SMT. HASINA KHATOONversusState of U.P. AND ANOTHER

                                                                      A.F.R.

Court No. -67

Case :- APPLICATION U/S 482 No. - 7721 of 2023

Applicant :- Smt. Hasina Khatoon
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Akshaya Kumar
Counsel for Opposite Party :- G.A.

Hon'ble Rahul Chaturvedi,J.
(1).   Heard Shri Akshay Kumar, learned counsel for applicant and

learned A.G.A. for the State of UP. Perused the record.

(2).   Extraordinary powers of this Court is being invoked by the

applicant u/s 482 Cr.P.C. to quash order dated 23.01.2023 passed by the

Civil Judge (Junior Division)/F.T.C. (Crime against Women), Moradabad

in Execution Case No.697 of 2022 (Smt. Hasina Khatoon vs. Ahmad @

Ramzani) u/s 31 of the Domestic Violence Act, 2005, arising out of Case

No.10095 of 2017 (Hasina Khatoon vs. Ahmad Ali) u/s 12 of the

Domestic Violence Act by which the court below has rejected the claim of

applicant for maintenance amount of Rs.2.64 lacs on the ground that the

opposite party no.2 has undergone an imprisonment of one month, and

thus, the balance amount cannot be claimed from the opposite party no.2.

(3).   Before coming to the actual legal aspect of the issue, it is

imperative to spell out the bare skeleton facts of the case to appreciate the

controversy in its correct perspective.

(a).   The applicant Hasina Khatoon got married with opposite party no.2

       on 23.5.1990 as per the Muslim rites, rituals and customs. This
       couple was blessed with one son, unfortunately he was

       handicapped. It seems that there was deep rooted discord between

       the husband and wife on account of various factors, consequentially

       the opposite party no.2 kicked her out along with her handicapped

       son on 21.7.1995. Thus, a usual proceeding u/s 498A IPC and other

       allied sections was initiated against the opposite party no.2.

(b)    After some time, on account of intervention of certain well-

       meaning persons of the society and respectable members and with

       the help and aid of their relatives, better sense prevailed upon the

       opposite party no.2 thereafter a compromise deed was executed

       inter-se. As a consequence thereof, the applicant started living with

       opposite party no.2. After sometime, the applicant was again

       thrown out of with her handicapped son from her domestic unit on

       20.5.2017 and since then she is residing in a rented accommodation

       along with her handicapped son in most pathetic condition, having

       no fixed source of income.

(c).   It is further contended by learned counsel for the applicant, that

       opposite party no.2 has sufficient source of income and by a rough

       estimate he is earning above Rs.50,000/- per month from various

       sources.

(d)    The applicant was not having any means of earning, wholly

       dependent upon her husband, who is still willfully ignoring her and

       her handicapped son, thus, she was running from pillar to post.


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      Under compelling circumstances, the applicant filed a proceeding

      under Section- 12 of the Domestic Violence Act having Case

      No.20095 of 2017 (Hasina Khatoon vs. Ahmad Ali) in the court of

      Additional Chief Judicial Magistrate-IV, Moradabad.

(e)   As the applicant was in dire need of money so as to make both the

      ends meet for herself and her handicapped son, and therefore, she

      moved yet another application under Section- 23 of the Domestic

      Violence Act, seeking an ex-parte interim order keeping in view the

      exigency of the circumstances.

(f)   After service of notice upon opposite party no.2, the opposite party

      no.2 has filed his objection denying the allegations made in the

      claim.

(g)   Having thrashed the material on record, the court below vide order

      dated 19.7.2019 allowed applicant’s application for interim

      maintenance and directed opposite party no.2 to pay Rs.4,000/- to

      the applicant and Rs.4,000/- to his handicapped son, totalling

      Rs.8,000/- per month, payable on 10th day of every month.

(h)   Aggrieved by the aforesaid interim order dated 19.7.2019, opposite

      party no.2 preferred an appeal having Criminal Appeal No.41 of

      2019 (Ahmad Ali @ Ramzani vs. State of U.P. and others), but the

      Additional Session Judge, Moradabad vide its order dated

      01.4.2022 have rejected the appeal preferred by opposite party no.2.




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(i)   Opposite party no.2, aggrieved by order dated 01.04.2022, again

      came to this Court by filing Crl. Misc. Application u/s 482

      No.11881 of 2022 (Ahmad Ali @ Ramzani vs. State of U.P. and

      two others), but sensing the adverse observation of the Court,

      learned counsel for opposite party no.2 expressed his desire to enter

      into a compromise with the applicant and on this ground, without

      adverting anything on the merit of the case, aforesaid 482

      application was dismissed on 02.11.2022.

