Power to Grant Interim and Ex Parte Orders (Section 23)

Domestic violence is, by its nature, an emergency. A woman who approaches a Magistrate under the Protection of Women from Domestic Violence Act, 2005 cannot be told to wait months for evidence to be led and a contested order to be passed while the abuse continues, while she is thrown out of the shared household, or while maintenance is withheld. Section 23 is the statutory answer to that urgency: it arms the Magistrate with the power to grant interim relief during the pendency of a proceeding and, in cases of real urgency, an ex parte order even before the respondent is heard. This chapter dissects the two limbs of Section 23, the prima facie standard, the mandatory Form III affidavit, the place of natural justice, and the body of Supreme Court and High Court authority that shapes how courts wield this power. For the larger statutory scheme, read this alongside the Domestic Violence Act hub and the chapter on the procedure for obtaining reliefs.

The text and two-limb structure of Section 23

Section 23 is short but carries enormous practical weight. Sub-section (1) provides: "In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper." Sub-section (2) provides that if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed, an act of domestic violence, or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit, in such form as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22, against the respondent.

The provision therefore operates in two distinct registers. Sub-section (1) is the general power to pass interim orders in any pending proceeding; it ordinarily presupposes that both sides are before the court or have been noticed. Sub-section (2) is the narrower, exceptional power to pass an ex parte order, that is, an order made on the strength of the aggrieved person's affidavit alone, without first hearing the respondent. The reliefs that may be granted on either limb track the substantive reliefs of the Act: protection orders (Section 18), residence orders (Section 19), monetary relief (Section 20), custody orders (Section 21) and compensation (Section 22). For the content of those reliefs, see the chapter on the procedure for obtaining reliefs.

Why an urgent interim power was built into a civil remedy

The Act was conceived as a civil remedy that aggregates protection, residence, maintenance, custody and compensation into a single forum, precisely because the ordinary civil law did not address domestic violence in its entirety. In Kunapareddy alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774 (AIR 2016 SC 2519), the Supreme Court underscored that the very purpose of the Act was to provide a remedy that is an amalgamation of the civil rights of the aggrieved person, intended to protect women against violence of any kind occurring within the family. An emergency interim power is the natural corollary of such a protective, civil-in-nature statute: relief delayed in this field is relief denied.

This civil character also explains why courts have read Section 23 generously rather than as a penal provision to be construed strictly. Because the relief is preventive and protective, the threshold the legislature chose is deliberately low, a prima facie disclosure, not proof beyond reasonable doubt or even a preponderance of probabilities established after trial. The background, object and overall design of the statute are developed in the chapter on the introduction, object, background and scheme.

Interim orders under sub-section (1): the broad discretion

Sub-section (1) confers a wide discretion: the Magistrate may pass "such interim order as he deems just and proper." The width of the language means that the interim order need not mirror any single relief; the Magistrate can mould interim relief to the facts, granting, for example, interim protection from dispossession coupled with interim maintenance, pending final disposal. The only outer limits are that the order must relate to a proceeding under the Act and must be one that is "just and proper" on the material then available.

High Courts have repeatedly affirmed that interim relief, including interim maintenance and an interim residence order, can be granted at the threshold once the application prima facie discloses domestic violence, without waiting for the full trial. The Magistrate is not obliged to call for and consider the Domestic Incident Report from the Protection Officer before issuing notice or granting interim relief; if such a report has been filed it must be considered, but its absence is not a bar. This was settled by the Delhi High Court in Shambhu Prasad Singh v. Manjari (Delhi HC, 17 May 2012), which clarified that the proviso to Section 12(1) does not fetter the Magistrate's threshold powers under Section 23. The role of the Protection Officer and the Domestic Incident Report is examined in the chapter on the powers and duties of Protection Officers.

Ex parte orders under sub-section (2): the exceptional power

Sub-section (2) is the more delicate power because it dispenses, temporarily, with the respondent's right to be heard. It can be invoked only where the Magistrate is "satisfied" of one of three things on the face of the application: that the respondent is committing domestic violence, that he has committed it, or that there is a likelihood that he may commit it. The inclusion of the prospective "likelihood" limb is significant: an ex parte order can issue to prevent imminent harm, not merely to remedy harm already inflicted. This makes Section 23(2) a genuinely preventive instrument.

Because the order is made without hearing the other side, the satisfaction must be drawn strictly from the prescribed affidavit of the aggrieved person. The Magistrate cannot grant ex parte relief on the bald assertions of the application; sub-section (2) ties the power to an affidavit "in such form as may be prescribed." That form is Form III, mandated by Rule 7 of the Protection of Women from Domestic Violence Rules, 2006, which provides that every affidavit for obtaining an ex parte order under Section 23(2) shall be filed in Form III. The affidavit is therefore not a formality but the evidentiary foundation on which the ex parte order rests.

