Category Archives: Karnataka HC

DV on Husband & 7 relatives! HC sends case back 2 magistrate. Seeks DV report.

HC clarifies that a reading of the complaint shows that there are NO specific averments against relatives and so the magistrate to seek dom. violence report from social service officer, consider the facts and ONLY if there is a prima facie case against accude, the magistrate can proceed against other accused !!

#BackToMagistrate #SeekDVreport #DV_on_7Relatives #HusbandPLUSseven !!

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 27 TH DAY OF JUNE, 2014

BEFORE

THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

CRIMINAL REVISION PETITION No. 2184/2012

C/w.

CRIMINAL REVISION PETITION No. 2185/2012

BETWEEN:

  1. K. SHIVAKUMAR S/O K. RAJA RAO AGE: 35 YEARS, R/O. RAYADURAGA, DIST: ANANTAPUR
  2. C. RAJARAO S/O. K. NAGOJI RAO AGE: 70 YEARS, OCC: ADVOCATE R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHAPUR

  3. SMT.C. NAGO BAI W/O. C. RAJA RAO AGE: 60 YEARS, R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHAPUR

  4. SMT.SURYAKALA W/O. K. RAJASHEKAR AGE: 25 YEARS, R/O. BASATHALLI VILLAGE, DODDA BALLAPURA TALUKA, KARNATAKA STATE

  5. SMT.CHANDRAKALA W/O GOPIKRISHNA M. AGE: 28 YEARS, R/O. D.NO. 16/4-519 NETAJI ROAD, RAYADURGA, DIST: ANANTHAPUR

  6. K. PRAVEEN S/O. C. RAJA RAO AGE: 23 YEARS, SENICURE R/O. 15-1-27/2A, RAILWAY STATION ROAD, RAYADURGA, DIST: ANANTHPUR

  7. KRISHNAKUMAR K. S/O. C. RAJA RAO AGE: 30 YEARS, R/O. TORANAGALLU, JINDAL TOWN SHIP, DIST: BELLARY

  8. YOGENDRA KUMAR K. S/O. C. RAJA RAO AGE: 29 YEARS, APSRTC CONDUCTOR, R/O. RAYADURGA, ANANTHAPUR  ……. PETITIONERS

(COMMON)

(BY SRI. B CHIDANANDA, ADV. )

AND:

K. PARVATHI D/O LATE HULUGOJI RAO AGE: 30 YEARS, R/O. C/O. NARASAMMA AGADI MAREPPA COMPOUND, PLOT NO. 8, NEAR RAGAVENDRA TALKIES, BELLARY… RESPONDENT

(COMMON)

(BY SRI. V M SHEELVANT, ADV.)


CRIMINAL REVISION PETITION NO.2184/2012 IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED 01.06.2012, IN CRL.A.NO.37/2012 PASSED BY THE II-ADDL. DIST. & SESSIONS JUDGE, BELLARY, AND TO SET ASIDE THE ORDER DATED 12.03.2012, MADE ON I.A.NO.01 IN CRL.MISC.NO.94/2011, PASSED BY THE PRL. CIVIL JUDGE & JMFC COURT, BELLARY, IN THE ENDS OF JUSTICE AND ALLOW THE I.A.NO.1 BY HOLDING THAT, THE CRL.MISC. PETITION NO.94/2011, PENDING ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC COURT, BELLARY, FILED BY THE RESPONDENT HEREIN IS NOT MAINTAINABLE AGAINST THE PETITIONERS 2 TO 8 HEREIN, IN THE ENDS OF JUSTICE.

CRIMINAL REVISION PETITION NO.2185/2012 IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO 1) SET ASIDE THE JUDGEMENT/ORDER DATED 01.06.2012, MADE IN CRL.A.NO.36/2012, PASSED BY THE II-ADDL. DIST. & SESSIONS JUDGE, BELLARY, AND THERE BY DIRECTING THE FIRST PETITIONER TO PAY MONTHLY INTERIM MAINTENANCE OF RS.3000/- P.M. IN ADDITION TO RS.1500/- P.M. FIXED IN CRL.M.C.NO.191/2010 AND AFFIRMING THE PROTECTION ORDER AND SHARED HOUSE IN FAVOUR OF THE RESPONDENT AS PER SECTION 23(2) R/W 18, 19 & 20 OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005, IN THE ENDS OF JUSTICE.

