Appeals under the Protection of Women from Domestic Violence Act, 2005

Appellate Adjudication under India's Protection of Women from Domestic Violence Act, 2005: A Scholarly Analysis

Introduction

The Protection of Women from Domestic Violence Act, 2005 (hereinafter "DV Act") was enacted in India as a landmark civil law aimed at providing comprehensive protection to women who are victims of domestic violence in any form.[19] Recognizing the urgent need for effective remedies, the DV Act establishes a framework for various reliefs, including protection orders, residence orders, monetary reliefs, custody orders, and compensation orders.[18] An integral part of ensuring the efficacy and fairness of this legal framework is the provision for appeals against orders passed by Magistrates. This article undertakes a scholarly analysis of the appellate mechanism under the DV Act, examining its statutory basis, the nature and scope of appellate review, key judicial pronouncements that have shaped its interpretation, and the procedural intricacies involved. It aims to provide a comprehensive understanding of how appeals function to uphold the objectives of the DV Act, ensuring that justice is not only done but is also seen to be done.

The Statutory Mandate for Appeals: Section 29 of the DV Act

The primary provision governing appeals under the DV Act is Section 29, which unequivocally establishes the right to appeal. It states: "There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later."

Key facets of Section 29 include:

  • Right to Appeal: An appeal is a statutory right available to either the aggrieved person or the respondent.
  • Appellate Forum: The appeal lies to the Court of Session having jurisdiction.
  • Time Limit: The appeal must be filed within thirty days from the date of service of the Magistrate's order on the appellant. The phrase "whichever is later" caters to situations where parties might be served on different dates.
  • Appealable Orders: The section broadly allows an appeal against "an order made by the Magistrate," implying that most substantive orders passed under the DV Act are appealable. This includes interim orders as well as final orders.[18]

Section 28(1) of the DV Act stipulates that, save as otherwise provided in the 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 Code of Criminal Procedure, 1973 (CrPC). However, Section 28(2) grants the court the power to lay down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23. This blend of civil reliefs and criminal procedural machinery has been noted by courts, characterizing DV Act proceedings as quasi-civil or quasi-criminal in nature.[16]

Nature and Scope of Appellate Adjudication

The appellate jurisdiction of the Court of Session under Section 29 of the DV Act involves a review of the Magistrate's order. While the DV Act itself does not explicitly detail the scope of this review, general principles of appellate jurisdiction apply. The appellate court typically examines the order for errors of law, fact, or procedure that may have vitiated the Magistrate's decision.

The Gujarat High Court in Suo Motu v. Ushaben Kishorbhai Mistry[16] observed that the DV Act is a statute designed to provide an umbrella of protection with a blend of provisions where reliefs are civil in nature but the machinery for securing them is envisaged under the CrPC. This hybrid nature influences appellate review.

A crucial aspect is the appealability of interim orders. The Bombay High Court in Abhijit Bhikaseth Auti v. State Of Maharashtra & Anr.[18] held that an appeal under Section 29 would lie even against an interim order passed under Section 23 of the DV Act, reasoning that such orders are orders of moment affecting the rights of parties and cannot be treated as purely interlocutory. This view has been widely accepted, ensuring that parties are not left without remedy against potentially erroneous interim directions.

Similarly, the Kerala High Court in Karthikeyan v. Sheeja[23] held that an order dismissing an application to set aside an ex-parte order passed under the DV Act is an appealable order under Section 29, as it affects the rights of the petitioner.

The appellate court has the power to confirm, modify, or set aside the order of the Magistrate. It may also remand the matter for fresh consideration if deemed necessary. The focus remains on ensuring that the orders passed are just, equitable, and in furtherance of the objectives of the DV Act, which is primarily to protect women from domestic violence.[17], [19]

Key Judicial Interpretations Shaping DV Appeals

The appellate process under the DV Act has been significantly shaped by judicial pronouncements. Courts have clarified various substantive and procedural aspects, ensuring that the right to appeal serves as an effective safeguard.

