Law Web: Kerala HC: The Magistrate can strike off the defence for non-compliance of the order of payment of pendente lite maintenance passed under Domestic violence Act

Section 28(2) of the DV Act provides that the court can

formulate its own procedure for disposal of an application under

Sections 12 or 23(2) of the DV Act. The flexibility has been given

to the court as the proceedings under Sections 12 and 18 to 23

provide civil remedies whereas S.31 provides a criminal offence.

The Apex Court in Kunapareddy (supra) considered the nature

of proceedings under the DV Act and held that S.28(2) empowers

the court to lay down its own procedure and the Magistrate

dealing with the DV Act is empowered to allow the amendment of the application. Thus, it is clear that even though S.28(1) of the

DV Act provides that all proceedings under Ss.12 and 18 to 23

and for the offence under Section 31 shall be governed by the

provisions of Cr.P.C., the court can still lay down its own

procedure while dealing with the applications under sub-section

(1) of Section 12 or while considering the grant of interim or ex

parte ad interim relief orders under sub-section (2) of Section 23.

In view of the nature of the proceedings under the DV Act and the procedural flexibility provided under sub-section (2) of Section 28 in deciding the applications under Sections 12 or 23(2), it cannot be said that Court is bound to strictly abide by the provisions of Cr.P.C in all cases. In appropriate cases, it would be open to the court to formulate its own procedure as may be found necessary in the interest of justice, in which event, the court may not have to rely upon Cr.P.C. Thus, the court below went wrong in holding that it has no power to strike off the defence for the reason that the procedure to be followed in the proceedings under Sections 12 and 18 to 23 is that provided under Cr.P.C. {Para 11}

12. The Apex Court in Rajnesh v. Neha and Another

(2020 (6) KHC 1) referring to the judgments of the High Court on the point upheld the power of the court to strike off the defence if there was non-compliance with the order of payment of maintenance. It was, however, held that striking off the defence

is an order which ought to be passed in the last resort, if the

court finds default to be wilful and contumacious, particularly to a

dependent unemployed wife and minor child. The Division Bench

of this Court recently in Shyju v. Nadeera (2021(5) KLT 693) has

held that the Family Court can strike off the defence on failure to

pay interim maintenance ordered by the court where the default

is found to be wilful. For all these reasons, I hold that in a

proceeding under the DV Act, the defence can be struck off for

non-compliance with an order of payment of pendente lite

maintenance if the default is found to be deliberate and wilful.

However, such an order ought to be passed only as a last resort

as held in Rajnesh (supra).

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

DR. JUSTICE KAUSER EDAPPAGATH

OP(CRL.) NO. 226 OF 2022

NEETHU Vs TRIJO JOSEPH,

Dated this the 16th day of June, 2022

What is the nature of proceedings under the Protection

of Women from Domestic Violence Act, 2005 – civil or

criminal?

Does the Court/Magistrate dealing with the complaint

filed under the provisions of the Protection of Women

from Domestic Violence Act, 2005 have the power to

strike off the defence for non-compliance with the

order to pay pendente lite maintenance?

These are the important questions that arise for consideration in

the above original petition.

2. The petitioner in OP (Crl) No. 226/2022 is the wife of

the respondent therein. She filed MC No.34/2018 at the Judicial

First-Class Magistrate Court, Njarakkal (for short ‘trial court’) u/s

12 of the Protection of Women from Domestic Violence Act, 2005

(for short, the DV Act) seeking various reliefs including

maintenance. She has also moved an application for interim

maintenance u/s 23(2) as CMP No.1087/2018. It was allowed ex

parte and interim maintenance of `15,000/- was awarded to the

petitioner. The said order was challenged by the respondent at

the Sessions Court-II, North Paravur (for short ‘appellate court’) in

Crl.Appeal No.97/2019. The respondent sought a stay of the

interim order passed by the trial court. The appellate court

dismissed the stay petition as per Ext.P1 order with an

observation that the Magistrate shall consider the contentions of

the respondent and pass final order in the application for interim

maintenance. Thereafter, the respondent was given an

opportunity to file an objection to CMP No.1087/2018. After

considering the objection, the trial court confirmed the ad interim

order and directed the respondent to pay all the arrears of

maintenance within two weeks as per Ext.P3 order. The said order

was challenged by the respondent before this Court in OP (Crl)

No.286/2019. This court after hearing both sides disposed of the

original petition setting aside Ext.P3 order passed by the trial

court and directing the respondent to pay `2,00,000/- towards

arrears of maintenance within a period of one month. The trial

court was directed to dispose of MC No.34/2018 itself within a

period of three months. Ext.P4 is the said order. Since the

respondent failed to comply with the direction in Ext.P4 that he

shall pay `2,00,000/- within a period of one month, the petitioner

filed an application at the trial Court to strike off the defence of

the respondent in MC No.34/2018. Ext.P5 is the said application.

After hearing both sides, the trial court dismissed the application

as per Ext.P6 order. Aggrieved by Ext.P6 order, the petitioner

preferred OP (Crl) No. 226/2022.

3. The respondent in OP(Crl) No.226/2022 has filed

Crl.M.A.No.1/2022 in OP(Crl) No.286/2019 seeking 6 months’ time

to comply with the direction in Ext.P4 judgment to deposit

`2,00,000/-.

4. I have heard Smt. Dhanya P.Ashokan, the learned

counsel appearing for the petitioner/wife and Smt. D.Leema Rosy,

the learned counsel appearing for the respondent/husband.

5. The marital status of the parties is not in dispute. The

ex parte interim order of maintenance was confirmed as per

Ext.P3 order after hearing both sides. However, this court set

aside Ext.P3 order with a specific direction to the respondent to

pay `2,00,000/- within a period of one month towards arrears of

maintenance due. The said order was passed on 3/2/2022.

Admittedly, the direction in the said order has not been complied

with so far. MC is of the year 2018. The trial court passed the

interim order directing the respondent to pay maintenance at the

rate of `15,000/- per month, as early as on 1/12/2018. Even

today, admittedly, the respondent has not paid a single pie

towards maintenance. It is in these circumstances, that the

petitioner/wife filed Ext. P5 application at the trial court to strike

off the defence.

6. Ext.P5 application was dismissed by the trial court vide

Ext.P6 order mainly holding that as per S.28(1) of the DV Act, all

proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and

the offence u/s 31 shall be governed by the provisions of the

Code of Criminal Procedure and there is no provision in the Code

to strike off the defence.

7. The DV Act was enacted by the Parliament based on

the larger interest of human rights concomitant with various

declarations made in international conventions. The very

objective of the Act is to protect the women against the violence

that occurs within the family and for matters connected

therewith. The Act, therefore, conceives a scheme of protective

measures with the object to protect women. The statement of

objects and reasons of the DV Act record that the civil law does

not address the phenomenon of domestic violence and therefore,

a law be enacted to provide a remedy in civil law for the

protection of women from being victims of domestic violence.

Thus, the purpose of enacting the law was to provide civil

remedies to a woman who is subjected to domestic violence.

8. Apart from the statement of object and reasons,

various provisions contained in the Act make it clear that

predominantly the rights and remedies created under the Act are

of civil nature. Except for Sections 31 and 33, there is no penal

provision in the Act. The Magistrate is empowered, under Section

18, to pass protection order. Section 19 of the DV Act authorizes

the Magistrate to pass residence order which may include

restraining the respondent from dispossessing or disturbing the

possession of the aggrieved person or directing the respondent to

remove himself from the shared household or even restraining

the respondent or his relatives from entering the portion of the

shared household in which the aggrieved person resides etc.

Monetary reliefs which can be granted by the Magistrate

under Section 20 of the DV Act include granting the relief in

respect of the loss of earnings, the medical expenses, the loss

caused due to destruction, damage or removal of any property

from the control of the aggrieved person and the maintenance for

the aggrieved person as well as her children, if any. Section

21 deals with the orders of custody of any child or children to the

aggrieved person. Section 22 empowers the Magistrate to grant

compensation and damages for the injuries, including mental

torture and emotional distress, caused by the domestic violence

committed by the respondent. The reliefs under Sections 18 to 22

can be sought in any legal proceedings pending before a civil

court, a family court or a criminal court (Section 26). All these

reliefs that can be granted by the Magistrate/court are meant for

the welfare and well-being of the women. When the welfare

Statute is made with the single focus of the protection of women,

such Act has to be treated as remedial to protect the women. It

is, thus, clear that various kinds of reliefs which can be obtained

by the aggrieved person are of civil nature. At the same time,

when there is breach of such orders passed by the Magistrate,

Section 31 terms such a breach to be a punishable offence.

9. The Apex Court in Indra Sarma v. V.K.V.Sarma

(2013 (14) SCALE 448) examined the scope of the DV Act and

held that it was enacted to provide a remedy in civil law for the

protection of women from being victims of domestic violence. The

Division Bench of the Delhi High Court in Nidhi Kaushik v.

Union of India [(2013) 203 DLT 722] has held that the

proceedings under Sections 12 and 18 to 23 of the DV Act are

purely civil in nature. In Vijaya Baskar v. Suganya Devi

(Crl.O.P.(MD).No.10280/2010 decided on 28/10/2010), the Madras

High Court examined the scope of the DV Act and held that the

term civil law used in the statement of object and reasons of the

Act is not an empty formality and would exemplify and

demonstrate that the proceedings in the first instance should be

civil in nature. In Naorem Shamungou Singh v. Moirangthem

Guni Devi (AIR 2014 Mani.25), the Manipur High Court held that

the DV Act provides the remedies available under civil law. In

Narayan Babi Salgaonkar v. Jayshree @Manasi Narayan

Salgaonkar (2017 SCC OnLine Bom 723), the Bombay High

Court considered the question whether the application u/s 26 of

the DV Act is maintainable in the divorce proceedings and held

that an application u/s 26 of the DV Act is very much

maintainable in a suit for divorce which is purely a civil

proceeding. The Gujarat High Court in Suo Motu v. Ushaben

Kishorbhai Mistry (2015(4) KLT Online 3520) has held that the

provisions of the Act provide for remedial measures for the civil

rights of women but the machinery provided is through criminal

court. Recently, the Delhi High Court in S v. J. (2018 SCC OnLine

Delhi 8421) has held that DV Act provides a remedy in civil law

for the protection of victims of domestic violence as noted in the

statement of objects and reasons. This Court in

Dr.V.K.Vijayalekshmi Amma and Another v. Bindu V. and

Others (2010 (1) KHC 57) has held that the proceedings under

the DV Act are of civil nature. This Court again in Saramma

Shyju v. Shyju Varghees and Others (2011 (3) KHC 235) has

held that since the proceedings under the DV Act are civil in

nature, an application for amendment of petition is maintainable.

The Apex Court in Kunapareddy @Nookala Shanka Balaji v.

Kunapareddy Swarna Kumari and Another (2016 KHC 6400)

observed that the purpose of enacting the DV Act was to provide

a remedy in the civil law for the protection of women from being

victims of domestic violence and to prevent the occurrence of

domestic violence in the society. It is further observed that it is

for this reason, that the scheme of the Act provides that in the

first instance, the order that would be passed by the Magistrate,

on a complaint by the aggrieved person, would be of a civil

nature and if the said order is violated, it assumes the character

of criminality.

10. Upon consideration of the provisions under the DV Act

and the principles in the aforesaid decisions, it becomes manifest

that Act, in general, is of civil kind and the reliefs available

thereunder are of civil nature, but the forum prescribed to secure

the reliefs is criminal court. Merely because the jurisdiction is

exercised by the criminal court/Magistrate and the provisions of

the Code of Criminal Procedure are followed, it does not change

the character of the proceedings as criminal proceedings. The

character of the proceedings depends not upon the nature of the

forum which is invested with authority to grant relief, but upon

the nature of the relief sought to be enforced. A proceeding that

deals with the right of civil nature does not cease to be so just

because the forum for its enforcement prescribed by the statute

is the criminal court.

11. Section 28(2) of the DV Act provides that the court can

formulate its own procedure for disposal of an application under

Sections 12 or 23(2) of the DV Act. The flexibility has been given

to the court as the proceedings under Sections 12 and 18 to 23

provide civil remedies whereas S.31 provides a criminal offence.

The Apex Court in Kunapareddy (supra) considered the nature

of proceedings under the DV Act and held that S.28(2) empowers

the court to lay down its own procedure and the Magistrate

dealing with the DV Act is empowered to allow the amendment of

the application. Thus, it is clear that even though S.28(1) of the

DV Act provides that all proceedings under Ss.12 and 18 to 23

and for the offence under Section 31 shall be governed by the

provisions of Cr.P.C., the court can still lay down its own

procedure while dealing with the applications under sub-section

(1) of Section 12 or while considering the grant of interim or ex

parte ad interim relief orders under sub-section (2) of Section 23.

In view of the nature of the proceedings under the DV Act and the

procedural flexibility provided under sub-section (2) of Section 28

in deciding the applications under Sections 12 or 23(2), it cannot

be said that Court is bound to strictly abide by the provisions of

Cr.P.C in all cases. In appropriate cases, it would be open to the

court to formulate its own procedure as may be found necessary

in the interest of justice, in which event, the court may not have

to rely upon Cr.P.C. Thus, the court below went wrong in holding

that it has no power to strike off the defence for the reason that

the procedure to be followed in the proceedings under Sections

12 and 18 to 23 is that provided under Cr.P.C.

12. The Apex Court in Rajnesh v. Neha and Another

(2020 (6) KHC 1) referring to the judgments of the High Court on

the point upheld the power of the court to strike off the defence if

there was non-compliance with the order of payment of

maintenance. It was, however, held that striking off the defence