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:

  1. Order for payment of maintenance is proposed/made
  2. The person against whom such order is proposed to be made wilfully avoids service or absents himself from Court
  3. Magistrate may make orders ex parte
  4. Can be set aside if good cause shown
  5. 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.

Post a Comment

  1. you pointed about revoking an order. how is it possible. when is it possible? please reply

  2. dear Renjith. it is possible to revoke an order when there is change in the circumstances of the party in the case. you may refer to Section 25(2) of the Protection of Women from Domestic Violence Act.

  3. Can the income of the respondent be attached until final disposal of the Application claiming maintenance and compensation orders under the Protection of Women from Domestic Violence Act?

  4. I think there is no specific provision for attachment in the act. however the property or assets of the respondent can be prohibited from alienation. With regard to salary, a specific provision is there directing the employer of the respondent to deposit the salary of the respondent with the court or directly pay the petitioner if the respondent does not comply with the order. I have never come across any decision which enables attachment of salary of respondent as in CPC. He can be prohibited from alienating his assets/property. He can be directed to pay money from his salary and if he fails, steps can be taken against his employer.

  5. Hello,Ihave a question...My friends wife got DVO on him, now she asked about she would like to have non violent contact.What exactly that means?Can she go back to him just like that,right the way? like never anything happened?Thank you for answer...

  6. Dear Anonymous person. You have not mentioned what is the specific order. Anyhow, if you obtain an order it doesn't mean that you will have no chance to reunion. The applicant can discharge the order. It can also be settled out of court.

  7. is it possible to reopen the case of 125 if the order has been made EXParte order by the honorable magistrate???????

  8. is it possible to reopen the case of 125 if the order has been made EXParte order by the honorable magistrate???????
    does the honorable family court reopen the same case if another party against whom the order is made wants to reopen under 126(2)?????


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