What is distinction between proceeding U/S 12 and U/S 31 of Domestic violence Act?

19.9. Section 31 of the Act provides for punishment only if a person commits breach of protection order passed under Section 18 or an order of interim protection passed under Section 23 of the Act. Thus, commission of acts of domestic violence by themselves do not constitute any offence punishable under the Act and it is only the breach of the order passed by the Magistrate either under Section 18 or under Section 23 of the Act which has been made punishable under Section 31 of the Act. No criminal liability is thus incurred by a person under this Act merely on account of his indulging into acts of domestic violence or depriving a woman from use of the shared household. It is only the reach of the orders passed under Sections 18 and 23 of the Act, which has been made punishable.

19.10. The Court dealing with an application under Section 12 of D.V. Act cannot take cognizance of any offence under IPC because the proceedings under Section 12 of the D.V. Act are civil in nature triable by a Civil Court, Criminal Court or Family Court. However, in the event of breach of a protection order, a fresh criminal case has to be instituted against the accused (either by an FIR or by a criminal complaint before the Court) and in that criminal case, at the stage of framing the charge, the Court is empowered to frame a charge under IPC or any other law if the facts disclose the commission of such offence. This fresh case under Section 31 would be a criminal case as the respondent would be accused of an offence under Section 31 of the DV Act and it would be tried by the Magistrate. This is clear from the reading of Section 31(2) and (3) of D.V. Act.

 IN THE HIGH COURT OF DELHI

LPA 736/2013 & CM 15769/2013

Decided On: 26.05.2014

Nidhi Kaushik Vs. Union of India and Ors.

Hon'ble Judges/Coram:

P.K. Bhasin and J.R. Midha, JJ.

Author: J.R. Midha, J.

Citation:  MANU/DE/1306/2014.

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Whether respondent can be prosecuted U/S 31 of Domestic violence Act if he fails to pay maintenance to aggrieved person?

 The aim of the Act was, therefore, to provide for protection, rehabilitation and upliftment of victims of domestic violence, in contrast to sending the aggressor to prisons. In other words, the purpose behind enforcement of monetary orders would be to provide monetary sustenance to the victim, and not the incarceration of the aggressor.

48. Thus, it can safely be concluded that the focus of PWDV Act is on providing immediate and effective relief to victims of domestic violence by way of maintenance or interim maintenance orders, and the idea is not to immediately initiate criminal proceedings against the aggressor i.e. 'respondent' as defined in the Act for non-payment of maintenance and to send such person to prison forthwith.

49. Therefore, for the reasons recorded in the preceding discussion, this Court is of the view that a person cannot be summoned under Section 31 of PWDV Act for non-compliance of monetary order such as order for payment of maintenance passed under Section 20 of PWDV Act.

IN THE HIGH COURT OF DELHI

Crl. M.C. 1951/2023 and Crl. M.A. 7426/2023

Decided On: 01.12.2023

Anish Pramod Patel Vs. Kiran Jyot Maini

Hon'ble Judges/Coram:

Swarana Kanta Sharma, J.

Citation: MANU/DE/8000/2023.

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Whether police can register offence U/S 31 of Domestic violence Act if respondent fails to pay maintenance amount in breach of protection order?

The "economic abuse" has been explained in clause (iv) of Explanation I of Section 3 of the Act wherein deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessary is an expression of "domestic violence".{Para 16}

 The amount of maintenance awarded by the Magistrate is an amount which an aggrieved person requires to meet necessities of life and for survival. Such amount is not limited to household. It includes maintenance as well. Therefore, the order passed by the Magistrate granting maintenance is an affirmative order of protection in relation to domestic violence as defined in Section 3 of the Act. For such violation, the penalty is provided in Section 31 of the Act. {Para 16}

21. In the result this Court holds as follows:-

Section 31 of the DV Act is a key provision and heartbeat of the DV Act to regulate the violator of protection order passed under Section 18 of the DV Act. The question as to whether the law enforcing authority has jurisdiction to register the Criminal Case under Section 31 of the Act for non-payment of maintenance allowance which is deemed to be breach of protection order under Section 18 of the Act, is answered affirmatively and the law enforcing authority has jurisdiction to register the case and proceed in accordance with law for every breach of order without any legal bar for the reason that each breach of order amounts to a continuing offence.

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

Crl. O.P. (MD) No. 15704 of 2018, Crl. M.P. (MD) Nos. 6953 and 6954 of 2018

Decided On: 06.03.2023

S. Amalraj Vs. State and Ors.

Hon'ble Judges/Coram:

K.K. Ramakrishanan, J.

