Hc order review petition

No, HC will not review its order because SLP is pending before SC  and if you  ask to stay its own proceedings HC will reject this also.

So you can only request to HC to give long adjournment on the ground of appeal pending in SC.

For more accurate suggestion, you may upload the impugned order.

Sir, this is regarding Interim Maintaenence orders in DV Case.

- Session Court has done exparte order with huge maintenence and appealed in HC
- HC also ordered huge maintaiencne - My senior advocate wasn't present

- My senior Adv told to make an appeal in SC which I did but SC didn't provide the stay on trail court procedings and now in trail O/p pressing judge to arrest me for huge non payment of arrears and in SC my matter is not coming up for hearing

- That is why, can I file review in HC atleast to recheck on what error have been comittied in first hearing.

Trial court has no right to arrest you for non compliance of interim maintenance order. Court can only attach your property or salary if any

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
ORDER
Smt. Kanchan. Versus Vikramjeet Setiya.
S.B. Criminal Misc. Petition No. 123/2010
...
Date of Order: February 13, 2012
PRESENT
HON'BLE MR. JUSTICE SANDEEP MEHTA
None present for the petitioner.
Mr. M.A. Bhurat, Public Prosecutor for the State.
BY THE COURT:
Reportable.
The instant miscellaneous petition has been filed by the petitioner challenging the order dated
07.11.2009 passed by the Judicial Magistrate No.1, Sri Ganganagar in Criminal Miscellaneous Case
No. 312/2009 rejecting the application filed by the petitioner under Section 31 of the Protection of
Women from Domestic Violence Act, 2005 (for short, "the Act of 2005") for seeking initiation of the
criminal proceedings against the respondent on account of non-compliance of the order of monetary
relief.
The petitioner, being the wife of the respondent, had filed an application under Section 12 as well as
under Section 23 of the Act of 2005 seeking maintenance for herself and also for her child. The
application under Section 23 of the Act of 2005 was allowed on 11.8.2009 and the respondent was
directed to S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs. Vikramjeet Setiya) make
payment of Rs.3000/- per month to the petitioner and Rs.2000/- per month to the child. When the
respondent did not comply with the order, the petitioner filed an application before the learned trial
court under Section 31 of the Act of 2005 seeking prosecution of the respondent on the ground of
non- compliance of the order of monetary relief. The said application has been rejected by the

