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Siddharth Sabharwal vs The State Of Maharashtra And Anr on 18 October, 2019

WP 3269-19 (J).doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 3269 OF 2019

Siddharth Sabharwal ]
Age: 40 Years, Occupation- Business ]
Having office at, 5, Atur House ]
87, Dr. Annie Besant Road, ]
Worli, Mumbai- 400 018. ]…Petitioner

Versus

1. The State of Maharashtra ]
]
2. Arzoo S. Govitrikar ]
A-3, Alpa Apartments ]
Pochkhanwala Road, ]
Near Traffic HQ, Worli ]
Mumbai- 400030. ]…Respondents

APPEARANCES-

Mr. Girish Kulkarni a/w. Mr. Karan Kadam i/b. Mr. Kripashankar
Pandey for the Petitioner.
Mrs. Rutuja Ambekar, APP for Respondent No. 1-State.
Mr. Aabad Ponda i/b. Mr. Ashish Suryawanshi for Respondent No. 2.

CORAM : S. S. SHINDE, J
RESERVED ON : 30th August 2019
PRONOUNCED ON: 18th October 2019

JUDGMENT

1. Rule. Rule made returnable forthwith and heard finally with the

consent of learned counsel appearing for the parties.

2. This petition is filed with following substantive prayer-

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(b) That this Hon’ble Court may pleased to quash and
set aside the ad interim ex parte order dated 8 th May
2019 passed in Exhibit 4 in Domestix Violence Case
No. 87/2019 by the Ld. Metropolitan Magistrate, 62 nd
Court, Dadar-5, restraining the Petitioner from
entering his residence at A-3, Alpa Apartments,
Pochkhanwala Road, Near Traffic HQ, Worli Mumbai
400030.

3. Background facts stated in the petition for filing the same are as

under-

It is the case of the Petitioner that, Respondent No. 2 filed a

complaint (for short “said complaint”) under the Protection of Women from

SectionDomestic Violence Act, 2005 (for short “SectionDV Act”) bearing number 87/DV/2019

seeking various reliefs as mentioned therein on 8 th May 2019 before the

learned Metropolitan Magistrate, 62nd Court, Dadar. The said complaint filed by

Respondent No. 2 inter alia a further attempt by Respondent No. 2 to harass

and coerce the Petitioner in to yielding to Respondent No. 2’s exorbitant

demands for maintenance. Respondent No. 2 also preferred an application for

interim reliefs numbered as Exhibit 4 in the said compliant, inter alia praying

for ad interim ex parte relief under Section 23 (2) of the said Act, along with

an affidavit in support of her application. The learned Metropolitan Magistrate

on hearing the advocates for Respondent NO. 2 was pleased to partially allow

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the application for ad interim reliefs, and passed an ad interim ex parte order

dated 8th May 2019, restraining the Petitioner from committing any sort of

domestic violence against Respondent, as well as restraining the Petitioner

from entering his own home, i.e. A-3, Alpa Apartments, Pochkhanwala Road,

Near Traffic HQ, Worli, Mumbai- 400030 until further orders. In addition to

the impugned order, the learned Metropolitan Magistrate also passed an order

dated 8th May 2019 in the main proceedings of the said complaint, issuing

notice to the Petitioner through the Protection Officer, while also calling for the

domestic violence report, adjourning the matter to 27th May 2019 at 2.45 pm.

Thereafter, on 27th May, 2019, the 62nd Metropolitan Magistrate Court, Dadar

was vacant as reflected in the Roznama for the said Complaint, and

accordingly the board was discharged, with the next date given as 18 th July

2019. The Petitioner and Respondent No. 2 continued to live together in the

said matrimonial home from the date of passing of the impugned order until

15th May 2019 despite Respondent No. 2 clearly obtaining a copy of the said

order on 9th May 2019.

