In person v. DHIRENDRA KUMAR

O R D E R 21.04.2025 The present petition impugns order dated 25th February, 2025, passed by the Sessions Court (ASJ-02), Dwarka Courts, Delhi in Cr. Appeal bearing CA No. 64/2024, rejecting the Petitioner’s appeal against the order dated 18th November, 2023 on the ground of maintainability.

2. Briefly stated, the factual background of the case is as follows:

2.1. On an application filed by the Petitioner, the MM, Mahila Court-02 Dwarka Courts, Delhi passed an order dated 7th September, 2020, awarding interim maintenance of INR 1 lakh to the Petitioner. The said order was challenged by both the Petitioner as well as the Respondent under Section 29 of Protection of Women from Domestic Violence Act, 2005.1 These appeals were decided by a common order dated 1st October, 2021, upholding 1 “DV Act” CRL.REV.P.(MAT.) 114/2025 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:48:23 the order of interim maintenance dated 7th September, 2020. Both the parties have now assailed the order dated 1st October, 2021 by filing revision petitions before this Court bearing no. CRL. REV. P. 363/2021 and CRL. REV. P. 43/2022, which are currently pending consideration.

2.2. In the meantime, the Respondent filed an application under Section 25(2) of the DV Act, contending that there has been a change in the financial position. Pursuant to this, the MM, vide order dated 18th November, 2023, reduced the interim maintenance previously awarded to the Petitioner to INR 15,000/- per month from the date of filing of the application, i.e., w.e.f. 20th May, 2022 till the final disposal of the petition.

2.3. Aggrieved by the said order, the Petitioner preferred an appeal under Section 29 of the DV Act before the Court of ASJ-02, Dwarka Courts, which has been dismissed by the impugned order dated 25th February, 2025, which reads as follows: “At the outset, it is noticed that present appellant has challenged two orders dated 18.11.2023 passed by the Ld. M.M Mahila Court-02 Dwarka Courts, Delhi wherein prayer of respondent herein u/s 25(2) of PWDV Act was decided and the amount of interim maintenance previously awarded vide order dated 07.09.2020 was reduced for a sum of Rs. 15,000/- p.m on account of change in the circumstances which in the present case was claimed as change in the financial position of the respondent herein. It is settled proposition of law that an order passed under Section 25(2) of PWDV Act is not directly appealable, as it only allows for alteration, modification, or revocation of a previous order based on a change in circumstances, and does not constitute a new, independent order that can be appealed against. If at all any challenge is to be made by way of appeal under Section 29 of PWDV Act, the aggrieved person must take recourse, if so advised to challenge the original order by which interim maintenance was awarded, there is a substantial change in circumstances not considered in the initial order of modification under Section 25(2) of the said Act. As far as the facts situation and the stage of proceedings observed from the full canvas point of view admittedly the original interim maintenance order dated 07.09.2020 was challenged and contested under CRL.REV.P.(MAT.) 114/2025 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:48:23 Section 29 of PWDV Act and the jurisdictional court vide a common order dated 01.10.2021 had upheld the said order of interim maintenance. Making the history of litigation in the present proceedings more peculiar, both the contested parties have further challenged the said order dated 01.10.2021 (wherein the order of interim maintenance passed by Ld. trial court was upheld) vide Criminal Revision Petition bearing nos. 363/2021 and 43/2022. In this context of the situation and in the considered opinion of this court, the appeal preferred by the appellant u/s 29 of PWDV Act against an order u/s 25(2) of PWDV Act is not maintainable since the said order only modifies or alters the original interim maintenance order and the said original interim maintenance order is already subject matter of judicial proceedings before Hon'ble High Court in Criminal Revision Petition bearing nos. 363/2021 and 43/2022. This court is also conscious of its judicial duty in following judicial discipline and in honouring the judicial proprietary as the Hon'ble Delhi High Court the dispute concerning the award of interim maintenance by the Ld. trial court and as contested by both the parties. is seized of With these observations, is disposed of as dismissed lacking jurisdictional merits under Section 29 of PWDV Act. The conclusion arrived at by this court is further fortified by the judicial pronouncement of Hon'ble Supreme Court of India in S. Vijaykumari Vs. Mowneshwarachari C. arising out of SLP (CRL.)No. 5342 of 2023. the present appeal Appeal file be consigned to Record Room. Trial Court record be sent back with copy of the order.”

