Family Law • Domestic Violence • Interim Relief • Ex Parte Orders
Section 23 of the Domestic Violence Act: why it matters
Section 23 of the Protection of Women from Domestic Violence Act, 2005 gives the Magistrate power to pass interim orders during the pendency of proceedings and, in appropriate cases, to grant ex parte relief before the respondent is heard.
The provision is important because proceedings under the Domestic Violence Act frequently concern immediate questions of personal safety, residence, maintenance, access to children, protection of property and prevention of further acts of domestic violence. Waiting for completion of pleadings and evidence may defeat the purpose of the statute in a genuinely urgent case.
At the same time, an interim or ex parte order can substantially affect possession, finances, contact between parties, custody arrangements and property rights. Section 23 therefore has to be read carefully with Sections 12 and 18 to 22, the Protection of Women from Domestic Violence Rules, 2006, Section 25 concerning alteration or revocation, Section 28 concerning procedure and Section 29 concerning appeal.
What does Section 23 actually provide?
Section 23 contains two distinct powers.
Section 23(1) permits the Magistrate, in any proceeding under the Act, to pass such interim order as the Magistrate considers just and proper.
Section 23(2) permits an ex parte order where the Magistrate is satisfied that the application prima facie discloses that the respondent:
- is committing an act of domestic violence;
- has committed an act of domestic violence; or
- is likely to commit an act of domestic violence.
The ex parte order may be granted on the basis of the prescribed affidavit of the aggrieved person and may grant relief under Sections 18, 19, 20, 21 or 22.
The official statutory source is available at India Code — Protection of Women from Domestic Violence Act, 2005.
Interim order and ex parte order are not the same thing
The distinction is important in practice.
| Issue | Interim order under Section 23(1) | Ex parte order under Section 23(2) |
|---|---|---|
| Presence of respondent | May be passed after hearing both sides or during pending proceedings | May be passed before the respondent is heard |
| Statutory test | Order must be just and proper in the proceeding | Application must prima facie disclose past, continuing or likely domestic violence |
| Affidavit | No separate Section 23(2) Form III requirement merely because relief is interim | Prescribed affidavit is central to the statutory route |
| Available reliefs | Interim relief appropriate under the Act | Relief under Sections 18 to 22 |
A court order should therefore be analysed by its substance. Merely describing an order as “interim” does not answer whether it was passed after hearing, or ex parte under Section 23(2).
Form III affidavit: Rules 6(4) and 7
The Protection of Women from Domestic Violence Rules, 2006 prescribe the affidavit for ex parte relief.
Rule 6(4) provides that the affidavit filed under Section 23(2) shall be in Form III. Rule 7 similarly provides that every affidavit for obtaining an ex parte order under Section 23(2) shall be filed in Form III.
This is not a decorative filing requirement. Where urgent ex parte relief is sought, the affidavit is the evidentiary foundation on which the Magistrate is asked to act before hearing the respondent.
The Rules and Form III may be accessed through the official India Code materials relating to the Protection of Women from Domestic Violence Rules, 2006.
What is the prima facie test under Section 23(2)?
The expression prima facie means that the Magistrate is not finally deciding the truth of the allegations at the ex parte stage. The court examines whether the application and supporting material disclose a sufficient initial basis for urgent intervention.
The order should ordinarily demonstrate application of mind to matters such as:
- the alleged domestic relationship;
- the specific acts said to constitute domestic violence under Section 3;
- the urgency pleaded;
- the immediacy or likelihood of further harm;
- the particular relief sought;
- whether the relief corresponds to Sections 18 to 22;
- the documents or contemporaneous material placed before the court; and
- whether an ex parte direction is necessary rather than merely convenient.
The prima facie standard is lower than the final standard after evidence, but it is not the same as automatically accepting every allegation simply because the application uses the expression “domestic violence”.
Section 23 must be read with Section 12
Most proceedings begin with an application under Section 12. Section 12 permits an aggrieved person, Protection Officer or another person on her behalf to seek one or more reliefs under the Act.
Section 12(4) states that the Magistrate shall ordinarily fix the first date of hearing within three days of receipt of the application, while Section 12(5) requires the Magistrate to endeavour to dispose of the application within sixty days from the first hearing.