THESE REVISION PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

  1. These two petitions are filed respectively challeng ing the order of the learned Magistrate i.e., Principal Civil Judge and JMFC, Bellary in Criminal Case No.94/2011 in rej ecting the application filed by the respondents 2 to 8 the rein, under Sections 118 and 482 of the Cr.P.C. seeking their d ischarge from the said proceedings and the said orders being affirmed by the II Addl. Dist. and Sessions Judge at Bellary in Criminal Appeal No.37/2012 dated 1/06/2012; and als o challenging the entire order passed by the learned Magistrate in the same proceedings, wherein a sum of Rs.7,000/was awarded as interim maintenance in favour of the res pondent – wife in the said petition, which was reduced by t he II Addl. Dist and Sessions Judge, Bellary in Criminal Appeal No.36/2012 to the extent of Rs.4,500/- per month ti ll the disposal of the main petition pending before the JM FC, Bellary.
  • I have carefully perused both the orders.

  • In the first order by the learned Magistrate on the application filed under Sections 118 and 482 of the Cr.P.C, the provisions of law invoked by the petitioners are not proper because neither Section 118 of the Cr.P.C nor Section 482 of the Cr.P.C empowers the Magistrate in any manner to discharge the petitioners from the array of the parties in the said proceedings. However, though the provision of law mentioned in the said petition is wrong, the substance of the application has to be looked into by the Court and if the Court is satisfied with regard to the grounds urged before it, it can pass appropriate orders in accordance with law. Even otherwise, Section 25(2) of Domestic Violence Act, 2005 (hereinafter referred to as the ‘DV Act’, for short ) empowers the Magistrate that; “on receipt of an application from the aggrieved person or the respondent, if the Magistrate is satisfied that there is a change in the circumstanc es requiring alteration, modification or revocation of any order made under this Act, he may, for the reasons to be recorded in writing pass such order, as he may deem fit appropriately.” Therefore, if at all the petitioners are aggrieved by issuance of any notice or summons/ any order passed against the parties and by virtue of the summons they have appeared before the Court, if they make out a ground before the same Court by means of changed circumstances or showing to the Court that they are not at all liable to be prosecuted in the said proceedings, the Court may take into consideration all the materials placed before the Court by both the parties and can pass appropriate orders in that regard. In this background, let me see what order the trial Court has passed.

  • The tone and tenor of the orders passed by the tria l Court discloses that, the application has been considered by the trial Court mainly concentrating on the provisions mentioned in the applications. Further added to that, on relying upon several rulings, the Court has come to the conclusion that the petition cannot be dismissed merely because along with the husband, other members of the family were also arrayed as parties to the proceedi ngs. The Magistrate has assigned the reason at paragraph 13 of the orders passed by him on the application filed under Sections 118 and 482 of the Cr.P.C which reads as follows: “ With due respect to their Lordship, I have gone through the above rulings. The ratio laid down in the above rulings are applicable to the present set of facts to come to the conclusion that the petition filed by the petitioner against the respondents No.1 to 8 are well maintainable under this provision. So, in view of the rulings relied by the petitioner in this case, the petition filed for seeking monetary reliefs from the respondents under this Act is maintainable.” Except this observation, nothing is mentioned in th e order about what are the grounds urged by the petit ioners in their application.

  • On careful perusal of the application filed by the petitioners 2 to 8 before the trial Court, it discloses that they have challenged the proceedings on the ground that by virtue of the relationship with the respondent No.2 in the said case, they were made as parties to the proceedings and no proceedings shall be continued against the relative s of the husband of the respondent therein without specific allegations against them. Apart from this ground, they have also taken up the contention that they never lived with the 1 st petitioner therein. They have also claimed that t he relief claimed against the 1st petitioner is exclusively against husband and he alone is liable to discharge the sai d relief. The contents of the petition also does not disclose any specific overt acts of the petitioners 2 to 8 in or der to draw them to the Court.

  • Therefore, it goes without saying that except one point, the trial Court has not considered the other grounds urged in the application. The trial Court ought to have considered the other grounds urged in the applicati on. If the Court is satisfied that a prima facie case is made out against the petitioners, then only it can proceed against t hem.

