TAMIL NADU

Court ruling in domestic violence case

Asks petitioner to file an appeal rather than a revision petition

An interim order passed by a Judicial Magistrate directing an individual to pay maintenance amount to a victim under the Protection of Women from Domestic Violence Act 2005 can be challenged only by way of an appeal before the Sessions Court concerned and not through a revision petition, the Madras High Court Bench here has said.

Disposing of a revision petition filed by an individual, Justice M. Venugopal said that a special enactment such as Domestic Violence Act would override the general remedy of revision provided under the Code of Criminal Procedure and therefore it would be advisable for those facing interim orders to prefer an appeal as provided under Section 29 of the special Act.

On the question as to whether the magistrates were empowered to order disbursement of maintenance amount by exercising their powers to pass interim orders under Section 23 of the Act, the judge said that he was leaving the issue open for the Sessions court to decide if the present revision petitioner happened to file an appeal before it.

Further, pointing out that Section 23 of the Act enables a magistrate to pass interim orders even without issuing notice to the opposite party, the judge said that the magistrates must be circumspect and act with care and caution while passing such ex-parte orders.

They must subjectively satisfy themselves as to the existence of valid reasons for passing such orders.

The magistrates should also apply their mind dispassionately and pass a reasoned speaking order in order to enable the appellate forum to understand the facts and circumstances under which such order came to be passed. “There must be an outline of process of reasoning.

A non-speaking order might be just from the point of view of the court passing it. But to an affected party, it will clearly be an unjust one,” he added.

In the present case, the revision petitioner was aggrieved against an order passed by a judicial magistrate in Dindigul on February 10, 2011 directing him to pay an interim maintenance amount of Rs. 5,000 to his wife who had filed a case under the special Act by alleging that she was driven out of her matrimonial home and was now living along with her parents.

A petition filed by the husband to get the order set aside was dismissed by the magistrate on December 14, 2011 on the ground of delay and hence he had approached the High Court by claiming that the maintenance amount awarded by the Magistrate was excessive and arbitrary.

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