Delhi District Court
Tanya Arjun vs )Mr. Arjun Anand on 14 February, 2023
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 36 of 2023
CNR No. : DLST01-001315-2023
TANYA ARJUN
W/O MR. ARJUN ANAND
R/O 26, ANAND LOK,
NEW DELHI-110049
.........APPELLANT
VERSUS
1)MR. ARJUN ANAND
S/O OF MR. RAVI PRAKASH ANAND
R/O 26, ANAND LOK,
NEW DELHI-11004
ALSO AT:
A.G. INDUSTRIES PVT. LTD.
402-409, SQUARE ONE MALL,
SAKET DISTRICT CENTRE,
NEW DELHI - 110047
2) MRS. GEETA ANAND
D/O OF LATE MR. BRIJ MOHAN LAL MUNJAL
C-9, CHIRAJ ENCLAVE,
NEW DELHI - 110048
RESIDING AT:
R/O 26, ANAND LOK,
NEW DELHI-11004
ALSO AT:
A.G. INDUSTRIES Pvt. Ltd.
402-409, SQUARE ONE MALL,
SAKET DISTRICT CENTRE,
NEW DELHI - 110047 ........ RESPONDENTS
CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 1 of 12
DATE OF INSTITUTION : 09.02.2023
JUDGMENT RESERVED ON : 14.02.2023
DATE OF JUDGMENT : 14.02.2023
JUDGMENT
1. This is an appeal filed under Section-29 of the DV Act by the aggrieved wife against the order dated 24.12.2022 passed by the Ld. Trial Court whereby prayer for ex-parte order was declined.
2. Both the sides have been heard. Record perused.
3. The Ld. Trial Court has made following observations:
"From perusal of record, it is clear that the complainant herself has stated that a MOU was signed between the parties, though the complainant submits that the same was signed by her as she was threatened by the respondents. The Court is of the considered view that at this stage without hearing the opposite party blanket relief of restraining the respondents cannot be granted in favour of the complainant and both the parties shall be given an opportunity of being heard before passing any order with respect to the relief prayed by the complainant.
This court has perused the application u/s 12 of Protection of Women from Domestic Violence Act, 2005 (henceforth "D.V. Act"), it's accompanying documents, DIR filed by the protection officer and also heard the submissions advanced by the Ld. Counsel for complainant for summoning of the respondents.
Prima facie, there are allegations of domestic violence made by the complainant against the respondent no. 1, who is stated to be the husband and respondent no. 2, who is stated to be the mother-in-law, therefore, they are being summoned.
Notice of the said application u/s 12 of the D.V. Act with all documents be issued to respondent no. 1 & 2 with direction to appear on the next date of hearing and file his reply within 30 days from receipt of notice on CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 2 of 12 filing of process fee etc. within next fifteen days returnable on 18.04.2023. Service be also affected by way of speed post, registered post A/D and authorized courier and complainant to file tracking report of the registered post A/D, speed post and courier with supporting affidavit at the earliest before the next date of hearing.
Notice of the present case be also issued to respondents no. 1 & 2 via electronic mode (e-mail and Whatsapp) through Nazarat Branch on filing of process fee etc. within next fifteen days returnable on next date".
4. From the appeal petition, it appears that the aggrieved wife has prayed for several reliefs in the case. However, the Ld. Counsel for the appellant/aggrieved wife has repeatedly stressed upon the fact that the respondents are creating hindrance in the usage of the house in one manner or the other and that she may be protected in this respect.
5. Ld. Counsels for the respondents have raised an issue of maintainability of the present appeal. They have relied upon Shyam Sel And Power Limited vs Shyam Steel Industries Limited dated 14.03.2022 (SC) and Vishal Jindal vs Puja Jindal dated 23.07.2014 (CHC).
6. It seems that the aggrieved wife wanted an ex-parte order from the Ld. Trial Court but the same was not accepted by her and notice was issued. We have to decide if such an order can be challenged or not. Section-23 of the DV Act talks about ex-parte orders and reads under:
"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 section18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent".CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 3 of 12
7. It seems that the aforesaid provision deals with two different situations. Firstly, it empowers the Magistrate to grant any relief without hearing the opposite party: this may be called ex-parte order. Secondly, it empowers the Magistrate to pass interim orders. The power to grant ex- parte order need not be confused with the power to grant interim orders. Both are clearly different. Former contemplates an urgent situation wherein affidavit of the aggrieved is sufficient to grant the relief. However, for the interim relief, both the sides need to be heard. Hon'ble Bombay HC in Abhijit Bhikaseth Auti vs State of Maharashtra 2009 Cri LJ 889 has discussed this provision in detail and has clearly shown the difference between Section-23(1) and 23(2).
