Case Note & Summary
The petitioner, Siddharth Sabharwal, filed a criminal writ petition under Article 226 of the Constitution of India before the Bombay High Court challenging an ex parte ad interim order dated 8th May 2019 passed by the learned Metropolitan Magistrate, 62nd Court, Dadar, in Domestic Violence Case No. 87/2019. The impugned order restrained the petitioner from entering his own residence at A-3, Alpa Apartments, Pochkhanwala Road, Worli, Mumbai, and from committing any domestic violence against the respondent, Arzoo S. Govitrikar. The respondent had filed a complaint under the Protection of Women from Domestic Violence Act, 2005 (DV Act) seeking various reliefs, and had also filed an application for interim relief under Section 23(2) of the DV Act. The Magistrate, without issuing notice to the petitioner, passed the ex parte order. The petitioner contended that the order was passed in gross violation of principles of natural justice as he was not heard before the order was made. He argued that the order effectively dispossessed him from his own home, which is a shared household, and that such a drastic order could not be passed without giving him an opportunity to be heard. The respondent argued that the Magistrate had the power to pass ex parte interim orders under Section 23(2) of the DV Act and that the order was necessary to protect her from domestic violence. The court analyzed the provisions of the DV Act, particularly Section 23(2), which allows the Magistrate to pass ex parte interim orders. However, the court held that the power to pass ex parte orders must be exercised sparingly and only in cases of extreme urgency or where there is a real threat of harm. The court emphasized that principles of natural justice require that no order adverse to a person should be passed without giving that person an opportunity to be heard. The impugned order, which restrained the petitioner from entering his own residence, had serious civil consequences and could not be sustained without hearing the petitioner. The court quashed and set aside the ex parte ad interim order dated 8th May 2019 and directed the Magistrate to hear the parties afresh on the application for interim relief. The court also directed that the petitioner be given notice and an opportunity to file a reply before any further order is passed.
Headnote
A) Domestic Violence - Ex Parte Interim Relief - Section 23(2) Protection of Women from Domestic Violence Act, 2005 - Principles of Natural Justice - The court considered whether an ex parte ad interim order restraining the petitioner from entering his own residence could be passed without notice. Held that such an order, which has serious civil consequences, cannot be passed without affording an opportunity of hearing to the opposite party, as it violates principles of natural justice. The impugned order was quashed and set aside. (Paras 1-22) B) Domestic Violence - Shared Household - Residence Order - Section 19 Protection of Women from Domestic Violence Act, 2005 - The court noted that the order restraining the petitioner from entering his own home effectively dispossessed him from his shared household. Held that such a drastic order cannot be passed ex parte without hearing the affected party. (Paras 3-22)
Issue of Consideration
Whether an ex parte ad interim order restraining a person from entering his own residence can be passed under Section 23(2) of the Protection of Women from Domestic Violence Act, 2005 without giving notice to the opposite party, and whether such order violates principles of natural justice.
Final Decision
The court allowed the petition and quashed and set aside the ex parte ad interim order dated 8th May 2019. The matter was remanded to the Magistrate for fresh hearing on the application for interim relief, with directions to give notice to the petitioner and afford him an opportunity to file a reply.
Law Points
- Principles of natural justice
- ex parte interim relief under Section 23(2) of DV Act
- right to be heard
- shared household
- residence order
