The Protection of Women from Domestic Violence Act, 2005, (herein after referred to as “the Act”) was enacted with an objective to protect the rights of women within the family and the act provides various reliefs to women who have been subjected to economic, physical, sexual, verbal and emotional abuse. Thus, u/s.12 of the Act, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act being protection order u/s.18, residence order u/s.19, monetary relief u/s.20, Custody orders u/s.21, and compensation orders u/s.22 or interim relief with respect any of these reliefs u/s.23.
The Act further enumerates an explicit penal provision for breach of protection order by a respondent being Section 31 of the Act. However, there exists huge controversy revolving around this punitive provision. Nonetheless, before discussing on this aspect, it is imperative to have a glance on the bare text of the Section 31 which is reproduced herein below–
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 fine which may extend to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as for as practicable be tried by the magistrate who has passed the order, the breach of which has been alleged to have been cause by the accused.
(3) While framing charges under sub-section (1), the magistrate may also frame charges under section 498-A of the Indian Penal Code (45 of 1860) or any other provision of the Code or the Dowry Prohibition Act,1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.
The question of law, that arises around the provision is as to Whether the Magistrate is empowered to invoke punitive provision under Section 31 of the Act for the breach of any order granting protection u/s.18 or residence order u/s.19 or monetary relief u/s.20 or Custody orders u/s.21 or compensation orders u/s.22 or breach of any interim order passed u/s.23 in respect of the reliefs mentioned hereinabove?
On bare reading of the section 31, it is clear that the punishment is specifically provided only for the breach of a protection orders, or of an interim protection orders. The protection orders are defined u/s. 2(o) r/w. section 18 of the Act. Whereas, other reliefs provided to an aggrieved person under this Act are residence orders, monetary reliefs, custody orders, and compensation orders that shall be passed under Sections 19, 20, 21 and 22 of the Act respectively by the Magistrate. The texts of the said Sections are replicated herein below:
(1) While disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.
(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 is not limited to—
(a) the loss of 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 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 require.
(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 by the respondent.
- Custody orders.—Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent: Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.
- Compensation orders.—In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.
- Power to grant interim and ex parte orders.—
(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.
Section 31 is an express provision which as stated above provides remedy only in the event of breach of a protection order or an interim protection order and no other orders passed under the Act. Therefore, it is clear that Section 31 does not apply in cases of violation of any reliefs granted u/s. 18, 19, 20, 21 or 22 of the Act.
Views taken by different Courts:
Although apparently, the Hon’ble Supreme Court is yet to get an occasion to deal with the issue raised herein, different High Courts as provided below have deliberated the issue and held accordingly:
- The Hon’ble High Court of Rajasthan in the case of Kanchan vs. Vikramjeet Setiya, reported in 2013 CriLJ 85, opined that the term “monetary relief” is not included in Section 31 of the Act. Section 28 provides that the Courts shall be governed by the Code of Criminal Procedure in relation to the proceedings under Section 12, 18, 19, 20, 21, 22 and 23 as well as offence under Section 31 of the Act of 2005.
- The Hon’ble Allahabad High Court in the case of Manoj Anand v. State of U.P. & Anr., reported in 2012 (3) ALJ 612 opined that Section 31 could not be invoked in case of failure to pay maintenance.
- The Hon’ble Kerala High Court in the case of Kanaka Raj v. State of Kerala and Anr., reported in AIR 2010 (NOC) 190 (KER) observed “An offence under Section 31 of the Act is only for breach of either a protection order or an interim protection order passed under Section 18 and as defined under Section 2(o) of the Act. All other orders passed could only be executed as provided in the code of Criminal Procedure in view of mandate under Section 28 of the Act.”
- The Hon’ble Delhi High Court in the case of Savita Bhanot v. Lt. Col. V.D. Bhanot, reported in 2011 Cri.L.J. 2963 opined that the person who commits breach of protection order or interim protection order will be liable to punishment under Section 31 of the Act.
However, a divergent approach was adopted by the Hon’ble High Court of Madhya Pradesh in the case of Sunil @ Sonu v. Sarita Chawla (Smt.) reported in 2009(5) M.P.H.T. 319, wherein it was held that not providing money for maintaining is amounting to economic violence for which Court is empowered to pass a protection order and prosecution can be made for such violation of the protection order.
In view of the aforesaid judgments rendered by the Hon’ble Rajasthan High Court, Allahabad High Court, Kerala High Court and Delhi High Court, it can be said that the breach of order granting residence order u/s.19, monetary relief u/s.20, custody orders u/s.21, and compensation orders u/s.22 or the breach of interim order relating to any reliefs u/s.19, 20, 21 and 22 of the Act, does not attract penal provision under section 31 of the Act.