Police Can Register FIR For Non-Payment Of Maintenance As Economic Abuse

Police Can Register FIR For Non-Payment Of Maintenance As Economic Abuse, Breach Of Protection Order Under DV Act: Madras High Court

Non – payment of maintenance amounts to violation of the protection granted under Section 18 of the DV Act, therefore, an FIR registered for the same is lawful. Justice KK Ramakrishnan opined that the purpose of Section 31 of the Protection of Women Against Domestic Violence Act was to secure social justice and ensure that the violator of a protection order is kept is regulated. The court called the provision a life-saving medicine by treating failure of remittance of maintenance as an offence and crime.

“Section 31 of the DV Act is a key provision and heartbeat of the DV Act to regulate the violator of protection order passed under Section 18 of the DV Act. The question as to whether the law enforcing authority has jurisdiction to register the Criminal Case under Section 31 of the Act for non-payment of maintenance allowance which is deemed to be breach of protection order under Section 18 of the Act, is answered affirmatively and the law enforcing authority has jurisdiction to register the case and proceed in accordance with law for every breach of order without any legal bar for the reason that each breach of order amounts to a continuing offence.” the court ruled.

The Hon’ble Court was adjudicating upon a plea filed for quashing of proceedings pending before the Judicial Magistrate, Devakottai, on the basis of an FIR registered under Section 31 of the DV Act. As per the facts, the petitioner got married to a woman in the year 1989 and two children were born out of the said wedlock. However, due to differences between the couple, the wife initiated proceedings under Section 18 and 19 of the DV Act against the petitioner and an order of maintenance was passed by the Judicial Magistrate, granting a maintenance of Rs. 3000 to the wife, and Rs. 5000 to the children. In addition to maintenance, a protection order was also passed by the Judicial Magistrate in favor of the wife. It was brought to the notice of the court by the petitioner that the maintenance granted to the wife was set aside upon an appeal filed by the petitioner, however, the order of maintenance to children was confirmed.

It was further submitted that a complaint under Section 31 of the DV Act was filed by his wife on the grounds that the petitioner was not paying maintenance to his wife, which gave rise to the impugned proceedings. It was further contended by his counsel that the petitioner is not in violation of Section 31 of DV Act as non payment of the maintenance does not amount to breach of the protection order and maintenance could be recovered through the execution of award under Section 125 or Section `128 of CrPC. The petitioner, while raising his contentions, relied upon Suneesh Vs. State of Kerala where this Hon’ble Court held that the penal provision would not apply to maintenance.

On the contrary, the respondent, while relying upon a judgement of Madhya Pradesh High Court, titled Surya Prakash Vs. Rachna, contended that the Hon’ble Bench of M.P. had a positive response to a similar question.

The court did point out that the lengthy process of using a distress warrant and distraint warrant to enforce the maintenance order was impeding the intended outcome of receiving the maintenance amount expeditiously.

It was further opined that one of the main reasons behind the enactment of penal provision of Section 31 of the DV Act was to ensure that the women, who are waiting to receive the determined maintenance amount, should be given immediate assistance.   

“The legislature has the present DV Act with the penal provision with an intention of suppressing the mischief of delayed execution proceeding of maintenance award and to provide the speedy remedy to the victim to avoid further destitution and vagrancy.” the court observed.

The court added that this transformation of execution of maintenance to a penal statute was to maintain social justice and safeguard the women and children, who would thus be protected by Article 15(3) and strengthened by Article 39. Thus, the court applied the principle of purposive interpretation and observed that the non payment of maintenance amounts to economic abuse.

By applying the above principles of purposive interpretation to the below extracted Sections 2(o) and 3(iv) of the DV Act, this Court without any ambiguity holds that non-payment of maintenance allowance would amount to economic abuse and the same will very well come under the umbrella of breach of protection order.” the court observed.

The court also rejected the Kerala High Court’s argument that a broad reading of Section 31 would overwhelm the court system and demonstrate the public’s confidence in the justice system, which is a positive development for the judiciary.

The court further stated that, in the present case, since the petitioner was regularly paying maintenance, therefore, it was incorrect to register a case without conducting a proper enquiry. Hence, the proceedings initiated under Section 31 of DV Act are quashed and the petition is allowed.


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