# Tarun Kumar Mittal v. State of U.P. & Anr

- **Citation:** (2021) 10 ILRA 323
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-07
- **Case number:** Application U/S 482 Cr.P.C. No. 6319 of 2021
- **Bench:** Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tarun-kumar-mittal-v-state-of-u-p-anr-46322
- **Pages:** 8

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Protection of Women From
Domestic Violence Act, 2005 - Section 31 -
Penalty for breach of protection order by
respondent - provisions of Section 31 of
Domestic Violence Act can be invoked for
execution of grant of maintenance order
under Section 12 of D.V. Act. (Para -11)

Interim maintenance was granted in favour of
wife - court below invoked the provisions of
Section 31 of the Domestic Violence Act - for
getting its earlier orders passed under section
12 to be executed - aggrieved by order - hence
application under section 482.(Para - 3)

HELD:-
Provisions of Section 31 of Protection
of Women From Domestic Violence Act, 2005
can be invoked to penalize even breach of
orders passed under Section 12 of the said Act.
(Para - 17 )

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-
324 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

10 All. Tarun Kumar Mittal Vs. State of U.P. & Anr.
323

15. At this juncture learned counsel
for the applicants submits that the instant
dispute is between the close relatives and
there is a chance that the same may be
resolved through settlement, however,
applicants are having apprehension that
when they will appear before the trial court
the disposal of their bail application may
take some time and they may be forced to
remain in prison and having regard to the
spread of Covid-19 pandemic situation, the
same would be detrimental to their health
and may further the strained relations
between the parties.

16. So far as apprehension of the
applicants is concerned the same do not
appear to be founded on sound reasoning as
Hon'ble Apex Court in Hussain and Ors.
Vs. Union of India (UOI) and Ors.,
MANU/SC/0274/2017 and In Re: To issue
certainn
Guidelines
Regarding
inadequacies
and
deficiencies
in
Criminal Trials v. State of Andhra
Pradesh
and
others,
MANU/SC/0292/2021,have given various
directions
to
criminal
Courts
for
expeditious disposal of Bail applications of
under trials. The ratio of above mentioned
decisions is quite clear that, in the backdrop
of Article 21 of the Constitution of India, as
the personal liberty of a person is at stake,
the bail applications should be decided,
expeditiously.

17. In the backdrop of aforesaid
decisions and keeping in view the entirety
of facts and circumstances of the case and
having regard to the submissions of learned
counsel for the applicants, the application is
disposed of with a direction to the trial
Court that if the applicants appear and
surrender before the Court below within 20
days from today and apply for bail, their
prayer for bail may be considered and
decided expeditiously in accordance with
law.
----------
(2021)10ILR A323
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.09.2021

BEFORE

THE HON'BLE VIVEK AGARWAL, J.

Application U/S 482 Cr.P.C. No. 6319 of 2021

Tarun Kumar Mittal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Virendra Singh

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Protection of Women From
Domestic Violence Act, 2005 - Section 31 -
Penalty for breach of protection order by
respondent - provisions of Section 31 of
Domestic Violence Act can be invoked for
execution of grant of maintenance order
under Section 12 of D.V. Act. (Para -11)

Interim maintenance was granted in favour of
wife - court below invoked the provisions of
Section 31 of the Domestic Violence Act - for
getting its earlier orders passed under section
12 to be executed - aggrieved by order - hence
application under section 482.(Para - 3)

HELD:-
Provisions of Section 31 of Protection
of Women From Domestic Violence Act, 2005
can be invoked to penalize even breach of
orders passed under Section 12 of the said Act.
(Para - 17 )

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-
324 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Kanaka Raj son of Kunjan Nadar Vs St. of
Kerala & anr. , Criminal Misc. No.1322 of 2009

2. Vikram Shah Vs St. of U.P. & anr., in
Application U/S 482 No.23048 of 2018

3. Surya Prakash Vs Smt. Rachna , M.C.R.C.
No.16718 of 2015

4. Sunil @ Sonu Vs Sarita Chawla (Smt.), 2009
(5) MPHT 319

5. Manoj Anand Vs St. of U.P. & anr., Criminal
Revision No.635 of 2011

6. Hiral P. Harsora & ors. Vs Kusum
Narottamdas Harsora & ors., (2016) 10 SCC 165

7. Abhiram Singh Vs C.D. Commachen (dead)
by Lrs. & ors., (2017) 2 SCC 629

(Delivered by Hon'ble Vivek Agarwal, J.)

