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Rajasthan High Court · body

2025 DIGILAW 1578 (RAJ)

Ashok Meghwal, S/o. Baldev Ram v. Nirmala Devi, W/o. Ashok Meghwal, D/o Shimhu Ram

2025-09-11

SANDEEP SHAH

body2025
Order : SANDEEP SHAH, J. 1. The present revision petition has been filed by the petitioner- husband, challenging the order dated 17.10.2024 passed by the learned Chief Judicial Magistrate, Nagaur, in Criminal Case No.76/2023 whereby the learned Trial Court while granting interim maintenance directed the petitioner to pay a sum of Rs.2,000/- per month to each of the respondents from the date of filing of the application under Section 12 of the Act of 2005. 2. Brief facts of the case are that the respondent No.1-wife, along with her children, filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Act 2005 for the brevity). In her application, the respondent No.1 stated that the marriage between her and petitioner was solemnized on 20.06.2014 and out of the wedlock in question, one son and daughter, i.e. the respondent Nos. 2 and 3 were born. She further stated that from the date of her marriage she was being harassed by the petitioner for demand of dowry and on other grounds also. She further alleged that her brother-in-law used to sexually harass her on various occasions. She asserted that her family members paid Rs.2,00,000/-, however, the non-applicant respondent used to demand Rs.5,00,000/- from her family members. She submitted that she had even lodged a criminal case under Sections 498 A, 406, 354 and 323 I.P.C. against the non-applicant at Police Station Mahila Thana, Nagaur. By way of the application, she thus prayed for protection from domestic violence, right to residence, compensation for a sum of Rs.5,00,000/-, and maintenance per month for a sum of Rs.25,000/- (Rs.10,000/- for herself, Rs.5,000/- for rent of the house, and Rs.5,000/- each for the applicants No.2 and 3). She even prayed for interim maintenance for a sum of Rs.25,000/- and also asserted that the petitioner was having 11 bighas of land as well as earning Rs.40,000/- per month from the work of finance and was also involved in property dealings. In support of her application, the respondent No.1 filed her affidavit and also filed the affidavit in the format as directed by the Hon’ble Apex Court in the case of “ Rajnesh vs. Neha (2021) 2 SCC 324 ”. 3. In support of her application, the respondent No.1 filed her affidavit and also filed the affidavit in the format as directed by the Hon’ble Apex Court in the case of “ Rajnesh vs. Neha (2021) 2 SCC 324 ”. 3. The petitioner filed a reply to the application filed by the respondent No. 1 and while denying all the contents thereof stated that it was the respondent, who was causing all the trouble, and in spite of various mediations and all efforts made by the petitioner and his family members, there was no improvement in the behaviour of the respondent No.1. He further asserted that he was doing the work of a labourer and was only having 5 bighas of uncultivable land. He therefore prayed for rejection of the application and even submitted that the respondent herself was earning Rs.15,000/- while working at Bangle Factory, Nagaur, thus was not entitled to grant of any maintenance. 4. The petitioner also filed his affidavit pursuant to the directions issued by the Hon’ble Apex Court in the case of “ Rajnesh vs. Neha (supra)” and denied working anywhere and also did not disclose his income. He further stated that he was having only 4 bighas of joint family property. 5. In the meanwhile, the petitioner filed an application stating therein that the respondent has not filed an affidavit as mandatorily required under Section 23 (2) of the Act of 2005 in Form III, and, therefore, no order could be issued on interim maintenance, and further stated that the application as against the respondent Nos.2 and 3 deserves to be dismissed, as they are not necessary party. 6. The application in question was filed on 20.08.2024. The learned Trial Court thereafter proceeded to hear the arguments, and by way of order impugned, directed the petitioner to make a payment of Rs.6,000/- per month (Rs.2,000/- each) to the applicants, i.e. respondent Nos. 1 to 3 as interim maintenance from the date of filing the application under Section 12 of the Act of 2005 till the final order is passed on the said application filed by the respondents. Being aggrieved against the same, the present revision petition has been filed. 7. 1 to 3 as interim maintenance from the date of filing the application under Section 12 of the Act of 2005 till the final order is passed on the said application filed by the respondents. Being aggrieved against the same, the present revision petition has been filed. 