IMPORTANT POINT
Though appeal against interim order passed
u/s 23 of Domestic Violence Act is maintainable but appellate Court will usually not interfere with exercise of discretion by Magistrate unless discretion was found to have been exercised arbitrarily, capriciously or perversely.

A.P. Bhangale, J.— Rule. Rule made returnable forthwith. Heard Mr. A.A. Sonak, Adv. for the applicant and Mr. Masood Shareef, Adv. for respondent Nos. 1 and 2.

2. By this application under Section 482 of the Code of Criminal Procedure, the applicant has prayed for quashing and setting aside the order dated 3rd September, 2010 passed in Criminal Appeal No. 177 of 2010 by the learned Additional Sessions Judge-7, Nagpur with consequential prayer to restore the order dt.18.6.2010 passed below Ex. 16 in Criminal Application No. 541 of2010 by 20th Joint Civil Judge (Jr. Division.) and J.M.F.C. Nagpur. It appears that the present applicant had filed proceedings against her husband and mother-in-law under Section 12 r/w. Sections 17, 18 and 19 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act of 2005’). Alongwith the main application, the applicant had also moved another application for grant of interim relief with averments that the applicant alongwith her husband (respondent No.1) got married on 5th December, 2008 at Nagpur. The applicant had a son by name Sujal who was born on 23.10.2004 at Nagpur and who is residing with her. She had resided in the share household premises at Plot No. 170, Chakradhar Nagar, Old Subhedar Layout, Nagpur alonewith her husband which, according to the applicant, is a two storeyed house (ground plus two) consisting of eleven rooms; four rooms on the ground floor, six rooms on the first floor and one room on the second floor. It is contended that the respondents had locked the entire building on 5.4.2010 and committed the act of domestic violence and deprived the applicant of shared household.

3. According to the applicant, respondent No.1 had illtreated her on the pretext of demand for money from her to purchase a four wheeler. Earlier, the applicant resided with her husband at Mhalgi Nagar, but after death of her father-in-law she resided at Chakradhar Nagar. There were matrimonial disputes between the applicant and her husband. Ultimately, the applicant had also lodged report to police regarding illtreatment given to her by her husband. The applicant had informed police station, Sakkardhara that she had been deprived of residence at the house of her husband and in-laws as they had locked the building where the applicant resided alongwith, her husband. Under these circumstances, the applicant had moved the application under Section 12 r/w Sections 17, 18 and 19 of the Act of 2005 in the Court of J.M.F.C. Corporation Court No.1 at Nagpur with a prayer to restrain her husband and mother-in-law from dispossessing her or disturbing her possession from the shared household i.e. second floor of the building situated on plot No. 170 at Chakradhar Nagar, Old Subhedar Layout, Nagpur.

4. During pendency of the aforesaid application, the applicant moved for grant of interim relief on 13.4.2010 with a prayer to restore possession of the shared household to the applicant considering her future as well as future of her son and to avoid their starvation. The said application was contested by respondent No.1 (husband of the applicant) on the ground that the claim of the applicant is false and she had suppressed the fact of pendency of proceedings for divorce against her in the Family Court, Nagpur. According to respondent No. 1 husband, the applicant was served at the address plot No. 33, Flat No. 101 Sahakar Apartment, Mhalgi Nagar, Ring road, near Besa Power House, Nagpur. It is also contended that responaent No. 1 is paying rent for the said premises occupied by the applicant. The interim relief was opposed tooth and nail by respondent No.1. The learned J.M.F.C. Nagpur who heard the application (Ex. 16) for grant of interim relief by an order dated 18.6.2010 directed the respondents herein to restore possession of the shared household i.e. on second floor plot No. 170, Chakradhar Nagar, Old Subhedar layout, Nagpur till final disposal of the main application