4. It is the case of the Petitioner that, on 15th May 2019, the

Petitioner had to travel for a business trip to Germany, and accordingly left the

said matrimonial home with his expected date of return being 29 th May 2019,

which Respondent No. 2 was well aware. The Petitioner and Respondent No. 2

spoke via a Whatsapp call, and Respondent No. 2 confirmed that she would be

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sending a car and driver to pick up the Petitioner from the Airport. On 29 th May

2019 at 10.30 am Central Europe Summer Time, the Petitioner received an

email from the advocates of the Respondent No. 2 serving on him only a copy

of the impugned order, whilst deliberately not serving a copy of the said

complaint. The only reason the Petitioner got to read the email before boarding

his flight to Mumbai via Muscat, was because his flight (Oman Air Flight No.

WY 116) was delayed. The Petitioner replied to Respondent No. 2’s advocates

email, inter alia acknowledging the same whilst also asking for the copy of the

said complaint vide email dated 29th May 2019. The Petitioner also informed |

Respondent No. 2’s advocate that Respondent had been deliberately and

selectively leaking various pieces of material to the media and press, and that

she had made veiled threats to even leak the said impugned order in an effort

to malign and force the Petitioner to succumb to her exorbitant demands.

Thereafter, the advocates for Respondent No. 2 replied to the Petitioners email

on 3rd June 2019, stating inter alia that Respondent No. 2 had instructed them

that the Petitioner was traveling, and hence service may not have been done by

the Court. Being aggrieved by the order dated 8 th May 2019 passed by the

learned Metropolitan Magistrate, 62nd Court, Dadar, thereby restraining the

Petitioner from entering the matrimonial home, the present petition is filed.

5. Learned counsel for the Petitioner Mr. Girish Kulkarni submitted

that, the learned Metropolitan Magistrate was led to error in passing the

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impugned order by Respondent No. 2 representing that the Petitioner owned

and possessed several accommodations. Respondent No. 2 deliberately

suppressed the fact that except for the said matrimonial home all the other

residential properties owned by the Petitioner were on lease and thus

otherwise occupied, and therefore not available to the Petitioner to move in to

as per his wishes. Respondent No. 2 continued to cohabit with the Petitioner

not only after alleged acts of domestic violence were allegedly committed by

the Petitioner, but also after passing the impugned order by the learned

Magistrate. The Petitioner and Respondent No. 2 continued to cohabit together

in the said matrimonial home until 15th May 2019 when the Petitioner left for a

business trip to Germany, wherein no effort was made by Respondent No. 2 or

her Advocate to serve the impugned order on the Petitioner until the Petitioner

was on his way home. Thus, the act of Respondent No. 2 serving a copy of the

impugned order on the Petitioner on 29 th May 2019, was deliberately planned

and carried out in order to inconvenience and harass the Petitioner. As

mentioned hereinabove, the Petitioner was to land at approximately 3.00 am

from Germany on 29th May 2019, and thus if he had missed the email send by

Respondent No. 2’s Advocate, he would have entered the said matrimonial

home and thereby been in violation of the impugned order, and liable to be

punished under the SectionDV Act.

6. It is further submitted that, it is established in law that in order to

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avail of an Order under Section 23 (2) of the SectionDV Act, an aggrieved person must

necessarily file an Affidavit as prescribed in Form III in the Rules framed under

the said Act, wherein an aggrieved person would inter alia have to state that

reliefs as claimed by her are urgent and that she would face great financial

hardship and would be forced to live under the threat of repetition/escalation

of acts of domestic violence complained of the accompanying application by

the spouse, if the said reliefs were not granted on an ad interim ex parte basis.

Since the aforesaid procedure was not adhered to, and the Petitioner was not

served notice, and the learned Magistrate has exercised discretion arbitrarily,

capaciously and perversely, and therefore, the Petitioner is entitled to invoke

supervisory jurisdiction of this Court under Sectionarticle 227 of the Constitution of

India read with Section 482 of Code of Criminal Procedure.

7. It is submitted that, due to the impugned order, the Petitioner has

suffered grave and irreparable harm as he is unable to access his clothes, and

work related papers, as well as limiting contact with his minor son. Respondent

No. 2 has made the allegation that, the Petitioner is a drunkard and that she

would never allow their minor son be around any person in a drunken state

even if it was his father, yet ironically the Respondent No. 2 permitted her son

to travel alone with the Petitioner to the Gir Forests from 18 th March 2019 to

24th March 2019, as well as Goa from 12 th June 2019 to 16th June 2019, which

contradicts her own stand, casting serious doubts on her allegation. Since 29 th

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May 2019, till present the Petitioner has had to stay either at his sisters

residence or with his friends, despite the fact that he owns the said

matrimonial home which at present is being occupied by Respondent No. 2.

