Paradox of the Protection Order

Section 31¹ of the Protection of Women from Domestic Violence Act, 2005² is one of the two penalising provisions in the entire Act that makes the breach of a protection order an offence punishable with imprisonment for a term which may extend to one year along with fine. Additionally, the offence has been made non-bailable and cognizable. However, contravening judgments of various courts in interpreting what a protection order is, has led to judicial ambiguity with a low rate of conviction of just 18% under the Act. Clarity by the Supreme Court is the need of the hour.

The Protection of Women from Domestic Violence Bill, 2002³ was first moved on 8-3-2002 before the 13th Lok Sabha. The Standing Committee of Parliament on Human Resource Development had reviewed the Bill and submitted its Report but the Bill had lapsed on account of the dissolution of the Lok Sabha. Once again, an endeavour was made to review the Bill and on 23-8-2005 the Protection of Women from Domestic Violence Bill was introduced by the then Minister of Human Resource Development, Ms Kanti Singh. The House broke into a furore since the perception en masse was that the Bill was aimed to be against men. It was debated for two continuous days and finally came into force on 26-10-2006. The Statement of Objects and Reasons elucidates the power of the Magistrate to pass protection orders in favour of the aggrieved person and to prevent the respondent from aiding or committing an act of domestic violence. The idea sought to be achieved by enacting this piece of legislation was to protect women from being victims of domestic violence keeping in view the rights guaranteed under Articles 14⁴, 15⁵ and 21⁶ of the Constitution.

Section 2(o)⁷ defines a “protection order” to mean an order made in terms of Section 18⁸. What Section 18 envisages is that 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 committing any further act of domestic violence. The term “domestic violence” is defined under Section 3⁹ of the Protection of Women from Domestic Violence Act, 2005 detailing what “physical abuse”, “sexual abuse”, “verbal and emotional abuse” and “economic abuse” mean. A glance at Rule 15 of the Protection of Women from Domestic Violence Rules, 2006¹⁰ would however indicate that any resistance to the enforcement of the orders of the Court under the Act by the respondent or any other person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order covered under the Act. The bone of contention arises in the interpretation of the phrase “enforcement of the orders of the Court under the Act”. This can mean to include an order passed not just under Section 18 but also an order passed under the other sections such as Sections 17¹¹, 19¹², 20¹³ and 21¹⁴ or Section 22¹⁵. Various courts have, of their own accord, interpreted a “protection order”. However, the paradox continues to haunt the jurisprudential interpretation since the Supreme Court is yet to concretely decide on the said issue.

The Kerala High Court in Suneesh v. State of Kerala¹⁶ held that while incorporating provisions under Section 31¹⁷ to impose penalty on the breach of a “protection order” the legislature never intended to impose penalty for violation of “residence orders” or “monetary reliefs”. It relied on P.R. Velayudhan Nair v. Chimminikkara Karthiayani¹⁸ case which also held that Section 31 of the Protection of Women from Domestic Violence Act, 2005 would apply only to a violation of the interim or final protection order passed under Section 18 of the Protection of Women from Domestic Violence Act, 2005. The Court also detailed the principles of “ejusdem generis” to indicate that the construction of an unclear word or phrase should be determined by the words immediately surrounding it. It also noted the ramifications of widening the scope of Section 31 resultantly leading to over-flooding of cases under Section 31. The judgment is however silent on Rule 15(7) so also the fact that the Protection of Women from Domestic Violence Act, 2005 is a beneficial legislation and the Court ought not to have traversed into a hypertechnical view without resolving the conundrum.

Now let us assume a situation, where the Magistrate has passed an order directing the respondent to return the stridhan to the aggrieved person or any other property or valuable security to which she is entitled. Stricto sensu this would fall under Section 20(8) of the Protection of Women from Domestic Violence Act, 2005. However, a protection order under Section 18(e) also prohibits the respondent from alienating any assets, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate. This intersection of reliefs is what has led to ambiguity in understanding what the nature of the order passed by the learned Magistrate would be. Another simplified example would be a situation where the Magistrate under Section 19(2) may impose any other direction to protect or to provide for the safety of the aggrieved person or any child of such person. Per contra Section 18(f) provides that the Magistrate may prohibit the respondent from causing violence to the dependents, other relatives or any person who give the aggrieved person assistance from domestic violence. So, a clear overlapping of sections, could only mean one thing ⸻ that a protection order under Section 18 has to be given the widest interpretation possible. The Kerala High Court interestingly in Vijayakumari v. Jayakumar¹⁹ took a different view from that of Suneesh²⁰ and Velayudhan²¹. The question that weighed heavily in the mind of the Judge was whether the right of residence of a woman in a shared household automatically falls only within the purview of a residence order or could it qualify as a protection order as well. The learned Judge went on to hold that an order prohibiting the commission of any specific act can also qualify to be treated as a protection order provided, it is issued as an order of protection. The concept of the type of the order is determined only by the nature and terms of the order. But the learned Judge did not elaborate on what constitutes the nature and terms of the order and the parameters for identifying the difference between the two types of orders.

