Interim and Ex Parte Orders: Section 23 of the Domestic Violence Act, 2005

Domestic violence is an emergency jurisdiction, and Section 23 is its emergency power. Sub-section (1) lets the Magistrate pass any interim order that is just and proper; sub-section (2) goes further and permits an ex parte order, before the respondent is even heard, on the woman's affidavit, granting on an interim basis anything Sections 18 to 22 could grant finally: protection, residence, money, custody, even compensation. The section is the reason a dispossessed woman can be back in her home, with interim maintenance flowing, within days of filing. This note explains both powers, the principles that discipline them, and the balance they strike with natural justice.

1. The Text of Section 23

The two sub-sections do different work. Sub-section (1) is the general interim power: at any stage of any proceeding, after notice and hearing in the ordinary course, the Magistrate may hold the position with whatever order is just and proper. Sub-section (2) is the emergency valve: where the application prima facie discloses past, present or likely domestic violence, an order may issue ex parte, on the affidavit in Form III, under any of the five relief sections. The threshold phrase mirrors Section 18: violence committed, being committed, or likely to be committed, so a credible threat suffices.

2. What Interim Orders Can Do

Because sub-section (2) expressly reaches Sections 18 to 22, the interim menu is the final menu, held for the meanwhile:

• Interim protection (Section 18): immediate restraint on violence, contact, entry to her workplace, and the asset freeze over accounts, lockers and stridhan, often the most urgent order of all, obtained before assets can vanish.
• Interim residence (Section 19): restraint on dispossession, restoration of a woman already thrown out, restraint on alienation of the household, or interim alternative accommodation or rent.
• Interim monetary relief and maintenance (Section 20): subsistence cannot await judgment; interim maintenance from the date of application is the working rule, fixed on the Rajnesh v. Neha disclosure affidavits and adjusted in the final order.
• Interim custody (Section 21): temporary custody and visitation arrangements at the first hearing, with visits refused where harmful.
• Interim compensation (Section 22): rarer, but available in fit cases, for instance an immediate payment towards treatment of grave injuries.

Interim orders bind exactly as final orders do: breach of an interim protection order is expressly an offence under Section 31(1), cognizable and non-bailable under Section 32.

3. The Governing Principles

The power is broad; its exercise is principled. The working considerations track the classic interim trilogy, adapted to this jurisdiction:

1. Prima facie case: a specific, credible account of domestic violence or its likelihood, in the application and Form III affidavit, vague and omnibus allegations earn no ex parte orders.
2. Irreparable harm and urgency: danger to person, imminent dispossession, threatened disposal of assets, a child at risk, harms that hearing-first would allow to happen.
3. Balance of convenience, protectively weighted: the Act tilts the scale towards safety; an order that restrains violence or preserves assets costs a law-abiding respondent little, while its refusal may cost the woman everything.
4. Proportionality: ex parte relief is moulded to the emergency, restraint and preservation readily; drastic orders such as removal of the respondent from the household under Section 19(1)(b) are ordinarily reserved for hearing both sides unless the danger is extreme.
5. Candour: an applicant seeking orders behind the respondent's back owes full and frank disclosure; suppression is ground for vacating the order.

4. After the Ex Parte Order: Service, Hearing and Modification

An ex parte order is the beginning of the respondent's rights, not their end:

• Immediate service: the order and the application are served on the respondent under Section 13, through the Protection Officer, within two days of receipt, with the next hearing fixed.
• A prompt hearing: the respondent appears, files his reply and disclosure affidavit, and the interim arrangement is confirmed, varied or vacated on hearing both sides; the sixty-day aspiration of Section 12(5) keeps the interim phase short.
• Modification and vacation: under Section 25(2), on a change of circumstances, and by reasoned order, any order under the Act, interim included, may be altered, modified or revoked; a respondent who shows the ex parte order was obtained by suppression or on false material may have it vacated and, in an appropriate case, the record corrected.
• Appeal: interim orders under the Act are appealable under Section 29 within thirty days, the respondent's regular remedy, in preference to petitions under Section 528 BNSS, which lie only against gross illegality or abuse of process (Shaurabh Kumar Tripathi v. Vidhi Rawal, 2025 INSC 734).

5. Duration

An interim order lives until it is replaced: it operates during the pendency of the proceeding and merges into, or is superseded by, the final order under Sections 18 to 22; an interim protection order, like a final one, continues until discharge or modification (Sections 25(1) and (2)). Interim maintenance paid is adjusted in the final award, and against any parallel maintenance obtained elsewhere, per Rajnesh v. Neha, (2021) 2 SCC 324. If the application fails on merits, interim orders fall with it, though amounts paid as maintenance are ordinarily not recoverable.

6. Emergency Protection and Natural Justice

Ex parte power is an exception to audi alteram partem, and the section keeps the exception honest by a familiar constitutional bargain: postponed, not denied, hearing. The justification is necessity, notice to a violent respondent can itself trigger the harm feared, assets can be moved in the time a summons takes; the safeguards are the sworn affidavit, the prima facie threshold, immediate service and early inter partes hearing, the reasoned-modification power of Section 25(2), and the appeal under Section 29. Courts administering the section walk that line daily: prompt and protective on genuine urgency, alert to the misuse of ex parte orders as litigation weapons, and quick to restore balance once both voices are before them.

7. Related Topics and Provisions