IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 13606 of 2009(Q) -------------------------- CMP.2365/2008 of J.M.F.C.-I,HOSDRUG .................... PETITIONER(S): ---------------------- SUBAIR.K, AGED 36 YEARS, S/O.MOIDU, RESIDING AT PAZHAYAKADAPPURAM, KANHANGAD SOUTH P.O., KANHANGAD VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT, REP.BY ITS P/A HOLDER K.C.BASHEER, AGED 30 YEARS, S/O.ISMAIL,R/AT PAZHAYAKADAPPURAM, KANHANGAD SOUTH,KANHANGAD VILLAGE,KASARGOD DIST. BY ADV. SRI.T.MADHU RESPONDENT(S): ----------------------- 1. ASMA.M, AGED 34 YEARS, RESIDING AT PAZHAYAKADAPPURAM, KANHANGAD SOUTH P.O., KANHANGAD VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, SOCIAL WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.P.HARISH R2 & R3 BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dkr M.SASIDHARAN NAMBIAR, J. ================== W.P.(C) No. 13606 of 2009-Q ================== Dated this the 18th day of June, 2009. JUDGMENT Petitioner is the first respondent in CMP No.2365/2008 on the file of Judicial First Class Magistrate Court-I, Hosdurg. First respondent is petitioner in that case. That petition was filed under Section 12 of Protection of Women from Domestic Violence Act, 2005 initiated against ten persons. As per order dated 29-11-2008, Judicial First Class Magistrate-I, Hosdurg partly allowed the petition directing the petitioner to pay monthly maintenance of Rs.3,000/- to first respondent and Rs.1,500/- to the child till the culmination of M.C. proceedings pending before the Family Court under Section 125 of Code of Criminal Procedure. Petitioner was also directed to provide accommodation to first respondent and till that accommodation is made available, he was directed to pay Rs.3,000/- as house rent. First respondent filed CMP No.75/2009 for execution of the order under Sections 31(1) and (2) Protection of Women W.P.(C) No.13606/2009-Q -2- from Domestic Violence Act. The case of the petitioner is that he was not served with a notice in that proceedings and a non-bailable warrant was issued and it is illegal. This petition is filed under Article 227 of the Constitution of India to quash the non-bailable warrant contending that for non-payment of the monetary benefits, proceedings cannot be initiated under Section 31 and first respondent can execute the order only as provided under Section 421 of Code of Criminal Procedure. 2. Learned Counsel appearing for petitioner and first respondent were heard. 3. Section 31 of Protection of Women from Domestic Violence Act provides the penalty for breach of protection order, by respondent. Under sub-section (1) breach of protection order or breach of an interim protection order by the respondent shall be an offence under the Act punishable with imprisonment for a term, which may extent to one year, or with fine, which may extent to twenty thousand W.P.(C) No.13606/2009-Q -3- rupees, or with both. Under sub-section (2), an offence under sub-section (1) shall be tried by the same Magistrate who passed the protection order. Sub-section (3) provides for framing of charge for the offences under sub-section (1). A protection order is defined under Section 3(o) as an order made in terms of Section 18. Under Section 18, 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, the Magistrate can pass a protection order in favour of the aggrieved person and prohibit the respondent from committing any acts provided under clauses (a) to (g). Section 18 reads:- “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- W.P.(C) No.13606/2009-Q -4- (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; W.P.(C) No.13606/2009-Q -5- (g) committing any other act as specified in the protection order.” 4. Therefore a protection order can only be an order passed in terms of Clauses (a) to (g) of Section 18 and does not take in an order in terms of Section 19 or 20. Only an order passed in terms of Section 18 is made punishable under sub-section (1) of Section 31. It also provides the procedure for its trial. Section 19 is residence order. Sub- section (1) provides that while disposing of an application filed under Section 12, and on being satisfied that domestic violence has taken place, the Magistrate may pass a residence order as provided in clauses (a) to (f) therein. Clause (f) enables the Magistrate to direct the respondent to secure same level of alternate accommodation for the aggrieved person, as enjoyed by the respondent in the shared house or to pay rent for same, if so require. Section 20 provides for monetary reliefs. Under sub-section (1) while disposing a petition under Section 12, the Magistrate may direct the respondent to pay monetary relief to meet W.P.(C) No.13606/2009-Q -6- the expenses as provided in clauses (a) to (d), including maintenance for the aggrieved person as well as her children. Ext.P2 order shows that it is not a protection order under Section 18 passed in favour of first respondent. Instead it is a residence order as provided under Section 19 as well as monetary relief under Section 20. Both the orders cannot be enforced under Section 31, as they are not made punishable under Section 31(1) of the Act. Section 28 provides for the procedure, if not otherwise provided in the Act. Under the section, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of Code of Criminal Procedure. Though the Act does not contain specific provision for enforcement of an order passed under Section 12, sub-rule (5) of Rule 6 of Protection of Women from Domestic Violence Rules, 2006 provides the mode of enforcement of an order passed under Section 12. W.P.(C) No.13606/2009-Q -7- 5. It reads:- “Application under Section 12 shall be dealt with and the orders enforced in the same manner laid down under Section 125 of Code of Criminal Procedure, 1973”. The order sought to be executed by the first respondent is an order passed under Section 12 of the Act. It cannot be executed by filing a petition under Section 31 before the Magistrate as has been done by the first respondent. It is to be executed in the same manner like an order passed under Section 125 of Code of Criminal Procedure. Learned Counsel appearing for first respondent submitted that in the petition filed under Section 31 of the Act before the Magistrate, petitioner has already appeared and in such circumstances the Magistrate may be directed to proceed with the petition as provided for execution of an order passed under Section 125 of Code of Criminal Procedure. 6. As the Magistrate is not competent to proceed under Section 31 of the Act, for enforcement of an order W.P.(C) No.13606/2009-Q -8- passed under Section 12, non-bailable warrant issued against the petitioner is quashed. The Magistrate is directed to treat the petition filed by first respondent under Section 31, like a petition filed for execution of the orders passed under Section 125 of Code of Criminal Procedure and proceed with the petition treating the appearance of the petitioner as his appearance in such a proceeding initiated in accordance with law. M.SASIDHARAN NAMBIAR JUDGE dkr