(j)   Opposite party no.2 have exploited all the avenues available to him

      and resorted to gimmicks and chicanery so that he had not to pay

      single penny to the applicant, under the circumstances left with no

      other option, applicant Hasina Khatoon has moved an execution

      case for compliance of order dated 19.7.2019 passed by the court

      below and has prayed for issuance of recovery warrant against

      opposite party no.2 for recovery of totalling amount of Rs.2.64 lacs

      for the period of July, 2019 to April, 2022 after computing at the

      rate of Rs.8,000/- per month.

(k)   The court below on 29.9.2022 was pleased to pass a detailed order

      in Execution Case No.697 of 2022, whereby the recovery warrants

      were issued against opposite party no.2 Ahmad Ali @ Ramzani.

      Pursuant to aforesaid recovery warrant, when opposite party no.2

      has failed to comply with the order, he was arrested by the police




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      and produced before the court below on 30.10.2022 in police

      custody and was sent to district jail Moradabad.

(l)   It was pleaded by learned counsel for the applicant that since

      opposite party no.2 declined to adhere to the directions of executing

      court and consequently he was sent behind the bars for 30 days vide

      order dated 21.11.2022. Order dated 21.11.2022 is being quoted

      hereunder :

      “21.11.2022

      आज वि पक्षी अहमद अली उर्फ रमजानी पुत्र स् ० जुम्मा विन ासी शाहपुर , मुबारकपुर उर्फ
      खोकरपुर थाना छजलैट जिजला मुरादाबाद, को न्यायालय द्वारा जारी विकए गए रिरक री
      विगरफ्तारी   ारंट मूल्य 2,64,000/- रूपये की सूली हेतु विदनांक 30.10.2022 को
      रिरमाण्ड मजिजस्ट्रेट द्वारा जेल भेजा गया था। वि पक्षी आज जेल से न्यायालय में उपस्थिस्थत
      आया। वि पक्षी से न्यायालय द्वारा पूछा गया विक क्या ह उपरोक्त र्णिFत धनराशिश जमा करने
      के लिलए तैयार है। वि पक्षी द्वारा र्णिFत संपूF धनराशिश जमा करने से इंकार विकया गया।
      रिरक री के सम्बन्ध में वि पक्षी को 30 विदन की न्यायियक विहरासत में रखा जाना था परन्तु
      वि पक्षी का धारा-309 सी०आर०पी०सी० का              ारंट बन गया था। अतः धारा-309
      सी०आर०पी०सी० का ारंट विनरस्त विकया जाता है। वि पक्षी को 30 विदन की न्यायियक
      विहरासत में रखने हेतु आदेशिशत विकया जाता है। अतः वि पक्षी को विदनांक 30.11.2022 तक
      या उपरोक्त र्णिFत धनराशिश जमा करने तक जिसवि ल कारागार में भेजा जाता है। ाद दी ानी

      प्रकृयित का है।”

      (m)      Thus, from the aforesaid order it is clear that the court has

      directed to send the opposite party no.2 to a civil prison for 30 days

      i.e. up to 30.11.2021 or till such time he deposits the outstanding

      maintenance amount. Thus, the underline idea to send opposite

      party no.2 in jail is to exert pressure upon him so that he may cough

      up the outstanding maintenance amount. In fact, this was a mode of


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enforcement of the order and not a mode of satisfaction. The court

was insisting that the opposite party no.2 must pay the outstanding

maintenance amount.

(n)     From the aforesaid, it is culled out that the stubborn opposite

party no.2 did not budge a single inch to pay the outstanding

maintenance amount, rather he preferred to go behind the bars.

(o)     After expiry of 30 days, on 30.12.2022 opposite party no.2

was released from jail, even though, he has not bothered to pay the

outstanding maintenance amount of Rs.2.64 lacs to the applicant.

Under compelling circumstances, the applicant moved yet another

application on 17.1.2023 before the court below for issuance of

“fresh recovery warrants” against opposite party no.2. This

application, contended by learned counsel for the applicant, was

surprisingly partly rejected by the court concerned vide order dated

23.01.2023 and issued recovery warrant for the period of October,

2022 to January, 2023 only for a sum of Rs.32,000/-. Relevant

portion of the impugned order dated 23.01.2023, is being

reproduced herein below :-

“सुना ए ं पत्रा ली का अ लोकन विकया।

पत्रा ली के अ लोकन से स्पष्ट है विक उक्त मुकदमें में न्यायालय द्वारा विदनांक 29.09.2022
को वि पक्षी अहमद अली के वि रूद्ध रिरक री    ारन्ट जारी विकया था। विदनांक 30.10.2022
को र्णिFत धनराशिश जमा न करने के कारF वि पक्षी को 30 विदन की न्यायियक विहरासत में
भेजा गया था, जिजसके सम्बन्ध में अशिभयुक्त एक माह कारा ास में रह चुका है। धारा- 300
दं०प्र०सं० 1973 में उजिVलिखत है विक यविद विकसी अपराध में वि पक्षी को दोषजिसद्ध विकया जा