These statutory timelines underline the summary and protective nature of the remedy, but they do not dispense with the need for a legally sustainable factual foundation.
For the broader filing framework, see Section 12 Domestic Violence Act Proceedings: Filing, DIR, Interim Relief, Evidence, Jurisdiction, Limitation and Appeal.
What reliefs can be granted ex parte?
Section 23(2) expressly permits ex parte relief corresponding to Sections 18 to 22.
1. Protection order — Section 18
An interim or ex parte protection order may prohibit the respondent from committing or aiding domestic violence, contacting the aggrieved person, entering specified places, alienating assets in certain circumstances or engaging in other conduct covered by Section 18.
2. Residence order — Section 19
Urgent residence protection may concern dispossession, exclusion from a shared household, restraint on disturbing possession, alternate accommodation or other residence-related directions authorised by Section 19.
Residence orders require particular care because an interim direction may alter the physical status quo before detailed evidence is recorded. The court should distinguish between protecting an existing residential position and creating a materially new possession arrangement without a sufficient statutory foundation.
3. Monetary relief — Section 20
Section 23 may be used to grant interim monetary relief pending final adjudication. Depending on the pleadings and evidence, this may involve maintenance, loss of earnings, medical expenditure, loss caused by destruction or damage to property and other monetary consequences recognised by Section 20.
Where income is disputed, financial disclosure, bank records, salary material, tax records, lifestyle evidence, dependants, existing maintenance orders and overlapping proceedings become important.
4. Temporary custody — Section 21
The Magistrate may grant temporary custody of a child to the aggrieved person or to a person making the application on her behalf and may regulate visitation. The welfare and safety of the child remain central.
Where visitation by the respondent may be harmful to the interests of the child, Section 21 expressly empowers the Magistrate to refuse such visit.
5. Compensation — Section 22
Section 22 permits compensation and damages for injuries including mental torture and emotional distress caused by domestic violence. Because Section 23(2) refers to Section 22, an ex parte order may theoretically extend to that relief where the statutory conditions are met. In practice, courts should exercise care where quantification requires fuller evidence.
What should an application for interim or ex parte relief contain?
A legally focused application should not merely reproduce the language of Section 23. It should identify the exact urgent relief and the factual basis for it.
A useful structure ordinarily includes:
- the domestic relationship relied upon;
- the shared household or residence facts, where relevant;
- a concise chronology of alleged domestic violence;
- the most recent incident and the reason for urgency;
- the specific statutory relief under Sections 18 to 22;
- documents supporting the immediate allegation;
- financial material where monetary relief is sought;
- child-related facts where custody or visitation is involved;
- property and possession documents where residence relief is sought;
- the precise interim prayer; and
- the prescribed affidavit where Section 23(2) ex parte relief is sought.
Vague prayers such as “grant all reliefs deemed fit” are weaker than a prayer that identifies exactly what the Magistrate is being asked to restrain, direct, protect or preserve.
What material can support urgent ex parte relief?
Depending on the allegation, relevant material may include:
- medical records;
- police complaints or emergency-call records;
- Domestic Incident Report, where available;
- messages, emails or call records;
- photographs or CCTV material;
- proof of residence;
- property documents;
- bank statements and salary records;
- school records concerning children;
- prior protection, maintenance or custody orders;
- legal notices or contemporaneous correspondence; and
- affidavits from persons having direct knowledge.
Electronic evidence should be preserved in its original or otherwise legally provable form rather than only through cropped screenshots.
Can the Magistrate grant relief that was not sought?
The Act gives the Magistrate protective powers, but an interim order should remain tied to the statutory proceeding and the factual basis placed before the court. A serious fairness issue may arise where substantive relief is granted on a factual basis that the affected party never had an opportunity to meet, particularly after the respondent has entered appearance.
For ex parte relief, the order should remain closely connected to the application, affidavit, statutory powers and urgency shown.
Does a Domestic Incident Report have to exist before interim relief?
Section 12 requires the Magistrate, before passing an order on an application, to take into consideration any Domestic Incident Report received from the Protection Officer or service provider.
