2008 Supreme(Bom) 1500

IN THE HIGH COURT OF BOMBAY
ABHAY S. OKA, J.
Abhijit Bhikaseth Auti - Appellant
Versus
State of Maharashtra - Respondent
CRIMINAL WRIT PETITION NO.2218 OF 2007
Decided On : 10/16/2008

Headnote:Protection of Women from Domestic Violence Act, 2005 - Sections 12(1) and 29 - Appeal - Against final order passed by Magistrate under Section 12(1) of Act - Maintainability of - Appeal filed under Section 29 of Act against final order is maintainable. - An appeal will lie under Section 29 of the said Act against the final order passed by the Magistrate under sub-section (1) of Section 12 of the said Act.

       Protection of Women from Domestic Violence Act, 2005 - Sections 18, 19, 20, 21, 22 and 23(2) - Ex parte ad interim - Relief - Grant of - Under Section 23(2) of Act, Magistrate empowered to grant an ex parte ad interim relief in terms of Sections 18 to 22 of Act - Before granting an interim relief, an opportunity of being heard to be granted to respondent. - Under sub-section (2) of Section 23 of the said Act, the 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.

       Protection of Women from Domestic Violence Act, 2005 - Section 23 - Grant of interim relief - Granted by Magistrate in exercise of power conferred under Section 23 of Act - Order granting interim relief appealable - Appellate Court will interfere only when Court while granting relief ignored settled principles of law in respect of grant or refusal of interim relief. - 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 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 Magistrate. The appellate Court will interfere only if it is found that the discretion has been exercise arbitrarily, capriciously, perversely or if it is found that the Court has ignored settled principles of law regulating grant or refusal of interim relief.

       Protection of Women from Domestic Violence Act, 2005 - Sections 23(1), (2), 29, 12(1), 18, 19, 20, 21 and 22 - Appeal against order - Held - Appeal will be filed against every final order passed by Magistrate - Order passed under Section 23(1) and (2) will be appealable - Scope of appeal against order under Section 23 will be limited - While considering prayer under Section 23, Magistrate is required to consider averments made in application under Section 12(1) - Appeal will lie under Section 29 against final order passed by Magistrate under Section 12(1) - Under Section 23(2) Magistrate is empowered to grant interim relief after giving opportunity of being heard - Appeal under Section 29 will not be maintainable against proceeding order. - An appeal will lie against every final order passed by a Magistrate. On plain reading of Section 29 of the said Act, the orders which are made under sub-section (1) and sub-section (2) of the 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 ex parte ad interim and interim relief in terms of Sections 18 to 22 of the said Act. Therefore, the orders passed both under sub-section (1) and sub-section (2) will be appealable. However there 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 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. 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.

       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 or granting adjournments, order issuing witness summons or orders passed for executing the orders passed under the said Act.

       Protection of Women from Domestic Violence Act, 2005 - Section 29 - Appeal - Maintainability of - Appeal against purely procedural orders not deciding or determining right or liabilities of parties - Not maintainable. - An appeal under Section 29 will not be maintainable against purely procedural orders who do not decide or determine the rights and liabilities of the parties.