The Bench of Justice Sanjay Dhar in a petition wherein the Petitioner-Wife had challenged the order passed by the Court of Principal Sessions Judge, Kupwara (Appellate Court) setting aside the interim residence order passed by the Judicial Magistrate First Class (Munsiff) (Trial Court) under Section 23 of the Prevention of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the DV Act”), held that the residence order is an urgent relief to protect a woman from her taking shelter on road, therefore, passing of an interim order of the nature as defined under Section 19 of the Act is well within the jurisdiction of a Magistrate.

The Petitioner before the Court, had filed a petition under Section 12 of the DV Act her husband-the respondent, before the Trial Court. Along with the said petition, she had also filed an application for grant of interim relief in terms of Section 23 of the DV Act praying for monetary compensation as well as a residence order from the respondent. The Trial Court upon consideration of the application passed an ex-parte interim order directing the respondent to provide her an accommodation comprising kitchen, bathroom and washroom and also to provide her sufficient protection. The said order was challenged by way of an appeal by the respondent under Section 29 of the DV Act before the Appellate Court, which appeal was dismissed with a direction to the respondent to approach the Trial Court seeking variation of the order since the order was made subject to modification. 

The Trial Court after hearing both the parties declined monetary relief to thepetitioner observing that she is a working government teacher, however, the respondent was directed to provide safe and secure residence to the petitioner in the shared household. This order was challenged by the Respondent before the Appellate Court under Section 29 of the DV Act, and the Appellate Court by virtue of the impugned order set-aside the order of the Trial Court holding that “the relief relating to residence to an aggrieved person can be granted only after trial while disposing of an application under Section 12 of the DV Act finally.”

The question that the High Court framed in order to decide the controversy was “Whether a Magistrate, while considering the grant of interim order in favour of an aggrieved person in terms of Section 23 of the DV Act, can pass an order of residence even before the trial of the main case has concluded?”.

Perusing the Section 23 of the DV Act, the Court noted, “it is clear that a Magistrate has jurisdiction to grant an ex-parte order in favour of an aggrieved person of the nature as provided in Section 18, Section 19, Section 20, Section 21 and Section 22 of the DV Act against the respondent. Section 18 of the DV Act relates to protection orders, Section 19 relates to residence orders, Section 20 relates to monetary reliefs, Section 21 relates to custody orders and Section 22 relates to compensation orders. Thus, it is clear that interim orders of the aforesaid nature, which includes an order relating to residence, can be passed by a Magistrate in exercise of his powers under Section 23 of the DV Act.”

The next court that the Court determined was, “at what stage an interim order can be passed by a Magistrate in exercise of his powers under Section 23 of the DV Act?”

While answering this question, the Court held, “when we read the provisions of Section 19 in conjunction with Section 23 of the DV Act, it becomes clear that while final residence order can be passed by a Magistrate at the time of final disposal of the petition under Section 12 of the DV Act, he is also vested with jurisdiction to grant interim residential order in favour of an aggrieved person if the Magistrate is satisfied that an application of the aggrieved person, prima facie, discloses that the respondent is committing or has committed an act of domestic violence or there is a likelihood that the respondent may commit an act of domestic violence, meaning thereby that the Magistrate at the time of passing an interim residence order in favour of the aggrieved person is not required to hold a trial but he is only required to draw satisfaction from the application filed by the aggrieved person.”

Thus, observing that the order of the Appellate Court has resulted in grave injustice to the petitioner who has been deprived of a shared household, the Court allowed the Petition ad set-aside the Order impugned passed by the Appellate Court.