EX PARTE ORDERS UNDER PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

Magistrate has been empowered to pass ex parte orders under Section 23 of the Protection of Women from Domestic Violence Act, 2005.

23. Power to grant interim and ex parte orders – (1) In any proceedings 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 likelyhood that the Respodent 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.

The magistrate under Section 23(1) is empowered to pass interim orders in any proceedings pending before him. The magistrate under Section 23 (2) can also pass ex parte order under Section 18, 19, Section 20, Section 21 and Section 22 of the Act.

High Court of Bobmay in Abhijit Bhikaseth Auti vs. State of Maharashtra and Ors. ; 2009CriLJ889 while discussing on scope of Section 23(1) and (2) of the Act has observed as under:

15. There was some debate before this Court as regards the spheres in which Sub-section (1) and Sub-section (2) of Section 23 operate. A contention was sought to be raised by the learned Counsel appearing for the 2nd respondent that power under Sub-section (2) is confined to granting interim reliefs under Sections 18 to 22 of the said Act and the power under Sub-section (1) is a larger power which extends to grant of any interim order as the learned Magistrate deems it just and proper which may not be covered even by any of the Sections 18 to 22. On plain reading of Section 23, the legal position appears to be different. This Court has already held that when an aggrieved person desires to claim any interim relief under Section 23 of the said Act, it is not necessary for the aggrieved person to take out a separate application for interim relief and the only requirement of law is that an affidavit in prescribed Form HI of the said Rules has to be filed by the aggrieved person. Sub-section (2) provides that when such an affidavit is filed in the prescribed form by the aggrieved person and if the application under Section 12(1) of the said Act prima facie discloses that the respondent thereto 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, the learned Magistrate may grant ex parte order under Sections 18, 19, 20, 21 or as the case may be under Section 22 against the respondent. Thus, Sub-section (2) of Section 23 confers a power on the Magistrate to grant an ex parte ad interim relief. The said ex parte ad interim relief can be granted in terms of reliefs under Section 18 to Section 22 of the said Act. Sub-section (1) deals with grant of an interim relief or interim order. Thus, the scheme of the Section 23 appears to be that under Sub-section (2) on the basis of an affidavit, an ex parte ad interim order without prior notice to the respondent can be passed by the learned Magistrate in terms of Sections 18, 19, 20, 21 or 22 of the said Act against the respondent. Sub-section (1) provides for passing an interim order which is to operate till the final disposal of the main application under Sub-section (1) of Section 12 or till the same is modified earlier. Though a separate application is not necessary to be made for grant of interim relief, principles of natural justice require that before granting interim relief in terms of Sub-section (1) of Section 23, the respondent in the main application will have to be heard. Therefore, before granting interim relief under Sub-section (1) of Section 23, a notice will have to be served to the respondent. It is well settled position of law that an interim relief can be granted only in the aid of final relief which can be granted in the main proceedings. In the case of proceedings under Sub-section (1) of Section 12 of the said Act, the learned Magistrate can pass final orders covered by Sections 18, 19, 20, 21 or 22 of the said Act and therefore it is obvious that interim order which can be granted under Sub-section (1) of Section 23 can be only in terms of reliefs provided for in Sections 18 to 22 of the said Act. Under Sub-section (1) of Section 23 a relief which is not covered by any of the Sections 18 to 22 of the said Act cannot be granted. Thus in short, the power under Sub-section (2) of Section 23 is of grant of an ex parte ad interim relief in terms of Sections 18 to 22 of the said Act and the power under Sub-section (1) is of grant of interim relief pending final disposal of the main application under Section 12(1) of the said Act.

The magistrate can pass interim maintenance under Section 23 any time during pendency of proceedings. The Magistrate may grant maintenance since filing of Application under Section 12 of this Act. The Delhi High Court has observed in Gaurav Manchanda vs. Namrata Singh; CRL. REV. P. 343/2018 as under:

15. I also do not find any merit in the arguments of learned counsel for the petitioner that maintenance could not have been awarded from the date prior to the date of filing of application under Section 23 of the DV Act. In the application filed under Section 12 of the DV Act, respondent has specifically stated that the petition under Section 12 is to be read with Section 19, 20 and 23 of the DV Act and she has specifically claimed maintenance from the petitioner.

16. Section 23 of the DV Act does not provide a substantive right to parties but is a provision which empowers the trial court to pass an order granting interim maintenance in a petition filed under Section 12 of the DV Act. Merely because the trial court has not exercised the power under Section 23 of the DV Act, when a substantive petition under Section 12 of DV Act was filed and chose to pass an order only when a separate application under Section 23 of the DV Act was filed, does not mean that a Magistrate does not have the power to pass an order with effect from the date of filing of the substantive petition under Section 12 , which in this case had also been filed read with Section 23 of the DV Act and also claimed maintenance.

