Domestic violence is a social evil prevalent all around us. With the increase in the filing of suits under the Protection of Women from Domestic Violence, it has posed a very worrisome picture in front of the society. The motive of the D.V. Act was to expedite the process of granting relief to the aggrieved. However, the same has become difficult as in most cases the accused refuses to make an appearance before the court especially when the accused is residing outside the territory of India. In such a case, Section 23(2) comes to the rescue.
Section 23 (2) of the Protection of Women from Domestic Violence Act, 2005, states that:
“Power to grant interim and ex parte orders.—
(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”
From the reading of the above section that the Magistrate is empowered to pass ex-parte interim relief in cases where an application prima-facie discloses that an act of domestic violence has either taken place or may take place.
The Hon’ble High Court of Kerala in Krishna Murthy Nookula versus Y. Savitha, (2011) 3 KCCR 2221, held that:
“17. Sub-section (2) of Section 23 relates only to grant ex-parte orders. For clarity, the same is once again extracted
“(2) If the Magistrate is satisfied that an application prima facie disclose that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order on the basis of the affidavit in such form, as may be prescribed”
- From this, it is clear that the proceeding under sub-section (1) of Section 23 which permits to pass interim order has to be governed by the provisions of Code of Criminal Procedure by virtue of Section 28(1) of the Act, but all actions in a proceeding for grant of ex-parte order would be by the procedure framed by the Court itself if any or on the basis of the affidavit in such form as may be prescribed. The ultimate conclusion would be for grant of ex parte order, the Magistrate need not necessarily apply provisions of the Code of Criminal Procedure, but he could pass such orders on the basis of material in the form of affidavit in such form as may be prescribed or following the procedure it has prescribed (if any)...”
The Hon’ble Delhi High Court in Bharat Bararia vs Priyanka Bararia, CRL. MC. 4936 of 2015, held that:
“22. Sub-clause 2 of Section 23 of DV Act empowers the Magistrate to pass such interim order as he deems just and proper therefore, it is well within the jurisdiction of the Magistrate to grant the interim ex parte relief, if the Magistrate is satisfied that the application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence.”
The Hon’ble High Court of Punjab and Haryana in Hema Rawal and another versus Prashant Sharma, CRM-M 14633 of 2013 (O&M), stated that:
“…Section 23 empowers the Magistrate to pass any interim order in case an application, prima facie, discloses that aggrieved woman has been subjected to domestic violence or there is a likelihood that the respondent may commit an act of domestic violence. All the reliefs available under Sections 18, 19, 20, 21 and 23 can be granted by way of an interim or ex parte order depending upon the circumstances of the case.”
The Hon’ble Madras High Court in A.Suresh Anto vs Anto Teena Mary, Crl.R.C.No.1179 of 2015, observed that:
“7…While passing the interim order, there is no necessity to send notice to other side and hearing the other side is not at all necessary. In the above circumstances, it is useful to extract Section 23 of the Protection of Women From Domestic Violence Act, 2005 which reads as follows:-
“23. Power to grant interim and ex parte orders.- (1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or as the case may be, section 22 against the respondent.”
This clause provides for the grant of interim orders by the Magistrate. He may also pass ex parte orders on the basis of affidavits given by the aggrieved person.”
Requirements of Section 23(2):
- Application by way affidavit by the petitioner/complainant
- The magistrate must be satisfied that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence