Bombay High Court
Mr.Abhijit Bhikaseth Auti vs State Of Maharashtra & Anr on 16 September, 2008
Bench: A.S. Oka
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2218 OF 2007
Mr.Abhijit Bhikaseth Auti .. Petitioner
Vs.
State of Maharashtra & Anr. .. Respondents
---
Mr.U.P.Warunjikar with Mr.Nites V. Bhutekar for the
petitioner.
Mr.D.P.Adsule, A.P.P for the State.
Mr. S.S.Kulkarni with Mr.Sachin P. Chavan for the
respondent No.2.
---
CORAM : ABHAY S.OKA, J.
ig DATE : 16th September 2008.
ORAL JUDGMENT:
. The submissions of the learned counsel appearing
for the parties were heard on the last date. Following
questions arise for consideration in this petition:
(i) 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?
(ii) 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?
(iii) What is the scope of an appeal under
section 29 of the said Act?
Apart from aforesaid questions, there are factual
questions arising in this petition.
2. The 2nd respondent is the wife of the
petitioner.
2nd respondent
The marriage between the petitioner and the
was solemnised on 22nd April 2004.
According to the case made out by the 2nd respondent,
after marriage, she stayed alongwith the petitioner in
Flat No.B-10, Rambaug Colony, Kothrud, Pune. As the 2nd
respondent found it inconvenient to attend to her duty
by residing at the said premises, a flat being Flat
No.B-13, Yashganga Residency, near Trimurti Hospital,
Dhayari Phata, Pune was jointly acquired by the
petitioner and the 2nd respondent. It is this flat
which is the subject matter of dispute in this petition
which is hereinafter referred to as "the said flat". It
appears that there was a matrimonial dispute between the
petitioner and 2nd respondent. The 2nd respondent filed
an application under section 12 of the said Act before
the learned Judicial Magistrate First Class, Court No.4,
Pune seeking protection order under section 18 of the
said Act. The prayer in the said application is that
the petitioner should be prohibited from committing any
act of domestic violence and also from causing any kind
of alienation of the said flat and from causing any
disposition of the said flat or any encumbrance thereto
and from preventing the 2nd respondent from having
access to and fro to the said flat and enjoying the said
flat as a residence. A prayer was also made for
restraining the petitioner from preventing the enjoyment
of the 2nd respondent of the said flat as a shared
household.
the said Act.
A relief was also sought under section 19 of
3. An application was made by the 2nd respondent in
the main application under section 12 of the said Act
praying for grant of interim relief in respect of said
flat. The said application was opposed by the
petitioner by filing a reply. The petitioner filed a
combined reply to the main application as well as to the
application for interim relief. The said application
was partly allowed by the learned Magistrate by order
dated 01st March 2007. The prayer made for interim
relief as regards residential accommodation was rejected
and a limited relief was granted preventing the
petitioner from alienating the stridhan in his
possession. The 2nd respondent preferred an appeal
under section 29 of the said Act. By impugned judgment
and order dated 15th October 2007, the appeal was partly
allowed by the Sessions Court. The relevant part of the
operative order read thus:
"[3] The appellant/original applicant- Smt.
Nisha Abhijit Auti is entitled to reside in Flat
No.B-3, Yashganga Residency, Near Trimurti
hospital, Dhayari Phata, Pune, during the
pendency of the criminal proceeding.
[4]
The respondent No.1/opponent-husband is
restrained from dispossessing or disturbing the
possession of the appellant/applicant-wife from
the share household i.e- the said flat, during
the pendency of the main proceeding.
[5] The respondent No.1/opponent-husband is
further restrained from creating any
encumbrances or third party interest in the said
flat during the pendency of the main proceeding.
[6] The officer in charge of the nearest
police station within the jurisdiction of which
the said flat lies is directed to give
protection and assistance to the applicant-wife
while implementing this order."
4. The learned counsel appearing for the petitioner
has taken me through applications filed by the 2nd
respondent and the orders passed by the learned
Magistrate as well as by the Sessions Court. He pointed
out that in the reply filed by the petitioner there was
a categorical assertion that the petitioner never denied
the residential accommodation of the said flat to the
2nd respondent and therefore there was no occasion to
grant
learned counsel
any interim relief in respect of said flat.
for the petitioner pointed out
The
that
though the said flat is purchased in the joint name of
the petitioner and the 2nd respondent, the loan taken by
them for acquiring the said flat was being repaid only
by the petitioner and there is no contribution
forthcoming from the 2nd respondent for repayment of the
loan. Without prejudice to his rights and contentions,
he submitted that if the 2nd respondent gives consent
for selling the said flat, another accommodation can be
made available elsewhere to the 2nd respondent.
