The year of 2005 shall be remembered forever in the Parliamentary History of India because in this year, the Indian Parliament recognized two very important rights of Indian Citizens, i.e. Right to Information and Protection of Women from domestic violence. The Protection of Women from Domestic Violence Act, 2005, (herein after “the Act”) came into force on 17 October 2006. The Act provides effective remedies from economic, physical, sexual, verbal and emotional abuse. This article covers analysis of the punitive provision enumerated in controversial Section 31 of the Act, which has received a lot of attention.

Section 31 provides the penal provision for breach of protection order by respondent. The bare provision of this section is 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 fine which may extend to twenty thousand rupees, or with both.

(2)     The offence under sub-section (1) shall as for as practicable be tried by the magistrate who has passed the order, the breach of which has been alleged to have been cause by the accused.

 (3)     While framing charges under sub-section (1), the magistrate may also frame charges under section 498-A of the Indian Penal Code (45 of 1860) or any other provision of the 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.

The controversy concerning Section 31(1) of the Act is —

“Whether breach of order granting monetary relief under section 20 or breach of interim order relating to monetary relief under section 23, attracts penal provision under section 31 of the Act?”

The above question has a great public importance and deals with major social problems. In the regard, first of all the meaning of “protection order” defined in the Act should be appraised. Section 2(o) of the Act implies that a protection order is an order made in terms of Section 18.

Section 18 is replicated below:

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 favor 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 to communicate 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 account 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 other person who give the aggrieved person assistance from domestic violence;

g)    committing any other act as specified in the protection order.

From the conjoint reading of aforesaid legal provisions, it is clear that penal provision under Section 31 attracts when a prima facie case is made out in violation of the protection order issued under Section 18.

Now the provision relating to grant of monetary relief under Section 20 is to be seen to compare the legal position. Section 20(1) of the Act contemplates –

20. Monetary reliefs –

(1) While disposing of an application under sub-section of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to –

(a)    the loss of earnings;

(b)    the medical expenses;

(c)     the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d)    the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973, or any other law for the time being in force.

Section 31 does not apply in case of violation of Section 20 of the aforementioned Act. Section 28 provides that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973.

Owing to the above, in case of non-compliance of Section 20 of the Act, the procedure prescribed under Section 125 of the Code of Criminal Procedure, 1974 must be followed, which provides efficacious remedy for recovery of amount of maintenance.

While dealing the issue involved in this Article, same views were taken by different High Courts, and are listed below:

1. The Hon’ble High Court of Rajasthan in the case of Smt. Kanchan vs. Vikramjeet Setiya, reported in 2013 CriLJ 85, opined that the term “monetary relief” is not included in Section 31 of the Act. Section 28 provides that the Courts shall be governed by the Code of Criminal Procedure in relation to the proceedings under Section 12, 18, 19, 20, 21, 22 and 23 as well as offence under Section 31 of the Act of 2005.
2.  The Hon’ble Allahabad High Court in the case of Manoj Anand v. State of U.P. & Anr., reported in 2012 (3) ALJ 612 opined that Section 31 could not be invoked in case of failure to pay maintenance.
3. Hon’ble Kerala High Court in the case of Kanaka Raj v. State of Kerala and Anr. Reported in AIR 2010 (NOC) 190 (KER) observed “An offence under Section 31 of the Act is only for breach of either a protection order or an interim protection order passed under Section 18 and as defined under Section 2(o) of the Act. All other orders passed could only be executed as provided in the code of Criminal Procedure in view of mandate under Section 28 of the Act.”
4. Hon’ble Delhi High Court in the case of Mrs. Savita Bhanot v. Lt. Col. V.D. Bhanot, reported in 2011 Cri.L.J. 2963 opined that the person who commits breach of protection order or interim protection order will be liable to punishment under Section 31 of the Act.

However, a divergent approach was adopted by the Hon’ble High Court of Madhya Pradesh in the case of Sunil @ Sonu v. Sarita Chawla (Smt.) reported in 2009(5) M.P.H.T. 319, wherein it was held that not providing money for maintaining is amounting to economic violence for which Court is empowered to pass a protection order and prosecution can be made for such violation of the protection order.

In the wake of Sections 18, 20 and 28 of the Act of 2005 and also in the light of the aforesaid judgments rendered by the Hon’ble Rajasthan High Court, Allahabad High Court, Kerala High Court and Delhi High Court, it seems proper that “the breach of order granting monetary relief under section 20 or breach of interim order relating to monetary relief under section 23 of the Act, does not attracts penal provision under section 31 of the Act.” 

In India, the reform in the administration of Justice is a big challenge. A huge number of cases are pending in the courts, and the advocates, who assist the courts in justice delivery system, work in laborious situations for adjudication and disposal of such court cases. The working conditions of advocates in such courts and infrastructure available thereto is a matter of great concern. Most of the advocates do not have any personal office or library, and they are forced to depend on the bars’ offices and library.

Realizing such working conditions of the advocates, the High Court of Madhya Pradesh, Gwalior Bench, in a Public Interest Litigation, while invoking its jurisdiction under Article 226 of the Constitution of India, directed the State Government, “it is obligatory on the part of the Government to bear electricity expenses for fans, tube-lights and bulbs and even coolers during summers officially provided by the Courts in the bar rooms of the High Court, District Courts and Tehsil Courts.

This Judgment (decided on 24 January 2013) was delivered by the Divisional Bench comprising Justice S.K. Gangele and Justice G.D. Saxena in the matter of Vinod Kumar Bhardwaj v. State of M.P. (Writ Petition No. 5007 of 2012), initiated as a Public Interest Litigation by a Senior Advocate, Mr. Vinod Kumar Bhardwaj. While pronouncing the Judgment, the Hon’ble High Court relied on the authorities of the Supreme Court, which are as follows: –

1. Lalit Mohan Das v. The Advocate General, Orissa, reported in AIR 1957 SC 250;
2. Supreme Court Bar Association v. B.D. Kaushik (2011) 13 SCC 774; and
3. Sudha v. President, Advocate Associations, Chennai (2010) 14 SCC 114.

It is pertinent to note that these directions are applicable to the territorial jurisdiction of the Gwalior Bench.