S.31 DV Act | Non-Payment Of Maintenance Arrears Not Prosecutable As Violation Of Protection Order: Karnataka High Court

The Karnataka High Court has held that a husband's non-payment of arrears to his wife and children would not invite prosecution under Section 31 of the Protection of Women from Domestic Violence Act, 2005.

A single judge bench of Justice Shivashankar Amarannavar quashed the proceedings initiated against Mohammed Yaseen Naikwadi and said “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.”

The complainant-wife filed a private complaint against the petitioner-husband alleging that he breached the protection order by not paying the maintenance amount as per the order dated 29.07.2015 and committed an offence punishable under Section 31 of the Act.

It was submitted that the Magistrate recorded the sworn statement of respondent No.1 (wife) and registered a criminal case against the petitioner by order dated 12.01.2022 for an offence punishable under Section 31 of the D.V. Act.  

The petitioner argued that the order which was allegedly violated was passed by the Magistrate not as a protection order, but as an order to pay interim maintenance.

It was contended that as per sub-section (1) of Section 31 of the D.V. Act, it would only apply to a breach of a protection order and not to a breach of the interim maintenance order. 

Upon hearing the arguments the bench said “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.”

It was noted that in the present case, provisions of Section 31 of the D.V. Act were invoked on the ground that arrears of the maintenance were not paid and not for violation of protection order.

The bench held “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 DV. Act, will have to be taken into consideration while analysing the scope of Section 31 of the D.V. Act. If protection order was inclusive of monetary relief of granting maintenance, Section 20 of the D.V. Act would not have been separately provided.”

Accordingly, it allowed the petition.

Appearance: Advocate Z.M. Hattarki and Advocate M Mulla for Petitioner.

Advocate S.B. Shaik for R1

Citation No: 2023 LiveLaw (Kar) 485

Case Title: Mohammed Yasin Naikwadi AND Aneesa Mohammed Yasin Naikwadi & ANR

Case No: Criminal Petition No 102231 OF 2023.

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