5. He submitted that no appeal will lie under
section 29 of the said Act against an interlocutory
order and hence the appeal preferred by the 2nd
respondent was not maintainable. He has placed reliance
on several decisions of this Court and Apex Court in
support of his submissions. His submission was that
only against a final order passed by the learned
Magistrate on application under section 12 of the said
Act, an appeal will lie under section 29 and the order
dated 01st March 2007 passed by the learned Magistrate
being purely an interlocutory in nature, the appeal
itself was not maintainable. In any event, he submitted
that there was no occasion to grant interim relief in
respect of the said flat and no case was made out for
granting any interim protection.
6. The
learned counsel appearing for the 2nd
respondent submitted that under section 29 of the said
Act, an appeal was maintainable against every order
passed under the provisions of the said Act. He
submitted that an appeal will lie even against an
interim order passed under section 23 of the said Act.
He submitted that interim order passed under section 23
cannot be treated as purely an interlocutory order and
infact such orders are orders of moment affecting the
rights of the parties. He submitted that the decisions
relied upon by the counsel for petitioner and especially
the decision of the Division Bench of this Court under
the provisions of the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 will have no
application as the scheme of the said Act is totally
different. He pointed out the objects and reasons of
the said Act. He invited my attention to the scheme of
the entire Act and submitted that no interference was
called for. He also stated that the order impugned has
been already acted upon.
7. I have carefully considered the submissions.
The object of the said Act is 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.
8. Section 3 of the said Act defines domestic
violence. The definition of domestic violence is very
wide and apart from other aspects it encompasses within
itself physical abuse, verbal abuse, sexual abuse,
emotional abuse and economic abuse. Section 12 forming
part of Chapter IV of the said Act provides for an
application being made by an aggrieved person or a
protection officer or any other person on behalf of
aggrieved person. The application is maintainable
before a Judicial Magistrate First Class or a
Metropolitan Magistrate as the case may be. Aggrieved
person as defined by clause (a) of section 2 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.
Sub-section 3 of section 12 provides that every
application under sub- section 1 shall be in such form
and contain such particulars as may be prescribed. The
Protection of Women From Domestic Violence Rules, 2006
(hereinafter referred to as the said Rules) have been
framed under the said Act. Rule 6 and 7 are the
relevant rules which lay down the procedure. The said
rule 6 and rule 7 are as under:
Every
Application to the
application of the aggrieved person under
Magistrate:- (1)
section 12 shall be in Form II or as nearly as
possible thereto.
(2) An aggrieved person may seek the
assistance of the Protection Officer in
preparing her application under sub-rule (1) and
forwarding the same to the concerned Magistrate.
(3) In case the aggrieved person is
illiterate, the Protection Officer shall read
over the application and explain to her the
contents thereof.
(4) The affidavit to be filed under
sub-section (2) of section 23 shall be filed in
Form III.
(5) The applications under section 12 shall
be dealt with and the orders enforced in the
same manner laid down under section 125 of the
Code of Criminal Procedure, 1973 (2 of 1974).
7. Affidavit for obtaining ex-parte orders
of Magistrate:- Every affidavit for obtaining
ex-parte order under sub-section (2) of section
23 shall be filed in Form III."
9. Form II of the said Rules incorporates a format
of the application under sub section 1 of section 12.
The format requires that the nature of reliefs sought
shall be incorporated in the application. Sub rule 5 of
rule 6 provides that an application under section 12
shall be dealt with and the orders passed thereon shall
be enforced in the same manner laid down under section
125 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as "the said Code"). The procedure which
governs an application under section 125 of the said
Code will apply to the proceedings of an application
under section 12 of the said Act. The procedure
contemplated by Chapter IX of the said Code which deals
with applications under section 125 is a summary
procedure as indicated by sub-section 2 of section 126
of the said Code. Section 128 provides for enforcement
of the order of maintenance. Thus, the orders passed by
the learned Magistrate under the said Act are
enforceable in the same manner as provided under section
128 of the said Code.
