DV Act | No Need For Trial To Grant Interim Residence Order, It Is An Urgent Relief To Protect Woman From Taking Shelter On Road: J&K High Court
The Jammu and Kashmir and Ladakh High Court has clarified that a Magistrate, while considering an interim residence order under the Domestic Violence Act (DV Act), is not required to conduct a full trial but only needs to be satisfied with the application filed by the aggrieved person.
Setting aside an order passed by the Principal Sessions Judge, Kupwara, who had wrongly interpreted the scope of the DV Act, Justice Sanjay Dhar observed,
“Section 23 of the DV Act gives power to a Magistrate to pass an interim order of the nature as provided in the said provision. Residence order is an urgent relief to protect a woman from her taking shelter on road. Therefore, passing of an interim order of the nature as defined under Section 19 of the Act is well within the jurisdiction of a Magistrate”.
The case originated when the petitioner, legally wedded wife of the respondent, filed a complaint under Section 12 of the DV Act before the Judicial Magistrate 1st Class (Munsiff), Kupwara. She alleged that her husband subjected her to verbal, emotional, and physical violence and denied her basic necessities such as food, medicine, and shelter. Along with her petition, she sought monetary compensation and a residence order under Section 23 of the DV Act.
Adjudicating the matter the trial Magistrate passed an ex parte interim order directing the respondent to provide accommodation and protection to the petitioner. However, the respondent challenged this order before the Principal Sessions Judge, Kupwara dismissed the appeal with the direction that the respondent could seek modification of the order before the trial Magistrate.
Subsequently, after hearing both parties, the trial Magistrate while declining interim monetary compensation due to the petitioner's employment as a government teacher, directed the respondent to provide a safe and secure residence to the petitioner in the shared household.
Dissatisfied with this order, the respondent once again appealed to the Principal Sessions Judge, Kupwara, who set aside the trial Magistrate's order on the presumption that a residence order could only be granted after the trial of the main case.
The petitioner challenged the Sessions Judge's order before the High Court, arguing that the Appellate Court had misinterpreted Sections 19 and 23 of the DV Act, leading to a grave miscarriage of justice. The petitioner asserted that the Magistrate has the authority to grant interim relief, including a residence order, without the need for a full trial.
Justice Dhar, after hearing the petitioner's counsel and examining the relevant legal provisions, observed that Section 23 of the DV Act empowers a Magistrate to grant interim orders of various kinds, including residence orders under Section 19, without the necessity of holding a trial.
“.. when we read the provisions of Section 19 in conjunction with Section 23 of the DV Act, it becomes clear that while final residence order can be passed by a Magistrate at the time of final disposal of the petition under Section 12 of the DV Act, he is also vested with jurisdiction to grant interim residential order in favour of an aggrieved person if the Magistrate is satisfied that an application of the aggrieved person, prima facie, discloses that the respondent is committing or has committed an act of domestic violence”, the bench recorded.
The Court further highlighted that the DV Act is designed to provide immediate relief to victims of domestic violence, and the Magistrate's role at the interim stage is to protect the aggrieved person by drawing satisfaction from the application itself.
The Court explained that while Section 19 permits final residence orders upon the conclusion of a trial, it does not preclude the Magistrate from issuing an interim residence order under Section 23 since such an order is crucial to prevent the aggrieved person from being left without shelter.
Criticising the Sessions Judge's interpretation as contrary to the objectives of the DV Act, the High Court found the impugned order to be legally unsustainable and set it aside, thereby restoring the trial Magistrate's order that granted the petitioner interim residential relief.
Case Title: Mst Shameema Begum Vs Javid Iqbal Khan
Citation: 2024 LiveLaw (JKL) 248