The Petitioner has been fully compliant with the order of the learned

Metropolitan Magistrate despite denying in toto all the allegations made by

Respondent No. 2, he has continued to support Respondent No. 2 by

maintaining her monthly allowance of Rs. 40,000/- per month, allowing her

access to all his cars by paying the salaries of all the domestic help employed in

the said matrimonial home, paying for Respondent No. 2’s and Aashman’s

expenses in Lugano amounting to Rs. 10 Lakhs amongst other things. It is also

submitted by the Petitioner that, upon perusal of emails sent by Respondent

No. 2 with regards to her Lugano trip would not indicate that Respondent No.

2 has actually committed any domestic violence, and that Respondent No. 2

has only created a situation wherein she not only unilaterally enjoys the said

matrimonial home but also where the Petitioner is coerced into funding a

luxurious lifestyle, which she did not previously enjoy. Respondent No. 2 had

taken up a rental accommodation at Windmere building, Santa Cruz on 1 st

March 2019, however she prematurely terminated the rental agreement on 1 st

April 2019. A perusal of the email exchanged between Respondent No. 2 and

the owner of the flat at Windmere would reveal that at the time the

Respondent No. 2 filed the said complaint and obtained relief, she was still in

possession of the said rental accommodation at Windmere until the end of May.

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Thus, at the time of filing the said complaint not only there was any urgent

need of Respondent No. 2 or imminent threat of Domestic Violence from the

Petitioner, but Respondent No. 2 also had alternate accommodation and, which

she could have used that she deliberately suppressed from the learned

Metropolitan Magistrate in order to obtain the said impugned order. It is

further submitted that, considering the fact that matrimonial residence has

CCTV cameras installed through out the house, it is ironic that Respondent No.

2 has deliberately chose not to produce the same. The digital video recording

of the CCTV cameras installed in the matrimonial home are in the possession

for Respondent No. 2, as is evident from the fact that she has annexed the

selective clips from the same to the FIR filed by her with the police, yet for her

own malafide reasons refuses to share full and complete DVR as she is aware

the same would rebut the false allegations made by her against the Petitioner.

Learned counsel in support of aforesaid contentio placed reliance on the

judgment of Hon’ble Supreme Court in the case of Rameshwari Devi Ors.

V/s. Nirmala Devi and Ors., decided on 04.07.2011. Therefore, Learned

counsel appearing for the Petitioner submits that, petition deserves

consideration.

8. Learned counsel Mr. Aabad Ponda appearing for Respondent No. 2

at the outset submits that, there is efficacious remedy of appeal available to the

Petitioner under Section 29 of the DV Act, and therefore, the Petitioner is not

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entitled to directly invoke the writ jurisdiction, so also, the jurisdiction under

Section 482 of Code of Criminal Procedure bypassing the remedy of appeal

under Section 29 of the DV Act. Learned counsel submits that, when it is open

to a party to move the Court in another jurisdiction for obtaining redressal in a

manner provided under the statute, the High Court normally will not entertain

a writ petition. In support of aforesaid contention learned counsel appearing

for the Respondent No. 2 pressed into service following expositions of law:-

Girish Kumar Suneja Versus Central Bureau of Investigating 1, State

of U.P. Versus Mohammad Nooh2, Abhijit Bhikaseth Auti Vs. State of

Maharashtra Anr3, Thansingh Nathmal Vs. The Superintendent of Taxes,

Dhubri Others4, Titaghur Paper Mills Co. Ltd. Anr 5, Gita Devi Aggawal Vs.

Commissioner of Income Tax, West Bengal Ors 6, Punjab National Bank Vs.