A. Maintainability of Proceedings and the Right to Appeal

Appeals often arise from challenges to the very maintainability of the application before the Magistrate. Key rulings include:

  • Limitation for Filing Application: The Supreme Court in Kamatchi v. Lakshmi Narayanan[9] clarified that the limitation period under Section 468 CrPC, if applicable to DV Act proceedings, should be reckoned from the date of filing the complaint or initiation of proceedings, not from the date of taking cognizance. This interpretation is crucial for determining the validity of initial applications and, consequently, appeals arising therefrom.
  • Status of "Aggrieved Person" and Continuing Offences: In Krishna Bhattacharjee v. Sarathi Choudhury And Another,[3] the Supreme Court held that a woman remains an "aggrieved person" under Section 2(a) even after a decree of judicial separation, as the domestic relationship is not severed. Deprivation of stridhan was held to be economic abuse and a continuing offence, impacting limitation. Such determinations are vital when appeals challenge the locus standi of the applicant.
  • Maintainability Post-Divorce: The Supreme Court in Juveria Abdul Majid Patni v. Atif Iqbal Mansoori And Another[10], [14] affirmed that claims of domestic violence are maintainable under the DV Act even after divorce, provided the abuse occurred during the subsistence of the marital relationship. This principle, also supported by V.D. Bhanot v. Savita Bhanot,[4] ensures that a subsequent divorce does not bar relief for past violence, a point often contested in appeals.
  • Applicability to Past Acts: V.D. Bhanot v. Savita Bhanot[4] established that the DV Act can apply to acts of domestic violence that occurred before its enactment, provided the legal relationship persists or the effects of the violence are ongoing. This expansive temporal scope can be a ground for appeal.
  • Definition of "Respondent": The Supreme Court in Hiral P. Harsora And Others v. Kusum Narottamdas Harsora And Others[5] struck down the words "adult male" from Section 2(q) of the DV Act, thereby broadening the definition of "respondent" to include female relatives as well. This has implications for who can be proceeded against and, consequently, who can be a party to an appeal.
  • Live-in Relationships: The interpretation of "relationship in the nature of marriage" under Section 2(f) for live-in relationships, as discussed in Indra Sarma v. V.K.V Sarma,[6] often leads to disputes regarding maintainability, which can be carried to appeal.
  • Procedural Prerequisites: The Supreme Court in Prabha Tyagi (S) v. Kamlesh Devi (S)[11], [15] clarified that a Domestic Incident Report (DIR) is not mandatory for initiating proceedings under Section 12. It also held that it is not mandatory for the aggrieved person to be actually residing with the respondents at the time of filing the application if she has been excluded from the shared household or is prevented from residing there. These clarifications are significant for appeals challenging proceedings on procedural grounds.

B. Substantive Issues Frequently Adjudicated on Appeal

Appeals frequently involve challenges to the merits of orders concerning:

  • "Shared Household": The definition and scope of "shared household" under Section 2(s) is a recurrent issue. The Supreme Court in Satish Chander Ahuja v. Sneha Ahuja[8] overruled its earlier narrow interpretation in S.R. Batra And Another v. Taruna Batra (Smt),[2] holding that "shared household" refers to a household where the aggrieved person lives or has lived in a domestic relationship, irrespective of whether she has any right, title, or interest in it. It can include property owned by in-laws or other relatives with whom the aggrieved person has lived. This broader interpretation, also supported by Prabha Tyagi[11] and Shalini v. Kishor And Others,[12] is central to many appeals concerning residence orders. The issue of claiming residence in property exclusively owned by the mother-in-law was also considered in K. Rajendran v. Parvgathy Ammal Petitioners.[26]
  • Monetary Relief and Maintenance: Orders granting or denying interim or final maintenance under Section 20 are commonly appealed. The quantum, justification, and the husband's capacity to pay are frequent points of contention.[13], [22], [24], [25]
  • Residence Orders and Protection Orders: Appeals against orders under Section 19 (Residence Orders) and Section 18 (Protection Orders) are common, especially concerning the right to reside in the shared household or restraining the respondent from certain acts.[8], [11], [26]
  • Amendment of Pleadings: The power to amend petitions under the DV Act, as affirmed in Kunapareddy Alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari And Another,[1] can also lead to appellate scrutiny if an order allowing or disallowing amendment is challenged.

