Penalty U/S 31 DV Act Though Confined To 'Protection Orders', Can Be Imposed Where Such Order Is In Addition To Residence Order: Kerala HC
Tellmy Jolly
8 July 2024 12:17 PM GMT
The Kerala High Court has held that the penalty for breach of a 'Protection Order' passed under Domestic Violence Act is applicable even if such order also recognizes the woman's right to a 'Shared Household'.
Section 18 of the DV Act pertains to protection orders and Section 19 pertains to residence orders. Ordinarily, an order falling within the category of a residence order does not qualify for being proceeded against under Section 31 of the DV Act. Section 31 prescribes imprisonment of upto one year or fine of upto twenty thousand rupees or both.
Justice Bechu Kurian Thomas said,
"While granting protection to a woman in a domestic relationship, if her right to the shared household is protected expressly, such an order can qualify as a protection order also. Merely because a right of residence in the shared household is protected in the order, it does not mean that it cannot qualify as a protection order."
Bench also said that absence of statutory penalty for breach of residence order is an anomaly, which the law makers must look into. “The Act envisages protection of the right of a woman to a shared household but has unfortunately omitted to provide an effective remedy through section 31. Of course, under section 19(4) of the DV Act, the residence order can be treated as an order under Chapter VIII of the Cr.P.C. However, recourse to the said chapter of the Code cannot be an effective remedy as has been seen over the years and the objective of the statute is not being met.”
As per factual matrix of the case, the Magistrate Court had passed an interim order restraining petitioner's husband from harming her or dispossessing her from the shared household.
Petitioner claimed non-compliance of said order and approached the Magistrate to initiate proceedings under Section 31 of the Act. The Magistrate dismissed the petition on finding that the order restraining the husband from dispossessing the wife was only a residence order under Section 19 and not a protection order under Section 18 and that there is no breach of protection order.
Counsel for the petitioner submitted that every endeavour must be made to enable the women in a domestic relationship to enjoy the orders of the court. It was argued that domestic violence includes even restriction of access to a shared household as an economic abuse.
On the other hand, the Counsel for the respondent argued that Section 31 provides penalty for breach of protection order and not that of a residence order.
The Court referred to the decisions in Velayudhan Nair v. Karthiayani (2009) which was followed in Suneesh v. State of Kerala and Another (2022) wherein it was held that non-compliance of residence order can result in initiation of proceedings under Code for Criminal Procedure but not under Section 31 DV Act.
It said protection order directing prohibition of commission of any act of domestic violence within its ambit would also include access to shared household. It said, “Therefore if the order directs prohibition of the commission of any act of domestic violence, such an order can also take within its fold, the provision for access to shared household as per section 18(a). Similarly, if the order prohibits the commission of any specific act that can also qualify to be treated as a protection order as per section 18(g), provided it is issued as an order of protection.”
The Court stated that the right of access to a shared household of a wife can also be treated as a protection order if that order contains terms for the protection of a woman in a domestic relationship. It said, " A right of access to a shared household can be treated as a protection order if the terms of the order treat it as a measure of protection for a woman in a domestic relationship. Thus the nature and content of the order issued by the Magistrate determines its character as a protection order or as a residence order."
In the present case, the Court stated the order issued by the Magistrate intended it to be treated as an order of protection specifically to protect her from dispossession from a shared household and not merely as a residence order. It thus held that violation of the protection order would attract a penalty as per Section 31.
As such, the petition was allowed. The court thus set aside the order of the Magistrate to the extent it was treated as a residence order and directed the Magistrate to initiate proceedings under Section 31.
Counsel for Petitioner: Advocates Syam Kumar A.G., S.Ajitha Kumari, Gouri Nair, Kripa Anns Abraham
Counsel for Respondents: Advocates G.Sudheer, Gigimon Issac, R.Harikrishnan, Smrithi S.S., Tobias Togi Mathew , S.Manikantan Nair, Vaishakh M.S.
Citation: 2024 LiveLaw (Ker) 419
Case Title: Vijayakumari v Jayakumar
Case Number: OP(CRL.) NO. 56 OF 2024