Citation:  MANU/TN/4321/2023.

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Whether police can register offence U/S 31 of Domestic violence Act?

Sec. 32 of the DV Act reads as follows:

“Sec. 32: Cognizance and proof.-- (1) Notwithstanding anything

contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence

under sub-section (1) of Section 31 shall be cognizable and non-bailable.

(2) Upon the sole testimony of the aggrieved person, the Court

may conclude that an offence under sub-section (1) of Section 31 has been

committed by the accused.”

Sec.31 provides that the above offences are cognizable. Since

the offence under Sec.31 of the DV has been classified as an

cognizable offence as per the provisions of the abovesaid statute, it

cannot be said that the action of the Police in registering the

impugned Anx. A1 crime including the one under Sec. 31 of the DV is

in any manner illegal, improper or ultra vires. Moreover, it has to be

borne in mind that the specific allegations raised by the 2nd

respondent in Anx. A5 petition is that the accused persons had gone

to her residence and uttered obscene words and threatened and

manhandled her, etc. Therefore, the allegations in Anx. A5 petition

would constitute an offence as per Sec. 31 of the DV Act, inasmuch as

it discloses allegations that the petitioners herein, who are the

respondents Anx. A3 interim order in the DV application, have

violated the directives in Anx.A-3 order granted by the jurisdictional

Magistrate's court concerned in DV proceedings. Since the said

offence under Sec. 31 is cognizable and the correctness or otherwise

of the allegations raised in Anx. A5 would require investigation, etc.

no illegality can be attributed in the registering of the impugned Anx.

A-1 crime. Of course there could be some cases, where interim order

could be in the nature of a interim direction to the respondents in the

DV application, not to alienate immovable property , etc. and in such

cases, the allegation that the said interim order in the DV proceedings

not to alienate the above property has been breached by the other

party concerned, may not require much investigation and the same

could be dealt with as a complaint to be filed directly before the

learned Magistrate as it would be very easy to determine the factual

controversy as to whether the immovable property has been alienated

by the execution of the registered deed, etc. by the other party

concerned in breach of the interim order granted in the DV

application. Such is not the nature of the allegation in the instant

case. In the instant case, the allegation in Anx. A5 petition is that the

petitioners had gone to the residence of the 2nd respondent and

threatened and manhandled her, etc. and therefore ordinarily the

matter would require investigation etc. In the light of the facts and

circumstances of this case, this Court is of the view that no illegality

or impropriety has been committed in the registration of the

impugned Anx. A-1 crime.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR. JUSTICE ALEXANDER THOMAS

Crl.MC.No. 1848 of 2019

 PAUL,  Vs   STATE OF KERALA, 

Crl.M.C.No. 1848 of 2019

Dated this the 7th day of June, 2019

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Whether prosecution U/S 31 of DV Act is maintainable for breach of order of grant of maintenance?

On a plain reading of Section 18 in the light of definition found under Section 2(o), it could be definitely said that the order of granting maintenance does not amount to "protection order" and violation of the same will not attract the provisions of Section 31 of the above Act.

Hon'ble High Court of Rajasthan had an opportunity to discuss the applicability of the provisions of Section 31 of the above Act in regard to the noncompliance of the order relating to the non-payment of arrears of maintenance. What is held by the Hon'ble High Court of Rajasthan is that breach of order of monetary relief will not pave way to prosecute the husband. It is made clear that section 31 of the Act does not include monetary relief.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Revision Petition No. 758 of 2015

Decided On: 18.12.2015

 Francis Cyril C. Cunha Vs. Lydia Jane D'cunha

Hon'ble Judges/Coram:A.V. Chandrashekara, J.

Citation:2016 ALLMR(CRI)JOURNAL332

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Whether husband can be prosecuted under S 31 of Domestic violence Act for non payment of arrears of maintenance?

 Hon'ble High Court of Rajasthan had an opportunity to discuss the applicability of the provisions of Section 31 of the above Act in regard to the noncompliance of the order relating to the non-payment of arrears of maintenance. What is held by the Hon'ble High Court of Rajasthan is that breach of order of monetary relief will not pave way to prosecute the husband. It is made clear that section 31 of the Act does not include monetary relief.

In the present case, the provisions of Section 31 of the Act was pressed into service before the trial court essentially on the ground that arrears of the maintenance was not paid and therefore it paved for penal action under Section 31 of the Act. The learned judge of the trial court has construed that even the nonpayment of the arrears of maintenance amounts to the violation of protection order and thereby Section 31 could be invoked.

