Smt.Kanchan & Anr vs Vikramjeet Setiya

Smt. Kanchan. Versus Vikramjeet Setiya.

S.B. Criminal Misc. Petition No. 123/2010

...

Date of Order: February 13, 2012

PRESENT

HON'BLE MR. JUSTICE SANDEEP MEHTA

None present for the petitioner. Mr. M.A. Bhurat, Public Prosecutor for the State.

BY THE COURT:

Reportable.

The instant miscellaneous petition has been filed by

the petitioner challenging the order dated 07.11.2009 passed by

the Judicial Magistrate No.1, Sri Ganganagar in Criminal

Miscellaneous Case No. 312/2009 rejecting the application filed

by the petitioner under Section 31 of the Protection of Women

from Domestic Violence Act, 2005 (for short, "the Act of 2005")

for seeking initiation of the criminal proceedings against the

respondent on account of non-compliance of the order of

monetary relief.

The petitioner, being the wife of the respondent, had

filed an application under Section 12 as well as under Section 23

of the Act of 2005 seeking maintenance for herself and also for

her child. The application under Section 23 of the Act of 2005

was allowed on 11.8.2009 and the respondent was directed to S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs. Vikramjeet Setiya)

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make payment of Rs.3000/- per month to the petitioner and

Rs.2000/- per month to the child. When the respondent did not

comply with the order, the petitioner filed an application before

the learned trial court under Section 31 of the Act of 2005

seeking prosecution of the respondent on the ground of non-

compliance of the order of monetary relief. The said application

has been rejected by the learned Magistrate by the impugned

order dated 07.11.2009; hence the instant miscellaneous

petition.

No one appears for the petitioner.

After considering the grounds raised in the

miscellaneous petition, this Court feels that the provisions of

Section 31 of the Act of 2005 need to be considered for proper

appreciation of the issue raised in the miscellaneous petition.

The provisions of Section 31 of the Act of 2005 read as follows:-

"31. Penalty for breach of protection order by respondent.- (1) A breach of protection order, or of an interim protection order, by the 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.

(2)The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused.

(3)While framing charges under sub-section (1) the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs. Vikramjeet Setiya)

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disclose the commission of an offence under those provisions."

Thus, the provision of Section 31 of the Act of

2005 clearly spells out that the application under Section

31 of the Act of 2005 lies when there is a breach of a

protection order or an interim protection order. The term

"protection order" is defined Section 2 (o), which reads as

follows:-

Section 2 (o).-"Protection order"means an order made in terms of section 18.

Section 18 of the Act of 2005 reads as follows:-

"Section 18. Protection orders.- The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from.-

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c ) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d)attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs. Vikramjeet Setiya)

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enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order."

Thus, it becomes apparent that Section 31 of the

Act of 2005 empowers the Magistrate to prosecute and

punish a respondent in the event such respondent breaches

the order passed under Section 18 of the Act of 2005.

Section 18 of the Act of 2005 does not deal with monetary

relief. Monetary relief has been defined in Section 2 (k) of

the Act and such reliefs are to be granted by way of

proceedings under Sections 12 and 23 of the Act of 2005.

The Section 12 covers in its application all kinds of reliefs

including monetary relief as well as protection order and

compensation. The non-compliance of the order under

Section 12 can be either of protection orders or of the order

seeking monetary relief. But the question which this Court

needs to consider is as to whether the breach of an order of

monetary relief can make the respondent liable for

prosecution under Section 31 of the Act of 2005 ?

The opinion of this Court, after careful S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs. Vikramjeet Setiya)

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consideration of Section 31 is that the offence which is

created by Section 31 is specifically in regard to breach of

the protection order or an interim protection order. The

term "monetary relief" is not included in this Section and

thereby taking out of the operation of Section 31 of the Act

of 2005 any breach of an order of monetary relief. An

applicant, in whose favour the order of monetary relief has

been passed, has to apply to the Magistrate for seeking

execution of the order as per Section 20 of the Act of 2005.

Section 20 of the Act of 2005 reads as follows:-

"Section 20. Monetary reliefs.- (1)while disposing of an application under sub- section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-

(a) the loss oe earnings;

(b) the medical expenses;

(c ) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d)the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2)The monetary relief granted under this S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs. Vikramjeet Setiya)

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section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3)The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may required.

(4)The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5)The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub -section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the Court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable to the respondent."

A perusal of Section 20 of the Act of 2005

reveals that exhaustive procedure for the execution of

monetary relief has not been laid down in this section

because sub-sections (4) and (5) of Section 20 provide the

consequences to an order of monetary relief. Sub-section

(6) of Section 20 of the Act of 2005 entitles the Magistrate S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs. Vikramjeet Setiya)

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to direct the employer or debtor of the respondent to

directly pay to the aggrieved person or to deposit with the

Court a portion of wages or salaries or debt due or accrued

to the creditor of the respondent towards the monetary

relief payable by the respondent. However, this provision is

limited to the person who may have accrued credit or is a

salaried person, but in case of a self-employed person, this

provision would be of no help to the claimant.

Resultantly, the Court would have to fall back-on

to the procedure provided under Section 28 of the Act of

2005, which lays down that the courts shall be governed by

the general provisions of the Code of Criminal Procedure in

relation to the proceedings under Sections 12, 18, 19, 20,

21, 22 and 23 as well as for the offence under Section 31

of the Act of 2005. Sub-section (2) of Section 23 of the Act

of 2005 provides for a procedure to be laid down by the

court on its own for the disposal of an application under

Section 12 or sub-section (2) of Section 23 of the Act of

2005. The procedure, which the learned court below can

adopt is limited to the disposal of the application, but for

execution of the order, a resort has to be had to the general

provisions of the Code of Criminal Procedure.

Resultantly, this Court is of the opinion that the

provisions of the Code of Criminal Procedure in relation to

execution of the order under Section 125 Cr.P.C. have to be S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs. Vikramjeet Setiya)

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resorted to by the court below for giving force to the order

of monetary relief.

Looking to the nature of the Legislation and the

purpose for which the same was enacted, it is hereby

directed that henceforth all the orders of monetary relief

under the provisions of the Act of 2005 shall be executed in

the manner provided under Section 125 Cr.P.C. but with the

modification that no formal application shall be required for

such an execution and as soon as the order is passed under

Section 12 or 23 of the Act of 2005 for directing the

monetary relief, the Court, after the period provided for

appeal is over, shall suo motu issue warrant of recovery for

recovery of the monetary relief directed to be paid and in

the event of warrant for recovery not being satisfied then

the consequence of sending the respondent to civil jail, as

per the procedure provided under Section 125 Cr.P.C., shall

be resorted to.

As has been observed above, in the instant

miscellaneous petition, the challenge was made to the order

whereby the application filed by the petitioner under

Section 31 of the Act of 2005 was rejected by the learned

trial Court. This Court has already held that non-

compliance of an order of monetary relief does not give rise

to the consequence of Section 31 of the Act of 2005.

Thus, the instant miscellaneous petition is S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs. Vikramjeet Setiya)

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without force and the same is rejected. The learned

Magistrate shall forthwith issue warrant for recovery of the

amount of maintenance and if despite service of warrant,

the amount of maintenance is not deposited on or before

10th of each month then the learned Magistrate shall be at

liberty to pass an order of sending the respondent to civil

jail as per Section 125 (3) Cr.P.C.

Resultantly, the miscellaneous petition stands

disposed of accordingly.

(SANDEEP MEHTA), J.

mcs