Daily Archives: February 21, 2017

Daughter In law can’t claim right to live in self acquired house of mother-in-law. delhi HC 

Daughter In law cant claim right to live in self acquired house of mother-in-law… The house in which the husband has no rights does not become a shared household

///In the decision reported as Shumitra Didi Sandhu Vs Sanjay Singh Sandhu & Ors. 174 (2010) DLT 79, it was held that the property which neither belongs to the husband nor is taken on rent by him, nor is a joint family property in which the husband is a member, cannot be regarded as a ‘shared household’ and therefore, the daughter-in-law has no right to claim right to stay in such property belonging to her father-in-law or mother-in-law.////


IN THE HIGH COURT OF DELHI AT NEW DELHI

                     

Judgment Reserved on: February 06, 2017

Judgment Delivered on: February 14, 2017

  • RSA 14/2017

      

MEENU ….. Appellant

                            

Through: Mr.Vijay Kinger and Mr.Sanjay

                                       Verma, Advocates.

                   

versus

      

BIRMA DEVI ….. Respondent

                            

Through: None.
CORAM:

HON’BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT
1. The appellant has filed this Regular Second Appeal under Section 100 of Code of Civil Procedure impugning the concurrent findings of the Courts below i.e. order dated 01st October, 2016 passed by the First Appellate Court and order dated 23rd May, 2016 passed by learned Trial Court. The appellant has questioned the legality and validity of the order of the learned Trial Court dated 23rd May, 2016 whereby a decree under Order XII Rule 6 CPC for possession in respect of property House No.235, Khasra No.60, Near MCD School, Sabha Pur, Karawal Nagar, Delhi-110094 has been passed against her by the learned Trial Court and she has been directed to vacate the suit property and also restrained from creating any third party interest in the suit property.
2. Learned counsel for the appellant has filed the brief written synopsis and has also made oral submissions raising the following contentions: (i) The Civil Court has no jurisdiction to adjudicate the family matters between the parties as per Section 7 and other provisions of the Family Court Act, 1984. (ii) The Civil Court cannot overwrite the provisions of Protection of Women from Domestic Violence Act, 2005. (iii) The Civil Court did not have the jurisdiction to entertain a suit in respect of a property falling in revenue estate of Sabha Pur, Shahdara which is an urbanized village.
3. With a view to appreciate the various contentions raised by learned counsel for the appellant, it is necessary to refer to the pleadings of the parties
4. Civil Suit No.271/2013 was filed by Smt.Birma Devi, respondent herein against the appellant Smt.Meenu, her daughter-in-law and Sh.Anil, her son (husband of defendant No.1). In this appeal (in this RSA No.14/2017) the appellant Meenu has not impleaded her husband as a party.
5. The case of the respondent/plaintiff is that on 28th December, 2005 she purchased House No.A-235 (measuring 50 sq. yds.), situated in Khasra No.60, near MCD School, Sabha Pur, Karawal, Delhi. At the time of purchase, the vendor Sh.Govardhan executed irrevocable General Power of Attorney in her favour which was duly registered with the Sub-Registrar on 17th March, 2006. The marriage of the appellant (defendant No.2 in civil suit) with the son of the respondent/plaintiff was solemnized on 18th February, 2013. She started residing at House No.G-396, West Karawal Nagar, New Delhi with her husband and in-laws. However, since the son and daughter-in-law started harassing the respondent/plaintiff and her husband, she permitted them to shift temporarily to the House No.A-235, situated at Khasra No.60, near MCD School, Sabha Pur, Karawal, Delhi i.e. the suit property, for a period of one year.
6. After shifting to the said house her son and daughter-in-law started pressurizing her to transfer the said house in the name of the daughter-in- law. On her refusal they even threatened to implicate her in dowry demand case and stopped paying the electricity bills. Even a criminal complaint was filed against her (mother-in-law) and the daughter-in-law also threatened to commit suicide with the sole motive to pressurize her to transfer the said property, which is her (mother-in-law) self-acquired property, in her (daughter-in-law) name. When the complaints were filed by the daughter-in- law with CAW Cell, North-East, she (mother-in-law) was compelled to issue public notice severing all her relations with her son and daughter-in-law. Even legal notice was served by her asking her son and daughter-in-law to vacate the suit property and also to pay use and occupation charges.
7. After the written statement was filed by the appellant/defendant, the respondent/plaintiff filed an application under Order XII Rule 6 CPC. Learned Trial Court decreed the suit and granted the relief of possession under Order XII Rule 6 CPC on the admissions made in the written statement.
