Braham Pal Arya vs Babita Arya @ Kila Devi & Ors.
2009 Latest Caselaw 4391 Del

              HIGH COURT OF DELHI: NEW DELHI

+      CRL. M.C. No. 3145/2008

              Judgment reserved on: 27th October, 2009
%             Judgment delivered on: 29th October, 2009


BRAHAM PAL ARYA                                ..... Petitioner
                          Through: Mr. M.S. Yadav, Adv.

                 Versus
BABITA ARYA @ KILA DEVI & ORS.       ..... Respondents
                 Through: Mr. R.P. Srivastava, Adv.

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment?           Yes

       2. To be referred to Reporter or not?            No

       3. Whether the judgment should be
          reported in the Digest?                       No

A.K. PATHAK, J.

1. Petitioner has filed this petition under Section 482 of

Code of Criminal Procedure praying therein that the order

dated 19th July, 2008 passed by learned Additional Sessions

Judge be set aside.

2. Petitioner is the husband of respondent No. 1 and

father of respondent No. 2. Respondents filed a petition

under Sections 12,18,19,20 and 22 of the, Protection of

Women from Domestic Violence Act, 2005 (hereinafter

referred to as "said Act") for grant of maintenance, rent of

residence, monitory reliefs, compensation and protection

from domestic violence, in the court of learned Additional

Chief Metropolitan Magistrate, Delhi, who in turn assigned

the same to the Metropolitan Magistrate for trial.

3. Respondents also filed an application under Section 23

of the said Act in the pending case seeking ad interim ex-

parte order. After hearing the petitioner as well as

respondents, learned Metropolitan Magistrate, vide order

dated 18th September, 2007 disposed of this application and

directed the petitioner to pay a sum of Rs. 9,000/- (Rs.

6,000/- to respondent No. 1 and Rs. 3,000/- to respondent

No. 2) towards maintenance and besides this Rs. 10,000/-

towards litigation the expenses. Petitioner was also

prohibited from entering into the residence of the

respondents and from committing any act of domestic

violence, till final disposal of the petition.

4. Aggrieved by the aforesaid order, petitioner preferred

an appeal under Section 29 of the said Act, before the

learned Additional Sessions Judge, who dismissed the

appeal as not maintainable. Learned Additional Sessions

Judge was of the view that order passed under Section 23 of

the said Act was purely an interlocutory order which did not

affect the rights of the parties, thus, was not appealable.

While taking this view, he placed reliance on Sulochana &

Ors. Vs. Kuttappan & Ors. reported in 2007 (4) LRC 78

(Ker).

5. Aggrieved by the order of learned Additional Sessions

Judge, petitioner has preferred this petition.

6. I have heard the learned counsel for both the parties.

Learned Metropolitan Magistrate has disposed of application

under Section 23 of the said Act, after hearing both the

parties. Detailed and reasoned order was passed by him,

thereby providing ad interim reliefs to the respondents,

pending disposal of the main petition. In my view this order

passed by the learned Metropolitan Magistrate is not a

procedural order and in fact affects the rights of parties.

Therefore it cannot be termed as merely a procedural order

and/or purely an interlocutory order. Rights and liabilities

of the parties have been determined pending disposal of the

main petition by the order passed by the learned

Metropolitan Magistrate, in exercise of its power under

Section 23 of the said Act. Accordingly, I am of the view,

that an appeal under Section 29 of the said Act would be

maintainable.

7. In Abhijit Bhikaseth Auti vs. State of Maharashtra

and Anr. reported in 2009 CRI. L.J. 889 Bombay High

Court categorically held that an appeal will lie against the

order passed under Sub-section (1) and Sub-section (2) of

the Section 23 of the said Act passed by the learned

Magistrate.

8. This High Court in Amit Sundra & Ors. vs. Ms.

Sheetal Khanna reported in 2008 CRI.L.J. 66 held that

appeal under Section 29 of the said Act would be

maintainable against the order passed by learned

Magistrate granting said interim relief to a party in exercise

of its power under the said Act. This view was expressed by

the Court after scrutinizing Sections 25 and 29 of the said

Act.

9. In view of above discussion, I am of the opinion that

the learned Additional Sessions Judge erred in coming to

the conclusion that the order passed by the learned

Metropolitan Magistrate was not appealable being purely an

interlocutory order. Accordingly, I set aside the impugned

order dated 19th July, 2008 and remand the appeal back to

the learned Additional Sessions Judge, Rohini, New Delhi

with the direction to dispose of the same in accordance with

law.

10. Parties to appear before the learned Additional

Sessions Judge on 12th November, 2009.

A.K. PATHAK, J

OCTOBER 29, 2009 ga