The main legal point established in the judgment is that service of notice under the Protection of Women from Domestic Violence Act, 2005, may be at the place where the respondent ordinarily resides or carries on business, and the declaration of service made by the Protection Officer is proof of such service unless the contrary is proved.

Joymalya Bagchi, J.

1. Order dated 30.1.2016 passed by learned Additional Sessions Judge, 2nd Court, Raiganj, Uttar Dinajpur in Criminal Appeal No. 51 of 2014 affirming order dated 18.12.2012 passed by learned Judicial Magistrate, 1st Class, Additional Court, Raiganj, Uttar Dinajpur in C.R. No. 292 of 2012 awarding monetary relief to the tune of Rs. 15,000/- per month along with residence order at the shared household at Sevok Pally, Raiganj, Uttar Dinajpur, in default to arrange for alternative accommodation at a place of choice of the respondent and to pay rent, if necessary, has been assailed. The petitioner is the husband of the opposite party No. 2 and it appears that the marriage was solemnized between the parties on 9.3.2008. It has been alleged that on the demand of the petitioner and in-laws a sum of Rs 2.5 Lacs was paid and as further demand of dowry was not met, she was subjected to mental and physical torture.

2. It has also been alleged that the petitioner had compelled her to stay in the same room with another person, namely, Koushik Mitra. It is alleged that in 2008 an attempt was made to drown her at the sea in Vishakhapatnam and thereafter she was assaulted and driven out of the matrimonial home on 30.9.2009.

3. On the institution of the proceeding, report was sought for from the Protection Officer and notice of the proceeding was sent to the address of the petitioner at Sevok Pally, Raiganj, Uttar Dinajpur. The petitioner was not found at the residence. However, the notice was served upon his mother who, it is claimed, had a telephonic conversation with the petitioner about the institution of the said proceeding. It also appears that the notice was pasted on the outer wall of the said premises at Raiganj, Uttar Dinajpur.

4. The petitioner, however, did not appear in the proceeding claiming that notice of the proceeding was not served upon him in the instant case and the learned Magistrate heard the matter ex-parte and on the basis of the evidence adduced by the opposite party No. 2/wife passed the order dated 18.12.2012 granting monetary relief and/or residence order, as aforesaid. Such order came to be challenged in appeal, which was dismissed by the impugned order.

5. Mr. Ganguly, learned senior counsel appearing for the petitioner submits that it was within the knowledge of the opposite party No. 2 that the petitioner was residing at Kolkata where he is working for gain. However, no effort was made to serve upon the petitioner at his residence at Kolkata and service of the notice at Raiganj, Uttar Dinajpur is insufficient service and contrary to law. Service of notice upon the mother of the petitioner would not 3 tantamount to service upon the petitioner and, therefore, the appellate court ought to have remanded the matter for fresh consideration.

6. He also submitted that the order of monetary relief and residence order was passed without considering the materials on record and is unjustified in the facts of the case.

7. On the other hand, learned lawyer for the opposite party No. 2 submitted that service was done in terms of Rule 12 of the Protection of Women from Domestic Violence Rules and the petitioner was, in fact, aware of the said proceeding as the notice of the proceeding was served upon his mother who is a co-respondent in the matter and she had a telephonic conversation with the petitioner as would be evident from the report of the Protection Officer.

8. It is also submitted that the petitioner intentionally chosen not to appear in the proceeding and has subsequently sought to raise the plea of non-service at the appellate stage to cause dilation and protraction of the proceeding.

It is, therefore, submitted that the impugned order does not call for any interference.

9. The principal issue which falls for decision is whether notice of the proceeding was effected upon the petitioner in accordance with law or not.

10. Procedure for conducting proceeding under the provisions of the 2005 Act is laid