8. The First Appellate Court on analyzing the legal position about the rights of daughter-in-law in the self acquired property of father-in- law/mother-in-law affirmed the order of the learned trial Court observing as under:- “7. I have heard the Ld. Counsel for the appellant and respondent and gone through the trial Court records. 8. Under order 12 Rule 6 CPC, where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. In the case herein, the appellant is the daughter in law of respondent. In the suit, the son of the respondent was also a defendant who has not preferred any appeal against the decree. I have gone through the pleadings of the parties alongwith impugned order and decree and Order 12 ule 6 CPC. The appellant/defendant No.1 has denied the ownership of plaintiff by way of WS alongwith other contentions/allegations against her in the plaint. As observed though, the appellant/defendant No.1 has denied the ownership of plaintiff in this case, she had admitted the ownership of plaintiff in other suit filed by her against her husband/defendant No.2 and therefore the denial of ownership by defendant No.1/appellant in the case only appears a ploy to delay the matter and prolong the litigation. The appellant/defendant No.1 is the daughter-in-law of the plaintiff who admitted that plaintiff is the registered owner of the suit property and she was requested by the plaintiff to vacate the suit property as well as received the notice issued by plaintiff to vacate the same. It is also noteworthy that only appellant has contested the suit. The defendant No.1 has further failed to show that if the plaintiff is not the owner, who else is the owner and therefore the reply of the defendant No.1 is not specific or categorical. No documents has been produced by defendant No.1 as well to support her contentions. Merely oral averments is not sufficient to deny the claim. From the material on records, it is also established that defendant was permitted to reside therein merely as a licensee and possession was merely permissive in nature. As the defendant failed to vacate the premises despite termination of license, mandatory and permanent injunction by the Ld. Trial Court. This Court finds itself in consonance with the findings of the Ld. Trial Court and the impugned order does not warrant for any interference. The Ld. Trial Court rightly reached to the conclusion and decided the issues on the basis of materials on record and this Court does not find any ground to interfere with the findings of Ld. Trial Judge. The findings of the Ld. Trial Judge is well explained in the impugned order and the same does not require any interference. The findings of Ld. Trial Judge does not appear to suffer from any illegality or infirmity. The judgment relied by Ld. Counsel for appellant is not applicable in the facts and circumstances of this case as in the matter in hand, there is no dispute regarding title of plaintiff at all. 9. I have gone through the judgment of Hon’ble Delhi High Court reported 211(2014) DLT 537 titled Sudha Mishra V/s Surya Chandra Mishra and ratio of the judgment which is mentioned below is squarely applicable in the facts of the case:- “The legal position which can be culled out from the above reports is that daughter-in-law has no right to continue to occupy the self acquired property of her parents-in-law against their wishes more so when her husband has no independent right therein nor is living there, as it is not a shared household within the meaning of Section 17(1) of Protection of Women from Domestic Violence Act, 2005. Wife is entitled to claim a right in a shared household which means a house belongs to joint family of which husband is a member. Daughter-in-law cannot assert her rights, if any, in the property of her parents-in-law wherein her husband has no right, title or interest. She cannot continue to live in such a house of her parents-in-law against their consent and wishes in my view, even an adult son or daughter has no legal right to occupy the self-acquired property of the parents; against their consent and wishes. A son or daughter if permitted to live in the house occupies the same as a gratuitous licensee and if such license is revoked, he has to vacate the said property.” 10. This court is further forfeited in this respect in view of judgment of Hon’ble Supreme Court in Civil Appeal No.5837/06 titled S.R.Batra & Ors. Vs. Smt. Taruna Batra decided on 15.12.06. Hon’ble Delhi High Court in judgment reported as 2009(1) CCC 301 (Delhi) titled Neetu Mittal Vs. Kanta Mittal & Ors. also held that:- “As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Prem pal nor was it taken on rent by him nor is it a joint family property of which the husband Prem Pal is amember, it is the exclusive property of plaintiff, mother of Prem Pal. Hence, it cannot be called a shared household.” The judgments reported as 188(2012) DLT 765 titled Kavita Chaudhri V/s Eveneet Singh, 2008(1) Feml-Juris C.C.929(SC) titled Vimlaben Alhitabhai Patel V/s Vatsalaben Ashokbhai Patel, 186(2012) DLT 138 titled Pamela Sharda V/s Rama Sharda, 202(2013) DLT 548 titled Kavita Chaudhri V/s Eveneet Singh & Anr. & 111(2013) DMC 689 (Delhi) titled Savitri Devi V/s Manoj Kumar & Ors. may be relied in this case. 11. The pleadings of the parties and evidence on record reveals that the appellant/defendant No.1 categorically failed to prove the case. The ratio of judgment reported as 1982(1) RCR 637 is squarely applicable in the facts of this case. Further, as held in Subhra Mukherjee Vs. Bharat Coking Coal Ltd. AIR 2000 SC 1203, the party which makes the allegation must prove it. The appellant has failed to produce any oral or documentary evidence to prove the contentions. Undisputedly, the burden lies on the appellant to establish such facts.”
9. Section 100 of the Code of Civil Procedure was amended by Amending Act No.104 of 1976. After the amendment, Section 100 of the Code of Civil Procedure reads as under: S.-100. Second appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the Respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this Sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.’