EX PARTE ORDERS

The magistrate can pass ex parte order, if an affidavit has been filed by the aggrieved person and it prima facie shows that there is likelihood that respondent has committed an act of violence or the respondent may commit an act of domestic violence. Such ex parte orders can be passed by the magistrate in respect of protection orders under Section 18, residence orders under Section 19, monetary reliefs under Section 20, custody orders under Section 21 and compensation orders under Section 22. It is pertinent to mention that such ex parte order can only be granted by the magistrate based on the affidavit submitted by the aggrieved person.

Details of the affidavit for obtaining ex parte order have been given under Rule 7 of the Protection of Women from Domestic Violence Rules, 2006.

7. Affidavit for obtaining ex parte order of Magistrate: Every affidavit for obtaining ex parte order under sub-section (2) of section 23 shall be filed in Form III.

It is within the discretion of the magistrate to pass ex parte order under Section 23 (2) of this Act without serving notice to the respondent. Ex parte order can be passed based on affidavit filed by the aggrieved person. But such discretion has to be discharged in those cases where urgent orders are warranted. Such orders should be passed with due care and caution. But once notice is served on the respondent, then based on his objections, such order can be modified, altered or revoked and made absolute. The Kerala High Court has an opportunity to examine this issue in detail in Dr. Preceline George vs.State of Kerala; ILR2010(1)Kerala663 wherein the Hon‘ble High Court has observed as under:

18. Though learned Counsel relying on Sub-rule (3) of Rule 12, argued that even such an ex parte order could be passed only after service of notice on the respondents and on his failure to appear and not prior to service of notice, I cannot agree with the submission. Sub-rule (3) of Rule 12 only provides that on a statement, on the date fixed for appearance of the respondent, or on a report of the person authorized to serve the notices under the Act that service has been effected, appropriate orders shall be passed by the court, on any pending application for interim relief, after hearing the complainant or the respondent, or both. That order could only be the final interim order, passed under Section 23(1) and not the ad interim order passed under Section 23(2) of the Act. It is absolutely clear from Form III, affidavit to be filed to get an interim relief under Section 23(2) of the Act. Para. 10 of Form III reads:

10. That the reliefs claimed in the accompanying application are urgent in as much as the applicant would face great financial hardship and would be forced to live under threat of repetition/escalation of acts of domestic violence complained of in the accompanying application by the respondent(s), if the said reliefs are not granted on an ex-parte ad interim basis.

It is thus clear that an interim ex parte order in favour of the aggrieved person and against the respondents could be passed, before notice to the respondent. But even if such an ex parte ad interim order is passed, a final order under Section 23(1) is to be passed only after service of notice on the respondent. Till then it could only be an ad interim order. If the respondent fails to appear after service of notice, then a final order under Section 23(1) modifying, revoking, or altering the ad interim order could be passed, ex parte as provided under Rule 12(3). Rule 12(3) of the Rules, is to be taken as the procedure to be followed, while passing a final order under Section 23(1) and not an ad interim order to be passed under Section 23(2).

19. For the reason that a Magistrate is empowered to pass ad interim order under Section 23(2) ex parte, it cannot be said that Magistrate has to pass ex parte ad interim order granting reliefs under Sections 18, 19, 20, 21 or 22 in all cases. It is seen from several orders challenged before this Court that indiscriminate interim ex parte orders are passed under Section 23(2) of the Act compelling the parties to approach the Appellate Court, by recourse to Section 29 of the Act by way of appeal. While passing ex parte ad interim orders, Magistrates shall take the necessary care and caution. If an interim order need be passed only after service of notice, as no urgent relief without notice need be passed, there is no justification in passing an ex parte ad interim order before serving notice on the respondent. On the other hand, if an ad interim order is to be passed immediately, and any delay is prejudicial, then Sub-section (2) of Section 23 enables the Magistrate to pass an ad interim order, without notice to the respondent. Even if such ad interim order is passed without service of notice, on appearance of the respondent a final interim order is to be passed under Section 23(1) with or without modification. Even if the respondent does not appear on service of notice, the Magistrate shall pass an interim final order Section 23(1) ex parte, with or without modification of the ex parte ad interim order. If an ad interim order under Sub-section (2) of Section 23 is passed without notice to the respondents, and no opportunity is granted to the respondents after service of notice to pass the final interim relief under Section 23(1) respondents will be unnecessarily compelled to file an appeal as provided under Section 29. Even the relief provided under Sub-section (2) of Section 25 will not serve the purpose as that section would be attracted only if there is a change in the circumstances. What is to be considered while passing an order under Section 23(1) is whether the aggrieved person is entitled to an interim order either under Sections 18, 19, 20, 21 or 22. The Magistrates shall be careful while passing ad interim orders without notice under Sub-section (2) of Section 23. It is made clear that even without issuing notice to the respondent in appropriate cases, ad interim order under Sub-section (2) could be passed. But that order is to be made absolute with or without modification, after serving notice on the respondent. If the respondent does not appear, then an ex parte order as provided under Rule 12(3) is to be passed under Section 23(1). If respondent appears and objects, after hearing the respondent, appropriate order is to be passed as provided under Section 23(1). The order passed under Sub-section (2) would only be of ad interim in nature.