8. The question then is whether if a Magistrate acts or refuses to act under either of the aforesaid provisions, can a person challenge her order?
8.1. Section-29 of the DV Act talks about appeal from order. It reads as under:
"Appeal.- There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later".
8.2. On plain reading of the Section 29, the orders contemplated under the said Act can be broadly divided into three categories. The first category is of the final order passed on application under sub-section (1) of Section
12. The second category is of the ex parte ad interim orders under sub- section-(2) of Section 23 of the said Act and the third category will be of the interim orders under sub-section (1) of Section 23 of the said Act (see Abhijit Bhikaseth Auti case).
8.3. There will be no confusion in accepting that the first category i.e. the final orders are appealable. Now coming to other two categories. Suppose, an interim or ex-parte order is passed against a husband directing payment of maintenance or arrangement of residence, will we be able to say that such CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 4 of 12 husband has to accept the fate till the disposal of the case? This thinking will be a travesty of justice and nothing else. His rights are certainly affected by such orders and therefore, it cannot be said that he cannot challenge the same by way of appeal. Hon'ble Keral HC in Sulochana vs Kuttappan (2007) 1 KLJ 699 and Hon'ble Bombay HC in Abhijit Bhikaseth Auti vs State of Maharashtra 2009 Cri LJ 889 have taken a view that orders passed under Section-23 are appealable.
8.4. It is here that we have to think as to whether we can put wife on a lesser footing than the husband or for that matter, woman on a lesser footing than man. In the DV Act proceedings, petitioner will always be the woman and it is she who will always ask for ex-parte order. If she gets an ex-parte order from the Magistrate, the opposite party will be entitled to challenge the same by filing an appeal. What will happen if she does not get such an ex-parte order from the Magistrate? Can she be allowed to accept her fate till the next date of hearing before the Magistrate? This will certainly be not in the wider connotation of justice. She has to have a right to challenge the order of the Magistrate refusing to grant her ex-parte protection. Suppose, the woman has a life threatening situation and wants some ex-parte directions from the Magistrate but the Magistrate declines and put the matter for some other date upon issuance of notice to the opposite party. What will the woman do in the given circumstances, if she cannot have a right to challenge such order of the Magistrate.
8.5. I am of the view that any order passed under Section-23 (whether it grant ex-parte order or declines to grant) is appealable. Hon'ble Keral HC in Sulochana vs Kuttappan (2007) 1 KLJ 699 has categorically held in this respect "Nor am I impressed with the contention that such an understanding of the sweep of Section 29 would be detrimental to the target group to whom the Act endeavours to do justice viz. the victim women. The right of appeal would be available to such victim women also in case an order under Section 23 is not passed in their favour".
CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 5 of 129. In view of the aforesaid discussion, it becomes very clear that Section-29 applies to all orders which are final in nature or which affect the rights of either party in any manner. However, Ld. Counsels for the respondents want this court to believe that the present appeal is not maintainable as Magistrate's order is only procedural and does not affect any rights and for this, they have relied upon two judgments.
9.1. Coming to the Vishal Jindal case cited by the Respondent. A bare perusal thereof goes to show that the Magistrate therein had directed personal attendance which was challenged by way of appeal but the Court of Session dismissed the same holding that the appeal was not maintainable in law. It is in that context that the Hon'ble Chhattisgarh HC said that appeal against purely procedural orders is not maintainable. Though the Ld. Counsel for respondent herein has read the said judgment verbatim, what he missed to comprehend is that the judgment itself in Paragraph No.-13 has opined that order passed under Section-23 is appealable (with example being cited therein of one type of order affecting rights). In Pagragraph No.- 14 the judgment also shows its agreement with Kerala and Bombay HCs which have clearly taken a view that order passed under Section-23 is appealable. Rather, Hon'ble Bombay HC has specifically said "An appeal will also lie against orders passed under sub-section (1) and sub-section (2) of the Section 23 of the said Act which are passed by the learned Magistrate" and Hon'ble Keral HC has categorically said "The right of appeal would be available to such victim women also in case an order under Section 23 is not passed in their favour".
