Thursday 4 April 2013

Procedure to be followed by Magistrate in Domestic violence Act


 As such setting aside of 
ex-parte order by the Magistrate under the 
Protection of Women from Domestic Violence 
Act-2005 cannot be said to be arbitrary or against 
the basic principles of judicial procedure, 
particularly when sub- Section (2) of sub-Section 
28 of the Act, provides that nothing in subSection (1) shall prevent the Court from laying 
down its own procedure for disposal of an 
application under Section 12 or sub-Section (2) 
of Section 23. 

Citation;2013(1)Crimes 352(Uttarkhand)
IN THE HIGH COURT OF UTTARAKHAND AT 
NAINITAL 
CRIMINAL MISC. APPLICATION No. 833 of 2010 
(Under Section 482 of Cr.P.C.) 
Nirmal Jeet Kaur W/o Shri Trilok Singh R/o Ram Nivas 

Versus 
 1. State of Uttarakhand,
Hon’ble Prafulla C. Pant, J. 
 Decided on ;16-8 2012

(2) By means of this petition moved under 
Section 482 of Cr.P.C., the petitioner has sought
quashing of the order dated 28.05.2010 passed by 
Additional Chief Judicial Magistrate II, Dehradun 
in Case no. 201 of 2010, whereby said court 
allowed an application 18-A moved by the 
respondent no. 2 and 3, and set aside ex-parte 
order dated 16.02.2010 on payment of costs of ` 
1,500/- to the petitioner. The petitioner has 
further challenged before this Court order dated 
28.08.2010 passed by the appellate Court 
(Additional District Judge IV at Dehradun) in 
Criminal Appeal No. 45 of 2010, whereby said 
Court has afirmed the order passed by the 
Additional Chief Judicial Magistrate on 
28.05.2010. 
(3) Brief facts of the Case are that the petitioner 
Nirmal Jeet Kaur got married to the respondent 
no. 2, Trilok Singh on 23.12.2005, and a son 
Master Harpreet SinghWalia @ Paras born out of 
the wedlock on 29.11.2007. Thereafter it appears 
that relations between the parties to matrimony 
got soured and the petitioner Nirmal Jeet Kaur 
moved an application under Section 12 read with 
Section 18, 19, 20, & 21 of Protection of Women 
from Domestic Violence Act-2005. In said Case 
learned Additional Chief Judicial Magistrate II 
Dehradun on reciept of report of Protection 
Officer relating to alleged cruelty, as an interim 
measure directed the respondent no. 2 Trilok 
Singh (Husband) and respondent no. 3 Niranjan 
Kaur (Mother-in-law of the petitioner) not to oust 
them from the house situated at Ram Nivas, 
Majara Opposite Hilton School,within the limits 
of Police Station Patel Nagar, Dehradun, till the 
pendency of the case. Said order was an ex-parte 
order. Thereafter the respondnents put up their 
appearance and moved an application on 18-A for 
setting aside ex-parte order dated 16.02.2010, and 
hear to matter on merits, with the pleading that 
the respondents had no knowledge of proceedings 
till 17.02.2012. The petitioner filed objection 26-
C before trial Court against said application and 
after hearing the parties, the trial Court allowed 
application 18-A and set aside order dated 
16.02.2010 on payment costs of ` 1,500/- to the 
petitioner. Agrieved by said order the petitioner 
filed Criminal Appeal, which is dismissed by 
learned Additional District Judge IV, Dehradun 
vide impugned order dated 28.08.2010. Hence 
this petition. 
(4) Learned counsel for the petitioner argued 
before this court that the Magistrate erred in law 
in setting aside ex-parte interim order as there 
was no such power with him under the Protection 
of Women from Domestic Violence Act-2005. It 
is further contended that the ex-parte interim 
order, passed on 16.02.2010 was in consonance 
of Section 23 of the Act which empowers of the 
Magistrate to pass to grant interim an ex-parte 
orders. 
(5) On the other hand, in reply to above, learned 
respondent no.2 & 3 drew attention of this Court 
to sub-Section (2), of Section 28 Protection Of 
Women From Domestic Violence Act 2005, 
which reads as under: 
Nothing in Sub-Section (1) shall prevent the 
Court from laying dwon its own procedure for 
disposal of an application under Section 12 or 
under Section Sub Section (23).
(6) As to the procdure of the proceeding under 
Protection Of Women From Domestic Violence 
Act-2005 sub-Section (1) of sub-Section (28) 
provides that save as otherwise provided in the 
Act of proceeding under Section 12, 18, 19, 20, 
21, 22, & 23 and under Section 31 shall be 
governed by the provision of Code of Criminal 
Procedure 1973. 
(7) The question, before Court, is that whether 
in the light of expression " its own procedure for 
proposal of an application", can the Magistrate 
recall its order passed under Section 23 or not. 
Certainly said expression does not give the 
Magistrate power to pass arbitrary orders or to 
pass such an order which is against the known 
basic principles of judicial procedure. In the 
opinion of this Court what aforsaid expression 
authorities the Magistrate is that he can pass such 
an order which are in consonance of the basic 
principles of judicial procedure. It is pertinant the 
mention here that proceeding based on an 
application under Section 12, the Protection Of 
Women From Domestic Violence Act-2005 are 
not the proceeding of trial of an offence. Rather 
such proceedings are quasi civil in nature, like 
the one under Section 125 of Cr.P.C. If we look in 
the Code of Civil Procedure 1908, we find that 
there is provision under rule 7 of Order IX of the
Code which empwers of the Court to set aside the 
order directing to proceed ex-parte. Under rule 13 
of Order IX of the code trial courts have powers 
to set aside the ex-parte decree on suffecient 
cause being shown by the defedant. Similarily 
under the Code Criminal Procedure 1973, in 
respect of proceedings under Section 125 of 
Cr.P.C., there is proviso to sub-Section (2) of 
Section 126 which empowers the Magistrate to 
recall an ex-parte order. As such setting aside of 
ex-parte order by the Magistrate under the 
Protection of Women from Domestic Violence 
Act-2005 cannot be said to be arbitrary or against 
the basic principles of judicial procedure, 
particularly when sub- Section (2) of sub-Section 
28 of the Act, provides that nothing in subSection (1) shall prevent the Court from laying 
down its own procedure for disposal of an 
application under Section 12 or sub-Section (2) 
of Section 23. 
(8) Therefore, in the light of the above 
discussion this court is not inclined to interfere 
with the impugned orders passed by the Courts 
below. Accordingly, the petition under Section 7 
482 Cr.P.C. is dismissed with the observation that 
the petitioner shall not be evicted from 
matrimonial house mentioned in order dated 
16.02.2010, till the interim application moved by 
the petitioner is decided on merits by the 
Magistrate in pursuance of order dated 
28.05.2010. It is, further observed that interim 
application shall be decided in the spirit 
contained in sub-Section (5) of Section 12 of the 
Act, expeditiously. 
(Prafulla C. Pant, J.)
16.08.2012 
Anand 

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