Interim and Ex Parte Orders under Section 23 of the Protection of Women from Domestic Violence Act, 2005: Judicial Trends and Critical Analysis

Interim and Ex Parte Orders under Section 23 of the Protection of Women from Domestic Violence Act, 2005: Judicial Trends and Critical Analysis

I. Introduction

Section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter “DV Act”) endows the Magistrate with the power to grant interim and ex parte reliefs pending adjudication of an application under Section 12.[1] The provision is the fulcrum upon which the Act’s promise of immediate and effective protection to aggrieved women pivots. This article critically analyses Section 23 through the prism of recent Indian case law, statutory context, and doctrinal debates, situating the provision within the overarching remedial architecture of the DV Act.

II. Statutory Framework of Section 23

Section 23(1) authorises a Magistrate to pass, “as he deems just and proper,” interim orders at any stage of the proceedings.[2] Section 23(2) permits ex parte orders on the Magistrate’s satisfaction that the application discloses prima facie domestic violence and there is likelihood of the respondent committing, or repeating, such violence. The breadth of discretion is offset by the Act’s time-sensitive mandate (Section 12(5)) and by appellate supervision under Section 29.

Read conjointly with Sections 18–22, which define the substantive reliefs (protection, residence, monetary, custody, and compensation orders), Section 23 operates as a procedural accelerant, enabling the Magistrate to crystalise provisional rights swiftly. The provision is further buttressed by Section 28(2), empowering courts to devise their own procedure—an aspect the Supreme Court has interpreted liberally in Kunapareddy.[3]

III. Procedural Character and Jurisdictional Aspects

1. Nature of Proceedings

Although the DV Act draws procedurally from the Code of Criminal Procedure, 1973 (CrPC), its reliefs are civil-in-nature. The Supreme Court has repeatedly underscored the Act’s hybrid character, stressing that procedural rigidity must yield to the goal of substantive justice.[4] Section 23 exemplifies this hybridity—criminal procedure governs service and execution, yet the reliefs resemble civil injunctions and maintenance orders.

2. Appellate Supervision under Section 29

All orders under Section 23 are appealable. High Courts have consistently held that an appeal lies even against an interim or ex parte order because such orders are “orders of moment affecting the rights of the parties.” (Abhijit Bhikaseth Auti v. State of Maharashtra).[5] Consequently, High Courts routinely decline to entertain petitions under Section 482 CrPC where an appellate remedy exists (Mahendra Singh; Yogendra Singh).[6]

3. Standard of Appellate Interference

Appellate courts interfere only where the Magistrate’s discretion is exercised “arbitrarily, capriciously, or perversely” (Sheetal v. Hitesh).[7] The Supreme Court, in Shalu Ojha v. Prashant Ojha, reiterated that stays of maintenance orders must be granted sparingly and only on cogent material, thereby signalling deference to first-instance determinations.[8]

IV. Judicial Interpretation of Section 23

1. Expeditious and Protective Approach

In Richa Arya v. State (NCT of Delhi), the Delhi High Court castigated a three-year delay in disposing of an interim application, holding that the Magistrate “could not have abandoned the task of forming an opinion about grant of interim relief.”[9] The judgment crystallises two principles: (a) Section 23 applications demand expedition; (b) pendency of parallel maintenance proceedings (e.g., under Section 24 of the Hindu Marriage Act) is no ground to withhold relief.

