Case Note & Summary
The petitioner, Gananath Vishwanathan Shenoy, challenged an order dated 05.07.2018 passed by the learned District Judge-8 and Additional Sessions Judge, Nagpur, in Criminal Appeal No. 88 of 2017. By that order, the lower Appellate Court allowed an application (Exh.11) filed by the respondent no.2, who is the petitioner's wife, for grant of interim maintenance under the Protection of Women from Domestic Violence Act, 2005 (DV Act). The wife had claimed Rs.25,000 per month, but the appellate court granted Rs.10,000 per month from the date of application i.e. 07.03.2018. The petitioner argued that the proceedings under the DV Act filed by the wife had been dismissed by the learned Judicial Magistrate, First Class, Nagpur, after a full trial vide judgment dated 07.03.2017. Therefore, the appellate court erred in granting interim maintenance. Additionally, the petitioner contended that the wife is a Homeopath doctor and capable of maintaining herself. The respondent no.2, through counsel, submitted that the appellate court rightly passed the order. The State supported the impugned order. The High Court examined the submissions and held that the lower Appellate Court had the power to grant interim maintenance under Section 23 of the DV Act, as the appeal is a continuation of the original proceedings. The court found no error in the impugned order and dismissed the writ petition. The court also noted that the amount of Rs.10,000 per month was reasonable and the wife's ability to maintain herself was a matter for trial. The petition was dismissed, and the interim maintenance order was upheld.
Headnote
A) Domestic Violence - Interim Maintenance - Section 23 of Protection of Women from Domestic Violence Act, 2005 - Power of Appellate Court - The issue was whether the appellate court could grant interim maintenance pending appeal when the trial court had dismissed the main complaint under the DV Act. The High Court held that the appellate court has the power to grant interim maintenance under Section 23 of the DV Act, as the appeal is a continuation of the proceedings and the appellate court possesses all powers of the magistrate. The court upheld the order granting Rs.10,000 per month interim maintenance to the wife from the date of application. (Paras 3-6)
Issue of Consideration
Whether the lower Appellate Court can grant interim maintenance under the Protection of Women from Domestic Violence Act, 2005, when the main complaint under the said Act has been dismissed by the trial court.
Final Decision
The High Court dismissed the writ petition, upholding the order of the lower Appellate Court granting interim maintenance of Rs.10,000 per month to the wife from the date of application.
Law Points
- Interim maintenance can be granted pending appeal under DV Act even if main complaint dismissed
- Section 23 of DV Act empowers courts to grant interim orders
- Appeal court has same powers as magistrate under DV Act
