IMPORTANT POINTS
(1) An appeal is maintainable under Section 29 of Protection of Women from Domestic Violence Act against interim ex-parte order passed under Section 23 of the Act.
(2) Right of appeal is not dependent on service of impugned order.
(3) Separate application for interim order was not pre-requisite for exercise of jurisdiction by Court.

ORDER

R. Basant, J.— The petitioner in this Crl. M.C. has suffered an ex-parte interim order under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act’). That order was suffered by the petitioner in an application filed by the first respondent herein, admittedly his wife. She had approached the learned Magistrate with an application under Section 19 of the Act. The learned Magistrate, after considering the affidavit filed by the petitioner along with the application under Section 12, where she claimed relief under Section 19, came to the conclusion that ex-parte interim order is liable to be passed in favour of the first respondent herein. Accordingly, an order was passed invoking the powers under Section 23 r/w Section 19 allowing the first respondent and her children to reside in the house “Chandra Bhavanam, Kuruppu’s Lane, Sasthamangalam, Thiruvananthapuram.” The City Police Commissioner Trivandrum was further directed to give necessary protection to the first respondent for her peaceful residence in the home along with her children.

2. I shall hereafter refer to the parties in the manner in which they are ranked before the learned Magistrate. As stated earlier, marital tie is admitted. The petitioner and the respondent are an estranged couple admittedly. The respondent/husband assails the impugned interim ex-parte order passed under Section 23 of the Act and prays that the powers under Section 482, Cr.P.C. may be invoked to quash the order. Various grounds are urged in support of the prayer. I shall proceed to consider them later. The learned Counsel for the petitioner on the other hand contends that an appeal under Section 29 is maintainable and therefore the respondent, who has not chosen to invoke the right of appeal under Section 29 of the Act, cannot be permitted to request this Court to invoke the powers under Section 482, Cr.P.C.

3. The learned Counsel Mr. Ram Kumar, appearing for the respondent/husband fairly concedes that an appeal is maintainable under Section 29 of the Act against an interim ex-parte order passed under Section 23 r/w Section 19 of the Act. On that aspect no dispute is raised in this petition. In another petition (Crl. M. C. 264 of 2007) which was also being heard along with this petition, a contention was raised that no such appeal is at all maintainable under Section 29 of the Act against an interim order under Section 23 r/w Section 19 of the Act. I have already held today as per the decision in the Crl. M.C. referred earlier that such an appeal is maintainable. At any rate, since the learned Counsel for the petitioner concedes the same, it is not necessary to advert to that controversy in this order.

4. The learned Counsel for the respondent contends that though an appeal is maintainable under Section 29 of the Act, this is a fit case where notwithstanding the availability of that remedy this petition under Section 482, Cr.P.C. can and ought to be entertained considering the peculiar nature and circumstances of the case. The Counsel contends that the sweep of the powers under Section 482, Cr.P.C. is so wide that the mere availability of an alternative relief cannot and does not fetter the powers of this Court under Section 482, Cr.P.C. if the Court is satisfied that in the interests of justice the invocation of such power is necessary and warranted.

5. Normally the availability or an efficacious alternative remedy will certainly prompt this Court to look for an explanation as to why such available provisions are not being made use of and only if the Court is satisfied that there are compelling reasons of an exceptional variety will this Court choose to invoke the powers under Section 482, Cr.P.C. even when such alternative remedies are not invoked by a petitioner.

6. The learned Counsel for the respondent contends first of all that an appeal under Section 29 of the Act, (I extract the statutory provision below) will be available only aft