1. Heard Sri Virendra Singh, learned
counsel for the applicant and Sri Janardan
Prakash, learned AGA for the State.

2. This Application U/S 482 Cr.P.C.
has been filed seeking quashing of the
entire proceedings of Misc. Case No.326 of
2019 pending in the court of Judicial
Magistrate-Ist,
Bulandshahar
(Sonia
Agarwal Vs. Tarun Kumar Mittal) under
Section 31 of Domestic Violence Act,
Police Station-Kotwali Nagar, DistrictBulandshahar.

3. Learned counsel for the applicant
submits that the only question raised in this
Application is, whether court below was
justified in invoking the provisions of
Section 31 of the Domestic Violence Act
for getting its earlier orders executed vide
which, interim maintenance was granted in
favour of wife.

4. Sri Virendra Singh, learned counsel
for the applicant submits that said provisions
of Section 31 can be invoked only to penalize
breach of protection order as defined under
Section 18 of the Act of 2005 and not to
enforce provisions contained in Section 12 of
the Domestic Violence Act.

5. Reliance is placed on the judgment of
High Court of Kerala at Ernakulam in
Criminal Misc. No.1322 of 2009 (Kanaka
Raj son of Kunjan Nadar Vs. State of
Kerala and another) decided on 24.06.2009
by a Single Judge of the said High Court,
wherein, the question which was raised and
decided
is
"whether
a
Magistrate
is
competent to direct registration of a case and
investigate an offence under Section 31 of
Protection
of
Women
from
Domestic
Violence Act, 2005 in the absence of a
protection order or an interim protection
order".

6. Reliance is also placed on the
judgment of a co-ordinate Bench decided on
10.08.2018 (Vikram Shah Vs. State of U.P.
and another) in Application U/S 482
No.23048 of 2018, wherein, similar issue was
raised and it is submitted that the co-ordinate
Bench has decided that provisions of Section
31 of the Domestic Violence Act will not be
applicable for recovery of the amount
payable under the orders passed in exercise of
jurisdiction under Section 12 and 23 of the
Act of 2005.

7. However, perusal of the order cited
in case of Vikram Shah (supra) reveals that
matter was remitted to the court below to
decide the question of maintainability of the
proceedings under Section 31 of the Act of
2005 initiated by the opposite party no.2 and
only, thereafter, proceed with the complaint
case pending before the court below.

8. Recently High Court of Madhya
Pradesh, Jabalpur had an occasion to decide
10 All. Tarun Kumar Mittal Vs. State of U.P. & Anr.
325
similar issue wherein, Division Bench of
the High Court in case of Surya Prakash
Vs. Smt. Rachna decided in M.C.R.C.
No.16718 of 2015, held that non-payment
of maintenance allowance is also a breach
of
protection
order
and,
therefore,
provisions of Section 31 of the Act can be
invoked. It confirmed its earlier order in
case of Sunil @ Sonu Vs. Sarita Chawla
(Smt.); 2009 (5) MPHT 319.

9. While answering the issue Hon'ble
Division Bench in case of Surya Prakash
(supra) formulated first question namely, "(i)
whether
non-payment
of
maintenance
allowance can be treated to be a breach of
'protection order' or 'interim protection order'
? If it is a breach of said orders, whether
Section 31 of the D.V. Act can be invoked ?

10. The aforesaid decision makes a
reference to a decision of Allahabad High
Court also in case of Manoj Anand Vs.
State of U.P. and another (Criminal
Revision No.635 of 2011) decided on
10.02.2012 placing reliance on which,
learned counsel for the petitioner Surya
Prakash had contended that for non-payment
of maintenance, the proceedings under
Section 31 of the Act cannot be initiated.

11. However, Division Bench of
Madhya Pradesh High Court considered the
provisions of the 'Domestic Violence Act'
and referring to the definition of "domestic
violence" as provided under Section 2(g)
and other relevant provisions has held that
provisions of Section 31 of Domestic
Violence Act can be invoked for execution
of grant of maintenance order under
Section 12 of D.V. Act.

