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.

JUDGMENT :

BECHU KURIAN THOMAS, J.

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