  • It is worth to note here the decision of the Hon’bl e Apex Court reported in 1992 Supp (1) SCC 335 in the case of State of Haryana and Others Vs. Bhajan Lal and Others, wherein the Apex Court has held that; “considering the allegations made in the First Information Report or the complaint, even if they a re taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; Secondly, where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; and And lastly, where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. “

  • Even on analysis of the entire averments made in the petition, it does not attract any of the provis ions under the DV Act and the factual aspects contained in the petition are also not sufficient to draw inference that any provisions under the DV Act can be invoked. On over all analysis of the materials on record, if the applicants are able to satisfy that the petition was filed only with a mala fide intention to wreck vengeance against them, then the Court has to consi der all the grounds urged on the basis of the materials on record in view of the above said observations of the Apex Court and then has to pass appropriate orders on the applicat ion.

  • With these observations, I am of the opinion that the matter deserves to be remitted back.

  • At this stage, the learned Counsel for the respondent submitted that, when the Domestic Officer (CDPO) had been to the house of the petitioners the y have not cooperated in order to submit proper report to the Court. Per contra, the learned Counsel for the petitioners submit that they had no knowledge at all about the said of ficer having come to the place of the petitioners that th e Officer has not given any prior intimation or notice to the petitioners, otherwise they would have cooperated with him and they are the last persons to disobey the orders of the Court.

  • In view of the above said submissions, it is just and necessary for the trial Court to direct the concerned CDPO to once again visit the place of the petitioners with prior intimation to them in order to collect the domestic violence information and submit the Domestic Incide nt Report to the Court as early as possible. For that reason also, the matter requires to be remitted to the trial Court. In another petition, the challenge is regarding the interim maintenance awarded. The interim maintenan ce of Rs.7,000/- pm awarded by the trial Court is reduced to Rs.4,500/- pm by the appellate Court. The learned Counsel for the petitioners strenuously contends, no enquir y has been done by the learned Magistrate before ordering an amount of Rs.7,000/- pm. Only considering the mate rials on record and hearing the parties, the said award has been passed. The appellate Court having noticed that in Cr.Misc.No.191/2010 filed under Section 125 of the Cr.P.C, the wife was ordered with an amount of Rs.1,500/- p er month as maintenance and taking into consideration the submission made on behalf of the husband that the w ife has suppressed the said material aspect of getting Rs.1,500/- in the 125 proceedings, reduced the award of maintenan ce to the extent of Rs.4,500/- per month including the aw ard passed in 125 proceedings. Both the Courts have an alysed the factual matrix of the case to come to the conclusion that the petitioner is entitled for interim maintenance during the pendency of the proceedings. But as the wife has s uppressed material aspects before the Court by not bringing t o the notice of the Court the award passed in her favour in 125 proceedings, I am of the opinion, if an amount of i nterim maintenance is reduced to Rs.4,000/- per month in t otal, it would meet the ends of justice because of the simpl e reason that, wife has to live in the society by having a s eparate house, grocery, clothes, medical expenses etc. The refore, considering the growing rates of groceries and othe r day to day expenses, I am of the opinion, an amount of Rs. 4,000/-is bare minimum to be awarded in favour of the peti tioner as interim maintenance, pending disposal of the petiti on. However, the interim maintenance ordered by this Co urt is subject to any modification by the trial Court at t he time of final order to be passed in the case, based on prev ailing facts and circumstances of the case.

  • In view of the above said factual aspects, I am of the opinion, the matter is to be remitted to the tr ial Court with a direction to reconsider the application file d under Sections 118 and 482 of the Cr.P.C. The said provi sion of law should be read as if filed under Section 25(2) of the DV Act. With these observations, I pass the following order:

  • ORDER

    Both the petitions are allowed.

    The order passed by the learned Magistrate on I.A.1/2014 in Crl.Misc.No.94/2011 dated 12.03.2012 and confirmed by the appellate Court in Crl.A.No.37/201 2 is hereby set aside. The application filed by the app licants under Sections 118 read with Section 482 of the Cr. P.C, which should be read as if filed under Section 25(2 ) of the DV Act is restored to the file of the Magistrate to b e considered afresh in view of the observations made in the body of this order.

