The main legal point established is that the magistrate can pass ex parte interim protection and maintenance orders under the Protection of Women from Domestic Violence Act, 2005, if satisfied that the respondent is committing or has committed an act of domestic violence or that there is a likelihood of such violence.

Alok Singh, J.

A complaint was filed before the ACJM 1st, Dehradun under the provisions of the Protection of Women from Domestic Violence Act, 2005. Learned trial Magistrate, vide order dated 20.05.2013, was pleased to pass ad-interim ex parte order directing the respondent no. 2, herein, not to dispossess the petitioner from the house, in question and not to indulge in domestic violence against the petitioner and to pay interim maintenance to the petitioner @ Rs. 3,000 per month.

2. Feeling aggrieved, respondent no. 2 preferred an appeal in the court of Sessions Judge, Dehradun. Learned appellate court, vide order dated 17.06.2013, was pleased to stay the effect and operation of the order dated 20.05.2013 passed by the learned trial court observing that in view of judgment passed by this Court in Criminal Revision No. 111 of 2010 (S. Vishwanathan Vs. Pushpa) no ex parte order can be passed on the complaint under the Protection of Women from Domestic Violence Act, 2005.

3. Feeling aggrieved, petitioner/complainant has invoked inherent jurisdiction of this Court under Section 482 Cr.P.C.

4. Mr. Gopal K. Verma, Advocate has accepted notice on behalf of respondent no. 2.

5. With the consent of learned counsel for the parties, present petition is being disposed of finally, at admission stage itself.

6. I have carefully perused the judgment passed by the coordinate Bench of this Court in Criminal Revision No. 111 of 2010 (S. Vishwanathan Vs. Pushpa). Perusal of the judgment passed by this Court in S. Vishwanathan (supra) reveals that in that matter, complaint, filed by the wife, was finally disposed of without serving notice on the respondent therein and in those facts and circumstances of the case, the coordinate Bench of this Court has rightly held that no final ex parte order can be passed on the complaint without proper service on the respondent. Now, the question arises, as to whether, learned Magistrate can pass ad interim protection/maintenance order, at the initial stage, without serving notice on the respondent.

7. Section 23 of the Protection of Women from Domestic Violence Act, 2005 reads as under:

“23. Power to grant interim and ex parte orders.-

(1) In any proceeding 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 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.

8. Sub-section 2 of Section 23 of the Protection of Women from Domestic Violence Act, 2005 makes it clear that Magistrate can pass ex parte order, on the basis of affidavit, if he is satisfied that prima facie respondent 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.

9. For example, if a legally wedded wife is being threatened by the husband or relative(s) of the husband to leave the house immediately and there is immediate danger of her dispossession forcefully; likewise, if wife is at the stage of starvation and she needs immediate maintenance and wife cannot be left to die in starvation, then of course, learned Magistrate would be justified in granting ex parte interim protection and maintenance while invoking powers under Section 23 of the Act.

10. Mr. Gopal K. Verma, appearing for the respondent no. 2, submits that objections shall be filed by the respondent no. 2 before the Magistrate within fifteen days from today and thereafter, Magistrate may decide the application, in accordance with law, without any undue delay. He further submits that interim maintenance, as granted by the Magistr