S.31 Domestic Violence Act | Taking Cognizance & Imposing Penalty On Same Day Is Unknown To Law: Jharkhand High Court

Section 31 of the Act provides for penalty for breach of protection order by the respondent. Section 31 of the Act is very clear that this section can be invoked whenever the order of protection has been breached.

Sub-clause 2 provides that the offence of breach of a protection order or interim protection order shall be tried as far as practicable by the Magistrate who has passed the order alleged to have been breached. Sub clause 3 provides the Magistrate to frame the charge under section 498A of the Indian Penal Code or any other provision of the Indian Penal Code or the Dowry Prohibition Act, 1961 in case the facts disclose the commission of an offence under those provisions.

The instant petition was filed for quashing the order passed by the Judicial Magistrate, Ist Class, East Singhbhum, whereby cognizance of offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005 was taken against the petitioner. The petitioner was sent to undergo simple imprisonment for one year with a fine on the same day.

The respondent had filed a case under Section 12 of the Protection of Women from Domestic Violence Act, 2005, alleging that she married the petitioner. Still, she could never settle in her matrimonial home due to the petitioner's aggressive and dominant attitude. He also did not allow her to do any job and finally ousted her from her matrimonial home. It is further alleged that although the home was made available to her by her husband, he never maintained her and never fulfilled her financial dreams, and used to assault her physically. 

In the same case, maintenance order was passed which was challenged by the petitioner before the Sessions Judge.

In the instant writ petition, the petitioner pointed out that the order impugned was passed on the same case number which was disposed of, which was subject matter of appeal before the Sessions Judge.

Advocate Manish Kumar, appearing on behalf of the petitioner, further argued that on the same day, cognizance was taken, and the petitioner was found guilty under Section 31 of the Act; this is an unknown judicial procedure.

After perusing the impugned order, the Court noted that the cognizance was taken. The petitioner was penalized for non-payment of maintenance under Section 31 of the PWDV Act by the same order. He was sentenced to undergo simple imprisonment for one year with a fine of Rs. 20,000/-.

Therefore, the question remains as to how the concerned Court has passed an order in the same case, which was the subject matter of the appeal, and after the passing of the order, the Court has become functus officio.

The Court noted that there was no violation of protection order by the petitioner, in spite of that the impugned order was passed on the strength of Section 31 of the Act.

"Section 31 of the Act provides for penalty for breach of protection order by respondent. Section 31 of the Act is very clear that this section can be invoked whenever there is order of protection has been breached. It is an admitted fact that there was no violation of protection order by the petitioner."

The impugned order was accordingly set aside. The Court said,

"It is an admitted fact that condition precedent of Section 31 of the Act has not been taken care of by the learned court by passing order under section 31 of the Act. Thus invoking this section without jurisdiction moreover on the same day cognizance has been taken without hearing the petitioner and penalty has been imposed which is unknown to the law."

Case Title: Surendra Kumar v. The State of Jharkhand & Ors.

Citation: 2022 LiveLaw (Jha) 24

Click Here To Download The Order

Read The Order