Back
KARNATAKA HIGH COURT
Shivashankar Amarannavar, J.
Mohammed Yaseen Naikwadi, S/o Abdulla Naikwadi – Petitioner
versus
Aneesa Mohammed Yaseen Naikwadi – Respondent
Criminal Petition No.102231 of 2023
Decided on 13.12.2023
Protection of Women from Domestic Violence Act, 2005 – Section 31 – Criminal Procedure Code, 1973 – Section 482 – Breach of protection order – Non-payment of maintenance amount as per order of Court – Protection order does not include order of granting monetary relief of maintenance under Section 20 of D.V. Act – Provisions of Section 31 of D.V. Act was pressed into service before Trial Court essentially on ground that of arrears of maintenance was not paid – Providing two separate reliefs, one under Section 18 of D.V. Act for protection and another for monetary relief under Section 20 of D.V. Act will have to be taken into consideration while analyzing scope of Section 31 of D.V. Act – Approach of Magistrate in taking cognizance of offence punishable under Section 31 of D.V. Act is a glaring legal error and same will have to be set aside.(Paras 14, 15, 16 and 17)
Result: Criminal Petition allowed.
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 :
“Whether penal provision found in Section 31 of the D.V. Act could be invoked for non-payment of arrears of maintenance?”
6. Learned Magistrate in Crl.Misc.No.306/2015 has passed an interim order on IA’s 1 and 3 as under:
“1ST respondent is directed to pay interim maintenance of Rs.10,000/-per month to the petitioners from the date of petition until further orders.
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. That the accused has to pay the maintenance amount of Rs.2,10,000/-from 29/7/2015 to till date 29/3/2017. The accused has made breach of protection order passed by this Hon’ble court. The accused did not care for complainant and also to the court order.”
8. Respondent No.1 in her sworn statement stated as under:
“This court was passed interim order dtd 29-07-2015 of Crl.Misc No.306/15 directing my husband to pay monthly maintenance of Rs.10,000/-per month. My husband Yasin Naikwadi not complied the order passed by this court in Crl Misc No.306/15. Till date my husband has to pay the arrears amount of Rs.2,70,000/-”
9. Considering the above aspects the alleged breach committed by the petit
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.
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.
Section 20(d) authorises a Magistrate to grant maintenance for aggrieved person as well as her children.
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....
A directive ensuring basic amenities does not qualify as a protection order under the Protection of Women from Domestic Violence Act, thus its breach is not actionable under the associated penal prov....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
