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
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.)
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
- 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.
- 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.
- 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
- 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.
- 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?”
- 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.”
- 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.”
- 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.”
- 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.
- 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.”
- 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.
- Certain rules have been framed under Section 37 of the Act which enables the Central Government to make rules.
- 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.”
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
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