The statutory wording does not say that every proceeding becomes non-maintainable merely because no DIR has been received. The correct inquiry is whether a DIR exists and, if it has been received, whether the Magistrate considered it as required by Section 12.
Can an ex parte residence order alter possession?
Residence litigation is one of the most sensitive uses of Section 23. The operative language of Section 19 and the factual position of the premises must be examined closely.
Questions that commonly arise include:
- whether the premises are a shared household;
- whether the aggrieved person presently resides there or previously resided there in a domestic relationship;
- who is in actual possession;
- whether the property belongs to a third party;
- whether the order protects possession or effectively restores or creates possession;
- whether the relief sought is restraint, re-entry, alternate accommodation or police assistance; and
- whether the operative direction is broader than Section 19 permits on the facts.
Because implementation can sometimes be difficult to reverse, a residence order should be drafted and challenged by reference to its exact operative consequences rather than by labels alone.
Police assistance and Section 23 orders
Police assistance may be directed in aid of protection or residence relief where legally warranted. However, police are expected to enforce the judicial order, not enlarge it.
For example, a direction to protect an existing position should not automatically be treated as authority to create a new state of possession, break locks, remove third parties or deliver possession unless the operative judicial order lawfully authorises that consequence.
Where implementation is disputed, the exact wording of the order, execution record, police report, photographs, video and contemporaneous objections may become important in appeal or modification proceedings.
What can the respondent do after an ex parte order?
An ex parte order does not mean that the respondent has no remedy. The appropriate route depends on the nature of the order and the grievance.
Possible steps include:
- enter appearance promptly and obtain the complete application, affidavit and relied-upon material;
- file a detailed reply supported by documents;
- seek vacation, modification or appropriate reconsideration before the Magistrate where legally maintainable;
- invoke Section 25(2) where there is a qualifying change in circumstances requiring alteration, modification or revocation;
- file an appeal under Section 29 where the order itself is legally or factually unsustainable; and
- seek interim stay before the Sessions Court if immediate enforcement would cause serious prejudice.
The stronger course is to identify whether the complaint is about the original legality of the order or a subsequent change in circumstances. Those are different legal grounds.
Section 25(2): modification, alteration or revocation
Section 25(2) permits the Magistrate, on an application by the aggrieved person or respondent, to alter, modify or revoke an order where there is a change in circumstances requiring such intervention.
This is not automatically a substitute for an appeal. If the contention is that the order was wrong on the material available when it was passed, Section 29 may be the more direct remedy. If circumstances later changed, Section 25(2) becomes particularly relevant.
Appeal under Section 29
Section 29 provides an appeal to the Court of Session within 30 days from the date on which the Magistrate’s order is served upon the aggrieved person or the respondent, whichever is later.
An appellant challenging an interim or ex parte order should usually identify:
- the exact operative paragraph challenged;
- the statutory power invoked;
- why the prima facie test was not met;
- any suppression or material omission;
- lack of jurisdiction;
- relief beyond the pleadings;
- third-party rights affected;
- absence of reasons or non-application of mind;
- irreversible prejudice from enforcement; and
- the exact interim stay required.
For the appellate framework, see Section 29 Domestic Violence Act Appeal: Limitation, Stay, Grounds and Sessions Court Procedure.
Does filing an appeal automatically stay the Section 23 order?
No. The filing of an appeal does not by itself suspend the order. Where urgent protection is necessary, the appellant should seek a specific interim stay or other protective direction from the Sessions Court.
The stay prayer should match the actual prejudice. A targeted request to suspend a possession-changing direction, police-aid clause or recovery step is often more precise than a general request to “stay the entire proceedings”.
Procedure under Section 28
Section 28 provides the procedural framework for proceedings under Sections 12, 18 to 23 and for offences under Section 31. Importantly, Section 28(2) preserves the court’s power to lay down its own procedure for disposal of an application under Section 12 or under Section 23(2).
This procedural flexibility does not remove substantive safeguards. The Magistrate must still act within the statute, provide a fair opportunity at the appropriate stage and pass an order referable to the powers conferred by the Act.
Breach of an interim protection order
Section 31 makes breach of a protection order or interim protection order an offence punishable with imprisonment which may extend to one year, or fine which may extend to ₹20,000, or both.
