Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 41 (ORI)

Ganesh Moharana v. Sabitri Moharana

2017-01-05

B.K.NAYAK

body2017
ORDER : Heard learned Counsel for the parties and perused the case record. 2. Petitioners have filed this application under Section 482 Cr.P.C. challenging the order dated 16.02.2016 passed by the learned S.D.J.M. (Sadar, Cuttack in I.C.C. Case No. 119 of 2016 taking cognisance of offence under Section 31(1) of the Protection of Women from Domestic Violence Act, 2005 (in short 'PWDV Act') and directing issuance of summons to the petitioners. 3. Opposite Party has initiated a proceeding claiming several reliefs under the provisions of the PWDV Act in the Court of learned SDJM (Sadar), Cuttack, which has been registered as CRLMC No. 304 of 2015. She had also filed applications for some interim reliefs, which were considered and disposed of by order dated 05.01.2016 whereby learned SDJM directed the husband (Petitioner No.1) to pay a sum of Rs.10,000/- per month towards maintenance of Opposite Party and her minor son. The order further directed the respondents therein to provide separate accommodation to the Opposite Party and her minor son in the shared household. Similarly, interim order was also passed directing the respondents therein not to commit, aid, or abet the commission of any sort of domestic violence to the aggrieved person. 4. It is admitted at the Bar that the order dated 05.01.2016 passed by the learned SDJM, Cuttack was challenged by petitioner Nos.1 and 2 in Criminal Appeal No.04 of 2016 before the learned 2nd Additional Sessions Judge, Cuttack and that appeal having been dismissed the order of the learned SDJM, has become final and conclusive. 5. Subsequently, the Opposite Party filed a complaint alleging that as per the interim order passed on 05.01.2016 by the learned S.D.J.M., Sadar, Cuttack directing the respondents to provide her accommodation in the shared household, she went with the minor son, but the petitioners and other family members opposed and refused to let her stay there. Even the efforts of IIC, Mangalabag Police Station to get her accommodation in the shared household proved abortive, which has been communicated by the IIC, Mangalabag Police Station to the learned SDJM. The further allegation is that Opposite Party again went to the shared household on 08.01.2016 with her belongings and being prevented by the petitioners, she kept all her articles in the garage of the shared household, but the accused persons forcibly locked the garage and prevented her from taking back her belongings from garage. The further allegation is that Opposite Party again went to the shared household on 08.01.2016 with her belongings and being prevented by the petitioners, she kept all her articles in the garage of the shared household, but the accused persons forcibly locked the garage and prevented her from taking back her belongings from garage. Again on 13.01.2016, Opposite Party accompanied by her brother went to the matrimonial home to stay as per the Court's order but the accused persons drove her away and her brother without allowing them to take back her belongings from the garage and the petitioners even assaulted the brother of the Opposite Party. 6. By the impugned order dated 16.02.2016, the learned S.D.J.M., Sadar, Cuttack took cognizance of the offence under Section 31(1) of PWDV Act against all the petitioners. Subsequently the accused persons filed a petition before the learned SDJM for recall of the cognizance order, which was also rejected. 7. In the aforesaid circumstances, it is contended by the learned Counsel for the petitioners that offence under Section 31(1) of Protection of Women from Domestic Violence Act, 2005 Act is limited only to violation of final or interim protection order and not violation of order for residence or accommodation. Secondly, it is submitted that petitioner Nos. 3 and 4 are not parties to the domestic violence proceeding and, therefore, they cannot be prosecuted for offence under Section 31(1) of the Protection of Women from Domestic Violence Act, 2005. Learned Counsel for the Opposite Party, on the other hand, submits that the order dated 05.01.2016 was not only an interim order in respect of maintenance and accommodation, but it was also directed internally to the respondents not to commit or aid or abet the commission of any short of domestic violence to the Opposite Party. He also submits that a protection order includes prohibition to commit Domestic Violence which includes refusal to access to the resources or facilities including access to the shared household and therefore, refusal by the respondents to the opposite party to stay in the share household in spite of order dated 05.01.2016 also amounts to violation of the interim protection order and therefore no exception can be taken to the impugned order of cognizance. 8. 8. There is no quarrel over the proposition that the offence under Section 3(1) of the PWDV Act is limited to the breach of interim or final protection order by the respondent. It does not specifically include within its fold the breach of order of maintenance or accommodation. Protection order is envisaged under Section 18 of the Act whereby the learned Magistrate having jurisdiction can pass an order protecting the aggrieved person from commission of any act of domestic violence, besides orders of several other categories of protections. The expression, "domestic violence" includes within its definition physical abuse, sexual abuse and economic abuse. Clause (iv) to Explanation-I of Section 3 defines "economic abuse" and sub-clause (c) thereof brings within the fold of economic abuse any prohibition or restriction to continue to access to resources or facilities including access to the shared household. The allegations made in the complaint of the Opposite Party are to the effect that the respondents not only refused her accommodation in the shared household but also prevented her from retrieving her belongings back and assaulted her brother, which amount to economic abuse of the opposite party. Therefore, substantially the action of the respondents as alleged in the complaint filed amounts to violation of interim protection order and, therefore, cognizance has rightly been taken against the respondents, i.e., petitioner Nos.1 and 2. 9. Language used in Section 31(1) of the PWDV Act must be understood to have been limited to only the respondents in the proceeding, who commit the breach or violation of final or interim protection order. Admittedly petitioner Nos.3 and 4 are not parties to the original proceeding filed by the Opposite Party under the D.V. Act and there was no protection order against them. Therefore, they cannot be said to have violated the protection order as respondents. Hence, taking cognizance of offence under Section 31(1) and directing issuance of summons to them is illegal and unsustainable. 10. In the aforesaid analysis, this petition is allowed in part and the order taking cognizance and issuance of process against petitioner Nos.3 and 4 is quashed. Petition allowed in part.