Sunil Sonu v. Sarita Chawla .

1. Being aggrieved by the judgment dated 18-4-2009 passed by Xth Additional Sessions Judge, Indore, in Cr. A. No. 162/2009, whereby the order dated 12-3-2009 passed by JMFC, Indore, in Criminal Case No. 1911/2009, whereby the application filed by the petitioners regarding maintainability of the proceedings was dismissed, was maintained, the present revision petition has been filed.

2. Short facts of the case are that the respondent filed a complaint under section 12 of the Protection of Women from Domestic Violence Act, 2005 (No. 43 of 2005) (which shall be referred hereinafter as ‘Act’), wherein if was alleged that petitioners are father and son. It was alleged that marriage of respondent took place with one Shankar Chawla. Out of the wedlock respondent delivered three children and two years before Shankar Chawla died. Thereafter respondent fell in love with petitioner No. 1. It was alleged that thereafter the respondent was married to petitioner No. 1 in a temple as per Hindu rituals at Ujjain. It was alleged that thereafter respondent was living with petitioner No. 1 at Raviratan Apartment, Prem Nagar, Indore. It was alleged that before the marriage petitioner No. 1 assured that petitioner No. 1 shall take care of the three children of the respondent. It was alleged after the marriage petitioner No. 1 took the respondent and also her children to Ajmer, where they lived together for a period of one week. Thereafter respondent and petitioner No. 1 went to Jaipur and thereafter came back to Indore. It was alleged that thereafter the petitioner No. 1 quarrelled with the respondent and committed the domestic violence. It was alleged that the respondent was pregnant and she was aborted at Sourabh Hospital, Khajoori Bazar, Indore. It was alleged that the petitioner No. 1 is carrying his business of Page: 197mobile and earning Rs. 25,000/- per month but is not paying any amount of maintenance to the respondent. In the complaint it was prayed that petition filed by the respondent be allowed and the petitioners be restrained from causing domestic violence. Along with the application petition was also filed under section 23 of the Act for interim relief. The said application was contested by the petitioners. After hearing the parties learned trial Court allowed the application vide order dated 22-7-2008 and directed the petitioner to pay maintenance @ Rs. 2,000/- per month, against this order the appeal was filed by the petitioners under section 29 of the Act, which was numbered as Cri. Appeal No. 192/2009. This appeal was barred by time, therefore, prayer for condonation of delay was also made. The appeal was dismissed vide order dated 18-4-2009. Since the amount of maintenance was not paid by the petitioners in compliance of the interim order passed by the learned trial Court, therefore, a complaint was filed by the respondent under section 31 of the Act on 2-1-2009, wherein it was alleged that by not making the payment of maintenance as directed by this Court petitioners have committed offence, which is punishable under the Act. It was prayed that after taking cognizance petitioners be convicted. The application was contested by the petitioners by moving an application, whereby a preliminary objection was raised that complaint itself is not maintainable. After hearing the respondent vide order dated 13-7-2009 application Filed by the petitioners for dismissal of the complaint was dismissed, against which an appeal was filed, which was also dismissed, against which the present petition has been filed.

3. Shri P.M Bapna, learned Counsel for the petitioners argued at length and submits that the impugned orders passed by both the Courts below are illegal and deserve to be set aside. It is submitted that the learned trial Court by the interim order passed on the application for grant of maintenance has directed the petitioner No. 1 to pay the maintenance but the application has been filed by the respondent under section 31 of the Act against petitioner No. 2 as well while there was no direction against petitioner No. 2. It is submitted that on the face of it no action could have been taken against petitioner No. 2 but this important fact has not been looked into by both the Courts below. Learned Counsel further submits that the complaint itself is not maintainable under section 31 of the Act. It is submitted that the proceedings can be initiated under section 31 of the Act only upon the breach of protection order or interim protection order by the respondent. It is submitted that the word respondent has been defined in sub-section (q) of section 2 of the Act, which reads as under:

“(q) “respondent” means any adult male person who is or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.”

Learned Counsel submits that the protection order can be passed under section 18 of the Act, which empowers a Magistrate to pass a protection order in favour of the aggrieved person and prohibit the respondent for committing any act of domestic violence. It is submitted that the word aggrieved person has been defined in sub-section (a) of section 2, which reads as under:—

“(a) “aggrieved person” means any woman who is or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”

Learned Counsel submits that similarly the word protection order has been defined under sub-section (o) of section 2 as under:—

“(o) “protection order” means an order made in terms of section 18.”

Learned Counsel submits that since no protection order has been passed by the learned Court below, whereby the petitioners have been prohibited from committing any act of domestic violence, therefore, prosecution of the petitioner No. 1 under section 31 of the Act itself is not maintainable. Learned Counsel submits that section 28 of the Act lays down the procedure of the proceedings under sections 12, 18, 19, 21, 22, 23 and offences under section 31 of the Act, which has to be governed by the Code of Criminal Procedure. It is submitted that in view of the aforesaid provisions of law the impugned orders passed by the learned Courts below whereby the objection filed by the petitioners relating to maintainability of the complaint has been dismissed, is illegal and deserves to be quashed.

4. Shri A.S Rathore, learned Counsel for the respondent submits that the application filed by the petitioner has rightly been dismissed by both the Courts below as the interim order passed by the learned trial Court, in exercise of the powers conferred under section 23 of the Act was not complied with. It is submitted that the order, which was passed by the learned Court below is covered under sub-section (1) of section 18 of the Act. It is submitted that in the facts and circumstances of the case petition filed by the petitioners be dismissed.

5. From perusal of the record, it is evident that the interim order passed by the learned trial Court regarding the payment of maintenance was confirmed by the Appellate Court as the appeal was dismissed on account of delay. The interim order was not further challenged. Thus same has attained finality. Now the only question, which requires consideration is whether the interim order passed by the learned trial Court, whereby the maintenance was awarded is a protection order and on account of breach of protection order, the proceedings can be initiated against the petitioner under section 31 of the Act. Section 18 of the Act empowers the Court for passing a protection order against a respondent, who commits any act of domestic violence. In exercise of the powers conferred by section 37 of the Act the Central Govt. has framed the Rules. As per Rule 6 every application of the aggrieved person under section 12 of the Act is required to be filed in Form 11. Sub-clause III of Form No. 1 deals with economic violence according to which not providing money for maintaining of food, clothes, medicine etc. is amounting to the economic violence for which the Court is empowered to pass a protection order. As per sub-section (1) of section 28 of the Act the proceedings are required to be governed by the provisions of Criminal Procedure Code. As per sub-section (2) of section 28, the Court is not prevented from laying down its own procedure for disposal of an application of section 12 of the Act. In the facts and circumstances of the case where no amount of maintenance has been paid by the petitioner, no illegality was committed by the learned trial Court in initiating the proceedings under section 31 of the Act.

6. In view of this the petition filed by the petitioner has no merits and is hereby dismissed.

Petition dismissed.