Apex Court has upheld the Kolkata High Court judgment wherein it has affirmed that, when there is no DV, no reliefs flow from the case.
Sangita Saha Vs Abhijit Saha and Ors on 28 January, 2019The High Court of Kolkata judgment is here.
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Another good judgment from High Court of Kolkata wherein it was held that,
Abhijit Saha and Ors Vs Sangita Saha on 17 September, 2015“Unless it is satisfactorily established that domestic violence has taken place neither any protection order under Section 18 nor any residence order under Section 19 nor any order for monetary relief under Section 20 nor any compensation order under Section 22 of the Protection of Women from Domestic Violence Act, 2005 should be passed.”
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Following questions arise for consideration in this petition filed with Hon’ble Bombay High Court:
“Whether an order passed on an application made under section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the said Act”) is appelable under section 29 of the said Act?
Whether an appeal will lie under section 29 of the said Act against every order passed by the learned Magistrate in proceedings initiated on the basis of an application made under section 12 of the said Act?
What is the scope of an appeal under section 29 of the said Act?”
From Para 25,
Abhijit Bhikaseth Auti Vs State Of Maharashtra & Anr on 16 September, 2008Thus, the conclusions which can be summarised are as under:
(i) An appeal will lie under section 29 of the said Act against the final order passed by the learned Magistrate under sub-section 1 of section 12 of the said Act;(ii) Under sub-section 2 of section 23 of the said Act, the learned Magistrate is empowered to grant an ex-parte ad-interim relief in terms of sections 18 to 22 of the said Act. The power under sub-section 1 is of granting interim relief in terms of sections 18 to 22 of the said Act. Before granting an interim relief under sub-section 1, an opportunity of being heard is required to be granted to the respondent.
(iii) An appeal will also lie against orders passed under sub section 1 and sub section 2 of the section 23 of the said Act which are passed by the learned Magistrate. However, while dealing with an appeal against the order passed under section 23 of the said Act, the Appellate Court will usually not interfere with the exercise of discretion by the learned Magistrate. The appellate Court will interfere only if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or if it is found that the Court has ignored settled principles of law regulating grant or refusal of interim relief.
(iv) An appeal under section 29 will not be maintainable against purely procedural orders which do not decide or determine the rights and liabilities of the parties.
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The legal contention in this case adjudicated by Hon’ble Bombay High Court is
From Para 8,
“whether passing of an exparte order in the present case, was proper and justified.”
“There was no such pressing necessity in the facts of this case to pass an exparte order, particularly when it was nobody’s case that the petitioner was willfully remaining absent or was willfully avoiding service of the notice which was already been issued to him.”
From Para 9,
Santosh Sashkant Dhonde Vs Sarika Santosh Dhonde and Ors on 11 September, 2014On the contrary, in the decision reported in Abhijit Bhikaseth Auti Vs. State of Maharashtra & Anr (supra), it has been mentioned that an opportunity of being heard should be given to the husband even while passing an interim order of maintenance. In the instant case, when interim orders for maintenance passed by two the other Courts were already in favour of the respondent no.1 wife, there was hardly any occasion to pass an exparte order of maintenance.
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The cunning knife’s appeal against interim maintenance dismissal is again dismissed by Session’s Court.
Vidhya B.G Vs Yeshwanth Kumar on 15 September, 2018This is based on the landmark judgment from Karnataka High Court here.
Hon’ble High Court of Karnataka has held in this revision order, that when the impugned order was not an order passed, as ex parte, the learned magistrate was required to hold as inquiry in a DV Case and then should have recorded his finding (to grant interim relief or not).
Sri Monojit Banerjee Vs Smt Shalini Banerjee on 3 October, 2016
In this judgment Justice Dharam Chand Choudhary has affirmed that under section 23 of DV Act, the Magistrate should be satisfied that the DV application prima facie discloses that the respondent is committing, or has committed and act of domestic violence, he may grant an ex parte order on the basis of the affidavit.
As such the case is returned back to trial court to proceed in according to law.
Ashmin Kashmiri Vs Pushkar Kashmiri on 4 July, 2018Good judgment again from Hon’ble Karnataka High Court which held that Magistrate must conduct Inquiry in the nature of summary trial before Interim Maintenance.
Murali Mohan Krishna Vs Lavanya on 8 August, 2017
Good judgment from Co-ordinate bench of Hon’ble Karnataka High Court which held that Magistrate must conduct Inquiry in the nature of summary trial before Interim Maintenance.
Krishnamurthy Nookula vs Savitha Y on 9 December, 2009