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Judgment
V.B. Gupta, J.
The present petition is filed under Article 227 of the Constitution of India read with Section 482 Cr.P.C. for quashing of the order dated 19th
September, 2007 passed by learned Metropolitan Magistrate, Delhi in the Domestic Violence Application.
The impugned order, relevant for the disposal of present petition reads as under:
No site plan of the shared household at matrimonial house is available on record. Learned Counsel seeks some time to file the same. At present
complainant is stated to be residing with her parents. In her petition she has made a request that she be allowed to stay at the shared household at
matrimonial house.
In view of the submissions of complainant and DIR, it is hereby directed that complainant namely Ms. Jay Shree be not dispossessed from shared
household at matrimonial house, i.e., F-304, Mansarover Garden, Ramesh Nagar, New Delhi. The order be complied with by the Protection
Officer with the assistance of SHO concerned. The report in this behalf be filed before the Court on or before 9.10.2007 at 1 p.m. Copy of order
be given dusty for compliance.
Sd/-
MM/DELHI/19.09.07
At the outset, it may be pointed out that the impugned order has been passed by the Ld. Magistrate under The Protection of Women from
Domestic Violence Act, 2005. As per this Act, the Magistrate has got ample power to modify, alter or revoke any order made under it and further
there is specific provision for filing of appeal to the Court of Session against the order of Magistrate under the Act. The relevant provisions in this
regard are Sections 25 and 29 of the Act, which read as under:
Duration and alteration of orders:
(1) A protection order made u/s 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent is satisfied that there is a change in the
circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass
such order, as he may deem appropriate.
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.
So, according to Section 25 of the Act, any aggrieved person may make an application before the Magistrate and the Magistrate after being
satisfied that there is change in the circumstances requiring alteration, modification and revocation of any order made under this Act, he may, for
reasons to be recorded in writing pass such order, as he may deem appropriate.
Section 29 of the Act provides for 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.
When specific remedy by way of appeal or by way of alteration, modification or revocation of any order, has been provided under the Act,
prima- facie, the present petition under Article 227 of the Constitution of India, or Section 482 Cr.P.C. is not maintainable before this Court.
It has been laid down in various judicial decisions by this Court as well as by the Apex Court that where the specific remedy is open to the party
under specific Act, the High Court will not interfere u/s 482 of Cr.P.C. In case of N.P. Ponnuswami Vs. Returning Officer, Namakkal
Constituency and Others, , the Apex Court has laid down that:
where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be
availed off
Here, in the case in hand, the Act under which the Magistrate has passed the impugned order, specifically provide the remedy by way of appeal
or by way of modification, alteration etc.
So, admittedly the petitioner has got alternative remedy under the Domestic Violence Act which she has not availed of and has straightway
approached this Court.
Under these circumstances, the present petition is misconceived and is not maintainable and same is hereby dismissed with costs of Rs.2,500/-.
The petitioner is directed to deposit the costs with the trial court within one month from the date of this order, failing which the trial court shall
recover the same in accordance with law.
Copy of this judgment be sent to the trial court forthwith.