Interim relief under DV Act cannot be granted without conducting inquiry

Karnataka High Court

Case Number: CRL.RP 815/2009
Judge(s): JAWAD RAHIM

Petitioners: KRISHNAMURTHY NOOKULA

Respondents: SAVITHA Y

Date of Judgment: 9-Dec-2009

Bench: Bangalore

ORDER

This revision petition is by the husband against the order dated 5.1.2008 in Crl.Mis.No.435/2007 passed under Sections 20 and 22 of the Protection of Domestic Violence Act, 2005.

2. The petition is listed for admission,after the respondent In response to which,learned Counsel has represented her;in Considerinng legal issues that arise for consideration, the petitioner admitted and taken up for final disposal.

The relevant for consideration
are SmtiSavitha the respondent herein filed a petition
compIaisning of dom”estic violence against the revision
“along with the petition filed an LA under
and 22 of the said Act for grant of interim
reliefonA3 the premise that she was married to the petitioner
” Aaccuording to the Hindu rites and customs of their
community and in this regard, the petitioner had
compelled and received from her and her parents dowry
Despite incurring of huge expenses for marriage and
presentation of gold ornaments to the extent of Rs5 lakhs,
the petitioner was not satisfied and extracted Rs1 lakh as
dowry and further demanded additional amount of Rs
lakh as dowry As it was not possible for her and her
parents to succumb to such demands, he
physically and mentally making her
However, out of the wedlock, two”children,are i ovrn 7that A
also did not solve the problem totallly depiiessed,
due to such acts of the petitioner “She and heérlllchlildrenll
were rendered destitutes an,oi”are,jdependents”onher family
members Since the conductofthei” ;etitiVoner showed no
material sch avnge ,i 3she,chose””to file a petition before the
jurisdictional relief under the provisions of
the Protectyion of Women from Domestic Violence Act
, (hVea*;einafter refea redto as the Act, for brevity)
presentation of such petition and IA, the
learlnedvjurisdictional Magistrate issued prior notice and
summoned the respondent Respondent therein is the
petitioner in this case He entered appearance and filed
counter affidavit against the application denying all the
allegations of torture or domestic violence or that he had
income of more than Rs1 lakh and that he had
defend against the interim order directing him to pay
maintenance;

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ii) Non grant of opportunity has deprivedh i in the
benefit of placing such material which is avail aVb|e irii7i hT
to substantiate that he had a good, case as”or{thé”datev,gf”
passing of the order;
iii) The interim order”iis”a,rbitrary, Linjust¥and”against L
the procedure prescribed Criminai
Procedure;

iv) The interimi0rde r is !iabieVto be”set aside as the
magistra teghas ia,i!ed” to conduct an inquiry as required
underhsection “Act

7, Inusupport of these grounds, iearned counsei, Sri
iaaian,3″”iwo ueid contend that on the motion interiocutory
apipViicati ori respondent, the magistrate did not grant
an ifexparte” order He had ordered prior notice of the
appiiciation for grant of interim reiief In response to the
notic e, petitioner had entered appearance and sought for
,a;n opportunity to substantiate ali grounds urged by him in
the counter It was incumbent on the magistrate to have
conducted an inquiry which he faiied to do Therefore, the
impugned order is unsustainable as it is passed mereiy on
the basis of affidavit filed by the respondent wife without
taking into consideration the grounds urged the
petitioner

8 Per contra, learned counsel for the ,reslpondent V”
wife wold contend that the impugnedidorder
infirmity, legal or otherwise, as tl1e”provisi,oris”of SiectioVnih
23 of the Act permits a magistrate to”grantV iinterim relief
on an application forsfuc,h reldi”ef, e t,ie,l”sl,i,hmitsVthat for grant
of interim relief, all that the to consider is
prima facie ,cas,e,” lihat couid “ielascertained from the
affidavit andloth,evdi4idocurnents filed by the applicant, and
no detailed ,inquiryl is necessary for grant of interim order

Therefore, were no ground to interfere with the

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9 I advert to the contentions urged by both sides, i?jtaisv necessary to record there is no dispute that in thheyproceedings initiated by the respondent, the had filed an application for grant of interim relief, prior notice of which was given to the respondent Therefore, the interim order impugned in this revision is not an exparte order It is an order after prior notice to the respondent at “L t;xs/ ,7 E 1 V ,9

of Section 23 of the Act but sub section 2 permits a magistrate to grant an ex parte order as referred to above Thus, the test is, whether the impugned an ex parte order without notice to the respondent,”oif Iiis an order after notice to the respondent Thus,V ai distinctioril * 2 has to be drawn between an parte3order granting interim relief anda{i order passeld;vg,ranl ing interim relief after notice to the”respoVndent, iiffit not an ex parte order, then the”procedi,ire *4pi=es”cribed by Code of Criminal Procedure as rgeferlred?to inv,sulb5section (1) of Section 28 of theghct becciirne s”apVp licablie If it is an ex parte order, thenfiielprloced tihre prescribed by sub section (2) of Section 23 me i\c tiwould be applicable V Frorn”vsub section (1) of Section 28, it is clear thatfor all in a proceedings under Sections 12, 18, 19, 22,23 and also under Section 31, the proced,ure” for enquiry as prescribed by the CrPC, 1973 followed Therefore, it can safely be concluded ?ithlat even for grant of interim relief as is permissible under 2 Section 23 (1) of the Act, procedure prescribed by the Code of Criminal Procedure has to be followed However, W matter requires remand Thus the order impugned is unsustainable

23 By the impugned order, the Sections 20 and 22, of the Act has”been ai£ow;ede, “direCtinq7 the petitioner to pay RsV50,Ot5O/ iztowards” medicai” , expenses and Rs25,000/

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Both these directions va re witriout inquiry and”heVnce are unsustainable The has further directed him tQI ) E|}/ food, clothing and other petitioner therein and Rs,10,00G/ thea” echiIedrene, in all, Rs30,000/ Since it requires remand for fresh inquiry intoxtheevcia imVof tehe respondents, the direction issued3,toeAthe respondent husband to pay Rs50,000/ V”toviiards expenses and Rs25,000/ as comper1sationjjFo1r harassment is set aside However, the direction Vregarding payment of monthly maintenance to thewifeé and children needs appropriate modification 11 Taking into consideration all attending circumstances, and as it is brought to my notice that the petitioner herein has deposited Rs4,05,000/ , the respondent are permitted to withdraw the same 1 / i r slsr <ygri* i

However, he is directed to pay Rs8,000/ pm till further orders are passed by the magistrate on the interim relief

25 The petition is, therefore, ai,lowed? fmpugned orde,rn is set aside The learnedntriai to reconsider the application filed for grant of interim relief appiying”t he proVcAedur,eAprescribed for trial of summons case under Procedure, after giving to?Vthe “petitioner and the respondent jig? as they may choose

Keeping ofmthe Act, the learned trial judge is,directed to dispose of the matter as expeditiously as possible within an outer limit of three months date of receipt of a copy of this order

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