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anupam_advocate (n/a)     17 October 2007

under section 23 D.V.act 2005

under section 23 d.v.act 2005: aggrieved person get intrim order by court.
1. in any proceeding before him under this act,magistrate may pass such intrim order as he deems just and proper.

2. if the magistrate is satisfied that an application prima facie discloses that the respondent is commiting ,or has comitted an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic biolence , he may grant an ex-party order on the basis of the affidavit in such form as may be prescribed , of the aggrived person under section 18,19,20,21,or as the case may be section 22 againest the respodant.


Learning

 8 Replies

lawyer_rajiv (9811284735) (lawyer)     23 October 2007

even though the provision clearly states that an ex parte order can be issued qua sec. 18 to 22 but no court takes the pain of issuing an ex parte order, no matter how strong a case is.  it has become a routine for the courts to issue summons to the opposite party and only after reply is filed, the court takes the pain to issue orders.  the intention of legislature and practical approach of courts are poles apart.

anupam_advocate (n/a)     23 October 2007

but i hv filed 8 cases in lucknow court and in 5 case court passed proctection order,residence order,maintance order,property not sale without court order and oprate bank account without appear o.p. in court. all orders are intrim u/s sec.23.

lawyer_rajiv (9811284735) (lawyer)     24 October 2007

but here the courts are really very cautious and can not pass such adverse orders without the appearance of the opposite party.  what if the other party appears and challenges even the marriage or relies  upon any court order passed prior to institution of the case.  though the law is clear but courts are fearful in passing any such orders ex parte.  if you got interim orders without even intimation to the ex parte, its good for ur client.  i request you to send the orders at my email i.e. [url=mailto:lawyer_rajiv@yahoo.com]lawyer_rajiv@yahoo.com[/url], i will be thankful.

anupam_advocate (n/a)     24 October 2007

sure i will send u all intrim orders.
here if court satisfied with grounds of application filed by petitioner and feel that if intrim order not provid to petitioner than petitioner will face domestic violence or finance crsis or residence problem .
really it is not easy ask to get intrim order in favour of our client from court.

Prakash Yedhula (Lawyer)     24 October 2007

[url=https://www.firstappeal.com/view_topic.php?id=38&forum_id=15]https://www.firstappeal.com/view_topic.php?id=38&forum_id=15[/url]

Find more on DV Act through the above link.

lawyer_rajiv (9811284735) (lawyer)     25 October 2007

once the court passes an ex parte order and upon later it is found that the marriage has already been dissolved or some stay is against the wife or some other order affecting the provisions of sec. 23 of the act, in that case, it would be almost impossible for the court of magistrate to undone the harm caused by his ex parte order.  approach of the courts here seems to be logical.

anupam_advocate (n/a)     26 October 2007

ya in every exparty order court already mention that if op appear and file objection in light of any new reason or facts of the case court can recall that order.
in mostly cases court only pass residance order and intrim maintance order againest o.p.after appearaenceof o.p. court fix case for evidances and after final argument...

Jayesh Kumar (AA)     01 February 2011

In a DV Act case, the Magistrate passed an interim ex parte order u/s 23 for protection, residance & maintainence order after the husband refused to accept the summons(which is the report submitted by the officer serving the notice) thereafter Magistrate gave him time for 3-4 dates(mentioned in the interim ex parte order) & thereafter satisfying himself upon the FIR's & medical injury reports as submnitted by the Petitioner-wife(mentioning this fact in his interim ex parte order) passing such an order. Magistrate issued recovery warrants for the maintainence amount which husband continued defaulting. Husband was notified of the Domestic Violence case & order in another suit however still he did not appear by the wife. Husband appeared in the same Magistrate court in divorce proceeding then the wife asked Magistrate to serve the recovery warrant on the husband. Husband appeared thru counsel & filed application u/s 25 DV Act asking recall/revokation of the interim ex parte order passed 1 years ago.

My Question-

1. Can the husband file revocation of the interim ex parte order passed 1 year ago u/s 25 in the above circumstances?

2. Can the Magistrate recall his own order in the above said circumstances(Justice Adalat Prasad in a judgement said a Magistrate cannot recall his own order)?

3. Even if the case has to be now argumented, does the Respondent-husband need to pay the interim maintainence granted or that too only after the decision of the case?

There is no stay or any such adverse order by any Higher Court.

I will really be greatful if the experts of The Law can give their assesment on this matter.

 

Regards,


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