The prima facie standard and the discipline of "satisfaction"

The recurring expression in Section 23(2) is prima facie disclosure coupled with the Magistrate's satisfaction. The two ideas work together. "Prima facie" sets the evidentiary bar low: the court looks only at whether, taken at face value and assumed to be true, the affidavit reveals an act of domestic violence or a likelihood of one. "Satisfaction" imposes a discipline of application of mind: the Magistrate must actually be persuaded, on that material, that an ex parte order is warranted, and must not pass it mechanically.

Courts have repeatedly cautioned that the ex parte power, though available, is to be used sparingly and in genuine urgency, because it visits civil consequences on a respondent who has had no opportunity to answer. The Delhi High Court in Bhupender Singh Mehra v. State (NCT of Delhi) (Delhi HC, 8 October 2010) emphasised the discretionary and fact-sensitive nature of the Section 23 power and counselled against a mechanical exercise. The safeguard against abuse is therefore twofold: a sworn Form III affidavit on the front end, and an immediate, time-bound opportunity to the respondent to seek variation on the back end (discussed below).

Natural justice: interim relief and the respondent's hearing

It is important to keep the two limbs distinct on the question of audi alteram partem. An interim order under sub-section (1) ordinarily presupposes that the respondent is before the court or has been served with notice; principles of natural justice require that, save in cases of real urgency, the respondent be heard before such interim relief is granted. An ex parte order under sub-section (2), by contrast, is a recognised, statute-sanctioned exception to the rule of prior hearing, justified by urgency, but it is only a temporary departure, not a permanent denial.

The constitutional and procedural balance is preserved because the ex parte order is necessarily provisional: the respondent must be served with the order and the application, and is entitled to appear and contest, at which point the Magistrate hears both sides and may confirm, vary or vacate the order. The ex parte order is thus a bridge to a bilateral hearing, not a substitute for it. A Magistrate who grants ex parte relief should record brief reasons disclosing the satisfaction mandated by sub-section (2), so that the order can be tested on the respondent's challenge and on appeal.

The menu of reliefs available on an interim or ex parte basis

Section 23 does not create new reliefs; it makes the existing reliefs of the Act available on an accelerated, provisional footing. The most frequently sought interim reliefs are: interim protection orders under Section 18 restraining further acts of violence, communication or alienation of assets; interim residence orders under Section 19 restraining dispossession from, or disturbance in, the shared household; interim monetary relief under Section 20, most commonly interim maintenance and expenses; interim custody of children under Section 21; and interim compensation under Section 22.

The residence-order limb has been the most litigated, because it intersects with the contested meaning of "shared household." In S.R. Batra v. Taruna Batra, (2007) 3 SCC 169 (AIR 2007 SC 1118), the Supreme Court had narrowly held that a house owned exclusively by the mother-in-law was not a "shared household," curtailing the residence right. That restrictive reading was expressly overruled in Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 (AIR 2020 SC 2483), where a three-Judge Bench held that a shared household can include property owned by relatives of the husband, restoring the protective scope of Section 19 relief that an interim order under Section 23 can secure. The meaning of "shared household" and allied terms is developed in the chapters on definitions and the definition of domestic violence.

Interim maintenance under Section 20 read with Section 23

Interim monetary relief, especially interim maintenance, is the workhorse of Section 23 in everyday practice. Because the relief is interim, the court fixes a reasonable amount on a prima facie assessment of the respondent's means and the aggrieved person's needs, subject to final adjustment at trial. The Supreme Court in Shalu Ojha v. Prashant Ojha dealt with the enforcement dimension of such interim maintenance orders, underscoring that interim maintenance under the Act is a real and enforceable obligation, not a paper relief.

The procedure for fixing interim maintenance was substantially standardised by Rajnesh v. Neha, (2021) 2 SCC 324. The Supreme Court there mandated the filing of an Affidavit of Disclosure of Assets and Liabilities by both parties in all maintenance proceedings, and expressly extended that requirement to proceedings under the Protection of Women from Domestic Violence Act, 2005. The Court also reiterated that maintenance is ordinarily payable from the date of the application. A Magistrate fixing interim maintenance under Section 20 read with Section 23 must therefore apply the Rajnesh framework: call for the disclosure affidavits, assess means and needs, and reason out the quantum.

Interim relief survives divorce and the continuing-wrong principle

A respondent often resists interim relief by arguing that the marriage has ended, or that the cause of action is stale. Both arguments have been answered by the Supreme Court. In Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736, the Court held that an act of domestic violence once committed is not absolved by a subsequent decree of divorce, and that the aggrieved person remains entitled to the reliefs under Sections 18 to 22, including interim or ex parte orders under Section 23. Divorce, in other words, does not switch off the Section 23 power.

The limitation objection was met in Krishna Bhatacharjee v. Sarathi Choudhury, (2016) 2 SCC 705, where the Court held that retention of a woman's stridhan is "economic abuse" and a continuing offence, so that the cause of action subsists as long as the deprivation continues, and the application cannot be thrown out on the ground of limitation. The Court further clarified that judicial separation does not strip a woman of her status as an "aggrieved person." For a Magistrate considering interim relief, these authorities mean that neither divorce nor the passage of time, where the wrong is continuing, defeats the threshold jurisdiction to grant relief under Section 23.

