[Domestic Violence Act] No Specific Bar On Filing Appeal Before Sessions Court To Challenge Interim Orders: J&K High Court Clarifies

Highlighting the absence of any such bar on the interim orders a bench of Justice Sanjay Dhar observed,

“if the Legislature intended to keep the interim orders out of the purview of Section 29 of the DV Act, the same could have been specifically provided. In the absence of any specific bar, an interim order, which is included in the definition of 'order' cannot be kept outside the purview of Section 29 of the Act”.

The decision came in response to a case centering around petitioner husband Abdul Rouf Shah and respondent wife Atiqa Hassan with their children. Respondent No.1, Atiqa Hassan, and her children filed a petition under Section 12 of the DV Act, alleging inhuman and cruel behavior by the petitioner and seeking several reliefs, including monetary compensation.

The Judicial Magistrate 1st Class, Srinagar, initially directed the petitioner to pay a total of Rs.21,000 per month as interim monetary compensation, later reducing it to Rs.15,000 per month. Dissatisfied, the respondents appealed under Section 29 of the DV Act to the 1st Additional Sessions Judge, who increased the compensation to Rs.31,000 per month: Rs.13,000 for Atiqa Hassan, Rs.10,000 for their older child, and Rs.8,000 for the younger child.

Aggrieved of the enhancement order Rouf Shah argued that the appeal against the interim order was not maintainable. He claimed that Atiqa willfully refused to live with him despite his offer of reconciliation and that she intended to grab his property under the guise of the DV Act. Shah further stated that Atiqa Hassan was an independent working lady, running a boutique, and thus did not require monetary compensation.

Meticulously analysing the provisions of the DV Act, particularly Sections 12, 23, and 29 the court noted that Section 29 permits appeals from any order made by a Magistrate, without specifying whether it must be a final or interim order.

Stating that the absence of a specific bar in Section 29 implies that interim orders are also subject to appeal Justice Dhar emphasized that if the legislature had intended to restrict appeals against interim orders, it would have explicitly stated so, as seen in the amendment to Section 28 of the Hindu Marriage Act in 1976.

In order to fortify the stand the Court relied on judgments from the Uttarakhand High Court and the Delhi High Court in Manish Tandon vs. Richa Tandon and others, 2008 and ham Pal Arya vs. Babita Arya @Kila Devi and others, 2009 respectively which held that appeals are maintainable against interim orders passed under Section 23 of the DV Act.

On the merits of the case, the Court observed that the Trial Magistrate's order reducing the compensation lacked reasoning. The Additional Sessions Judge, on the other hand, had considered relevant factors like the children's education and Shah's salary to enhance the compensation.

In light of these observations the court concluded that the findings of the Additional Sessions Judge were based on cogent reasons and did not warrant interference under Article 227.

Case Title: ABDUL ROUF SHAH Vs ATIQA HASSAN & OTHERS

Citation: 2024 LiveLaw (JKL) 169

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