Allowed

Dr.Preceline George v. State of Kerala and Another

Kerala HC7 Jan 2010WP(C)/30948/2009

Case brief

AI extract

What is this about?

This writ petition interpreted the procedures for applications under the Protection of Women from Domestic Violence Act, 2005. The court held that ex parte ad interim orders under section 23(2) can be passed without notice in urgent cases, but notice and application copies must accompany them during subsequent hearings.

What did the court decide?

Directed Registrar to communicate guidelines to all Magistrates regarding service of notice in Form VII, accompanying application copies, and careful exercise of power for ex parte orders.

Dr.Preceline George Vs State of Kerala and Another — Domestic Violence | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931

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WP(C).No. 30948 of 2009(Q)

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--------------------------------------MC.62/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ERNAKULAM ....................

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PETITIONER(S):

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-----------------------

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DR. PRECELINE GEORGE @ ANTONY PRECELINE GEORGE, AGED 29 YEARS, S/O. A.T.GEORGE, HAVING PERMNANET ADDRESS AT ARAKKAL HOUSE, 36/3137, KATHRIKADAVU, KALOOR.P.O., ERNAKULAM, COCHIN-17, AND IS NOW RESIDING AT PLOT.NO.5, SOORYA GARDEN, MAROTTICHUVADU, EDAPPALLY.PO,COCHIN-24.

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BY ADV. MR.SANTHAN V.NAIR

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RESPONDENT(S):

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-------------------------

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1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVT. SECRETARIAT TRIVANDRUM, REPRESENTD BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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2. BENCY. N.L, (TREESA BENCY) AGED 26 YEARS, FEMALE, D/O. N.V. LONAPPAN, RESIDING AT 2391/60, VADHYAR ROAD, KALOOR, COCHIN.

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R1 BY GOVERNMENT PLEADER MR.S.U. NAZAR.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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M.SASIDHARAN NAMBIAR,J.

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===========================

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W.P.(C)No. 30948 OF 2009

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===========================

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Dated this the 7^th day of January,2010

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JUDGMENT

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What is the procedure to be adopted by a Magistrate while dealing with an application filed under section 12 of the Protection of Women from Domestic Violence Act,2005? Can an ex parte interim order without notice could be passed under section 23(2) without notice in favour of the aggrieved person? Whether along with a notice issued in an application filed

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under section 12 or 23(2), copy of the

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application is to be sent for service on the respondent? These are the questions to be

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decided in the petition.

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Petitioner is the first respondent and second respondent the applicant in M.C.62/2009

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on the file of Judicial First Class Magistrate Court-I, Ernakulam. Ext.P2 ex parte order

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was passed under section 23(2) of the Protection of Women From Domestic Violence Act (hereinafter referred to as the Act)without notice to the petitioner directing him not to enter into the compound of the house of the parents of the second respondent wife and also directing him to pay Rs.2500/- per month as an interim maintenance to the second respondent until further orders. Notice was issued to the respondent by Ext.P1 order dated 21.10.2009 in Form No.32 of Code of Criminal Procedure, the Form prescribed for issuing notice to the complainant under section 173 or 202 after making necessary alterations to appear on 31.10.2009. This petition is filed under section 482 of Code of Criminal Procedure to quash Ext.P2

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order. Learned counsel submitted that as the petitioner is not liable to pay the amount as

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provided under Ext.P2 and is aggrieved by the

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order, he has already filed an appeal before the Sessions Court, Ernakulam challenging Ext.P2 order

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as provided under section 29 of the Act.

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Learned counsel appearing for the

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petitioner and learned Public Prosecutor were

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heard.

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In view of the order to be passed in this petition, it is not necessary to issue notice to the second respondent, as Ext.P2 order is not to be varied or set aside in this petition, in view of the pendency of statutory appeal against Ext.P2 before the Sessions Court.