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       चुका है तो उसी अपराध के लिलये दोबारा दोषजिसद्ध घोविषत नहीं विकया जा सकता। मामले के
       तथ्यों ए ं परिरस्थिस्थयितयों को दृविष्टगत रखते हुए वि पक्षी के वि रूद्ध देय धनराशिश माह अक्टू बर
       2022 से माह जन री 2023 तक के लिलये रिरक री ारन्ट जारी विकया जाना न्यायोयिचत
       प्रतीत होता है। अतः ऐसी स्थिस्थयित में इस स्तर पर आन्तरिरम भरF पोषF धनराशिश
       2,64,000/- की सूली हेतु प्राथना पत्र विनरस्त विकया जाता है तथा देय धनराशिश माह
       अक्टू बर 2022 से माह जन री 2023 तक 32.000/- रू० की सूली हेतु रिरक री ारंट

       जारी विकया जाता है। वि पक्षी के वि रूद्ध रिरक री ारंट जारी हो। ”

(4).   I have gone through the order impugned dated 23.01.2023 which
indicates that the reasoning adopted by the court of F.T.C. (Crime Against
Women), Moradabad is palpably myopic and puerile, inasmuch as, that
the concerned court while passing impugned order has taken recourse of
Section 300 of Cr.P.C., which speaks about the doctrine of “autrefois
convict and autrefois acquit”. The essentials of the applicability of
aforesaid Section 300 of Cr.P.C. are :

       (i) That he (the accused person) had previously been tried by a
       court for an offence.
       (ii) That such Court was competent to try that offence.
       (iii) That he was either convicted or acquitted of that offence, at the
       former trial.
       (iv) That such conviction or acquittal still remains in force when a
       subsequent proceeding has been brought against him.
       (v) That at the subsequent proceeding he is being tried again-(a)
       for the same offence; or (b) on the same facts for any other offence
       for which a different charge might have been made under s. 221(1)-
       (2).

(5).   Now comparing aforementioned essentials with the reasoning given

in the impugned order, indicates that the earlier part of the order for

sending the opposite party no.2 in jail is not for any offence nor he was

convicted for any offence. Since he was a defaulter in paying the

outstanding maintenance amount, that is why, he has to face civil prison


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so that he may pay the maintenance amount, and therefore, the reasoning

adopted by the court concerned while passing impugned order is per se

absurd and total non-application of correct law.


(6).   Now coming to yet another aspect of the issue i.e. the application

for execution under Section-31 of the Protection of Women from

Domestic Violence Act, 2005 (Act No.43 of 2005). Before delving into

this legal point, it is imperative to have a fleeting glance over the object of

“The Protection of Women from Domestic Violence Act, 2005”. The

OBJECT speaks that aforesaid Bill seeks to provide the following

objects :

       “(i). It covers those women who are or have been in a
       relationship with the abuser where both parties have lived together
       in a shared household and are related by consanguinity, marriage
       or through a relationship in the nature of marriage or adoption. In
       addition, relationships with family members living together as a
       joint family are also included. Even those women who are sisters,
       widows, mothers, single women, or living with the abuser are
       entitled to legal protection under the proposed legislation.
       However, whereas the Bill enables the wife or the female living in a
       relationship in the nature of marriage to file a complaint under the
       proposed enactment against any relative of the husband or the male
       partner, it does not enable any female relative of the husband or the
       make partner to file a complaint against the wife or the female
       partner.
       (ii) It defines the expression “domestic violence” to include
       actual abuse or threat or abuse that is physical, sexual, verbal,
       emotional or economic. Harassment by way of unlawful dowry
       demands to the woman or her relatives would also be covered
       under this definition.
       (iii). It provides for the rights of women to secure housing. It also
       provides for the right of a woman to reside in her matrimonial
       home or shared household, whether or not she has any title or