O.C. Krishnan and Others7, Anandwardhan and Another Vs. Pandurang and

Others8, Sakiri Vasu Vs. State of Uttar Pradesh and Others 9, United Bank of

India Vs. Satyawati Tandon and Others10, Transport and Dock Workers Union

and Others Vs. Mumbai Port Trust and Another 11, Kanaiyalal Lalchand Sachdev

and Others Vs. State of Maharashtra Others 12 and Authorised Officer, State

1 (2017) 14 SCC 809
2 1958 SCR 595
3 2009 CRI. L. J. 889
4 AIR 1964 SC 1419
5 (1983) 2 SCC 433
6 (1970) 76 ITR 496 (SC)
7 (2001) 6 SCC 569
8 (2005) 11 SCC 195
9 (2008) 2 SCC 409
10 (2010) 8 SCC 110
11 (2011) 2 SCC 575
12 (2011) 2 SCC 782

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Bank of Travancore and Another Vs. Mathew K.C.13.

9. In order to seek interference under Section 482 of Code of

Criminal Procedure, 1973, there must exist no other provision of law by which

the party aggrieved could have sought relief. In support of aforesaid

contention, learned counsel placed reliance on the ration laid down in the

following cases:-

Ram Narain V/s. Mool Chand and Others14, Mary Angel and

Others V/s. State of Tamil Nadu15, State of Punjab V/s. Davinder Singh

Bhullar16, Chilakamarthi Venkateswardlu and Anr V/s. State of Andhra Pradesh

and Another17, Smt. Hansa Gauri and Ors. V/s. State of Rajasthan 18, Tara

Chand V/s. State (Govt. of NCT of Delhi) and Ors.19, Ascent Constructions Pvt.

Ltd. V/s. Mohan Bhatt20, Govind and Ors. V/s. The State (Govt. of NCT of

Delhi) and Ors.21, Anup Lodha and Ors V/s. The State of West Bengal and

Ors.22, Amarvir Singh V/s. State(NCT of Delhi) 23, Krishna Dwivedi V/s.

Surender Kumar24, Raj Kumar Khurana V/s. State (GNCT of Delhi) and Ors. 25,

13 (2018) 3 SCC 85
14 1959 SCC Online ALL 205
15 1999 (5) SCC 209
16 (2011) 14 SCC 770
17 2019 SCC Online 984
18 2012 CriLJ 342
19 2008 (1) RCR (Crl) 154
20 I (2008) BC 472 2008 (103) DRJ 118
21 2003 IIIAD (Delhi) 525 104 (2003) DLT 510 I (2003)
DMC 783 2003 (68) DRJ 446 2003 (2) JCC 1030.

22 I (2016) BC 542 (Cal.)2015 4 CALLTI32 (HC) 2015 (3) JCC 203
23 2007 (98) DRJ 228
24 MANU/DE/8475/2007 Criminal M.C. No. 1481 of 2007
25 (2009) 3 Somp. LJ 17 (Del)

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K.R. Ramkumar V/s. State26, Rajesh Kumar Gulati V/s. National Agricultural

Co-operative Marketing Federation of India (NAFED) and Ors. 27, Ramji Lal V/s.

Amid Ved28, Rajesh Kumar V/s. The State of Bihar 29 and Sanjay Kumar Ghai

V/s. The State30.

10. It is submitted that, it is true that, the rule of exclusion of writ

jurisdiction by availability of an alternative remedy is a rule of discretion and

not one compulsion and in appropriate case, in spite of availability of the

alternative remedy, the High Court may still exercise its writ jurisdiction in at

least three contingencies: (i) where the writ petition seeks enforcement of any

of the fundamental rights; (ii) where there is failure of principles of natural

justice; or (iii) where the orders of proceedings are wholly without jurisdiction

or the vires of an Act is challenged.

However, learned counsel submits that, in the facts of the present

case, none of the aforesaid contingencies arise. The learned Magistrate was

entitled to pass ex parte order under Section 23 (2) of the SectionDV Act. Secondly, in

the impugned order reasons are assigned by the learned Magistrate, and

thirdly, the Petitioner has opportunity to cause appearance before the same

Court and put forth his contentions.

26 2004 (2) CTC 42 2004 (2) RCR (Crl) 287.

27 147 (2008) DLT 219 ILR (2008) Supp. (7) Delhi I.
28 2008 CrLJ. 1220
29 2005 (2) BLJR 1518, 2005 (3) PLJR 419.

30 2008 (100) DRJ 731.

