In Savita Bhanot v. Lt. Col. V.D. Bhanot, 168 (2010) DLT 68, V.K. Jain, J. of Delhi high Court examined the nature of proceedings under DV Act and held as under:-

"6. The Act by itself does not make any act, omission or conduct constituting violence, punishable with any imprisonment, fine or other penalty. There can be no prosecution of a person under the provisions of this Act, for committing acts of domestic violence, as defined in Section 3 of the Act. No one can be punished under the Act merely because he subjects a woman to violence or harasses, harms or injures her or subjects her to any abuse whether physical, sexual, verbal, emotional or economic. No one can be punished under the provisions of the Act on account of his depriving a woman of her right to reside in the shared household.

7. Section 31 of the Act provides for punishment only if a person commits breach of protection order passed under Section 18 or an order of interim protection passed under Section 23 of the Act. Thus, commission of acts of domestic violence by themselves do not constitute any offence punishable under the Act and it is only the breach of the order passed by the Magistrate either under Section 18 or under Section 23 of the Act which has been made punishable under Section 31 of the Act. No criminal liability is thus incurred by a person under this Act merely on account of his indulging into acts of domestic violence or depriving a woman from use of the shared household. It is only the breach of the orders passed under Sections 18 and 23 of the Act, which has been made punishable.

9. The Statement of Objects and Reasons for enacting Prevention of Women from Domestic Violence Act, 2005 would show that since subjecting of a woman to cruelty by her husband or his relative was only a criminal offence and civil law did not address the phenomenon of domestic violence in its entirety, the Parliament proposed to enact a law keeping in view the rights guaranteed under Articles 14,15 and 21 of the Constitution of India so as to provide for a remedy under the civil law, in order to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence. Thus, the Act provides civil remedies to the victims so as to give them relief against domestic violence and the punishment can be given only if there is breach of order passed under the Act."

Lodge complaint u/s 326,307 of IPC. The DV case is civil in nature and violation of it is not going to punish him severely.

But the criminal case as advised above will do.

Kerala High Court

Shanavas vs Raseena on 10 December, 2010

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 under Section 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 from Domestic 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 from Domestic 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

Under section 31 DV Act, which penalizes the breach of protection order passed by the magistrate, the accused is liable to be convicted on the solitary statement of the victim if it is found to be truthful. It is to be tried as a criminal complaint.

The court will not direct you to submit citations.

It would instruct you to explain maintainability of any application filed by you for giving you the relief sought for by you.

The citations relevant to your issue can be searched either through internet or your advocate can procure them.

Another case u/s 307, 506 IPC was then filed and the same is currently pending trial (Charge sheet filed). Currently I am seeking citations of judgments of court and rulings specifically in regard to the violation of DV Act protection order (which I believe falls under section 31 of PWDVA). It would be helpful if you could please provide me with the same (You can share them with me on email at [deleted]).

As stated earlier, the citations can be procured through your advocate because he knows the case history and he may look for one based on the requirement.

Alternately you can engage the services of any lawyer of this forum privately for obtaining the desired citations.