We have all heard about giving interim orders exparte. But can a final order be given exparte.
The law of Protection of Women from Domestic Violence Act is an enabling or beneficial legislation. It cannot be the law that the petitioner shall wait for a long time to help the counter petitioner to come and approach the court in the time as he pleases. The answer is here:
After a petition is filed under Section 12, notice has to be served to opposite party as stated in Section 13. What will happen if the respondent not appears. It can be due to any reason. Proper service not effected as he was not in station or evading service or for any other reason. What is the remedy of the petitioner. Can the Court straightaway pass final orders on the application. Here the rules of the law comes handy. The Protection of Women From Domestic Violence Rules in Rule 6(5) says that 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. So we must take recourse to the proceedings under Section 125 and allied provisions to see whether anything has been said about service of notice. Here it can be seen that Proviso to Section 126 of the Code says that the Magistrate can make any order exparte if he is satisfied that the respondent is wilfully avoiding service, or wilfully neglecting to attend the court. Thus the point is clear now. It must be satisfied that the respondent is wilfully avoiding service or neglecting to attend the Court. So inorder to come to such conclusion proper service of notice is necessary as per law. Now we can take recourse to Rule 12(2) of the Rules. The clauses a to d of the said sub-rule very clearly says that for serving notices under Section 13 or any other provisions of the Act, the provisions under Order V of the CPC of the provisions under Chapter VI of the CrPC as far as practicable may be adopted. Now clause (d) says that any order passed for such service of notices shall entail the same consequences, as an order passed under Order V of CPC or Chapter VI of the CrPC.
Now the answer is clear. Order V of CPC and Chapter VI of CrPC details about serving of notices and its methods and consequences. On going through these provisions it can be noted that there are different methods to ensure proper service of notice and to help the Court arrive at the conclusion that notice can be presumed to be served upon the respondent. Hence the Court can post the case for taking exparte evidence of the petitioner and pass final orders when the petitioner gives evidence.