Alexander Sambath Abner v. Miron Lede And Another

JUDGEMENT :-

T.Sudanthiram, J.

1 The revision petitioner herein is the husband of the first respondent herein and father of the second and third respondent. The first respondent herein filed an application before the learned Judicial Magistrate II, Puducherry, under Section 12 of the Protection of Women from Domestic Violence Act, 2005. seeking relief under Section 18 of the said Act. She also filed an interim application in Crl. M.P. No.1700 of 2007 under Section 23(2) of the said Act. In the said petition, the reliefs sought for by the first respondent are as follows:

"(a) restraining the respondent and his men from committing any act of domestic violence.

(b) restraining the respondent and his men from dispossessing or in any other manner disturbing the possession and enjoyment of the house by the complainants, where they are living at. No.22, First Cross Street; Ezhil, Nagar (North), Puducherry-8.

(c) directing the respondent to remove himself from the house of the complainant.

(d) restraining the respondent and his men from alienating or disposing off the house of the complainant in any manner."

2 After notice being given to the petitioner herein as he had not filed any counter, the learned Magistrate after recording that no counter was filed, allowed the petition on 11.12.2007 in Crl. M.P, No.1700 of 2007 and granted interim relief as prayed for. Then on the very same day, the petitioner herein filed an application in Crl. M.P. No.543 of 2008 under Section 25(2) read with 23(2) of the said Act, seeking for the revocation of the order already passed. The respondent herein also filed counter in that application and the learned Magistrate after hearing both parties, passed an order on 23.9.2008, modifying the earlier order permitting the petitioner herein to reside in the shared household without committing any act of violence against the respondent herein. The other interim relief order granted under Clause-a, b and d in Crl. M.P. No.1700 of 2007 were made to remain as it is.

3 The respondents herein aggrieved by the modification order of the learned Judicial Magistrate, preferred an appeal before the Sessions Judge, Puducherry under Section 29 of the said Act in Crl. A. No.24 of 2008. The learned Sessions Judge, allowed the appeal filed by the respondents herein, observing that no appeal has been filed under Section 29 of the Act by the petitioner herein and it has to be taken that he had not challenged the interim order passed by the learned Judicial Magistrate under Section 22(3) of the Act and the learned Magistrate had no power to modify his own order by exercising his power under Section 25 of the Act, since there was no change in the circumstances. Aggrieved by the order of the learned Principal Special Judge, Puducherry, the petitioner herein has preferred this revision petition before this court.

4 The learned counsel for the petitioner submitted that originally interim order passed by the learned Magistrate on 11.12.2007 was only an ex parte order and the learned Magistrate had ample power to alter, modify or revoke the earlier order under Section 25(2) of the said Act. Though no counter was filed by the petitioner herein on that day, without hearing the petitioner herein, a stringent order has been passed by the learned Magistrate to remove him from the shared household and that order require a reconsideration and therefore after hearing the petitioner herein, the learned Magistrate only modified the order. The learned counsel for the petitioner herein further submitted that the main petition is pending and while, so without hearing the petitioner, the interim order has been passed causing great hardship to him and he had been particularly thrown out of the household and even that order being set right by the learned Judicial Magistrate himself,' the learned Sessions Judge had erroneously allowed.the appeal against the principles of natural justice.

5 The learned counsel for the petitioner reiterated that the application filed under Section 25(2) of the said Act is maintainable and there was no need for the petitioner herein to prefer an appeal against the ex parte order passed by the learned Magistrate in Crl. M.P: No.1700 of 2007.

6 The learned counsel appearing for the respondent submitted that once an order is passed by the learned Magistrate, it cannot be set aside or modified by the same Court by invoking Section 25(2) of the said Act, unless the Court is satisfied with the circumstances in the case requiring such alteration, modification or revocation order passed earlier. If person feels aggrieved by the order, the only remedy available is under Section 29 of the Act to file an appeal within 30 days from the date of receipt of that order.

7 Mr. R. Subramanian, learned senior counsel further submitted that even the learned Magistrate while modifying the order passed, has not pointed out any, change of circumstance and the order passed by the learned Magistrate cannot be construed as an ex parte order, since the petitioner herein has not chosen to file any counter or objection petition.

8 The learned senior counsel also further submitted that the Sessions Judge had rightly held that the petitioner herein instead of invoking Section 29 of the Act had wrongly invoked Section 25(2) of the Act.

9 The learned counsel for the petitioner herein submitted that there are ample materials available with the petitioner to show that though the properties stands in the name of his wife, the plot was purchased and the house was constructed only by the petitioner herein and it is an admitted fact that both the husband and wife were living together in the same house and if the petitioner is sent out of the house, a grave injustice will be caused to him.

