live in relation ship

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.2218 OF 2007

Mr.Abhijit Bhikaseth Auti .. Petitioner

Vs.

State of Maharashtra & Anr. .. Respondents

---

Mr.U.P.Warunjikar with Mr.Nites V. Bhutekar for the

petitioner.

Mr.D.P.Adsule, A.P.P for the State.

Mr. S.S.Kulkarni with Mr.Sachin P. Chavan for the

respondent No.2.

---

CORAM : ABHAY S.OKA, J.

DATE : 16th September 2008.

ORAL JUDGMENT:

. The submissions of the learned counsel appearing

for the parties were heard on the last date. Following

questions arise for consideration in this petition:

(i) Whether an order passed on an

application made under section 23 of the

Protection of Women from Domestic Violence Act,

2005 (hereinafter referred to as "the said Act")

is appelable under section 29 of the said Act?

(ii) Whether an appeal will lie under section

29 of the said Act against every order passed by

the learned Magistrate in proceedings initiated

on the basis of an application made under

: 2 :

section 12 of the said Act?

(iii) What is the scope of an appeal under

section 29 of the said Act?

Apart from aforesaid questions, there are factual

questions arising in this petition.

2. The 2nd respondent is the wife of the

petitioner. The marriage between the petitioner and the

2nd respondent was solemnised on 22nd April 2004.

According to the case made out by the 2nd respondent,

after marriage, she stayed alongwith the petitioner in

Flat No.B-10, Rambaug Colony, Kothrud, Pune. As the 2nd

respondent found it inconvenient to attend to her duty

by residing at the said premises, a flat being Flat

No.B-13, Yashganga Residency, near Trimurti Hospital,

Dhayari Phata, Pune was jointly acquired by the

petitioner and the 2nd respondent. It is this flat

which is the subject matter of dispute in this petition

which is hereinafter referred to as "the said flat". It

appears that there was a matrimonial dispute between the

petitioner and 2nd respondent. The 2nd respondent filed

an application under section 12 of the said Act before

the learned Judicial Magistrate First Class, Court No.4,

Pune seeking protection order under section 18 of the

: 3 :

said Act. The prayer in the said application is that

the petitioner should be prohibited from committing any

act of domestic violence and also from causing any kind

of alienation of the said flat and from causing any

disposition of the said flat or any encumbrance thereto

and from preventing the 2nd respondent from having

access to and fro to the said flat and enjoying the said

flat as a residence. A prayer was also made for

restraining the petitioner from preventing the enjoyment

of the 2nd respondent of the said flat as a shared

household. A relief was also sought under section 19 of

the said Act.

3. An application was made by the 2nd respondent in

the main application under section 12 of the said Act

praying for grant of interim relief in respect of said

flat. The said application was opposed by the

petitioner by filing a reply. The petitioner filed a

combined reply to the main application as well as to the

application for interim relief. The said application

was partly allowed by the learned Magistrate by order

dated 01st March 2007. The prayer made for interim

relief as regards residential accommodation was rejected

and a limited relief was granted preventing the

petitioner from alienating the stridhan in his

possession. The 2nd respondent preferred an appeal

under section 29 of the said Act. By impugned judgment

: 4 :

and order dated 15th October 2007, the appeal was partly

allowed by the Sessions Court. The relevant part of the

operative order read thus:

"[3] The appellant/original applicant- Smt.

Nisha Abhijit Auti is entitled to reside in Flat

No.B-3, Yashganga Residency, Near Trimurti

hospital, Dhayari Phata, Pune, during the

pendency of the criminal proceeding.

[4] The respondent No.1/opponent-husband is

restrained from dispossessing or disturbing the

possession of the appellant/applicant-wife from

the share household i.e- the said flat, during

the pendency of the main proceeding.

[5] The respondent No.1/opponent-husband is

further restrained from creating any

encumbrances or third party interest in the said

flat during the pendency of the main proceeding.

[6] The officer in charge of the nearest

police station within the jurisdiction of which

the said flat lies is directed to give

protection and assistance to the applicant-wife

while implementing this order."

: 5 :

4. The learned counsel appearing for the petitioner

has taken me through applications filed by the 2nd

respondent and the orders passed by the learned

Magistrate as well as by the Sessions Court. He pointed

out that in the reply filed by the petitioner there was

a categorical assertion that the petitioner never denied

the residential accommodation of the said flat to the

2nd respondent and therefore there was no occasion to

grant any interim relief in respect of said flat. The

learned counsel for the petitioner pointed out that

though the said flat is purchased in the joint name of

the petitioner and the 2nd respondent, the loan taken by

them for acquiring the said flat was being repaid only

by the petitioner and there is no contribution

forthcoming from the 2nd respondent for repayment of the

loan. Without prejudice to his rights and contentions,

he submitted that if the 2nd respondent gives consent

for selling the said flat, another accommodation can be

made available elsewhere to the 2nd respondent.

