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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Jagmohan Bansal, J.
Bhanu Kiran – Appellant
Versus
Rahul Khosla & Ors. – Respondents
CRR-2485 of 2022(O&M)
Decided On : 28-02-2023
DV Act - Appeal against Interim Order - Sections 12, 23, 28 & 29 - The court considered the maintainability of an appeal against an interim order passed under Section 23 of the DV Act and the power of the appellate court to pass interim orders. It held that an appeal against an interim order is maintainable and that the appellate court has the power to pass interim orders. The court directed the appellate court to finally adjudicate the appeal within 2 months from the date of receipt of the order.
Fact of the Case:
The petitioner sought to set aside an order partially staying the operation of an interim maintenance order passed by the Magistrate under the DV Act. The petitioner argued that the appeal under Section 29 of the DV Act can only be filed against a final order and not an interim order. The respondent contended that the expression 'order' in Section 29 includes interim orders and that the appellate court has the power to grant interim relief.
Finding of the Court:
The court found that an appeal against an interim order passed under Section 23 of the DV Act is maintainable and that the appellate court has the power to pass interim orders. It directed the appellate court to finally adjudicate the appeal within 2 months from the date of receipt of the order.
Issues: The issues involved were the maintainability of an appeal against an interim order under Section 23 of the DV Act and the power of the appellate court to pass interim orders.
Ratio Decidendi: The court held that an appeal against an interim order is maintainable and that the appellate court has the power to pass interim orders, based on the interpretation of the relevant provisions of the DV Act and judicial precedents.
Final Decision: The court directed the appellate court to finally adjudicate the appeal within 2 months from the date of receipt of the order and requested the appellate court to ensure that the outstanding dues are cleared before taking up the appeal.
JUDGMENT
Jagmohan Bansal, J. (Oral) -
CRM- 3175 of 2023
Allowed as prayed for.
Reply filed on behalf of respondent No. 1 is taken on record. Registry is directed to tag the same at an appropriate place.
CRR- 2485 of 2022(O&M)
1. The petitioner through the instant petition is seeking setting aside of order dated 18.10.2022 whereby Additional Sessions Judge, Ludhiana has partially stayed operation of order dated 22.09.2022 passed by Judicial Magistrate Ist Class, Ludhiana.
2. The brief facts emerging from the record and arguments of both sides are that marriage of the petitioner was solemnized with respondent No. 1 in 2009. Due to reasons best known to the parties, couple could not enjoy fruits of marriage tree. The petitioner preferred a petition under Section 12 read with other provisions of Protection of Women from Domestic Violence Act, 2005 (for short 'D.V. Act') before Magistrate seeking maintenance and other reliefs. The petitioner further preferred an application under Section 23 of D.V. Act seeking interim maintenance. The application seeking interim maintenance came up for consideration before Magistrate who vide order dated 22.09.2022 directed the respondent to pay a sum of Rs. 60,000/- per month towards maintenance. The said amount was awarded as interim maintenance to petitioner and minor child.
The respondent preferred an appeal before Sessions Court seeking setting aside of interim order passed by the Magistrate. The appeal was filed in terms of Section 29 of D.V. Act. The appeal came up for consideration before Additional Sessions Judge, Ludhiana who vide impugned order dated 18.10.2022 issued notice of appeal to the present petitioner as well as partially stayed operation of the impugned order. The Magistrate had awarded interim maintenance of Rs. 60,000/- and Appellate Court vide impugned order has stayed operation of the order granting interim maintenance beyond Rs. 15,000/- per month till final disposal of the case.
The relevant extracts of the impugned order dated 18.10.2022 read as:
'...I am of the view that the impugned order passed by the Ld. Lower court qua the maintenance is required to be stayed till the decision of this appeal but subject to the condition, and as per undertaking given by the Ld. Counsel for the appellant that the husband will pay Rs.15,000/- per month from the date of order and he will also clear the arrears at the rate of Rs.15,000/- per month till the last month i.e. September, 2022 and the remaining amount ordered by the Ld. Lower court is ordered to be stayed, till the next date of hearing."
The petitioner has preferred present petition before this Court seeking setting aside of impugned order dated 18.10.2022.
3. Learned counsel for the petitioner inter alia contends that respondent has preferred appeal under Section 29 of D.V. Act and appeal under Section 29 of D.V. Act can be filed against final order and not interim order whereas order under challenge before Appellate Court was interim order passed in terms of Section 23 of D.V. Act. She further contends that Magistrate under Section 23 D.V. Act had granted interim maintenance and Appellate Court in the absence of specific power under section 29 of DV Act has no power to stay operation of impugned order. The Appellate Court was supposed to decide appeal one or another way, however, Appellate Court had no power to stay operation of the impugned order.
Learned counsel in support of her contention relied upon judgment of the Hon'ble Supreme Court Shalu Ojha vs. Prashant Ojha (2015) 2 SCC 99 and judgment of a Co-ordinate Bench of this Court in Balwinder Kaur and another vs. Mahan Singh and others (CRM-M-31518 of 2008) decided on 03.12.2008.
4. Per contra, learned counsel for the respondent inter alia contends that expression 'order' used in Section 29 D.V. Act includes interim order. Any reading of expression 'order' not including interim order would amount to re-writing of legislation. With respect to power of the Appellate Court to grant int
An appeal against an interim order under the DV Act is maintainable, and the appellate court has the power to pass interim orders.
The appellate court has implied powers to grant interim orders under the DV Act to ensure justice during the appeal process.
Dual maintenance claims are permissible under different statutes, but the applicant must disclose previous orders and justify the need based on changing circumstances for additional relief.
Entitlement to maintenance under the Domestic Violence Act is not contingent on property rental arrangements; such conditions violate the statutory framework.
A Magistrate can grant interim residence orders under the DV Act based on prima facie evidence of domestic violence, without concluding the trial.
The court established that reliefs under the DV Act are civil, and appeals against such orders cannot be treated as criminal proceedings.
A Magistrate can grant interim residence orders under Section 23 of the DV Act without concluding a trial, ensuring immediate relief for aggrieved persons.
: Disclosure of previous maintenance proceedings is mandatory in subsequent proceedings for maintenance under different enactments to avoid conflicting orders.
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