Kerala High Court
Linu Joseph vs The State Of Kerala on 24 October, 2024
2024:KER:79357
CRL.MC No. 9809 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
CRL.MC NO. 9809 OF 2023
CC NO.163 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II,
ALUVA
PETITIONER/ACCUSED:
LINU JOSEPH,
AGED 40 YEARS, S/O. JOSEPH KUTTICKAL,
KUTTICKAL HOUSE,
BEHIND UKKENS THEATRE, EVANOOR,
CHEROOR P.O THRISSUR, PIN-671123
BY ADVS.
AMEER.K.M.
FASNA T.Y
HAZEENA BEEVI N.H
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
REPRESENTING SHO, ALUVA WEST POLICE STATION,
HIGH COURT OF KERALA
ERNAKULAM, PIN-682031
* ADDL.R2 ASHA GEORGE,
AGED 52 YEARS, W/O LINU,
PANDALAYIL HOUSE, A-14,
SANTHI NAGAR, ANNEXE RAJAGIRI P.O.,
SOUTH KALAMASSERY, ERNAKULAM,
PIN-683104
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CRL.MC No. 9809 of 2023
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* ADDL.R2 (DEFACO COMPLAINANT) IS IMPLEADED AS PER
ORDER DATED 22.12.2023 IN CRL.M.A.NO.2/2023 IN
CRL.M.C.NO.9809/2023.
R1 SRI.M.P.PRASANTH, PUBLIC PROSECUTOR
ADDL.R2 ADVS.T.M.RAMAN KARTHA
MANJULA NAIR(M-455)
M.S.SOUJATH(K/85/2006)
REVATHY M.A.(K/001160/2022)
GREESHMA T.G.(K/002281/2022)
SNEHA BRIGIT PRINCE(K/282/2023)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 24.10.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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CRL.MC No. 9809 of 2023
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'C.R.'
ORDER
Dated this the 24th day of October, 2024
This Criminal Miscellaneous Case has been filed under
Section 482 of the Code of Criminal Procedure by the accused in
C.C.No.163/2022 on the files of the Judicial Magistrate of First
Class-II, Aluva, and the prayers are as under;
(i) quash Annexure-A1 Complaint and all further
proceedings pursuant to the same on the files of the
Learned Judicial First Class Magistrate's Court-II, Aluva
as against the petitioner, so as to secure the ends of
justice;
(ii) quash Annexure-A6 order passed by the Court of the
Judicial First Class Magistrate Court, Aluva-II in CMP-
1203/23 in CC 163/22 dated 29.09.2023;
(iii) pass an order relaxing/ modifying the bail condition
No.2 in the Annexure A2 imposed by the Hon'ble Judicial
First Class Magistrate Court-II, Aluva with respect to
surrendering the passport and Emergency Certificate;
(iv) Grant such other reliefs deemed fit to this Hon'ble
Court;
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2. Heard the learned counsel for the petitioner and
the learned counsel for the additional 2nd respondent/the
complainant. Also heard the learned Public Prosecutor. Perused
the relevant records.
3. Here the prosecution alleges commission of
offence punishable under Section 31 of the Domestic Violence Act
by the petitioner, who is the husband of the complainant, in a case
arose out of Crl.M.P.No.1083/2014 filed before the Judicial First
Class Magistrate Court-II, Aluva. The sum and substance of the
allegation, as could be read out from paragraph 3 of the complaint
is as under;
"3. Though the respondents are restrained from
committing any Acts of domestic violence, the
respondents committed domestic violence by
committing economic abuse, that is by depriving
the financial resources to which the complainant is
entitled under the law and under the custom and
which I and the child require out of necessity,
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including house hold necessities: By the order
dated 9/3/2012 the respondents, especially the 1
respondent was bound to support the complainant
and the child financially. He did not do so. Such
omission amounts to act of violence as per the
statute which is an offence under Protection of
Women From Domestic Violence Act, 2005 and
punishable under Section 31 of the Act."
4. While seeking quashment of the proceedings, the
learned counsel for the petitioner placed a decision of this Court,
reported in Suneesh v. State of Kerala and another [2022 (7)
KHC 577] contending that this crime was registered alleging non-
payment of maintenance in view of the interim order passed by
the Magistrate. In Suneesh's case (supra), this Court considered
the issue at length and paragraphs 10 and 15 held as under;
10. Whereas the decisions highlighted by the learned
counsel for the 2nd respondent would go to show that
Section 31 would apply in cases covered by Sections
18 and 20 also. In this context, it is relevant to refer
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Sections 18, 19, 20 and 31 of the D.V Act for easy
reference and the same are extracted hereunder:
"18. Protection orders.--The Magistrate may,
after giving the aggrieved person and the
respondent an opportunity of being heard and
on being prima facie satisfied that domestic
violence has taken place or is likely to take
place, pass a protection order in favour of the
aggrieved person and prohibit the respondent
from--
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of
acts of domestic violence;
(c) entering the place of employment of the
aggrieved person or, if the person aggrieved is
a child, its school or any other place
frequented by the aggrieved person;
(d) attempting to communicate in any form,
whatsoever, with the aggrieved person,
including personal, oral or written or
electronic or telephonic contact;
(e) alienating any assets, operating bank
lockers or bank accounts used or held or
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enjoyed by both the parties, jointly by the
aggrieved person and the respondent or
singly by the respondent, including her
stridhan or any other property held either
jointly by the parties or separately by them
without the leave of the Magistrate;
(f) causing violence to the dependents, other
relatives or any person who give the
aggrieved person assistance from domestic
violence;
(g) committing any other act as specified in
the protection order.
19. Residence orders.--(1) While disposing
of an application under sub-section (1) of
section12, the Magistrate may, on being
satisfied that domestic violence has taken
place, pass a residence order--
(a) restraining the respondent from
dispossessing or in any other manner
disturbing the possession of the aggrieved
person from the shared household, whether
or not the respondent has a legal or
equitable interest in the shared household;
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(b) directing the respondent to remove
himself from the shared household;
(c) restraining the respondent or any of his
relatives from entering any portion of the
shared household in which the aggrieved
person resides;
(d) restraining the respondent from
alienating or disposing off the shared
household or encumbering the same;
(e) restraining the respondent from
renouncing his rights in the shared
household except with the leave of the
Magistrate; or
(f) directing the respondent to secure same
level of alternate accommodation for the
aggrieved person as enjoyed by her in the
shared household or to pay rent for the
same, if the circumstances so require:
Provided that no order under clause (b)
shall be passed against any person who is a
woman.
(2) The Magistrate may impose any
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additional conditions or pass any other
direction which he may deem reasonably
necessary to protect or to provide for the
safety of the aggrieved person or any child
of such aggrieved person.
(3) The Magistrate may require from the
respondent to execute a bond, with or
without sureties, for preventing the
commission of domestic violence.
(4) An order under sub-section (3) shall be
deemed to be an order under Chapter VIII
of the Code of Criminal Procedure, 1973 (2
of 1974) and shall be dealt with
accordingly.
(5) While passing an order under sub-
section (1), subsection (2) or sub-section
(3), the court may also pass an order
directing the officer in charge of the
nearest police station to give protection to
the aggrieved person or to assist her or the
person making an application on her behalf
in the implementation of the order.
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(6) While making an order under
sub-section (1), the Magistrate may impose
on the respondent obligations relating to
the discharge of rent and other payments,
having regard to the financial needs and
resources of the parties.
(7) The Magistrate may direct the officer
in-charge of the police station in whose
jurisdiction the Magistrate has been
approached to assist in the
implementation of the protection order.
(8) The Magistrate may direct the
respondent to return to the possession of
the aggrieved person her stridhan or any
other property or valuable security to
which she is entitled to.
20. Monetary reliefs.--(1) While disposing
of an application under sub-section (1) of
section 12,the Magistrate may direct the
respondent to pay monetary relief to meet
the expenses incurred and losses suffered
by the aggrieved person and any child of
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the aggrieved person as a result of the
domestic violence and such relief may
include, but not limited to,--
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the
destruction, damage or removal of any
property from the control of the
aggrieved person; and
(d) the maintenance for the aggrieved
person as well as her children, if any,
including an order under or in
addition to an order of maintenance
under section 125 of the Code of
Criminal Procedure, 1973 (2 of 1974)
or any other law for the time being in
force.
(2) The monetary relief granted under this
section shall be adequate, fair and reasonable
and consistent with the standard of living to
which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to
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order an appropriate lump sum payment or
monthly payments of maintenance, as the
nature and circumstances of the case may
require.
(4) The Magistrate shall send a copy of the
order for monetary relief made under
sub-section (1) to the parties to the
application and to the in charge of the police
station within the local limits of whose
jurisdiction the respondent resides.
(5) The respondent shall pay the monetary
relief granted to the aggrieved person within
the period specified in the order under sub-
section (1).
(6) Upon the failure on the part of the
respondent to make payment in terms of the
order under sub-section (1), the Magistrate
may direct the employer or a debtor of the
respondent, to directly pay to the aggrieved
person or to deposit with the court a portion
of the wages or salaries or debt due to or
accrued to the credit of the respondent,
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which amount may be adjusted towards the
monetary relief payable by the respondent.
xxxx xxxx xxxx xxxx xxxx
31. Penalty for breach of protection order by
respondent. --
(1) A breach of protection order, or of an
interim protection order, by the respondent
shall be an offence under this Act and shall be
punishable with imprisonment of either
description for a term which may extend to
one year, or with fine which may extend to
twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as
far as practicable be tried by the Magistrate
who had passed the order, the breach of
which has been alleged to have been caused
by the accused.
(3) While framing charges under sub-section
(1), the Magistrate may also frame charges
under section 498A of the Indian Penal Code
(45 of 1860) or any other provision of that
Code or the Dowry Prohibition Act, 1961 (28
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of 1961), as the case may be, if the facts
disclose the commission of an offence under
those provisions."
A plain reading of Section 31 would go to show
that a breach of protection order or interim
protection order by the respondent shall be an
offence under this Act and is punishable. Section
18 deals with protection orders categorised as (a)
to (g) referred to in Section 18 herein above
extracted. Section 19 deals with residence orders
and Section 20 deals with monetary reliefs and
Section 20(d) authorises a Magistrate to grant
maintenance for the aggrieved person as well as
her children, if any, including an order under or in
addition to an order of maintenance under
Section 125 of the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time
being in force. Thus it could be noticed that while
incorporating provisions under Section 31 to
impose penalty on violation of breach of
`protection order', the legislature never intended
to impose penalty for violation of `residence
orders' or `monetary reliefs'. Based on this
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principle, this Court in Velayudhan Nair v.
Karthiayani's case (supra) held that Section 31 of
the D.V Act would apply only on violation of the
interim order or final protection order passed
under Section 18 of the D.V Act and it was held
further that in case of violation of any order
passed other than an order passed under Section
18 of the D.V Act, the provisions of the Cr.P.C can
be resorted to. In this connection, it is apposite to
refer Rule 6(5) of Protection of Women from
Domestic Violence Rules, 2006, which provides
that the application under Section 12 of the D.V
Act shall be dealt with and the orders enforced in
the same manner laid down under Section 125 of
the Code of Criminal Procedure, 1973 (2 of
12974).
xxxxx xxxxx xxxxx
xxxxx xxxxx xxxxx
15. Here, the legislature vigilantly included
`protection orders' alone under Section 31 of
the D.V Act after specifically categorising the
orders which would be given under the head
`protection orders' under Section 18 of the D.V
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Act. Another very pertinent aspect to be noted
in this context is the implication and
ramification of widening the scope of Section 31.
Say for instance, a person when ordered to pay a
specified amount on every month as
maintenance or interim maintenance and under
Section 20(4) of the D.V Act, if he fails to pay the
same on completion of every month for
justified/unavoidable reasons, is it fair to hold
that the said failure and omission would be
penalised under Section 31 of the D.V Act.
Similar is the position inasmuch as other orders
excluding the order under Section 18.
Moreover, if such a wide interpretation is given,
the Courts will be over-flooded with cases
under Section 31 of the D.V Act and the said
situation cannot said to have intended by the
legislature. Therefore, the Court cannot
overturn the legislative wisdom to hold that a
`monetary relief' such as payment of
maintenance, if disobeyed, the same also would
attract significant penalty under Section 31 of
the D.V Act, treating the same as breach of
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`protection order' or `interim protection order'.
Therefore, it is held that the penalty provided
under Section 31 of the D.V Act would attract
only for breach of protection orders passed
under Section 18 of the D.V Act and the same
would not apply to maintenance orders under
Section 20 of the Act. Holding so, prayer in this
petition is liable to be allowed."
5. Then the law emerges is that penalty provided
under Section 31 of the D.V Act would attract only for breach of
protection orders passed under Section 18 of the D.V Act and the
same would not apply to maintenance orders under Section 20 of
the Act. Holding so, prayer in this petition is liable to be allowed.
6. It is argued by the learned counsel for the
respondent/original complainant that the petitioner is
attempting to leave the jurisdiction of the court after quashing
this criminal case, on getting back his passport which was
surrendered before the court pursuant to a condition imposed in
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the anticipatory bail granted by the Sessions Court in this crime.
It is also submitted that huge arrears of maintenance also is
there. In fact, these contentions are not grounds to deny
quashment of a case which is not made out prima facie. Now the
M.C. itself was disposed of and thus the respondent/original
complainant is at liberty to move before the trial court and get
the arrears realised as per the procedure established by law.
7. Reading the prosecution allegations as extracted
above, it is emphatically clear that the offence under Section 31
of DV Act would not attract for failure to pay maintenance or
interim maintenance, since the said order is not a protection
order envisaged under the DV Act. Therefore, the entire
prosecution is unwarranted and the same would require
quashment.
In the result, this petition stands allowed. All further
proceedings against the petitioner in C.C.No.163/2022 on the
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files of the Judicial First Class Magistrate Court-II, Aluva,
pursuant to Annexure A1 complaint stand quashed.
Sd/-
A. BADHARUDEEN
JUDGE
bpr
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PETITIONER'S ANNEXURES
Annexure A1 THE TRUE COPY OF THE COMPLAINT FILED BY
THE WIFE OF THE PETITIONER AS CC
Annexure A2 THE TRUE COPY OF THE BAIL ORDER IN CMP
NO. 697/23 IN CC 163/22 DATED 27.02.2023
Annexure A3 THE TRUE COPY OF THE PASSPORT NO.H5846170
PRODUCED BEFORE THE HONOURABLE JUDICIAL
FIRST-CLASS MAGISTRATE COURT II AT ALUVA
Annexure A4 TRUE COPY OF THE EMERGENCY CERTIFICATE
NO.X0854684 OF THE PETITIONER.
Annexure A5 THE TRUE COPY OF THE ORDER IN CMP
NO.745/23 IN CC 163/22 DATED 04.03.2023
Annexure A6 THE TRUE COPY OF THE DISMISSAL ORDER
DATED 29.09.2023 IN CMP 1203/23 IN CC
Annexure A7 THE TRUE COPY OF THE ORDER IN CMP
857/2023 IN MC 36/2014 DATED 11.08.2023
Annexure A8 THE TRUE COPY OF THE ORDER IN OP
NO.102/2012 DATED 18.02.2013 OF HONBLE
FAMILY COURT ERNAKULAM
RESPONDENTS' ANNEXURES
Annexure R2(a) A TRUE COPY OF THE ORDER DATED 18.07.2014
IN I.A 1589/2014 IN OP 1767/2012 OF
FAMILY COURT ERNAKULAM
Annexure R2(b) A TRUE COPY OF THE JUDGEMENT DATED
18.02.2013 IN O.P NO. 102/2012
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Annexure R2(c) A TRUE COPY OF ORDER DATED 09.03.2012 IN
CRL. MP 676/2012 IN CRL. MP NO.666/2012
BEFORE THE JFCM-2 COURT ALUVA
Annexure R2(d) A TRUE COPY OF THE ORDER DATED PASSED BY
THE LEARNED MAGISTRATE ON 28.12.2013
GRANTING MONTHLY MAINTENANCE.
Annexure R2(e) A TRUE COPY OF THE ORDER DATED 30.07.2014
IN CRL.M.P.NO.1083/2014 IN M.C.NO.36/2014
OF JFCM-II, ALUVA.
Annexure R2(f) A TRUE COPY OF THE ORDER DT. 12.12.2014
IN MP 3066/14 IN CC 730/14 OF JFCM-II,
ALUVA
Annexure R2(g) TRUE COPY OF THE ORDER IN MC 36/2014 DT.
30TH JUNE 2015 JFCM-II COURT ALUVA
Annexure R2(h) A TRUE COPY OF THE ABOVE JUDGMENT DT.
28.04.2015 IN OP 2082/2012 BEFORE THE
FAMILY COURT ERNAKULAM
Annexure R2(i) TRUE COPY OF THE TRUE ORDER DT. 1ST
JANUARY, 2015 IN OP NO. 1767/2012 OF
FAMILY COURT ERNAKULAM.
Annexure R2(j) TRUE COPIES OF CHEQUES DATED 19.08.2013,
07.01.2013 AND 24.06.2013
