IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 Crl.MC.No. 3829 of 2009() ------------------------- MC.76/2009 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER(S): -------------------------- SHAHUL HAMEED, S/O. IBRAHIM KUTTY, T.C 13/705, SHAHINA MANZIL, KUNNUKUZHY, VANCHIYOOR.P.O, THIRUVANANTHAPURAM. BY ADV. MR.S.MOHAMMED AL RAFI RESPONDENT(S): ---------------------------- 1. NABEESA BEEVI, D/O. FATHIMA BEEVI, T.C 13/705, SHAHINA MANZIL, KUNNUKUZHY, VANCHIYOOR.P.O, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SMT.SREEDEVI KYLASANATH, SMT.SHALEENA RAJAN, SMT.V.J.SAFEENA. R2 BY PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/02/2010, THE COURT ON 15/02/2010 PASSED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- Cr. MC No.3829 of 2009-E ------------------------------------- Dated 15th February 2010 Order This petition is filed, assailing Annexure E order dated 07.10.2009 in MC No.76/09 on the file of the Additional Chief Judicial Magistrate's Court, Thiruvananthapuram. 2. The petitioner is the respondent in Cr.MP No.2855/09 on the file of the Chief Judicial Magistrate's Court, Thiruvananthapuram, which was initiated on a complaint filed by the first respondent herein, seeking the reliefs under Ss.12 and 19 of the Protection of Women from Domestic Violence Act 2005 (hereinafter referred to as the DV Act). It is to be noticed that the petitioner is none other than the son of the first respondent. In the complaint filed by the first respondent, it was averred that an extent of six cents of property with a building thereon, belonged to her husband Ibrahim Kutty. While he was alive, the first respondent was residing in the said house along with others. After the death of her husband, it is claimed that she continued to stay there along with the petitioner. After the marriage of the petitioner, things began to change and there were frequent CR MC 3829/09 2 quarrels between the first respondent and the wife of the petitioner. It is claimed by the complainant in the complaint that she had to leave the house and stay with one of her two daughters, who were given in marriage. Later, at the intervention of mediators, the first respondent came back to her house and she was allowed to stay in the second floor of the house. But, that too became impossible due to the acts committed by the petitioner and his wife. Therefore, the first respondent filed a complaint before the Chief Judicial Magistrate's Court, Thiruvananthapuram, seeking the reliefs under Ss.12 and 19 of the Protection of Women from Domestic Violence Act, 2005. 3. It appears that the Court below passed an interim order in CMP No.2856/09 in favour of the complainant before it. The said order was carried in revision before the Sessions Court, Thiruvananthapuram, which disposed of the revision petition by Annexure B order dated 21.08.2009, the operative portion of which reads as follows : “The respondent is directed to find out a reasonable accommodation for the aggrieved person suitable for her residence at the same level as enjoyed by her in the shared household within two weeks from the date of this order and he CR MC 3829/09 3 is directed to pay the rent, electricity and water charges etc. for the said building without committing default during the pendency of the proceedings before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. Point is answered accordingly.” 4. The petitioner says that the first respondent approached the Court under S.31 of the DV Act complaining of breach of the protection order. He would point out that he was ready and willing to secure a house on rent for the first respondent herein, but the first respondent insisted that the house to be taken on rent should be near to the house of the petitioner, to which course, the petitioner was not amenable because he feared that it would again spark off quarrel between his wife and the first respondent. 5. It was in the above circumstances that the first respondent herein approached the Court below under S.31 complaining non-compliance with the order and the Court passed the impugned order. 6. It is unnecessary to go into the rival contentions in this case for the simple reason that this petition can be disposed of on a short ground. CR MC 3829/09 4 Section 31 of the DV Act reads as follows : "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." A reading of S.31 shows that the proceedings can be initiated only for breach of the protection order or an interim protection order. As to what is the protection order contemplated under S.31, one has to refer to S.18, which reads as follows : "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 CR MC 3829/09 5 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." Section 17 of the DV Act, to which recourse has now been taken by the complainant before the Court below, deals with the right to reside in a shared household. 7. The breach of order under S.17 does not come within the ambit of Section 31 at all. This aspect has been considered in the decision reported in Velayudhan Nair v. Chimminikkara Karthiayani (2009(3) KHC 377), wherein it was held as follows : "Protection Order is defined under sub-section (o) of Section 2 as an order made in terms of Section 18. Therefore, only if an order, which is allegedly broken by the petitioner, is a protection order as defined under Section 2(o), cognizance could be taken under Section 31 of the Act. Such an order should be made in terms of Section 18. An order under Section 19 or 20 is not an order made in terms of Section 18 and hence, cannot be CR MC 3829/09 6 a protection order. The order itself shows that directions given were under Sections 19 and 20 of the Act and not under Section 18. As the order passed under Sections 19 and 20 cannot be an order passed in terms of Section 18, as defined under Section 2(o) , the Magistrate cannot take cognizance under Section 31 if there is breach of an order passed under Sections 19 and 20. Section 28 provides that provisions of Code of Criminal Procedure applies to an order passed under Sections 12, 18, 19, 20, 21 and 22 of the Act, Magistrate is entitled to take action against the respondent as provided under the Code of Criminal Procedure." A reading of the above decision would clearly show that S.31 does not take within its ambit, an order under S.17 of the Act. 8. In the result, this petition is allowed. The impugned order is set aside and the court below is directed to dispose of the proceedings as expeditiously as possible, at any rate, within three months from the date of production of a copy of this order. P.BHAVADASAN, JUDGE sta CR MC 3829/09 7 CR MC 3829/09 8