5. He submitted that no appeal will lie under

section 29 of the said Act against an interlocutory

order and hence the appeal preferred by the 2nd

respondent was not maintainable. He has placed reliance

on several decisions of this Court and Apex Court in

: 6 :

support of his submissions. His submission was that

only against a final order passed by the learned

Magistrate on application under section 12 of the said

Act, an appeal will lie under section 29 and the order

dated 01st March 2007 passed by the learned Magistrate

being purely an interlocutory in nature, the appeal

itself was not maintainable. In any event, he submitted

that there was no occasion to grant interim relief in

respect of the said flat and no case was made out for

granting any interim protection.

6. The learned counsel appearing for the 2nd

respondent submitted that under section 29 of the said

Act, an appeal was maintainable against every order

passed under the provisions of the said Act. He

submitted that an appeal will lie even against an

interim order passed under section 23 of the said Act.

He submitted that interim order passed under section 23

cannot be treated as purely an interlocutory order and

infact such orders are orders of moment affecting the

rights of the parties. He submitted that the decisions

relied upon by the counsel for petitioner and especially

the decision of the Division Bench of this Court under

the provisions of the Recovery of Debts Due to Banks and

Financial Institutions Act, 1993 will have no

application as the scheme of the said Act is totally

different. He pointed out the objects and reasons of

: 7 :

the said Act. He invited my attention to the scheme of

the entire Act and submitted that no interference was

called for. He also stated that the order impugned has

been already acted upon.

7. I have carefully considered the submissions.

The object of the said Act is to provide for more

effective protection of the rights of women guaranteed

under the Constitution who are victims of violence of

any kind occurring within the family and for matters

connected therewith or incidental thereto.

8. Section 3 of the said Act defines domestic

violence. The definition of domestic violence is very

wide and apart from other aspects it encompasses within

itself physical abuse, verbal abuse, s*xual abuse,

emotional abuse and economic abuse. Section 12 forming

part of Chapter IV of the said Act provides for an

application being made by an aggrieved person or a

protection officer or any other person on behalf of

aggrieved person. The application is maintainable

before a Judicial Magistrate First Class or a

Metropolitan Magistrate as the case may be. Aggrieved

person as defined by clause (a) of section 2 means any

woman who is or has been in a domestic relationship with

the respondent and who alleges to have been subjected to

any act of domestic violence by the respondent.

: 8 :

Sub-section 3 of section 12 provides that every

application under sub- section 1 shall be in such form

and contain such particulars as may be prescribed. The

Protection of Women From Domestic Violence Rules, 2006

(hereinafter referred to as the said Rules) have been

framed under the said Act. Rule 6 and 7 are the

relevant rules which lay down the procedure. The said

rule 6 and rule 7 are as under:

"6. Application to the Magistrate:- (1)

Every application of the aggrieved person under

section 12 shall be in Form II or as nearly as

possible thereto.

(2) An aggrieved person may seek the

assistance of the Protection Officer in

preparing her application under sub-rule (1) and

forwarding the same to the concerned Magistrate.

(3) In case the aggrieved person is

illiterate, the Protection Officer shall read

over the application and explain to her the

contents thereof.

(4) The affidavit to be filed under

sub-section (2) of section 23 shall be filed in

: 9 :

Form III.

(5) The applications under section 12 shall

be dealt with and the orders enforced in the

same manner laid down under section 125 of the

Code of Criminal Procedure, 1973 (2 of 1974).

7. Affidavit for obtaining ex-parte orders

of Magistrate:- Every affidavit for obtaining

ex-parte order under sub-section (2) of section

23 shall be filed in Form III."

9. Form II of the said Rules incorporates a format

of the application under sub section 1 of section 12.

The format requires that the nature of reliefs sought

shall be incorporated in the application. Sub rule 5 of

rule 6 provides that an application under section 12

shall be dealt with and the orders passed thereon shall

be enforced in the same manner laid down under section

125 of the Code of Criminal Procedure, 1973 (hereinafter

referred to as "the said Code"). The procedure which

governs an application under section 125 of the said

Code will apply to the proceedings of an application

under section 12 of the said Act. The procedure

contemplated by Chapter IX of the said Code which deals

with applications under section 125 is a summary

: 10 :

procedure as indicated by sub-section 2 of section 126

of the said Code. Section 128 provides for enforcement

of the order of maintenance. Thus, the orders passed by

the learned Magistrate under the said Act are

enforceable in the same manner as provided under section

128 of the said Code.

