The court confirmed that orders under the Protection of Women from Domestic Violence Act can be enforced via Section 128 of the Cr.P.C., as supported by established rules.

O R D E R

The proceedings under Section 128 Cr.P.C (Section 147 of BNSS)

initiated by the petitioner in M.C.No.36/2014 on the files of the Judicial First Class Magistrate Court-II, Aluva, towards enforcement of the order passed by the Magistrate under Section 19 (f) of the Protection of Women from Domestic Violence Act, 2005 (in short, ‘PWDV Act’) towards realisation of an amount of Rs.7,81,656/- as the portion of the rent payable for alternate accommodation availed by the petitioner in that M.C., is under challenge in this petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the first respondent in that M.C.

2. According to the petitioner, the provisions contained under Section 128 of the Cr.PC, cannot be invoked for the enforcement of any order other than maintenance passed by the Magistrate under the provisions of the PWDV Act. For the above reason, Annexure-A1 CMP filed by the second respondent (petitioner in the M.C.) and all further proceedings pursuant to it in M.C.No.36/2014 on the files of the Judicial First Class Magistrate Court-II, Aluva, are sought to be quashed.

3. Heard the learned counsel for the petitioner, the learned counsel for the second respondent and the learned Public Prosecutor representing the State of Kerala.

4. Rule 6(5) of the Protection of Women From Domestic Violence Rules, 2006, provides for the enforcement of the orders passed by the Magistrate in applications filed under Section 12 of the PWDV Act. As per the above Rule, such orders are to be enforced in the same manner laid down under 5 of the Cr.PC.

5. The enforcement of an order passed under Section 125 Cr.PC (Section 144 BNSS) could be done by two ways. By resorting to Sub-Section (3) of Section 125 Cr.PC, an aggrieved person could seek the aid of the Magistrate for issuing a warrant against the opposite party towards levying the amount due for every breach of the said order, and to detain the opposite party for a term which may extend to one month or until payment if sooner made. The other way is to take recourse to Section 128 Cr.PC for enforcement of the order at the place where the opposite party is found.

6. Section 431 of the Cr.PC (Section 471 BNSS) provides that any money (other than fine) payable by virtue of any order passed under the Cr.PC shall be recovered as if it were a fine, if the method of recovery of such amount is not otherwise expressly provided for. As far as the PWDV Act is concerned, the mode of recovery of the amount ordered to be paid as rent under Section 19 (f) of the said Act, is not expressly provided in the said enactment. That being so, the person in whose favour the order is so passed could very well seek the aid of Section 431 Cr.PC, as stated above, for the enforcement of the said order in the same manner as in the case of orders under Section 12 5 Cr.PC being enforced under 8 Cr.PC. There is absolutely no merit in the challenge raised by the petitioner that the amount directed to be paid as rent could not be realised by resorting to 8 Cr.PC, since Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2006, provides for the enforcement of the order passed in the applications filed under of the PWDV Act by taking recourse to the procedure laid down under 5 of the Cr.PC. Since the mode of enforcement provided under 8 Cr.PC has to be taken as a continuation of 5 Cr.PC, there is absolutely no bar in resorting to 8 Cr.PC for the enforcement of the order passed under (f) of the PWDV Act, in view of the enabling provisions contained in Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2006, and Section 431 Cr.PC.

7. The learned counsel for the petitioner cited the decisions rendered by this Court inNeethu v. Trijo Joseph [2022