    The order passed by the learned II Addl. District J udge in Cri.A.No.36/2012 dated 01.06.2012 is modified an d the amount of interim maintenance is reduced from Rs.4, 500/-to Rs.4,000/- per month pending disposal of the mai n petition. The amount deposited before this Court is ordered to be transmitted to the trial Court and the trial Court shall release the said amount in favour of the respondent -wife.

    Sd/-

    JUDGE

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    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.…”

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    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


    Husband LOOSES DIVORCE though wife suffering from PARANOID SCHIZOPHRENIA & needs medicine life long! Karnataka HC

    As per expert doctor’s reports, the wife’s disease which started approx 9 years before marriage. Her own doctor says she NEEDS medicines LIFE LONG and at best the disease can be controlled and it cannot be cured !! Husband proves that the disease was hidden from husband before marriage) Wife refuses sex !, she hears voices when there is no one around, throws things on husband’s mother etc etc. Still HUSBAND DENIED DIVORCE !! Long live Marriage !!

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

    • marriage in 2011
    • after marriage it comes to light that wife is suffering from various hallucinations and psychiatric symptoms since 2002 (9 years BEFORE marriage)

    • after marriage, wife refuses sex saying someone is watching them even though there is NO one and all windows / doors are closed

    • Wife throws vessels etc on mother in law and injures her

    • there are various other allegations against the wife’s erratic behavior as well

    • the NIMHANS (government hospital report clearly says) “…9. As per the report of the NIMHANS dated 1.4.2014, on her mental state examination, she was found to be asymptomatic. Her diagnosis is “Paranoid Schizophrenia”…“. !!!

    • The NIMHANS report says the earlier doc, Dr C.Y.Sudarshan who has seen her over 10 years is the right person to treat her ”…9. As per the report of the NIMHANS dated 1.4.2014, on her mental state examination, she was found to be asymptomatic. Her diagnosis is “Paranoid Schizophrenia”. If she remains symptom-free, she may be able to discharge marital responsibilities. At the end, the report refers PW-3/Dr.C.Y.Sudarshan, Psychiatrist of Davangere, her treating Doctor as the most appropriate person to provide additional information since he has seen her for over a decade……“

    • That doctor C.Y.Sudarshan, says the wife’s disease is NOT curable but has to take medicines life long !!. As per the Hon court’s summary ”…As per the testimony of PW-3 (the Doctor who has been treating her since the year 2002) she has Bipolar affective disorder i.e., disturbances of mood episodically. While under depressed mood, she has decreased appetite and sleep, poor concentration and fearful; during happy mood, she has mild anger and irritability in her behavior. In his opinion, if she is put on regular check-up and regular treatment, the disease that she is suffering with, can be controlled, but it is not curable…….“

    • Still the Hon HC says the husband is NOT entitled to divorce

    • The Hon HC says ”….25. In our considered opinion, the Court below was insensitive in branding the wife as suffering with completely incurable paranoid schizophrenia. …… We have living examples of lot many victims of such ailment in our society, who are leading life with the support of regular medication like any other normal members of the society. The appellant/wife, who was present before this Court, looked like any other person present in the Court hall, she is a M.C.A. graduate with 1st class with distinction and it is also the submission at the Bar, she was employed prior to her marriage, even if there is any apprehension of recurring of schizophrenic symptoms, the answer is in re-modeling the medicine, but not in amputing her marital/emotional life itself…..“ !!
      http://evinayak.tumblr.com/post/148184220214/wife-suffering-paranoid-schizophrenia-needing

     

    Seek Xemption from persnl aperanc @ famlycourt. IF oneside represnt by counsel otherside 2 b allowed.KarHC

    In this case  The husband sought leave of the Family Court to be represented through a Counsel. Accordingly, the Court permitted the husband to be represented by Counsel from the inception of the case. Wife who was at Mumbai gets a job and goes to USA. So she seeks both permission to be represented by counsel and exemption from personal appearance. Family court disallows both. Karnataka HC appreciates the facts and decrees.

