Date of Judgement:
17thFebruary 2010
Coram/judge:
The Hon’ble Justice Smt. Roshan Dalvi
Parties to the Case:
Petitioner - Mrs. Pramodini Vijay Fernandes
Respondent–Mr. Vijay Fernandes
SUBJECT
The present petition was against an order of the Family Court whereby the application of the petitioner under section 31 of the Protection of Women from Domestic Violence Act, 2005 was rejected for want of jurisdiction.
Legal Provisions
- Section 10 of the Indian Divorce Act, 1869- lays down the grounds and procedure for divorce under the Act.
- Section 31 of the Protection of Women from Domestic Violence Act, 2005- lays down the specific procedure to be followed, giving jurisdiction to the Magistrate who had passed the order, to punish for breach of any protection order which was specified to be an offence committed by the party breaching the order under the Act.
- Order 39 Rule 2A of the CPC, 1908 – lays down consequences of disobedience or breach of injunction.
OVERVIEW
- The petitioner had filed a divorce petition against the respondent under section 10 of the Indian Divorce Act, 1869 along with a petition under relevant sections of the Protection of Women from Domestic Violence Act, 2005 for the protection of herself and her child.
- There was an alleged breach of the order passed by the Family Court as interim protection in legal proceedings filed before it, by which certain reliefs were granted under the relevant sections.
- It was alleged that the order passed under the Protection of Women from Domestic Violence Act, 2005 was not complied with.Resultantly, the petitioner made out an application under section 31 of the act.
- Such application was rejected by the Family Court on the ground that it did not have the jurisdiction to pass such an order.
ISSUE
- Whether the family court had the power to punish for breach of any protection granted by it?
JUDGEMENT ANALYSIS
- The Court observed that if a breach was made of the order, the Court which passed the order was required to try it under Section 31. Section 31 required the offence of breach of the protection order or an interim order to be tried by the Magistrate who passed the order.
- If the Magistrate did not pass such an order but a Civil or a Criminal Court, or the Family Court in a Family Court proceeding passed an order under the relevant sections of the Act as a protection order, such Court, which passed the order, would be entitled and obliged to try the offence of breach of its own order.
- The contention of the Learned Counsel for the respondent that though the Family Court passed an order of protection but it had no jurisdiction to levy any penalty for breach of the order passed by it, was not tenable.
- This would mean that the law which grants the relief did not grant the remedy to enforce the relief. Such an interpretation would frustrate justice. An interpretation of legislation must be such as to enhance justice and not frustrate it.
- The Court relied on the case of Shail Kumari Devi & Anr. v. Krishan Bhagwan Pathak, wherein it was held that the Magistrate, who had the jurisdiction under Section 125 of the Criminal Procedure Code for granting maintenance to wives, children and parents, was conferred the power by necessary implication to pass interim orders of maintenance. It was held that he would have such power in the absence of any express bar or prohibition under that section. All other incidental and ancillary powers which are necessary to make the express grant of the statutory powers fully effective were to be deemed as available.
- The Family Court would have all the powers of a Civil Court; it could pass orders upon breach of its order under Order 39 Rule 2A of the CPC. The Family Court, like any other Court, would have the inherent power under Section 151 of the CPC to pass such orders as would be just and equitable, including orders to bring into effect its own orders.
- Hence, The Family Court would have the jurisdiction under Section 31,like that of the Magistrate which had passed the order of interim protection to frame charges and to levy the penalty for breach of its interim protection order. The Family Court would also have the jurisdiction to proceed under Order 39 Rule 2A of the CPC for breach and disobedience of its order and injunction.
- The order of the Learned Judge of the Family Court was set aside. The Learned Judge shall try the application of the Petitioner herein either under Section 31 of the Domestic Violence Act or under Order 39 Rule 2A of the CPC for breach of its own order.
CONCLUSION
Honourable High Court construed the provisions of the Protection of Women from Domestic Violence Act, 2005 and adjudicated upon the scope of powers of the Family Courts under section 31 of the act. It was held that the Family Court had powers to form charges and penalize the person who did not comply with the interim order passed by it during the proceedings.
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