9.2. So far as Shyam Sel case is concerned, the same pertains to the concept of "judgment" for the purpose of LPA and in that context, Hon'ble Supreme Court has talked about meaning of judgment and opined that an order giving time to the defendant to file affidavit in opposition, cannot be treated as a "judgment" so as to become appealable under LPA. In the said case, a single judge bench of HC refused to grant interim injunction and allowed time to defendant to file affidavit in opposition and that order was challenged before a division bench. If we read the judgment of the single CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 6 of 12 bench, we will find that defendant was already in appearance. Clearly, there was no prayer for ex-parte order and in that circumstance, it was found that giving time for filing affidavit would not amount to "judgment" and would not become appealable. In the present case, however, the situation is clearly different. Section-29 talks about appeal against order. It does not have any concern with the "judgment" as envisaged in Letters Patent law. Furthermore, this judgment itself has quoted earlier judgments indicating the appealability of orders mentioned under Order-43 CPC. One of such reference order pertains to order passed under Rule-1 of Order-39 CPC. Hon'ble Supreme Court in A. Venkatasubbiah vs S. Chellappan (2000) 7 SCC 695 has opined that power to pass interim ex parte orders of injunction emanates from the said Rule-1 and such an exparte order falls within the sweep of appealable orders under Order 43 CPC.
9.3. I am of the opinion that neither of the judgments relied upon by the respondents has dealt with the issue of appealability of orders passed under Section-23 nor the factual situation obtaining therein are similar to the present case and therefore, the same does not come to the rescue of the respondents.
10. We can now see as to whether the Ld. Trial Court has adjudicated anything by her order so as to affect any right of the aggrieved wife. Pertinently, the aggrieved wife had prayed before the Ld. Trial Court to grant her some ex-parte order. The Ld. Trial Court, however, has observed "The Court is of the considered view that at this stage without hearing the opposite party blanket relief of restraining the respondents cannot be granted in favour of the complainant and both the parties shall be given an opportunity of being heard before passing any order with respect to the relief prayed by the complainant".
10.1. Concept of ex-parte order is that the court passes a direction without hearing the opponent. If a hearing is given to the opponent, there cannot be any ex-parte order at all. A Magistrate dealing with a prayer for ex-parte relief has to do either of the two things: i) she may grant the ex-parte relief CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 7 of 12 prayed for or ii) she may decline the same. No other option is really available with the Magistrate. Reason is obvious. Once she issues a notice, the prayer itself becomes infructuous. Upon appearance of respondents when the Magistrate decide the prayer, she would not be acting under Section-23(2) but in reality, she would be making or declining the prayer under Section-23(1). Magistrate does not have any suo moto powers to change the relief prayed for by the party.
10.2. What the Ld. Trial Court has done by the aforesaid observation is to change the prayer made by the aggrieved wife for ex-parte relief and suo moto converted the same into a prayer for interim relief. By saying that she will decide the prayer of the aggrieved wife only after hearing the respondents, the Magistrate has clearly refused to grant any ex-parte protection. Clearly, with such action of the Magistrate, the case has come out of the purview of Section-23(2) and become a case for grant of interim relief under Section-23(1).
10.3. Ld. Counsels for the respondents have argued that there has been no adjudication by the Magistrate. I am unable to agree. Prayer of ex-parte relief can be declined in two ways: i) by express order that no case is made out for such relief or ii) by inference i.e. when the Magistrate says that prayer will be decided on hearing the opponent. In both the situations, the aggrieved wife will not be able to obtain an ex-parte relief. Her rights of obtaining the ex-parte relief (if there is prima facie domestic violence) get affected in either of the situations and therefore, we cannot say that the Magistrate has not adjudicated on her prayer.
11. Now, if an order passed under Section-23(2) is challenged, what are the options available with the appellate court? Ld. Counsels for the respondents argued that if appeal should not be entertained, as in reality, the appellate court will not be able to do anything, firstly because on appearance of opponent, the concept of ex-parte relief will become infructuous and secondly, the appellate court has no power to grant any ex- parte relief.
CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 8 of 1211.1. I am, however, of the view that the theory of the Ld. Counsels is wrong. We should not confuse the maintainability of a petition with the final outcome or ultimate relief.
11.2. Cases of order granting ex-parte relief do not pose any difficulty. In such cases, naturally the husband side would challenge the order. The appellate court has to give hearing to the aggrieved also and then take a decision either to set it aside or to confirm the same.
11.3. Cases of refusal to grant ex-parte relief is the contentious issue. Such orders will be challenged by the aggrieved person. The appellate court may opt for the following:
i) It may issue notice to the opposite side and after hearing the parties, it will decide the matter. It may not grant the relief prayed for on merits but it can certainly say that the refusal by the Magistrate was erroneous.
ii) In cases of exceptional urgency, the appellate court may not even issue notice and reverse the order directing the Magistrate to hear the aggrieved afresh on ex-parte relief. One may argue that this will violate the principles of natural justice. However, I do not find such an argument justified. In such cases, the husband side cannot claim to have suffered affect on any right at all because the appellate court would only be setting the clock back to the position when the Magistrate first heard on ex-parte relief (at that time of course there could not have been any appearance of the opponent).
