Point of Law: Section 31 of Protection of Women from Domestic Violence Act reads penalty for breach of protection order by respondent.

Headnote:
Domestic Violence Act, 2005 – Section 31, 12 - Indian Penal Code, 1860 - Section 498A – Criminal Procedure Code, 1973 - Section 300 - Kicked her out along with her handicapped son - Rejected claim of maintenance - Quash order by which court below has rejected claim of applicant for maintenance amount on ground that opposite party no.2 has undergone an imprisonment – Sending a defaulter to jail is not going to serve object of Enactment. [Para 12]
Finding of the Court: Defaulter has to be dealt with an iron hand as per provisions of Section 31 that any violation of protection order, or of an interim protection order, by 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 - Offence being non-bailable and cognizable, therefore, court ought to have penalized alleged defaulter for imposing maximum punishment according to guilt, where opposite party no.2 has got remarried with some other lady and enjoying life, leaving behind applicant and her handicapped son on road - This is an unpardonable offence and a sin whereby extra-ordinary punishment has to be levied mercilessly – Court have no hesitation to say that impugned order suffers from vice of law mentioned above, and therefore, impugned order passed is hereby quashed - Court concerned will issue a fresh notice to opposite party no.2 to effect that he shall clear off entire outstanding maintenance amount pursuant to order.
Result: Application disposed off.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

The order passed by the court below, which rejected the applicant's claim for maintenance due to the opposite party's imprisonment, is challenged. The court observed that serving a jail term does not absolve the opposite party from the liability to pay maintenance, and the purpose of incarceration is primarily enforcement, not satisfaction of the liability (!) (!) .
The legal provisions under the relevant Act specify that breach of protection orders is a punishable offense with imprisonment up to one year and a fine, and such offenses are non-bailable and cognizable (!) (!) .
The court emphasized that serving a jail term for non-payment of maintenance does not discharge the liability; the purpose of incarceration is to enforce compliance, not to satisfy the debt (!) (!) .
The order which directed the opposite party to remain in jail until the outstanding maintenance was paid is considered a mode of enforcement, not a resolution of the underlying liability (!) (!) .
The court noted that the opposite party's remarriage and continued enjoyment of life without fulfilling the maintenance obligation constitutes an unpardonable offense under the law, warranting strict penal action (!) (!) .
The impugned order was found to be legally flawed because it relied on incorrect legal reasoning, particularly the misapplication of the law regarding imprisonment as satisfaction of liability (!) (!) .
The court directed that the opposite party must clear the entire outstanding maintenance amount within a specified period. Failure to do so would result in penal action under the relevant protection law, including imprisonment and attachment of property for recovery (!) (!) .
The court also directed the concerned court to expedite the final decision on the main case and adjust any interim payments made by the opposite party against the total maintenance due (!) .
The application under section 482 Cr.P.C. was disposed of with the above directions, emphasizing the importance of strict compliance within the prescribed timeline (!) (!) .

These points encapsulate the legal reasoning, directives, and principles applied in this case, emphasizing enforcement mechanisms and the non-dischargeability of maintenance liabilities through imprisonment alone.

JUDGMENT :

(Rahul Chaturvedi, J.)

1. Heard Shri Akshay Kumar, learned counsel for applicant and learned A.G.A. for the State of UP. Perused the record.

2. Extraordinary powers of this Court is being invoked by the applicant u/s 482 Cr.P.C. to quash order dated 23.01.2023 passed by the Civil Judge (Junior Division)/F.T.C. (Crime against Women), Moradabad in Execution Case No.697 of 2022 (Smt. Hasina Khatoon vs. Ahmad @ Ramzani) u/s 31 of the Domestic Violence Act, 2005, arising out of Case No.10095 of 2017 (Hasina Khatoon vs. Ahmad Ali) u/s 12 of the Domestic Violence Act by which the court below has rejected the claim of applicant for maintenance amount of Rs.2.64 lacs on the ground that the opposite party no.2 has undergone an imprisonment of one month, and thus, the balance amount cannot be claimed from the opposite party no.2.

3. Before coming to the actual legal aspect of the issue, it is imperative to spell out the bare skeleton facts of the case to appreciate the controversy in its correct perspective.

(a). The applicant Hasina Khatoon got married with opposite party no.2 on 23.5.1990 as per the Muslim rites, rituals and customs. This couple was blessed with one son, unfortunately he was handicapped. It seems that there was deep rooted discord between the husband and wife on account of various factors, consequentially the opposite party no.2 kicked her out along with her handicapped son on 21.7.1995. Thus, a usual proceeding u/s 498A IPC and other allied sections was initiated against the opposite party no.2.

(b) After some time, on account of intervention of certain well-meaning persons of the society and respectable members and with the help and aid of their relatives, better sense prevailed upon the opposite party no.2 thereafter a compromise deed was executed inter-se. As a consequence thereof, the applicant started living with opposite party no.2. After sometime, the applicant was again thrown out of with her handicapped son from her domestic unit on 20.5.2017 and since then she is residing in a rented accommodation along with her handicapped son in most pathetic condition, having no fixed source of income.

(c). It is further contended by learned counsel for the applicant, that opposite party no.2 has sufficient source of income and by a rough estimate he is earning above Rs.50,000/- per month from various sources.

(d) The applicant was not having any means of earning, wholly dependent upon her husband, who is still willfully ignoring her and her handicapped son, thus, she was running from pillar to post. Under compelling circumstances, the applicant filed a proceeding under Section- 12 of the Domestic Violence Act having Case No.20095 of 2017 (Hasina Khatoon vs. Ahmad Ali) in the court of Additional Chief Judicial Magistrate-IV, Moradabad.

(e) As the applicant was in dire need of money so as to make both the ends meet for herself and her handicapped son, and therefore, she moved yet another application under Section- 23 of the Domestic Violence Act, seeking an ex-parte interim order keeping in view the exigency of the circumstances.

(f) After service of notice upon opposite party no.2, the opposite party no.2 has filed his objection denying the allegations made in the claim.

(g) Having thrashed the material on record, the court below vide order dated 19.7.2019 allowed applicant’s application for interim maintenance and directed opposite party no.2 to pay Rs.4,000/- to the applicant and Rs.4,000/- to his handicapped son, totalling Rs.8,000/- per month, payable on 10th day of every month.

(h) Aggrieved by the aforesaid interim order dated 19.7.2019, opposite party no.2 preferred an appeal having Criminal Appeal No.41 of 2019 (Ahmad Ali @ Ramzani vs. State of U.P. and others), but the Additional Session Judge, Moradabad vide its order dated 01.4.2022 have rejected the appeal preferred by opposite party no.2.

(i) Opposite party no.2, aggrieved by order dated 01.04.2022, again came to this Court by filing Crl. Misc. Appl