Q:Is it necessary to file a petition to get interim order under Section 23 of the Protection of Women from Domestic Violence Act?
A:The answer is No. Let us look in detail. Section 23 of the Act deals with the power of Magistrate to grant interim and exparte orders. Sub section 2 of the Act says so:
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 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 S.18, S.19, S.20, S.21 or, as the case may be, S.22 against the respondent.
The above sub-section clearly lays down that the Magistrate may grant interim orders on the basis of affidavit in 'such form'......This clearly indicates the affidavit in Form No.III appended with the Act/Rules. Now the words 'may grant an exparte order' and 'under 18, 19 ....etc' may be read together. When we combine all these, the result is that 'an exparte order under 18, 19, etc may be granted on the basis of affidavit in such form. So the form is prescribed under Form III. No where in the Act the need for a separate affidavit and petition stated to get an interim order.
Rule 6(4) and 7 may also be helpful.
Rule 6(4): The affidavit to be filed under sub-section (2) of Section 23 shall be filed in Form III.
Rule 7: Every affidavit for obtaining ex parte order under sub-section (2) of Section 23 shall be filed in FormIII.
Now the answer is justified with the decision rendered by Kerala High Court in the Judgement cited below:
Chandrasekhara Pillai v. Valsala Chandran-2007(2)KLT 36(para 11)