IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WP(C).No. 7374 of 2009(Q) ---------------------------------- AGAINST THE ORDER DATED 16/02/2009 IN CMP.3052/2008 IN MC.64/2007 of J.M.F.C-1, SULTHANBATHERY . ............................................... PETITIONER(S): ---------------------- P.R.VELAYUDHAN NAIR, S/O.RAMAN NAIR PREETHALAYAM HOUSE, 10 HOUSE COMPOUND, SANTHI NAGAR, KAZHAKKOOTTAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.N.NAGARESH SRI.BINU PAUL SRI.T.V.VINU RESPONDENT(S): --------------- ------- CHIMMINIKKARA KARTHIAYANI, W/O.P.RAMAN NAIR, AGED 80 YEARS, PAROKKATT HOUSE, MALIKAKUNNU, NENMENI, AMBALAVAYAL P.O., SULTHAN BATTERI TALUK. ADV. DR.GEORGE ABRAHAM FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 7374/2009 Q APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE MC NO. 64/07 IN THE JFCM-1, SULTHAN BATTERI DT. 20/09/07. EXT.P2. COPY OF THE COUNTER STATEMENT DT. 21/11/2007 IN MC 64/2007 BY THE PETITIONER. EXT.P3. COPY OF THE DEPOSITION OF RESPONDENT IN MC 64/07 OF JFCM-1, SULTHAN BATTERI DT. 22/2/08. EXT.P4. COPY OF THE ORDER IN MC NO. 64/2007 DT. 21/4/2008 OF THE JFCM-1, SULTHAN BATTERI. EXT.P5. COPY OF THE ORDER DT. 29/4/2008 IN IA 159/2008 IN CMP NO. 11/2008 OF THE DIST. COURT, WAYANAD. EXT.P6. COPY OF THE ORDER IN CRL. MC 1938/2008 DT. 22/5/2008 OF THIS COURT. EXT.P7. COPY OF THE JUDGMENT IN CRL. A 73/2008 DT. 4/7/2008 OF THE SESSIONS COURT, WAYANAD. EXT.P8. COPY OF THE NOTICE DT. 23/07/2008 SENT TO SRI. SUKUMARAN NAIR. EXT.P9. COPY OF THE NOTICE DT. 15/09/2008 BY T.N. SUVARNA, ADVOCATE. EXT.P10. COPY OF THE CMP NO. 3052/2008 BY THE RESPONDENT. EXT.P11. COPY OF THE COUNTER STATEMENT DT. 8/1/2008 IN CMP NO. 3052/2008, BY THE PETITIONER. EXT.P12. COPY OF THE ORDER IN CMP NO. 3052/2008 DT. 16/2/2009 OF THE JFMC-1, SULTHAN BATTERI. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / PA TO JUDGE. Tga M.Sasidharan Nambiar, J. -------------------------- W.P.(C)No.7374 of 2009 Q -------------------------- JUDGMENT The short question for consideration is whether for breach of an order passed under Section 19 or 20 of Protection of Women from Domestic Violence Act (hereinafter referred to as 'the Act'), respondent could be prosecuted for the offence as provided under Section 31 of the Act. 2. Petitioner is the son and respondent the mother. Respondent filed Exhibit P1 petition under Section 12 of the Act claiming an order prohibiting commission of domestic violence under Section 18(a) and an order for reconveyance of the property to her under Section 18(c) and a residential order under Section 19(2) and mandatory relief under Section 20 of the Act. Under Exhibit P4 order, Judicial First Class Magistrate-I, Sulthan Bathery passed an order, finding that petitioner committed domestic violence, restraining the petitioner from WPC 7374/09 2 alienating or disposing of the property under Section 19(d). A residential order under Section 19 (2) and monetary relief under Section 20(a)(b) of the Act were also granted. Petitioner challenged that order before Sessions Court, Kalpetta. Under Exhibit P7 order, learned Sessions Judge modified that order directing the petitioner to take the building sold by him on lease from Sukumaran Nair and allow the respondent to reside in the house till her death by way of alternate accommodation as provided under Section 19 and to pay Rs.1,500/- as maintenance allowance and Rs.500/- as medical allowance as provided under Section 20 of the Act. Complaining that petitioner did not comply with the order, respondent filed C.M.P.No.3052/2008. Under Exhibit P12 order, learned Magistrate, finding that petitioner did not comply with Exhibit P7 order, took cognizance for the offence under Section 31 and posted the case for recording the plea. The said order is challenged by filing this petition WPC 7374/09 3 under Article 227 of the Constitution of India. When the writ petition was admitted, an order of stay was granted. 3. Learned counsel appearing for the petitioner and respondent were heard. 4. The argument of the learned counsel appearing for the petitioner is that the Magistrate should not have taken cognizance of the offence as provided under Section 31, as no protection order or interim protection order was passed by the Magistrate or the Sessions Judge and for non compliance of the directions given under Sections 19 and 20 cognizance cannot be taken under Section 31 of the Act and therefore, Exhibit P12 order is to be quashed. 5. Learned counsel appearing for the respondent argued that Exhibit P4 order of the Magistrate shows that petitioner had committed domestic violence and reliefs were granted under Sections 19 (d), 19(2) and under Section 20(a)(b) of the Act WPC 7374/09 4 and when there is breach of a protection order, cognizance can be taken, as it is found that there is domestic violence and under Section 18(a) a protection order could be passed prohibiting the petitioner from committing any act of violence and under clause (g), an order in favour of the aggrieved person can be passed, prohibiting the respondent from committing any other act as provided in the protection order and therefore, finding that there is domestic violence, an order was passed under Sections 19 and 20 and it would also come within the meaning of a protection order, in view of clause (g) of the Act and therefore, learned Magistrate was justified in taking cognizance of the offence. I cannot agree with the submissions. 6. Section 31 does not provide that an order passed under Sections 19 or 20, if violated, would enable the Magistrate to take cognizance of the offence. On the other hand, sub-section (1) of WPC 7374/09 5 Section 31 restricts the power in respect of breach of a protection order or an interim protection order alone. 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 a protection order. 7. Even if the argument of the learned counsel is accepted that an order under Sections 19 and 20 could be passed only on finding that there is an act of domestic violence by the petitioner, the order passed under Sections 19 and 20 cannot be a protection order as defined under Section 2(o) of the Act. By the definition given to the protection order in Section 2(o), its scope is limited to such WPC 7374/09 6 orders, which are made in terms of Section 18 of the Act. Therefore, unless the order, which was allegedly broken by the petitioner, was passed in terms of Section 18, learned Magistrate cannot take cognizance under Section 31 of the Act. 8. 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. If that be so, Magistrate is not justified in taking cognizance of the offence under Section 31 of the Act under Exhibit P12 order. Exhibit P12 order is, therefore, quashed. 9. But, that does not mean that Magistrate is not entitled to take action for non compliance of the order passed under Sections 19 and 20. Section 28 provides that provisions of Code of Criminal WPC 7374/09 7 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. Magistrate is directed to pass orders on Exhibit P10 petition expeditiously. Writ petition is disposed. 10th July, 2009 (M.Sasidharan Nambiar, Judge) tkv