Karnataka High Court
Krishnamurthy Nookula vs Savitha Y on 9 December, 2009
Equivalent citations: 2016 CRI. L. J. 1970, 2016 (2) AKR 57, (2016) 2 HINDULR 611, (2011) 3 KCCR 2221, 2016 (2) KCCR SN 192 (KAR)
Author: Jawad Rahim
Bench: Jawad Rahim
ORDER This revision petition is by the husband against the order dated 5.1.2008 in Crl.Mis.No.435/2007 pas's'edf"gu,n'd_4er Sections 20 and 22 of the Protection of Domestic Violence Act, 2005. 2. The petition is listedfor aVd.m'i'ssion,.»a'fte.r_ the respondent. In response 'Vt'oi..vvhich,Vtiienlearned Counsel has represented her;in'Cons.§iderinng___w!.egal issues that arise for consideration, the p,et:i'ti.orr.iVs f.ad"mi.tta'd----and taken up for final disposaiii The relevant for consideration are:_.Smt.iSavitha':~th'e respondent herein filed a petition co'm.pIa_isning. of d'o'm"estic violence against the revision "along with the petition filed an LA. under and 22 of the said Act for grant of interim relief'onA'3-the premise that she was married to the petitioner "'--i'_'Aaccuo"rding 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 Rs.5 lakhs, é the petitioner was not satisfied and extracted Rs.1 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:7'that A also did not solve the problem. totallly-depiiessed,L due to such acts of the petitioner. "She and heérlllchlildrenll were rendered destitutes an,o'i"are,j'dependents"on'her family members. Since the con_d'uct.ofthei"-;§_eti't'iVoner showed no material----~sc.h:a'vnge:,i:::.3she'~.,ch.ose""to~~- file a petition before the jurisdictional' relief under the provisions of the Protectyion of Women from Domestic Violence Act ,_ (hVe'a*;eina'fter refe'a'«re.d..to as the Act, for brevity). «pr_esentation of such petition and I.A., the learlnedv.jurisdictional Magistrate issued prior notice and summoned the respondent. Respondent therein is the V":V'_AApe_ti.t'i.'oner 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 Rs.1 lakh and that he had {,1 defend against the interim order directing him to pay maintenance; ii) Non--grant of opportunity has deprived~..h:'i-in-..the benefit of placing such material which is avai_l--aV.b.|'e:'ir§i.i7i:--hT to substantiate that he had a good,' case _a's"or{_'thé"d'a.tev,.gf"» passing of the order; iii) The interim order"iis"a.,rbitra'ry, Linju.st¥a'nd"against-L' the procedure prescribed Criminai Procedure; . iv) The i.nterim.i0rd.e:r is !i_a.bie'V'to::be"set aside as the magistra-teghas ia,i!ed"--.Vto.'conduct an inquiry as required underhsection "Act. j', .7, Inusupport of these grounds, iearned counsei, Sri - iaaian,3"~"iwo:uei.d contend that on the motion interiocutory ap.ipViica.t.'i:ori respondent, the magistrate did not grant an'~-i.fexpa'rte'~" order'. He had ordered prior notice of the appiiciation for grant of interim reiief. In response to the --..n'o»tic: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 iv" '51' J; -(,, the basis of affidavit filed by the respondent--wife without taking into consideration the grounds urged the petitioner. 8. Per contra, learned counsel for .t_h'e-..,resl_ponden~t:V"~__ wife wold contend that the impugnedidorder infirmity, legal or otherwise, as tl1.e"'provisi,o'ris"of SiectioVn'~~ih 23 of the Act permits a mag'istrate to"'gra'ntV-iinterim relief on an application for.sfu~c,h re'ldi"ef,' e-:t,i._e,'l"'sl,i,hmitsVthat for grant of interim relief, all that the to consider is prima facie ,~cas,e," 'lihat cou'i'd:"i§.e~lascertained from the affidavit and'loth,evdi'4idocurnents filed by the applicant, and no detailed ,inqu.iryl:.'i's :_n'e.ces'sary for grant of interim order. Therefore, were no ground to interfere with the .....
9.' I advert to the contentions urged by both sides, ifijtaisv 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 respond.en't,"oif---Iiis . an order after notice to the respondent. Thus,»V-ai:d.ist~inctioril '*~ 2' has to be drawn between an par.te3ord.'e'r granting interim relief and.'a.{i order' passeld;vg,ran_l:ing interim relief after notice to the"'re_s'poVnde'nt., iiffit not an ex parte order, then the_."proc.edi,ire *4pi=es"c.ri_bed by Code of Criminal Procedure as rgeferlredflto i'n~v,.'sul.b5s'ection (1) of Section 28 of theghct becciirne-s'"apVp:l'i'ca.blie. If it is an ex parte order', 'thenfiielprloced'-tihre prescribed by sub-section (2) of Section 23 me i\c:t..'i'would be applicable. V 'Frorn"vs_ub--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 ':p.roced,ure" for enquiry as prescribed by the Cr.P.C., 1973 followed. Therefore, it can safely be concluded 'fiithlat 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"bee'n. ai'£..ow;ede,:"di_reCti'nq7 the petitioner to pay Rs.V50,Ot5O/:~i'~__ztoward.s"-medicai"--, expenses and Rs.25,000/--
Both these directions va---re' wit.ri'o'ut_:'inq'u.i._ry and"'h'eVnce are unsustainable. The has further directed him t.Q'._I::):':.E|}/. food, clothing and other petitioner therein and Rs,10,00G/--«--~t'h'ea"--:ech'iIedrene, in all, Rs.30,000/--. Since it requires remand for fresh inquiry intoxtheev.cia-i_m'..Vof«...tehe respondents, the direction .»..i'ssue_d3,to__eA'the respo.ndent--husband to pay Rs.50,000/-- V".toviiards expenses and Rs.25,000/-- as compe'r1'sationj'j§Fo1'r 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 Rs.4,05,000/--, the respondent are permitted to withdraw the same. 1' /' i r sl's.r:.<ygri*_ i
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However, he is directed to pay Rs.8,000/-- p.m. till further orders are passed by the magistrate on the interim relief.
25. The petition is, therefore, ai,lowed.? fm.pug'ne'd':o.rd'e,rn is set aside. The learned.»ntr_iai to reconsider the application filed for grant of interim relief appiying_"t«~he --proV~cAe'd'ur,eAprescribed for trial of summons case under... Procedure, after giving tofiVt'he:"p'etitioner and the respondent jig? as they may choose.
Keeping ofmthe Act, the learned trial judge 'i's.__,'directeo.:--l.,"'t§*--.,_yii'sp.ose of the matter as expeditiously_askpossii:i'le iwituhin an outer limit of three inon't'h.s date ofvreceipt of a copy of this order. Eflf-75 Jtzdgé