DV Act | Breach Of 'Monetary Relief' Order Can't Be Prosecuted Under Section 31, Penalty Attracted Only For Violation Of Protection Orders: Kerala HC

Update: 2022-12-06 03:40 GMT

The Kerala High Court on Monday reiterated that the penalty provided under Section 31 of the Protection of Women from Domestic Violence Act would attract only for the breach of the protection orders passed under Section 18 of the Act and in case of violation of any other order passed under the 2005 enactment, the provisions of CrPC can be resorted to.

The breach of a protection order passed under Section 18 is an offence under Section 31 and can lead to imprisonment of one year. Justice A. Badharudeen in the decision dated December 5 considered the question that whether failure to comply with the order passed under Section 20 (monetary reliefs) would also attract penal proceedings under Section 31.

The court said while incorporating provisions under Section 31 to impose penalty for breach of 'protection order', the legislature never intended to impose penalty for violation of 'residence orders' or 'monetary reliefs' under the Act.

"Based on this principle, this Court in Velayudhan Nair v. Karthiayani's case held that Section 31 of the D.V Act would apply only on violation of the interim order or final protection order passed under Section 18 of the D.V Act and it was held further that in case of violation of any order passed other than an order passed under Section 18 of the D.V Act, the provisions of the Cr.P.C can be resorted to," said Justice Badharudeen.

The court disagreed with Madhya Pradesh High Court's ruling in Surya Prakash v. Rachna wherein it was held that Section 31 can be invoked in case of non-payment of maintenance. 

Justice Badharudeen said when the plain meaning of the words in the Statute is clear and unambiguous, the meaning of the said words has to be understood on its plain meaning to accord with the wisdom of the legislature. 

"...the legislature vigilantly included `protection orders' alone under Section 31 of the D.V Act after specifically categorising the orders which would be given under the head `protection orders' under Section 18 of the D.V Act. Another very pertinent aspect to be noted in this context is the implication and ramification of widening the scope of Section 31. Say for instance, a person when ordered to pay a specified amount on every month as maintenance or interim maintenance and under Section 20(4) of the D.V Act, if he fails to pay the same on completion of every month for justified/unavoidable reasons, is it fair to hold that the said failure and omission would be penalized under Section 31 of the D.V Act. Similar is the position inasmuch as other orders excluding the order under Section 18. Moreover, if such a wide interpretation is given, the Courts will be over-flooded with cases under Section 31 of the D.V Act and the said situation cannot said to have intended by the legislature".

The court passed the ruling in a case challenging the proceedings initiated under Section 31 of Act for violation of an order passed under Section 12 of the Act. A Magistrate had earlier directed the petitioner to pay Rs 25,000 as maintenance to his mother and sister, under Section 12 of the Act. Though the petitioner paid the same for three months, he defaulted thereafter. A complaint alleging commission of offence under Section 31 of the DV Act was filed against him. After a final report was filed, the magistrate took cognisance of the offence. 

On behalf of the petitioner, it was contended by Advocate James Abraham before the high court that Section 31 does not provide that an order passed under Section 19 or 20, if violated, would enable the Magistrate to take cognizance for the offence, while arguing that there was a difference between `protections orders' under Section 18, and `monetary reliefs' under Section 20. 

Advocates M.B. Shyni and John K. George on behalf of the petitioner's mother placed reliance on Karnataka High Court's decision in Vincent Shanthakumar v. Christina Geetha Rani & Anr and Madhya Pradesh High Court's decision in Surya Prakash v. Rachna to show that Section 31 would apply in cases covered by Sections 18 and 20 also.

Rebutting the same, the counsel for the petitioner argued that in Velayudhan Nair v. Karthiayani, the Kerala High Court held that Section 31 would apply when there is violation of an order passed in terms of Section 18 and an order under Section 19 or 20 is not an order in terms of Section 18 and hence cannot be a protection order. Reliance was also placed on Rajasthan High Court's decision Kanchan v. Vikramjeet Setiya wherein the high court agreed with the view taken in Velayudhan Nair.

Quashing the proceedings pending Additional Chief Judicial Magistrate (E.O), Ernakulam against the petitioner, Justice Badharudeen said the court cannot overturn the legislative wisdom to hold that a `monetary relief' such as payment of maintenance, if disobeyed, the same also would attract significant penalty under Section 31 of the D.V Act, treating the same as breach of `protection order' or `interim protection order'.

"Therefore, it is held that the penalty provided under Section 31 of the D.V Act would attract only for breach of protection orders passed under Section 18 of the D.V Act and the same would not apply to maintenance orders under Section 20 of the Act. Holding so, prayer in this petition is liable to be allowed," it added.

Public Prosecutor G. Sudheer also appeared in the instant case. 

Case Title: Suneesh v. State of Kerala & Anr. 

Citation: 2022 LiveLaw (Ker) 635 

Click Here To Read/Download The Order



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