Amending the application without losing interim protection

Proceedings under the Act are dynamic; new acts of violence or new heads of relief may surface after the application is filed. In Kunapareddy alias Nookala Shanka Balaji v. Kunapareddy Swarna Kumari, (2016) 11 SCC 774 (AIR 2016 SC 2519), the Supreme Court held that a court dealing with a petition or complaint under the Act has the power to allow amendment of the application, even though the Code of Criminal Procedure contains no express provision for amending a complaint, where the amendment is necessary in view of subsequent events or to avoid multiplicity of litigation.

This matters for Section 23 because it allows the aggrieved person to bring fresh incidents and additional reliefs into the same proceeding and seek interim protection over them, rather than launching a second case. The interim and ex parte machinery of Section 23 thus remains available in respect of the amended pleadings, preserving the Act's design as a single, flexible, protective forum.

Varying, modifying or revoking an interim or ex parte order

An interim or ex parte order is, by definition, provisional and may need to be altered as circumstances change or as the respondent's case is heard. Two routes exist. First, on the respondent's appearance after an ex parte order, the Magistrate can hear both sides and confirm, vary or vacate the order under the inherent logic of Section 23(2) itself, since the ex parte order was always a temporary measure. Second, Section 25(2) empowers the Magistrate, on an application by the aggrieved person or the respondent showing a change in circumstances, to alter, modify or revoke an order.

The Supreme Court in S. Vijikumari v. Mowneshwarachari C., 2024 INSC 732, clarified that Section 25(2) can be invoked only on the basis of a change in circumstances that took place after the order was passed, and that any alteration, modification or revocation operates prospectively (ex post facto from the change), not retrospectively. A respondent who simply wishes to re-argue the original merits must use the appeal, not Section 25(2); the modification power is reserved for genuine subsequent change.

Appeal and the respondent's remedy against interim orders

An order under Section 23, whether interim or ex parte, is an "order" within the meaning of Section 29, which provides an appeal to the Court of Session within thirty days from the date the order is served on the aggrieved person or the respondent, whichever is later. The availability of a statutory appeal is a further safeguard against an erroneous or excessive interim order, and it reinforces why Magistrates should record reasons: an unreasoned ex parte order is difficult to defend on appeal.

Because a specific statutory appeal exists, High Courts have generally discouraged the routine invocation of writ jurisdiction or the inherent powers of the criminal court to bypass Section 29 against interim orders, although the High Court's supervisory jurisdiction remains available in exceptional cases of jurisdictional error or manifest injustice. The respondent aggrieved by an ex parte order is thus presented with a layered set of remedies: first appear and seek vacation before the Magistrate, then, if necessary, appeal under Section 29, and seek modification under Section 25(2) if circumstances later change.

Drafting discipline: Form III, particulars and proof

For the practitioner, Section 23 turns on the quality of the affidavit. An ex parte order under sub-section (2) stands or falls on the Form III affidavit prescribed by Rule 7 of the 2006 Rules, so that affidavit must set out, with particularity, the specific acts of domestic violence, the dates and the immediacy of the apprehended harm, and the precise interim relief sought under Sections 18 to 22. Vague, omnibus allegations invite refusal of ex parte relief and damage credibility at trial.

Where interim maintenance is sought, the Rajnesh v. Neha Affidavit of Disclosure of Assets and Liabilities should accompany the application, with supporting material on the respondent's income and the aggrieved person's needs. A well-pleaded, properly verified application both maximises the chance of immediate protection and insulates the resulting order from challenge on appeal or under Section 25(2). The detailed mechanics of filing and proving an application are set out in the chapter on the procedure for obtaining reliefs.

Summary and examination pointers

Section 23 is best understood as two powers in one provision. Sub-section (1) is the broad power to grant interim relief that is "just and proper" in any pending proceeding, ordinarily after the respondent is heard. Sub-section (2) is the exceptional power to grant an ex parte order on a Form III affidavit (Rule 7) where the application prima facie discloses that the respondent is committing, has committed, or is likely to commit domestic violence. The standard is prima facie disclosure plus the Magistrate's recorded satisfaction; the safeguards are the sworn affidavit, the respondent's right to seek vacation, modification under Section 25(2) on changed circumstances, and appeal under Section 29.

For exams, anchor the discussion in the leading authorities: Kunapareddy (object of the Act and power to amend), Juveria Abdul Majid Patni (relief survives divorce), Krishna Bhatacharjee (continuing wrong and limitation), S.R. Batra as overruled by Satish Chander Ahuja (shared-household residence relief), Rajnesh v. Neha (disclosure affidavits for interim maintenance), and S. Vijikumari (prospective modification under Section 25). Keep returning to the unifying idea: Section 23 exists so that the protective promise of the Act is not defeated by delay.