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11 Without prejudice to the aforesaid contentions learned counsel for

Respondent No. 2 submits that, the Petitioner has physically assaulted the

complainant and traumatized her by physical, emotional and mental cruelty.

Being married to the Petitioner, Respondent No. 2 tried to salvage her marriage

by meeting a marriage counsellor. However, there also the Petitioner did not

disclose all the facts to the counsellor. The Petitioner on his 40 th birthday as

usual got drunk and abused and punched the complainant. As the complainant

could not take this continuous physical, mental and emotional assault, lodged

an NC with the Worli Police Station under Section 504 and Section506 of Indian Penal

Code on 28/07/2018. In the year 2019 itself Respondent No. 2 filed another

police complaint on 23rd January, 2019 placing on record how right from the

beginning of her marriage. Respondent No. 2 was traumatized by the accused

and particularly how the Petitioner had committed various acts of cruelty on

her. Respondent No. 2 narrated various incidents including how she was

assaulted and physically abused by the Petitioner in the said complaint. The

complainant approached the police hoping that, the Petitioner would mend his

ways and change his actions but the same was to no avail. As a result of the

same, the complainant was compelled to register FIR bearing CR No. 70 of

2019 with the Worli Police Station on 19/02/2019 under Sections 498A, Section323,

Section504, Section506 and Section509 of IPC. In the said complaint, complainant again narrated

the incidents of cruelty and harassments that are meted out to her and how

whether drunk or not she was abused, assaulted and insulted with the filthiest

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of language by the Petitioner. It is further submitted that, again on 5 th March

2019, the complainant was again ill treated and threatened on the phone with

rude, abusive and offensive behaviour by the Petitioner. As a result of which

the complainant had filed a complaint under Senior Inspector in charge of the

Worli Police Station. This was followed by an NC dated 18/04/2019. On 17 th

April 2019, two police women came to the house in civil dress to record the

statement of Aashman. During that time, the Petitioner arrived and

complainant informed him that the police has come to record the statement of

Aashman and the Petitioner got furious hearing that and barged into the room

and asked the cops to leave. That very nigh when the complainant was trying

to put her son to sleep, the Petitioner came in the room and started telling the

child that, the complainant had called the police at home. A little later the

Petitioner knocked at complainant’s door and said that puppies are

uncomfortable, when the complainant went to check the same, she realised

that the Petitioner had taken her phone and after a great struggle he returned

the same to her. Later in the night, the complainant was petrified and locked

her room and slept off and when she woke up realised that the Petitioner was

trying to hack into her various accounts. The Petitioner thereafter the next

morning again asked for her phone and when she said that she have left it with

her sister, the Petitioner dragged her and forcibly made her sit in the car and

took her to her sister’s house. The entire way to her sister’s house the Petitioner

was abusing her, which has been further elaborated by her in her complaint.

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Thereafter, again the entire morning the Petitioner kept on trying to hack into

her Gmail and facebook account. Therefore, complainant filed a written

complaint on 18th April 2019 against the Petitioner. It is also submitted that, on

1st May 2019 again the complainant was compelled to lodge a complaint. After

registration of FIR in order to buy peace she initially shifted out of her

residence and stayed at Windermere society, Santacruz on rent with their child.

Complainant informed the Petitioner that, she moved out of the house. The

Petitioner got furious and barged into the house on the next day i.e. on 4 th

March 2019. The Petitioner came and said the Aashman is not comfortable

living here. She asked Aashman and he said that he wants to go back to Alpa

apartments. The complainant agreed to go back to Alpa Apartments only upon

the assurance given by the Petitioner that he would move out of the house. The

Petitioner moved out of the house and again came back after a week. The

Petitioner immediately after entering the house changed the CCTV cameras

and refused to give the password of the same. Hoping that, there will be peace

in her house, she returned back and thought that things will improve but

however, things went from bad to worse and it resulted in all these complaints

being filed.

