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.
Is it possible to obtain a quashing order from the High Court in the current scenario? It is important to note that the lower court passed an ex-parte order on 16/09/2016, which I did not challenge. It should be noted that an ex-parte order has the same effect as a final order if it is not set-aside. In such circumstances, if you wish to initiate any legal proceedings after three years, you must provide a reason for the delay.
Quashing an ex-parte order falls under Section 482 of the Code of Criminal Procedure, which gives the High Court extraordinary power to provide justice. The Supreme Court has stated in several judgments that this power should be exercised only in exceptional cases. In your case, you have a remedy under The Domestic Violence Act and cannot invoke Section 482 of CRPC.
According to Mohit @ Sonu v. the State of U.P., (2013) 7 SCC 789, "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, and the limitation period for such appeal is thirty days from the date of order. The ex-parte order is also appealable 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.
Therefore, you should file an appeal under Section 29 of the Domestic Violence Act along with a prayer for condonation of delay. Since the limitation period for filing an appeal has expired, it is mandatory to file a prayer under Section 5 of the Limitation Act.
In State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94, the Supreme Court stated 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.
Thus, it is recommended that you file an appeal instead of a quashing petition under Section 482 of CrPC.