    “10. There is nothing in Act or rules which prohibits a petition being filed by an authorised agent, or requires a petition should be presented by the petitioner in person. Therefore, there is no bar to a petition being presented to the Court by an agent (attorney holder). Even a Legal Practitioner who holds a power of attorney to present the petition, may ‘present’ a petition, but may not be able to ‘represent’ the petitioner in the proceedings unless permitted by the Family Court. Similarly, there is nothing in the Act or rules requiring the Family Court to refuse to recognise or accept the appearance of a respondent, through an authorised agent on the date fixed for appearance. A respondent can enter appearance through an authorised agent (who can also be a Legal Practitioner) with an application seeking permission to be represented by a Legal Practitioner…” and

    11. A party may choose to appear through and be represented by an authorised agent other than a Legal Practitioner, in which event permis-sion under Section 13 is not necessary. A Family Court, having regard to the facts and circumstances, may of course make a specific order for the personal appearance of a party. Only if such an order is made, the party has to make an application for exemption from personal appearance if he/she is not in a position to appear in the matter. Even if the Family Court refuses permission to the parties to be represented by a Legal Practitioner, the parties may be represented by authorised agents other than a Legal Practitioner. But, if one side has been permitted to be represented by a Legal Practitioner, the Family Court should not refuse permission to the other side to be represented by a Legal Practitioner. To do so would be in violation of principles of natural justice….”
    Since this procedure is gender neutral, Husbands should be able to use this to their benefit !!


