Mohd. Yahaya vs State Of U.P. And Another
2015 Latest Caselaw 696 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 

 
Court No. - 18
 

 
Case :- CRIMINAL REVISION No. - 1880 of 2015
 
Revisionist :- Mohd. Yahaya
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- V.K. Singh,Devendra Dahlma
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Anjani Kumar Mishra,J.

Heard Sri Devendra Dhama learned counsel for the revisionist and learned AGA for the State respondents.

This revision has been filed challenging the orders dated 24.10.2013 passed by the Additional Chief Judicial Magistrate, under Section 23 (1) of the Protection of Women from Domestic Violence Act, 2005 in Complaint Case no. 1525 of 2012 (Smt. Sanjida Begum Vs Mohd. Yahaya) under Section 12 of the said Act. This order has been affirmed vide order dated 21.04.2015 passed by the Additional Sessions Judge, Court no.19, Allahabad in Criminal Appeal no. 270 of 2013 (Mohd. Yahaya Vs State of U.P.).

The Magistrate by his order dated 24.10.2013 disposed of the application under Section 23 (1) with the consent of the parties granting maintenance of Rs. 3000/- per month to be paid to Sanjida Begum by the fifth of each month. Against this order an appeal was filed under Section 29 of the Act which has been dismissed.

The contention of learned counsel is that the revisionist had never given his consent as recorded in the order dated 24.10.2013. He submits that a detailed objection to the application of the opposite party had been filed. The Magistrate has committed manifest illegality in allowing this application and granting maintenance without considering the objections that was available on record.

The second submission made is that no order for maintenance could have been passed till such time the Magistrate recorded a finding that the opposite party was either subjected to domestice violence that there was apprehension of such domestice violence. No such finding has been recorded by the court and therefore the orders are unsustainable.

The third submission is that there is over writing as regards the amount payable as maintenance. He lastly submits that all these grounds were specifically raised in the appeal yet the appeal has been wrongly and illegaly rejected. He is therefore, pressing this revision on the aforesaid same grounds.

The first point for consideration therefore is whether the Magistrate was competent to pass an order granting maintenance without recording his primafacie satisfaction that the revisionist is committing, or has committed an act of domestic violence or that there is a likelihood that he may commit an act of domestic violence. In view of the submissions made it would be relevant to note the provisions of law as contained in Section 23 and its two sub-sections.

"Section 23: Power to grant interim and ex-parte orders:- (1) In any proceedings 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 domestice violence or that there is a likelihood that the respondent may commit an act of domestice 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."

From a perusal of the provisions quoted above it is clear that  the Magistrate is empowered to pass interim orders as also ex-parte orders. Insofar as, sub-section 1 is concerned there is no embargo upon the same and the Magistrate can pass any interim order which he may deem fit and proper.

Sub-section 2 deals with the power of the Magistrate to pass an ex-parte order as is clear from bare reading of the provision itself. It is therefore, to be held that the Magistrate while passing an ex-parte order must necessarily record his prima facie satisfaction about an act of domestic violence having been committed or that there is likelihood of such an act been committed.

Admittedly, in the instant case the order passed by the Magistrate is not an ex-parte order. The order was passed after notice to the revisionist and after he had filed his objections. It has also come on record that the revisionist has signed the ordersheet of the relevant date.

Under the circumstances, the order that have been passed is necessarily an order passed in exercise of powers under sub-section 1 of Section 23. Since the order passed was not an ex-parte order, the provisions contained in sub-section 2 are not attracted in the facts and circumstances of the case.

In such view of the matter I do not find any merit in the submissions made by learned counsel for the revisionist that the order for maintenance can be made only after recording a prima facie satisfaction about an act of domestic violence having been committed or that there is likelihood of such an act being committed. This requirement, in my considered opinion, is only as regards the grant of any ex-parte order for maintenance and not otherwise. The first submission made by learned counsel for the revisionist is therefore repelled.

The other two submissions made by learned counsel for the revisionist, first that no consent had been given by the revisionist and the second that there is interpolation and over writing in the order, it would be relevant to note that as regards the second aspect the appellate court upon examination of the record as categorically recorded that the over writing has been duly initiated by the Presiding Officer. He has also recorded that the parties have put their signatures on the order sheet of the relevant date. It has therefore, been held that the plea of interpolation cannot be accepted. It do not find any jurisdictional error or illegality in this finding and therefore, even this submission of learned counsel for the revisionist cannot be accepted.

The only other point that remains for consideration is as to whether or not the revisionist had given his consent to the order that was passed by the Magistrate on 24.10.2013. In my considered opinion, this aspect is a purely factual controversy which cannot be determined by this court. In case there was some factual mistake in the order and if the consent of the revisionist was wrongly shown to have been given, the proper remedy for the revisionist was by means of an appropriate application before the court concerned. It is only the court which had recorded the consent of the revisionist in its order, which was competent to decide as to whether or not the consent had actually been given. This admittedly has not been done. I therefore, find no necessity of entering into this controversy since the revisionist has failed to avail the proper remedy that was available to him for the purpose.

Learned counsel for the revisionist has relied upon a decision rendered by the Uttarakhand High Court reported in 2014 (2) J.G.C. 1661 in Criminal Misc. Application No. 612 of 2013 (Aditi Chauhan Vs State of Uttarakhand and another).

I have considered the said judgment and find that it is on entirely different facts and therefore, the same has no application in the instance case.

Accordingly and for the reasons given above I find no merit in the revision. 

It is accordingly dismissed.

Order Date :- 27.5.2015

Pravin