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2007 Supreme(AP) 224
Andhra Pradesh High Court
Judges : R.BASANT
SULOCHANA - Appellant
Versus
KUTTAPPAN - Respondent
Decided On : 02/27/2007
Cri. M. C. 284 Of 2007
Headnote:Protection of Women from Domestic Violence Act, 2005 - Section 23 and 29 - Appeal against an order under the Act - Whether appeal would be maintainable against interim exparte order passed u/s 23 of the Act? Yes - Petitioners, mother and her child, approached Magistrate with application u/s 12 of the Act claiming relief u/s 19 and 20 of the Act - Magistrate passed exparte interim order directing respondent husband to allow petitioner to reside in his house, restraining from causing any disturbance to peaceful residence of petitioner and to pay Rs. 2000/- and Rs. 1250 to petitioners respectively - Respondent filed appeal - Sessions Court after admitting appeal stayed order passed by Magistrate - Whether appeal was maintainable against exparte interim order? Yes.
Held : Going by the plain language of S.29, I have no hesitation to agree that the expression ‘the order’ must take within its sweep all orders passed under Ss. 18 to 23 and I find no reason to exclude, going by language and semantics, an order passed under S.23 from the sweep of the expression ‘the order’ in S.29. (Para 12)
It is not necessary to look for specific exclusion in such a provision stipulating the right of appeal to exclude from it purely procedural orders. Notwithstanding the fact that S.29 does not specifically exclude interlocutory orders, it is easy to come to the conclusion that S.29 does not contemplate a challenge in appeal against orders which are purely procedural in nature. It will not be inapposite in this context to note that the legislature has not thought it fit to specifically exclude even such interlocutory orders from the play of S.23. But however, even in the absence of such specific exclusion, purely procedural orders which are only steps in aid for the final disposal of an application under S.12 claiming reliefs under Ss. 18 to 22, can be excluded from the sweep of the expression ‘the order’ in S.29. What is important to note is that the legislature has not thought it fit to exclude even such purely procedural orders from the sweep of S.29 by employing specific words to that effect. Such a restriction can certainly be inferred from the purpose of the provision for appeal as also from the interpretation of similar and identical provisions in Sumathi v. Devasan [1991(1) KLT 453], Sidharthan v. Hassankutty Haji [1994(2) KLT 419]. (Para 15)
The counsel for the petitioners raises a further contention that under S.12(4) normally an ex parte interim order will have a life of only 3 days and it is not necessary in these circumstances to confer on a person who has suffered an exparte interim order with a right to appeal under S.29. I am unable to accept this contention. Of course, under S.12(4), the first date of hearing must be within 3 days of the date on which the court passed the order. But the ex parte interim order may live longer. Moreover in a case depending on the place where the respondent is, the date of first hearing may suitably be fixed on a later date and in such event also, the period of life of the interim order may be longer. The mere fact that the respondent who has suffered the interim order can go to the Magistrate seeking modification of the order passed under Section 23 and can secure an order with expedition is also according to me no ground to interpret S.29 to exclude any right of appeal against an interim order under S.23. (Para 21)
The learned counsel for the petitioners further submits that an order of stay has been granted without due and proper application of mind. I find force in this submission. The court had not even referred to the contentions of the parties. The nature of the order of suspension passed also reveals that there has been no due and proper application of mind. In the same manner in which a sentence is suspended, an order of suspension has been passed also. An appellate court considering the admission of an appeal and considering grant of stay against the interim orders appealed against, must certainly and alertly consider all the circumstances and then only grant interim orders of suspension. Not to do so, would be to do violence to the statutory rationale underlying a welfare statute enacted by the Parliament. I am in agreement with the learned counsel for the petitioner that great care and caution must be applied before granting ex parte orders of suspension/stay in appeals preferred under S.29 of the Act. (Para 23)
Result : Cr.M.C. dismissed with order accordingly.
( 1 ) IS an appeal maintainable under section 29 of the Protection of Women from domestic Violence Act, 2005 (hereinafter referred to as "the Act")against an interim ex parte order passed under Section 23 of the act? This crucial question is to be decided in this Crl. M. C. The parties are being referred to in this order in the manner in which they are ranked before the learned Magistrate.
( 2 ) THE petitioners - mother and her child, had approached the learned Magistrate with an application under Section 12 of the Act claiming relief under Sections 19 and 20 of the act. The learned Magistrate passed an exparte interim order, copy of which is produced as Annexure-4, directing the 1st respondent/alleged husband to allow the petitioners to reside in his house and restraining him from causing any disturbance to the peaceful residence of the petitioners in that house. There was also a further ex pane interim direction that the 1st respondent must pay an amount of Rs. 2,000/- and Rs. 1,250/- per mensem to petitioners 1 and 2 respectively. That order was passed on 01-01-2007. The respondents there upon rushed to the Sessions court and the Sessions Court after admitting the appeal granted an interim stay. Copy of that order is produced as Annexure-6. The order of the Magistrate was suspended on condition that the petitioner shall execute a bond for Rs. 5,000/- with two solvent sureties each for the like sum to the satisfaction of the court below within a period of one month from the date of the said order.
( 3 ) THE learned counsel for the petitioners contends that no appeal under Section 29 is at all maintainable against an interim ex parte order passed under Section 23. In these circumstances, he contends that the entertainment of the appeal by the learned sessions Judge is not legal and justified.
( 4 ) THE learned counsel for the petitioners further contends that at any rate, the insensitive manner in which the order of suspension/stay (Annexure-6) was granted, is objectionable and the learned Sessions Judge did not apply his mind to the nature of the relief that was granted to the petitioners or the contentions of the parties before the said blanket order of suspension was granted.
( 5 ) THE contentions call for a detailed consideration of the provisions of Section 29 of the Act. It will be apposite in this context to refer to the scheme of the Act. Reference to the Statement of Objects and Reasons of the act clearly show that the Act is a piece of civil law conferring on the victim women civil rights. Provision is also made for the redressal of their grievances though the structure provided under the criminal law. It will be apposite to alertly note that the Act is a piece of civil law which is sought to be implemented through the instrumentality of the courts constituted under the Code of Criminal Procedure. The only penal provision in the Statute against a party-respondent is the one in Section 31 of the Act. Chapter 1 containing Sections 1 and 2 deals only with the short title, extent and commencement and the definitions. Shared household is defined in Section 2 (s) and domestic violence is defined in Section 2 (g)read with Section 3 of the Act. Chapter 2 has only one Section and that (Section 3) deals with the definition of the expression 'domestic violence'. Chapter 3 containing Sections 4 to 11 deals with the procedure for appointment of protection officers, service providers etc. and their powers and duties. Chapter 4 containing sections 12 to 29 deals with the reliefs that can be granted and the orders that can be passed and the procedure to be followed by, the Magistrate before passing orders granting such relief. The provision for appeal against such orders are available in Section 29. Chapter 5 deals with miscellaneous provisions.
( 6 ) WE are particularly concerned with chapter 4. The nature of the orders that can be passed are enumerated in Section 18 - which deals with protection orders, Sectio
