Order Of Granting Maintenance Not A ‘Protection Order’; Violation Won’t Attract Offence U/S. 31 Of Domestic Violence Act: Karnataka HC

The Karnataka High Court held that the order of granting maintenance does not amount to ‘protection order’ and violation of the same will not attract Section 31 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act).

The Dharwad Bench of the High Court was deciding a criminal petition filed by a man seeking to quash the proceedings pending before the Judicial Magistrate First Class (JMFC) for the offence under Section 31 of the D.V. Act.

A Single Bench of Justice Shivashankar Amarannavar observed, “The plain reading of Section 18 of the D.V. Act in the light of definition found under Section 2(o) of the D.V.Act, 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 the section 31 of the D.V. Act.”

The Bench also relied upon the case of Francis Cyril C Cunha v. Lydia Jane D’Cunha (2016 Criminal Law Journal 1967) in which the High Court dealt with the scope of Section 31 of the D.V. Act in the light of Sections 2(o), 18 and 20 of the D.V. Act and held that the protection order does not include the order of granting monetary relief of maintenance under Section 20 of the D.V. Act.

Advocate Z.M. Hattarki represented the petitioner while Advocate S.B. Shaik represented the respondents.

Brief Facts -

The respondents i.e., wife and daughter of the petitioner had filed a private complaint against him alleging that he made breach of protection order by not paying maintenance amount as per the order passed in a criminal case and committed offence punishable under Section 31 of the D.V. Act. The Magistrate recorded sworn statement of his wife and registered criminal case against the husband for offence punishable under Section 31 of the D.V. Act. Based on the said order, a case was registered against him, pending on the file of the IV JMFC, Belagavi. Therefore, the husband sought for quashing of the said proceedings before the High Court.

The High Court in view of the above facts noted, “In the present case, provisions of Section 31 of the D.V. Act was pressed into service before the Trial Court essentially on ground that of arrears of the maintenance was not paid and therefore it paved for penal action under Section 31 of the D.V Act. The learned Magistrate has construed that even the non-payment of arrears of maintenance amounts to the violation of protection order and thereby Section 31 of the D.V. Act could be invoked.”

The Court further said that providing two separate reliefs, one under Section 18 of the D.V. Act for protection and another for monetary relief under Section 20 of the D.V. Act will have to be taken into consideration while analyzing the scope of Section 31 of the D.V. Act and that if protection order was inclusive of monetary relief of granting maintenance, Section 20 of the D.V. Act would not have been separately provided.

“In view of the matter, the approach of learned Magistrate in taking cognizance of the offence punishable under Section 31 of the D.V. Act is a glaring legal error and hence, the same will have to be set aside”, ordered the Court.

Accordingly, the High Court allowed the petition and quashed the proceedings against the petitioner.

Cause Title- Mohammed Yaseen Naikwadi v. Aneesa Mohammed Yaseen Naikwadi & Anr. (Neutral Citation: 2023:KHC-D:14623)

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