Case Note & Summary
The petitioners, Harsherekha Ajay Garg (mother-in-law) and Anirudha Ajay Garg (husband), challenged an order dated 30 September 2021 passed by the learned Metropolitan Magistrate, 40th Court, Girgaon, Mumbai, issuing process against them for the offence punishable under Section 31 of the Protection of Women from Domestic Violence Act, 2005 (DV Act). The background involves matrimonial discord between petitioner No. 2 (Anirudha) and respondent No. 2 (the complainant wife). The wife had filed a complaint under the DV Act, being CC No.6/DV/2020, seeking protection, residence, and monetary reliefs, impleading the husband, father-in-law, and mother-in-law. On 29 February 2020, the Magistrate passed an interim order prohibiting the respondents (including the petitioners) from dispossessing the wife and her children from the matrimonial home. Subsequently, the wife filed an application under Section 31 of the DV Act alleging breach of that order, claiming that the petitioners had disconnected the electricity and water supply, changed locks, and threatened to dispossess her. The Magistrate issued process against the petitioners without recording satisfaction that there was sufficient ground for proceeding. The petitioners approached the High Court under Article 226 and Section 482 CrPC to quash the process. The High Court examined the allegations and found that the complaint lacked specific averments that the petitioners had breached the protection order. The court noted that the interim order only restrained dispossession and did not impose any positive obligation on the petitioners to maintain utilities. The court held that for an offence under Section 31, there must be a willful breach of a protection order passed under Sections 18, 19, 20, 21, or 23 of the DV Act, and the allegations must be specific. The court also held that the Magistrate had issued process mechanically without applying judicial mind. Consequently, the High Court quashed the process against the petitioners, allowing the petition.
Headnote
A) Criminal Procedure - Quashing of Process - Section 482 CrPC - Inherent Powers - The High Court can exercise inherent powers to quash process if the allegations do not prima facie constitute an offence or if the process is an abuse of process of court. (Paras 1, 10-12)
B) Domestic Violence - Breach of Protection Order - Section 31 Protection of Women from Domestic Violence Act, 2005 - For an offence under Section 31, there must be specific allegations that the accused breached a protection order passed under Sections 18, 19, 20, 21 or 23 of the DV Act, and the breach must be willful and without reasonable cause. Mere non-compliance with an interim order without specific averments of breach does not attract Section 31. (Paras 5-9, 13-15)
C) Domestic Violence - Issuance of Process - Section 31 Protection of Women from Domestic Violence Act, 2005 - The Magistrate must apply judicial mind and record satisfaction that there is sufficient ground for proceeding before issuing process. Issuance of process in a mechanical manner without considering the ingredients of the offence is illegal and liable to be set aside. (Paras 10-12, 16-18)
Issue of Consideration
Whether the learned Magistrate was justified in issuing process against the petitioners for the offence punishable under Section 31 of the Protection of Women from Domestic Violence Act, 2005, in the absence of specific allegations that the petitioners breached the protection order and without recording satisfaction that there was sufficient ground for proceeding.
Final Decision
The High Court allowed the petition and quashed the order dated 30 September 2021 issuing process against the petitioners for the offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005. The court held that the allegations did not prima facie constitute an offence under Section 31 and that the Magistrate had issued process mechanically without recording satisfaction that there was sufficient ground for proceeding.
Law Points
- Section 31 of Protection of Women from Domestic Violence Act
- 2005 requires specific allegations of breach of protection order
- breach must be willful and without reasonable cause
- process cannot be issued mechanically
- inherent powers under Section 482 CrPC can be invoked to quash process if no prima facie case
Case Details
2022 LawText (BOM) (06) 28
WRIT PETITION NO.4412 OF 2021
Mr. Ashok Kumar Upadhyay for Petitioners, Mr. Aabad Ponda Senior Advocate with Mr. Niranjan Mundargi for Respondent No. 2, Ms. Anamika Malhotra for State
Harsherekha Ajay Garg and Another
The State of Maharashtra and Another
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Nature of Litigation
Criminal writ petition under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 challenging the order issuing process for offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005.
Remedy Sought
The petitioners sought quashing of the order dated 30 September 2021 passed by the learned Metropolitan Magistrate, 40th Court, Girgaon, Mumbai issuing process against them for the offence punishable under Section 31 of the DV Act.
Filing Reason
The petitioners challenged the issuance of process on the ground that the allegations did not constitute an offence under Section 31 of the DV Act and that the Magistrate had issued process mechanically without applying judicial mind.
Previous Decisions
The learned Metropolitan Magistrate had passed an interim order dated 29 February 2020 in CC No.6/DV/2020 prohibiting the petitioners and Mr. Ajay Garg from dispossessing the complainant and her children from the matrimonial home. Subsequently, the complainant filed an application under Section 31 of the DV Act alleging breach of that order, and the Magistrate issued process against the petitioners on 30 September 2021.
Issues
Whether the learned Magistrate was justified in issuing process against the petitioners for the offence under Section 31 of the DV Act in the absence of specific allegations of breach of the protection order?
Whether the issuance of process was mechanical and without application of judicial mind, warranting interference under Section 482 CrPC?
Submissions/Arguments
The petitioners argued that the complaint under Section 31 did not contain specific allegations that they had breached the protection order. The interim order only restrained dispossession and did not impose any positive obligation to maintain utilities. The allegations of disconnection of electricity and water supply and changing locks were vague and did not constitute a willful breach.
The respondent No. 2 (complainant) argued that the petitioners had deliberately disconnected utilities and threatened to dispossess her, which amounted to breach of the protection order. The Magistrate had correctly applied his mind and issued process.
Ratio Decidendi
For an offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005, there must be specific allegations that the accused willfully and without reasonable cause breached a protection order passed under Sections 18, 19, 20, 21, or 23 of the Act. The Magistrate must apply judicial mind and record satisfaction that there is sufficient ground for proceeding before issuing process. Issuance of process in a mechanical manner without considering the ingredients of the offence is illegal and liable to be set aside under Section 482 CrPC.
Judgment Excerpts
This petition under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1973 (the Code) assails the legality, propriety and correctness of an order dated 30th September, 2021 passed by the learned Metropolitan Magistrate, 40th Court, Girgaon, Mumbai issuing process against the petitioners/respondent Nos. 1 and 3 for the offences punishable under section 31 of the Protection of Women from Domestic Violence Act, 2005 (the DV Act, 2005).
For an offence under Section 31 of the DV Act, there must be specific allegations that the accused breached a protection order passed under Sections 18, 19, 20, 21 or 23 of the DV Act, and the breach must be willful and without reasonable cause.
The Magistrate must apply judicial mind and record satisfaction that there is sufficient ground for proceeding before issuing process. Issuance of process in a mechanical manner without considering the ingredients of the offence is illegal and liable to be set aside.
Procedural History
The marriage of petitioner No. 2 and respondent No. 2 was solemnized on 12 February 2011. Matrimonial discord led to multiple proceedings, including a complaint under the DV Act (CC No.6/DV/2020) by respondent No. 2. On 29 February 2020, the Magistrate passed an interim order prohibiting the petitioners and Mr. Ajay Garg from dispossessing the complainant and her children from the matrimonial home. Subsequently, the complainant filed an application under Section 31 of the DV Act alleging breach of that order. On 30 September 2021, the Magistrate issued process against the petitioners for the offence under Section 31. The petitioners then filed the present writ petition under Article 226 and Section 482 CrPC challenging the order issuing process.
Acts & Sections
- Protection of Women from Domestic Violence Act, 2005: 31
- Code of Criminal Procedure, 1973: 482
- Constitution of India: 226
