Application to Set Aside Ex-Parte Protection Order

The application to set aside an ex-parte Domestic Violence Protection Order is governed by the Protection of Women from Domestic Violence Act, 2005 (PWDVA). Specifically, Section 29 of the Act provides for an appeal against a protection order, but the power to set aside an ex-parte order is inherent in the Magistrate's jurisdiction. The procedure is also guided by the Code of Criminal Procedure, 1973, particularly Section 126(2) which allows a party to show cause against an ex-parte order. No reported decision was found on this point.

The application is filed before the Judicial Magistrate of the First Class or the Metropolitan Magistrate having jurisdiction over the area where the aggrieved person resides or where the domestic violence occurred. The relevant government department is the Ministry of Women and Child Development, which oversees the implementation of the PWDVA. For more information, visit the official website: wcd.nic.in.

The process to set aside an ex-parte Domestic Violence Protection Order involves the following steps:

1. Filing the Application: The respondent must file an application before the same Magistrate who passed the ex-parte order, explaining why the order should be set aside (e.g., lack of notice, inability to appear).
2. Notice to the Aggrieved Person: The court will issue notice to the aggrieved person (the complainant) and fix a date for hearing.
3. Hearing: Both parties are heard. The respondent must show sufficient cause for setting aside the order.
4. Order: The Magistrate may confirm, modify, or set aside the ex-parte order based on the merits.

A Domestic Violence Lawyer can draft the application and represent you in court.

There is no prescribed statutory form for this application. However, the following documents are typically required:

• Application to Set Aside Ex-Parte Order (drafted on plain paper or affidavit)
• Copy of the Ex-Parte Protection Order
• Proof of Service (if any) showing that the order was served
• Affidavit explaining the reasons for non-appearance
• Vakalatnama (if represented by a lawyer)

A Domestic Violence Lawyer can help prepare these documents.

Any respondent against whom an ex-parte Domestic Violence Protection Order has been passed is eligible to file this application. The key requirement is that the order was passed without giving the respondent an opportunity to be heard. The respondent must show that they had a valid reason for not appearing (e.g., lack of notice, illness, or other unavoidable circumstances).

The law does not prescribe a fixed timeline for setting aside an ex-parte order. The application should be filed as soon as the respondent becomes aware of the order. The court will dispose of the application after hearing both parties. No reported decision was found on this point.

The court fee for filing an application to set aside an ex-parte order varies by state. Below is an indicative table of government-prescribed court fees (subject to change):

Note: These fees are for the application only. Legal fees for a Domestic Violence Lawyer are separate and not included here.