The linked judgment below of Karnataka High Court below says that if the order under PWDVA (Protection of Women from Domestic Violence Act, 2005) is not an ex-parte order, then even to grant interim relief to the petitioner (wife), the court must conduct an inquiry as would be required in a CrPC summary trial, that is, summons case. This means that husband will be allowed to give his basic evidence etc and any order will be passed only after that.
The judgment is available only in scanned PDF format, so text cannot be extracted. Link to PDF below:
Read my maintenance book (DV and CrPC 125) if you want to save HARD EARNED money
Download my free PDF eBook Surviving the Legal Jungle
Don't be a lone ranger... JOIN our Facebook group to connect
Read this FREE eBook written by fathers involved in child custody issues
Case Number: CRL.RP 815/2009
Judge(s): JAWAD RAHIM
Petitioners: KRISHNAMURTHY NOOKULA
Respondents: SAVITHA Y
Date of Judgment: 9-Dec-2009
The order was based on reading of Section 23 and Section 28 of PWDVA given below. Sec 23 (2) allows the grant of ex-parte order based on affidavit of petitioner.
Section 28(1) clearly says that all proceedings under DV Act will be as per Code of Criminal Procedure (CrPC). It also allows the court to lay down its own procedure but only for sub-section 23(2) which relates to grant of ex-parte order. So court cannot create its own procedure for grant of relief if notice to respondent/husband is already issued.
So if you have received a notice under DV Act, then file your statement/objection and use this judgment to make sure that orders for relief are passed only after your evidence is taken up by court.
In Karnataka, this judgment has to be followed by all the lower courts. In other states, it is not mandatory but this judgment can be shown as a precedent of another high court to get similar relief.
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.
Section 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 of 1974).
(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.