domestic violence remedy
nitya chandra
(Querist) 16 February 2014
This query is : Resolved
Respected members, what is the remedy if a person against whom domestic violence is filed does not appear while proceedings ??
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What are the grounds on which such person can have authority not to appear in the court ??
ajay sethi
(Expert) 16 February 2014
if inspite of service of summons respondent does not appear then court can decide application of complainant exparte . court can grant the complainant reliefs claimed in the complaint
V R SHROFF
(Expert) 16 February 2014
On proof of service of summon, court can go ahead Ex-Parte.
Devajyoti Barman
(Expert) 16 February 2014
Yes, if the opposite parties does not appear the court would hear the case ex-parte.
Advocate. Arunagiri
(Expert) 16 February 2014
Protection officer or the Court?
You have not said, before with authority, the complaint under the DV Act is filed.
You have not stated, who had issued summons?
Give more details for the purpose getting opinion.
alexander
(Expert) 16 February 2014
Order IX Rule 6 may be relevant:
Three scenarios are possible
(a) If it is proved that the summons was duly served, the court MAY make an Order that the suit be heard ex parte
(b) When summons NOT duly served : if it is NOT proved that the summons was duly served, the court shall direct a second summons to be issued and served on the respondent
(c) when summons served but not in DUE TIME: if it is proved that the summons was served on the respondent, but not in SUFFICIENT TIME to enable him to appear and answer on the day fixed
in the summons, the court shall postpone the hearing of the case to a future date to be fixed by the court and shall direct notice of such date to be given to the defendant/respondent
Furthermore Where owing to the Complainant's default the summons was not duly served or was not served in sufficient time, the court shall order the complainant to pay the costs occasioned by the postponement ( O IX R 6(2)
Devajyoti Barman
(Expert) 17 February 2014
Dear Alexander, in DV case CrPC applies not CPC.
alexander
(Expert) 17 February 2014
yes,That's right. Thanks
Rajendra K Goyal
(Expert) 17 February 2014
In case summons have been served and opposite parties does not appear, court may proceed ex-party.
In emergent and deserving case where court is satisfied, court may allow absence of the opposite party.
Biswanath Roy
(Expert) 17 February 2014
Apart from the aforesaid views of the experts relating to subject query I NEED MENTION HERE that summon is the direction of the court, if any body willfully and/or deliberately disobey that direction it will tentamounts to contempt of court although normally civil courts in our country ignores such disobedience but courts of foreign countries are very strict for such deliberate and willful disobedience and call for explanation from the defaulter.
Dr J C Vashista
(Expert) 17 February 2014
Being governed by Cr. PC (generaly), when respondent do not appear before the Court in a case under POWADV Act, the Court will issue arrest warrants, but not proceed ex-parte.
Advocate. Arunagiri
(Expert) 17 February 2014
DV Act, on receipt of the complaint directly to the Protection Officer, permits the protection officer to send summons to the Respondents.
On enquiry, the protection officer will send her report (all the protection officers are women only), to the magistrate, this is called Domestic Information Report.
On receipt of the DIR the magistrate may take cognizance of the case and will send court summons.
DV Act permits the magistrate to pass exparte interim orders as for as the shelfter and maintenance of the wife.
nitya chandra
(Querist) 18 February 2014
Respected Members, the probation officer had send summons to my father twice. But my father did not appear. The summons were served in proper time because my father in anger was showing me the summon. He has not given any reason to be absent from court. And since the begining of the case (the case started approx 6-8 months ago) he has not appeared even once in the court. So can my mother ask the Judge to declare him ex parte ?? After being declared as ex parte, will the warrant be issued or the court will give decision in my mother's favour?? and what about the interim ? Will it be decided in divorce proceedings or DV? (My father has filed divorce case on jan 18, 2013)
T. Kalaiselvan, Advocate
(Expert) 18 February 2014
The Protection of women from Domestic violence Act, 2005 was enacted to provide for more effective protection of the rights of women guaranteed under the constitution who are the victims of violence of any ind occurring within the family and for matters connected therewith or incidental thereto. It was enacted keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.
Now to the author's query: u/s 23 of the said act 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.
The relief envisaged as above.
Advocate. Arunagiri
(Expert) 18 February 2014
Ms.Nitya,,
Your information seems to contradictory, hypothetical.
You say you have received summon from probation officer. who is that probation officer.
You say your father had not appeared in the court. Protection officer is not a court officer.
Atleast you should give correct information.
T. Kalaiselvan, Advocate
(Expert) 18 February 2014
Yes expert Mr. Arunagiri's doubts to be cleared first to render proper suggestion/opinion. The protection officer/probation officer are not the ones who conduct the trial of the case, hence they do not have the power to grant any relief as envisaged in the law/act.
Dr J C Vashista
(Expert) 19 February 2014
I fully agree with expert Mr. Anuragiri's observation since Protection Officer has no right/authority to summon a respodent, it has to be issued by the Magistrate. The Protection Officer is appointed to assist the court in finding out factum of the violence and submit her report to the Court. Besides this, the Protection Officer can help the aggreived person in a specific manner as directed by the court.
Advocate. Arunagiri
(Expert) 10 September 2014
You have not answered me but, wants to close the query by saying "thnkyou sirs".
I could see you are posting numerous academic queries and imaginary queries.
If you have real problems you have to approach the experts by providing correct information.
Dr J C Vashista
(Expert) 10 September 2014
I fully agree with the observation made by expert Mr. Arunagiri, the author is in the habit of posting hypothetical queries, which require to be stopped by the Admin and bycotted by the esteemed members of LCI.
nitya chandra
(Querist) 11 September 2014
Well Adv. Arunagiri Sir and Dr. J C Vashishta Sir. I am not that kind of cheap that i will post the hypothetical queries by making them personal nature. My mother is fighting for the justice and our rights. You are not only the one putting question mark of our struggles. I an have facing the society too. It took a lot of courage for me to stand against my father's harassment for my self-respect, integrity and rights. I know I am only 19 and i cant fight with a CA with no understanding of laws. Thats the reason i am taking help of this site. I believe those who stand for truth dont neeed to give explanation that yeah they are speaking the truth. Only liers do that.
I am not answering your queries because i am unable to understand them. Whatever knowledge i am having through net, I am trying my best to help my mother with those. Every advocate here needs a good cash even for one query. I am not even continuing my education because my mother have no source of income and my father is filing fake court cases against her. We are sacrificing even our basic needs to give fees to lawyers.
I know Sir u are a lawyer, u deal with loads of lies everyday. But if u have any doubt on the reality of such question or u think these questions are hypothetical then i can provide you my contact number, my city along with the case numbers.
Sorry for being rude Sir. But its harassing how people become so judgmental that adds extra depression in someones life. And sir, If this platform wants to boycott my questions, then before doing that please tell me frankly. SO that i wont post my questions again with any fake hope.