    Karnataka High Court

    Mrs. Komal S. Padukone vs Principal Judge, Family Court, … on 19 February, 1999

    Equivalent citations: II (1999) DMC 301, ILR 1999 KAR 2811, 1999 (5) KarLJ 667

    Bench: R Raveendran

    ORDER

    1. The second respondent is the husband and the petitioner is the wife. The husband filed MC No. 401 of 1998, on the file of the Principal Judge, Family Court, Bangalore, against the wife, under Section 13 of the Hindu Marriage Act, 1955 for divorce, on the ground of desertion and cruelty. The husband sought leave of the Family Court to be represented through a Counsel. Accordingly, the Court permitted the husband to be represented by Counsel from the inception of the case.
    2. At the time when the divorce petition was filed, the wife was staying at Mumbai, with her parents. The Family Court issued a notice to her to her Mumbai address, calling upon her to appear before the Court on 3-8-1998. By then the wife obtained a job in USA and left the country in July 1998 itself. The notice of the proceedings was served on the wife’s father.
    3. The wife made two applications before the Family Court on 12-11-1998 – IA II under Section 13 of the Family Courts Act, 1984 (for short, ‘the Act’), seeking leave of the Court to engage an Advocate; and IA III under Section 151 of the CPC, read with Section 13 of the Act, for dispensation of her personal presence in the matter till July 1999. The husband resisted both the applications.
    4. The Family Court by a common order dated 24-11-1998, dismissed both the applications and ordered that the case be listed on 19-12-1998 for the appearance of the wife (respondent before the Family Court). The Family Court held that in a proceedings before it, the respondent will have to appear in person and then obtain leave of the Court to engage a Counsel; and without appearing in person, a respondent in a divorce petition can neither seek permission to engage, nor engage the services of a Legal Practitioner. In regard to IA III, it held that it is necessary to attempt reconciliation before the matter is proceeded with and unless the party appears, reconciliation is not possible; and therefore there is no justification for seeking exemption from personal appearance till July 1999.
    5. As a consequence of rejection of the two applications, the matter will be proceeded ex parte, as the wife will not be able to appear in person on the next date of hearing fixed for her appearance. Feeling aggrieved, the petitioner herein (wife) has filed this petition and sought quashing of the order dated 24-11-1998, rejecting IAs II and III.
    6. A preliminary objection is raised by the learned Counsel for the second respondent (husband) on the ground that a writ petition is not maintainable against an order on an interlocutory application, passed by a Family Court. Normally, this Court will not entertain writ petitions against interim orders of the Family Courts. But, a writ petition may be entertained when the order is made without jurisdiction or in violation of principles of natural justice or specific provisions of a statute, or is arbitrary and unreasonable leading to failure of justice. Having regard to the questions involved, it cannot be said that the petition is maintainable.
      • 6.1. The following questions arise for consideration:
      • (a) Whether a party cannot seek exemption from personal appearance and permission to engage Counsel, unless he/she appears in person before the Family Court.
      • (b) Whether a respondent who is unable to appear personally or who does not appear personally, has no right to contest a proceedings before Family Court.
      • (c) Whether the Family Court having granted permission to the petitioner before it, to engage a Legal Practitioner, deny such permission to the respondent in the same proceedings.
    7. Section 10 of the Act, provides that subject to other provisions of the Act and the rules, the provisions of Civil Procedure Code, 1908 and of any other law for the time being in force, shall apply to the proceedings before a Family Court and the Family Court shall be deemed to be a Civil Court for the purposes of the Code and shall have all the powers of such Court. Section 13 of the Act provides that notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court, shall be entitled, as of right, to be represented by a Legal Practitioner. 7.1 Section 9 of the Act requires the Family Court to endeavour in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the proceedings and for that purpose the Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. Rule 7 of the Karnataka Family Courts (Procedure Rules), 1987, provides that the Family Court shall make such effort for bringing about a reconciliation or settlement between the patties in the first instance, where it is possible to do so consistent with the nature and circumstances of the case in such a manner as it deems fit, with the help of counsellors nominated by the Court. 7.2 Sub-rule (2) of Rule 1 of Order V of the CPC, provides that a defendant to whom summons has been issued under sub-rule (1) may appear in person or by a pleader duly instructed and able to answer all material questions relating to the suit, or by pleader accompanied by some other person able to answer all such questions. Order V, Rule 4 provides that no party shall be ordered to appear in person unless he resides within the local limits, of the Court’s ordinary original jurisdiction; or at a place less than fifty miles from the Court-house; or where there is an established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate, less than two hundred miles distance from the Court-house; Order III, Rule 1 provides that any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such suit, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised Agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf; provided that any such appearance shall, if the Court so directs, be made by the party in person.
    8. A reasonable opportunity to defend oneself, is an essential part of the principles of natural justice. Where one side is represented by a legally trained mind, refusal of permission to the other side to be represented by a legally trained mind has always been held to be in violation of the principles of natural justice.
      • 8.1 In Board of Trustees of the Port of Bombay v Dilip Kumar Raghavendranath Nadkarni and Others, the Supreme Court while dealing with the right of an delinquent employee to claim representation by a Counsel in a domestic enquiry observed thus: “Where in an enquiry before a domestic Tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a Legal Practitioner, the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice”.
