Uttarakhand High Court
JUSTICE Prafulla C. Pant
S. Vishwanathan Vs. Pushpa On 10 June 2010
Law Point:
Ex parte order without getting notices served on revisionist as required under Section 13 of Act read with Rule 12 — Magistrate is directed to pass fresh orders after hearing parties — Impugned order set aside.
JUDGEMENT
1. Heard.
2. This revision is directed against the order dated 6.5.2010, passed by Sessions Judge, Tehri Garhwal, in Criminal Appeal No. 17 of 2010, whereby said Court has dismissed the appeal and declined to interfere order dated 27.1.2009, passed by Chief Judicial Magistrate, Tehri Garhwal in Misc. Case No. 06 of 2010 filed under Protection of Women from Domestic Violence Act, 2005.
3. Learned Counsel for the revisionist submitted before this Court that the order passed by the Magistrate on 27.1.2009, is an ex parte order. It is pointed out that there was no service of notice on the revisionist before the impugned order was passed by the Magistrate. It is pleaded that learned Sessions Judge, Tehri Garhwal (Appellate Court) has erred in law in dismissing the appeal.
4. Perusal of the order dated 27.1.2009, passed by the Magistrate itself shows that the respondent could not be served with the notice. Not only this, it is also mentioned that the respondent could not appear and could not file objections as he was not served with the notice. In such a case, this Court finds that Appellate Court has committed grave error of law in dismissing the appeal filed by the revisionist. By the order dated 27.1.2009, the Magistrate has directed the revisionist to pay maintenance at the rate of Rs. 7,000 per month by 10th of every month as maintenance to the respondent No. l (wife) Pushpa for herself and her daughter, under the Protection of Women from Domestic Violence Act, 2005. On going through the impugned order dated 6.5.2010 passed by Sessions Judge, Tehri Garhwal, it appears that the marriage between the revisionist and respondent No. 1 was solemnized on 20th of January, 2008 and at that time the respondent No. l Pushpa was a widowed lady with a 17 years old daughter. It is argued on behalf of the revisionist that the Courts below have erred in law in directing the revisionist to pay maintenance for the girl who is neither now minor, nor born out of the present wedlock.
5. Having considered submissions of learned Counsel for the revisionist and after going through the impugned order, this Court finds that the Magistrate has erred in law in passing the ex parte order without getting notices served on the revisionist as required under Section 13, Protection of Women from Domestic Violence Act, 2005, read with Rule 12 of Rules framed under the Act. It is further found that the Appellate Court has also erred in law in ignoring the said provision.
6. For the reasons as discussed above, this revision is summarily allowed and the impugned order dated 27.1.2009, passed by Chief Judicial Magistrate, Tehri Garhwal and in Criminal Misc. Application No. 6 of 2010 and order dated 6.5.2010, passed by Sessions Judge, Tehri Garhwal in Criminal Appeal No. 17 of 2010, are set aside. The revisionist Vishwanathan is directed to appear before the Trial Court on 21st of June, 2010. The Magistrate is directed to pass fresh orders after hearing the parties. In case the revisionist fails to appear on 21st of June, 2010 before the Trial Court personally or through Counsel, or on the next date fixed thereafter by said Court, the Trial Court is at liberty to pass the appropriated orders after hearing the respondent No. l.
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