NBW cannot be issued for non payment of maintenance under DV

Senior Partner

NBW Quashed-NBW cannot be issued for non payment of maintenance under DV Act

N THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4843 of 2010
 
1. SHANAVAS, S/O.ABDULSALAM,                                    … Petitioner

Vs

1. RASEENA, D/O.SHIHABUDEEN,                        
2. STATE OF KERALA,                                                           … Respondent

For Petitioner :SRI.AYYAPPAN SANKAR
For Respondent : No Appearance

The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :10/12/2010

O R D E R

M.Sasidharan Nambiar, J.

Crl.M.C.No.4843 of 2010

ORDER


First respondent, through her mother, filed petition under Section 12 of Protection of Women from Domestic Violence Act before Judicial First Class Magistrate’s Court-II, Thiruvananthapuram, which was numbered as M.C.No.246/2010. First respondent also filed a petition for interim order under Section 23 of Protection of Women from Domestic Violence Act. By Annexure-II ex parte order dated 24.9.2010, respondents therein were restrained from committing any sort of domestic violence against the first respondent herein. Petitioner, the first respondent therein, was directed to appear before the court on 7.10.2010 and surrender his passport. He was also directed to pay Rs.1,500/- per month towards maintenance to the aggrieved person. Notice was ordered to the respondents therein, including the petitioner. Petitioner, along with the third respondent, challenged that order before Sessions Court, Thiruvananthapuram in Crl.A.No.758/2010. It is pending. They also sought an order staying Annexure-II order. By Annexure-IV order, learned Sessions Judge stayed only the direction to surrender the passport. Annexure-VI, copy of the proceedings paper in M.C.No. 246/2010, shows that case was posted to 19.10.2010 and on that day, learned Magistrate directed the petitioner to appear in person and pay maintenance. On that day, case was posted to 2.11.2010. On 2.11.2010, petitioner was absent. The case was then posted to 18.11.2010. On 18.11.2010 recording that petitioner was absent and there was no payment of interim maintenance ordered, non bailable warrant returnable on 9.12.2010 was issued. This petition is filed under Section 482 of Code of Criminal Procedure for a direction to the learned Magistrate to dispose the petition filed under Section 12 of Protection of Women from Domestic Violence Act expeditiously and to stay the order issuing non bailable warrant.


2.
In the light of the order to be passed in this petition, it is not necessary to issue notice to the first respondent.


3.
Section 23(1) of Protection of Women from Domestic Violence Act provides that in any proceeding before the Magistrate, he may pass such interim order as he deems just and proper. Sub-section (2) provides that if the Magistrate is satisfied that an application prima facie discloses that respondent is committing or has committed an act of domestic violence or that there is likelihood that respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Sections 18, 19, 20, 21 or 22 against the respondent.


4. Section 31 of Protection of Women from Domestic Violence Act provides for penalty for breach of protection order. Under sub-section (1), a breach of protection order or of an interim protection order by the respondent shall be an offence and shall be punishable with imprisonment for a term which may extend to one year or fine or both. Section 32 provides that notwithstanding anything contained in the Code of Criminal Procedure, the offence under sub-section (1) of Section 31 shall be cognizable and non bailable.


5. As is clear from Section 31 of Protection of Women from Domestic Violence Act, when an order under Section 23, whether under sub-section (1) on hearing the respondent or under sub-section (2), an ex parte interim protection order, was passed and respondent commits breach of that order, respondent is punishable as provided under sub-section (1) of Section 31. That offence, as provided under Section 32 of Protection of Women from Domestic Violence Act is non bailable and cognizable. But the cognizable offence provided under Section 31(1) would only be the result of a breach of the protection order as provided under Section 18 of Protection of Women from Domestic Violence Act.


6. A Magistrate, on passing an order under Section 23(1) or an ex parte order under Section 23(2) of Protection of Women from Domestic Violence Act, cannot direct arrest of the respondent by issuing non bailable warrant before taking cognizance of the offence, if an offence is committed under sub-section (1) of Section 31. Annexure-VI proceeding paper shows that after passing Annexure-II ex parte order as provided under sub-section (2) of Section 23 of Protection of Women from Domestic Violence Act, the petition filed by the first respondent under Section 12 of Protection of Women from Domestic Violence Act was posted for the appearance of the respondents. When first respondent appeared through a counsel, he was directed to appear in person and pay the maintenance. It is on the failure to appear and pay maintenance as ordered, the non bailable warrant was issued. Learned Magistrate cannot order non bailable warrant for the failure to pay maintenance as has been done in this case. It is made clear that Magistrate can proceed against the petitioner or other respondents for non payment of the interim maintenance only as provided under Protection of Women from Domestic Violence Act and such an order cannot be enforced as has been done by the learned Magistrate. In such circumstances, the order issuing non bailable warrant can only be quashed.