  1. In the case Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and Ors. (2010) 13 SCC 216, the legal position as to when the Second Appeal can lie has been summarized in paragraph 16 as under: ‘…. The existence of a substantial question of law is a condition precedent for entertaining the second appeal; on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under the provisions of Section 100 Code of Civil Procedure….’
  2. The contention raised on behalf of the appellant/respondent that the subject matter of the Civil Suit No.271/2013 is covered by Family Court Act, 1984 and Civil Court has no jurisdiction to try the suit or pass a decree under Order XII Rule 6 CPC or under Protection of Women from Domestic Violence Act, 2005 is not tenable in the eyes of law. In the decision reported as Shumitra Didi Sandhu Vs Sanjay Singh Sandhu & Ors. 174 (2010) DLT 79, it was held that the property which neither belongs to the husband nor is taken on rent by him, nor is a joint family property in which the husband is a member, cannot be regarded as a ‘shared household’ and therefore, the daughter-in-law has no right to claim right to stay in such property belonging to her father-in-law or mother-in-law.



12. On the basis of pleadings, both the Courts below held that it is not disputed that the respondent/plaintiff is the owner of House No.A-235, situated at Khasra No.60, near MCD School, Sabha Pur, Karawal, Delhi which is her self-acquired property. The appellant/defendant was married to the son of the respondent/plaintiff and initially she stayed with her in-laws in House No.G-396, West Karawal Nagar, New Delhi. After the relations became strained, till making of an alternate arrangement, they (son & daughter-in-law) were allowed to stay in the property bearing House No.A- 235, situated in Khasra No.60, near MCD School, Sabha Pur, Karawal, Delhi by the respondent/plaintiff.
13. The appellant who got married in the year 2013 was permitted by the respondent to live initially with her in-laws and thereafter in the self-acquired property of her mother-in-law only out of love and affection to provide shelter to them temporarily. The status of the appellant/daughter-in- law in the self-acquired property of her mother-in-law is that of a ‘gratuitous licencee’. The respondent in her capacity as mother-in-law is under no legal obligation to maintain her daughter-in-law. The various criminal cases/complaints filed against the respondent/mother-in-law are reasons good enough to ask the son and the daughter-in-law to leave the house so that the old parents can live in peace
14. The legal position is well settled that the daughter-in-law has no right to reside in the property belonging to her mother-in-law as the said property is not covered by the definition of ‘shared household’, the same being neither a joint family property in which her husband is a member nor property belonging to her husband. The appellant being daughter-in-law has no right as against her mother-in-law to occupy any portion of the suit property which is the self-acquired property of her mother-in-law.
15. Since the findings of the courts below are in terms of legal position settled by the Supreme Court in S.R.Batra vs. Taruna Batra 2007(3) SCC 169, as the appellant cannot claim any legal right to live in the self-acquired property of the respondent/plaintiff, the order impugned cannot be interfered with in exercise of power under Section 100 of Code of Civil Procedure.
16. Since no substantial question of law arises, this Regular Second Appeal is dismissed.
17. No costs.
CM No.1620/2017 (stay) The application is dismissed as infructuous.
PRATIBHA RANI (JUDGE) 
FEBRUARY 14, 2017
 ‘hkaur’

