Daily Archives: January 18, 2016

Grant AB 2 relatives accused in DV case DONOT pass general orders U/s 18 DV, be specific. Kerala HC

Hon Kerala HC grants Anticipatory bail to relatives accused of assaulting a woman !! and also advises Hon MM courts to pass specific order (NOT general ones) under Sec 18 DV act.

The Hon court goes on to say “…Passing a general or vague order like the present one under Section 18(a) may result in unfortunate consequences. If such an order is passed breach of the direction granting residential order under Section 19 or monetary relief under Section 20 or compensation order under Section 21 or custody order under Section 22 also will become punishable under Section 31(1), which is not contemplated by the Act. If a blanket order is passed, even failure to pay maintenance will attract Section 31(1)….” IMHO, This means the Hon HC is clear that NON payment of maintenance is NOT covered by Sec 31 and so no arrest for the same !!


IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.ABRAHAM MATHEW

FRIDAY, THE 26TH DAY OF JUNE 2015/5TH ASHADHA, 1937

Bail Appl..No.267 of 2015


CRIME NO.1033/2014 OF MUVATTUPUZHA POLICE STATION,ERNAKULAM.

PETITIONER’S/ACCUSED:
************************************-
1. JABBAR,AGED 41 YEARS,S/O.PAREETH,
VALIYAVEETIL HOUSE,PANAYIKULAM P.O.
ALANGAD VILLAGE,ERNAKULAM.

  1. SHAHITHA,AGED 37 YEARS,D/O.PAREETH,
    VALIYAVEETIL HOUSE,PANAYIKULAM P.O.
    ALANGAD VILLAGE,ERNAKULAM.

BY ADV.SMT.P.R.REENA

RESPONDENT’S/COMPLAINANT & STATE:
************************************************************-
1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM,PIN – 682 031.

  1. SUB INSPECTOR OF POLICE,
    BINANIPURAM POLICE STATION,
    ERNAKULAM DISTRICT,PIN – 683 502.

BY PUBLIC PROSECUTOR SMT.REMA.R.

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 26-06-2015, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:

K. ABRAHAM MATHEW, J.


B.A.No. 267 of 2015
* * * * * * * * * * * * * * * * * * * * * –
Dated this the 26th day of June, 2015

O R D E R

Petitioners are accused 1 and 3 in Crime No. 1033 of 2014 of Binanipuram Police Station registered for the offences under Section 323 IPC and Section 31 of the Protection of Women from Domestic Violence Act, 2005. They are brother and sister. The wife of the first petitioner filed an application against them and the co-accused under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Learned Magistrate passed an interim order on 05.05.2014. The petitioners herein were prohibited from alienating or encumbering the shared household and also from committing “any sort of domestic violence” against the petitioner in the M.C. A case has been registered against the petitioners on the allegation that in violation of the interim order they assaulted the petitioner in the M.C. and thereby they have committed the offences under Section 323 IPC and Section 31(1) of the Protection of Women from Domestic Violence Act. They pray that they may granted anticipatory bail. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Section 323 IPC is a bailable offence. The offence under Section 31(1) of the Protection of Women from Domestic Violence Act, 2005 is a cognizable and non-bailable offence though it is punishable only with imprisonment which may extend to one year or with fine which may extend to Rs.20,000/* or with both. But to attract the section the order passed by the Magistrate should be a protection order passed under Section 18 of the Act. It may be interim or final order. Violation of an order passed under any other section does not amount to an offence.

The direction in the impugned order not to alienate or encumber the properties is a protection order covered by Section 18(e) of the Act. But there is no allegation that the petitioners herein have committed breach of this direction.

The other direction is that they shall not commit any domestic violence, which obviously was passed under Section 18(a) of the Act. This is not a specific order.

Passing a general or vague order like the present one under Section 18(a) may result in unfortunate consequences. If such an order is passed breach of the direction granting residential order under Section 19 or monetary relief under Section 20 or compensation order under Section 21 or custody order under Section 22 also will become punishable under Section 31(1), which is not contemplated by the Act. If a blanket order is passed, even failure to pay maintenance will attract Section 31(1). So while passing an order under Section 18(a) of the Act Magistrates shall not direct that the respondent is prohibited from doing any act of domestic violence; the act sought to be prohibited shall be specifically stated in the order, the nature of which shall depend on the facts alleged in the petition.

This is a fit case to grant anticipatory bail. In the result, this application is allowed.