10. While dealing with the procedure, it will be
necessary to refer to section 28 of the said Act which
reads thus:
"28.
28. Procedure:- (1) Save as otherwise
provided in this Act, all proceedings under
sections 12, 18, 19, 20, 21, 22, and 23 and
offences under section 31 shall be governed by
the provisions of the Code of Criminal
Procedure, 1973.
(2) Nothing in sub-section (1) shall prevent
the Court from laying down its own procedure for
disposal of an application under section 12 or
under sub-section (2) of section 23 (2 of
1974)."
11. The reliefs which can be granted on an
application under section 12 the said Act can be broadly
classified as under:
(i) protection orders under section 18 which
are for preventing the respondent from
committing an Act of Domestic Violence;
(ii) residence orders under section 19;
(iii)
includes
Monetary relief under section 20
maintenance, loss of earnings, medical
which
expenses and loss caused due to destruction,
damage or removal of any property from the
control of the aggrieved person;
(iv) custody orders under section 21 dealing
with temporary custody of any child or children
to the aggrieved person or visitation rights to
aggrieved person under section 21; and
(v) compensation orders under section 22.
12. Section 17 reads thus:
" 17. Right to reside in a shared
household:(1)
household: Notwithstanding anything contained
in any other law for the time being in force,
every woman in a domestic relationship shall
have the right to reside in the shared
household, whether or not she has any right,
title or beneficial interest in the same.
(2) The aggrieved person shall not be
evicted or excluded from the shared household or
any
accordance
part
ig of
with
it by the
the procedure
respondent
established
save in
by
law."
13. Sub section (1) of section 17 starts with a
non-obstante clause which has over-riding effect over
other statues. The sub-section provides that every
women in a domestic relationship shall have right to
reside in a shared household whether or not she has any
right, title or beneficial interest in the same. This
is indeed a provision which enlarges the scope of the
concept of matrimonial home under the existing laws
dealing with matrimonial relationship. This is in the
context of the definition of domestic relationship under
clause (f) of section 2 which means 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 a marriage. The
definition of shared household under section 2(s) of the
said Act is very wide. It even includes a household
which may belong to the joint family of which the
respondent is a member. Section 19 which gives power to
the Magistrate to pass residence orders providing for
grant of various orders in relation to a shared
household for protecting the rights of the aggrieved
person
Magistrate
to occupy
in
a
a
given
shared
case
household.
can even
The
direct
learned
the
respondent to remove himself from a shared household.
14. Section 23 of the said Act reads thus:
"23.
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 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,
against the respondent."
15. There was some debate before this Court as
regards the spheres in which sub section 1 and sub
section 2 of
section 23 operate.
sought to be raised by the learned counsel appearing for
A contention was
the 2nd respondent that power under sub section 2 is
confined to granting interim reliefs under sections 18
to 22 of the said Act and the power under sub-section 1
is a larger power which extends to grant of any interim
order as the learned Magistrate deems it just and proper
which may not be covered even by any of the sections 18
to 22. On plain reading of section 23, the legal
position appears to be different. This Court has
already held that when an aggrieved person desires to
claim any interim relief under section 23 of the said
Act, it is not necessary for the aggrieved person to
take out a separate application for interim relief and
the only requirement of law is that an affidavit in
prescribed Form III of the said rules has to be filed by
the aggrieved person. Sub- section 2 provides that when
such an affidavit is filed in the prescribed form by the
aggrieved person and if the application under section
12(1) of the said Act prima facie discloses that the
respondent thereto 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,
the learned Magistrate may grant exparte order under
sections 18, 19, 20, 21 or as the case may be under
section 22 against the respondent. Thus, sub-section 2
of section 23 confers a power on the Magistrate to grant
an exparte
ad-interim relief
ad-interim relief.
can be granted in terms
The said
of
exparte
reliefs
under section 18 to section 22 of the said Act.