12. It is further submitted that, the Petitioner made the life of

complainant so miserable that she was compelled to file the proceedings under

the SectionDV Act on 8th May 2019, but prior to that she was forced to file various

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police complaints and tried to ensure that, she was not subjected to any more

torture and cruelty and insult in front of her child. Therefore in order to

maintain her sanity and live with dignity and in order to ensure that she is in a

position to survive with dignity and not be ill treated, she decided to exercise

her legal rights and accordingly as a last straw only by means of a

protectionery measure, the complainant approached the Magistrate’s Court for

appropriate relief and the order has been passed which is perfectly legitimate,

just and proper in light of the aforesaid circumstances. It is submitted that,

when the things became impossible for both of them to reside together, she had

informed the Petitioner in March 2019 that she cannot stay with the Petitioner

as a result of which he told me that he has finalised a place in Pushpa Milan,

Hill Road, Worli, in order to ensure that they leave peacefully and he did not

stay with her because he too admitted that his behaviour was such that he

would move out. It is submitted that, despite obtaining protective order from

the learned Metropolitan Magistrate, the complainant was compelled to stay

with the Petitioner as she was scared of the consequences including physical

assault by the Petitioner, if she informed the Petitioner about the order dated

08/05/2019 while she was in the house and therefore, she could not muster

the courage to tell him about the said order dated 08/05/2019 and waited for

the Petitioner to leave. The complainant traveled with my son to Lugano for his

summer camp and as he saw other children with their parents his face had

become small and as a concerned mother for the well being and happiness of

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her child, the complainant thought her child also wants to be seen with both

his parents. Therefore, complainant called up the Petitioner to attend a coffee

morning on 15th July 2019 and last day performance on 17 th July 2019.

However, the Petitioner instead of respecting Court orders of not committing

any domestic violence forced himself by pushing the complainant aside into the

rented apartment and started creating a scene in front of child only with a view

of making false show of care and concern and started taking pictures of articles

in the room. The complainant lodged a complaint with the local police at

Lugano about the same on 15/7/2019 itself. Even after filing the DV

application and despite being aware of the restraining order, the Petitioner in

flagrant violation of the same comes below the building everyday thereby

trying to create nuisance and in particular on 30/7/2019 came under the

house and tried talking to Aashman and when the complainant opposed the

same the Petitioner threatened her.

13. Heard learned counsel appearing for the Petitioner and learned counsel

for respective Respondents. With their able assistance perused pleadings and

grounds taken in the petition, annexures thereto, and impugned order passed

by the learned Metropolitan Magistrate, 62nd Court, Dadar. It appears that,

Respondent No. 2 herein filed an application under Section 12 of the DV Act

for an order of restrain under Section 17 and protection under Section 18,

monitory relief under Section 20, compensation under Section 22 and 23 of the

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SectionDV Act. In the said application there are multiple prayers, one of the prayer is

that, restrain the Petitioner herein or his relatives from entering in portion of

the shared household in which applicant i.e. Respondent No. 2 resides.

14. Learned Metropolitan Magistrate keeping in view the averments in

the application so also prayers made therein, taking recourse to the Section 23

of the DV Act, and after appreciating contentions of the Advocate appearing for

Respondent No. 2, so also relying upon the judgment of the Bombay High

Court in the case of Sabita Mark Burges V/s. Mark Lionel Burges, passed in

Writ Petition No. 4150 of 2013, by assigning the legally sustainable reasons,

has passed the impugned order, thereby restraining the Petitioner herein from

committing any sort of domestic violence against the Respondent No. 2. The

Petitioner is also restrained from entering into residential premise i.e. A-3,

Alpha Apartments, Pochkhanwala Road, Near Traffic Headquarters, Worli,

Mumbai- 400 030 of the Applicant Respondent No. 2 herein.

15. At this juncture, it would be apt to reproduce herein below Section

23 of the DV Act, 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
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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 Sectionsection 18, Sectionsection 19,

Sectionsection 20, Sectionsection 21 or, as the case may be, Sectionsection

22 against the respondent.

16. It is true that while seeking an ex parte relief, an aggrieved person

has to follow the mandate of Rule 7 of said Rules, and affidavit so filed shall be

in Form III under Rule 7 of the said Rules. In this respect it would be apt to

make referent to Section 28 of the DV Act, which reads as under:-

28. Procedure-

(1) Save as otherwise provided in this Act, all

proceedings under sections 12, 18, 19, 20, 21, 22 and

23 and offence and 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

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disposal of an application under Sectionsection 12 or under

sub-section (2) of Sectionsection 23.