10 The learned senior counsel for the respondent herein submitted that no injustice is caused to the petitioner herein and the Protection of Women from Domestic Violence Act is the beneficiary Act for the affected women and special protection is given to the women and the first respondent herein being harassed and ill-treated by the petitioner herein, she had hosen to file the application before the learned Magistrate. The learned senior counsel also relied upon the Order of this Honourable High Court in W.P. No,28521 of 2008 dated 3.4.2009, wherein the Court declined to hold that Section 12,18, 19 and 23 of the Protection of Women from Domestic Violence Act, 2005, are unconstitutional, ultra virus and void.

11 The learned senior counsel also relied on the decision of this Court Amar Kumar Mahadevan v. Karthiyayini wherein it is observed as follows :

"8. In construing the provisions of the Act, the Court has to bear in mind that it is a beneficent piece of social welfare legislation aimed at promoting and securing the well-being of the aggrieved persons and the Court will not adopt a narrow interpretation which will have the effect of defeating the very object and purpose of the Act. It must be interpretation in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim."

12 This Court considered the submission made by both sides and perused the records. The respondent herein filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the Judicial Magistrate II, Puducherry in the month of April, 2007. Along with the said application, a petition for interim order was filed under Section 23 (2) of the said Act. Though notice was also issued to the petitioner herein and he had appeared before the learned Magistrate he has not filed any counter and therefore, the learned Magistrate allowed the said application filed by the respondent under Section 23(2) of the Act on 11.10.2007. By the said interim order, one of the relief granted to the respondent herein directing the petitioner here to remove himself from the house of the respondent herein. Of course, under section 19 of the said. act, while disposing of an application under sub-section (1) of Section 12, the Magistrate may pass such a residence order. The Magistrate also has power under Section 23 of the Act to pass such an interim order. It is an admitted fact that both the husband and wife had earlier occupied the residence. According to the respondent herein, she is the owner of the house, but according to the petitioner herein, only he had spent money for the purchase of plot and constructing the house and originally the plot was purchased in the name of his mother-in-law and on the very same day, it was transferred to the first respondent herein. According to the petitioner herein, the order was passed by the learned Magistrate under Section 23(2) of the said Act in favour of the respondent herein without hearing the petitioner, and therefore, it amounts to an ex parte order immediately the application was also filed by the respondent herein under Section 23(2) of the Act and the learned Magistrate also subsequently modified the earlier order. According to the learned Magistrate, the application filed under Section 25(2) of the said Act is maintainable and there was no need for the hushand/petitioner herein to file an appeal against that ex parte order.

13 The learned Magistrate has observed in his order as follows:

"18. As per the above provisions of law, this Court has ample power to alter, modify or revoke the earlier order, if this Court has satisfied that there is a change in the circumstances for reasons to be required in writing, on application made by the affected party or the respondent. In the present case in hand, the affected party namely the respondent/husband filed this application in Cr. M.P. No.543 of 2008 under Section 25(2) of the Protection of Women from Domestic Violence Act, 2005 to revoke the earlier order." As already discussed without hearing the respondent or without contesting the allegations of the petition an interim order was granted by this Court to remove the respondent from the shared household. The allegation regarding the violence committed by the respondent and the Counter allegations made by the respondent/husband are matter to be decided after the trial in the main application. In the interim application, it is sufficient to see prima facie materials available to decide this case. Since a stringent order is passed against the respondent i.e., to remove the respondent from the shared house hold in the interim order in Cr. M.P. No.1700 of 2007, without hearing the respondent, it requires reconsideration."

14 In the appeal preferred by the respondent herein before the Sessions Court. The learned Sessions Judge held that the petitioner herein should have filed only an appeal against the order passed by the learned Magistrate under Section 23(2) of the said Act and further held that as the petitioner herein has not chosen to file the appeal, it should be taken that he had not challenged the order of the learned Magistrate passed under Section 23(2) of the Act.

15 The learned Sessions Judge has further held that the Magistrate can also alter modify or revoke his earlier interim order passed under Section 23 of the Act exercising power under Section 25 of the Act, but it may appear similar power has been given to the learned Magistrate as well as appellate Court under Section 25 and 29 of the Act respectively. The appellate Court being a Sessions Judge is superior than the Magistrate Court and hence the object of the Legislature could not be that similar power can be exercised by the Magistrate and the Appellate Court under Section 25 and 29 of the Act respectively. The powers that could be exercised under Section 25 and 29 of the Act operate in different fields and while that could be exercised under Section 25 and 29 of the Act operate in different fields and while the Magistrate can exercise his power under Section 25(2) of the Act only if there is a change in the circumstances, the Appellate Court can exercise its power under Section 29 of the Act to alter, modify or revoke the order of the Magistrate considering the merits of the order including the change in the circumstance. The Magistrate can alter, modify or revoke the earlier order as a matter of right considering the merits of the earlier order or by reviewing its earlier order. But it can exercise its power only in the change of circumstance. The learned Sessions Judge further held that the Magistrate has travelled beyond his power under Section 25 of the Act, and in fact, there is no change in the circumstance for varying or revoking the interim order passed under Section 23 of the said Act".