12. Under Section 2(g) term 'domestic
violence' has the same meaning as assigned
to it in Section 3, which reads as under:-

9. "It is advantageous to extract
the relevant provisions of the Act, which
read as under:-

"2. Definitions.- In this Act,
unless the context otherwise requires, -

*** *** ***

(g) "domestic violencee" has the
same meaning as assigned to it in Section
3;

 *** *** ***

"3.
Definition
of
domestic
violence.- For the purposes of this Act, any
act, omission or commission or conduct of
the respondent shall constitute domestic
violence in case it -

(a) harms or injures or endangers
the health, safety, life, limb or well-being,
whether mental or physical, of the
aggrieved person or tends to do so and
includes causing physical abuse, sexual
abuse, verbal and emotional abuse and
economic
abuse;
or
***
***
***
Explanation I.--For the purposes of this
section,--

(i) "physical abuse" means any
act or conduct which is of such a nature as
to cause bodily pain, harm, or danger to
life, limb, or health or impair the health or
development of the aggrieved person and
includes assault, criminal intimidation and
criminal force;

(ii) "sexual abuse" includes any
conduct of a sexual nature that abuses,
humiliates, degrades or otherwise violates
the dignity of woman;
326 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii)
"verbal
and
emotional
abuse" includes--

(a) insults, ridicule, humiliation,
name calling and insults or ridicule
specially with regard to not having a child
or a male child; and

(b) repeated threats to cause
physical pain to any person in whom the
aggrieved person is interested.

(iv) "economic abuse" includes--

(a) deprivation of all or any
economic or financial resources to which
the aggrieved person is entitled under any
law or custom whether payable under an
order of a court or otherwise or which the
aggrieved person requires out of necessity
including, but not limited to, household
necessities for the aggrieved person and
her children, if any, stridhan, property,
jointly
or
separately
owned by
the
aggrieved person, payment of rental
related to the shared household and
maintenance;

(b) disposal of household effects,
any alienation of assets whether movable
or immovable, valuables, shares, securities,
bonds and the like or other property in
which the aggrieved person has an interest
or is entitled to use by virtue of the
domestic relationship or which may be
reasonably required by the aggrieved
person or her children or her stridhan or
any other property jointly or separately
held by the aggrieved person; and

(c) prohibition or restriction to
continued access to resources or facilities
which the aggrieved person is entitled to use
or enjoy by virtue of
the domestic
relationship including access to the shared
household.

Explanation II.--For the purpose of
determining whether any act, omission,
commission or conduct of the respondent
constitutes "domestic violence" under this
section, the overall facts and circumstances
of the case shall be taken into consideration."
(Emphasis supplied) "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) aiding or abetting in the
commission of acts of domestic violence;

*** *** ***

(g) committing any other act as
specified in the protection order." (Emphasis
Supplied) "20. Monetary reliefs.-- (1) While
disposing of an application under sub-section
(1) 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 is
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
10 All. Tarun Kumar Mittal Vs. State of U.P. & Anr.
327
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 (2 of 1974) or any other
law for the time being in force.

 *** *** ***"

13. For ready reference, Section 31
reads 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 with fine
which may extend to twenty thousand rupees,
or with both.

(2) The offence under sub-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 498A 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."

14. Supreme Court in case of Hiral P.
Harsora
and
others
Vs.
Kusum
Narottamdas Harsora and others); (2016)
10 SCC 165, in para nos.16 and 18 held as
under:-

"16. A cursory reading of the
Statement of Objects and Reasons makes it
clear that the phenomenon of domestic
violence against women is widely prevalent
and needs redressal. Whereas criminal law
does offer some redressal, civil law does
not address this phenomenon in its entirety.
The idea therefore is to provide various
innovative remedies in favour of women
who suffer from domestic violence, against
the perpetrators of such violence.

18. What is of great significance
is that the 2005 Act is to provide for
effective protection of the rights of women
who are victims of violence of any kind
occurring within the family. The Preamble
also makes it clear that the reach of the Act
is that violence, whether physical, sexual,
verbal, emotional or economic, are all to
be redressed by the statute. That the
perpetrators and abettors of such violence
can, in given situations, be women
themselves, is obvious. With this object in
mind, let us now examine the provisions of
the statute itself."