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Learned counsel appearing for the petitioner submitted that the subordinate courts dealing with

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the petitions filed under section 12 are not following the procedure provided under the Act and the Rules. It is submitted that even if an interim order is passed under section 23(2) of the Act, copy of the application filed under section 12 or application filed for interim order under section 23 are not being sent along with the order or notice, so that respondents to whom the notice is

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served cannot properly defend the case by

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appearing before the learned Magistrate. It is pointed out that Magistrates should be directed to serve copies of the petition along with the notice and interim orders. It is also pointed out that though the Rules provide Form VII notice to be served on the respondent, notices are not being issued in that Form and as a result on service of the order or notice, respondent cannot realise in what application the order is passed. In the light of the said submissions, the Registrar (Subordinate Judiciary) was directed to call for reports from all the Chief Judicial Magistrate and to submit a report whether the courts are following the procedure provided under the Act and the Rules.

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The report submitted by the Registrar, based on the reports obtained from the Chief Judicial Magistrates, discloses that there is no uniform practice being followed by the various courts of the State trying applications filed under section

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12 of the Act. It is also seen that in some

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courts, copies of the petition filed under section 12 are being forwarded along with the notice to be served on the respondent while in some courts it is not being done. So also in some courts notices are being issued in Form VII and in some other courts notices are being served without any prescribed Form. In such circumstances, it is necessary to give necessary directions to the trial courts to be followed in trial of applications under the Act so as to avoid complications and difficulties to the litigants.

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Similarly it is submitted that interim orders are indiscriminately passed under section 23 (2) of the Act ex parte, without issuing notice to the respondent, directing him to pay interim maintenance without applying the mind and without hearing the respondents and as a consequence parties are being compelled to file appeals which could be avoided if the order is passed after

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notice is served on the respondents. Learned counsel pointed out that though sub section (2) of Section 23 enables the Magistrate to pass even an

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ex parte order in favour of the aggrieved person under sections 18,19,20,21 or 22, sub rule (3) of Rule 12 provides that interim relief is to be

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granted only after service of notice and therefore an order under section 23(2) can be passed only after service of notice. This aspect is also to

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be considered in detail.

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Section 12 of the Act provides the

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application to be filed before the Magistrate in

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such form and contain such particulars as may be prescribed for one or more reliefs provided under the Act. Sub section (4) of Section 12 provides that 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 in court. Section 13 deals with the service of notice. Section 13 reads:-

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“Service of notice-

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(1)A notice of the date of hearing fixed under Section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.”

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Section 28 provides the procedure to be followed by the Magistrate under the Act. Under sub section (1), all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31

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shall be governed by the provisions of Code of Criminal Procedure. Sub section (2) provides that nothing in sub section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub section (2) of Section 23.

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Section 23 provides the power to grant

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interim and ex parte orders. Under sub section (1) in any proceeding before him under the Act, the Magistrate may pass such interim order as he deems just and proper. Sub section (2) enables the Magistrate to pass an ex parte order. Sub section (2) reads:-

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“(2) If the Magistrate is satisfied that an application

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prima facie discloses that

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the respondent is committing,

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or has committed an act of

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domestic violence or that

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there is a likelihood that

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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

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the respondent.”

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Rule 12 of the Protection of Women from Domestic Violence Rules, 2006 provides means of service of notices. Under sub rule(1) notices for appearance in respect of the proceedings under the Act shall contain the names of person alleged to have committed domestic violence, the nature of domestic violence and such other details which may facilitate the identification of persons concerned. Sub rule (2) deals with the manner of service of

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notices. Sub rule (2) reads:-

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“(2) The service of notices shall be made in the following manner, namely:-(a) The notices in respect of the proceedings under the Act shall be served by the Protection Officer or any other person directed by him to serve the notice, on behalf of the Protection Officer, at the address where the respondent is stated to be ordinarily residing in India by the complainant or aggrieved person or where the respondent is stated to be gainfully employed by the complainant or aggrieved person, as the case may be.

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(b) The notice shall be delivered to any person in charge of such place at the moment and in case of such delivery not being possible it shall be pasted at a conspicuous place on the premises.

