Does the Sessions Court have the Power to Pass Interim Orders Under the Domestic Violence Act?

How much leeway does the Sessions Court have under Section 29¹ of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Domestic Violence Act” or “the Act” as the case may be) to pass interim orders? Is its power confined to only deciding the appeal before it filed by the aggrieved person or the respondent or can it pass interim orders including orders in the nature of stay of execution or suspension of sentence pending the decision in appeal? This is the subject-matter of the present piece.

The statutory scheme of things

The Domestic Violence Act², as its long title suggests, is “An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.” Chapter IV of the said Act sets out the “procedure for obtaining orders of reliefs”. An aggrieved person or a person on her behalf or a Protection Officer can under Section 12 make an application to the jurisdictional Magistrate seeking certain reliefs including payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages.³ While disposing an application under Section 12(1), the Magistrate under Section 20⁴ also has the power to grant monetary reliefs. Compensation orders can also be passed under Section 22⁵ of the Domestic Violence Act. Sections 18⁶, 19⁷ and 21⁸ of the Act give powers to the Magistrate to pass protection orders, residence orders and custody orders respectively. There are three other important provisions within the Domestic Violence Act which are required to be noted. Section 23⁹ grants express powers to the Magistrate to grant interim and ex parte orders. Section 26¹⁰ clearly states that reliefs available under Sections 18, 19, 20, 21 and 22 of the Domestic Violence Act “may also be sought in any legal proceeding, before a civil court, Family Court or a criminal court”. And Section 36 which is a miscellaneous provision in Chapter V clearly states that the provisions of the Domestic Violence Act “shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force”¹¹. Therefore, while Section 23 grants specific power to the Magistrate to grant interim and ex parte orders, such power is not specifically bestowed by the legislature upon the Sessions Court under Section 29 of the Domestic Violence Act. Notwithstanding this, can the Sessions Court still pass interim orders in pending appeals? This question seems to have caused some confusion due to the decision of the Supreme Court in Shalu Ojha v. Prashant Ojha¹² (hereinafter referred to as “Shalu Ojha”).

The Supreme Court’s decision in Shalu Ojha

If the adage, “some things are better left unsaid” were to ever apply a decision of the Supreme Court, then Shalu Ojha¹³ would be that decision. In Shalu Ojha¹⁴, the appellant filed a complaint under Section 12 of the Domestic Violence Act which was disposed of by the Magistrate who had granted a certain amount towards monthly maintenance on certain terms. An appeal was filed by the respondent to the Additional Sessions Judge under Section 29 of the Domestic Violence Act challenging the Magistrate’s order. The Additional Sessions Judge while granting stay of execution directed the respondent to pay the arrears of maintenance within two months. Since the respondent defaulted in paying the arrears, the appellant moved an application for execution. In the meantime, during the pendency of the execution proceedings, the appeal filed before the Additional Sessions Judge was dismissed for non-compliance with the interim directions passed by it. The respondent challenged the decision of the Additional Sessions Judge before the High Court who had initially declined to pass interim orders. The respondent thereafter approached the Supreme Court challenging the High Court’s order. The Supreme Court refused to interfere but directed parties to mediate the dispute. The mediation failed and on receipt of the failure report, the appeal was listed before the High Court who directed the respondent to pay the appellant a certain amount of maintenance in two instalments and stayed the execution proceedings. The interim stay on execution granted by the High Court was set aside by the Supreme Court. In the meantime, the appellant’s application for payment of “current maintenance” before the High Court was dismissed as “not pressed” on recording the statement of the appellant’s High Court counsel. The appellant challenged this dismissal yet again before the Supreme Court on the ground that no such instructions were given by her to her advocate for not pressing the application. Therefore, the Supreme Court in its judgment has rightly stated,

20. … Whether the Sessions Court in exercise of its jurisdiction under Section 29 of the Act has any power to pass interim orders staying the execution of the order appealed before it is a matter to be examined in an appropriate case.¹⁵