15. Judgment in case of Surya
Prakash (supra) also considered the Seven
Judge Bench judgment in case of Abhiram
Singh Vs. C.D. Commachen (dead) by Lrs.
and others; (2017) 2 SCC 629, wherein
majority judgment is that in case of conflict
between giving a literal interpretation or a
purposive interpretation to a statute or a
provision in a statute is perennial. It can be
settled only if the draftsman gives a longwined explanation in drafting the law, but
this would result in an awkward draft that
might well turn out to be unintelligible. The
Supreme Court held as under:-
328 INDIAN LAW REPORTS ALLAHABAD SERIES

36. The conflict between giving a
literal
interpretation
or
a
purposive
interpretation to a statute or a provision in
a statute is perennial. It can be settled only
if the draftsman gives a long-winded
explanation in drafting the law but this
would result in an awkward draft that
might well turn out to be unintelligible. The
interpreter has, therefore, to consider not
only the text of the law but the context in
which the law was enacted and the social
context in which the law should be
interpreted. This was articulated rather
felicitously by Lord Bingham of Cornhill in
R.(Quintavalle) Vs. Secy. of State for
Health19 when it was said: (AC p. 695 CH, paras 8-9) "8. The basic task of the
court is to ascertain and give effect to the
true meaning of what Parliament has said
in the enactment to be construed. But that
is not to say that attention should be
confined and a literal interpretation given
to the particular provisions which give rise
to difficulty. Such an approach not only
encourages immense prolixity in drafting,
since the draftsman will feel obliged to
provide expressly for every contingency
which may possibly arise. It may also
(under the banner of loyalty to the will of
Parliament) lead to the frustration of that
will, because undue concentration on the
minutiae of the enactment may lead the
court to neglect the purpose which
Parliament intended to achieve when it
enacted the statute. Every statute other
than a pure consolidating statute is, after
all, enacted to make some change, or
address some problem, or remove some
blemish, or effect some improvement in the
national life. The court's task, within the
permissible bounds of interpretation, is to
give effect to Parliament's purpose. So the
controversial provisions should be read in
the context of the statute as a whole, and
the statute as a whole should be read in the
historical context of the situation which led
to its enactment".

9.
There
is,
I
think,
no
inconsistency
between
the
rule
that
statutory language retains the meaning it
had when Parliament used it and the rule
that a statute is always speaking. If
Parliament, however long ago, passed an
Act applicable to dogs, it could not
properly be interpreted to apply to cats; but
it could properly be held to apply to
animals which were not regarded as dogs
when the Act was passed but are so
regarded now. The meaning of "cruel and
unusual punishments" has not changed
over the years since 1689, but many
punishments which were not then thought
to fall within that category would now be
held to do so. The courts have frequently
had to grapple with the question whether a
modern invention or activity falls within
old statutory language: see Bennion,
Statutory Interpretation, 4th Edn. (2002)
Part XVIII, Section 288. A revealing
example is found in Grant v. Southwestern
and Country Properties Ltd., 1975 Ch 185 :
(1974) 3 WLR 221, where Walton, J. had to
decide whether a tape recording fell within
the expression "document" in the Rules of
the Supreme Court. Pointing out (at p. 190)
that the furnishing of information had been
treated as one of the main functions of a
document, the Judge concluded that the
tape recording was a document."

44. Another facet of purposive
interpretation of a statute is that of social
context adjudication. This has been the
subject
matter
of
consideration
and
encouragement by the Constitution Bench
of this Court in Union of India Vs.
Raghuvir Singh (Dead) by Lrs. (1989) 2
SCC 754. In that decision, this Court noted
with approval the view propounded by
10 All. Tarun Kumar Mittal Vs. State of U.P. & Anr.
329
Justice Holmes, Julius Stone and Dean
Roscoe Pound to the effect that law must
not remain static but move ahead with the
times keeping in mind the social context. It
was said:

"10. But like all principles
evolved by man for the regulation of the
social order, the doctrine of binding
precedent
is
circumscribed
in
its
governance by perceptible limitations,
limitations arising by reference to the need
for readjustment in a changing society, a
readjustment of legal norms demanded by a
changed social context. This need for
adapting the law to new urges in society
brings home the truth of the Holmesian
aphorism that "the life of the law has not
been logic it has been experience" (Oliver
Wendell Holmes), and again when he
declared in another study (Oliver Wendell
Holmes,
Common
Carriers
and
the
Common Law) (1943) 9 Curr LT 387 at p.
388), that "the law is forever adopting new
principles from life at one end", and
"sloughing off" old ones at the other.
Explaining the conceptual import of what
Holmes had said, Julius Stone elaborated
that it is by the introduction of new extralegal
propositions
emerging
from
experience to serve as premises, or by
experience-guided
choice
between
competing legal propositions, rather than
by the operation of logic upon existing
legal propositions, that the growth of law
tends to be determined (Julius Stone, Legal
Systems & Lawyers Reasoning, pp. 5859)."

