HITESH MISHRA Vs. PUSHPA MISHRA

JUDGEMENT

(1.) Smt. Pushpa Mishra, wife of the petitioner the respondent herein, filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the PWDV Act') claiming relief as provided under Sections 17 to 23 of the said Act. The said application was filed on 26-8-2013 before the Court having jurisdiction to try that application and on the same day, the learned trial Magistrate directed for issuance of notice to the present petitioner through the Protection Officer. The Protection Officer submitted a report on 31-10-2013 that the present petitioner and four others have refused to accept the notice issued by the Court and, therefore, by order dated 8- 11-2013, the trial Court proceeded ex parte and by order dated 28-11-2013, finally, the application filed by the respondent was allowed granting certain reliefs to her. Feeling aggrieved and dissatisfied against the order granting reliefs to the respondent herein, the present petitioner preferred Cr.A.No.114/2014 before the Court of Session and the learned Sessions Court by its impugned order affirmed the order of the trial Magistrate holding that the petitioner was duly served and as such, the order of the Magistrate is unassailable and dismissed the appeal.

(2.) Invoking the jurisdiction of this Court under Section 397 read with Section 401 of the CrPC, the petitioner herein has filed this revision petition questioning the impugned order affirming the order of the trial Magistrate proceeding ex parte and granting reliefs to the respondent wife.

(3.) Mr. Vivek Shrivastava, learned counsel appearing for the petitioner husband, would submit that the trial Magistrate has committed a manifest illegality in proceeding ex parte against the petitioner on 8-11-2013 and the learned Sessions Judge has perpetuated the illegality by rejecting the appeal preferred under Section 29 of the PWDV Act. Elaborating his submissions, he would further submit that the notice of Section 12 application has to be served in the manner prescribed under Section 13 of the PWDV Act. Referring to Section 13 (2) of the PWDV Act, he would also submit that according to Section 13 (2) of the PWDV Act, declaration of service of notice made by the Protection Officer shall be proof that such notice was served upon the respondent. He would lastly submit that the Protection of Women from Domestic Violence Rules, 2006 have been framed. Rule 12 of the said Rules provides means of service of notices and as such, Order 5 of the Code of Civil Procedure, 1908 would be applicable. Order 5 Rule 17 of the CPC which requires affidavit of the serving officer has neither been filed nor he has been examined to prove the impugned refusal by the present petitioner and, therefore, the order impugned is unsustainable and bad in law.