10. While dealing with the procedure, it will be

necessary to refer to section 28 of the said Act which

reads thus:

"28. Procedure:- (1) Save as otherwise

provided in this Act, all proceedings under

sections 12, 18, 19, 20, 21, 22, and 23 and

offences under section 31 shall be governed by

the provisions of the Code of Criminal

Procedure, 1973.

(2) 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 (2 of

1974)."

11. The reliefs which can be granted on an

: 11 :

application under section 12 the said Act can be broadly

classified as under:

(i) protection orders under section 18 which

are for preventing the respondent from

committing an Act of Domestic Violence;

(ii) residence orders under section 19;

(iii) Monetary relief under section 20 which

includes maintenance, loss of earnings, medical

expenses and loss caused due to destruction,

damage or removal of any property from the

control of the aggrieved person;

(iv) custody orders under section 21 dealing

with temporary custody of any child or children

to the aggrieved person or visitation rights to

aggrieved person under section 21; and

(v) compensation orders under section 22.

12. Section 17 reads thus:

: 12 :

" 17. Right to reside in a shared

household: household:(1) Notwithstanding anything contained

in any other law for the time being in force,

every woman in a domestic relationship shall

have the right to reside in the shared

household, whether or not she has any right,

title or beneficial interest in the same.

(2) The aggrieved person shall not be

evicted or excluded from the shared household or

any part of it by the respondent save in

accordance with the procedure established by

law."

13. Sub section (1) of section 17 starts with a

non-obstante clause which has over-riding effect over

other statues. The sub-section provides that every

women in a domestic relationship shall have right to

reside in a shared household whether or not she has any

right, title or beneficial interest in the same. This

is indeed a provision which enlarges the scope of the

concept of matrimonial home under the existing laws

dealing with matrimonial relationship. This is in the

context of the definition of domestic relationship under

clause (f) of section 2 which means relationship between

two persons who live or have, at any point of time,

: 13 :

lived together in a shared household, when they are

related by consanguinity, marriage, or through a

relationship in the nature of a marriage. The

definition of shared household under section 2(s) of the

said Act is very wide. It even includes a household

which may belong to the joint family of which the

respondent is a member. Section 19 which gives power to

the Magistrate to pass residence orders providing for

grant of various orders in relation to a shared

household for protecting the rights of the aggrieved

person to occupy a shared household. The learned

Magistrate in a given case can even direct the

respondent to remove himself from a shared household.

14. Section 23 of the said Act reads thus:

"23. Power to grant interim and ex parte

orders:- (1) In any proceedings 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

: 14 :

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."

15. There was some debate before this Court as

regards the spheres in which sub section 1 and sub

section 2 of section 23 operate. A contention was

sought to be raised by the learned counsel appearing for

the 2nd respondent that power under sub section 2 is

confined to granting interim reliefs under sections 18

to 22 of the said Act and the power under sub-section 1

is a larger power which extends to grant of any interim

order as the learned Magistrate deems it just and proper

which may not be covered even by any of the sections 18

to 22. On plain reading of section 23, the legal

position appears to be different. This Court has

already held that when an aggrieved person desires to

claim any interim relief under section 23 of the said

Act, it is not necessary for the aggrieved person to

take out a separate application for interim relief and

the only requirement of law is that an affidavit in

prescribed Form III of the said rules has to be filed by

the aggrieved person. Sub- section 2 provides that when

: 15 :

such an affidavit is filed in the prescribed form by the

aggrieved person and if the application under section

12(1) of the said Act prima facie discloses that the

respondent thereto 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,

the learned Magistrate may grant exparte order under

sections 18, 19, 20, 21 or as the case may be under

section 22 against the respondent. Thus, sub-section 2

of section 23 confers a power on the Magistrate to grant

an exparte ad-interim relief. The said exparte

ad-interim relief can be granted in terms of reliefs

under section 18 to section 22 of the said Act.

