Police Can Register FIR For Non-Payment Of Maintenance As It Amounts To Economic Abuse, Breach Of Protection Order Under DV Act: Madras High Court

Justice KK Ramakrishnan of the Madurai bench observed that Section 31 of the Protection of Women Against Domestic Violence Act was enacted to ensure social justice and to regulate the violator of a protection order. The court called the provision a life-saving medicine by treating failure of remittance of maintenance as an offence and crime. 

“Section 31 of the DV Act is a key provision and heartbeat of the DV Act to regulate the violator of protection order passed under Section 18 of the DV Act. The question as to whether the law enforcing authority has jurisdiction to register the Criminal Case under Section 31 of the Act for non-payment of maintenance allowance which is deemed to be breach of protection order under Section 18 of the Act, is answered affirmatively and the law enforcing authority has jurisdiction to register the case and proceed in accordance with law for every breach of order without any legal bar for the reason that each breach of order amounts to a continuing offence,” the court ruled.

The court was hearing a plea filed by man for quashing the proceedings pending before the Judicial Magistrate, Devakottai on the basis of an FIR registered for the offence under Section 31 of the DV Act.

It was submitted that the petitioner had married a woman in 1989 and the couple were blessed with two girl children. He further submitted that due to some disputes, the wife filed a petition under Sections 18 and 19 of the DV Act and the Judicial Magistrate passed an order granting maintenance to Rs. 3000 to her and Rs. 5000 to the children along with an order to give protection to her. The husband informed the court that on appeal, the maintenance to his wife was set aside and that to the children was confirmed.

He submitted that thereafter, his wife had preferred a complaint under Section 31 of the DV Act claiming that he was not paying maintenance and based on this the impugned proceedings took place.

His counsel contended that non-payment of maintenance could be recovered through an execution of award under Section 125 or Section 128 of the CrPC, ie, either through a distraint warrant or a distress warrant and non-compliance of monthly maintenance order would not result in breach of protection order. He also relied on a decision of Kerala High Court in Suneesh Vs. State of Kerala where the court had held that the penal provision would not apply to maintenance.

The respondents, on the other hand, submitted that the Madhya Pradesh High Court in Surya Prakash v. Rachna, had answered a similar question in affirmative.

However, the court noted that the due to the cumbersome procedure of enforcing the maintenance order by way of distress warrant and distraint warrant, the aimed result of getting maintenance amount in a speedy manner, was being thwarted.

It was in this background, the court noted, that the legislature brough in the penal provision under Section 31 of the DV Act to provide immediate relief to the women waiting for getting determined maintenance amount.

“The legislature has the present DV Act with the penal provision with an intention of suppressing the mischief of delayed execution proceeding of maintenance award and to provide the speedy remedy to the victim to avoid further destitution and vagrancy,” the court observed.

The court added that this transformation of execution of maintenance to a penal statute was to ensure social justice and to protect women and children and would thus be covered by Article 15(3) and reinforced under Article 39.

Thus, by applying the principle of purposive interpretation, the court observed that non-payment of maintenance allowance would amount to economic abuse.

“By applying the above principles of purposive interpretation to the below extracted Sections 2(o) and 3(iv) of the DV Act, this Court without any ambiguity holds that non-payment of maintenance allowance would amount to economic abuse and the same will very well come under the umbrella of breach of protection order,” the court observed.

The court also disagreed with a reasoning of the Kerala High Court that such wide interpretation of Section 31 would lead to over-flooding of courts, and opined that flooding of courts would only signify that the people have faith in the judiciary which is a good sign for the judiciary.

In the present case, however, the court noted that the man had been paying maintenance regularly, and thus the registering of case without conducting a proper enquiry was not correct. Thus, the court quashed the proceedings before the Judicial Magistrate and allowed the petition.

Case Title: Amalraj v State and Another

Citation: 2023 LiveLaw (Mad) 191

Counsel for the Petitioner: Mr.G.Karuppasamy Pandian representing Mr.S.T.Selvakumaran

Counsel for the Respondent: Mr.M.Muthumanikkam Government Advocate (Criminal Side), Mr.S.M.Sanjay