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Quashing of ex-parte order passed by the judicial magistrate in domestic violence case

Shivendra Pratap Singh

Advocate

06/12/2019

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I want to quash the ex-parte order of Judicial Magistrate passed in my absence. My wife filed a complaint under section 12 of the domestic violence act for various relief. I was in Canada when the incident of domestic violence took place. Consequently, the said complaint is baseless. There is no evidence that I involved in the incident, but my wife, due to mala-fide intention, made me accused therein.

In the current scenario, could I get quashing order from the High Court? However, I want to mention that the lower court passed ex-parte order on 16/09/2016, and I did not challenge this order.

You should bear in mind that an ex-parte order has the same effect as final order if it is not set-aside. The court passed the order on 16/09/2016, and you want to challenge it after three years. Therefore, in such condition, you have to give the reason for the delay for initiating any legal proceeding.

Quashing of ex-parte order

Section 482 of the code of criminal procedure vests extraordinary power in the High Court for doing justice. The Supreme Court has held in a catena of judgements that the court should exercise such power in exceptional cases. As far as your case is concerned, you have a remedy under The Domestic Violence Act; therefore, you cannot invoke section 482 CRPC.

In Mohit @ Sonu v. the State of U.P., (2013) 7 SCC 789, the Supreme Court has held that “when there is a specific remedy provided by way of appeal or revision, the inherent powers under section 482 cannot be and should not be resorted to.”

Section 29 of the domestic violence act provides the right to file an appeal against the impugned order of the magistrate. The limitation period for such appeal is thirty days from the date of order. The ex-parte order is also, and appealable order and appeal lie under section 29.

Without exhausting this remedy, you cannot file a petition under section 482 CrPC for quashing of the order. The high court exercises inherent power only if no remedy is available to the petitioner, and his case wants interference of the court for doing justice.

File appeal with the prayer of condonation of delay

You should file an appeal under section 29 of the domestic violence act along with a prayer for condonation of delay. The limitation period or filing appeal has expired; therefore, prayer under section 5 of the limitation act is mandatory.

When the appellant has the reasonable ground of the delay, the duration becomes immaterial. You said that at the time of the incident you were living in Canada. Therefore, it would be a compelling reason for filing the appeal after three years.

In State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94 the Supreme Court opined that the court could condone the delay to do substantial justice to parties. There is no presumption that party deliberately occasioned the delay. The court should decide the matters on merits rather than focus on technical faults of parties.

Hence, you should prefer to file an appeal instead of quashing petition under Section 482 of CrPC.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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