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       rights in such home or household. This right is secured by a
       residence order, which is passed by the Magistrate.
       (iv). It empowers the Magistrate to pass protection orders in
       favour of the aggrieved person to prevent the respondent from
       aiding or committing an act of domestic violence or any other
       specified act, entering a workplace or any other place frequented
       by the aggrieved person, attempting to communicate with her,
       isolating any assets used by both the parties and causing violence
       to the aggrieved person, her relatives or others who provide her
       assistance from the domestic violence.
       (v). It provides for appointment of Protection Officers and
       registration of non-governmental organisations as service
       providers for providing assistance to the aggrieved person with
       respect to her medical examination, obtaining legal aid, safe
       shelter, etc.”
(7).   Since the aforesaid application has been moved under Section-31 of

the Protection of Women from Domestic Violence Act, as such, it is

imperative to quote Sections 31 and 32 of this Act, which reads thus :

       “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 description 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 had 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 Magistrates
       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 disclose the commission of an offence under those
       provisions.
       32. Cognizance and proof.—



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        (1) Notwithstanding anything contained in the Code of Criminal
        Procedure, 1973 (2 of 1974), the offence under sub-section (1) of
        section 31 shall be cognizable and non-bailable.
        (2) Upon the sole testimony of the aggrieved person, the court may
        conclude that an offence under sub-section (1) of section 31 has
        been committed by the accused.”

(8).    The provisions of aforesaid sections speak about the penalty for

breach of protection by the respondents. Thus, it is evident that the 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 description for a term which may extend to one

year, or with fine which may extend to twenty thousand rupees, or with

both.


(9).    On this score, it has been submitted that vide order dated 29.9.2022

while issuing the recovery warrant against opposite party no.2, the police

on 30.10.2022 have arrested the opposite party no.2 and sent him to

District Jail, Moradabad by passing an order mentioned above, whereby it

has been mentioned that the applicant was directed to remain in jail up to

30.11.2022 or till the deposit of outstanding amount of Rs.2.64 lacs. It

seems that the opposite party no.2 has preferred earlier one and served out

his time up to 30.11.2022 (say about one month) in jail to allegedly

absolve him from the liability of paying outstanding maintenance amount.

(10). In this regard it has been contended by learned counsel for the

applicant that this was not an object of the Protection of Women from

Domestic Violence Act. This in fact is social legislation in tenting the


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wives and the children and levying the responsibility upon the shoulders

of husbands to maintain their wives and children. Serving out in jail for

month, would not absolve the opposite party no.2 from the liability of

maintaining his wife and children. Sending a person into jail is a mode of

deterrence so that he may clear off the outstanding maintenance amount

and keep on paying regularly so that his wife and children may not die in

a destitute condition. This is the precise underline idea which has been

expatiated upon by the Hon’ble Apex Court in the case of Smt. Kuldip

Kaur vs. Surender Singh and another, 1989 SCC (1) 405. The ratio laid

down in this case may be usefully recalled and applied in the present case.

Exercise of power under Section-31 of the Domestic Violence Act is a

mode of enforcement of the alleged protection orders under Section-18 of

the Act and it is distinguished from the mode of satisfaction and the

liability which can only be made by means of the an actual payment.

Relevant portion of the order in Smt. Kuldip Kaur (supra) is being quoted

herein below :

      “A distinction has to be drawn between a mode of enforcing
      recovery on the one hand and effecting actual recovery of the
      amount of monthly allowance which has fallen in arrears on the
      other. Sentencing a person to jail is a `mode of enforcement'. It is
      not a `mode of satisfaction' of the liability. The liability can be
      satisfied only by making actual payment of the arrears. The whole
      purpose of sending to jail is to oblige a person liable to pay the
      monthly allowance who refuses to comply with the order without
      sufficient cause, to obey the order and to make the payment. The
      purpose of sending him to jail is not to wipe out the liability which
      he has refused to discharge Be it also realised that a person
      ordered to pay monthly allowance can be sent to jail only if he fails
      to pay monthly allowance 'without sufficient cause' to comply with

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      the order. It would indeed be strange to hold that a person who
      `without reasonable cause' refuses to comply with the order of the
      Court to maintain his neglected wife or child would be absolved of
      his liability merely because he prefers to go to jail sentence of jail
      is no substitute for the recovery of the amount of monthly
      allowance which has fallen in arrears Monthly allowance is paid in
      order to enable the wife and child to live by providing with the
      essential economic wherewithal. Neither the neglected wife nor the
      neglected child can live without funds for purchasing food and the
      essential articles to enable them to live. Instead of providing them
      with the funds, no useful purpose would be served by sending the
      husband to jail Sentencing to jail is the means for achieving the
      end of enforcing the order by recovering the amount of arrears. It is
      not a mode of discharging liability. The section does not say so.
      The Parliament in its wisdom has not said so commence does not
      support such a construction. From where does the Court draw
      inspiration for persuading itself that the liability arising under the
      order for maintenance would stand discharged upon an effort being
      made to recover it? The order for monthly allowance can be
      discharged only upon the monthly allowance being
      recovered……….”

