Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J.
Vijayakumari – Appellant
Versus
Jayakumar Jj Nivas – Respondent
OP(Crl.) No. 56 of 2024
Decided on : 05-07-2024
PROTECTION ORDER - Domestic Violence - Protection of Women from Domestic Violence Act, 2005 (DV Act) - Section 18, Section 31 - The court discussed the nature of the order dated 23.07.2022 and concluded that it qualifies as a protection order under Section 18 of the DV Act, entitling the Magistrate to take cognizance under Section 31. The court highlighted the significance of the distinction between a protection order and a residence order, emphasizing the need for effective remedies for breach of residence orders.
Key Points: - The court considers whether an interim order restraining dispossession from the shared household qualifies as a protection order under Section 18 of the DV Act (!) (!) (!) . - The Magistrate's interim order dated 23.07.2022 restrained the respondent from harming the petitioner or dispossessing her from the shared household (!) (!) . - The Magistrate dismissed applications under Section 31 for violation, classifying the order as a residence order under Section 19, not a protection order (!) (!) (!) . - Protection orders under Section 18 prohibit acts of domestic violence, including economic abuse like restricting access to shared household, and are enforceable under Section 31 (!) (!) (!) . - The character of the order (protection or residence) is determined by its nature and terms; the order dated 23.07.2022 was explicitly for protection under Section 23 (!) (!) (!) . - The High Court set aside the Magistrate's impugned order dated 06.01.2024 as perverse and directed initiation of action under Section 31 (!) (!) . - Section 31 applies only to protection orders, creating an anomaly for residence orders lacking direct penalty, though enforceable under Cr.P.C. (!) (!) (!) .
JUDGMENT :
Can an interim order protecting a woman in a domestic relationship from being dispossessed from the shared household, qualify as a protection order? The above question arises for consideration in this original petition under Article 227 of the Constitution of India.
2. Petitioner's attempt to enjoy living in a shared household has been in vain for the last almost two years, despite an order to that effect issued by the Magistrate in a proceeding initiated under the Protection of Women from Domestic Violence Act, 2005 (for short ‘the DV Act’). The application for initiating proceedings to impose penalty under section 31 of the DV Act, for breach of an interim order has been dismissed, stating that the order under consideration was a residence order and not a protection order.
3. Petitioner filed a complaint under Section 12 of the DV Act seeking appropriate orders against her husband and his brother and to restrain them from committing domestic violence against her. The learned Magistrate by an interim order dated 23.07.2022 in CMP No.764/2022 restrained the first counter-petitioner from harming or injuring or endangering the health or safety of the petitioner and also from dispossessing her from the shared household specifically named therein.
4. Subsequently, since the aforenoted order was not being complied with, petitioner approached the local police seeking their assistance to enter the household. When the police went with her to provide assistance, the house was found locked and later, the first respondent informed that the house belonged to the second respondent – the brother of the husband of the petitioner. Since the petitioner was unable to enjoy the benefit of the order which was being flouted by the respondent, a petition was filed as CMP No.1093/2022 before the learned Magistrate seeking to initiate prosecution proceedings under section 31 of the DV Act. However, the learned Magistrate dismissed the said petition by an order dated 27.01.2023, after observing that the order could not be executed because the house was locked by the second respondent and since the first respondent had not intentionally violated the order apart from there being nothing to show that both respondents had colluded to oust the complainant from the shared household.
5. Petitioner challenged the aforesaid order in O.P.(Crl.) No.176/2023 and by judgment dated 24.03.2023, this Court set aside the said order and directed a reconsideration. Subsequently, by an order dated 10.05.2023, the learned Magistrate held that there was no prima facie case under Section 31 of the DV Act and in view of the decision in Suneesh v. State of Kerala and Another (2022 (7) KHC 577), the penalty under Section 31 of the Act will be applicable only where an order of protection under section 18 of the Act is violated.
6. Petitioner again approached this Court in O.P.(Crl.) No.554/2023 and by judgment dated 18.10.2023, the order of the learned Magistrate was set aside, after observing that the name of the house had been surreptitiously changed to make it appear that the petitioner is not entitled to reside in the shared household. This Court also observed that the important documents like the secondary school leaving certificate of petitioner’s daughter, marriage invitation card, ration card, utility bills etc., which indicated that the house now claimed to be under the exclusive ownership of the second respondent was actually the shared household were not even considered by the learned Magistrate and hence a reconsideration was ordered. Thereafter, by the impugned order dated 06.01.2024, the learned Magistrate again dismissed the application after holding that the order restraining the first respondent from dispossessing the complainant was only a residence order under Section 19 and not a protection order and hence the question of violation does not arise.
7. Adv. Kripa Anns Abraham, the learned counsel for the petitioner vehemently contended that the impugned or
An interim order preventing a woman from being dispossessed from a shared household qualifies as a protection order under the Domestic Violence Act, enforceable under Section 31.
The main legal point established in the judgment is that a divorced woman is entitled to the right of residence under S.17 of the Protection of Women from Domestic Violence Act, 2005 only if she is i....
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....
A Magistrate can grant interim residence orders under the DV Act based on prima facie evidence of domestic violence, without concluding the trial.
A Magistrate can grant interim residence orders under Section 23 of the DV Act without concluding a trial, ensuring immediate relief for aggrieved persons.
The Domestic Violence Act, 2005 allows for protection orders to be sought without a limitation period, and a domestic relationship is defined broadly to include past cohabitation, regardless of curre....
The court clarified the nature of interlocutory orders and their impact on the rights of the parties involved.
Award of maintenance – It is not mandatory for aggrieved person to have actually lived or resided with those persons against whom allegations have been levelled at the time of seeking relief.
Domestic violence- Trial Court shall before passing a decree and dispossession on the wife ensuring in view of the subsisting rights of the daughter-in-law under the DV Act to provide with an additi....
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
