The court ruled the interim order under the Domestic Violence Act must consider the financial resource of the parties while allowing discretion to grant necessary relief.

JUDGEMENT

Rule. Learned advocate Ms.Kruti Shah waives service of notice of Rule on behalf of respondent No.1-wife and learned Additional Public Prosecutor Mr.L.R. Pujari waives service of notice of Rule on behalf of respondent No.2-State. 1.1 In the facts and circumstances and with the consent of learned advocates for the respective parties, present revision application is taken up for final disposal today.

2. The present revision application arises out of the order dated 31st October, 2012 of learned Sessions Judge, Surat in Criminal Appeal No.93 of 2011, whereby the learned Sessions Judge has dismissed the appeal of the present applicant, and has thereby confirmed order dated 12th September, 2011 passed by the learned Judicial Magistrate First Class (2nd Court), Surat below Exhibit 9 in Miscellaneous Application No.11 of 2011. The said order dated 12th September, 2011 was an interim order which was passed pursuant to an application under Section 23 of the Prevention of Woman from Domestic Violence Act, 2005 (hereinafter referred to as ‘the Act’) filed by respondent No.1-wife. By the said order, the applicant-husband is directed to make arrangement for the respondent-wife, for her residence on the ground floor of the property called Pooja Row-house or in the alternative to pay Rs.10,000/- (Rupees Ten Thousand Only) per month in lieu of the residential accommodation. The said property Pooja Raw House belong to husband and his family who have been staying thereat.

3. Necessary facts may be stated at the outset.

Respondent-wife filed a complaint bearing Complaint No.11 of 2010 before the competent Authority under the Domestic Violence Act praying for various relief under Sections 17, 18, 19, 20 and 21 of the Act. It was the case of the wife that after her marriage with the present applicant solemnized on 27th February, 1997, she was driven out by her in-laws from the house. At that time, son named Rahil was born out of the wedlock, who is presently aged 13 years. With reference to several allegations of domestic violence, various prayers were made. A declaration was sought for that in the movable and immovable properties of his husband, wife had her share as lawful wife and that she has also right to reside there and right not to be evicted. Secondly, it was prayed that husband should arrange for separate residence to her and his son. Under Section 20, further compensation of Rs.5,00,000/- (Rupees Five Lakhs Only) was prayed. It was also prayed that husband should pay maintenance at the rate of Rs.15,000/- to her and his son. Direction was also sought for return of articles/ornaments/stridhan in the alleged illegal custody of the husband. In the said main proceedings, application Exhibit 9 was filed under Section 23 for interim order.

3.1 The learned Magistrate out of the various relief claimed, which are noted and mentioned above, granted relief in respect of residential accommodation or in the alternative, directed to pay Rs.10,000/- as stated above.

4. Learned advocate Mr.Hardik Dave for the applicant raised several contentions. It was submitted that by virtue of the order of the learned Magistrate, what is actually directed is restoration of possession of the property, which was not permissible under Section 19 of the Act. Referring to Section 19 of the Act, it was submitted that Section 19 only permits the orders in restraint and restoration of possession in not contemplated under any of the clauses of that Section. It was next submitted that the residence order can be passed only against husband and the learned Magistrate has exce