17. If the sub Sectionsection 2 of Sectionsection 28 is carefully perused, there is

flexibility in the procedure in as much as the concerned Magistrate may lay

down its own procedure for disposal of an application under Sectionsection 12 or sub

Sectionsection 2 of Sectionsection 23. Therefore, even if there are some shortcomings/lacuna

in following the procedure laid down under sub section 2 of Section 23, Rule 7

of The Protection of Women From Domestic Violence Rules, 2006 (for short

“said Rules”) and Form III under Rule 7 of the said Rules. On the said ground it

is not desirable to set aside the order passed by the learned Metropolitan

Magistrate. The very object of bringing into force the aforesaid Act, is to

provide for more effective protection of the rights of women guaranteed under

the Constitution who are victims of violence of any kind occurring within the

family and for matters connected therewith or incident thereto, and therefore,

on mere technicalities an aggrieved person cannot be dislodged from seeking

an appropriate ex parte relief from the Court of competent jurisdiction by

invoking Section 23(2) of the aforesaid Act.

18. So far an argument of availability of alternate remedy of Appeal is

concerned, it would be apt to reproduce herein below Section 29 of the DV Act,

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which reads as under:-

29. Appeal-

There shall lie an appeal to the Court of Sessions

within thirty days from the date o which the order

made by the Magistrate is served on the aggrieved

person or the respondent, as the case may be,

whichever is later.

It is abundantly clear from the careful perusal of Section 29 of the

said Act mentioned herein above that, there shall lie an appeal to the Court of

Sessions within thirty days from the date of the order made by the Magistrate

is served upon the aggrieved person or the respondent, as the case may be,

whichever is later. Therefore, it was possible for the Petitioner to file the appeal

instead of filing the present petition.

19. According to the learned counsel appearing for Respondent No. 2,

second Respondent did follow the mandate of Rule 7 and filed the affidavit in

Form III, as required under SectionDV Act and Rules there under. Even if the case of

the Petitioner is accepted as it is that, the proper procedure has not been

followed by the learned Metropolitan Magistrate or proper affidavit was not

filed by Respondent No. 2; in that case also, for redressal of said grievance, it is

open for the Petitioner to invoke an appellate jurisdiction under Section 29 of

the DV Act. The Petitioner also has an opportunity to cause his appearance
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before the learned Magistrate, if already not caused, and put forth his

contentions. Therefore, this Court is of the opinion that, in the peculiar facts

and circumstances of the case, when the learned Magistrate has passed the ex

parte order assigning cogent reasons, which are legally sustainable, the

interference by this Court in the impugned order, on the ground of non

adherence to the procedure as alleged by the Petitioner, is not warranted. This

Court is of the opinion that, the Petitioner ought to have availed of an

appropriate remedy of appeal, so also it was possible for the Petitioner to

approach before the Metropolitan Magistrate Court, in that view of the matter

an interference in the impugned order is not called for. In the light of

discussion in foregoing paragraphs, without entering into the merits of the

matter, this Court is of the opinion that, in view of alternate and efficacious

remedy available to the Petitioner or the Petitioner can also contest the

proceeding pending before the Metropolitan Magistrate, the petition deserves

no consideration.

In that view of the matter, for the reasons recorded herein above,

this Court is not inclined to entertain the writ petition. Hence, writ petition is

rejected. Rule stands discharged accordingly.

20. All the contentions raised on merits in the petition or in the

affidavit in reply filed by Respondent No. 2 are being kept open to be agitated

before the concerned Court or the appellate forum, as the case may be.

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21. In case the Petitioner challenges the impugned order by way of

filing an appeal and if there is delay in filing the said appeal and prayer is

made for condonation of delay, the appellate forum shall keep in view the time

spent by the Petitioner in prosecuting this petition for the purpose of reckoning

the limitation and take the appropriate decision. The Appellate Forum or the

Metropolitan Magistrate as the case may be shall not get influenced by the

observations made herein before, and decide the proceedings on its own merits

and in accordance with law after following the principles of natural justice.

[S. S. SHINDE , J]

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