Challenge To Interim Orders Under DV Act Maintainable U/S 528 Of BNSS Only If There Is Illegality Or Irregularity: Kerala High Court

The Kerala High Court has recently held that a petition seeking exercise of inherent powers to set aside an interim order passed under Section 12(1) the Protection of Women from Domestic Violence Act, 2005 (PWDV Act/DV Act) is not maintainable if the same does not suffer from any blatant irregularity or illegality.Justice G. Girish observed that as per the law laid down by the Supreme Court, High Courts must exercise restraint in exercising inherent powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).For context, as per Section 12(1) of the DV Act, an aggrieved person or a Protection Officer may present an application before the Magistrate seeking any relief provided under the Act and the Magistrate can grant such reliefs after taking into consideration any domestic incident report received.Section 528 BNSS provides for the inherent powers of the High Courts, empowering them to pass orders so as to give effect to any order under the BNSS, or to prevent abuse of the process of any Court or to secure the ends of justice. The corresponding provision under the Cr.P.C. (Code of Criminal Procedure) was Section 482.The present petition was filed as a Criminal Miscellaneous Case (Crl.M.C) before the High Court seeking to set aside an interim order passed by Grama Nyayalaya, Vellanadu. However, the Registry noted a defect and did not number the case. According to the Registry, since there was an appeal provision provided under Section 29 of the Act, the present petition under Section 528 BNSS was not maintainable.The Court referred to the decisions of the Apex Court in Vijayalekshmi Amma V.K.(Dr.) v. Bindu V. (2010), Naresh Potteries (M/s.) v. M/s. Aarti Industries and Shaurabh Kumar Tripathi v. Vidhi Rawal.Relying on the aforesaid decisions, the Court observed that High Courts must be slow and circumspect when exercising inherent powers in interfering with orders passed under Section 12(1) of the DV Act.It remarked: “The essence of the law laid down in the aforesaid decision is that only in cases where there is manifest illegality and blatant irregularity of the proceedings, the High Court will be justified in exercising the jurisdiction under Section 482 Cr.P.C. to unsettle the orders passed by the Magistrate under the provisions of the PWDV Act.…unless the court show restraint in exercising the jurisdiction under Section 482 Cr.P.C, while dealing with the prayer for quashing proceedings under the PWDV Act, 2005, the very object of enacting the PWDV Act, 2005, will be defeated.”Noting that there is no gross illegality or blatant irregularity in the present case, the Court refused to entertain the matter. The Court found that the petitioner may approach the same court for modifying or setting aside the order. Otherwise, he may prefer an appeal as per Section 29 of the DV Act. Thus, the Court upheld the defect noted by the Registry and directed it to return the petition to the petitioner.Case Title: Titus v. State of Kerala and Anr.Case No: Crl.M.C. No. 5751 of 2025 (Filing No.)Citation: 2025 LiveLaw (Ker) 388Counsel for the petitioner: M.R. SarinCounsel for the respondents: Public Prosecutor – R1Click to Read/Download Order

Challenge To Interim Orders Under DV Act Maintainable U/S 528 Of BNSS Only If There Is Illegality Or Irregularity: Kerala High Court

K. Salma Jennath

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