A notable decision in Kunapareddy v. Kunapareddy Swarna Kumari²² made a passing reference to the ambit of Section 31. It held that various kinds of reliefs which are sought by the aggrieved person are civil in nature. At the same time, when there is a breach of such orders passed by the Magistrate, Section 31 terms such a breach to be a punishable offence. “Such orders” includes all orders and not just an order under Section 18 of the Protection of Women from Domestic Violence Act, 2005. This view was further fortified in Kamatchi v. Lakshmi Narayanan²³ which categorically laid down that an offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005 will be said to have been committed only if there is a breach of an order passed under Section 12²⁴. It will not be out of place to mention that the Supreme Court does not refer to a breach under Section 18, but a breach under Section 12. Section 12 encompasses any order passed by the Magistrate in favour of an aggrieved person seeking one or more reliefs under this Act.

Recently, a Single Judge Bench of the Madras High Court in S. Amalraj v. State²⁵ differed with the judgment of Suneesh²⁶. It was sought to be argued by the petitioner that non-compliance of the order directing monthly maintenance order does not amount to a breach of a protection order and hence it was not proper for the learned Magistrate to initiate proceedings and take cognizance under Section 31. The learned Judge rightly held that Section 31 is the heartbeat of the Protection of Women from Domestic Violence Act, 2005. Non-payment of maintenance is deemed to be breach of a protection order under Section 18, therefore the learned Magistrate was right to take cognizance of the offence.

The Delhi High Court in Savita Bhanot v. V.D. Bhanot²⁷ took a contradictory stand by holding that it is only the breach of the order passed by the Magistrate under Section 19 or Section 23 of the Protection of Women from Domestic Violence Act, 2005 that has been made punishable under Section 31 of the Protection of Women from Domestic Violence Act, 2005. No criminal liability will be incurred by a person under this Act merely on account of indulging in acts of domestic violence. This view is principally against the tenets of the Protection of Women from Domestic Violence Act, 2005. The matter was challenged before the Supreme Court in V.D. Bhanot v. Savita Bhanot²⁸, which only modified the order to the extent of providing the respondent victim with a right of residence by way of relief under Section 19 as well as protection orders under Section 18, without delving into the aspect whether a breach thereof can be an offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005.

The Karnataka High Court in Francis Cyril C. Cunha v. Lydia Jane D. Cunha²⁹ which was followed in Mohd. Yaseen Naikwadi v. Aneesa³⁰ both held that non-payment of maintenance cannot be termed a breach as per Section 31 of the Protection of Women from Domestic Violence Act, 2005 and the violation of the same will not attract the provisions of Section 31. The Delhi High Court in Anish Pramod Patel v. Kiran Jyot Maini³¹ also held that as per the statutory framework of the Protection of Women from Domestic Violence Act and Rules, an order granting maintenance or interim maintenance will be enforced in the manner as provided under Section 20(6) of the Protection of Women from Domestic Violence Act, 2005. Section 31 deals exclusively with the breach of a “protection order” and an order passed under Section 20 cannot be interpreted to fall within the ambit of the term “protection order” falling under Section 31 of the Protection of Women from Domestic Violence Act, 2005. However, yet again the learned Judge failed to consider Rule 15(7) of the Protection of Women from Domestic Violence Rules, 2006.

Thus, with each court interpreting the breach of a protection order differently, a ruling by the Supreme Court on the same would help clarify the issue. With the rules specifying that a breach of a protection order would mean breach of any order passed under the Act and Section 31 specifically defining a breach of a “protection order” which is defined under Section 18, the resolution to the interpretation could also result in violators of protection orders being tried for the offence under Section 31 and justice being actually meted out to victims of domestic violence which was the intent of the legislature.