With due respect, the Court should have stopped there and said nothing more of Section 29 because that was not the issue before it. However, the Court went onto further observe¹⁶ the following:

20. … We only note that there is no express grant of power conferred on the Sessions Court while such power is expressly conferred on the Magistrate under Section 23. Apart from that, the power to grant interim orders is not always inherent in every court. Such powers are either expressly conferred or implied in certain circumstances. This Court in Super Cassettes Industries Ltd. v. Music Broadcast (P) Ltd.¹⁷, examined this question in detail. At any rate, we do not propose to decide whether the Sessions Court has the power to grant interim order such as the one sought by the respondent herein during the pendency of his appeal, for that issue has not been argued before us.

21. We presume (we emphasise that we only presume for the purpose of this appeal) that the Sessions Court does have such power. If such a power exists then it can certainly be exercised by the Sessions Court on such terms and conditions which in the opinion of the Sessions Court are justified in the facts and circumstances of a given case. In the alternative, if the Sessions Court does not have the power to grant interim orders during the pendency of the appeal, the Sessions Court ought not to have stayed the execution of the maintenance order passed by the Magistrate. Since the respondent did not comply with such conditional order, the Sessions Court thought it fit to dismiss the appeal. Challenging the correctness of the said dismissal, the respondent carried the matter before the High Court invoking Section 482 of the Criminal Procedure Code, 1973¹⁸ and Article 227 of the Constitution¹⁹. (emphasis supplied)

Despite the caveats set out by the Supreme Court in its judgment, it is submitted that as expected, advocates in several matters before the High Courts relied on the observations of the Supreme Court that are highlighted above, thereby bestowing upon the High Courts with the onerous task of interpreting the Supreme Court’s observations in Shalu Ojha²⁰.

The opinions of three High Courts

The Karnataka High Court

(1) In Yashaswini v. M. Anegudde Ganesh²¹ (hereinafter referred to as “Yashaswini”) the Magistrate had partly allowed a petition under Section 12 of the Domestic Violence Act and ordered payment of monthly maintenance along with compensation. The order was challenged by the husband under Section 29 along with an interim application before the Sessions Court who stayed the execution of the Magistrate’s order for three months with a condition of paying a certain amount of monthly maintenance till further orders.²² The Sessions Court order was challenged in the Karnataka High Court. The observations of the Supreme Court in Shalu Ojha²³ were predictably relied on by the advocate for the respondent husband²⁴; along with Super Cassettes Industries Ltd. case²⁵ (hereinafter referred to as “Super Cassettes”) and Munilakshmamma v. Commr., Kolar District²⁶ (which will be dealt with later).²⁷ The High Court eventually held that the order of the Magistrate awarding monetary benefits under the Domestic Violence Act was civil in nature and not criminal and therefore, in the absence of any express or implied provision under the Domestic Violence Act the benefits of Section 389 of the Criminal Procedure Code, 1973²⁸ (dealing with suspension of sentence) would not apply to each and every proceedings under Section 12 of the Domestic Violence Act.²⁹ Therefore, the Sessions Court has no power to stay the operation of the order passed by the Magistrate particularly when there is no criminal/penal consequence to such an order.³⁰

(2) A Coordinate Bench of the Karnataka High Court in K.M. Leelavathi v. K.M. Sonia Madaiah³¹ disagreed with the earlier view of the Court in Yashaswini³² and held that the view of the Court in Yashaswini³³ was contrary to the principle of law laid down in Munilakshmamma case³⁴ (invertedly referring to it as a Supreme Court decision³⁵) viz.:

When a statute provides a remedy by way of appeal to the appellate authority against the impugned order, such a legal remedy should not be frustrated by an order of refusal to grant a stay of the operation of the impugned order because the implementation of the impugned order would not only disturb the status of the appellant but also defeat the very purpose for which the remedy is sought before the appellate authority.³⁶

The Court also observed that the Supreme Court in Shalu Ojha³⁷ had not delved into the question of the powers of the Sessions Court to grant interim relief pending an appeal under the Domestic Violence Act.³⁸