      • 8.2 In J.K. Aggarwal v Haryana Seeds Development Corporation Limited, the Supreme Court held that while the right to be represented by a lawyer may not in all cases be held to be a part of natural justice, where the presenting officer is a Legal Practitioner, refusal of services of a Legal Practitioner to the delinquent employee would amount to denial of natural justice. The Supreme Court held that when a person who is not legally trained is required to defend a proceedings where the other side is represented by a legally trained mind, then the combat would be unequal entailing miscarriage or failure of justice and denial of a real and reasonable opportunity for defence.
      • 8.3 If the petitioner in a proceedings has already been permitted to be represented by a Legal Practitioner, refusal of permission to respondent to be represented by Counsel, will therefore be violative of principles of natural justice and the provisions of the Act.
    9. The provisions of Code of Civil Procedure apply to proceedings before the Family Court, except where there are provisions to the contrary in the Act or the rules. A Family Court is a Civil Court having all powers of a Civil Court, except when dealing with a proceeding under Chapter IX of Code of Criminal Procedure. The procedure to be adopted by Family Courts in dealing with and deciding cases before it will be the same as applicable to summary proceedings under Code of Civil Procedure, subject to the following modifications:
      • (a) The Family Court shall endeavour in the first instance, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the proceeding, where it is possible to do so consistent with the nature and circumstances of the case -[Section 9(1)];
      • (b) In addition to the general power to adjourn the proceedings, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect a settlement, if it appears to the Family Court that there is a reasonable possibility of a settlement – [Section 9(2)];
      • (c) A Family Court may lay down its own procedure with a view to arrive at a settlement in respect of the subject-matter of tbe proceedings or at the truth of the facts alleged by one party and denied by the other – [Section 10(3)];
      • (d) The proceedings may be held in camera, if the Family Court so desires and shall be so held if either party so desires – (Section 11);
      • (e) A Family Court may secure the services of Medical Experts and Welfare Experts to assist in discharging its functions under the Act – (Section 12);
      • (f) The parties are not entitled, as of right, to be represented by a Legal Practitioner – (Section 13).
      • (g) A Family Court may seek the assistance of a legal expert as amicus curiae – (Section 13);
      • (h) A Family Court may receive as evidence, any report, statement, document, information or other matter, that may, in its opinion, assist it to deal effectively with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 – (Section 14);
      • (i) Recording of oral evidence may be summary in nature (Section 15). The Family Court may receive evidence of formal character, by way of affidavit (Section 16). It is not obligatory to frame issues. The judgment shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision – (Section 17).
    10. There is nothing in Act or rules which prohibits a petition being filed by an authorised agent, or requires a petition should be presented by the petitioner in person. Therefore, there is no bar to a petition being presented to the Court by an agent (attorney holder). Even a Legal Practitioner who holds a power of attorney to present the petition, may ‘present’ a petition, but may not be able to ‘represent’ the petitioner in the proceedings unless permitted by the Family Court. Similarly, there is nothing in the Act or rules requiring the Family Court to refuse to recognise or accept the appearance of a respondent, through an authorised agent on the date fixed for appearance. A respondent can enter appearance through an authorised agent (who can also be a Legal Practitioner) with an application seeking permission to be represented by a Legal Practitioner.
    11. A party may choose to appear through and be represented by an authorised agent other than a Legal Practitioner, in which event permis-sion under Section 13 is not necessary. A Family Court, having regard to the facts and circumstances, may of course make a specific order for the personal appearance of a party. Only if such an order is made, the party has to make an application for exemption from personal appearance if he/she is not in a position to appear in the matter. Even if the Family Court refuses permission to the parties to be represented by a Legal Practitioner, the parties may be represented by authorised agents other than a Legal Practitioner. But, if one side has been permitted to be represented by a Legal Practitioner, the Family Court should not refuse permission to the other side to be represented by a Legal Practitioner. To do so would be in violation of principles of natural justice.
    12. The ideal situation under the general scheme of the Family Courts Act would be where proceedings are initiated by a husband or wife by presenting a petition in person; notice is issued to the other side; other side appears in person; neither party is represented by any lawyer, unless permitted by the Court; the Family Court at the first instance endeavours to bring about a settlement either by itself or with the assistance of welfare experts/Counsellors; When such endeavour fails, the respondent is given an opportunity to file objections and then evidence is recorded and decision is rendered; and the entire process takes only about 3 to 6 months. But an ideal situation is different from normal practical situation. For example in a place like Bangalore, each Family Court has a huge pendency. Every day, a large number of cases are listed and called for preliminary hearing, for conciliation, hearing on interlocutory matters, evidence and final arguments. Very few of them can be taken up for evidence or hearing. It is practically impossible to take up for evidence, all cases listed. The cases drag on for several years for one reason or the other. Each case undergoes thirty to forty hearing dates, in some, many more. Many of the parties are illiterate or working somewhere. Many of women litigants require the assistance of others, even to come to Court. In such circumstances, to require all parties to be personally present on every date of hearing, would add to the misery and hardship of litigants. The Family Court should therefore adopt a practical and humane approach and arrange its work suitably having regard to the workload, in such a manner that the parties before it are not put to unnecessary inconvenience.
    13. A combined reading of the Act and the rules with relevant provisions of the CPC make the following evident:
      • (i) A petition to the Family Court may be presented by a petitioner either in person or through an authorised agent. The petition may be presented even by an Advocate as an Authorised Agent. But, if the petitioner wants ‘representation’ by a Legal Practitioner, he/she should seek and obtain the permission of the Family Court.
      • (ii) A respondent, who is served with notice of the proceedings, may either appear in person or enter appearance through an authorised agent (including a Legal Practitioner). But, if the respondent wants to be represented by a Legal Practitioner in the proceedings, he/she should seek and obtain the permission of the Family Court.
      • (iii) In regard to proceedings before the Family Court, ‘entering appearance’ in response to a notice/summons through an authorised agent (including a Legal Practitioner), is different from being represented in the proceedings by a Legal Practitioner.
      • (iv) While representation through Legal Practitioner without permission is barred, entering appearance in a case, in response to a notice/summons, through a Legal Practitioner is not barred. If a Legal Practitioner, having entered appearance, wants to represent party in the proceedings, permission of the Family Court should be obtained for such representation.
      • (v) When one party has been permitted to be represented by a Legal Practitioner, such permission cannot under any circumstances, be denied to the other party. (vi) The authorised agent (or the Legal Practitioner permitted to represent a party) can prosecute or defend the proceedings and represent the party unless and until the Family Court makes a specific order to the parties to appear in person, either on a specified date or on further hearing dates, depending on the facts of the case and stage of the case. Once an order for personal appearance has been specifically made, a party will have to seek exemption from appearance, if he/she is not able to appear in the matter.
      • (vii) Where a Family Court has a large backlog of cases, and there is no possibility of taking up all cases, listed on a day, it may restrict the requirement of personal appearance of parties to specified stages like conciliation and evidence.
      • (viii) Where it is possible to do so, consistent with the nature and circumstances of the case, the Family Court, either directly or through counsellors, in the first instance, assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the proceedings.
    14. In this case the wife is staying in United States. She left India before the notice was served. She has stated that it will be difficult for her to come over to India before July 1999. She therefore sought permission to engage a Counsel and exemption from personal appearance till July 1999. There is nothing unreasonable about either of the requests. As a result of rejection of her applications, she has been placed ex parte. If the order is allowed to stand, it would cause irreparable injury to her.
    15. The Court had permitted the husband (petitioner in the divorce petition) to be represented by a Legal Practitioner. It is a fundamental principle of natural justice that where one of the parties to the lis is permitted to be represented by a Counsel, the other party should also be permitted to be represented by a Counsel. Having permitted the petitioner-husband in the divorce petition to be represented by a Counsel, the rejection of the application of the respondent-wife for engaging a Counsel is a improper exercise of jurisdiction opposed to principles of natural justice. Neither Section 13 of the Act nor any other provisions enables the Court to permit one party to be represented by a Counsel while refusing such permission to other party. The order on IA II is therefore liable to be set aside.
    16. Learned Counsel for the second respondent submitted that the proviso to Rule 1 of Order III of the CPC enabled the Court to direct the appearance of a party in person and therefore the respondent before the Family Court was bound to appear in person. But, the said provision is a special provision, under which the Court can, by a specific order, on the facts and circumstances of the case, require the appearance of a party. There is no such special order in this case. The Family Court has proceeded on the assumption that in all proceedings before it, the respondents should appear in person and then file an application to engage the Counsel. The Family Court has inferred from Section 9, which requires the Court to attempt settlement in the first instance, and Section 13 which denies representation by a Legal Practitioner unless permitted, that there is an obligation on the parties to appear in person in response to the notice and then continue to appear in person on every hearing date. As noticed above there is no basis for such inference or assumption. Section 9 makes it clear that the duty of Family Court to make efforts for settlement in the first instance is “where it is possible to do, consistent with the nature and circumstances of the case”. Where one of the parties is abroad or is disabled, it may not be possible to attempt settlement in the first instance. But, that does not mean that the party who is unable to appear, should be denied the right to prosecute or defend the proceedings. All that it means is that the effort to make settlement, gets postponed to a later date when parties are able to appear. In some cases, it may not be possible to attempt settlement at all due to the peculiar fact and circumstances. The statutory duty cast on the part of the Family Court to attempt settlement cannot be converted by the Court into a penalising weapon to deny representation or right to contest, merely on the ground that a party has by his or her absence, has come in the way of the attempt for settlement. If the reasons are bona fide, the Family Court should permit representation through Legal Practitioner or authorised agent. In this case, as the petitioner is abroad and has stated that she will not be able to come till July 1999, the Court ought to have allowed IA III.
    17. Therefore, this petition is allowed and the order dated 24-11-1998, passed on IAs II and III in MC No. 401 of 1998, on the file of the Principal Judge, Family Court, Bangalore, is set aside. The said interlocutory applications stand allowed. Any consequential order passed by the Family Court placing petitioner herein (wife) ex parte or deciding the matter ex parte cannot stand and shall be withdrawn. The Family Court shall fix a date for filing objections by the petitioner herein. Thereafter, Family Court shall proceed with the matter in accordance with law.

    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*

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