Sub-section 1 deals with grant of an interim relief or

interim order. Thus, the scheme of the section 23

appears to be that under sub-section 2 on the basis of

an affidavit, an exparte ad-interim order without prior

notice to the respondent can be passed by the learned

Magistrate in terms of sections 18, 19, 20, 21 or 22 of

the said Act against the respondent. Sub section 1

provides for passing an interim order which is to

operate till the final disposal of the main application

under sub section 1 of section 12 or till the same is

modified earlier. Though a separate application is not

necessary to be made for grant of interim relief,

principles of natural justice require that before

granting interim relief in terms of sub section 1 of

: 16 :

section 23, the respondent in the main application will

have to be heard. Therefore, before granting interim

relief under sub section 1 of section 23, a notice will

have to be served to the respondent. It is well settled

position of law that an interim relief can be granted

only in the aid of final relief which can be granted in

the main proceedings. In the case of proceedings under

sub section 1 of section 12 of the said Act, the learned

Magistrate can pass final orders covered by sections 18,

19, 20, 21 or 22 of the said Act and therefore it is

obvious that interim order which can be granted under

sub section 1 of section 23 can be only in terms of

reliefs provided for in sections 18 to 22 of the said

Act. Under sub section 1 of section 23 a relief which

is not covered by any of the sections 18 to 22 of the

said Act cannot be granted. Thus in short, the power

under sub-section 2 of section 23 is of grant of an

ex-parte ad-interim relief in terms of sections 18 to 22

of the said Act and the power under sub-section (1) is

of grant of interim relief pending final disposal of the

main application under section 12(1) of the said Act.

16. It will be necessary to refer to section 29 of

the said Act which reads thus:

"29. Appeal:- There shall lie an appeal to

the Court of Session within thirty days from the

: 17 :

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."

17. On plain reading of the section 29 which

provides for an appeal to the Court of Sessions against

an order made by the Magistrate which is served on the

aggrieved person or the respondent as the case may be.

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.

18. Certain submissions were made on the basis of a

decision of Division Bench of this Court in the case of

Central Bank of India Vs. Kurian Babu (2004 (4)

Maharashtra Law Journal 1006). In the said decision,

the Division Bench of this Court has dealt with

provision of appeals under section 20 of the Recovery of

Debts Due to Banks and Financial Institutions Act, 1993

(hereinafter referred to as the said Act of 1993).

: 18 :

After considering the decision of the Apex Court in the

case of Central Bank of India Vs. Gokal Chand (AIR 1967

SC 799) as well as in the case of Shankarlal Aggarwal

Vs. Shankarlal Poddar (AIR 1965 SC 507), the Division

Bench held that though section 20 of the said Act

provides for an appeal against every order made by the

tribunal constituted under the said Act of 1993, the

orders which are purely procedural which do not affect

the substantive rights of the parties are not appelable

under section 20(1) of the said Act of 1993.

19. It will be necessary to consider the decision of

the Apex Court in the case of Shankarlal Aggarwal

(supra). The Apex Court was dealing with a provision

relating to an appeal under section 202 of the Companies

Act, 1913 which provided for an appeal from any order or

decision given in the matter of winding up of the

company by the Court. The Apex Court held that by

virtue of section 202 of the said Act of 1913, an appeal

will not lie against purely procedural orders which do

not affect the rights or liabilities of the parties. In

the case of Central Bank of India (supra), the Apex

Court was dealing with section 38 of the Delhi Rent

Control Act, 1958 which provided for an appeal against

every order passed by the Controller. The Apex Court

relied upon the decision in the case of Shankarlal

Aggarwala (supra) and held that though the phraseology

: 19 :

used in the section 38 was very wide, the said section

excludes merely procedural orders or orders which do not

affect the rights or liabilities of the parties.

20. Now turning to section 29 of the said Act, it is

true that an appeal will lie against every final order

passed by a learned Magistrate. The question which

arises is whether an appeal will lie against an ex-parte

ad-interim order passed under sub-section 2 and against

an interim order under sub section 2 of section 23. The

learned counsel appearing for the 2nd respondent relied

upon the decision of the Apex Court in the case of

Amarnath and others Vs. State of Haryana and others

(AIR 1977 Supreme Court 2185). He submitted that every

interim order cannot be treated as an interlocutory

order. He submitted that as observed by the Apex Court

there are orders which are matters of moment and which

affect or adjudicate the rights of the parties or a

particular aspect of the trial. He pointed out that the

Apex Court has held that such orders cannot be

interlocutory orders. On plain reading of section 29 of

the said Act, the orders which are made under subsection

1 and sub section 2 of section 23 will have to

be held to be an orders made by Magistrate under the

provisions of the said Act. The power under section 23

is of grant of ex-parte ad-interim and interim relief in

terms of sections 18 to 22 of the said Act. Therefore,

: 20 :

the orders passed both under sub section 1 and sub

section 2 will be appelable. However, the scope of

interference in appeal against such ad-interim or

interim orders will be naturally limited. The orders

contemplated by section 23 are discretionary orders.