The Punjab and Haryana High Court

In an elaborate yet well-reasoned judgment delivered by the Punjab and Haryana High Court in Bhanu Kiran v. Rahul Khosla³⁹, after relying on several decisions of the Supreme Court including State of Karnataka v. Vishwabharathi House Building Coop. Society⁴⁰, CIT v. M.K. Mohammed Kunhi⁴¹ and J.K. Synthetics Ltd. v. CCE⁴², the High Court held:

20. … If it is held that under Section 29 appellate court is not bestowed with power to pass interim order against interim order because there is no specific power under Section 29, the appellate court would be denuded from power to pass interim order even against final order because there is no such specific power qua final order. Existence of power and use of power are two different dimensions of legal jurisprudence.

Matter needs to be examined from one more angle. The appellate court may or may not exercise power to pass interim order, however, if it is held that appellate court in terms of Section 29 has no power to pass interim order, it would amount to curtailing the powers of appellate court. It seems to be contrary to settled canons of law that appellate authority or court unless specifically barred can exercise all those powers which are vested in subordinate authority. It cannot be approved that Magistrate has power to pass interim order, however, appellate court has no power to pass interim order. Due to overburden, more often than not, appellate courts are unable to finally adjudicate appeal against interim order and if it is held that appellate court has no power to pass interim order, Magistrate may finally decide the issue and appeal would become infructuous.⁴³

The High Court also referred to Shalu Ojha⁴⁴ (cited by Counsel) and observed that the issue of the power of the appellate court to grant interim relief was left open by the Supreme Court.⁴⁵

The Kerala High Court

The aforesaid decision of the Punjab and Haryana High Court was followed by the Kerala High Court in Farsana P.S. v. Razveen Raffique⁴⁶. Before the Kerala High Court, Shalu Ojha⁴⁷ was yet again cited by counsel.⁴⁸ However, the Kerala High Court followed the line of reasoning set out by the Punjab and Haryana High Court and held that the Sessions Court under Section 29 of the Domestic Violence Act does have the power to pass interim orders; the High Court also followed the maxim 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) to come to its conclusion.⁴⁹

The author’s view on the issue

In the author’s opinion, the Sessions Court would have the power to pass interim orders in pending appeals under Section 29 of the Domestic Violence Act for the following reasons:

A. The peculiar nature of proceedings under the Act: The Supreme Court in Alisha Berry v. Neelam Berry⁵⁰ has held that proceedings under the Domestic Violence Act “are quasi-criminal proceedings which do not have any penal consequence except where there is a violation or breach of a protection order”. The Bombay High Court in Raosaheb Pandharinath Kamble v. Shaila Raosaheb Kamble⁵¹ has termed proceedings under this Act as “quasi civil” in nature. Therefore, the proceedings under the Domestic Violence Act are neither purely criminal nor civil. This is further evident from a reading of Section 28 of the Domestic Violence Act⁵² which confines the application of the Criminal Procedure Code, 1973⁵³ only to Sections 12, 18, 19, 20, 21, 22 and 23 of the Act, except as otherwise provided for in the Act.⁵⁴ If that be the case, then Section 36 of the Domestic Violence Act which states that the provisions of the Act are in addition to and not in derogation with other laws would have some bearing on the issue at hand. Once Section 36 comes into play, then obviously the provisions of the Civil Procedure Code, 1908⁵⁵ (hereinafter referred to as “CPC”) as well as the Criminal Procedure Code, 1973 (hereinafter referred to as “CrPC”) or the Nagarik Suraksha Sanhita, 2023⁵⁶ (hereinafter referred to as “BNSS”) as the case may be, would have some application as these enactments would have to be read along with the Domestic Violence Act particularly in cases when the Act is silent on certain aspects. If the proceedings are “quasi civil” in nature, then the appellate court would be able to derive its power to grant interim measures/pass interim orders from certain provisions of the CPC. Order 21 Rule 26 CPC grants power to the appellate court to stay execution of a decree or pass an order relating to the decree or execution.⁵⁷ Order 41 XLI Rule 5 CPC also enables the appellate court to grant stay of proceedings under a decree or order⁵⁸; not to mention the inherent power of the Court under Section 151⁵⁹ CPC. Similarly, if these proceedings are also “quasi criminal” as the Supreme Court seems to suggest, then the Sessions Court under Section 389 CrPC⁶⁰ which is now Section 430 of the BNSS⁶¹, would have the power to suspend a sentence pending appeal. Therefore, in either scenario, the Sessions Court would have been able to pass interim orders. To substantiate this proposition, one would also have to peruse Section 26 of the Domestic Violence Act which makes it clear that reliefs under Sections 18 to 22 of the Act may also be sought in any legal proceeding before a civil court, Family Court or criminal court. Therefore, if such reliefs are sought before a civil court or criminal court, then obviously it would be incongruous to suggest that the powers to grant interim orders by a criminal court including the Sessions Court are curtailed.