Sub-section 1 deals with grant of an interim relief or
interim order. Thus, the scheme of the section 23
appears to be that under sub-section 2 on the basis of
an affidavit, an exparte ad-interim order without prior
notice to the respondent can be passed by the learned
Magistrate in terms of sections 18, 19, 20, 21 or 22 of
the said Act against the respondent. Sub section 1
provides for passing an interim order which is to
operate till the final disposal of the main application
under sub section 1 of section 12 or till the same is
modified earlier. Though a separate application is not
necessary to be made for grant of interim relief,
principles of natural justice require that before
granting interim relief in terms of sub section 1 of
section 23, the respondent in the main application will
have to be heard. Therefore, before granting interim
relief under sub section 1 of section 23, a notice will
have to be served to the respondent. It is well settled
position of law that an interim relief can be granted
only in the aid of final relief which can be granted in
the main proceedings. In the case of proceedings under
sub section 1 of section 12 of the said Act, the learned
Magistrate can pass final orders covered by sections 18,
19, 20, 21 or 22 of the said Act and therefore it is
obvious
sub section
that
interim order which can be granted
of section 23 can be only in terms
under
of
reliefs provided for in sections 18 to 22 of the said
Act. Under sub section 1 of section 23 a relief which
is not covered by any of the sections 18 to 22 of the
said Act cannot be granted. Thus in short, the power
under sub-section 2 of section 23 is of grant of an
ex-parte ad-interim relief in terms of sections 18 to 22
of the said Act and the power under sub-section (1) is
of grant of interim relief pending final disposal of the
main application under section 12(1) of the said Act.
16. It will be necessary to refer to section 29 of
the said Act which reads thus:
"29.
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."
17. On plain reading of the section 29 which
provides for an appeal to the Court of Sessions against
an order made by the Magistrate which is served on the
aggrieved person or the respondent as the case may be.
The
broadly
orders
divided
contemplated
into
under
three
the said
categories.
Act
The
can be
first
category is of the final order passed on application
under sub section 1 of section 12. The second category
is of the ex-parte ad-interim orders under sub-section 2
of section 23 of the said Act and the third category
will be of the interim orders under sub section 1 of
section 23 of the said Act.
18. Certain submissions were made on the basis of a
decision of Division Bench of this Court in the case of
Central Bank of India Vs. Kurian Babu (2004 (4)
Maharashtra Law Journal 1006). In the said decision,
the Division Bench of this Court has dealt with
provision of appeals under section 20 of the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993
(hereinafter referred to as the said Act of 1993).
After considering the decision of the Apex Court in the
case of Central Bank of India Vs. Gokal Chand (AIR 1967
SC 799) as well as in the case of Shankarlal Aggarwal
Vs. Shankarlal Poddar (AIR 1965 SC 507), the Division
Bench held that though section 20 of the said Act
provides for an appeal against every order made by the
tribunal constituted under the said Act of 1993, the
orders which are purely procedural which do not affect
the substantive rights of the parties are not appelable
under section 20(1) of the said Act of 1993.
19.
It will be necessary to consider the decision of
the Apex Court in the case of Shankarlal Aggarwal
(supra). The Apex Court was dealing with a provision
relating to an appeal under section 202 of the Companies
Act, 1913 which provided for an appeal from any order or
decision given in the matter of winding up of the
company by the Court. The Apex Court held that by
virtue of section 202 of the said Act of 1913, an appeal
will not lie against purely procedural orders which do
not affect the rights or liabilities of the parties. In
the case of Central Bank of India (supra), the Apex
Court was dealing with section 38 of the Delhi Rent
Control Act, 1958 which provided for an appeal against
every order passed by the Controller. The Apex Court
relied upon the decision in the case of Shankarlal
Aggarwala (supra) and held that though the phraseology
used in the section 38 was very wide, the said section
excludes merely procedural orders or orders which do not
affect the rights or liabilities of the parties.
20. Now turning to section 29 of the said Act, it is
true that an appeal will lie against every final order
passed by a learned Magistrate. The question which
arises is whether an appeal will lie against an ex-parte
ad-interim order passed under sub-section 2 and against
an interim order under sub section 2 of section 23. The
learned
upon the decision
counsel appearing for the 2nd respondent relied
of the Apex Court in the case of
Amarnath and others Vs. State of Haryana and others
(AIR 1977 Supreme Court 2185). He submitted that every
interim order cannot be treated as an interlocutory
order. He submitted that as observed by the Apex Court
there are orders which are matters of moment and which
affect or adjudicate the rights of the parties or a
particular aspect of the trial. He pointed out that the
Apex Court has held that such orders cannot be
interlocutory orders. On plain reading of section 29 of
the said Act, the orders which are made under sub-
section 1 and sub section 2 of section 23 will have to
be held to be an orders made by Magistrate under the
provisions of the said Act. The power under section 23
is of grant of ex-parte ad-interim and interim relief in
terms of sections 18 to 22 of the said Act. Therefore,
the orders passed both under sub section 1 and sub
section 2 will be appelable. However, the scope of
interference in appeal against such ad-interim or
interim orders will be naturally limited. The orders
contemplated by section 23 are discretionary orders.
