Madhulika Badola vs State Of Uttarakhand And Another
2022 Latest Caselaw 3312 UK

     HIGH COURT OF UTTARAKHAND AT NAINITAL

            Criminal Misc. Application No. 51 of 2020
Madhulika Badola                                             .....Applicant.
                                    Versus
State of Uttarakhand and another                             .... Respondents
Present :
Mr. Ramji Srivastava, Advocate, for the applicant.
Mr. Atul Kumar Shah, Deputy A.G., with Mrs. Mamta Joshi, Brief Holder, for the State
of Uttarakhand.

                              JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

The brief facts of the case are, that the present applicant to the C482 Application, is a complainant to the proceedings under Sections 18, 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter to be called Act of 2005), which has been registered as a Complaint Case No. 4 of 2014, Madhulika Badola Vs. Sri Anoop Kumar Badola and others, which is presently pending consideration before the Judicial Magistrate Rishikesh, District Dehradun.

2. In the proceedings, which were held before the learned Court below, it is contended by the applicant in para, 14 of her C482 Application, that respondent No.2, who happens to be the husband of the present applicant though he did put in appearance before the Court below on 26th March, 2016, engaged his counsel, but thereafter, he has chosen not to participate in the proceedings of the said Complaint Case No. 4 of 2014.

3. In the proceedings, which were held before the learned Court below, the other respondents i.e. respondent Nos. 3, 4 and 5 (respondent No 3 now deceased) were directed to provide the correct address of respondent No.2, so that he may be served with the notices in order to enable him to participate in the proceedings, because of the fact, that after putting appearance on 26th March, 2016, he had never participated in the proceedings, due to which, the proceedings of the Complaint Case No. 4 of 2014, has been kept at a halt.

4. The learned counsel for the applicant has argued, that the provisions of the Domestic Violence Act of 2005, are special statutes, which are specifically governed by its own procedural provisions contained under the Act itself, in order to meet out the objective of the Act, to provide immediate reprive to the victim to the domestic violence.

5. He contends that in para 14 of C482 Application, that when there is a specific averment made with regard to the appearance made by respondent No.2, and his non appearance thereafter. If the counter affidavit filed by respondent is taken into consideration, the para 14 of C482 Application, has been answered by the respondents in their para 15, wherein, a very evasive reply has been given, and no specific averment has been made, as to what are the reasons, which had contributed for non appearance of respondent No.2, despite of having earlier engaged a counsel to appear on his behalf. The said answer given in para, 15 of the

counter affidavit is not apt to the pleadings raised in para 14 of the C482 application.

6. It has been argued by the learned counsel for the applicant, that let us presume that even if respondent No. 2 Anoop Kumar Badola, the husband of the present applicant had put in appearance through his counsel on 26th March, 2016, and for whatsoever genuine reason, he may have, if he is not participating in the proceedings, the proceedings cannot be kept in abeyance and at a limbo for all times to come and it has had to be given a logical end to meet the objective of the Act and legally venture to provide for immediate reprive to be given to the victim of the domestic violence.

7. In support of his contention, the learned counsel for the applicant has submitted, that since the provisions of the Domestic Violence Act of 2005, being a special statute, it is governed by its inbuilt procedure provided under Section 23 to be read along with Section 28 of the Act.

8. If Section 23 of the Act itself is taken into consideration, which is extracted hereunder, it provides a forum, that in an eventuality, if a party to the proceedings after due notice, does not put in appearance, the Court ceased with the proceedings under Domestic Violence Act, has got ample of power to proceed ex parte against the respondent, who is not participating in the proceedings despite of service of notice. Section 23 of the Act is quoted 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.

9. If the logical interpretation is given to the aforesaid provision, where the statute provide with the power to the Court to proceed ex parte for the purposes of grant of an interim order as contemplated under Sub-section (1) of the Act, it does not exclude to proceed ex parte because the title head of Section 23, has to be read independently and cannot be separated in its implication to be limited to at the stage of grant of interim order under Sub-section (1) only or deciding the matter finally under Sub-section (2) of the Act.

10. Merely because of the fact, that the respondent No. 2, has not participated in the proceedings, after filing his vakalatnama on 26th March, 2016, the proceedings of the Domestic Violence Act, could have proceeded in accordance with Section 23 ex parte, as against respondent No. 2, who is avoiding appearance in the proceedings of the Complaint Case No. 4 of 2014, Madhulika Badola Vs. Anoop Kumar Badola and others.

11. In that eventuality, the prayer made by respondent Nos. 4 and 5, herein now, that the proceedings under Sections 18, 19 and 20 of the Act, may be separated and dealt with independently to the proceedings, so far it is concerned with respondent No.2. It is not required to be separated because the Act itself does not contemplate a separation of a conjoint proceedings, which has been initiated by the applicant before the court below.

12. In that eventuality, even in the absence of opposite party No. 2, from participating in the proceedings, it is always open for the Judicial Magistrate, to resort to the procedure under Section 23 of the Act, to proceed ex parte and to decide the matter after complying with the procedure contemplated under Section 23. The absence of respondent No. 2, will not create any judicial obstacle as such for the Judicial Magistrate for not to proceed with the Complaint Case No. 4 of 2014, Madhulika Badola Vs Anoop Kumar Badola and others, and the application submitted by respondent for separation of the proceedings, qua the respondent No. 2 and as far as present respondent Nos. 4 and 5 are concerned, since it is not a procedural ambit contemplated under the provisions of the special Act, the proceedings itself has to be decided compositely by the Court under the procedure prescribed, under Sections 23 and 28 of the Act of 2005, and if respondent No. 2 is not proceeding, the Court will have to proceed ex parte against him by fixing a date to proceed ex parte hearing.

13. In that eventuality, when the Act itself is a self contained Act providing a special provisions for proceedings ex parte as against the party, who is not diligently participating in the proceedings, the C482 Application would stand disposed of, that instead of separating the proceedings as prayed for by the remaining respondents, i.e. now respondent Nos. 4 and 5, the Judicial Magistrate is directed to proceed under Section 23 of the Act, as against the respondent No.2 and on merits as against the respondent Nos. 4 and 5 and decide the matter as expeditiously as possible but not later than three months from the date of production of certified copy of this judgment.

14. Subject to the aforesaid, the C482 Application is being disposed of.

(Sharad Kumar Sharma, J.) 13.10.2022 Shiv