In the light of the earlier findings the following guidelines could be laid down to be followed by the Trial Courts dealing with the applications filed under the Act.

(i) Notice of the application filed under Section 12 of the Act shall be served as provided in Section 13, complying the procedure laid down in Rule 12 of Protection of Women from Domestic Violence Rules.

(ii) The notice is to be send in Form VII as prescribed under the Rules.

(iii) The notice to be served on the respondent shall be accompanied by copy of application filed under Sections 12 and 23 if any.

(iv) The Magistrate can pass interim order under Section 23(1) ex parte. But that ex parte order could be passed only after service of notice as provided under Rule 12(3) of the Rules.

(v) The Magistrate can pass an ex parte ad interim order without notice to the respondent, as provided under Section 23(2).

(vi) In case an ex parte ad interim order is passed without notice, or service of notice on the respondent, on his appearance, after granting an opportunity to the respondent to object the claim and on hearing the applicant and the respondent, a final interim order under Section 23(1) is to be passed with or without modification of the ad interim order.

(vii) If on service of notice, the respondent fails to appear, Magistrate is to pass a final ex parte interim order under Section 23(1) with or without modification of the ad interim order.

(viii) Magistrates shall bestow care and caution in granting ad interim ex parte order under Section 23(2). Such relief is to be granted only if urgent orders are warranted on the facts and circumstances of the case and delay would defeat the purpose or where an interim orders is absolutely necessary either to protect the aggrieved person or to prevent any domestic violence or to preserve the then existing position.

If any ex parte interim order has been passed, then a copy of such order has to be served to the Respondent. The Kerala High Court has observed in Dr.Preceline George (supra) as under

13. As is clear from the statement of objects and reasons, the Protection of Women from Domestic Violence Act is enacted to provide for a remedy under the civil law, which is intended to protect the women from being the victims of domestic violence and to prevent the occurrence of domestic violence in the society. Therefore essentially the reliefs provided under the Act are civil remedies. The penal provisions are only Section 31 and 33. Therefore service of notice on an application filed under Section 12 or interim relief under Section 23, must be in the manner provided under the Code of Civil Procedure.

14. Order V of Code of Civil Procedure provides for issue of service of summons. Sub-rule (1) provides that when a suit has been duly instituted, summons may be issued to the defendant, to appear and answer the claim and to file the written statement of his defence, within thirty days from the date of service of summons on the defendant. Sub-rule (2) provides that every summons shall be accompanied by a copy of the plaint. Under Clause (c) of Sub-rule (2) of Rule 12 of the Protection of Women from Domestic Violence Rules, for serving notice under Section 13 of the Act, the provisions of Order V of Code of Civil Procedure is made applicable. Necessarily it is to be taken that as provided under Rule 2 of Order V of Code of Criminal Procedure, along with the notice, copy of the application filed under Section 12 is also to be served on the respondent. Similarly if an interim ex parte order is passed under Section 23(2) or a notice is issued to the respondent on a petition filed under Section 23(1), along with that notice copy of the application so filed shall also be served on the respondent. Notice is to be served on the respondent, on an application filed under Section 12 or a petition filed for interim order under Section 23(1) of the Act, to enable the respondent to defend the claim so raised against him. If so interest of natural justice, apart from the provision of Rule 12 of the Rules, warrants that copy of the application shall be served on the respondent. As it is reported that there is no uniform practice followed by all the courts, all the Magistrates dealing with the application under the Act shall, hereafter sent a copy of the petition filed under Section 12 and a copy of the petition if any filed under Section 23(1) of the Act, along with the notice and interim orders, as provided under Section 13 of the Act, to be served on the respondents.

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