ORDER
A.S. Oka, J.
1. The submissions of the learned Counsel appearing for the parties were heard on the last date. With a view to appreciate the submissions, it will be necessary to refer to the facts of the case in brief.
The first respondent filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the said Act). The learned Magistrate passed an order on 4th January, 2008 on the said application directing the petitioner-husband to pay interim maintenance at the rate of Rs. 1,000/- p.m. The learned Magistrate also directed that the first respondent-wife was permitted to reside in a snared house situated at village Shedung, Post Ajiwali, Taluka Panvel, District Raigad. An Appeal was preferred by the petitioner by invoking Section 29 of the said Act. The Appeal was dismissed by the learned Additional Sessions Judge by order dated 15th July, 2008.
2. The submission of the learned Counsel appearing for the petitioner is that there was no prayer made by the first respondent for grant of any interim relief. He submitted that in absence of any prayer in the main application in under Section 12 of the said Act or in absence of any separate application filed by the first respondent for grant of interim relief, the learned Magistrate could not have granted interim relief in favour of the first respondent. He submitted that in absence of any interim application being made by the first respondent, there was no occasion for the learned Magistrate to consider the prayer for grant of interim relief. He submitted that as no opportunity was granted to the petitioner to oppose the prayer for grant of interim relief, the impugned order deserves to be set aside only on this ground. He submitted that the direction issued by the learned Trial Judge by order dated 4th January, 2008 by which the first respondent was permitted to reside in the shared house is in the nature of the final order which could not have been passed without giving an opportunity to the petitioner of adducing evidence. He submitted that the impugned order is therefore illegal and is required to be quashed and set aside. The learned Counsel for the first respondent supported the impugned Judgments and Orders and submitted that the learned Magistrate had jurisdiction to grant interim relief though there was no separate application containing a prayer for interim relief filed by the first respondent.
3. I have carefully considered the submissions. It will be necessary to refer to the relevant provisions of the said Act. Sub-section (1) of Section 12 of the said Act provides that an aggrieved person or any other person on behalf of the aggrieved person or a Protection Officer may present an application to the Magistrate for seeking one or more reliefs under the said Act. The reliefs which can be sought under the said Act are incorporated in Sections 17 - 22 of the said Act. Section 17 is regarding a right of a woman to reside in the shared household. Section 18 gives power to the learned Magistrate to pass a prohibitory order against the respondent in the application under Section 12(1) of the said Act. The said prohibitory order is essentially for preventing the respondent from committing an act of domestic violence or from preventing commission of any act as. specified in the protection order. Section 19 empowers the Magistrate to pass a residence order. Under the said Section the learned Magistrate can restrain the respondent in the application under Section 12 from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household. Under the said Section the learned Magistrate can issue direction against the respondent to remove himself from the household. Under the said Section the learned Magistrate can direct the respondent to secure the same level of alternate accommodation for aggrieved person as enjoyed by her in the shared household. Section 20 confers power on the learned Magistrate to grant monetary reliefs such as loss of earning, medical expenses, maintenance etc. Section 21 provides for passing order regarding custody of children. Section 22 gives power to the learned Magistrate to order payment of compensation and damages. Thus, Sections 17 - 22 provide for various kinds of final reliefs which can be granted by the learned Magistrate on an application under Section 12(1) of the said Act.
4. Section 23 confers a power on the learned Magistrate to grant interim relief and ex parte interim reliefs. Section 23 reads thus:
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.
5. In view of Section 23, pending the final disposal of the application under Section 12 of the said Act, the learned Magistrate gets jurisdiction to pass an order of interim relief in terms of Sections 18, 19, 20, 21 or 22 of the said Act. Sub-section (2) of Section 23 empowers the learned Magistrate to grant an ex parte ad interim relief. Section 28 is also relevant on this aspect which reads thus:
28. Procedure:
(1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973.
(2) Nothing in Sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under Sub-section (2) of Section 23 (2 of 1974).