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(c) For serving the notices Section 13 or any other provisions of the Act, the provisions under Order V of the Civil Procedure Code, 1908 (5 of 1908) or the provisions under Chapter VI of the Code of Criminal Procedure, 1973(2 of 1974) as far as practicable may be adopted.

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(d) Any order passed for such service of notices shall

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entail the same consequences,as an order passed under Order V of the Civil Procedure Code, 1908, or Chapter VI of the Code of Criminal Procedure, 1973 respectively, depending upon the procedure found efficacious for making an order for such service under section 13 or any other provision of the Act and in addition to the procedure prescribed under the Order V or Chapter VI, the Court may direct any other steps necessary with a view to expediting the proceedings to adhere to the time limit provided in the Act.”

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Sub rule (3) provides that on a statement, on the date fixed for appearance of the respondent, or a

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report of the person authorised to serve the notices under the Act, that service has been effected, appropriate orders shall be passed by the Court on any pending application for interim relief, after hearing the complainant or the respondent, or both. Under Sub rule (4), when a protection order is passed restraining the respondent from entering the shared household or the respondent is ordered to stay away or not to contact the petitioner, no action of the aggrieved person including an invitation by the aggrieved person shall be considered, as waiving the restraint imposed on the respondent,by the order of the court unless such protection order is duly modified in accordance with the provisions of sub section (2) of Section 25.

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Section 25 of the Act provides for duration and alteration of orders. Under sub section (1) a

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protection order made under Section 18 shall be in

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force, till the aggrieved person applies for discharge. Sub section (2) provides that on

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receipt of an application from the aggrieved person or the respondent, if the magistrate is satisfied

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that there is a change in the circumstances requiring alteration, modification or revocation of any order made under the Act, for reasons to be recorded in writing he may pass such order as he may deem appropriate.

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Form VII is the prescribed form of notice in the Rules for appearance under section 13(1) of the Act. Though the Form shows that it is as provided under Rule 11(1), it could only be a

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mistake for Rule 12(1) of the Rules.

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Though sub rule (1) of Rule 12 does not specifically prescribe that notice is to be issued to the respondent in Form No.VII, when Rule 12(1) is read along with Form VII, it can only be taken that the notice provided under Rule 12(1) should be

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in Form No.VII. If so all Magistrates before whom applications under section 12 of the Act are filed have to issue notices to the respondents on an application filed under section 12, in Form No.VII as prescribed under the Rules. It is pertinent to

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note that the Form VII notice directs the respondent to appear either personally or through a duly authorised counsel to show cause why the reliefs claimed against him shall not be granted and on the failure to appear ultimately that, court shall proceed ex parte against him. Clause (c) of sub rule (2) of Rule 12, makes it clear that for serving notices under section 13 or any other provision of the Act, the provisions of Order V of the Code of Civil Procedure or the provisions under Chapter VI of the Code of Criminal Procedure, as far as practicable may be adopted.

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As is clear from the statement of objects and reasons, the Protection of Women from Domestic Violence Act is enacted to provide for a remedy

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under the civil law, which is intended to protect

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the women from being the victims of domestic violence and to prevent the occurrence of domestic violence in the society. Therefore essentially the reliefs provided under the Act are civil remedies. The penal provisions are only section 31 and 33. Therefore service of notice on an application filed under section 12 or interim relief under section 23, must be in the manner provided under the Code of Civil Procedure.

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Order V of Code of Civil Procedure provides for issue of service of summons. Sub rule (1)

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provides that when a suit has been duly instituted, summons may be issued to the defendant, to appear and answer the claim and to file the written statement of his defence, within thirty days from the date of service of summons on the defendant. Sub rule (2) provides that every summons shall be

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accompanied by a copy of the plaint. Under clause

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Women from Domestic Violence Rules, for serving

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notice under section 13 of the Act, the provisions of Order V of Code of Civil Procedure is made applicable. Necessarily it is to be taken that as provided under Rule 2 of Order V of Code of Criminal Procedure, along with the notice, copy of the application filed under section 12 is also