The Apex Court had an occasion to deal with the power of

the Appellate Court and scope of appeals against interim

orders which are discretionary in nature. In the case

of Ramdev Food Products Pvt Ltd Vs. Arvindbhai Rambhai

Patel & others [(2006) 8 Supreme Court Cases 726] the

Apex Court dealt with an appeal provided under rule 1(r)

of Order XLIII of the Code of Civil Procedure, 1908

against an interim order of injunction. Paragraph

Nos.125 and 126 of the said judgment read thus:

"125. We are not oblivious that normally the

appellate Court would be slow to interfere with

the discretionary jurisdiction of the trial

Court.

126. The grant of an interlocutory injunction

is in exercise of discretionary power and hence,

the appellate courts will usually not interfere

with it. However, the appellate courts will

substitute their discretion if they find that

: 21 :

discretion has been exercised arbitrarily,

capriciously, perversely, or where the court has

ignored the settled principles of law regulating

the grant or refusal of interlocutory

injunctions. This principle has been stated by

this Court time and time again." (Emphasis

added)

21. In view of what is held by the Apex Court, while

the Court of Sessions deals with an appeal from an order

made under section 23, the Court of Sessions will be

governed by the aforesaid constraints. Thus, the scope

of appeal against an order under section 23 will be

limited. While dealing with an appeal against an

ex-parte ad-interim order, the Sessions Court will be

very slow in interfering with such orders unless the

orders are perverse or patently illegal. However, the

scope of an appeal against a final order on application

under section 12(1) of the said Act will not be governed

by the aforesaid constraints.

22. As held by the Apex Court in the case of Central

Bank of India (supra) and Shankarlal Aggarwal (supra),

an appeal under section 29 will not be maintainable

against the purely procedural orders such as orders on

application for amendment of pleadings, orders refusing

: 22 :

or granting adjournments, order issuing witness summons

or orders passed for executing the orders passed under

the said Act etc.

23. My attention was also invited to section 26 of

the said Act. If relief under the provision of sections

18 to 22 of the said Act is granted by a Civil Court or

Family Court, an appeal will not lie under section 29 in

as much as an appeal under section 29 will lie only

against an order of the learned Magistrate.

24. Now turning to the facts of the case in hand, it

must be stated that it is an admitted position that the

said flat has been acquired in the joint names of the

petitioner and the 2nd respondent. It is true that in

the reply filed by the petitioner he has stated that he

has never denied residential accommodation of the said

flat to the 2nd respondent. However, while considering

the prayer under section 23 of the said Act, the learned

Magistrate is required to consider the averments made in

the main application under sub section 1 of section 12.

The learned Additional Sessions Judge has adverted to

the averments made by the 2nd respondent and has passed

a discretionary order granting protection to the 2nd

respondent in respect of said flat which prima facie

appears to be a shared accommodation within the meaning

of section 17 of the said Act. In so far as suggestion

: 23 :

given by the counsel appearing for the petitioner is

concerned, the parties cannot be compelled to accept the

said suggestion. The order passed by the learned

Additional Sessions Judge is an interim order which will

remain in force till final disposal of application under

sub section (1) of section 12 of the said Act. In view

of the admitted position that the flat is acquired in

the Joint names of the petitioner and 2nd respondent, no

case for interference is made out.

25. Thus, the conclusions which can be summarised

are as under:

(i) An appeal will lie under section 29 of

the said Act against the final order passed by

the learned Magistrate under sub-section 1 of

section 12 of the said Act;

(ii) Under sub-section 2 of section 23 of the

said Act, the learned Magistrate is empowered to

grant an ex-parte ad-interim relief in terms of

sections 18 to 22 of the said Act. The power

under sub-section 1 is of granting interim

relief in terms of sections 18 to 22 of the said

Act. Before granting an interim relief under

sub-section 1, an opportunity of being heard is

required to be granted to the respondent.

: 24 :

(iii) 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. However, while

dealing with an appeal against the order passed

under section 23 of the said Act, the Appellate

Court will usually not interfere with the

exercise of discretion by the learned

Magistrate. The appellate Court will interfere

only if it is found that the discretion has been

exercised arbitrarily, capriciously, perversely

or if it is found that the Court has ignored

settled principles of law regulating grant or

refusal of interim relief.

(iv) An appeal under section 29 will not be

maintainable against purely procedural orders

which do not decide or determine the rights and

liabilities of the parties.

26. Before parting with this judgment, appreciation

has to be recorded about the able assistance given by

the learned counsel appearing for the petitioner and 2nd

respondent.

: 25 :

27. Hence, I pass the following order:

(i) The petition is rejected with no orders

as to costs.

(ii) The learned Magistrate will finally

decide the application under sub section

1 of section 12 of the said Act within a

period of three months from the date of

production of authenticated copy of

operative part of this order.

(A.S. Oka, J)