Prima facie case of domestic violence is necessary for ordering interim maintenance under Section 23 of DV Act

Himachal Pradesh High Court: A Single Judge Bench comprising of Dharam Chand Chaudhary, J. dismissed a criminal revision petition that was filed against the order of the Sessions Judge wherein he reversed the order of Chief Judicial Magistrate granting maintenance to the petitioner under Domestic Violence Act, 2005.

The petitioner was married to the respondent and they had school going children. She alleged that the respondent and his mother treated her and the minor children with cruelty. She submitted that the children were studying in a public school and their expenses were high. The respondent was a government doctor earning Rs 1.5 lakhs per month. Taking note of such factual details,  the Chief Judicial Magistrate directed the respondent to pay Rs 30,000 per month to the petitioner by way of interim allowance. On appeal, the said order was reversed by the Sessions Judge vide the order under challenge herein.

The High Court perused the record and observed that the Chief Judicial Magistrate passed the order without recording any prima facie finding qua alleged instances of maltreatment to the petitioner and the children, by the respondent and his mother. The Court held that in a case of domestic violence, in order to seek the relief of interim maintenance under Section 23 of the Act, a prima facie case qua maltreatment and existence of instances of domestic violence was required to be made out which was not done in this case. Moreover, the Sessions Court did not close the right of the petitioner to claim interim maintenance rather remanded the matter to the trial court for disposal under the law. The High Court did not find any fault with the order impugned. Consequently, the petition was dismissed. [Ashmin Kashmiri v. Pushkar Kashmiri,2018 SCC OnLine HP 841, dated 04-07-2018]

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