Case at a Glance
A wife who had secured rent and maintenance orders under the Protection of Women from Domestic Violence Act asked the Bombay High Court to transfer her husband’s application to modify those orders from the Magistrate’s Court to the Family Court, where the couple’s divorce and other cases are pending. The High Court refused. It held that Section 26 of the DV Act lets other courts grant only the reliefs in Sections 18 to 22, not modification under Section 25(2), and that the Magistrate who passed the original order is the competent forum. No real hardship had been shown either.
In the wife’s domestic violence proceedings, the Magistrate’s Court at Andheri on 1 August 2019 awarded Rs. 20,000 a month as rent for alternate accommodation, Rs. 20,000 a month for the daughter’s maintenance and Rs. 25,000 a month for the wife. On cross-appeals, the Sessions Court at Dindoshi on 17 September 2022 raised the rent to Rs. 30,000 and fixed maintenance at Rs. 30,000. The High Court confirmed these orders on 30 April 2024, and on 27 August 2024 the Supreme Court disposed of the husband’s SLP after he stated that he would not challenge the findings on quantum.
In January 2026, after the Sessions Court held his modification application not maintainable before it and gave him liberty to approach the Magistrate under Section 25(2) of the DV Act, the husband applied to the Magistrate (M.A. No. 269 of 2026) to modify the orders on the ground of changed circumstances. The High Court had directed that application to be decided within a time frame, and had separately expedited the Family Court cases — a divorce petition filed in 2014, a restitution petition from 2016 and a 2026 maintenance counterclaim. The wife then sought transfer of M.A. No. 269 of 2026 to the Family Court under Section 24 of the Code of Civil Procedure.
The Key Question Before the Court
Can a husband’s application under Section 25(2) of the DV Act to modify maintenance and residence orders be transferred from the Magistrate to the Family Court under Section 24 CPC?
Why the Magistrate remains the right forum
The wife relied on Rohan Shah v. Nishigandha Shah (Bombay High Court) to argue that since Section 26 of the DV Act allows the Family Court to grant reliefs under Sections 18 to 22, it should also hear modification, and on N.C.V. Aishwarya v. A.S. Saravana Karthik, 2022 SCC OnLine SC 1199, for the weight to be given to a wife’s convenience in matrimonial transfers. She also pointed to her daughter’s schooling and the burden of attending two time-bound proceedings. The husband argued that she is a practising advocate who regularly appears before the Magistrate, that Section 2(i) makes the Magistrate the only competent forum and that Section 26 does not mention Section 25.
Justice Gauri Godse held that inconvenience was not made out: the daughter’s situation existed from the start, the courts are not far apart and distance was not even pleaded. On jurisdiction, she held that a transfer under Section 24 CPC can only be to a competent court, and Section 26 is “an enabling and supplementary provision” covering only Sections 18 to 22. Rohan Shah was decided on its facts, and “a transfer cannot be treated as an automatic statutory entitlement”. Following Rakesh Malhotra v. Krishna Malhotra, (2020) 02 SC CK 0034, the court that passed the original order exercises modification powers, and “the objective of speedy disposal, as prescribed under the DV Act, cannot be ignored”.
What the Court Actually Held
- The wife’s application under Section 24 CPC to transfer M.A. No. 269 of 2026 to the Family Court was dismissed.
- Section 26 of the DV Act covers reliefs under Sections 18 to 22 only; it does not confer specific jurisdiction on the Family Court over Section 25 modification applications.
- No justifiable hardship or inconvenience was shown to warrant transfer.
- The findings are limited to the transfer application; the modification application is to be decided by the Magistrate on its own merits.
Why This Judgment Matters
- It clarifies the forum for applications to modify or revoke DV Act orders, a common battleground after maintenance is awarded.
- It limits the reach of Rohan Shah: transfer of DV matters to the Family Court is fact-specific, not automatic.
- It stresses the speedy-disposal objective of the DV Act when parallel matrimonial cases are pending.
What Should Advocates Take Away From the Judgment?
For Aggrieved Women
- A husband’s plea to reduce DV Act maintenance will ordinarily be heard by the Magistrate who passed the order.
- Transfer requests need concrete, pleaded hardship such as distance, health or childcare constraints.
- Orders already confirmed up to the Supreme Court remain in force until modified.
For Counsel
- Section 25(2) applications lie before the Magistrate; Section 26 does not extend to modification.
- Cite Rakesh Malhotra v. Krishna Malhotra for the original court’s power to modify.
- Plead specific inconvenience in transfer applications; general assertions will not suffice.
Key Takeaways
- Section 26 of the DV Act lets civil and family courts grant reliefs under Sections 18 to 22, not Section 25 modifications.
- Transfer under Section 24 CPC is possible only to a court competent to try the matter.
- The Magistrate who passed the original DV Act order is the appropriate forum to modify it.
- Pendency of overlapping Family Court cases does not by itself justify transfer.
Frequently Asked Questions
Where should a husband apply to reduce maintenance awarded under the DV Act?
Under Section 25(2) of the DV Act, before the Magistrate. In this case the Bombay High Court held that the Magistrate, who passed the original order, is the competent forum.
Can DV Act proceedings be shifted to the Family Court?
Section 26 allows reliefs under Sections 18 to 22 to be sought in other proceedings, and transfers have been allowed on facts. But the High Court held this is not an automatic entitlement and does not extend to Section 25 modification applications.
Did the High Court decide whether maintenance should be reduced?
No. It only decided the transfer application. The husband’s modification application remains pending before the Magistrate, to be decided on its merits.
Conclusion
The ruling keeps modification of DV Act orders with the court that made them, in line with the Act’s scheme and its emphasis on speedy disposal, and cautions that the Family Court route under Section 26 has defined limits.
Practical takeaway: Before seeking transfer of DV Act proceedings, check whether the relief falls within Sections 18 to 22, and plead specific, provable hardship; modification under Section 25(2) should be pursued before the Magistrate.
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