Interim and Ex-Parte Orders in Domestic Violence Case - FAQs

Interim and Ex-Parte Orders in Domestic Violence Case – FAQs

I don’t know how many people are aware that initially, maintenance provisions like CrPC 488 of the Old Criminal Procedure Code and CrPC 125 did not have a provision for interim maintenance. The same was added later as it was seen that there was a tendency from the respondent side to delay the trial. Also, as one can see in certain reliefs in the Domestic Violence Act unless the court acts swiftly, many orders can lose meaning. Also, it is a social legislation. Hence, the legislature has provided powers to grant interim and ex-parte orders to the magistrate. The said powers are provided to safeguard the interest of genuine women who suffer; however, one has to guard against them as a respondent. If any interim order is passed against them, it is tough to get the same vacated.

The power conferred to the Magistrate to grant interim and ex-parte orders under the Protection of Women from Domestic Violence Act, 2005, is in Section 23, which states as follows:

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 proper.
2. Suppose 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. In that case, he may grant an ex parte order based on 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.

COMMENTARY:

Unfortunately, the legislature does not see any social legislation in the light of the possibility of its misuse. It was assumed that this Domestic Violence Act’s proceedings were urgent. It is even stated in the act that the trial shall be completed within 60 days, as far as practicable. With such a small time frame and considering the nature of the reliefs, for example, a woman in danger of being vacated from the house, etc., it was assumed that the court should have the power to make interim orders even before the respondent appears. Therefore, this section empowers the Magistrate to make interim orders as ex parte orders. The section also has a paper shield against misuse, and the Magistrate has to satisfy himself with the need to make an interim or ex parte order. To get the same, the complainant has to furnish an affidavit that such reliefs are urgently required. Legislatureture assumed that no one would lie on affidavit to get the orders.

As the orders can be passed for interim, ad-interim, and ex-parte, they are subject to loads and queries. I have tried to pick the most critical and repeatedly asked queries.