The Madras High Court dismissed a criminal revision challenging orders dismissing a petition to set aside an ex parte interim order under Section 23 of the DV Act. The Court held that the Act contains no provision to set aside such orders other than via appeal under Section 29.
Criminal Revision Case dismissed; connected miscellaneous petition closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.06.2016
CORAM:
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
Crl.R.C.No.1179 of 2015
and
M.P.No.1 of 2015
A.Suresh Anto ... Petitioner
Vs. Anto Teena Mary ... Respondent
Prayer: Criminal Revision Case filed under Section 397 r/w. 401 of the Code of Criminal Procedure, praying to allow this criminal revision by setting aside the order dated 27.08.2015 passed by the learned XVI Additional Sessions Judge, Chennai, in C.A.No.169 of 2012 on his file and direct that the original petition in M.P.No.114 of 2012 in M.P.No.59 of 2012 in C.C.No.1854 of 2012 on the file of the learned X Metropolitan Magistrate, Egmore, Chennai, and direct the learned Magistrate to take up M.P.No.114 of 2012 for enquiry in C.C.No.1854 of 2012.
For Petitioner : Mr.M.Rajavelu For Respondent : Mr.M.Baskaran ORDER
This Criminal Revision Case is filed by the petitioner praying to allow this criminal revision by setting aside the order dated 27.08.2015 passed by the learned XVI Additional Sessions Judge, Chennai, in C.A.No.169 of 2012 and direct the learned X Metropolitan Magistrate, Egmore, Chennai, to take up M.P.No.114 of 2012 for enquiry in C.C.No.1854 of 2012.
(i) The respondent as a complainant filed a petition in M.P.No.59 of 2012 under Section 12 of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as the Act) seeking interim relief of Residence Order and monetary Reliefs per month under Section 23(3) of the Act. https://hcservices.ecourts.gov.in/hcservices/ The learned X Metropolitan Magistrate, Egmore, Chennai, after
hearing the petitioner and after perusing the petition, has passed an order on 14.05.2012 which reads as follows:-
"1. The respondents 2 to 4 stay away from the petitioner to prohibit violence against her.
(ii) As against the said order passed by the learned X Metropolitan Magistrate, Egmore, Chennai, the petitioner herein and the respondents in M.P.No.59 of 2012 have filed a petition in M.P.No.114 of 2012 before the learned X Metropolitan Magistrate, Egmore, Chennai, seeking to set aside the Ex-parte interim order passed in M.P.No.59 of 2012 in C.C.No.1854 of 2012. The learned X Metropolitan Magistrate, after hearing both parties, dismissed the said petition on 24.08.2012 and the said order reads as follows:-
"Heard and perused the petition and contentions, Argument and Notice filed by the petitioner/respondent in C.C.No.1854 of 2012. The other allegations of the petitioner is to be tried in the Main trial. The petitioner filed this petition to set aside the interim order passed by the Court. The other side argued this petition is not maintainable in Law and facts. The petitioner is ordered for only interim maintenance and the respondent can raise all the fact in the Trial. Hence, at this stage this petition is Dismissed as not maintainable in Domestic Violence Act."
(iii) As against the said order passed by the learned X Metropolitan Magistrate, Egmore, Chennai, in M.P.No.114 of 2012 in M.P.No.59 of 2012, the petitioner herein has preferred an appeal in Crl.A.No.169 of 2012 before the learned XVI Additional Sessions Judge, Chennai, and the learned Judge, after hearing both parties, dismissed the said criminal appeal confirming the order passed in M.P.No.114 of 2012 in M.P.No.59 https://hcservices.ecourts.gov.in/hcservices/ of 2012 in C.C.No.1854 of 2012, by the learned X Metropolitan
Magistrate, Egmore, Chennai. As against the dismissal order passed by the learned XVI Additional Sessions Judge, Chennai, in C.A.No.169 of 2012, the present criminal revision case is preferred by the petitioner before this Court.
"Peruse the application filed by the petitioner. In view of the urgency of the petitioner's petition, after perusing the petition, at this stage, it is ordered ...."
circumstances, it is useful to extract Section 23 of the Protection of Women From Domestic Violence Act, 2005 which reads as follows:-
"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 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 section 18, section 19, section 20, section 21 or as the case may be, section 22 against the respondent.
This clause provides for grant of interim orders by the Magistrate. He may also pass ex parte orders on the basis of affidavits given by the aggrieved person."
"25. Duration and alteration of orders.- (1) A protection order made under Section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate."
revocation of the order made under the said Act or has to prefer an appeal under Section 29 of the Act.
Crl.R.C.No.1179 of 2015 PPA(CO) CA(04/07/2016)
2 issues framed by the court
Whether an interim ex parte order passed under Section 23 of the Protection of Women from Domestic Violence Act, 2005 can be set aside via a maintenance petition under Section 25.
Whether the High Court was justified in dismissing the criminal revision seeking to quash the lower courts' orders regarding the maintainability of setting aside an interim DV order.
3 provisions across 2 enactments
A. Suresh Anto
Anto Teena Mary
G. Chockalingam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