C. Procedural Aspects in Appeals

Judicial decisions have also clarified procedural elements of DV appeals:

  • Stay of Execution and Payment of Arrears: The appellate court has the power to grant a stay on the Magistrate's order. In SHAMBU SARAN PANDEY v. DAYANATH TRIPATHI & ORS,[21] the appellate court, while granting a stay, directed payment of arrears of maintenance.
  • Impleading Parties and Striking Off Names: The Madras High Court in SARANYA v. SANTHOSH KUMAR KRISHNAMOORTHY,[30] referring to a Full Bench decision, outlined the remedy for improper impleadment: an application for striking off names, then an appeal under Section 29 if unsuccessful. Deletion of names of respondents by the appellate court was an issue in Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade And Others.[24]
  • Expeditious Disposal of Appeals: Courts have emphasized the need for timely disposal of DV Act matters, including appeals, to ensure swift justice.[22], [31]

Beyond the Court of Session: Further Remedies

While Section 29 provides for an appeal to the Court of Session, the legal battle may not end there. The order of the Court of Session can be further challenged before the High Court.

The Gujarat High Court in Suo Motu v. Ushaben Kishorbhai Mistry[16] considered whether the judgment of the Court of Session in a DV Act appeal is amenable to the revisional powers of the High Court under Sections 397(1) and 401 of the CrPC. The Allahabad High Court in cases like Benche Lal And Another v. State Of U.P. Thru. Prin. Secy. Home Lko. And Another[27] and Mahesh Tomar And 3 Others v. State Of U.P. And Another[29] has affirmed that a revision lies against the appellate order of the Sessions Judge under the DV Act.

The Punjab & Haryana High Court in POOJA SAINI v. VARUN SAINI AND ORS.[20] held that orders passed under Section 23 and Section 29 of the DV Act are civil in nature, and thus a petition under Section 482 CrPC against such orders may not be maintainable, guiding parties towards other appropriate remedies as per law. This highlights the ongoing judicial discourse on the precise nature of remedies post-appeal, given the hybrid nature of DV Act proceedings.

Conclusion

The appellate mechanism under Section 29 of the Protection of Women from Domestic Violence Act, 2005, serves as a critical check on the exercise of power by the Magisterial courts and provides an avenue for correction of errors, thereby reinforcing the rule of law. The judiciary, through a series of progressive interpretations, has clarified the scope of appealable orders, the substantive issues that can be re-agitated, and the procedural norms governing such appeals. Cases like Satish Chander Ahuja, Prabha Tyagi, and Juveria Abdul Majid Patni have significantly expanded the protective ambit of the Act, and these interpretations invariably influence appellate outcomes.

While the statutory framework provides a clear right to appeal, challenges remain in ensuring timely and effective appellate adjudication. The hybrid nature of DV Act proceedings, blending civil reliefs with criminal procedure, sometimes leads to complexities in determining the exact nature of further remedies beyond the Court of Session. Nevertheless, the appellate process is indispensable for upholding the legislative intent behind the DV Act – to provide robust, expeditious, and fair protection to women against domestic violence, ensuring that their rights to safety, dignity, and a violence-free home are effectively realized.