6. There are rules framed by the Central Government in exercise of power conferred by Section 37 of the said Act. The said rules are known as the Protection of Women from Domestic Violence Rules, 2006 (hereinafter referred to as the said Rules). In view of Sub-rule (1) of Rule 6, an application under Section 12 of the said Act is required to be filed in Form-II. The said form is an exhaustive form in which the aggrieved person is required to set out the specific nature of reliefs claimed with particular reference to the reliefs provided under Sections 17 to Section 22. Rule 7 of the said Rules provides that every Affidavit for obtaining an ex parte order under Sub-section (2) of Section 23 shall be filed in Form-Ill. The language of Sub-section (2) of Section 22 is very clear. On an affidavit being filed in the prescribed form, the learned Magistrate can exercise power to grant an ex parte ad interim orders under Sections 18, 19, 20, 21 or 22 of the said Act provided the learned Magistrate is satisfied that the application made by the aggrieved person prima facie discloses that the respondent to the said application is committing or has committed an act of domestic violence or there is a likelihood that the respondent may commit an act of domestic violence. Sub-section (2) of Section 23 read with Rule 7 clearly shows that there is no requirement of filing a separate application for interim relief under Section 230 of the said Act. Apart from these two provisions, Sub-section (2) of Section 28 of the said Act provides that the Court is empowered to lay down its own procedure for disposal of an application under Section 12 or an application under Sub-section (2) of Section 23 of the said Act. Therefore, there is no requirement of filing a separate application for grant of interim relief under Section 23 of the said Act. However, while considering the question of granting the ex parte ad interim or interim relief, the learned Magistrate will have to consider the nature of the reliefs sought in the main application under Section 12(1) of the said Act inasmuch as an interim relief under Section 23 of the said Act can be granted in aid of the final relief sought in the main application. On the basis of an affidavit in Form-Ill prescribed by the Rules, in a given case, learned Magistrate can grant ex parte ad interim relief. However, before granting an interim relief, an opportunity of being heard has to be afforded to the respondent. The respondent can always file a reply to the affidavit.
7. Perusal of the paragraph 8 of the judgment of the Appellate Court shows that the only contention raised by the petitioner was that the regular case number should not have been assigned to the application. The contention was that the application filed by the first respondent could not have been numbered as a regular criminal case. The impugned order passed by the learned Magistrate shows that a reply was filed by the petitioner to the application under Section 12(1) filed by the first respondent. A copy of report submitted by the Protection Officer under Section 9(b) of the said Act has been annexed to the Affidavit in reply to this petition filed by the first respondent. Perusal of the application filed by the first respondent under Section 12(1) of the said Act which is in Form-II shows that the first respondent prayed for reliefs under Sections 18, 19 and 20 of the said Act. The petitioner has filed a reply to the said application under Section 12 and, therefore, he was aware that reliefs were claimed by the first respondent under the aforesaid sections. The learned Magistrate while passing the impugned order has referred to the reply filed by the petitioner. Perusal of the paragraph 3 of the order shows that the learned Magistrate was exercising a power of passing an interim order. The said order shows that the petitioner was heard before passing the order. Perusal of the judgment of the Appellate Court shows that it was not even a case made out by the petitioner that he was not heard or that he was not aware that the learned Magistrate was considering the prayer under Section 23 of the said Act. On plain reading of the operative part of the order dated 4th January, 2008, it is very clear that the learned Magistrate has granted interim relief in terms of Section 23 of the said Act read with Section 19(1)(a) and Section 20(1)(d) of the said Act. The maintenance amount has been fixed only at Rs. 1,000/- p.m. from the date of the application. There is a prima facie finding recorded that the first respondent was residing with the petitioner in his house. Therefore, an order as regards a shared accommodation was passed. It is pertinent to note that it is not the case of the petitioner that an affidavit which is required to be filed under Rule 7 of the said Rules was not filed by the first respondent.
8. Thus, it is not possible to accept the contention raised by the petitioner that the interim relief under Section 23 of the said Act can be granted only on a separate application for interim relief made by the aggrieved person. From the scheme of the provisions of the said Act and in particular Section 23 read with Section 28 of the said Act and Rule 7 of the said Rules, it is apparent that there is no such requirement of law. The only requirement of law is that the aggrieved person seeking ex parte ad interim relief will have to file an affidavit in prescribed form as provided under Rule 7 read with Sub-section 2 of Section 23 of the said Act. As stated earlier, in the facts of the case, no grievance has been made by the petitioner before the Appellate Court or in this petition that such affidavit was not filed.
9. Hence, no case is made out for interference. The petition is rejected. There will be no order as to costs. The main application under Section 12(1) of the said Act shall be decided by the learned Magistrate without being influenced by the grant of interim relief by the trial Court and the confirmation thereof by this Court.
10. In view of mandate of Sub-section (5) of Section 12, the main application under Section 12 shall be disposed of by the learned trial Judge as early as possible and preferably within a period of two months from the date on which an authenticated copy of this order is produced before the concerned Court.
Parties and the concerned Court to act upon an authenticated copy of this order.