Impugned Provision / other anomaly
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Breach of Section / Article
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Section 13 when read with
Rules 12(2)(a)(b)(c) and section 23 of the impugned Act
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Breach of principles of
natural justice;
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SECTION 13: Service of notice
(1) A notice of the date of hearing
fixed under Sec. 12 shall be given by the Magistrate to the Protection Officer,
who shall get it served by such means as may be prescribed on the respondent,
and on any other person, as directed by the Magistrate within a maximum period
of two days or such further reasonable time as may be allowed by the Magistrate
from the date of its receipt.
(2) A declaration of service
of notice made by the Protection Officer in such form as may be prescribed
shall be the proof that such notice was served upon the respondent and on any
other person as directed by the Magistrate unless the contrary is proved.
SECTION 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 Sec. 18, Sec. 19,
Sec. 20, Sec. 21 or, as the case may be, Sec. 22 against the respondent.
RULE 12: Means of service of notices
(1) The notices for appearance in
respect of the proceedings under the Act shall contain the names of the person
alleged to have committed domestic violence, the nature of domestic violence
and such other details which may facilitate the identification of person
concerned.
(2) The service of notices shall
be made in the following manner, namely:
(a) The notices in respect of the
proceedings under the Act shall be served by the Protection Officer or any
other person directed by him to serve the notice, on behalf of the Protection
Officer, at the address where the respondent is stated to be ordinarily
residing in India by the complainant or aggrieved person or where the
respondent is stated to be gainfully employed by the complainant or aggrieved
person, as the case may be.
(b) The notice shall be delivered
to any person in charge of such place at the moment and in case of such
delivery not being possible it shall be pasted at a conspicuous place on the
premises.
(c) For serving the notices under
Section 13 or any other provision of the Act, the provisions under Order V of
the Civil Procedure Code, 1908 (5 of 1908) or the provisions under Chapter VI
of the Code of Criminal Procedure, 1973 (2 of 1974) as far as practicable may
be adopted.
(d) Any order passed for such
service of notices shall entail the same consequences, as an order passed under
Order V of the Civil Procedure Code, 1908 or Chapter VI of the Code of Criminal
Procedure, 1973 respectively, depending upon the procedure found efficacious
for making an order for such service under Section 13 or any other provision of
the Act and in addition to the procedure prescribed under the Order V or
Chapter VI, the court may direct any other steps necessary with a view to
expediting the proceedings to adhere to the time limit provided in the Act.
(3) On a statement on the date
fixed for appearance of the respondent, or a report of the person authorized to
serve the notices under the Act, that service has been effected appropriate
orders shall be passed by the court on any pending application for interim
relief, after hearing the complainant or the respondent, or both.
(4)
When a protection order is passed restraining the respondent from entering the
shared household or the respondent is ordered to stay away or not to contact
the petitioner, no action of the aggrieved person including an invitation by
the aggrieved person shall be considered as waiving the restraint imposed on
the respondent, by the order of the court, unless such protection order is duly
modified in accordance with the provisions of sub-section (2) of Section 25.
The Argument
By virtue of Section 12(4),
whereas it is not unlawful for the Ld. Magistrate to grant hearing within 3
days of the filing of Application u/s 12, and whereas even if Notice may have
been effected upon the Respondent, it would be within the powers of the Ld.
Magistrate to grant ex-parte interim reliefs as provided u/s 23 of the impugned
Act, it would be very difficult for the Respondent to make effective representation
to contest the allegations made in the Application.
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