The Apex Court had an occasion to deal with the power of
the Appellate Court and scope of appeals against interim
orders which are discretionary in nature. In the case
of Ramdev Food Products Pvt Ltd Vs. Arvindbhai Rambhai
Patel & others [(2006) 8 Supreme Court Cases 726] the
of Order XLIII
Apex Court dealt with an appeal provided under rule 1(r)
of the Code of Civil Procedure, 1908
against an interim order of injunction. Paragraph
Nos.125 and 126 of the said judgment read thus:
"125. We are not oblivious that normally the
appellate Court would be slow to interfere with
the discretionary jurisdiction of the trial
Court.
126. The grant of an interlocutory injunction
is in exercise of discretionary power and hence,
the appellate courts will usually not interfere
with it. However, the appellate courts will
substitute their discretion if they find that
discretion has been exercised arbitrarily,
capriciously, perversely, or where the court has
ignored the settled principles of law regulating
the grant or refusal of interlocutory
injunctions. This principle has been stated by
this Court time and time again." (Emphasis
added)
21. In view of what is held by the Apex Court, while
under
the Court of Sessions deals with an appeal from an order
made section 23, the Court of Sessions will be
governed by the aforesaid constraints. Thus, the scope
of appeal against an order under section 23 will be
limited. While dealing with an appeal against an
ex-parte ad-interim order, the Sessions Court will be
very slow in interfering with such orders unless the
orders are perverse or patently illegal. However, the
scope of an appeal against a final order on application
under section 12(1) of the said Act will not be governed
by the aforesaid constraints.
22. As held by the Apex Court in the case of Central
Bank of India (supra) and Shankarlal Aggarwal (supra),
an appeal under section 29 will not be maintainable
against the purely procedural orders such as orders on
application for amendment of pleadings, orders refusing
or granting adjournments, order issuing witness summons
or orders passed for executing the orders passed under
the said Act etc.
23. My attention was also invited to section 26 of
the said Act. If relief under the provision of sections
18 to 22 of the said Act is granted by a Civil Court or
Family Court, an appeal will not lie under section 29 in
as much as an appeal under section 29 will lie only
against an order of the learned Magistrate.
24.
Now turning to the facts of the case in hand, it
must be stated that it is an admitted position that the
said flat has been acquired in the joint names of the
petitioner and the 2nd respondent. It is true that in
the reply filed by the petitioner he has stated that he
has never denied residential accommodation of the said
flat to the 2nd respondent. However, while considering
the prayer under section 23 of the said Act, the learned
Magistrate is required to consider the averments made in
the main application under sub section 1 of section 12.
The learned Additional Sessions Judge has adverted to
the averments made by the 2nd respondent and has passed
a discretionary order granting protection to the 2nd
respondent in respect of said flat which prima facie
appears to be a shared accommodation within the meaning
of section 17 of the said Act. In so far as suggestion
given by the counsel appearing for the petitioner is
concerned, the parties cannot be compelled to accept the
said suggestion. The order passed by the learned
Additional Sessions Judge is an interim order which will
remain in force till final disposal of application under
sub section (1) of section 12 of the said Act. In view
of the admitted position that the flat is acquired in
the Joint names of the petitioner and 2nd respondent, no
case for interference is made out.
25.
are as under:
Thus,
the conclusions which can be summarised
(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
exercised
only if it is found that the discretion has been
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.
26. Before parting with this judgment, appreciation
has to be recorded about the able assistance given by
the learned counsel appearing for the petitioner and 2nd
respondent.
27. Hence, I pass the following order:
(i) The petition is rejected with no orders
as to costs.
(ii) The learned Magistrate will finally
decide the application under sub section
1 of section 12 of the said Act within a
period of three months from the date of
production of authenticated copy of
operative part of this order.
(A.S. Oka, J)