7. Learned counsel for the petitioner did not argue on the quantum and confined his argument to two points, the first point being that the learned Trial Court did not decide the application dated 20.08.2024 filed by the petitioner, and the second being that the order of interim maintenance could not have been passed as the respondent had not filed an affidavit in Form III as provided under Section 23 of the Act of 2005 and Rules 6 & 7 of the Protection of Women from Domestic Violence Rules 2006 (hereinafter referred to as the Rules of 2006 for brevity). He submitted that prior to passing any order on interim maintenance, it was mandatory for the learned Trial Court to ensure that the affidavit is filed as provided under Sub-Section (2) of Section 23 ; in absence thereof, no order of interim maintenance could have been passed. He further asserted that the application dated 20.08.2024 remained pending and as per the order-sheets, the matter was being considered upon the same, however, without deciding the same the order impugned has been passed. He thus prayed for quashing and setting aside the order impugned. 8. Per contra, the learned counsel for the respondent supported the order impugned and submited that though the application remained pending, that by itself would not be a ground for setting aside the order in question and further submitted that there was no requirement under Section 23 (2) of the Act of 2005 to file the affidavit, as the order impugned was not passed ex parte and, therefore, the provision in question was not even applicable. 9. Heard the learned counsel for the parties and perused the record. 10. As far as the argument of the learned counsel for the petitioner with regard to not filing of an affidavit under Form III as provided under Section 23 (2) of Act of 2005 and Rules 6 & 7 of Rules of 2006 is concerned, first and foremost, the Court deems it appropriate to quote the relevant provisions for better understanding. 11. Section 23 of the Act of 2005 provides as under:- “23. 11. Section 23 of the Act of 2005 provides as under:- “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.” 12. Rules 6 & 7 of the Rules of 2006 reads as under:- 6. Applications to the Magistrate .—(1) Every application of the aggrieved person under section 12 shall be in Form II or as nearly as possible thereto. (2) An aggrieved person may seek the assistance of the Protection Officer in preparing her application under sub-rule (1) and forwarding the same to the concerned Magistrate. (3) In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof. (4) The affidavit to be filed under sub-section (2) of section 23 shall be filed in Form III. (5) 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, 1973 (2 of 1974). 7.Affidavit for obtaining ex-parte orders of Magistrate .— Every affidavit for obtaining ex-parte order under sub-section (2) of section 23 shall be filed in Form III. 13. Form III of the Rules of 2006 reads as under:- “FORM III [See Rule 6(4) and 7] AFFIDAVIT UNDER SECTION 23(2) OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 IN THE COURT OF: ________, MM, ___________ P/S: ____________ IN THE MATTER OF: Ms.,______ & Others --COMPLAINANT Versus Mr., _______ & Others --RESPONDENT AFFIDAVIT I, _____, W/o Mr. ____, R/o _____D/o_____, R/o _____, presently residing at ______, do hereby solemnly affirm and declare on oath as under: 1.That I am the Applicant in the accompanying application for _____filed for myself and for my daughter/son. 2.That I am the natural guardian of_______. ____, R/o _____D/o_____, R/o _____, presently residing at ______, do hereby solemnly affirm and declare on oath as under: 1.That I am the Applicant in the accompanying application for _____filed for myself and for my daughter/son. 2.That I am the natural guardian of_______. 3.That being conversant with the facts and circumstances of the case I am competent to swear this affidavit. 4.That the Deponent had been living with the Respondent/s at _____ since ____ to ____. 5.That the details provided in the present Application for the grant of relief under section(s) ______ have been entered into by me/at my instructions. 6.That the contents of the application have been read over, explained to me in English/Hindi/any other local language (Please specify_____). 7.That the contents of the said application may be read as part of this affidavit and are not repeated herein for the sake of brevity. 8.That the applicant apprehends repetition of the acts of domestic violence by the Respondent(s) against which relief is sought in the accompanying application. 9.That the Respondent has threatened the Applicant that _______________________________________ ___________________________________________ __________________________________________. 10.That the reliefs claimed in the accompanying application are urgent, inasmuch as the applicant would face great financial hardship and would be forced to live under threat of repetition/escalation of acts of domestic violence complained of in the accompanying application by the Respondent(s) if the said reliefs are not granted on an ex-parte ad-interim basis. 