The Punjab & Haryana High Court has ruled that an appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (DV Act) can be made against an interim order passed by a Magistrate under Section 23 of the DV Act, and that the appellate court has the power to issue interim orders under Section 29 of the DV Act. Justice Jagmohan Bansal, a single judge bench, noted that restricting the appellate court’s authority to issue interim orders under Section 29 of the DV Act would curtail its powers, which is contrary to established legal principles. Therefore, it is unacceptable that the Magistrate can issue interim orders but the appellate court cannot.
Facts of the case
The petitioner-wife filed a petition under Section 12 of the DV Act seeking maintenance and other reliefs, and also filed an application for interim maintenance under Section 23 of the Act. The Magistrate ordered the respondent-husband to pay Rs. 60,000/- as interim maintenance to the petitioner and their minor child. The respondent-husband appealed against the interim order under Section 29 of the DV Act before the Sessions Court, which partially stayed the order and directed the husband to pay Rs. 15,000/- per month as interim maintenance until the case is finally disposed of.
The petitioner raised objections to the Sessions Court’s order, asserting that an appeal under Section 29 of the DV Act can only be filed against a final order and not against an interim order passed under Section 23 of the DV Act. The petitioner also argued that the Appellate Court lacks the power to suspend the Magistrate’s interim order in the absence of express authority under Section 29 of the DV Act.
In contrast, the respondent-husband’s counsel argued that the term “order” used in Section 29 of the DV Act encompasses interim orders, and that the power to hear appeals under Section 29 also confers the authority to issue interim orders to the Appellate Court.
Observation of the court
The court addressed two issues: whether an appeal can be made under Section 29 of the DV Act against an interim order granted by a Magistrate under Section 23 of the DV Act, and whether the Appellate Court has the authority to issue interim orders while hearing an appeal under Section 29 of the DV Act.
In response to the first question, the court noted that the DV Act is a distinct statute, and upon analyzing Sections 28 and 29, it is evident that the CrPC’s provisions are not relevant to appeals against orders given by the Magistrate under the DV Act. The court also observed that the legislature has explicitly specified where appeals against interim orders are not allowed. The court ruled that appeals against interim orders given under Section 23 of the DV Act are permissible under Section 29 of the DV Act because there is no clear restriction on such appeals.
With regard to the second issue, the Court pointed out that courts and tribunals have inherent and incidental powers to resolve disputes, which are crucial for the effective resolution of the case.
The Court observed that if the appellate court is not permitted to issue interim orders under Section 29 of the DV Act against an interim order because of the absence of a specific provision for it, then the appellate court would be stripped of its power to issue interim orders even in the case of a final order because there is no such specific provision for it. The court emphasized that the existence of power and the exercise of power are distinct concepts in legal jurisprudence.
In conclusion, the Court held that the Appellate Court has the power to issue interim orders under Section 29 of the DV Act when hearing an appeal against an interim order passed by a Magistrate under Section 23 of the DV Act. However, the Court directed the Sessions Court to dispose of the appeal within a period of two months.
Source: https://www.livelaw.in/news-updates/punjab-haryana-high-court-maintainability-of-appeal-interim-orders-section-23-of-domestic-violence-act-appellate-court-223804