Because criminal consequences may follow breach of an interim protection order, its operative terms should be clear enough for the respondent to understand precisely what conduct is prohibited.
Common mistakes by applicants
- seeking ex parte relief without filing the prescribed Form III affidavit;
- using conclusions instead of dates, incidents and supporting facts;
- failing to explain urgency;
- seeking a residence order without clearly pleading the shared-household facts;
- seeking maintenance without financial particulars;
- failing to disclose existing maintenance or custody proceedings;
- seeking relief against property or persons without pleading the legal basis; and
- asking for broad police powers without identifying the exact protective direction required.
Common mistakes by respondents
- assuming an ex parte order can simply be ignored;
- delaying appearance while enforcement continues;
- filing a general denial without answering the urgent factual allegations;
- failing to produce possession, ownership or income documents immediately;
- challenging the order without identifying the statutory error;
- confusing Section 25 modification with Section 29 appeal;
- failing to seek stay while pursuing the appeal; and
- allowing the factual position to change irreversibly before approaching the appellate court.
Practical checklist for an ex parte Section 23 order
When reviewing such an order, examine:
- Was the proceeding under the Domestic Violence Act properly instituted?
- What exact relief was sought?
- Was the Form III affidavit filed?
- What prima facie finding did the Magistrate record?
- What specific act of past, continuing or likely domestic violence was identified?
- Which of Sections 18 to 22 supports the operative relief?
- Did the order affect possession, property or third-party rights?
- Was police assistance granted, and what exactly does it authorise?
- Has the order been served, and on what date?
- Is the grievance about original illegality or changed circumstances?
- Is Section 29 appeal required?
- Is urgent interim stay required to preserve the subject matter?
Frequently asked questions
Can a Magistrate pass an interim order under Section 23 without finally deciding domestic violence?
Yes. Section 23 is an interim provision. The court acts on a prima facie assessment at that stage, while final findings may follow after fuller hearing and evidence.
Can an ex parte order be passed before the respondent appears?
Yes, where the requirements of Section 23(2) are met and the prescribed affidavit supports a prima facie case for urgent relief.
Which affidavit is required for ex parte relief?
Rules 6(4) and 7 of the Protection of Women from Domestic Violence Rules, 2006 prescribe Form III for an affidavit under Section 23(2).
What relief can be granted ex parte?
Section 23(2) permits ex parte relief under Sections 18, 19, 20, 21 and 22, covering protection, residence, monetary relief, temporary custody and compensation.
Can interim maintenance be granted under Section 23?
Yes. Section 23 may be read with Section 20 for interim monetary relief, subject to the facts, financial material and other maintenance orders.
Can a residence order be passed ex parte?
Yes, where the statutory requirements are met. Because residence orders can materially affect possession and third-party rights, the factual and statutory basis should be examined carefully.
Can an ex parte order be appealed?
Yes. A substantial order of the Magistrate under the Act may be challenged under Section 29 before the Court of Session, subject to limitation and maintainability in the facts of the case.
What is the limitation for a Section 29 appeal?
Thirty days from the date on which the Magistrate’s order is served on the aggrieved person or respondent, whichever is later.
Does an appeal automatically stay the order?
No. Interim stay should ordinarily be specifically sought from the appellate court.
Can the Magistrate modify an interim order later?
Section 25(2) permits alteration, modification or revocation where a change in circumstances requiring such relief is established.
Conclusion
Section 23 is the emergency-relief mechanism of the Domestic Violence Act, but its breadth does not make it unstructured. An interim order must be just and proper, while an ex parte order under Section 23(2) requires a prima facie statutory foundation and the prescribed affidavit.
The strongest Section 23 litigation—whether for the applicant or the respondent—focuses on the exact statutory relief, urgency, evidence, current factual position, operative consequences and correct remedy against the order. Where an interim direction affects residence, possession, maintenance, custody or police enforcement, delay in seeking modification or appellate protection can materially alter the position before final adjudication.
This article is for legal education and general information only. It is not solicitation or case-specific legal advice. Domestic Violence Act proceedings are fact-sensitive, and the correct remedy depends on the exact application, affidavit, order, date of service, relief granted, jurisdiction and procedural record.