IMPORTANT POINT
Section 28(2) enables the court to lay down its own procedure for disposal of an application u/s 23(2).

Sudhir Kumar Saxena, J.—The Criminal Revision as well as the Writ Petition arise out of same proceedings, as such they are being disposed of by this common order.

2. Heard learned counsel for the parties, learned AGA and perused the record.

Writ Petition No. 17658 of 2010

3 The facts ill short are that Smt. Veenu Anand wife filed an application u/s 12 of The Protection of Women from Domestic Violence Act, 2005 (in short the Act). In the aforesaid case she also filed an application u/s 23 of the Act for interim order. The said application was allowed on 20.03.2010 and a sum of Rs.5,000/- per month was ordered as interim maintenance. This order was challenged in appeal but appellate court dismissed the appeal and confirmed the order of interim maintenance. These orders have been challenged by learned counsel in W.P. 17658 of 2010 on the ground that no evidence was recorded and it is not clear as to what was the violence caused to the applicant.

4. The argument is fallacious as the court was deciding an application for interim maintenance. Evidence was yet to be adduced. Section 23 enables the Magistrate to pass ex parte order on the basis of affidavit. Moreover court has gone in detail and found that the income of husband is Rs. 28,738/- per month. The applicant was admittedly wedded wife of petitioner Manoj Anand. Petitioner has not denied the fact of marriage or income or the fact of separate living.

5. In these circumstances learned Magistrate after examining the attending circumstances gave order of interim maintenance. It cannot be said that the order suffers from any error of law. The appellate court has examined the submissions of husband in detai1 and has confirmed the order of interim maintenance.

6. This Court is not exercising its appellate jurisdiction. The court below is yet to decide the application finally after recording the evidence. Even otherwise considering the income of petitioner the amount awarded cannot be said to be excessive as such impugned orders do not suffer from any such error of law which may warrant interference by this Court in its jurisdiction under Article 226 of the Constitution of India, as such writ petition has no force and is liable to be dismissed.

Criminal Revision No. 635 of 2011

7. Criminal Revision is directed against the order passed by the Magistrate under section 31 of the Act. It appears that in pursuance of the order passed by this Court in Misc. application No.22856 of 2010 whereby lower Court was directed to decide the application u/s 31 of the Act within a month, impugned order has been passed. By impugned order dated 22.01.2011 learned Magistrate has proceeded to punish revisionist husband u/s 31 of the Act for failure to pay the interim maintenance ordered on 20.03.2010, which order has been upheld as above. It may be relevant to mention that in writ petition there was no interim order.

8. Learned counsel submits that section 31 of the Act is not attracted to the present case. Same is quoted below for ready reference:

31. Penalty for breach of protection order by respondent—(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence this Act and shall be punishable with imprisonment of either description for a term may which may to one year, or with fine which may extend to twenty thousand rupees, or with both.

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498-A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the fact disclose the commission of an offence under those provisions.

9. Section 31 of the Act applied to the protection order. Protection order has been defined u/s