learned Magistrate by the impugned order dated 07.11.2009; hence the instant miscellaneous
petition.
No one appears for the petitioner.
After considering the grounds raised in the miscellaneous petition, this Court feels that the
provisions of Section 31 of the Act of 2005 need to be considered for proper appreciation of the issue
raised in the miscellaneous petition. The provisions of Section 31 of the Act of 2005 read as follows:-
"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 descripttion 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 S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs.
Vikramjeet Setiya) disclose the commission of an offence under those provisions."
Thus, the provision of Section 31 of the Act of 2005 clearly spells out that the application under
Section 31 of the Act of 2005 lies when there is a breach of a protection order or an interim
protection order. The term "protection order" is defined Section 2 (o), which reads as follows:-
Section 2 (o).-"Protection order"means an order made in terms of section 18.
Section 18 of the Act of 2005 reads as follows:-
"Section 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;
(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;
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(d)attempting to communicate in any form, whatsoever, with the aggrieved person,
including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or
S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs. Vikramjeet Setiya)
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."
Thus, it becomes apparent that Section 31 of the Act of 2005 empowers the Magistrate to prosecute
and punish a respondent in the event such respondent breaches the order passed under Section 18
of the Act of 2005. Section 18 of the Act of 2005 does not deal with monetary relief. Monetary relief
has been defined in Section 2 (k) of the Act and such reliefs are to be granted by way of proceedings
under Sections 12 and 23 of the Act of 2005. The Section 12 covers in its application all kinds of
reliefs including monetary relief as well as protection order and compensation. The non-compliance
of the order under Section 12 can be either of protection orders or of the order seeking monetary
relief. But the question which this Court needs to consider is as to whether the breach of an order of
monetary relief can make the respondent liable for prosecution under Section 31 of the Act of 2005 ?
The opinion of this Court, after careful S.B. Criminal Misc. Petition No. 123/2010
(Smt. Kanchan Vs. Vikramjeet Setiya) consideration of Section 31 is that the offence
which is created by Section 31 is specifically in regard to breach of the protection
order or an interim protection order. The term "monetary relief" is not included in
this Section and thereby taking out of the operation of Section 31 of the Act of 2005
any breach of an order of monetary relief. An applicant, in whose favour the order of
monetary relief has been passed, has to apply to the Magistrate for seeking execution
of the order as per Section 20 of the Act of 2005.
Section 20 of the Act of 2005 reads as follows:-
"Section 20. Monetary reliefs.- (1)while disposing of an application under subsection
(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 not limited to,-
(a) the loss oe earnings;
(b) the medical expenses;
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(c ) the loss caused due to the destruction, damage or removal of any 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.
(2)The monetary relief granted under this S.B. Criminal Misc. Petition No. 123/2010
(Smt. Kanchan Vs. Vikramjeet Setiya) section shall be adequate, fair and reasonable
and consistent with the standard of living to which the aggrieved person is
accustomed.
(3)The Magistrate shall have the power to order an appropriate lump sum payment
or monthly payments of maintenance, as the nature and circumstances of the case
may required.
(4)The Magistrate shall send a copy of the order for monetary relief made under
sub-section (1) to the parties to the application and to the in charge of the police
station within the local limits of whose jurisdiction the respondent resides.
(5)The respondent shall pay the monetary relief granted to the aggrieved person
within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the
order under sub -section (1), the Magistrate may direct the employer or a debtor of
the respondent, to directly pay to the aggrieved person or to deposit with the Court a
portion of the wages or salaries or debt due to or accrued to the credit of the
respondent, which amount may be adjusted towards the monetary relief payable to
the respondent."
A perusal of Section 20 of the Act of 2005 reveals that exhaustive procedure for the execution of
monetary relief has not been laid down in this section because sub-sections (4) and (5) of Section 20
provide the consequences to an order of monetary relief. Sub-section (6) of Section 20 of the Act of
2005 entitles the Magistrate S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan Vs.
Vikramjeet Setiya) to direct the employer or debtor of the respondent to directly pay to the
aggrieved person or to deposit with the Court a portion of wages or salaries or debt due or accrued to
the creditor of the respondent towards the monetary relief payable by the respondent. However, this
provision is limited to the person who may have accrued credit or is a salaried person, but in case of
a self-employed person, this provision would be of no help to the claimant.
Resultantly, the Court would have to fall back-on to the procedure provided under Section 28 of the
Act of 2005, which lays down that the courts shall be governed by the general provisions of the Code
of Criminal Procedure in relation to the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 as
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well as for the offence under Section 31 of the Act of 2005. Sub-section (2) of Section 23 of the Act of
2005 provides for a procedure to be laid down by the court on its own for the disposal of an
application under Section 12 or sub-section (2) of Section 23 of the Act of 2005. The procedure,
which the learned court below can adopt is limited to the disposal of the application, but for
execution of the order, a resort has to be had to the general provisions of the Code of Criminal
Procedure.
Resultantly, this Court is of the opinion that the provisions of the Code of Criminal Procedure in
relation to execution of the order under Section 125 Cr.P.C. have to be S.B. Criminal Misc. Petition
No. 123/2010 (Smt. Kanchan Vs. Vikramjeet Setiya) resorted to by the court below for giving force
to the order of monetary relief.
Looking to the nature of the Legislation and the purpose for which the same was enacted, it is
hereby directed that henceforth all the orders of monetary relief under the provisions of the Act of
2005 shall be executed in the manner provided under Section 125 Cr.P.C. but with the modification
that no formal application shall be required for such an execution and as soon as the order is passed
under Section 12 or 23 of the Act of 2005 for directing the monetary relief, the Court, after the
period provided for appeal is over, shall suo motu issue warrant of recovery for recovery of the
monetary relief directed to be paid and in the event of warrant for recovery not being satisfied then
the consequence of sending the respondent to civil jail, as per the procedure provided under Section
125 Cr.P.C., shall be resorted to.
As has been observed above, in the instant miscellaneous petition, the challenge was made to the
order whereby the application filed by the petitioner under Section 31 of the Act of 2005 was
rejected by the learned trial Court. This Court has already held that non- compliance of an order of
monetary relief does not give rise to the consequence of Section 31 of the Act of 2005.
Thus, the instant miscellaneous petition is S.B. Criminal Misc. Petition No. 123/2010 (Smt. Kanchan
Vs. Vikramjeet Setiya) without force and the same is rejected. The learned Magistrate shall forthwith
issue warrant for recovery of the amount of maintenance and if despite service of warrant, the
amount of maintenance is not deposited on or before 10th of each month then the learned
Magistrate shall be at liberty to pass an order of sending the respondent to civil jail as per Section
125 (3) Cr.P.C.
Resultantly, the miscellaneous petition stands disposed of accordingly.
(SANDEEP MEHTA), J.