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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
Shivashankar Amarannavar, J.
Mohammed Yaseen Naikwadi, S/o Abdulla Naikwadi –Petitioner
Versus
Smt. Aneesa Mohammed Yaseen Naikwadi – Respondent
Criminal Petition No. 102231 OF 2023
Decided On : 13-12-2023
DV Act - Breach of Protection Order - Section 31 - Summary: The court considered whether penal provision found in Section 31 of the D.V. Act could be invoked for non-payment of arrears of maintenance. It analyzed the scope of Section 31 in the light of Sections 2(o), 18, and 20 of the D.V. Act and held that the protection order does not include the order of granting monetary relief of maintenance under Section 20 of the D.V. Act. The court found that the approach of the learned Magistrate in taking cognizance of the offence punishable under Section 31 of the D.V. Act was a legal error and quashed the proceedings against the petitioner in C.C.No/1/2022.
Fact of the Case:
The petitioner sought to quash the proceedings in C.C.No.01/2022 pending on the file of the IV-JMFC, Belagavi, alleging that the petitioner made a breach of protection order by not paying maintenance amount as per the order dated 29.07.2015 passed in Crl.Misc.No.306/2015.
Finding of the Court:
The court found that the protection order does not include the order of granting monetary relief of maintenance under Section 20 of the D.V. Act. It held that the approach of the learned Magistrate in taking cognizance of the offence punishable under Section 31 of the D.V. Act was a legal error and quashed the proceedings against the petitioner in C.C.No/1/2022.
Issues: The main issue was whether penal provision found in Section 31 of the D.V. Act could be invoked for non-payment of arrears of maintenance.
Ratio Decidendi: The court analyzed the scope of Section 31 in the light of Sections 2(o), 18, and 20 of the D.V. Act and held that the protection order does not include the order of granting monetary relief of maintenance under Section 20 of the D.V. Act.
Final Decision: The petition was allowed, and the proceedings against the petitioner in C.C.No.1/2022 pending on the file of the IV JMFC, Belagavi were quashed.
ORDER :
This petition is filed praying to quash the proceedings in C.C.No.01/2022 pending on the file of the IV-JMFC, Belagavi.
2. Heard learned counsel for the petitioner. None appears for the respondents this day and on the previous date.
3. Respondent Nos.1 and 2 have filed a private complaint No.219/2017 against this petitioner alleging that the petitioner herein has made breach of protection order by not paying maintenance amount as per the order dated 29.07.2015 passed in Crl.Misc.No.306/2015 and committed offence punishable under Section 31 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘D.V. Act’, for brevity). The learned Magistrate has recorded sworn statement of respondent No.1 and registered criminal case against this petitioner by order dated 12.01.2022 for offence punishable under Section 31 of the D.V. Act. Based on the said order case came to be registered against this petitioner in C.C.No.1/2022 pending on the file of the IV JMFC, Belagavi. The petitioner has sought for quashing of proceedings in C.C.No.1/2022.
4. Learned counsel for the petitioner would contend that alleged violation of order passed by the learned Magistrate is not protection order and it is order to pay interim maintenance. He contends that as per Sub-Section (1) of Section 31 of the D.V. Act, it is only for breach of protection order action is to be initiated and not for breach of interim maintenance order. On that point he placed reliance on the decision of the Co-Ordinate Bench of this Court in the case of the Mr. Francis Cyril C Cunha Vs. Smt Lydia Jane D’Cunha, 2016 Criminal Law Journal 1967. He contends that the order passed by the learned Magistrate taking cognizance and registering criminal case against this petitioner for offence punishable under Section 31 of the D.V. Act is not sustainable in law and prayed to quash the proceedings in C.C.No.1/2022 pending on the file of the IV JMFC, Belagavi.
5. On considering the arguments advanced by the learned counsel for the petitioner, the point that arises for consideration is as under :
6. Learned Magistrate in Crl.Misc.No.306/2015 has passed an interim order on IA’s 1 and 3 as under:
Further the respondents are prohibited from disposing, alienating or encumbering shared household until further orders provided the petitioners furnish the complete particulars of shared household within 3 days from today.
On appearance of the respondents, the parties are at liberty to seek for review of this orders.
Issue notice to the respondents on I.A. No.1 to 3 main petition and furnish the copy of this order returnable by 20-08-2015.”
7. The said Crl.Misc.No.306/2015 has been filed by respondent Nos.1 and 2 under Section 12 of the D.V. Act. Respondents have filed complaint in P.C.No.219/2017 against this petitioner alleging he has violated the order passed by the learned Magistrate in Crl.Misc.No.306/2015 by non-payment of maintenance amount. The relevant para in the said private complaint reads thus:
8. Respondent No.1 in her sworn statement stated as under:
9. Considering the above aspects the alleged breach committed by the petitioner by non-payment
Protection order does not include order of granting monetary relief of maintenance under Section 20 of D.V. Act, 2005.
Section 31 of the Domestic Violence Act applies only to breaches of protection orders under Section 18, not to maintenance orders under Section 20.
Section 20(d) authorises a Magistrate to grant maintenance for aggrieved person as well as her children.
Non-payment of maintenance under the D.V. Act does not fall within penal provisions of Section 31, which strictly applies to violations of protection orders under Section 18.
Violation of monetary orders under the Protection of Women from Domestic Violence Act does not constitute an offence under Section 31, which applies only to breaches of protection orders.
(1) Breach of protection order – Section 31 of D.V. Act.applies only to breach of protection orders mentioned in Section 18 and not to residence orders mentioned in Section 19, monetary reliefs menti....
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