No ex parte order on the basis of the affidavit in DV

IN THE COURT OF SH AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02: SOUTH EAST:SAKET COURT :NEW DELHI

IN RE: Criminal Appeal No. 03/11

ID No: 02406R022222011

Lt. Cdr Ritesh Suri
S/o Col. (Retd) S. M. Suri
R/o E826,Ground Floor Chhitranjan Park, Kalkaji
New Delhi 110019….. Appellant
VERSUS
1. Smt Lekha Chhabra
W/o Shri Ritesh Suri
D/o Sh K. L. Chhabra
R/o M2K Society,Aura House No. 117A, Ground Floor
Sector47,Gurgaon, Haryana
Also at:Cabin Crew Division Staff No (35646)
In Flight Service Department
Air India Complex, IGI Airport Terminal2
New Delhi 110037
Also at:CA No. 3/11 1/6
E4/90, Aera Colony,
Bhopal, Madhya Pradesh

2. The State NCT of Delhi….. Respondents.

Date of Institution : 02.02.2011
Date when the arguments
were heard. : 24.08.2011
Date of Judgment : 29.08.2011

JUDGMENT

This Appeal under section 29 of Protection of Women from Domestic Violence Act 2005 has been filed against the ex parte interim order dated 13.12.2010 whereby the appellant has been restrained to contact or communicate in any manner, whatsoever, with the complainant.

2. The impugned order has been challenged by the appellant Lt. Cdr Ritesh Suri feeling aggrieved by the order, on the grounds, inter alia, that he was not heard or given opportunity to be heard before passing this exparte interim order. Appellant has claimed that this order has caused grave prejudice to him. In the Appeal he has given his version of the incidents mentioned in complaint and the reasons why he and his wife,omplainant Lekha Chhabra are having present strained relations. On the legal aspect reliance has been placed on Bhupender Singh Mehra & Anr Vs. State NCT of Delhi & Anr. 2010 (4) JCC 2929 and S.Vishwanathan Vs. Pushpa I (2011) DMC 669 in which the court was of the opinion that the exparte order cannot be passed without notice to other party and the Magistrate has to take into consideration the Domestic Incident Report before exercising any jurisdiction and passing any order under section 12 of the Act.

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3. Notice of the petition was given to the respondent/complainant Lekha Chhabra who marked appearance along with Counsel. Arguments heard. Trial Court Record was called and perused.

4. The only question in the present Appeal is with regard to the scope of section 23 of the Protection of Women from Domestic Violence Act 2005 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.
Thus, the Magistrate has been empowered to pass an interim order as is deemed just and proper and such interim order can also be passed ex parte on the basis of the affidavit in the form as prescribed.

5. Ld. Counsel for the appellant had argued that the
allegations leveled in the complaint were not supported by any material and it was necessary for Magistrate to obtain the domestic incident report or first issue notice to the appellant herein before passing any such interim order. On the contrary, Ld. Counsel for the respondent has argued that the purpose of section 23 in the Act is to cater to the urgent needs of a woman who has suffered domestic violence and there may be circumstances when the delay caused by issuing notice or by awaiting Domestic Incident Report would cause grave injustice to an “aggrieved woman”. His argument was that section 23 of the Act empowers a Magistrate to pass interim order and these interim orders can also be exparte.

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6. When the Magistrate has been vested with vast power of issuing exparte
interim order, then the Magistrate has to be more cautious
while passing such interim ex parte order. Such order must be passed
judiciously after taking into account the entire facts of the case and not
merely on the basis of simple averments made in the complaint or in the
affidavit. Since the relief which is granted under section 23 of the Act is an
extra ordinary relief, therefore, there has to be some extra ordinary
circumstance before the court to pass such an order. The impugned order
dated 13.12.2010 would show that the Ld. Magistrate has mentioned about
the ex parte interim relief sought by the complainant therein and the Ld.
Magistrate keeping in view the apprehension of the complainant was
satisfied that “sufficient grounds are made out for granting ex parte
interim order”. This ex parte order was restraining the appellant not to
contact or communicate in any manner, whatsoever, with the
respondent/complainant Lekha Chhabra. The perusal of the complaint
would show that the complainant has left her matrimonial home on
02.05.2010 and thereafter she alleges that the appellant herein has been
threatening her not to go to the police. He visits her office and abuses her,
he also make false complaints to the complainant’s superior officers so as
to cause discomfort to complainant. These are simple averments in the
complaint. Neither any date, when she was physically assaulted in the
office nor any complaint has been shown whereby the appellant has
complained to the superior officers of the respondent. The allegations are
simple allegations without being supported by specific dates and the
documents. The truth or falsity of the averments in the complaint would
be difficult to ascertain without any supporting material in the complaint.
When there was no specific date of incidents nor any type of proof on the
record to show that the appellant had tried to make contact with the
respondent/complainant or had abused or assaulted her or had made any
complaint against the complainant to her superior officers, there was no
“sufficiency of grounds” to grant such an extra ordinary relief at the initial
stage. The power vested by the law to the Magistrate has to be exercised
with restraint without forgetting basic principle of natural justice.
Therefore, in the facts and circumstances of the case the order dated
13.12.2010 is being set aside with the direction that any order under
section 23 of the Act may be passed by the Magistrate after hearing
the appellant without being influenced by any observation made
herein. Appeal, therefore, stands allowed. Copy of judgment be sent
to the Trial Court along with the Trial Court Record. Appeal file be consigned to Record Room.
Announced in the open court

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(AJAY KUMAR KUHAR)
on 29th August 2011 ASJ02/
SE/ SAKET COURT
NEW DELHI
CA No. 3/11 6/6

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