PENALTY OF BREACH OF PROTECTION ORDER BY RESPONDENT

This article is written by Kalpana Kumari of 3^rd Semester of National University of Study And Research in Law, Ranchi

ABSTRACT:

Domestic Violence has been a serious issue in our country which involves physical, sexual and emotional abuse of women by others in a marriage or cohabitation. Therefore, some protection orders are provided by the Magistrate to the women after hearing the abuser and the victim to protect them from any further violence. However, when these orders are breached by the abuser or his family, Section 31 of the Protection of Women from Domestic Violence Act brings some punishment to them.

This paper aims to throw light upon the penalty of breach of protection order by respondent where the protection order is explained and what can be punishments for not following up the orders by the Magistrate and when Section 31 of the Protection of Women from Domestic Violence Act can or cannot be invoked are discussed.

Keywords – Section 18 of Domestic Violence Act, Breach of Protection Orders, Section 31 of Domestic Violence Act

INTRODUCTION:

Women all over the world are facing and being the victims of domestic violence even in the 21^st century. The victims are from different backgrounds and violence is being practised against them irrespective of age, caste, colour, or religion. However, there is a myth that only women are the victims of domestic violence which is wrong. Some men, children and elders also face the mishap of domestic violence.

To protect them from domestic violence, an act has been established by the legislature named the Protection of Women from Domestic Violence Act in 2005 and Section 3 of this act any act, omission or commission or conduct of a person 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 (b) harasses, harms, injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct constitute domestic violence.[1]

This act was brought to protect the rights of women and save them from becoming victims of abuse or violence of any kind.

PROTECTION ORDER:

A protection order is given to an aggrieved person to protect them from any further abuse from the respondents.

Section 5(a) of the Protection of Women from Domestic Violence Act tells the duties of the t police officers, service providers and the Magistrate after receiving the domestic violence complaint shall inform the victim or aggrieved person about her rights to apply for obtaining the relief by a protection order.

Section 18 of the Protection of Women from Domestic Violence Act defines Protection Orders. Magistrate after hearing both respondent and the Aggrieved party and on prima facie when it has been proven that domestic violence has taken place or it may take place in future, the Magistrate may pass the protection order in favour of the victim or the aggrieved person against the respondent which prohibits him from-

1. Committing any act towards domestic violence
2. Aiding or abetting in the commission of domestic violence
3. 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.
4. attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
5. 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 Stidham or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
6. causing violence to the dependants, other relatives or any person who gives the aggrieved person assistance from domestic violence;
7. committing any other act as specified in the protection order. [2]

In the case of Sangeeta Saha v. Abhijit Saha[3], 2019, the Supreme Court ordered that unless it is satisfactorily established that domestic violence has taken place neither protection orders under Section 18 nor residential orders under Section 19 can be passed under this Act.

Section 31 of the Protection of Women from Domestic Violence Act talks about penal charges. This section of the Domestic Violence Act says that —

(1) A breach of protection order, or 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 a 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 had 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.[4]

In the case of Francis Cyril v. Lydia Jane[5], the trial court held that nonpayment of maintenance will amount to a breach of protection orders under Sec 31 of the Act. Whereas, the High Court of Karnataka set aside the trial court’s orders and held that Section 31 of the Act shall be dealt with Sections 2(o), (k), 12, 18, 20 and 28 of the Act.

In the case of R. Satish Kumar v. Saritha[6], the Kerala High Court held that section 31 of the Protection of Women from Domestic Violence Act is a penal provision providing punishment for violation of some orders passed by the court. It is a provision which allows judicial magistrates to proceed with prosecution when a violation of the Court’s orders is complained of.

Section 31 of the Protection of Women from Domestic Violence Act can be brought by the women against the husband, father, brother or any male member of the family if they breach the protection order. When the case has been filed by the women, the court has given the protection. If the respondent or any male member of the family breach that protection order, they shall be punished This is the only section where the punishment for domestic violence has been explained.

In the case of Suneesh v. State of Kerala[7], the petitioner was directed to pay monthly maintenance to his wife but he stopped after 3 months and the respondent filed the complaint under Section 31 of the Act. The Kerala High Court held that Section 31 the Protection of Women from Domestic Violence Act can only be brought when there is a breach of protection order passed under Sec 18 of the Protection of Women from Domestic Violence Act. The act is unambiguous and the meaning should be understood by its plain meaning.

 A Magistrate may impose a protective order or protection order to keep someone from abusing them. Police officers or other members of law enforcement can enforce it. Typically, it is brought as a distinct civil court case. Protective or protection orders in this area come in two types: temporary and permanent (extended).

Temporary Protection Order:

A Temporary Protection Order or Protection Order is intended to provide urgent protection from an abuser for the abused person and any members related to the aggrieved party. The petition is typically filed ex parte, or with only one side present, and is then handed over to the Magistrate the same day. If necessary, the Magistrate may ask the victim to testify. A temporary protection order will be granted and served on the offender if the Magistrate determines that there is an urgent threat based on the evidence at hand.

The order is valid after it has been delivered to the offending party by the court. The order is only in place for a short period, usually a few days. Then, notice is given to both parties to appear in a formal hearing on the request. At the entire hearing, both parties may provide testimony. The court may uphold, modify, or dismiss the order at the whole hearing.

Permanent Protection Order:

If the victim still feels threatened after the complete hearing and the Magistrate concludes that the offender used domestic violence, the temporary protection order may be changed to a permanent protection order. The duration of this kind of protection order is lengthier.

In addition to abuse prevention measures, the court order may include other clauses. Typically, the court will discuss exclusive use of a residence, child custody, and parenting time in situations when the parties share children. The order will have a longer duration, such as one or more years, imposed by the court.

CONCLUSION:
The constant uprising of cases of domestic violence against women was the need to bring the Protection of Women from Domestic Violence Act statute. After registration of violence against any woman, it is the duty of the police officer or protection officer to remind the woman about their right of applying. The Magistrate after listening to both sides may give the protection order to the aggrieved woman to protect her from any future violent activities which prohibit the respondent to enter the workplace of the aggrieved, committing any act towards violence, communicating etc. if the respondent breaches the protection order, they would be punished with imprisonment of either description for a term which may extend to one year, or with a fine which may extend to twenty thousand rupees, or with both.

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[1] Section 3 of the Protection of Women from Domestic Violence Act, 2005

[2] Section 18 of the Protection of Women from Domestic Violence Act, 2005

[3] Sangeeta Saha v. Abhijit Saha, Crim Appeal No.(s) 2600-2601/2016, (Supreme Court of India, 28^th January 2019)

[4] Section 31 of the Protection of Women from Domestic Violence Act, 2005

[5] Francis Cyril v. Lydia Jane, Criminal Revision Petition No. 758 of 2015, (High Court of Karnataka, 18^th December 2015)

[6] R. Satish Kumar v. Saritha, Cri. M. C. No. 1958 of 2014, MC 11/2021 OF J. M. F. C – I, (High Court of Kerala, 27^th November 2015)

[7] Suneesh v. State of Kerala, 2022 SCC OnLine Ker 6210