Dv case & warrant

Dear Author,

It is better to go to the basic error of why your friend has beem made respondent in the DV case?

Did your friend stay with you in your house continuously where you and your wife used to stay? At the time of the complaint did your friend stay with you? At the time of occurances of the alleged offences, did your friend stay with you and your wife under the same roof? 

Answer these quetions first..any one can be made respondent, but the respondent has to see where there are grounds to make him a respondent..if NO..please approach HC and get the summons quashed..

In a DV case there cannot be a NBW because the respondent did not receive the summons. The court will pass ex-party order and incase the respondent does not comply to the protection order, the magistrate has the power to issue a bailable warrant.

You have to see if there has been a domestic relationship between your friend and the complainant.

Domestic relationship has been well explained in the judgement below:

Harbans Lal Malik & Ors. Vs. Payal Malik reported in II (2010) DMC 202 DHC wherein in para No.11 & 12 it is observed that;

“It is apparent that in order to make a person as respondent in a petition under section 12, their must exist a domestic relationship between the respondent and the aggrieved person, if there is no domestic relationship between the aggrieved person and the respondent, the court of MM cannot pass  an order against such a person under the Act. Domestic relationship is defined under section 2(f) of the Act and is as under; 

“domestic relationship’ means a relationship between two person who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together in joint family. 

It is apparent that domestic relationship arises between the two persons who have lived together in a share household and when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members, living together as a joint family. The definition speaks of living together at any point of time, however, it does not speak having relation at any point of time, thus if the domestic relationship continued and if the parties have lived together at any point of time in a shard household, the person can be a respondent, but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive and at the time when compliant under domestic violence Act is filed and if this relationship is not alive on the date when the complaint is filed, the domestic relationship cannot be said to be there”

Using the above mentioned judgement, approach the HC and get the summons quashed. 

I am sure it wil work.

Regards,

Vikram

Dear Qurist

As per section 28(2) of Protection of Domestic Violence Act-2005, the Criminal Procedure code-1973 will be applicable and as per section 87 of cr.P.C the magistrate have power to issue warrant against the respondent if the respondent is not obey the order of court even if after receiving the summon he/she is not going to appear before the court or if the court pass an order for maintenance the respondent is not pay the money then also magistrate can issue Warrant against the respondent as per section 125 of Cr.p.C. and send him jail too for non payment of maintenance.

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4843 of 2010()


1. SHANAVAS, S/O.ABDULSALAM,
                      ...  Petitioner

                        Vs



1. RASEENA, D/O.SHIHABUDEEN,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.AYYAPPAN SANKAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :10/12/2010

 O R D E R
               M.Sasidharan Nambiar, J.
              --------------------------
                Crl.M.C.No.4843 of 2010
              --------------------------

                         ORDER

First respondent, through her mother, filed petition under Section 12 of Protection of Women from Domestic Violence Act before Judicial First Class Magistrate's Court-II, Thiruvananthapuram, which was numbered as M.C.No.246/2010. First respondent also filed a petition for interim order under Section 23 of Protection of Women from Domestic Violence Act. By Annexure-II ex parte order dated 24.9.2010, respondents therein were restrained from committing any sort of domestic violence against the first respondent herein. Petitioner, the first respondent therein, was directed to appear before the court on 7.10.2010 and surrender his passport. He was also directed to pay Rs.1,500/- per month towards maintenance to the aggrieved person. Notice was ordered to the respondents therein, including the petitioner. Petitioner, along with the third respondent, challenged that order before Sessions Court, Thiruvananthapuram in Crl.A.No.758/2010. It is pending. They also sought an order staying Annexure-II  order. By Annexure-IV order, learned Sessions Judge stayed only the direction to surrender the passport. Annexure-VI, copy of the proceedings paper in M.C.No. 246/2010, shows that case was posted to 19.10.2010 and on that day, learned Magistrate directed the petitioner to appear in person and pay maintenance. On that day, case was posted to 2.11.2010. On 2.11.2010, petitioner was absent. The case was then posted to 18.11.2010. On 18.11.2010 recording that petitioner was absent and there was no payment of interim maintenance ordered, non bailable warrant returnable on 9.12.2010 was issued. This petition is filed under Section 482 of Code of Criminal Procedure for a direction to the learned Magistrate to dispose the petition filed underSection 12 of Protection of Women from Domestic Violence Act expeditiously and to stay the order issuing non bailable warrant.

2. In the light of the order to be passed in this petition, it is not necessary to issue notice to the first respondent.

3. Section 23(1) of Protection of Women from Domestic Violence Act provides that in any proceeding  before the Magistrate, he may pass such interim order as he deems just and proper. Sub-section (2) provides that if the Magistrate is satisfied that an application prima facie discloses that respondent is committing or has committed an act of domestic violence or that there is likelihood that respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Sections 18, 19, 20, 21 or 22 against the respondent.

4. Section 31 of Protection of Women from Domestic Violence Act provides for penalty for breach of protection order. Under sub-section (1), a breach of protection order or of an interim protection order by the respondent shall be an offence and shall be punishable with imprisonment for a term which may extend to one year or fine or both. Section 32 provides that notwithstanding anything contained in the Code of Criminal Procedure, the offence under sub-section (1) of Section 31 shall be cognizable and non bailable.

5. As is clear from Section 31 of Protection of Women from Domestic Violence Act, when an order under  Section 23, whether under sub-section (1) on hearing the respondent or under sub-section (2), an ex parte interim protection order, was passed and respondent commits breach of that order, respondent is punishable as provided under sub-section (1) of Section 31. That offence, as provided under Section 32 of Protection of Women from Domestic Violence Act is non bailable and cognizable. But the cognizable offence provided under Section 31(1) would only be the result of a breach of the protection order as provided under Section 18 of Protection of Women fromDomestic Violence Act.

6. A Magistrate, on passing an order under Section 23(1) or an ex parte order under Section 23(2)of Protection of Women from Domestic Violence Act, cannot direct arrest of the respondent by issuing non bailable warrant before taking cognizance of the offence, if an offence is committed under sub-section (1) of Section

31. Annexure-VI proceeding paper shows that after passing Annexure-II ex parte order as provided under sub-section (2) of Section 23 of Protection of Women from Domestic Violence Act, the petition filed by the first respondent under Section 12 of Protection of  Women fromDomestic Violence Act was posted for the appearance of the respondents. When first respondent appeared through a counsel, he was directed to appear in person and pay the maintenance. It is on the failure to appear and pay maintenance as ordered, the non bailable warrant was issued. Learned Magistrate cannot order non bailable warrant for the failure to pay maintenance as has been done in this case. It is made clear that Magistrate can proceed against the petitioner or other respondents for non payment of the interim maintenance only as provided under Protection of Women from Domestic Violence Act and such an order cannot be enforced as has been done by the learned Magistrate. In such circumstances, the order issuing non bailable warrant can only be quashed. Petition is allowed. The order issuing non bailable warrant against the petitioner in M.C.No. 246/2010 is quashed. Judicial First Class Magistrate- II, Thiruvananthapuram is directed to dispose the petition filed under Section 12 of Protection of Women from Domestic Violence Act, on merits, expeditiously. It is also made clear that learned Magistrate is  competent to execute Annexure-II order passed under Section 23(2) of Protection of Women from Domestic Violence Act, in accordance with the provisions of the Act.

10th December, 2010 (M.Sasidharan Nambiar, Judge) tkv 

there are many other judgments too.