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to be served on the respondent. Similarly if an

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interim ex parte order is passed under section 23 (2)or a notice is issued to the respondent on a petition filed under section 23(1), along with that notice copy of the application so filed shall

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also be served on the respondent. Notice is to be

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served on the respondent, on an application filed under section 12 or a petition filed for interim order under section 23(1) of the Act, to enable the respondent to defend the claim so raised against him. If so interest of natural justice, apart from the provision of Rule 12 of the Rules, warrants that copy of the application shall be served on the

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respondent. As it is reported that there is no

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uniform practice followed by all the courts, all the Magistrates dealing with the application under

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the Act shall, hereafter sent a copy of the petition filed under section 12 and a copy of the petition if any filed under section 23 (1) of the Act, along with the notice and interim orders, as provided under section 13 of the Act, to be served on the respondents.

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Then the question is regarding the power of the Magistrate to pass ex parte interim orders under section 23 of the Act, without notice to the respondents and if it could be passed, the discretion to be exercised by the Magistrate while passing the ex parte order.

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Sub section (2) of Section 23 of the Act specifically empowers a Magistrate dealing with an application under section 12 of the Act, to pass an ex parte order granting interim relief under section 18, 19,20,21 or 22 against the respondent,

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in favour of an aggrieved person on the basis of an affidavit, in such Form as may be prescribed by the Rules.

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The affidavit as provided under sub section 2 of Section 23 is to be filed as provided in Form III of the Rules. Form III though shows that it is as provided under Rule 6 (4) and 7, Rule 6 deals with the application to be filed before the Magistrate under section 12 as also the affidavit to be filed under section 23(2). Rule 7 deals with affidavit for obtaining ex parte order from the Magistrate under section 23(2) of the Act. Under

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Rule 7, every affidavit for obtaining ex parte order under sub section 2 of Section 23 is also to be filed in Form III. When sub section 2 of Section 23 specifically provides that the Magistrate on satisfaction of a prima facie case that respondent is committing an act of domestic violence, he may

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grant an ex parte order, on the basis of an affidavit of the aggrieved person in the prescribed

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form, it cannot be disputed that an ex parte order without notice could be passed. The Magistrate can definitely pass an ad interim order under section 23(2) without notice to the respondents, if the facts and circumstances of the case warrants such an ex parte order.

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Though learned counsel relying on sub rule (3) of Rule 12, argued that even such an ex parte order could be passed only after service of notice on the respondents and on his failure to appear and not prior to service of notice, I cannot agree with the submission. Sub rule (3) of Rule 12 only provides that on a statement, on the date fixed for appearance of the respondent, or on a report of the person authorised to serve the notices under

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the Act that service has been effected, appropriate orders shall be passed by the court, on any pending application for interim relief, after hearing the complainant or the respondent, or both. That order could only be the final interim

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order, passed under section 23(1) and not the ad interim order passed under section 23(2) of the Act. It is absolutely clear from Form III, affidavit to be filed to get an interim relief under section 23(2) of the Act. Paragraph 10 of Form III reads:-

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claimed in the accompanying

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application are urgent in as much as the applicant would face great financial

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hardship and would be forced to live under threat of repetition/ escalation of acts of domestic violence complained of in the

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accompanying application by the respondent(s), if the said reliefs are not granted on an ex-parte ad interim

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basis.”

It is thus clear that an interim ex parte order in favour of the aggrieved person and against the respondents could be passed, before notice to the respondent. But even if such an ex parte ad interim order is passed, a final order under section 23(1) is to be passed only after service of notice on the respondent. Till then it could only be an ad interim order. If the respondent fails to appear after service of notice, then a final order under section 23(1) modifying revoking,or altering the ad interim order could be passed, ex parte as provided under rule 12(3). Rule 12(3) of the Rules, is to be taken as the procedure to be followed, while passing a final order under section 23(1) and not an ad interim order to be passed under section 23(2).

