Manish Tandon vs Richa Tandon and Others

V.K. Gupta, C.J.—Mr. A. Rab, learned Counsel appearing for the Respondent Nos. 1 to 3 has pointed out and submitted that Section 29 of the Protection of Women from Domestic Violence Act, 2005 (2005 Act, for short) is a complete bar to the maintainability of this petition u/s 482 Code of Criminal Procedure Section 29 reads thus:

Appeal. - There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the Respondent, as the case may be, whichever is later.

Mr. Sharad Sharma, learned Counsel appearing for the Petitioner submits that Section 29 is not attracted in this case because what comes within the purview and ambit of Section 29 is a final order passed by the Magistrates under the 2005 Act. According to Mr. Sharad Sharma, since the impugned order is an ex-parte order granting interim maintenance to the Respondents 1 to 3 in terms of and, u/s 23(2) of the 2005 Act, Section 29 is not attracted and, therefore, the appeal does not lie against the impugned order granting ex parte interim maintenance. According to Mr. Sharma, if a Magistrate has granted ex parte interim maintenance u/s 23(2) of the Act, the only remedy available to the aggrieved person is to approach this Court u/s 482 Code of Criminal Procedure

I totally and absolutely disagree with the aforesaid contention of Mr. Sharma. The word ''order'' used in Section 29 connotes all types of orders passed by the Magistrates under the 2005 Act including orders granting interim maintenance under Sub-section (1) of Section 23 as well as ex-parte interim maintenance granted under Sub-section (2) of Section 23. Since the word ''order'' has not been qualified by any suffix or prefix in Section 29, the clear legislative intent is that each and every type of order, irrespective of its description and nature, passed by a Magistrate has been made appealable to the court of Session Judge u/s 29. The remedy of filing an appeal u/s 29, therefore, being an alternative and equally efficacious remedy, this petition u/s 482 Code of Criminal Procedure was not at all maintainable. It was not open to the Petitioner to have bypassed the appeal forum by straightway approaching this Court u/s 482 Code of Criminal Procedure

I have, therefore, no hesitation in holding that on the ground of availability of an alternative and efficacious remedy of appeal u/s 29 (supra), this petition is not maintainable in this Court u/s 482 Code of Criminal Procedure

Having said so, I myself feel and the learned Counsel appearing for the parties, Mr. Sharad Sharma as well as Mr. A. Rab agree with me that sending the Petitioner back to the appellate forum may be a cumbersome and time taking process and because the Petitioner, rightly or wrongly, has now come to this Court, this Court should actually send the parties back to the Magistrate with directions to the Magistrate for deciding the interim relief application. They accordingly submit that the following agreed order be passed.

Impugned order is set aside. The parties, namely, the Petitioner and the Respondents 1 to 3 through their learned Counsel are directed to appear before the learned Session Judge, Dehradun on 18th August, 2008. In the meanwhile, the Petitioner shall file his reply to the interim maintenance application before 12th August, 2008 with advance copy to the learned Counsel opposite who may, if he so elects, file rejoinder thereto before 18th August, 2008.

Because of certain observations made in the course of the impugned order, I feel that it shall be desirable if the matter is now heard by a Magistrate other than the one who passed the impugned order. I, therefore, direct the learned Session Judge, Dehradun to assign the matter to a Magistrate, other than the one who passed the impugned order, and fix the date for appearance of the parties before the assigned Magistrate within 2-3 days from 18th August, 2008.

Since the pleadings in the interim relief application would stand completed before 18th August, 2008, the Magistrate to whom the matter is assigned by the learned Session Judge, Dehradun is directed to ensure that the interim maintenance application is disposed of and appropriate order passed on the merits of the case and in accordance with law, uninfluenced by the order dated 17th November, 2007. The needful shall be done before 29th August, 2008.

Mr. Rab submits that the Respondents 1 to 3 presently are living a life of destitutes and they have no means to support themselves. Without going into the merit or the tenability of this submission of Mr. Rab, I direct the Petitioner to pay to Respondent No. 1 a sum of Rs. 15,000/- ex gratia within three days from today.

I do wish to clearly observe and direct that the passing of this order today by this Court shall not be treated as a precedent for invoking this Court''s jurisdiction in other cases in future.

This order has been passed with the agreement of the parties and because of peculiar facts and circumstances of this case.