The petitioners shall be released on bail on their executing a bond for Rs.20,000/* (Rupees twenty thousand only) each with two solvent sureties each for the like sum if they are arrested by the Police in connection with this case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Sd/-

K. ABRAHAM MATHEW, JUDGE

DST //True copy// P.A. To Judge

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

 

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NO arrest for NON PMT of DV maintnance arrears. Non pmt does NOT attract sec 31 DV act. Kar HC

In this classic case a husband is threatened with arrest under sec 31 of DV act for non payment of arrears maintenance. Wife files NBW. He files for discharge (from that charge & NBW) . The discharge is NOT allowed by the Hon MM and Hon Sessions courts (both courts dismiss is petition). So Husband appeals to the Hon Karnataka HC which refers to an order by the Hon Rajasthan HC and decrees that a maintenance order is NOT a protection order (under sec 18) and so coercive provisions of sec 31 (like arrest) cannot be applied for NON payment of maintenance !!

The Hon court orders and we quote “….9. On a plain reading of Section 18 in the light of definition found under Section 2(o), it could be definitely said that the order of granting maintenance does not amount to “protection order” and violation of the same will not attract the provisions of Section 31 of the above Act. ….”

and goes on to order “…the petitioner stands discharged for offence punishable under sect ion 31 of P.W.D.V Act 2005…..”

So the wife has to go file execution for collecting her dues !!


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18 TH DAY OF DECEMBER 2015

BEFORE THE HON’BLE MR.JUSTICE A.V.CHANDRASHEKARA

CRIMINAL REVISION PETITION NO.758 OF 2015

BETWEEN :

MR. FRANCIS CYRIL C CUNHA
AGED ABOUT 52 YEARS
S/O SYLVESTER D/CUNHA
RESIDING AT DEEPTHI COTTAGE
KALLABETTU POST, GANTALKATTE
MOODBIDRI, MANGALORE TALUK – 515 006 … PETITIONER
(BY SRI.THARANATH POOJARY.I., ADV.)

AND:

SMT, LYDIA JANE D’CUNHA
AGED ABOUT 42 YEARS
W/O FRANCES CYRIL D’CUNHA
RESIDING AT URPALPADE HOUSE
KALLABETTU POST, MANGALORE TALUK – 575 006 … RESPONDENT
(BY SRI. G.BALAKRSIHNA SHASTRI )

THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 04.02.2014 PASSED BY THE R 2 PRINCIPAL S.J., D.K., MANGALORE IN CRL.A.NO.211/2013 UPHOLDING ORDER DATED 28.02.2013 PASSED BY THE C.J. AND J.M.F.C., MOODBIDRI, D.K., IN C.C.NO.327/2012 DISMISSING THE DISCHARGE APPLICATION FILED BY THE PETITIOENR FOR THE OFFENCE P/U/S 31 OF THE PROTECTION OF WOMEN AGAINST THE DOMESTIC VIOLENCE ACT AND DISCHARGE THE PETITIOERN OF THE SAID OFFENCE.

THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:

