Uttarakhand High Court
C482/1516/2023 on 28 July, 2023
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
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C482 No.1516 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. Devesh Upreti, learned counsel for the applicants.
Mr. A.K. Sah, learned Deputy Advocate General for the State.
The applicants in this C482 Application have put a challenge to the order dated 07.07.2023 as it was passed in Misc. Application No.3 of 2023, "Smt. Yamini Adhikari and Others Vs. Sanjay Singh Adhikari and Others", whereby the Court of Judicial Magistrate, Champawat, while exercising its powers under Section 23 of the Protection of Women from the Domestic Violence Act, 2005 (for short "D.V. Act"), has taken consideration of the Misc. Application (Paper No.3Ka) for the purpose of determination of an interim maintenance to be granted to the applicant under Section 12 of the Domestic Violence Act.
The order thus passed, under Section 23 of the Act, determining the interim maintenance, would be an order which would be amenable to the Appellate Jurisdiction under Section 29 of the D.V. Act.
Hence, this C482 Application would not lie and this aspect has been considered by the judgment of the Punjab and Haryana High Court in CRR 2485/2022, "Bhanu Kiran Vs. Rahul Khosla and Others" where the Co-ordinate Bench of the Punjab and Haryana High Court has taken a view that an order passed under Section 23 of the D.V. Act, for determining of the interim maintenance would be an appellable order under Section 29 D.V. Act. All the relevant answers to the said aspect have been given by the learned Co-ordinate Bench in paragraph-8 of the said judgment while answering the questions thus formulated in paragraph no.6.
The question as formulated in paragraph no.6 is extracted hereunder:-
"6. From the perusal of the pleadings and arguments of both sides, following questions arise for the consideration of this court:
i) Whether appeal in terms of Section of the DV Act is maintainable against interim order passed by Magistrate under Section 23 of the DV Act?"
And the answer given to it in paragraph no.8 itself would be a reply that an appeal under Section 29 of the Act would lie, and that C482 Application is not the remedy available to the present applicants in paragraph no.8, which is extracted hereunder:-
"8. From the reading of above quoted sections, it is quite evident that an aggrieved person may file petition to Magistrate, seeking reliefs as are permissible under different provisions of the D.V. Act. The Magistrate has power to pass final order granting reliefs permissible under different provisions of DV Act, however, in terms of Section 23, Magistrate has power to pass an order of interim maintenance. Expression 'order' has not been defined under DV Act.
Section 28 provides that all proceedings under Section 12,18,19,20,21,22,23, and 31 shall be governed by provisions of the Code of Criminal Procedure. As per Section 28, provisions of Cr.P.C. shall be applicable to proceedings under 12,18,19,20,21,22,23, and 31, however, it does not provide for application of all the provisions of Cr.P.C. in toto to DV Act. It is further apt to notice that provisions of Cr.P.C. are not applicable to appeal provided under Section 29 of the DV Act. Ignoring appeal provisions adumbrated under Cr.P.C., appeal against an order of Magistrate is provided under Section 29 of the Act and it neither inhibits nor specifically provides for appeal against interim order.
Question No.1. Whether appeal in terms of Section 29 of the DV Act is maintainable against interim order passed by Magistrate under Section 23 of the DV Act?"
Owing to the above, the C482 Application is dismissed with the remedy left open for the applicants to approach the Appellate Court under Section 29 of the D.V. Act for the redressal of their grievances against the order passed under Section 23 of the D.V. Act.
(Sharad Kumar Sharma, J.) 28.07.2023 Sukhbant