, AIR (1959) SC 633: 1959 Supp (2) SCR 136: (1959) 1 LLJ 413, Municipal Board, Pratabgarh and Anr. v. Mahendra Singh Chawla and Ors. (1982) 3 SCC 331: (1983) SCC (L&S) 19, Taherakhatoon (dead) by LRs v. Salambin Mohammad (1999) 2 SCC 635]

Jurisprudence

Recent Updates

%d bloggers like this: