Kedar Choutai vs Jamuna

This revision is filed against the order dated 17.02.2022 in Criminal Appeal No.27 of 2020 on the file of Principal District and Sessions Judge, Medak at Sangareddy, which was arising out of the orders dated 07.12.2020 in Crl.M.P.No.513 of 2020 in Crl.M.P.No.2296 of 2019 in D.V.C.No.4 of 2019 on the file of Judicial Magistrate of First Class, Zaheerabad.

Initially, domestic violence case was filed by respondent No.1/Smt.Jamuna against her husband/Kedar Choutai i.e. the petitioner herein, for interim maintenance. The trial Court has allowed the said petition by order dated 06.02.2020, granting interim maintenance of Rs.10,000/- per month, to respondent No.1 herein. Being aggrieved by the said orders, the petitioner herein has filed Crl.R.P.No.11 of 2020 before the Principal District and Sessions Judge, Medak, which was dismissed on 06.10.2020 confirming the orders of the trial Court, as the petitioner herein has failed to deposit the interim maintenance amount granted by the trial Court.

Being aggrieved by the said orders, a petition has been filed by respondent No.1 seeking relief to punish the petitioner for non-payment of interim maintenance as per the order dated 06.02.2020. The petitioner contested the said petition by filing a detailed counter affidavit contending that the petition itself was not maintainable, as he could not receive the certified copies of the orders. It is also contended that as he intended to file a quash petition against the said orders, he did not deposit the amounts, therefore, he is not liable for punishment.

The trial Court, after considering the rival contentions of the parties and material on record, gave a finding that various grounds under the Domestic Violence Act are made out against the petitioner, therefore, the Court has granted interim maintenance of Rs.10,000/- per month to respondent No.1 herein. Though sufficient time was granted to the petitioner to deposit the said amount, as the petitioner is evading to pay the amount, the Court took cognizance for the offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter be referred to as ‘the Act’).

Being aggrieved by the said orders of the Judicial Magistrate of First Class, Zaheerabad, dated 07.12.2020, the petitioner has preferred Criminal Appeal No.27 of 2020, and the appellate Court also dismissed the appeal confirming the orders of the Judicial First Class Magistrate, Zaheerabad. Being aggrieved by the orders of the appellate Court, the present revision is filed.

This Court has permitted the petitioner to serve notice on respondent No.1 and as notice could not be served, vide order dated 08.04.2022, the petitioner was permitted to serve notice on the counsel for respondent No.1 before the trial Court. A Memo was filed vide USR.No.14799, dated 09.02.2022, whereby, the postal tracking report is filed, disclosing that notice was served on the counsel for respondent No.1 before the trial Court, which is deemed service. Inspite of such service, there is no representation for respondent No.1.

Heard learned counsel for the petitioner and the learned Assistant Public Prosecutor, appearing for respondent No.6-State. Perused the record.

It is contended by the learned counsel for petitioner that the trial Court ought not to have taken cognizance under Sections 18 and 31 of the Domestic Violence Act, as the facts of the present case does not attract the ingredients of the said provisions. Accordingly, he prayed to set aside the orders of both the Courts below by allowing this revision.

On the other hand, the learned Assistant Public Prosecutor, appearing for respondent No.6/State contended that as the petitioner herein has failed to pay interim maintenance as ordered by the trial Court. Therefore, there is no error or irregularity in the impugned orders are passed by the trial Court as well as the lower appellate Court and there is no ground to interfere with the said orders and prayed to dismiss the revision.

Section 18 of the Act reads as under:

“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 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 dependants, 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.”

As per the said provision, it will only be attracted if the facts of the case fall under any one of conditions (a) to (g) of the Act. But in the present case, the petition filed before the Court is under Section 20 for granting monetary relief, and accordingly, the trial Court granted interim maintenance of Rs.10,000/- per month to respondent No.1 herein, therefore, the question of breach under Section 31 of the Act does not arise. Section 31 reads as under:

“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 Magistrates 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 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”

Therefore, this provision is applicable only in case of breach of protection order, which is 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. But, in the present case, there is no protection order passed under Section 18 of the Act and only the petition is filed under Section 20 of the Act for monetary relief, therefore, Section 31 of the Act is not at all applicable. Therefore, it is a fit case to set aside the orders of the trial Court as well as the appellate Court.

Accordingly, this criminal revision case is allowed. The order dated 17.02.2022 in Criminal Appeal No.27 of 2020 on the file of Principal District and Sessions Judge, Medak at Sangareddy, is set aside. Consequently, the order dated 07.12.2020 in Crl.M.P.No.513 of 2020 in Crl.M.P.No.2296 of 2019 in D.V.C.No.4 of 2019 on the file of Judicial Magistrate of First Class, Zaheerabad, is also hereby set aside.

Pending miscellaneous applications, if any, shall stand closed.