SURESH KUMAR SHETTY Vs. HEERAMANI S SHETTY

JUDGEMENT

(1.) ST petitioner married respondent on 13.3.1996. Petitioners allege that without any justifiable cause, respondent deserted the matrimonial home and is living separately since 2001. Respondent filed a petition under S.12 of the Domestic Violence Act ("the Act" for short). Along with the petition, I.A.1 under S.23 of the Act was filed. On 21.1.2012, learned Magistrate ordered issue of notice to respondent returnable by 23.1.2012. From the record it is evident that, notice ordered on 21.1.2012 was not issued for want of process fee. Without noticing the order passed on 21.1.2012, learned Magistrate having heard the petitioner on I.A.1, allowed the same by an order dated 28.1.2012. Feeling aggrieved, respondents in the complaint have filed this revision petition.

(2.) SRI G.S.Venkat Subbarao, learned counsel for the petitioners contended that the learned Magistrate has committed error and illegality in allowing I.A.1 without service of notice as ordered on 21.1.2012 being completed and after granting reasonable opportunity of hearing to file the objections and putforth their case. Learned counsel contends that, impugned order is one passed in violation of principles of natural justice.

(3.) RECORD would clearly indicate that a petition under S.12 of the Act was filed on 21.1.2012. Along with the petition, I.A.1 was filed under S.23 of the Act to pass an interim order. On the same day, learned Magistrate ordered notice to respondents returnable by 23.1.2012. On 23.1.2012, without noticing the fact that steps had not been taken for issue of notice of the petition and I.A.1 to the respondents, by hearing the learned counsel appearing for the complainant, the impugned order has been passed. Submission made by Sri Venkat Subbarao that there is denial of reasonable opportunity of hearing to the petitioners herein while passing an order on I.A.1 is well founded. Even though the Court below could have passed an ex parte order, having not been done so, on 21.1.2012 notice of petition and I.A.1 has been ordered, it ought to have waited for completion of service and thereafterwards taken up I.A.1 for consideration. Order passed being otherwise, is unsustainable. The proceedings of the Trial Court in the matter of passing order on I.A.1 is irregular and vitiated.