Ranvijai Singh vs State Of U.P. & Another
2015 Latest Caselaw 1972 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R
 
						Court No. - 49
 
						Reserved On: 29.7.2015
 
						Delivered On: 25.8.2015		
 

 
					   APPL. U/S 482 No.-21388/2015
 

 
Applicant :- 			   Ranvijai Singh
 
Opposite Party :- 		   State of U.P. & others
 
Counsel for Applicant :- 	  Jai Raj Singh Tomar, Kavita 					  Tomar
 
Counsel for Opposite Party:- Govt. Advocate
 

 
Hon'ble Pankaj Naqvi,J.

Heard Sri Jai Raj Singh Tomar/Ms. Kavita Tomar, learned counsel's for the applicant and the learned A.G.A.

This application under Section 482 Cr.P.C. has been filed for quashing the proceedings of Case No.2334/2013 (Smt. Anita Singh vs. Ranvijai Singh and others), under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short "the Act"), and the order dated 29.1.2015 passed by the A.C.M.M-I, Kanpur Nagar and the order dated 28.4.2015 by In-charge District Judge in Criminal Appeal No.74/2011.

During the pendency of the proceedings under Section 12 of the Act, an application dated 11.3.2013 came to be filed by the applicant/husband, alleging that never ever his marriage was solemnized with O.P. No.2/Ms. Anita Singh, rather she is the wife of one Shiv Ranjan Singh Rathour. The learned Magistrate on 29.1.2015 rejected the application dated 11.3.2013 on the ground that the issue could be decided only after evidence. The order dated 29.1.2015 was assailed in Criminal Appeal No.74/2011, which too came to be dismissed on 29.1.2015 on the ground that the order impugned is interlocutory in nature, against which no appeal is maintainable.

Learned counsel for the applicant on the strength of the judgement of the learned Single Judge of Kerala High Court in Sulochana vs. Kuttapam, 2007 (2) Crimes 460, contended that against the order dated 29.1.2015, an appeal under Section 29 is maintainable and the view taken by the court below is liable to be set aside.

Per contra, the learned A.G.A. would contend that considering the beneficial and remedial nature of the enactment, interlocutory orders have been kept outside the purview of Section 29 of the Act, consequently the present application is liable to be dismissed.

Before examining as to what class of orders would be appealable under Section 29 of the Act, it would be apposite to have a brief resume of the statutory scheme.

The Preamble of the Act provides that it is an Act to provide for more effective protection of the rights of women, guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Thus, the Legislature was conscious that the existing statutory mechanisms were not adequate and effective to afford protection to the rights of women, who are victims of "domestic violence".

The jurisdictional fact on which depends the applicability of the Act, is the existence of "domestic relationship" between the "aggrieved person" and the "respondent" in a case of "domestic violence".

Domestic relationship is defined in Section 2(f) as under:-

"domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

"Aggrieved person", is defined in Section 2(a) as under:-

"aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

The term "respondent" is defined in Section 2 (q) as under:-

"respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

Section 3 defines domestic violence which is inclusive of physical, sexual, verbal, emotional and economic abuse. Section 4 relates to powers and duties of Protection Officer and services provided by them. Chapter IV pertains to procedure for obtaining orders or reliefs.

Section 12 (1) enables an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to present an application to the Magistrate seeking one or more reliefs under the Act. Sub-section (2) provides that the relief could be in the form of payment or compensation or damages. Sub-section 5 obliges the Magistrate to dispose of every application under sub-section (1) within 60 days from the date of its first hearing. Section 18 relates to "Protection Orders" to be passed by the Magistrate. Section 19 contemplates "Residence Orders". Section 20 relates to "Monetary Reliefs". Section 21 relates to "Order of custody" of any child or children of the aggrieved person. Section 22 relates to "Compensation Orders", which may be passed in favour of the aggrieved person, directing the respondent to pay compensation/damages. Section 23 relates to grant of interim/ex parte orders, i.e., if the Magistrate is satisfied that on the application that the respondent is committing or has committed a domestic violence, he may grant ex-parte orders on the basis of an affidavit and an order in terms of Sections 18, 19, 20, 21 and 22 of the Act.

Section 29 relates to appeal, which is reproduced hereunder:-

"29. Appeal.--There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later."

The word "shall" is an indication that the appeal lies as a matter of right, but then the moot question is to what class of orders, would an appeal lie.

It be not lost sight of that the Act has been enacted with a primary view to provide an effective mechanism for the redressal to the victims of domestic violence, who is a woman in a domestic relationship. Right to file an appeal is a creature of a statute. Being a creature of statute, remedy of appeal must be traced to the statutory provisions only.

The orders which the Act contemplates, is an under Section 18, a Protection Order; under Section 19, a Residence Order; under Section 20, an order in a form of Monetary Relief; under Section 21, a Custody Order; under Section 22, a Compensation Order.

Section 23 of the Act confers a power to grant interim and ex parte orders, which is reproduced hereunder:-

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.

The order in terms of Section 29 is not only to be made by the Magistrate, but it is to be served on the aggrieved person or the respondent, as the case may be. In the scheme of enactment, it is only a final order which is capable of being served on the "aggrieved person" and the respondent, which would be appealable under Section 29 of the Act. Thus in so far final orders under Sections 18 to 22 are concerned, there shall be a right of appeal under Section 29, as such orders decide an issue or a lis or affect the interest of the parties.

The interim and ex parte order, even though of limited duration, may affect the vital right/interest of the parties, thus the said orders under Section 23 of the Act, would also be appealable under Section 29 of the Act, but the limit for interference would be on well-accepted judicial principles, such as perversity or patent illegality.

To take each and every order within the sweep of the appellate power under Section 29, would render the Act ineffective. The purposive interpretation is to construe the provisions of the Act in a way so as to advance the object of the Act which is to provide effective mechanism for the redressal of the victims of the domestic violence.

The impugned order only indicates that the issue as to whether the applicant is the wife of O.P. No.2 or not, is to be decided after evidence. This order has not decided any issue so as to cause any prejudice, on the contrary, it has only deferred its consideration till the stage of evidence. Such an order would not be appelable under Section 29 of the Act.

Before parting, the Court would like to summarize the class of orders which would be appealable under Section 29 of the Act.

(1)Only final orders under Sections 18 to 22 of the Act.

(2)The interim/ex parte orders under Section 23 of the Act would also be appealable

(3) All other orders relating to procedural domain are not intended to be appealable under Section 29 of the Act.

The decision relied by the learned counsel for the applicants in the case of Sulochana (supra) would not be applicable on the facts of the present case as in the said decision, an appeal filed against an ex parte interim order under Section 23 of the Act, was held to be maintainable, on which there could be no dispute.

No other plea is urged.

The application lacks merit and is dismissed.

Order Date :- August 25, 2015

Chandra

(Pankaj Naqvi)