16 From the observations of the learned Magistrate and the learned Sessions Judge, the points which arise for determination are as follows:

(i) Whether the interim order passed by the learned Magistrate without hearing the other side could be considered as ex parte order.

(ii) If so, whether the affected party should file only an appeal under Section 29 of the Act or may invoke the provision under Section 25 of the said Act.

(iii) While invoking the provision under Section 25 of the Act, whether by merely giving an opportunity to the affected party to be heard could it be considered as change of circumstance.

17 It is admitted that when the first interim order was passed by the learned Magistrate 11.10.2007, the petitioner herein has not chosen to file any counter and he has not made any submission on his behalf. Though the opportunity was given to the petitioner herein, he had not chosen to utilize which amounts to remaining ex parte. Therefore, it is to be construed that the order passed by the learned Magistrate on 11.10.2007 is only an ex parte order Further while passing that order, the learned Magistrate has not given any reasons or granting the relief and it is non-speaking order and was not an order on merits.

18 The next question to be decided that whether against that said ex parte order, only an appeal should be filed under Section 29 of the Act or application under Section 25(2) could be filed for the modification or revocation of the order.

19 Section 25(2) of the Protection of Women from Domestic Violence Act, 2005 as follows:

"25. Duration and alteration of orders: (1) ..........

(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances , requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate."

20 Section 29 of the said Act, is as follows:

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".

21 It is held by the Honourable Kerala High Court in its decision reported in Sulochana v. Kuttappan and Others as follows:

"17. The learned counsel for the respondents contends that a person who has suffered an ex parte interim order under Section 23 can always go before the Magistrate and request for modification/vacation of the interim order or not to extend the interim order under Section 23. But the mere fact that such a course is available to him cannot at all persuade the Court to hold that such an interim order will be beyond the purview of Section 29 and no such appeal would at all be maintainable. In this context, I again look at the possible interim orders that can be passed under section 23 read with sections 18 to 22. I have no hesitation to agreesion/stay in appeals preferred under Section 29 of the Act."

22 From the above decision, it is made clear that an order passed under Section 23, an appeal may be preferred under Section 29 of the Act. At the same time, it is open to the aggrieved party seek for remedy under Section 25 of the Act before the same Court. Neither Section 25(2) excludes the right of the party under Section 29 of the Act to prefer an appeal nor Section 29 prevents the party from seeking the remedy under Section 25(2) of the said Act. At the same time for invoking provision under Section 25(2), there must be a change in the circumstance after the order being passed.

23 The next question in this case is that whether the learned Magistrate had 'noticed any change of circumstance to modify the order by invoking Section 25(2) of the Act. It has been observed by this Court already that the order passed by the learned Magistrate on 11.10.2007 was not a speaking order. A petition has been preferred under Section 25(2) of the Act by the petitioner herein and he had made his submission before the learned Magistrate. When a party was not heard in earlier circumstance, but subsequently heard, it could be considered as a change of circumstance. Therefore an ex parte order passed under Section 23 (2) could be altered, modified or revoked by the same Court on an application from the aggrieved person under Section 25(2) of the said Act.

24 It is true that this Act is for the benefit of women at the same time, it should not be causing trouble or injustice to men. The learned Magistrate must have been careful while granting ex parte order under Section 23 of the Act. Only after the Magistrate satisfying himself with great the care and caution must pass ex parte interim orders only to the.extent necessary.

25 It is true that there is some dispute among the husband and wife and even with regard to the ownership of the property. It is open to the petitioner herein to file his counter and also let in evidence with regard to his contention that he had spent money in the house property and he has got right over the property. It is an admitted fact that both the husband and wife were living in the same house and as such directing the husband to remove himself from the shared household must be only in extreme and compelling circumstance. Though the provisions are already declared to be constitutionally valid by this Honourable High Court the Magistrate must exercise the power with great care and caution, especially in granting ex parte orders.

26 In the result, the Judgment passed by the learned Principal Special Judge, Puducherry in Crl. M.P. No.24 of 2008 is set aside and the order dated 23.5.2008 passed by the learned Judicial II, Puducherry in Crl. M.P. No.543 of 2008 is restored. The revision petition is allowed accordingly. Consequently, M.P.1 of 2009 is closed.