O R D E R

  1. Present petition is filed under Section 397 of Cr.P.C. challenging the order of the learned Civil Judge, Moodbidri passed on 28.02.2013 in C.C. No.327/2012 and the confirmation of the same by the learned Sessions Judge, Mangaluru in Crl.A.No.211/2013. Petitioner is the accused in C.C.No.327/2012 and th e Trial Court has issued process against the accused for offences punishable under Section 31 of Protection of Women from Domestic Violence Act, 2005 (For short ‘Act’ herein afterwards). An application was filed under Section 239 of Cr.P.C. seeking discharge. The said application came to be dismissed after contest as against which an appeal was filed in terms of secti on 29 of the said Act before the Sessions Court at Mangal uru. The appeal is dismissed and thereby the order of th e Trial court is confirmed.
  2. The facts leading to the present revision petition are as follows: Petitioner is the legally wedded husband of the respondent. Respondent has chosen to file a case i n Crl.Misc.No.115/2009 under section 12 of the Act seeing various releifs against this petitioner befo re the Court of JMFC Moodbidri, Mangalore Taluk. By virtue of the order dated 01.03.2010, the learned JMFC cho se to award maintenance @ Rs.4,000/- per month to the respondent and her daughter. This order dated 01.03.2010 has become final.
  3. An application was filed to recover the arrears of maintenance pursuant to the order dated 01.03.2010 passed in Crl.Misc.No.115/2009 in MC No.256/2012. In accordance with the order dated 01.03.2010 passed in Crl.Misc. No.115/2009, recover y of the entire arrears of maintenance was sought but the executing court, applying the provisions of Section 125(3) of Cr.P.C. allowed to recover a sum of Rs.32,000/- only being the arrears for one year pri or to the filing of the application for recovery and that order is not challenged in any manner. ahttp://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4.  private complaint was filed by the respondent in PCR No.96/2012 before the JMFC Court on 22.09.2012 requesting the court to take cognizance under Section 31 of the Act to issue summons for no t paying the entire arrears of maintenance. Cognizance was taken and summons were issued. After appearing before the court an application was filed in terms of Section 239 of Cr.P.C. to discharge him and said application came to be dismissed. Dismissal of the said application is confirmed by the Sessions Court. He nce the present revision petition is filed under section 397 of Cr. PC.
  5. The short point that arises for consideration by this court is as under:- “ Whether penal provision found in Section 31 of Protection of Women from Domestic Violence Act, 2005 could be invoked for non-payment of arrears of maintenance?”
  6. While disposing of Crl.Misc. No. 115/2009 on 01.03.2010, the learned judge has passed the following order:- “The petition filed by the petitioners no.1 and 2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is hereby allowed. The respondent is hereby restrained from entering the school/college or any other places where the petitioner no.2 is studying. The respondent is hereby directed to stay away from the dependants, relatives or any other persons from the petitioner No.1 and 2 from committing violence against them. The respondent is hereby restrained from attempting to contact the petitioner no.2 either at the school or any other place. The respondent is hereby restrained from alienating, disposing, encumbering the shared household which is described in the petition schedule. The respondent is hereby directed to pay the maintenance of Rs.4,000-00 to the petitioner no.1 and 2 per month from the date of the petition.”
  7. It is true that all orders other than the one relating to maintenance are perfect protection orde rs within the purview of Section 18 of the Act. Sect ion 18 is reproduced below:- “Section 18 – Protection Orders. – The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from – (a) committing any act of domestic violence; (b) aiding or abetting in the commission of acts of domestic violence; (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person; (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact; (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate; (f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence; (g) committing any other act as specified in the protection order.”
  8. The words “Protection Orders” are defined in Section 2(o) of the above Act and the same is extr acted below:- 2(o) – “Protection Order” means an order made in terms of Section 18.”
  9. On a plain reading of Section 18 in the light of definition found under Section 2(o), it could be definitely said that the order of granting maintenance does not amount to “protection order” and violation of the same will not attract the provisions of Section 31 of the above Act.
  10. Section 31 of the above Act is reproduced below in its entity:- “ Section 31. Penalty for breach of protection order by respondent.- (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. (2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-section (1), the Magistrate may also frame charges under Section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”
  11. Section 28 of the above Act deals about the applicability of certain provisions of Cr.P.C. to t he provision of this Act. Except as provided in this case, all proceedings under Sections 12, 15,18, 20, 21, 2 2 1 and 23 and offences under Section 31 shall be gover ned by the provisions of Cr.P.C.
  12. Certain rules have been framed under Section 37 of the Act which enables the Central Government to make rules.
  13. Rule 15 of the Protection of women from Domestic Violence Rules, 2006 deals about the breac h of protection order. It is extracted below:
    • “Breach of Protection Orders.-
    • (1) An aggrieved person may report a breach of protection order or an interim protection order to the Protection Officer.
    • (2) Every report referred to in sub-rule (1) shall be in writing by the informant and duly signed by her.
    • (3) The Protection Officer shall forward a copy of such complaint with a copy of the protection order of which a breach is alleged to have taken place to the concerned Magistrate for appropriate orders.
    • (4) The aggrieved person may, if she so desires, make a complaint of breach of protection order or interim protection order directly to the Magistrate or the police, if she so chooses.
    • (5) If, at any time after a protection order has been breached, the aggrieved person seeks his assistance, the protection officer shall immediately rescue her by seeking help from the local police station and assist the aggrieved person to lodge a report to the local police authorities in appropriate cases.
    • (6) When charges are framed under section 31 or in respect of offences under section 498A of the Indian Penal Code, 1860 (45 of 1860), or any other offence not summarily triable, the Court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal procedure, 1973 (2 of 1974) and proceed to summarily try the offence of the breach of Protection Order under section 31, in accordance with the provisions of Chapter 13 XXI of the Code of Criminal Procedure, 1973 (2 of 1974).
    • (7) Any resistance to the enforcement of the orders of the Court under the Act by the respondent or any other person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order covered under the Act.
    • (8) A breach of a protection order or an interim protection order shall immediately be reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as provided under sections 31 and 32.
    • (9) While enlarging the person on bail arrested under the Act, the Court may, by order, impose the following conditions to protect the aggrieved person and to ensure the presence of the accused before the court, which may include –
      • (a) an order restraining the accused from threatening to commit or committing an act of domestic violence;
      • (b) an order preventing the accused from harassing, telephoning or making any contact with the aggrieved person;
      • (c) an order directing the accused to vacate and stay away from the residence of the aggrieved person or any place she is likely to visit;
      • (d) an order prohibiting the possession or use of firearm or any other dangerous weapon;
      • (e) an order prohibiting the consumption of alcohol or other drugs;
      • (f) any other order required for protection, safety and adequate relief to the aggrieved person.”
  14. Hon’ble High Court of Rajasthan had an opportunity to discuss the applicability of the pro visions of Section 31 of the above Act in regard to the non -compliance of the order relating to the non-payment of arrears of maintenance. What is held by the Hon’bl e High Court of Rajasthan is that breach of order of monetary relief will not pave way to prosecute the husband. It is made clear that section 31of the Ac t does not include monetary relief. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  15. In the present case, the provisions of Section 31 of the Act was pressed into service before the trial court essentially on the ground that arrears of the maintenance was not paid and therefore it paved for penal action under Section 31 of the Act. The learned judge of the trial court has construed that even the non-payment of the arrears of maintenance amounts to the violation of protection order and thereby Section 31 could be invoked.
  16. What is argued by Sri. G. Balakrishna Shastri, learned counsel representing the respondent is that the non-payment of the arrears of maintenance amounts to domestic violence and therefore Section 31 is applicable.
  17. Providing two separate reliefs, one under Section 18 of the Act for protection and another for monetary relief under Section 20 of the Act will have to be taken into consideration while analyzing the scope of Section 31 of the Act. If protection order was inclusive of monetary relief of granting maintenance, Section 20 of the Act would not have been separately provided for.
  18.  After going through the records and the decision rendered by the High Court of Rajasthan in the case of SMT.KANCHAN .v. VIKRAMJEET SETIYA (2013 CrL.L.J. 85, this court does not find any reason to take a view different from the one taken by the Hon’ble High Court of Rajasthan. As already discussed, the High Court of Rajasthan has exhaustively dealt with the scope of Section 31 of the Act in the light of Sect ions 2 (o), (k), 12,18, 20 and 28 of the Act. In this view of the matter, the approach of the trial court in taking cognizance of the offence under Section 31 of the A ct ia a glaring legal error and hence the same will have to be set aside. Consequently the revision petition will have to be allowed and the order of the JMFC passed on 28.2.2013 and affirmed in Crl.A.211/13 will have to be set aside.
  19. In the result, the following order is passed:

