Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(UK) 442

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
RAKESH THAPLIYAL, J.
Sandeep Kumar Pathak and Others - Applicants
Versus
State of Uttarakhand and Another - Respondents
Criminal Misc. Application Nos. 2265, 2266 of 2023
Decided On : 28-11-2023

Advocates Appeared:
For the Applicants : Mr. Lalit Sharma, learned counsels.
For the Respondents: Mr. M.A. Khan, learned A.G.A along with Mr. Deepak Bhardwaj, learned Brief Holder.

The court emphasized the principles of judicial procedure and the powers of the Magistrate to recall ex-parte orders under the Code of Criminal Procedure, 1973, and highlighted the provisions of Section 25 of the Protection of Women from Domestic Violence Act, 2005.

Headnote:
Domestic Violence - Divorce - Hindu Marriage Act, 1955, Protection of Women from Domestic Violence Act, 2005, Code of Criminal Procedure, 1973 - Section 13(1)(i), Section 12, Section 125, Section 482 - The court discussed the maintainability of a recall application against an ex-parte order under the Protection of Women from Domestic Violence Act, 2005 and the applicability of Section 25 of the Act. The court also highlighted the principles of judicial procedure and the powers of the Magistrate to recall ex-parte orders under the Code of Criminal Procedure, 1973.
Fact of the Case:
The husband filed a divorce petition on the ground of cruelty under Section 13(1)(i) of the Hindu Marriage Act, 1955. The wife filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005, and a proceeding for maintenance under Section 125 Cr.P.C. The wife's complaint was allowed ex-parte, and the husband filed a recall application against the ex-parte order.
Finding of the Court:
The court directed the lower court to decide the recall application within two months and suspended the proceedings of the criminal appeal until the disposal of the recall application.
Issues: Maintainability of the recall application against the ex-parte order under the Protection of Women from Domestic Violence Act, 2005, and the applicability of Section 25 of the Act.
Ratio Decidendi: The court emphasized the principles of judicial procedure and the powers of the Magistrate to recall ex-parte orders under the Code of Criminal Procedure, 1973. It also highlighted the provisions of Section 25 of the Protection of Women from Domestic Violence Act, 2005.
Final Decision: The applications under Section 482 Cr.P.C. were disposed of, and the lower court was directed to decide the recall application within two months, suspending the proceedings of the criminal appeal until the disposal of the recall application.

ORDER :

Rakesh Thapliyal, J.

1. The applicant no.1 married with the respondent no.2-the complainant on 10.12.2014. Out of this wedlock, a daughter was born in the year 2016. After this, some differences were arisen between applicant no.1 and respondent no.2. Consequently, a Divorce Petition was filed on 01.09.2018 by the applicant no.1 on the ground of cruelty, i.e. under Section 13 (1)(i) of the Hindu Marriage Act, 1955. The said divorce suit was registered as Divorce Suit No. 2871 of 2018.

2. Simultaneously, after filing the divorce petition, a complaint was filed by respondent no.2, in the Court of Additional Chief Judicial Magistrate, Haldwani, under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

3. Apart from this, another proceeding was also initiated by respondent no.2 under Section 125 Cr.P.C. for Maintenance, and it has been decided on 31.10.2023, whereby, a maintenance of Rs.14,000/- per month has been granted to the wife, and simultaneously, Rs.14,000/- maintenance was also granted to the daughter from the date of order passed in the proceeding under Section 125 Cr.P.C.

4. It is contended by learned counsel for the applicants that the divorce suit was decreed on 31.05.2022, against which, a regular appeal has been preferred before this Court, which is pending for adjudication, and it has not been admitted so far.

5. It is further contented that though the divorce suit was decreed on 31.05.2022., but after this, on 13.02.2023, the complaint, moved by respondent no.2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005, was allowed ex-parte on 13.02.2023.

6. Learned counsel for the applicants submits that, in fact, the complaint, which was preferred by the respondent no.2 under Section 10 of the Domestic Violence Act, no notices were ever been issued to the applicants, particularly, the applicant no.1, and since service was not affected upon the applicant no.1, consequently, the complaint was allowed in an ex-parte manner on 13.02.2023.

7. The applicants got information about the ex-parte order dated 13.02.2023 on 29.04.2023, since the same date was fixed in the proceedings initiated under Section 125 Cr.P.C.

8. After getting information about the ex-parte order on 29.04.2023, the applicants preferred an application for recalling of the ex-parte order dated 13.02.2023, and simultaneously, the applicants also put their appearances in the appeal, which was preferred by the respondent no.2 against the ex-parte order dated 13.02.2023

9. These are the two petitions, preferred under Section 482 Cr.P.C. In C482 Application No.2265 of 2023, the applicants are praying for stay of the proceeding of Criminal Appeal No. 15 of 2023, pending in the Court of Ist Additional District and Sessions Judge, Haldwani, which has been preferred against the ex-parte order dated 13.02.2023, passed in a complaint of respondent no.2, under Section 12 of the Protection of Women from Domestic Violence Act, 2005, on the ground that against the ex-parte order dated 13.02.2023, a recall application for revocation of the ex-parte order dated 13.02.2023, has been moved, which is pending.

10. Learned counsel for the applicants submits that since the recall application for revocation of ex-parte order dated 13.02.2023, is pending for consideration, therefore, in the interest of justice, the proceedings of criminal appeal should be kept in abeyance, particularly, keeping in view the fact that the appeal has been preferred against the ex-parte order dated 13.02.2023, by the complainant and, simultaneously, against this ex-parte order dated 13.02.2023, the applicants also preferred a recall application for revocation of the ex-parte order dated 13.02.2023.

11. Here a question arises as to whether the recall application against the ex-parte order dated 13.02.2023, which was passed on a complaint of respondent no.2, preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005, is maintainable or n

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