Nonpayment DV maintenance NOT violation of Sec 31 protection order, so NO cognizance. Karnataka HC

The short point that arises for consideration by this court is as under:“Whether penal provision found in Section 31 of Protection ofvWomen from Domestic Violence Act, 2005 could be invoked for non-payment of arrears of maintenance?”

The Hon court concludes as follows “….

  • 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 Sections 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 Act ia a glaring legal error and hence the same will have to be set aside.

 

and “….Consequently the petitioner stands discharged for offence punishable under section 31 of P.W.D.V Act 2005.…”

==============================================================

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18TH 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 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:

ORDER

 

  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 the 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 section 29 of the said Act before the Sessions Court at Mangaluru. The appeal is dismissed and thereby the order of the Trial court is confirmed.
  2. 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 in Crl.Misc.No.115/2009 under section 12 of the Act seeing various releifs against this petitioner before the Court of JMFC Moodbidri, Mangalore Taluk. By virtue of the order dated 01.03.2010, the learned JMFC chose to award maintenance @ Rs.4,000/- per month to the respondent and her daughter. 01.03.2010 has become final.
  3. 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, recovery 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 prior to the filing of the application for recovery and that order is not challenged in any manner.
  4. 4. A 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 not 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. Hence the present revision petition is filed under section 397 of Cr. PC.
  5. 5. The short point that arises for consideration by this court is as under:“Whether penal provision found in Section 31 of Protection ofvWomen from Domestic Violence Act, 2005 could be invoked for non-payment of arrears of maintenance?”
  6. 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. 7. It is true that all orders other than the one relating to maintenance are perfect protection orders within the purview of Section 18 of the Act. Section 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, aggrieved personal, with person, oral or the including 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 specified in the protection order.” as
  8. 8. The words “Protection Orders” are defined in Section 2(o) of the above Act and the same is extracted below: 2(o) -“Protection Order” means an order made in terms of Section 18.”
  9. 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.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  10. 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. 11. Section 28 of the above Act deals about the applicability of certain provisions of Cr.P.C. to the provision of this Act. Except as provided in this case, all proceedings under Sections 12, 15,18, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of Cr.P.C.
  12. 12. Certain rules have been framed under Section 37 of the Act which enables the Central Government to make rules.
  13. 13. Rule 15 of the Protection of women from Domestic Violence Rules, 2006 deals about the breach 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 Magistrate for appropriate orders. concerned
    (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 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 committing violence; an to act commit of or domestic
    (b) an order preventing the accused from harassing, making any telephoning contact with or 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. 14. Hon” ble High Court of Rajasthan had an opportunity to discuss the applicability of the provisions of Section 31 of the above Act in regard to the noncompliance of the order relating to the non-payment of arrears of maintenance. What is held by the Hon”ble 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 Act does not include monetary relief.
  15. 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 nonpayment of the arrears of maintenance amounts to the violation of protection order and thereby Section 31 could be invoked.
  16. 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. 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. 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 Sections 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 Act 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.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
  19. 19. In the result, the following order is passed:

ORDER

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 section 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