SHIVAPRASAD GOWDA, S/O. B.P. VEERABHADRAGOWDA, SENIOR SOFTWARE CONSULTANT, CAPGEMINI (INDIA) PVT. LTD. Vs. SMT. TUSHARA MANI W/O. SHIVAPRASAD GOWDA, WORKING AS CHIEF MUNICIPAL OFFICER, URBAN DEVELOPEMENT AUTHORITY

JUDGEMENT

(1.) RESPONDENT herein initiated the proceeding under Section 12 of Protection of Women from Domestic Violence Act, 2005 against the Petitioner herein before the V Addl. CMM, Bangalore, in Crl. Misc. No. 497/2009. The said proceeding is being contested by the Petitioner. When the evidence was being recorded in the said proceedings the Respondent herein filed application under Section 23(2) r/w Section 19(1) of the said Act seeking an interim order against the Respondent to direct him to secure same level of alternate accommodation to her as enjoyed by her in the shared household or to pay the rent of the same. The said application was opposed by the Petitioner. After hearing both the sides, the learned Magistrate by order dated 20.10.2009 allowed the said application and directed the Petitioner herein to secure the same level of alternate accommodation to the Petitioner therein (Respondent herein) as enjoyed by her in the shared house at J.P. Nagar or to pay rent w.e.f. 01.11.2009. In the appeal filed by the Petitioner herein, against the said order before the Sessions Court at Bangalore in Crl. A. No. 885/09, the said order came to be modified and the Appellate Court taking into consideration the various circumstance and the feet that the Respondent herein is a State Government employee drawing a sum of Rs. 2,280/ - an HRA, directed the Petitioner herein to pay a sum of Rs. 2,720/ - p.m. towards rent from 1.11.2009 and also to pay Rs. 50,000/ - towards advance. As against this orders of the Courts below the Petitioner has presented this petition under Section 482 to quash the orders parsed by the Courts below.

(2.) THERE is no dispute that the Respondent herein is toe legally wedded wife of the Petitioner. Some differences arose between them and this led to several proceedings before the Courts, one for divorce, another for prosecution for the offence under Section 498A of IPC. There is also no serious dispute that the Respondent herein is presently employed in Municial Administrative Department of the Karnataka Government and even as per the objections fifed by the Petitioner herein, the gross salary drawn by the Respondent herein was Rs. 17,030/ - inclusive of HRA of Rs. 2,280/ - and her take home salary was Rs. 14,363/ -, The contention urged by Sri. R.I. Patil, learned Counsel appearing for the Petitioner is that the power of the Court to pass an interim order under Section 23(1) excludes the order that could he passed ex -parte in terms of Section 19 as provided by Sub -section (2) of Section 23. In other words, according to the learned Counsel, if the Magistrate proceeds to pass an ex -parte order as provided by Sub -section (2) of Section 23. he could grant such order in terms of Sections 18, 19, 20 and 21, however, while exercising the power under Sub -section (1) of Section 23, the Magistrate has no power to grant interim orders in terms of Sections 18, 19, 20 and 21. This interpretation sought to be placed by the learned Counsel, cannot be accepted. By reading Section 23(1) and (2) together, it is clear that while granting the interim order under Sub -section (1) the Court is empowered to grant the relief that can be granted under Sections 18, 19, 20 and 21 as an interim measure. As per Sub -section (1) of Section 23, the Magistrate is empowered to pass such interim order as he deems fit and proper. He has a blanket power to grant interim order of any nature. However, such jurisdiction should be exercised judiciously. Sub -section (2) empowers the Magistrate to pass an ex -parte order in terms of Sections 18, 19, 20 and 21. Of course the relief that may be granted under Section 19 would be at the stage of final disposal of the application filed under Section 12. However, by virtue of Sub -section (2) of Section 23, the Magistrate has power to pass an ex -parte order in terms of Section 19 also. The relief that may be granted ex -parte under Sub -section (2) of Section 23, is limited to the reliefs that may be granted under any one of Sections 18, 19, 20 and 21. However, under Sub -section (1) of Section 23, the power to grant interim order is not restricted to any specific Provision. It includes all the relief that may be granted under the Act, as such, the power is unlimited, and the Magistrate is empowered to grant such interim relief as he deems fit and proper in the circumstances of the case including the relief that may be granted under any one of Sections 18, 19, 20 and 21. Therefore, in my opinion the Magistrate has all the powers to grant interim order in terms of Section 19 even while exercising the power under Sub -section (1) of Section 23. In the case on hand the learned Magistrate having regard to the materials placed on record was of the opinion that the Respondent herein should be provided with a same level of alternate accommodation for her residence or that the husband should pay rent for such accommodation. It is the case of the Respondent herein that prior to the initiation of the proceedings they were residing together in a rented premises in J.P. Nagar, by paying monthly rent of Rs. 9,000/ -. The Petitioner has not seriously disputed this fact. No doubt while granting the relief under Section 19(1)(f) of the Act, the Court while directing the Respondent to secure same level of alternate accommodation for the aggrieved person, should bear in mind the circumstances in which the aggrieved person is placed. In the case on hand it is an admitted fact that the aggrieved person is a Government Employee and she drawing a gross salary of Rs. 17,000/ - and odd with a take home salary of Rs. 14,000/ - and odd. The amount includes sum of Rs. 2280/ - towards HRA. Though the learned Magistrate directed the Petitioner -husband to provide an alternate accommodation or to pay the rent for such alternate accommodation, the appellate Court taking into consideration the fact that the aggrieved person is receiving a sum of Rs. 2,280/ - as HRA every month and by holding that even for a decent accommodation, the aggrieved person may have to pay a minimum rent of Rs. 5,000/ -, directed the Petitioner herein to pay every month a sum of Rs. 2,720/ - towards the rent with effect from 1.11.2009 and also to pay the advance, of Rs. 50,000/ - Both the Courts have taken into consideration all the relevant facto including the circumstances in which the aggrieved person is placed while holding that the aggrieved person is entitled for an interim order in terms of Section 19(1)(f) of the Act. The lower appellate Court has in fact modified the order passed by the Magistrate, and has quantified the amount payable by the Petitioner to the aggrieved person towards house rent.