(emphasis supplied) A little later
in the decision it was said: (SCC pp. 76768, para 13) "13. Not infrequently, in the
nature of things there is a gravity-heavy
inclination to follow the groove set by
precedential law. Yet a sensitive judicial
conscience often persuades the mind to
search for a different set of norms more
responsive to the changed social context.
The dilemma before the Judge poses the
task of finding a new equilibrium prompted
not seldom by the desire to reconcile
opposing mobilities. The competing goals,
according to Dean Roscoe Pound, invest
the Judge with the responsibility "of
proving to mankind that the law was
something
fixed
and
settled,
whose
authority was beyond question, while at the
same time enabling it to make constant
readjustments
and
occasional
radical
changes under the pressure of infinite and
variable human desires" (Roscoe Pound,
An Introduction to the Philosophy of Law,
p. 19. The reconciliation suggested by Lord
Reid in The Judge as Law Maker (1972)
The Journal of Public Teachers of Law 22
at pp. 25-26, lies in keeping both objectives
in view, 'that the law shall be certain, and
that it shall be just and shall move with the
times'."

16. Judgment of Madhya Pradesh
High Court in case of Surya Prakash Vs.
Smt. Rachna (supra), in paragraph Nos.14,
15 and 16 reads as under:-

14. Section 18 of the Act
empowers the Magistrate to pass a
protection order in affirmative in favour of
an aggrieved person when he is satisfied
that domestic violence has taken place or is
likely to take place. The Magistrate is also
competent to prohibit the respondent from
committing any act of domestic violence or
such other acts as mentioned in the said
section. The domestic violence has been
defined in Section 3 of the Act which
includes causing physical abuse, sexual
abuse, verbal and emotional abuse and
economic abuse. The "economic abuse" has
been
explained
in
clause
(iv)
of
Explanation I of Section 3 of the Act
330 INDIAN LAW REPORTS ALLAHABAD SERIES
wherein deprivation of all or any economic
or financial resources to which the
aggrieved person is entitled under any law
or custom whether payable under an order
of a court or otherwise or which the
aggrieved person requires out of necessity
is an expression of "domestic violence".

15. The amount of maintenance
awarded by the Magistrate is an amount
which an aggrieved person requires to
meet necessities of life and for survival.
Such amount is not limited to household
necessities but also includes payment of
rental related to the shared household. It
includes maintenance as well. Therefore,
the order passed by the Magistrate
granting maintenance is an affirmative
order of protection in relation to domestic
violence as defined in Section 3 of the Act.
For such violation, the penalty is provided
in Section 31 of the Act.

16. Section 20 of the Act deals
with grant of monetary relief to meet the
expenses incurred and the losses suffered
by aggrieved person and any child of the
aggrieved person as a result of domestic
violence. Such provision enlarges the scope
of domestic violence as defined in Section 3
of the Act. In terms of Section 3 of the Act,
the "economic abuse" includes deprivation
of all or any economic or financial
resources, payment of rental related to
shared
household
and
maintenance.
Whereas Section 20 includes a loss of
earnings, medical expenses, loss caused
due to destruction, damage or removal of
any property as also the maintenance. The
grant of monetary relief under Section 20
does
not
exclude
the
amount
of
maintenance which can be awarded in
terms of Section 18 of the Act as part of
affirmative order in respect of the domestic
violence as defined in Section 3 of the Act.
Therefore, we find that non-payment of
maintenance is a breach of protection
order; therefore, Section 31 of the Act can
be invoked. Therefore, in respect of first
question, it is held that non-payment of
maintenance allowance is a breach of
protection order for which proceedings
under Section 31 of the Act can be invoked.

17. Thus, in the light of the above
discussion so also in view of a Division
Bench decision of Madhya Pradesh High
Court passed after relying on the judgments
of Supreme Court in regard to purposive
interpretation and keeping in mind the aim
and object of a special statute namely,
Protection of Women From Domestic
Violence Act, 2005, I am of the opinion
that provisions of Section 31 can be
invoked to penalize even breach of orders
passed under Section 12 of the said Act.
Therefore, Application deserves to fail and
is dismissed.
----------
(2021)10ILR A330
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2021

BEFORE

THE HON'BLE VIVEK AGARWAL, J.

Application U/S 482 Cr.P.C. No. 7352 of 2021
With
Application U/S 482 Cr.P.C. No. 7572 of 2021

Anjana Agarwal @ Anjani Agarwal
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Swapnil Kumar, Sri Sudhanshu Kumar,
Sri Devesh Mohan

Counsel for the Opposite Parties: