# (2012) 1 ILRA 384

- **Citation:** (2012) 1 ILRA 384
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-24
- **Case number:** Criminal Revision No. 635 of 2011
- **Bench:** Sudhir Kumar Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2012-1-ilra-384-42162
- **Pages:** 5

## Headnote

Sri A.M. Tripathi

Counsel for Respondent:
Sri Nipun Singh
Govt. Advocate

(A) Constitution of India, Article 226Non Protection of women from Domestic
violence Act-2005, Section 23- Interim
maintenance of Rs. 5000/- granted
under section 23 of the Act-considering
income of Rs. 28738/-per month-cannot
be termed as excessive-warrant no
interference-petition dismissed.

Held: Para 6

This Court is not exercising its appellate
jurisdiction. The court below is yet to
decide
the
apliction
finally
after
recording the evidence. Even otherwise
considering the income of petitioner the
amount awarded cannot be said to be
excessive as such impugned orders do
not suffer from any such error of law
which may warrant interference by this
Court in its jurisdiction under Article 226
of the Constitution of India, as such writ
petition has no force and is liable to be
dismissed.

(B) Protection of women from domestic
violence
Act
2005-Section
31-
1 All Manoj Anand V. State of U.P. and another
385
Prosecution
for
non
compliance
of
interim
maintenance
order-held-not
proper-section 20(4)(5) and (6) provides
complete mechanism for compliance of
order
of
maintenance-wife
is
not
remediless-order passed under section
23 is redundant.

Held: Para 14

For this purpose power has been given in
the Act itself. Section 28 of the Act
provides for procedure and says that all
proceedings under sections 12, 18, 19,
20, 21 and 23 shall be governed by the
provisions of Criminal Procedure Code.
Sub section (2) of section 28 further
enables the Court to lay down its own
procedure for disposal of an application
under sub section (2) of section 23 of the
Act. This gives sufficient indication as to
how application u/s 23 will be dealt with
and how the orders passed thereon will
be enforced. While section 20 (1) (d)
contains provision for maintenance. Sub
section (4) (5) and (6) of section 20
provide
for
mechanisum
to
ensure
compliance of order for maintenance.

## Text

384 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

23. For the foregoing reasons, this writ
petition succeeds and is allowed. The " Final
Notice
After
Repossession"
dated
24.09.2011 (Annexure-4 to the writ petition)
is quashed and the respondents are directed
to hand over the possession of the vehicle
(truck bearing registration no. UP-78-BT
1485) to the petitioner forthwith but not later
than seven days from the date petitioner files
a certified copy of this order before the
respondent no.3-Branch Manager, Indusland
Bank Ltd. It is further provided that the
petitioner shall not be liable to pay any
interest on the loan amount from the date
when the possession of the vehicle of the
petitioner has been taken from the petitioner
and till the date such possession is redelivered to the petitioner. It is also made
clear that the repossession of the vehicle will
be given to the petitioner in a perfect running
condition free from all encumbrances and in
case there is any dispute with regard to the
condition of the vehicle, the petitioner shall
be entitled to raise his grievance either with
the Bank or take suitable legal action against
the respondent-Bank.

24. The high handed and illegal
manner in which the Bank has repossessed
the petitioner's vehicle through an agent,
which cannot but be described but as by use
of "musclemen", inspite of the repeated
directions of the Apex Court and the manner
in which the petitioner has been harassed, we
also impose an exemplary cost of Rs.
1,00,000/- (Rs. One Lakh) to be paid to the
petitioner by the respondent-Bank so that in
future it may deter the Bank from taking
such recourse for realization of dues, as has
been resorted to in the present case.
---------

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2012

BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA, J

Criminal Revision No. 635 of 2011
connected with
Criminal Misc. Writ Petition No. 17658 of
2010

Manoj Anand

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri A.M. Tripathi

Counsel for Respondent:
Sri Nipun Singh
Govt. Advocate

(A) Constitution of India, Article 226Non Protection of women from Domestic
violence Act-2005, Section 23- Interim
maintenance of Rs. 5000/- granted
under section 23 of the Act-considering
income of Rs. 28738/-per month-cannot
be termed as excessive-warrant no
interference-petition dismissed.

Held: Para 6

This Court is not exercising its appellate
jurisdiction. The court below is yet to
decide
the
apliction
finally
after
recording the evidence. Even otherwise
considering the income of petitioner the
amount awarded cannot be said to be
excessive as such impugned orders do
not suffer from any such error of law
which may warrant interference by this
Court in its jurisdiction under Article 226
of the Constitution of India, as such writ
petition has no force and is liable to be
dismissed.

(B) Protection of women from domestic
violence
Act
2005-Section
31-
1 All Manoj Anand V. State of U.P. and another
385
Prosecution
for
non
compliance
of
interim
maintenance
order-held-not
proper-section 20(4)(5) and (6) provides
complete mechanism for compliance of
order
of
maintenance-wife
is
not
remediless-order passed under section
23 is redundant.

Held: Para 14

For this purpose power has been given in
the Act itself. Section 28 of the Act
provides for procedure and says that all
proceedings under sections 12, 18, 19,
20, 21 and 23 shall be governed by the
provisions of Criminal Procedure Code.
Sub section (2) of section 28 further
enables the Court to lay down its own
procedure for disposal of an application
under sub section (2) of section 23 of the
Act. This gives sufficient indication as to
how application u/s 23 will be dealt with
and how the orders passed thereon will
be enforced. While section 20 (1) (d)
contains provision for maintenance. Sub
section (4) (5) and (6) of section 20
provide
for
mechanisum
to
ensure
compliance of order for maintenance.

(Delivered by Hon'ble S.K. Saxena, J.)

1. The Criminal Revision as well as
the Writ Petition arise out of same
proceedings, as such they are being
disposed of by this common order.

2.. Heard learned counsel for the
parties, learned A.G.A. and perused the
record.

Writ Petition No. 17658 of 2010

3. The facts in short are that Smt.
Veenu Anand wife filed an application u/s
12 of The Protection of Women from
Domestic Violence Act, 2005 (in short the
Act). In the aforesaid case she also filed
an application u/s 23 of the Act for
interim order. The said aplication was
allowed on 20.3.2010 and a sum of Rs.
5,000/- per month was ordered as interim
maintenance. This order was challenged
in appeal but appellate court dismissed the
appeal and confirmed the order of interim
maintenance. These orders have been
challenged by learned counsel in W.P.
17658 of 2010 on the ground that no
evidence was recorded and it is not clear
as to what was the violence caused to the
applicant.

4. The argument is fallacious as the
court was deciding an application for
interim maintenance. Evidence was yet to
be adduced. Section 23 enables the
Magistrate to pass exparte order on the
basis of affidavit. Moreover court has
gone in detail and found that the income
of husband is Rs. 28,738/- per month. The
applicant was admittedly wedded wife of
petitioner Manoj Anand. Petitioner has
not denied the fact of marriage or income
or the fact of separate living.

5. In these circumstances learned
Magistrate after examining the attending
circumstances gave order of interim
maintenance. It cannot be said that the
order suffers from any error of law. The
appellate
court
has
examined
the
submissions of husband in detail and has
confirmed
the
order
of
interim
maintenance.

6. This Court is not exercising its
appellate jurisdiction. The court below is
yet to decide the apliction finally after
recording the evidence. Even otherwise
considering the income of petitioner the
amount awarded cannot be saidto be
excessive as such impugned orders do not
suffer from any such error of law which
may warrant interference by this Court in
its jurisdiction under Article 226 of the
386 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Constituion of India, as such writ petition
has no force and is liable to be dismissed.

Criminal Revision 635 of 2011

7. Criminal Revision is directed
against the order passed by the Magistrate
under section 31 of the Act. It appears
that in pursuance of the order passed by
this Court in Misc. Application No. 22856
of 2010 whereby lower Court was
directed to decide the application u/s 31
of the Act within a month, impugned
order has been passed. By impugned
order dated 22.1.2011 learned Magistrate
has proceeded to punish revisionist
husband u/s 31 of the Act for failure to
pay the interim maintenance ordered on
20.3.2010, which order has been upheld
as above. It may be relevant to mention
that in writ petition there was no interim
order.

8. Learned couns0.00"el submits
that section 31 of the Act is not attracted
to the present case. Same is quoted below
for ready reference:

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
with fine which may extend to twenty
thousand rupees, or with both.

(2) The offence under su-section (1)
shall as far as practicable be tried by the
Magistrate who has passed the order, the
breach of which has been alleged to have
been caused 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 that 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.

9. Section 31 of the Act applied to
the protection order. Protection order has
been defined u/s 2 (10) of the Act as
protection order means an order made in
terms of section 18. Section 18 gives
details of protection orders that may be
passed by the Magistrate. Section 18 is
reproduced 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
favour of the aggrieved person and
prohibit the respondent from -

(a) committing any act of domestic
violence,

(b) adiding 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 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;
1 All Manoj Anand V. State of U.P. and another
387

(e) alienating any assets, operating
bank lockers or bank accounts 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 person
who give the aggrieved person assistance
from domestic violence;

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

10. From the above it is clear that
the order passed for the maintenance or
interim maintenance is not included or
covered by section 18. Thus there is
substance in the contention of revisionist
that power u/s 31 was not available to the
Magistrate to implement the order of
interim maintenance passed under section
23 of the Act and proceed to punish him
for the breach thereof. Even clause (g) of
Section 18 which includes, any other act
as specified in Protection order would not
include the order of interim maintenance.

11. Order passed under Section 23
of the Act cannot be implemented under
Section 31 of the Act. The Act is punitive
in nature and the provisions are to be
construed strictly. In my view such
act/breach could not be made punishable
which legislature did not intend, as such
impugned order cannot be sustained.

12. Learned counsel for the wife,
opposite party would submit that Act is a
complete Code and it cannot be presumed
that any order passed under the Act will
be left uncomplied and there will be no
provision to implement the same.

13. Provisions of the Act are to be
construed in a manner so as to advance
the purpose of the Act and it cannot be
presumed that legislature did not intend to
ensure compliance of order of interim
maintenance. If this argument is accepted,
Section 23 would become redundant or
inoperable.

14. For this purpose power has been
given in the Act itself. Section 28 of the
Act provides for procedure and says that
all proceedings under sections 12, 18, 19,
20, 21 and 23 shall be governed by the
provisions of Criminal Procedure Code.
Sub section (2) of section 28 further
enables the Court to lay down its own
procedure for disposal of an application
under sub section (2) of section 23 of the
Act. This gives sufficient indication as to
how application u/s 23 will be dealt with
and how the orders passed thereon will be
enforced. While section 20 (1) (d)
contains provision for maintenance. Sub
section (4) (5) and (6) of section 20
provide
for
mechanisum
to
ensure
compliance of order for maintenance.

15. More over in exercise of power
conferred by section 37 rules have been
framed for carrying out the provisions of
the Act. Rule 6 (5) lays down the
procedure as such it cannot be said that
section
23
being
not
capable
of
enforcement is redundant or in operable.

16. In view of above this revision is
liable to be allowed.

17. In the result the Writ petition is
dismissed with no cost. The criminal
revision is allowed. The order dated
388 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
22.1.2011 is set aside. Learned Magistrate
is directed to pass appropriate order in
accordance with law on the application
for compliance of order passed under
section 23 of the Act.
---------