References

  1. Kunapareddy Alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari And Another (2016 SCC ONLINE SC 531, Supreme Court Of India, 2016)
  2. S.R Batra And Another v. Taruna Batra (Smt) . (2007 SCC 3 169, Supreme Court Of India, 2006)
  3. Krishna Bhattacharjee v. Sarathi Choudhury And Another (2016 SCC 2 705, Supreme Court Of India, 2015)
  4. V.D Bhanot v. Savita Bhanot . (2012 SCC CRI 2 102, Supreme Court Of India, 2012)
  5. Hiral P. Harsora And Others v. Kusum Narottamdas Harsora And Others (2016 SCC ONLINE SC 1118, Supreme Court Of India, 2016)
  6. Indra Sarma v. V.K.V Sarma . (2013 SCC 15 755, Supreme Court Of India, 2013)
  7. Ganesan (Dead) Through Legal Representatives v. Kalanjiam And Others (2019 SCC ONLINE SC 1676, Supreme Court Of India, 2019) - [Editor's Note: Deemed not directly relevant to DV appeals and excluded from main analysis.]
  8. Satish Chander Ahuja (S) v. Sneha Ahuja (S). (2021 SCC CIV 1 325, Supreme Court Of India, 2020)
  9. Kamatchi v. Lakshmi Narayanan . (2022 SCC ONLINE SC 446, Supreme Court Of India, 2022)
  10. Juveria Abdul Majid Patni v. Atif Iqbal Mansoori And Another (2014 SCC 10 736, Supreme Court Of India, 2014)
  11. Prabha Tyagi (S) v. Kamlesh Devi (S). (2022 SCC ONLINE SC 607, Supreme Court Of India, 2022)
  12. Shalini v. Kishor And Others (Supreme Court Of India, 2015)
  13. Saraswathy v. Babu . (Supreme Court Of India, 2013)
  14. Juveria Abdul Majid Patni v. Atif Iqbal Mansoori And Another (Supreme Court Of India, 2014) - [Snippet]
  15. Prabha Tyagi (S) v. Kamlesh Devi (S). (Supreme Court Of India, 2022) - [Snippet]
  16. Suo Motu v. Ushaben Kishorbhai Mistry (Gujarat High Court, 2015)
  17. SHAURABH KUMAR TRIPATHI v. VIDHI RAWAL (Supreme Court Of India, 2025) - [Editor's Note: Year cited as 2025, treated as recent SC case.]
  18. Abhijit Bhikaseth Auti v. State Of Maharashtra & Anr. (Bombay High Court, 2008)
  19. SRI.RAGHAVENDRA LAXMAN PATTAR, v. SMT.VEENA RABHAVENDRA PATTAR, (Karnataka High Court, 2022)
  20. POOJA SAINI v. VARUN SAINI AND ORS. (Punjab & Haryana High Court, 2024)
  21. SHAMBU SARAN PANDEY v. DAYANATH TRIPATHI & ORS (Supreme Court Of India, 2014)
  22. Rajnikant Surajram Bachkaniwala v. State Of Gujarat (2012 SCC ONLINE GUJ 5523, Gujarat High Court, 2012)
  23. Karthikeyan v. Sheeja (2008 SCC ONLINE KER 381, Kerala High Court, 2008)
  24. Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade And Others (2011 SCC 3 650, Supreme Court Of India, 2011)
  25. Gyanendra Kumar Tripathi v. State of Bihar & Anr (Patna High Court, 2018)
  26. K. Rajendran v. Parvgathy Ammal Petitioners (2013 SCC ONLINE MAD 116, Madras High Court, 2013)
  27. Benche Lal And Another v. State Of U.P. Thru. Prin. Secy. Home Lko. And Another (Allahabad High Court, 2025) - [Editor's Note: Year cited as 2025, treated as recent HC case.]
  28. Mritunjay Kumar v. State Of U.P. And Another (Allahabad High Court, 2018) - [Editor's Note: Deemed not directly relevant for detailed analysis.]
  29. Mahesh Tomar And 3 Others v. State Of U.P. And Another (Allahabad High Court, 2017)
  30. SARANYA v. SANTHOSH KUMAR KRISHNAMOORTHY (Madras High Court, 2024)
  31. Smt. Prabha Sharma v. Dinesh Kumar Sharma And 3 Others (Allahabad High Court, 2025) - [Editor's Note: Year cited as 2025, treated as recent HC case.]