O R D E R

The revision petition is allowed. The order dated 28.2.2013 passed in C.C.327/12 and affirmed in Crl.A.211/13 are set aside. Consequently the petitioner stands discharged for offence punishable under sect ion 31 of P.W.D.V Act 2005.

Send a copy of this order to the Trial Court.

Sd/-

JUDGE

BSV/vgh*

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

 

Magistrate CANNOT order Nonbailable warrant for failure to pay DV maintenance. NBW quashed! Kerala HC

Classic case where Kerala HC clearly states “….Learned Magistrate cannot order non bailable warrant for the failure to pay maintenance as has been done in this case. It is made clear that Magistrate can proceed against the petitioner or other respondents for non payment of the interim maintenance only as provided under Protection of Women from Domestic Violence Act and such an order cannot be enforced as has been done by the learned Magistrate. In such circumstances, the order issuing non bailable warrant can only be quashed. Petition is allowed. The order issuing non bailable warrant against the petitioner in M.C.No. 246/2010 is quashed…..”


IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4843 of 2010()

1. SHANAVAS, S/O.ABDULSALAM,…  Petitioner

Vs

1. RASEENA, D/O.SHIHABUDEEN,…       Respondent
2. STATE OF KERALA,

For Petitioner          :SRI.AYYAPPAN SANKAR
For Respondent      :No Appearance

The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :10/12/2010

O R D E R

M.Sasidharan Nambiar, J.