 What is argued by Sri. G. Balakrishna Shastri, learned counsel representing the respondent is that the non-payment of the arrears of maintenance amounts to domestic violence and therefore Section 31 is applicable.

 Providing two separate reliefs, one under Section 18 of the Act for protection and another for monetary relief under Section 20 of the Act will have to be taken into consideration while analyzing the scope of Section 31 of the Act. If protection order was inclusive of monetary relief of granting maintenance, Section 20 of the Act would not have been separately provided for.

 After going through the records and the decision rendered by the High Court of Rajasthan in the case of Smt. Kanchan v. Vikramjeet Setiya (MANU/RH/0824/2012 : 2013 Crl. L.J. 85, this court does not find any reason to take a view different from the one taken by the Hon'ble High Court of Rajasthan. As already discussed, the High Court of Rajasthan has exhaustively dealt with the scope of Section 31 of the Act in the light of Sections 2 (o), (k), 12,18, 20 and 28 of the Act. In this view of the matter, the approach of the trial court in taking cognizance of the offence under Section 31 of the Act in a glaring legal error and hence the same will have to be set aside. 

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Revision Petition No. 758 of 2015

Decided On: 18.12.2015

Appellants: Francis Cyril C. Cunha
Vs.
Respondent: Lydia Jane D'cunha

Hon'ble Judges/Coram:A.V. Chandrashekara, J.

Citation: 2016 CRLJ 1967

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Whether maintenance granted Domestic violence Act can be recovered using S 31 of Domestic violence Act?

On plain reading of this section, the entire enactment and the provisions shall be in addition to all other laws for the time being in force which are not derogatory to the provisions of the other laws. Therefore, it goes without saying that though such remedy of recovery of the maintenance amount is there u/S. 125(3) nevertheless, Section 31 also comes to the help of the victim. It should be borne in mind that a new enactment has been enacted knowing fully well u/S. 125 of the Cr.P.C., speedy remedy is available. Such speedy remedy is also found to be inadequate under the peculiar circumstances of certain cases, perhaps may be the reason that even an order u/S. 125 of the Cr.P.C. in some cases became futile and fruitless because of the unscrupulous husbands by using their ingenious mind successfully avoided to pay maintenance even under the enforcement proceedings u/S. 125(3), that may be the reason, that Section 31 introduced in this particular Act to make such violation of the protection order more stringent, as an offence punishable under this Section, after thorough study of all the existing laws and after taking due care and caution.

38. Having discussed the abovesaid different provisions of the Act, in view of my reasons given above, I am of the firm and considered opinion that an order granting maintenance though u/S. 23 of the Act, if it is passed ex parte or after hearing the parties to the proceedings and even after suffering that order, with knowledge of the order, if the respondent intentionally violates or abuses such an order, it shall be taken as an order deemed to have been passed to prohibit the domestic violence and to protect the victim u/S. 18 of the Act, such violation is punishable u/S. 31 of the Act, as long as such an order is enforceable, unless such order is vacated or cancelled by the competent court.

Equivalent Citation: 2015(1) AKR 834, 2015CriLJ1874,AIR 2015(NOC)557 KAR

IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)

Criminal Revision Petition No. 2309 of 2013

Decided On: 28.04.2014

 Vincent Shanthakumar  Vs. Christina Geetha Rani and Ors.

Hon'ble Judges/Coram:K.N. Phaneendra, J.

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Duty of Magistrate to be careful when deciding Domestic violence Act

 It has to be noticed that although Domestic Violence Act is not a penal law but it is a peculiar Act where non-compliance of the order passed under the Act has been made as an offence under Section 31 of the Act and an FIR can be registered against the person who does not comply with the order and this offence is triable by the same Magistrate who passed the interim order for protection or maintenance. In view of this provision under Section 31, it becomes incumbent and responsibility of the Magistrate to be careful in passing order and to specify as to whether there was domestic relationship between the aggrieved person and the respondent and who was the person responsible for compliance of the order.1

Delhi High Court

Razia Begum vs State Nct Of Delhi & Ors. on 4 October, 2010

Author: Shiv Narayan Dhingra

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Whether application made under DV Act for protection order can be viewed as complaint of offence u/s 31 of said Act?

 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

Bombay High Court

Shaikh Ishaq Budhanbhai vs (Original on 8 August, 2012

Bench: U. D. Salvi

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