Petition is allowed.

The order issuing non bailable warrant against the petitioner in M.C.No. 246/2010 is quashed. Judicial First Class Magistrate- II, Thiruvananthapuram is directed to dispose the petition filed under Section 12 of Protection of Women from Domestic Violence Act, on merits, expeditiously. It is also made clear that learned Magistrate is competent to execute Annexure-II order passed under Section 23(2) of Protection of Women from Domestic Violence Act, in accordance with the provisions of the Act.


M.Sasidharan Nambiar, Judge
10th December, 2010
tkv



Now a aam adami's take on above Re.:-

Above re. is useful for
Kerala State
’s husbands and is a persuasive re. for other States Husbands trapped under such circumstances.


Total likes : 1 times

 
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Done with AIBE

Thank You tajobsindia.... hope SC soon gives one such judgement which would be binding for all....

 
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Senior Partner

@ 1st. replier

Unfortunately many spouses in their productive youth years are compelled by Judiciary read with metro wife to give up before even reaching HC and opt for MCD at the end as the then 498a and now Bharat Ratna DV gifts of majority of metro wifes upon husbands are real culprits and more over if one sees the national age average group of spouse then it is in below 30’s when such awards of Bharat Ratna are instituted upon youths of today.


So what filters out is that even Indian men are abused too by such legal rape by their metro wife, it is other matter that they keep quite as their productivity years are at stake and or their parents are getting no more younger day by day read with their younger sister sitting unmarried at home when such cases on nations productive youths head. 


Rural cases even the staunch tombstone loving feminists can never produce in LCI public forum so I am not touching such cases which are infact the most genuine ones national average wise but un-heard of even during parliament discussions what I hear from my ears are only metro wifes demand for property rights / division of property as if with property they will build deshi Rockefeller Center over their head when they can't even get implement their rights on their fathers property etc etc. what a comedy of family law errors are these!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

 
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advocate

Thanks Sir for the judgment.

 
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Consultant

taj sir , if one anna can change india why not siff ppl also go to jantar-mantar which is so close to patiala house

 
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k

Thanks for posting this. Good Learning.

What if someone don't pay maintenance under Cr P C 125 or any other section, what action can be taken, what if the husband is out of india :), sorry for asking so many questions..... just trying to get more knowledge.

 

@Avnish:

Agree with you, as many of the victims are young and always feeling busy they are not thinking like Anna..... I think this is the right time to do something big JANTAR MANTAR against this gender bias laws..... so the wives start thinking about love instead of money/property.

 
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TKS, Taj
 
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Senior Partner

 

 

Originally posted by :Deep

"


What if someone don't pay maintenance under Cr P C 125 or any other section,

Take 1: After sufficient cause maximum 1 month Simple Imprisonment is what the SC law also says. However I am quoting right now Patna HC decision on my take.

what action can be taken,
Take 2:  Read the 18 page annexed citation of Patna HC

what if the husband is out of
india :),
Take 3: Infact why pay maint. to pink chaddhi clad Aradhans Groups’ metro wife ? Let her do tailoring / cooking classes and earn her living. In Hinduism there is no concept of Divorce it was Britishers when codifying introduced the concept of Divorce so follow Hinduism to it full extent let her hair turn grey begging for maint.

never feel sorry for asking so many questions.....

hope by now you got more knowledge not just knowledge !.
.

"

 



Attached File : 23 23 1 month jail non payment of maint patna hc.pdf downloaded 195 times
 
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student

Hi Taj

the judgement says that no Nbw for maintainence means

Acoording to maintainance the rule 6(5) of domestic violence says  any application under section 12 of domestic violence dealt with and the orders enforced in the same mannerlaid down undersection 125 of the code of criminal procedure ,

So from above it is sensible the nbw can be issued . as per 125 crpc.
 

 
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k

Thank you so much Tajobsindia sir for fantastic, to the point, detailed reply, got it clearly :). I really got the more knowledge and will gain even more from you and this forum.

 
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