Kerala HC: Appellate courts U/S 29 of Domestic Violence Act have the power to pass interim protective orders

 It is true that, as per Section 28 of the DV Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Criminal Procedure Code, 1973 (for short, ‘the Cr. P.C.’ hereinafter). Even though Section 29 of the DV Act not specifically mentioned in Section 28, appeal provided under Section 29 of the DV Act is against orders passed under Sections 12, 18, 19, 20, 21, 22 and 23 of the DV Act. If so, the provisions of the Cr. P.C. is not excluded in an appeal filed under Section 29 of the DV Act, even though the provisions of the DV Act not given specific powers to the appellate court to grant interim orders. When a statute gives power to an appellate court to decide a matter in issue after reappreciating the evidence to set aside, vary or confirm the order, the appellate court should have the power to regulate the proceedings of the appeal till its disposal. If so, the appellate court if held to be lacking power to pass interim orders, the plight of the party who succeeds in the appeal will be in trouble. If so, it is difficult to lay down a ratio that the appellate court dealing with the appeal under Section 29 of the Act, has no power to pass an interim order, since the said power is not conferred by the DV Act. On the contrary, the appellate court can pass interim orders to regulate and to proceed with the appeal to do complete justice in between the parties, during the pendency of appeal, by resroting to the provisions of the Cr. P.C. or by resorting to its incidental or ancillary power embodied in the appellate jurisdiction following the principle embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest’ (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.). Therefore, negativing the contention raised by the learned counsel for the petitioners, it is held that, an appellate court dealing with an appeal under Section 29 of the DV Act, is empowered to grant interim order/interim orders during pendency of an appeal to regulate the proceedings till disposal of the appeal on merits and to do justice between the parties. {Para 10}

 In the High Court of Kerala at Ernakulam

(Before A. Badharudeen, J.)

Farsana P.S. and Another  Vs Razveen Raffique 

CRL.MC No. 6782 of 2024

Decided on October 14, 2024

Citation: 2024 SCC OnLine Ker 6055

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Whether petition U/S 482 of CRPC is maintainable under Domestic violence Act?

In Manish Tandon (supra), challenge before the High Court was to an ex-parte order granting interim maintenance to the wife under Section 23(2) of the Act. Bypassing the remedy of Section 29 of the Act, a Petition was filed under Section 482 Cr.P.C. Court held as under:-

"I totally and absolutely disagree with the aforesaid contention of Mr. Sharma. The word 'order' used in Section 29 connotes all types of orders passed by the Magistrates under the 2005 Act including orders granting interim maintenance under Sub Section (1) of Section 23 as well as ex-parte interim maintenance granted under Sub-Section (2) of Section 23. Since the word 'order' has not been qualified by any suffix or prefix in Section 29, the clear legislative intent is that each and every type of order, irrespective of its description and nature, passed by a Magistrate has been made appealable to the court of Session Judge under Section 29. The remedy of filing an appeal under Section 29, therefore, being an attentive and equally efficacious remedy, this petition under Section 482 Cr.P.C. was not at all maintainable. It was not open to the Petitioner to have bypassed the appeal forum by straightway approaching this Court under Section 482 Cr.P.C.

I have, therefore, no hesitation in holding that on the ground of availability of an alternative and efficacious remedy of appeal under Section 29 (supra), this petition is not maintainable in this Court under Section 482 Cr.P.C."

33. It was vehemently argued by Ms. Rajkotia that since the matter relates to custody of minor girls, remedy of appeal is not efficacious. I am afraid that this Court cannot accept this argument for more than one reason. Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all 'orders' and has not made any exception to orders relating to custody. Secondly, it is not shown why the Petitioner cannot resort to the remedy of an Appeal and why the Appellate Court is incapable of or incompetent to exercise its jurisdiction to deal with an impugned order of temporary custody, both in law and facts. As held in Manish Tandon (supra), the word 'Order' used in Section 29 of the Act connotes all types of Orders passed by the Learned Metropolitan Magistrate irrespective of whether they relate to maintenance, custody, etc.

34. For all the aforesaid reasons, the present petition cannot be entertained. It is open to the Petitioner to avail the remedy of Appeal available to her in law, if so advised.

IN THE HIGH COURT OF DELHI

Crl. M.C. 1554/2020 and Crl. M.A. 8821/2020

Decided On: 20.07.2020

Sirisha Dinavahi Bansal  Vs.  Rajiv Bansal

Hon'ble Judges/Coram:

Jyoti Singh, J.

Citation: MANU/DE/1388/2020

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Who is competent to file appeal under domestic violence Act?

Even in a case where the application under Section 12 is not filed by the aggrieved person but is filed by a protection officer or any other person on behalf of the aggrieved person, such protection officer or any other person will be an aggrieved person if an order sought by such protection officer or any other person has not been granted by the Magistrate. Hence, the expression 'aggrieved person' in Section 29 of the Act is wide enough not only to take in the parties to the application but also a protection officer or a person who has moved the Magistrate on behalf of the aggrieved person. Anyhow, such a finer distinction as is attempted by the revision petitioner does not arise in the present revision since the revision petitioner was the respondent to the application filed by his daughter and the revision petitioner is competent to file an appeal against the impugned order in view of Section 29 of the Act. I am not persuaded to accept the distinction drawn by the learned Counsel with regard to Sections 24 and 29 of the Act since both the said provisions are in consonance with the statutory scheme under the Act. The impugned order is clearly appealable under Section 29 of the Act and if so, this revision is incompetent and the remedy of the revision petitioner is to challenge the impugned order by filing an appeal under Section 29 of the Act.

Equivalent Citation : I(2008 )DMC 365

IN THE HIGH COURT OF KERALA

Crl. R.P. No. 1216 of 2007

Decided On: 04.09.2007

 Chithrangathan Vs. Seema

Hon'ble Judges/Coram:
V. Ramkumar, J.

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