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For the reason that a Magistrate is empowered to pass ad interim order under section 23(2) ex parte, it cannot be said that Magistrate

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has to pass ex parte ad interim order granting reliefs under section 18,19,20,21 or 22 in all

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cases. It is seen from several orders challenged before this court that indiscriminate interim ex

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parte orders are passed under section 23(2) of the

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Act compelling the parties to approach the

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Appellate court, by recourse to section 29 of the Act by way of appeal. While passing ex parte ad

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interim orders, Magistrates shall take the

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necessary care and caution. If an interim order need be passed only after service of notice, as no urgent relief without notice need be passed, there is no justification in passing an ex parte ad interim order before serving notice on the respondent. On the other hand, if an ad interim order is to be passed immediately, and any delay is prejudicial, then sub section (2) of Section 23 enables the Magistrate to pass an ad interim order, without notice to the respondent. Even if such ad interim order is passed without service of notice,

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on appearance of the respondent a final interim

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order is to be passed under section 23(1) with or without modification. Even if the respondent does

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not appear on service of notice, the Magistrate shall pass an interim final order Section 23(1) ex parte, with or without modification of the ex parte ad interim order. If an ad interim order under sub section (2) of Section 23 is passed without notice to the respondents, and no opportunity is granted to the respondents after service of notice to pass the final interim relief under section 23(1) respondents will be unnecessarily compelled to file an appeal as provided under section 29. Even the relief provided under sub section (2) of Section 25 will not serve the purpose as that section would be

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attracted only if there is a change in the circumstances. What is to be considered while passing an order under section 23(1) is whether the aggrieved person is entitled to an interim order

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either under section 18, 19, 20, 21 or 22. The Magistrates shall be careful while passing ad

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interim orders without notice under sub section (2) of Section 23. It is made clear that even without issuing notice to the respondent in appropriate cases, ad interim order under sub section (2) could be passed. But that order is to be made absolute with or without modification, after serving notice on the respondent. If the

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respondent does not appear, then an ex parte order as provided under Rule 12(3) is to be be passed under section 23(1). If respondent appears and objects, after hearing the respondent, appropriate order is to be passed as provided under section 23 (1). The order passed under sub section (2) would only be of ad interim in nature.

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In the light of the earlier findings the

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following guidelines could be laid to be followed by the trial courts dealing with the applications filed under the Act.

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(i) Notice of the application filed under section 12 of the Act shall be served as provided in Section 13, complying the procedure laid down in Rule 12 of Protection of Women from Domestic Violence Rules. (ii) The notice is to be send in Form VII as prescribed under the Rules. (iii) The notice to be served on the respondent shall be accompanied by copy of application filed under section 12 and 23 if any. (iv) The Magistrate can pass interim order under section 23(1) ex parte. But that ex parte order could be passed

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only after service of notice as provided under Rule 12(3) of the Rules. (v) The Magistrate can pass an ex parte ad interim order without notice to the respondent, as provided under section 23(2). (vi) In case an ex parte ad interim order is passed without notice, or service of notice on the respondent, on his appearance, after granting an opportunity to the respondent to object the claim and on hearing the applicant and the respondent, a final interim order under section 23(1) is to be passed with or without modification

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of the ad interim order. (vii) If on service of notice, the respondent fails to appear, Magistrate is to pass a final ex parte interim order under section 23(1) with or without modification of the ad interim order. (viii) Magistrates shall bestow care and caution in granting ad interim ex parte order under section 23(2). Such relief is to be granted only if urgent orders are warranted on the facts and circumstances of the case and delay would defeat the purpose or where an interim orders is absolutely necessary either to protect

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the aggrieved person or to

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prevent any domestic violence

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or to preserve the then existing position.

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Petition is disposed. Registrar is directed to communicate copy of the order to all District Judges/Chief Judicial Magistrates and Munsiffs/ Judicial First Class Magistrates.

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M.SASIDHARAN NAMBIAR JUDGE

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tpl/-

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M.SASIDHARAN NAMBIAR, J.

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--------------------W.P.(C).No.30948 /09

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JUDGMENT

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7TH January,2010