11.4. It is here that we have to consider the true scope of the appeal filed under DV Act. It is Section-29 which provides for an appeal before court of session but it does not say as to how the same shall be heard. Section-28 provides for applicability of CrPC (or the trial court may adopt its own procedure) but all these relate only to the application filed under various provisions. It does not provide anything for appeal. Section-4(2) of CrPC CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 9 of 12 says that proceedings under other laws shall be governed by the CrPC but it only talks about the offences (for investigation, enquiry, trial or being otherwise dealt with). The applications filed under Section-12 or 23 are not for any offence and therefore, Section-4(2) of CrPC will not apply. However, since Section-29 of DV Act says that the appeal shall lie before the Court of Session, we have to see how such an appeal is to be heard by such court. It is only provided in Section-381 to 386 CrPC. These provisions primarily relate to the accused and talks about hearing of State and Accused and in cases of acquittal, hearing of complainant but nowhere it specifically contemplate about hearing of opponent of any other kind of appeals. It is Section-401 CrPC which contemplates that order prejudicial to any person should not be passed without hearing him but of course, this provision relates only to the reivsion petitions. While dealing with the revision petitions, Hon'ble Supreme Court has opined that the opposite party should be heard. However, Section-29 of the DV Act does not talk about revision.
11.5. It is in the aforesaid situations that the court of session has to deal with an appeal filed under Section-29 of DV Act. As such, it cannot be said that the court of session (the appellate court) cannot adopt the modes indicated herein above when there is no prohibition for the same either in DV Act or CrPC.
12. In view of the above discussion, all the contentions of the Ld. Counsels for respondents on the point of maintainability of appeal are rejected. It is held that the present appeal is maintainable.
13. Coming then to the point as to whether any relief can be granted to the appellant/aggrieved wife in the present appeal.
13.1. An ex-parte order is premised on the fact that the aggrieved wife is under very urgent and emergent constraints. In the case at hand, no such situation has been shown by the appellant. It becomes very clear from the fact that though the order was passed by the Magistrate on 24.12.2022, the CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 10 of 12 aggrieved wife preferred this appeal only in the month of February, 2023. Had she been under urgent situation, she would have taken steps to challenge the order immediately and atleast in the first week of January. She having not done so has invited an inference that she was under no emergent situation. In such circumstances, no relief is required to be given to the appellant in the present appeal.
14. However, it can be said that the Ld. Magistrate did not follow the law in true spirit. She noted a prima facie view that there were allegations of domestic violence against the respondent. She was not giving any protection to the wife from domestic violence but despite that she adjourned the matter for almost 4 months (the impugned order is dated 24.12.2023 and the adjourned date is 18.04.2023). This was is no way justified even if we say that normally the board of any Magistrate in Delhi remains very heavy. When a Magistrate does not protect the aggrieved under Domestic Violence Act, it would be expected from her to atleast give the next hearing on shorter date. In this regard, Section-12 of Act will be relevant which to the necessary extent reads as under:
"Application to Magistrate.- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
xxxx (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall Endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing".
14.1. Ground level compliance of the aforesaid wisdom of the Parliament may not be always feasible given the alarming pendency of cases before the Magistrates and therefore, the Parliament appears to have not provided any repercussion for the breach. However, it does not mean that the Magistrate CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 11 of 12 should not make efforts to comply with the mandate. If a Magistrate gives the next date after four months which is beyond the outer limit of time for disposal, she cannot be treated as making any efforts at all to comply with the mandate.
14.2. During the arguments, Ld. Counsel for Respondent No.-1 stated that she is even ready to argue the case before the Magistrate in one week. I am of the view that instead of issuance of any direction by this court regarding fixing an early date, the Magistrate herself should take a conscious decision on the same in view of Section-12. Even otherwise, a superior court should not take on itself the task of managing the board of the Magistrate. It is then for the aggrieved wife to move appropriate application before the Ld. Magistrate praying for an early hearing of the case.
15. With the aforesaid observations, the present appeal is dismissed.
16. A copy of this judgment be sent to the Ld. Trial Court.
17. Appeal file be consigned to the record room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 14th DAY OF FEBRUARY, 2023 (RAKESH KUMAR SINGH) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI CA No. 36/2023 Tanya Arjun vs. Arjun Anand and Ors. Page 12 of 12