N. NANDAKUMAR Vs. RAJAMMAL

JUDGEMENT

(1.) This revision is preferred against the order of learned Judicial Magistrate VI, Coimbatore, passed in C.M.P. No. 4377/2014 in D.V. No. 16/2012 on 17.07.2014. Petitioner and respondent are husband and wife. They were married in the year 1978. They have a son and daughter. Alleging that petitioner had developed illicit intimacy with another, respondent/wife moved D.V. No. 16/2012 on the file of learned Judicial Magistrate VI, Coimbatore, seeking relief under Sections 18,19 and 20 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act'). She moved C.M.P. No. 3597/2012 seeking interim relief of maintenance in a sum of Rs. 10,000/- per month. Court below, under orders dated 28.02.2013, directed petitioner to pay a sum of Rs. 5,000/- p.m. as interim maintenance on or before 10th of every month. Though both sides had been heard prior to disposal of C.M.P. No. 3597/2012, the order of 28.02.2013 informed the same to be an ex parte order Respondent/wife moved C.M.P. No. 4377/2014 seeking rectification terming the error a 'technical' one. By the order under challenge, Court below informed that a typographical error had crept into the order dated 28.02.2013 and accordingly, thought it fit to rectify the same stating that respondent is entitled to relief claimed by her and that it is the duty of petitioner to provide her with food and essentials. Court below confirmed the earlier direction requiring payment of a sum of Rs. 5,000/- per month on or before 10th of every succeeding month towards interim maintenance.

(2.) Heard learned counsel for petitioner and learned counsel for respondent.

(3.) While learned counsel for petitioner submits that the order under challenge is a transgression of the bar imposed under Section 362 Cr.P.C., learned counsel for respondent submits that under Section 23 (2) of the Act, the Magistrate has power to pass an ex parte order. Learned counsel for respondent further submits that though Section 28 (1) of the Act informed that the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 of the Act shall be governed by the provisions of the Code of Criminal Procedure, 1973, sub-section 2 thereof empowered Court to adopt its own procedure while dealing with an application under Section 12 or under sub-section 2 of Section 23 of the Act. Submitting that Section 25(2) of the Act empowered a Magistrate to alter or modify an order if there is change in circumstances, the modification of the prior order dated 28.02.2013 occasioned owing to an error on the part of Court below in making observation of an order being an ex-parte one, is informed to be justified. The provision permitting Court to adopt its own procedure, while dealing with an application, under Section 23(2) of the Act cannot be read as a licence to do that which is unjust. The power to alter or modify an order given a change of circumstances envisaged in Section 25(2) of the Act is meant to be used to balance the interest of parties in the given change of circumstances. That the Magistrate has heard both parties before passing the initial order of 28.02.2013, is an indication that he did not consider it appropriate to pass an ex parte order in exercise of powers u/s. 23(2) of the Act. The order dated 28.02.2013 does not reflect any contentions made on behalf of petitioner/respondent. Therefore, it is apparent that the error of informing the order to be an ex parte merely was not technical. The error was substantial and hence, the order could not have been modified in the manner adopted.