Q.Can an ex parte order under The Protection of Domestic Violence Act be set aside? What is the provision?
A:The protection of domestic violence Act is an enabling statute. Being a beneficial legislation various orders can be made exparte. The order so made can be revoked by the aggrieved party. But what if the party is made exparte in the main case. There is no specific provision enabling to set aside an exparte order in the Act. But the remedy surely lies in Criminal Procedure Code. Proviso to Section 126(2) says the remedy. However it is not to be applied alone. First of all let us see the proviso of Sec.126(2) of Criminal Procedure Code:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
Thus in reading the proviso we came across some points. They are:
- Order for payment of maintenance is proposed/made
- The person against whom such order is proposed to be made wilfully avoids service or absents himself from Court
- Magistrate may make orders ex parte
- Can be set aside if good cause shown
- Limitation is 3 months
Look at the first point. It may seem that any person against whom no order of maintenance is proposed to be made cannot succeed in setting aside an ex parte order. Here comes the provisions of Protection of Women From Domestic Violence Rules handy. See the provision:
Rule 6 Sub Rule 5 says:The applications under Section 12 shall be dealt with and the orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure Code.
Thus it can be safely concluded that Sec.125 and its supporting provisions in CrPC can be used to set aside an exparte order in any case under Protection of Women From Domestic Violence Act. The provision of law should be stated as follows:
Petition filed under Proviso to Sec.126(2) of CrPC read with Rule 6(5) of the Protection of Women from Domestic Violence Rules
Note:This is not applicable to interim orders granted before service of notice.