2. Scope and Limits of Interim Relief

While the power under Section 23 is wide, it is not untrammelled. The Bombay High Court in KHURSHEED KEKI TUREL v. State of Maharashtra held that permission to sell immovable property fell “beyond the ambit” of Section 23; monetary relief must conform to the heads enumerated in Section 20.[10] Similarly, Inderjit Singh Grewal emphasised that criminal proceedings cannot be used to collaterally attack a civil decree.[11]

3. Continuing Obligation and Enforcement

The Supreme Court’s decision in Krishna Bhattacharjee on continuing offences informs Section 23 enforcement: non-return of stridhan is a continuing wrong, thus limitation concerns do not fetter interim relief.[12] Enforcement mechanisms include recovery warrants, as seen in Mahendra Singh; however, High Courts discourage collateral challenges to such warrants, directing aggrieved parties to pursue appeals.[13]

4. Transfer and Forum Convenience

In Smt. Mamta @ Bhumika, the Rajasthan High Court transferred a case under Section 23 filed by a mother-in-law against the daughter-in-law, recognising the latter’s logistical hardship.[14] The order illustrates that Section 23 applications may emanate from respondents who are themselves women, a possibility fortified by Hiral P. Harsora, which struck down the “adult male” qualifier in Section 2(q).[15]

V. Interplay with Amendment and Procedural Flexibility

Kunapareddy established that pleadings under the DV Act may be amended to avert multiplicity of litigation, relying on Section 28(2).[16] In practical terms, an interim order under Section 23 may require modification where amended pleadings expand or recalibrate the reliefs sought. Section 25 explicitly empowers the Magistrate to “alter, modify, or revoke” any order upon change of circumstances, preserving procedural dynamism.

VI. Critical Appraisal

  • Strengths: Section 23 operationalises the Act’s objective of immediate protection; its flexibility permits tailored reliefs responsive to emergent domestic realities.
  • Due Process Concerns: The ex parte clause, while necessary, must be sparingly invoked lest it violate audi alteram partem. Courts have sought to balance urgency with fairness by mandating early hearing dates post-interim order.
  • Enforcement Gaps: Empirical studies reveal delays in execution of interim maintenance. Judgments such as Shalu Ojha correct course by directing prompt execution, yet systemic bottlenecks persist.
  • Undefined Parameters: Unlike Sections 125 CrPC or Order XXXIX CPC, Section 23 furnishes no statutory criteria for grant of interim relief. The judiciary has filled this vacuum through guidelines (e.g., Rajnesh v. Neha on maintenance quantification), but legislative clarification would enhance predictability.

VII. Conclusion

Section 23 stands as a linchpin of the DV Act’s remedial scheme, translating legislative intent into tangible, time-bound protection. Judicial interpretation has largely harmonised expansive discretion with constitutional due process, though sporadic overreach (as cautioned in KHURSHEED KEKI TUREL) reminds us of the necessity for principled restraint. Future reform should codify objective parameters for interim relief and strengthen enforcement infrastructure, thereby ensuring that Section 23 continues to serve as an efficacious shield for victims of domestic violence.

Footnotes

  1. Protection of Women from Domestic Violence Act, 2005, s. 23.
  2. Ibid., s. 23(1).
  3. Kunapareddy Alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari, (2016) SCC OnLine SC 531.
  4. Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 (on hybrid nature); see also Krishna Bhattacharjee v. Sarathi Choudhury, (2015) 2 SCC 705.
  5. Abhijit Bhikaseth Auti v. State of Maharashtra & Anr., 2008 SCC OnLine Bom 1116.
  6. Mahendra Singh v. State of U.P., 2024 AHC 187250; Yogendra Singh @ Yogesh v. State of U.P., 2024 (All HC).
  7. Sheetal v. Hitesh, 2011 SCC OnLine Bom 159.
  8. Shalu Ojha v. Prashant Ojha, (2015) 2 SCC 99.
  9. Richa Arya v. State (NCT of Delhi), 2016 SCC OnLine Del 948.
  10. KHURSHEED KEKI TUREL v. State of Maharashtra, 2024 SCC OnLine Bom (citation pending).
  11. Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588.
  12. Krishna Bhattacharjee, supra note 4.
  13. Mahendra Singh, supra note 6.
  14. Smt. Mamta @ Bhumika v. Smt. Madhu Devi, 2024:RJ-JD:44684.
  15. Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) SCC OnLine SC 1118.
  16. Kunapareddy, supra note 3.