(11). In yet another case of Shantha @ Ushadevi & Anr vs. B.G.

Shivananjappa, (2005) 4 SCC 468, whereby it has been held that liability

to pay the maintenance amount u/s 125 Cr.P.C. or in the instant enactment

is in nature of continuing liability. The nature of right to receive the

maintenance and the concomitant liability to pay goes hand in hand and it

cannot be substituted by any civil imprisonment.


(12). In the case of Poongodi & Anr vs. Thangavel, (2013) 10 SCC 618

it was held by the Hon’ble Apex Court that the proviso of Section 125(3)

Cr.P.C. signifies that it is a mode of enforcement i.e. sending a defaulter to

a civil prison and does not create any bar or affects the actual right of

receiving maintenance amount from the said defaulter. It lays down the

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procedure for recovery of maintenance from a defaulter and compel him

to clear off the dues. Sending a defaulter to jail is not going to serve the

object of Enactment. It would not going to absolve the defaulter from

liability accrued upon him by way of his status as husband.

(13). Thus, taking into account the help from the aforesaid decisions of

the Hon’ble Apex Court, this Court is of the considered opinion that the

order impugned dated 23.01.2023 can’t be sustained in the eyes of law

and the F.T.C. Court while passing the impugned order has grossly erred

by re-issuing the recovery warrant for the revised period i.e. from

October, 2022 to January, 2023. A defaulter has to be dealt with an iron

hand as per the provisions of Section 31 that any violation 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 description for a term which may extend to one year, or with fine

which may extend to twenty thousand rupees, or with both.

(14). This offence being non-bailable and cognizable, therefore, the court

ought to have penalized the alleged defaulter for imposing the maximum

punishment according to the guilt, where the opposite party no.2 has got

remarried with some other lady and enjoying the life, leaving behind the

applicant and her handicapped son on road. This is an unpardonable

offence and a sin whereby the extra-ordinary punishment has to be levied

mercilessly. The Magistrate ought to have proceeded against opposite

party no.2 under Section -31 of the Protection of Women from Domestic


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Violence Act and even if fails to recover the amount, he can put the

immovable property to auction to recover the entire outstanding

maintenance amount.

(15). Under these circumstances, I have no hesitation to say that the

impugned order suffers from the vice of law mentioned above, and

therefore, impugned order dated 23.01.2023 passed by the Civil Judge

(J.D./F.T.C. (Crime against Women), Moradabad is hereby quashed, with

the following direction :-

(i)     The court below concerned will issue a fresh notice to the opposite

party no.2 to the effect that he shall clear off the entire outstanding

maintenance amount by 15.5.2023 pursuant to order dated 19.7.2019 i.e.

from July, 2019 up to 30th April, 2023 @ Rs.4,000+4,000=Rs.8000/- per

month by way of interim maintenance.

(ii)    If the opposite party no.2 fails to deposit the entire outstanding

amount of maintenance in this period, then the court concerned shall

proceed against opposite party no.2 u/s 31 of the Protection of Women

from Domestic Violence Act for penalizing him for imprisonment of one

year and a fine of Rs.20,000/- or both.

(iii)   Simultaneously, in case of failure to deposit the entire outstanding

amount within time prescribed, the court concerned would attach the

entire movable and immovable property belonging to the opposite party

no.2 and the said property shall put to auction in order to recover the

outstanding maintenance amount to be paid to the applicant.

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                                    (iv)   Since the court concerned has only fixed the interim maintenance,

                                    the court concerned is expected to gear up the matter and decide the Case

                                    No.10095 of 2017 (Hasina Khtoon vs. Ahmad Ali) u/s 12 of Domestic

                                    Violence Act on priority basis and while calculating the final figure of

                                    maintenance amount, the court concerned shall adjust the interim

                                    maintenance amount given by the opposite party no.2 and shall be paid to

                                    the applicant.

                                    16.    The aforesaid directions must be adhered strictly within the time

                                    specified above and no laxity would be tolerated in compliance of the

                                    above directions.

                                    17.    With the above observations, this application u/s 482 Cr.P.C. is
                                    disposed off.

                                    Order Date :- 5.4.2023
                                    M. Kumar




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Digitally signed by :-
MANISH KUMAR
High Court of Judicature at Allahabad