Appeal U/S 29 Domestic Violence Act Maintainable Against Magistrate's Interim Order; Appellate Court May Grant Interim Relief: Punjab & Haryana HC

The Punjab & Haryana High Court held that an appeal under Section 29 (Appeal) of the Protection of Women from Domestic Violence Act, 2005 (the DV Act) is maintainable against interim order passed by Magistrate under Section 23 (Power to grant interim and ex parte orders) of the DV Act and the appellate court has power to pass interim order under section 29 of the DV Act.

The single judge bench of Justice Jagmohan Bansal observed:

“The appellate court may or may not exercise power to pass interim order, however, if it is held that appellate court in terms of Section 29 has no power to pass interim order, it would amount to curtailing the powers of appellate court. It seems to be contrary to settled canons of law that appellate authority or court unless specifically barred can exercise all those powers which are vested in subordinate authority. It cannot be approved that Magistrate has power to pass interim order, however, appellate court has no power to pass interim order.”

Facts

The petitioner-wife filed a petition under Section 12 (Application to Magistrate) of the DV Act before Magistrate seeking maintenance and other reliefs. The petitioner further filed an application under section 23 of DV Act for interim maintenance.

The magistrate vide order dated September 22, 2022 directed the respondent-husband to pay a sum of Rs. 60,000/- as interim maintenance to the petitioner and minor child.

The respondent-husband filed an appeal under Section 29 of the DV Act before the Sessions Court seeking setting aside of the interim order passed by the Magistrate.

The Sessions Court vide impugned order dated October 18, 2022 partially stayed operation of the order granting interim maintenance by the magistrate and directed the respondent-husband to Rs. 15,000/- per month as interim maintenance till final disposal of the case.

The petitioner challenged the impugned order of the Sessions Court on the ground that appeal under Section 29 of the DV Act can be filed against final order and not against interim order passed in terms of Section 23 of the DV Act.

It was further contended by the petitioner that Appellate Court in the absence of specific power under Section 29 of DV Act has no power to stay operation of impugned order passed by the magistrate.

The counsel for respondent-husband argued that the expression 'order' used in Section 29 DV Act includes interim order and power to hear appeals includes power to pass interim orders by the Appellate Court.

Court’s Observation

There were two questions for consideration before the court:

1. Whether appeal in terms of Section 29 of the DV Act is maintainable against interim order passed by Magistrate under Section 23 of the DV Act?
2. Whether appellate court while hearing appeal under Section 29 of DV Act can pass interim order?

While answering the first question, the court observed that DV Act is a special statute and from the reading of Sections 28 & 29, it is quite evident that provisions of CrPC are not applicable qua appeal against orders passed by Magistrate under the DV Act.

The court further observed that legislature wheresoever did not intent to provide for appeal against interim orders, it has specifically provided therein.

The court held:

“In case of the DV Act, there is provision for passing interim order as well as appeal, however, there is no specific inhibition for filing appeal against interim order.”

Accordingly, the Court held that an appeal against interim order passed under Section 23 of DV Act is maintainable before Sessions Court under Section 29 of the DV Act.

While answering the second question, the court observed that courts/tribunals are always possessed with incidental and ancillary powers which are necessary to adjudicate the dispute.

The court held:

“If it is held that under Section 29 appellate court is not bestowed with power to pass interim order against interim order because there is no specific power under Section 29, the appellate court would be denuded from power to pass interim order even against final order because there is no such specific power qua final order. Existence of power and use of power are two different dimensions of legal jurisprudence.”

Accordingly, the court held that Appellate Court while exercising power under Section 29 of DV Act has power to pass interim order.

However, the court directed the Sessions Court to decide the appeal within 2 months.

Case Title: Bhanu Kiran v. Rahul Khosla and Ors.

Citation: 2023 LiveLaw (PH) 41

Coram: Justice Jagmohan Bansal

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