Crl.M.C.No.4843 of 2010

ORDER

  1. First respondent, through her mother, filed petition under Section 12 of Protection of Women from Domestic Violence Act before Judicial First Class Magistrate’s Court-II, Thiruvananthapuram, which was numbered as M.C.No.246/2010. First respondent also filed a petition for interim order under Section 23 of Protection of Women from Domestic Violence Act. By Annexure-II ex parte order dated 24.9.2010, respondents therein were restrained from committing any sort of domestic violence against the first respondent herein. Petitioner, the first respondent therein, was directed to appear before the court on 7.10.2010 and surrender his passport. He was also directed to pay Rs.1,500/- per month towards maintenance to the aggrieved person. Notice was ordered to the respondents therein, including the petitioner. Petitioner, along with the third respondent, challenged that order before Sessions Court, Thiruvananthapuram in Crl.A.No.758/2010. It is pending. They also sought an order staying Annexure-II  order. By Annexure-IV order, learned Sessions Judge stayed only the direction to surrender the passport. Annexure-VI, copy of the proceedings paper in M.C.No. 246/2010, shows that case was posted to 19.10.2010 and on that day, learned Magistrate directed the petitioner to appear in person and pay maintenance. On that day, case was posted to 2.11.2010. On 2.11.2010, petitioner was absent. The case was then posted to 18.11.2010. On 18.11.2010 recording that petitioner was absent and there was no payment of interim maintenance ordered, non bailable warrant returnable on 9.12.2010 was issued. This petition is filed under Section 482 of Code of Criminal Procedure for a direction to the learned Magistrate to dispose the petition filed under Section 12 of Protection of Women from Domestic Violence Act expeditiously and to stay the order issuing non bailable warrant.
  2. In the light of the order to be passed in this petition, it is not necessary to issue notice to the first respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. Section 23(1) of Protection of Women from Domestic Violence Act provides that in any proceeding  before the Magistrate, he 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 respondent is committing or has committed an act of domestic violence or that there is likelihood that 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 Sections 18, 19, 20, 21 or 22 against the respondent.
  4. Section 31 of Protection of Women from Domestic Violence Act provides for penalty for breach of protection order. Under sub-section (1), a breach of protection order or of an interim protection order by the respondent shall be an offence and shall be punishable with imprisonment for a term which may extend to one year or fine or both. Section 32 provides that notwithstanding anything contained in the Code of Criminal Procedure, the offence under sub-section (1) of Section 31 shall be cognizable and non bailable.
  5. As is clear from Section 31 of Protection of Women from Domestic Violence Act, when an order under  Section 23, whether under sub-section (1) on hearing the respondent or under sub-section (2), an ex parte interim protection order, was passed and respondent commits breach of that order, respondent is punishable as provided under sub-section (1) of Section 31. That offence, as provided under Section 32 of Protection of Women from Domestic Violence Act is non bailable and cognizable. But the cognizable offence provided under Section 31(1) would only be the result of a breach of the protection order as provided under Section 18 of Protection of Women from Domestic Violence Act.
  6. A Magistrate, on passing an order under Section 23(1) or an ex parte order under Section 23(2) of Protection of Women from Domestic Violence Act, cannot direct arrest of the respondent by issuing non bailable warrant before taking cognizance of the offence, if an offence is committed under sub-section (1) of Section 31. Annexure-VI proceeding paper shows that after passing Annexure-II ex parte order as provided under sub-section (2) of Section 23 of Protection of Women from Domestic Violence Act, the petition filed by the first respondent under Section 12 of Protection of  Women from Domestic Violence Act was posted for the appearance of the respondents. When first respondent appeared through a counsel, he was directed to appear in person and pay the maintenance. It is on the failure to appear and pay maintenance as ordered, the non bailable warrant was issued. Learned Magistrate cannot order non bailable warrant for the failure to pay maintenance as has been done in this case. It is made clear that Magistrate can proceed against the petitioner or other respondents for non payment of the interim maintenance only as provided under Protection of Women from Domestic Violence Act and such an order cannot be enforced as has been done by the learned Magistrate. In such circumstances, the order issuing non bailable warrant can only be quashed. Petition is allowed. The order issuing non bailable warrant against the petitioner in M.C.No. 246/2010 is quashed. Judicial First Class Magistrate- II, Thiruvananthapuram is directed to dispose the petition filed under Section 12 of Protection of Women from Domestic Violence Act, on merits, expeditiously. It is also made clear that learned Magistrate is competent to execute Annexure-II order passed under Section 23(2) of Protection of Women from Domestic Violence Act, in accordance with the provisions of the Act.

10th December, 2010

(M.Sasidharan Nambiar, Judge)

tkv

 

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

why maintenance and interim maintenance will never die

The biggest problem in India is that the “system” and commission agents benefit if and only if men pay maintenance and / or alimony…. The system does not benefit if women are made really independent, if women are made really equal and capable of earning for themselves …. So the loot in the name of LIFETIME alimony and lifetime maintenance goes on in spite of thousands of suicides by married man …. Approx 80000 every year

two times in life when ALL Indian women are supposedly obedient, courteous, sincere, and respecting

There are two times in life when ALL Indian women are supposedly obedient, courteous, sincere, and respecting their husbands. The first is on Matrimonial adverts. The second is in their written statements / pleadings before courts when they claim they respect their husbands and were most sincere !

what happens REALLY, what happens in between is known to all !!