Interim protection order granting maintenance under domestic violence Act which by itself does not constitute an offence.

 In the instant case, learned Magistrate passed an
interim protection order granting maintenance which by itself does
not constitute an offence. Section 31 of the Domestic Violence
Act makes a breach of protection order, final or interim, an offence
under the said Act. Issue of the applicability of Section 468 of the
Code of Criminal Procedure, 1973 prescribing bar to taking
cognizance after the lapse of the period of limitation prescribed
therein would only arise at the time of taking cognizance of such
an offence as spelt out under section 31 of the Domestic Violence
Act. On the date of the alleged desertion of the respondents,
there was no protection order and as such there could be no
breach of it translating the said occurrence into a crime as spelt


out under Section 31 of the said Act. Thus, the application made
by the applicant under the Domestic Violence Act for protection
order can not be viewed as a complaint of the offence u/s 31 of
the Domestic Violence Act. Submission on behalf of the petitioner
that the present proceedings are hit by Section 468 of the Code of
Criminal Procedure, 1973 is, therefore, without any merit.
Learned Sessions Judge, Ahmednagar, therefore, rightly
dismissed such submission made on behalf of the petitioners by
making pertinent observations at para 22 of the impugned
judgment


IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION No. 310/2012
Shaikh Ishaq Budhanbhai,

Versus
1. Shayeen Ishaq Shaikh,

CORAM : U.D. SALVI, J.
DATED : 07th & 8th August, 2012.
citation;2013(1)Crimes 222 bombay

2. Rule. Rule made returnable forthwith. Finally heard
by mutual consent.
3. The petitioner / husband is seeking quashing of the
orders passed by the learned Judicial Magistrate (First Class),
Ahmednagar in Criminal Miscellaneous Application No. 608/2011
and by learned Additional Sessions Judge, Ahmednagar in
Criminal Appeal No. 199/2011 confirming the aforesaid order
passed by learned Judicial Magistrate (First Class).
4. The respondents wife and children of the petitioner
filed Criminal Miscellaneous Application No. 608/2011 for orders
under section 23 read with section 12, 17, 18, 19, 20, 22 and 23 of
the Protection of Women from Domestic Violence Act, 2005
(hereafter referred to as “D.V. Act”) in the Court of Chief Judicial
Magistrate, Ahmednagar, on the allegations that she was driven
out of the matrimonial home by the petitioner / husband without

making provision for their maintenance and shelter. Learned
Judicial Magistrate (First Class), Ahmednagar ordered an inquiry
and called for its report from Tahsildar, Ahmednagar as per the
provisions of the said Act vide order dated 07/07/2011. The
petitioner appeared in the said proceedings and resisted the
petition with his say dated 07/10/2011. The respondents moved
an application Exhibit 10 for grant of interim maintenance.
Learned Judicial Magistrate (First Class), Ahmednagar after
hearing the parties and upon considering the inquiry report and
accompanying documents granted interim maintenance of Rs.
3,000/- per month to the respondent No.1 and Rs.2,000/- per
month to respondent Nos. 2 and 3 each, vide order dated
21/11/2011. Worth of this order was challenged in Criminal
Appeal No. 199/2011 before Additional Sessions Judge,
Ahmednagar. After hearing the parties, the learned Additional
Sessions Judge, Ahmednagar dismissed the appeal with costs
quantified at Rs.3,000/-. It is this order which has also been
questioned in the present writ petition. 
5. The learned advocate for the petitioner submitted that
all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and
offence under section 31 are governed by the provisions of
Criminal Procedure Code, 1973 and as such the present

proceedings initiated by the respondents three years after the
alleged act of deserting her is barred by Section 468 of the
Criminal Procedure Code, 1973. He invited the attention of this
Court to para 24 in the judgment delivered by the Hon’ble Apex
Court in Inderjit Singh Grewal’s case ( Inderjit Singh Grewal
Versus State of Punjab and another) : 2011 (6) Supreme 181.
According to him, this action is a counter blast to the action
initiated by the petitioner to seek custody of his children the
respondent Nos. 2 and 3. 
6. Learned Advocate for the respondents submitted that
application under Section 12 is not a complaint and as such, the
question of application of Section 468 of the Code of Criminal
Procedure, 1973 is redundant. Reliance was placed on the
judgment delivered by the Madhya Pradesh high Court in Ajay
Kant’s case [ Ajay Kant & ors. Vs. Smt. Alka Sharma : 2008
CRI.L.J. 264(1) ].
7. Section 28 of the Domestic Violence Act reads as
under : 
“28. Procedure.-- (1) Save as otherwise
provides in this Act, all proceedings under
Sections 12, 18, 19, 20, 21, 22 and 23 and
offences under Section 31 shall be governed by
the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent
the Court from laying down its own procedure
for disposal of an application under Section 12
or under sub-section (2) of Section 23.”
8. It makes applicable the provisions of the Code of
Criminal Procedure, 1973 so far as are applicable to all
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and
offences under Section 31. It specifically gives freedom to the
Court dealing with the applications under Section 12 or under subsection (2) of Section 23 of the Domestic Violence Act to lay down
its own procedure for its disposal.
9. In the instant case, learned Magistrate passed an
interim protection order granting maintenance which by itself does
not constitute an offence. Section 31 of the Domestic Violence
Act makes a breach of protection order, final or interim, an offence
under the said Act. Issue of the applicability of Section 468 of the
Code of Criminal Procedure, 1973 prescribing bar to taking
cognizance after the lapse of the period of limitation prescribed
therein would only arise at the time of taking cognizance of such
an offence as spelt out under section 31 of the Domestic Violence
Act. On the date of the alleged desertion of the respondents,
there was no protection order and as such there could be no
breach of it translating the said occurrence into a crime as spelt

out under Section 31 of the said Act. Thus, the application made
by the applicant under the Domestic Violence Act for protection
order can not be viewed as a complaint of the offence u/s 31 of
the Domestic Violence Act. Submission on behalf of the petitioner
that the present proceedings are hit by Section 468 of the Code of
Criminal Procedure, 1973 is, therefore, without any merit.
Learned Sessions Judge, Ahmednagar, therefore, rightly
dismissed such submission made on behalf of the petitioners by
making pertinent observations at para 22 of the impugned
judgment.
10. Submissions as regards the nature of the action
initiated by the respondents i.e. the counter blast to the action
initiated by the petitioner to seek custody of the children, it can
only be said that hunger knows no limitation and need for
sustenance can arise any time. No interference in exercise of writ
jurisdiction is, therefore, warranted in the impugned order.
Criminal Writ Petition No.310/2012 is, therefore, rejected. Rule is
discharged.
(U.D. SALVI, J.)

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