3. The ASJ, in the impugned order, has not adjudicated the matter on merits, but has instead rejected the Petitioner’s challenge solely on jurisdictional grounds. The impugned order proceeds on the premise that the Sessions Court lacks appellate jurisdiction under Section 29 of the DV Act against an order passed under Section 25(2) of the said Act. The ASJ has observed that an order under Section 25(2), being limited to the alteration, modification, or revocation of a prior order based on a change in circumstances, does not constitute a fresh or substantive order capable of being independently appealed against under Section 29. In arriving at this conclusion, the ASJ has placed reliance upon the judgment of the Supreme CRL.REV.P.(MAT.) 114/2025 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:48:23 Court in S. Vijaykumari v. Mowneshwarachari C.2

4. At the outset, counsel for the Respondent does not dispute the fact that the impugned order has not been rendered on merits. Be that as it may, in the considered view of this Court, the reasoning adopted by the ASJ in holding that the appeal was not maintainable under Section 29 of the DV Act, is erroneous and cannot be sustained in law. In this regard, it is imperative to refer to Section 29 of the DV Act, which reads as follows: “29. Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.”

5. A bare reading of the aforesaid provision makes it evident that an appeal lies to the Sessions Court under Section 29 of the DV Act against “the order made by the Magistrate”. The provision does not carve out any exception in respect of orders passed under Section 25(2) of the Act, nor does it draw any distinction among the various kinds of orders that may be passed by a Magistrate under the DV Act. Therefore, an appeal preferred against an order of the Metropolitan Magistrate, such as in the present case, clearly falls within the scope of Section 29. Consequently, there existed no justifiable basis for the ASJ to decline the exercise of appellate jurisdiction and dismiss the appeal on the ground of non-maintainability.

6. The ASJ, in the impugned order, has further observed that the interim maintenance order dated 7th September, 2020, as well as the appellate order dated 1st October, 2021, are already under challenge before this Court in Criminal Revision Petition Nos. 363/2021 and 43/2022. While this observation may be correct, it is crucial to underscore that the original order 2 2024 INSC 732. CRL.REV.P.(MAT.) 114/2025 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:48:23 dated 7th September, 2020 awarded the Petitioner interim maintenance to the tune of INR 1,00,000/- per month. However, this amount was substantially reduced to INR 15,000/- per month by the order of the Metropolitan Magistrate dated 18th November, 2023. While the revision petitions filed by the parties are pending consideration before this Court, these petitions will address the challenge to the grant of interim maintenance of INR 1,00,000/-, and not the reduction of the maintenance amount to INR 15,000/-. In such circumstances, denial in the impugned order to adjudicate the appeal on merits, on the ground of non-maintainability, effectively leaves the Petitioner remediless, and without recourse to challenge the significant reduction in interim maintenance. Such an approach is erroneous, and cannot be sustained in law.

7. Furthermore, while dismissing the appeal on the ground of maintainability, the ASJ placed reliance on the judgment of the Supreme Court in S. Vijaykumari. However, the legal proposition canvassed in the said judgment is entirely distinct from the interpretation sought to be drawn by the ASJ in the impugned order. In that case, the Supreme Court was concerned with the maintainability of an application under Section 25(2) of the DV Act, in relation to a period preceding the issuance of an order under Section 12 of the Act. In this context, the Court held that any alteration, modification, or revocation of an order passed under Section 12 of the DV Act, on account of a change in circumstances, can only operate prospectively—that is, for the period following the passing of the order under Section 12—and cannot be made applicable retrospectively to a period prior thereto. Pertinently, the Court did not express any opinion on the maintainability of an appeal under Section 29 against an order passed CRL.REV.P.(MAT.) 114/2025 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:48:23 under Section 25(2) of the Act. Accordingly, the aforesaid judgment is wholly inapplicable to the issue at hand.

8. Therefore, without delving into the merits of the case, and in view of the fact that the ASJ, in the impugned order dated 25th February, 2025, has dismissed the Petitioner’s appeal only on the ground of maintainability, the present writ petition is allowed with the following directions: a. The Petitioner’s Cr. Appeal before the ASJ bearing CA No. 64/2024 is restored to its original number. b. c. The parties shall appear before the ASJ on 2nd May, 2025. The ASJ shall now proceed to decide the Petitioner’s appeal on its own merits, in accordance with law. d. The Court has not examined the merits of the case. All rights and contentions of the parties are left open.

9. With the above directions, the present petition is disposed of along with pending application(s). APRIL 21, 2025 SANJEEV NARULA, J CRL.REV.P.(MAT.) 114/2025 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/04/2025 at 11:48:23