11.That the facts mentioned herein are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom. DEPONENT VERIFICATION Verified at ________on this ___ day of ___ , 20 ___ That the contents of the above affidavit are correct to the best of my knowledge and belief and no part of it is false and nothing material has been concealed therefrom. DEPONENT” 14. A perusal of the above-mentioned provision will clearly reveal that though the application is filed under Section 12 of the Act of 2005, the power has been given to the Magistrate to grant interim and ex parte orders. DEPONENT” 14. A perusal of the above-mentioned provision will clearly reveal that though the application is filed under Section 12 of the Act of 2005, the power has been given to the Magistrate to grant interim and ex parte orders. Sub-Section 2 of Section 23 of the Act of 2005 further provides that, in case the Magistrate is satisfied that the application prima facie discloses commission of an act of domestic violence or likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of an affidavit in such form, as may be prescribed, of the aggrieved person under Sections 18, 19, 20, 21 or, as the case may be under Section 22 against the respondent. Needless to emphasize that Section 20 pertains to monetary relief wherein the issue of maintenance is also covered. 15. It is thus clear that only in case an ex parte order is to be passed, then the affidavit in the prescribed Form III is to be filed. Rules 6 & 7 of the Rules of 2006 also clarify this fact that for the purpose of grant of ex parte order, the affidavit has to be in Form III. Perusal of Form III will also fortify this fact, emphasizing that the prayer made is urgent and thus an affidavit as provided for has to be filed. 16. However, in the present case, it is not a case of passing any ex parte order and it was essentially bi-parte proceedings. The order which was being passed, was upon the application for interim maintenance. In the present case, upon the application filed, by way of order-sheet dated 31.01.2023, the learned Chief Judicial Magistrate had directed notices to be issued to the respondent/petitioner, and post service of notice and after filing of reply, the matter was considered for grant of interim maintenance (and not ex parte proceedings). Thus, the question of applicability of Section 23 (2) of the Act of 2005 and Rules 6 & 7 of the Rules of 2006 and filing of the affidavit under Form III does not arise whatsoever. The argument raised by the learned counsel for the petitioner is fallacious and, in essence, not applicable to the case in hand. Thus, the question of applicability of Section 23 (2) of the Act of 2005 and Rules 6 & 7 of the Rules of 2006 and filing of the affidavit under Form III does not arise whatsoever. The argument raised by the learned counsel for the petitioner is fallacious and, in essence, not applicable to the case in hand. Rather, on the contrary, the affidavits in the format as directed by Hon’ble Apex Court in case of “ Rajnesh vs. Neha (supra)” and further affidavit fortifying the contents of the application under Section 12 of the Act of 2005, have been filed by the respondent. The petitioner on the other hand, has not even filed the affidavit in support of his reply in the format and rather simply verified the contents of the reply. Thus, the argument raised by the learned counsel for the petitioner is not at all tenable. 17. As regards the argument raised by the learned counsel for the petitioner regarding the application dated 20.08.2024 remaining pending, the same is also without any basis. As far as the second part of the application with regard to deleting of the respondent is concerned, the same can be decided as a subsequent stage also by the learned Trial Court and need not be decided at the stage of deciding the issue of interim maintenance. So far as the first part is concerned, needless to emphasize that the said part has already been dealt with, inasmuch as, there was no requirement for filing of an affidavit under Form III of the Rules of 2006 as the proceedings in hand were not ex parte proceedings. Though it would had been expedient and appropriate for the learned Trial Court to decide the application before hand prior to passing of the order in question, however, considering the nature of the prayer made and also considering the fact that the very purpose of the grant of maintenance being to prevent vagrancy and to ensure that the women and the children are not left in destitute state, would had been defeated in case the matter was lingered on for adjudication of the application of the nature as filed by the petitioner, the non-adjudication of the application by itself is not fatal in the facts and circumstances of the present case. 18. 18. As an upshot of the above-mentioned discussion, the order impugned dated 17.10.2024 passed by the learned Chief Judicial Magistrate, Nagaur in Criminal Case No.76/2023 “ Nirmala v. Ashok ” is upheld. The learned Trial Court is, however, directed to decide the second prayer made by the petitioner in his application dated 20.08.2024 expeditiously, prior to further proceed with the adjudication of the case in hand. The first prayer made in paragraph 1 of the application dated 20.08.2024 need not be delved into, in view of the adjudication made in the present case. 19. The revision petition is thus disposed off accordingly. 20. All the applications, if any, shall also stand disposed off.