B. The principles of law in Super Cassettes cannot be applied to the Domestic Violence Act: Shalu Ojha⁶² refers to Super Cassettes⁶³ while observing that the power to grant interim orders are not always inherent in every court.⁶⁴ The issue before the Supreme Court in Super Cassettes⁶⁵ was whether the Copyright Board under Section 31 of the Copyright Act, 1957⁶⁶ could pass an interim order in a pending complaint.⁶⁷ In the case before the Supreme Court, the Copyright Board had granted “an interim compulsory licence” pending disposal of the complaint.⁶⁸ The majority opinion penned by Justice Altamas Kabir (for himself and Justice Nijjar) held that though “tribunals” such as the Copyright Board “discharging quasi-judicial functions” and “having trappings of a court” are generally considered to be vested with incidental and ancillary powers; but in the absence of any provision to the contrary, such tribunal would not have the power to pass interim orders.⁶⁹ The concurring opinion echoed the same view.⁷⁰ However, the principles laid down for Section 31 of the Copyright Act, 1957 cannot be applied to Section 29 of the Domestic Violence Act as the schemes of both Acts are entirely different and both of them apply to their own fields. Even for provisions in statutes that are pari materia, the Supreme Court has clearly held that words in a provision in one statute cannot be used to interpret another. “A one-size-fits-all analogy” cannot be always used (see Gujarat Urja Vikas Nigam Ltd. v. Amit Gupta⁷¹). Therefore, it would be a case of apples and oranges if one were to apply the principles of law laid down for a provision in a statute and apply it to another entirely different statute. Moreover, the powers of a “court” are far wider than that of a “tribunal”. What was before the Supreme Court in Super Cassettes⁷² was the power of a tribunal to pass interim orders and not that of a court. “Every court may be a tribunal but every tribunal necessarily may not be a court.”⁷³

C. The issue before the Supreme Court in Shalu Ojha was not concerning Section 29 of the Domestic Violence Act: As has already been set out earlier, before the Supreme Court, the appellant was not challenging an interim order of the Sessions Court under Section 29 but a High Court order dismissing an application for “current maintenance”. The Supreme Court has clearly stated in Shalu Ojha⁷⁴ that it was not taking a decision on the powers of the Sessions Court to grant interim relief under Section 29 and left the issue to be decided in an appropriate case. A decision is an authority for what it specifically decides and not what can logically be deduced therefrom⁷⁵ and not everything that is said by a Judge in a judgment constitutes a precedent.⁷⁶ Therefore, the observations made by the Supreme Court viz., that powers to grant interim orders is not always inherent in every court⁷⁷ cannot even be termed as obiter dicta as the Supreme Court has itself clarified that it was not deciding the issue on the scope of the Sessions Court to grant interim relief under Section 29 of the Domestic Violence Act.

Hence, the Sessions Court would have the power to pass interim orders in pending appeals filed before it under Section 29 of the Domestic Violence Act.