Delhi District Court
Niharika Ghosh@Niharika Kundu vs Shankar Ghosh And Anr on 24 January, 2025
IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
DLST010053652024
CA/201/2024
NIHARIKA GHOSH @ NIHARIKA KUNDU Vs. SHANKAR
GHOSH AND ANR
Smt. Niharika Ghosh @ Niharika Kundu
W/o Sh. Shankar Ghosh
R/o 62-D, Humayunpur, Safdarjung Enclave,
New Delhi-110029 ................ APPELLANT
VERSUS
1) Sh. Shankar Ghosh
S/o Late Sh. Sunil Kumar Ghosh
R/o 62-D, Humayunpur, Safdarjung Enclave,
New Delhi-110029
2) Smt. Sandhya Ghosh
W/o Late Sh. Sunil Kumar Ghosh
R/o 62-D, Humayunpur,
Safdarjung Enclave,
New Delhi-110029. ................. RESPONDENTS
DATE OF INSTITUTION : 28.05.2024
ARGUMENTS HEARD ON : 04.10.2024
DATE OF JUDGMENT : 24 .01.2025
JUDGMENT
1. Vide this appeal, appellant has assailed the order dated 29.04.2024, passed by the learned Metropolitan Magistrate, (Mahila Court-03), South District, Saket Courts, New Delhi Digitally in case bearing CT No. 391/2023 titled as 'Niharika Ghosh signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.01.24 16:46:01 +0530 CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 1 of 12 @ Niharika Kundu Vs. Shankar Ghosh and Anr.' ,filed under provisions of Domestic Violence Act, whereby Ld. Trial Court has dismissed the complaint filed by the appellant against the respondent u/s 31 of PWDV Act for committing breach of the protection order dated 06.02.2020.
2. Brief facts may be taken note of: A complaint under section 12 of Domestic Violence Act was filed by appellant/wife Niharika Ghosh @ Niharika Kundu with the averments that she is legally wedded wife of the respondent and the marriage between the parties got solemnized on 21.04.2014. As per appellant/wife, she was subjected to domestic violence by respondents and his family members.
During the proceedings in domestic violence case, the appellant on 20.07.2017, moved an application for directing both the respondents to restore water supply to her portion and since no water was being given to the appellant on 21.06.2019, she again moved an application for restoring the water supply. Thereafter, Ld. MM directed the protection officer to visit the shared household to ascertain the correct position in regard to the need of repair, whether the appellant is using the premises in a manner which is leading to its deterioration and also to ascertain the availability of water in the premises. Pursuant to the report of protection officer, Ld MM vide order dated 06.02.2020, passed the following directions in regard to the water supply to the appellant: Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.01.24 16:46:07 +0530 CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 2 of 12 "Considering that the water is an essential amenity, respondents are also restrained from disturbing the water supply to the portion of premises where aggrieved is residing."
3. Since the appellant was not getting the water despite the directions, she again moved an application on 27.10.2020 and a protection officer was appointed who visited the premises on 07.07.2022 and filed his report thereafter. The appellant again moved an application, which was decided vide a composite order dated 29.07.2022 with following observations:-
"No further courts intervention is required to this aspect. Accordingly this application is also dismissed. Needless to say, if respondent is not complying with the above said orders, complainant can proceed against as per law."
4. Thereafter the appellant filed an appeal against the order dated 29.07.2022 which was decided by appellate court vide order dated 04.01.2023 the relevant observation of which is summarized as under:
"I am of view that since restraint order was already in operation, there can not be any question of passing further order on same point.
..........
If the respondent is creating any type of disturbance, it is open for the aggrieved women to bring the fact in the notice of the Ld. Trial court for taking appropriate action including contempt of order of the court. It appears the Trial Court has also given the similar opinion that in case of non compliance by the respondents, the aggrieved can proceed against them as per law."
5. Thereafter the appellant on 20.03.2023, filed a complaint under section 31 of DV Act for cognizance/lodging Fir against the accused persons for committing breach of order dated 06.02.2020 which was dismissed by the Ld Trial Court vide impugned order dated Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.01.24 16:46:11 +0530 CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 3 of 12 29.04.2024 with following observations:-
"Perusal of record shows that the order dated 06.02.2020 became ineffective in light of the orders passed on 08.06.2023. Vide order dated 08.06.2023, complainant was directed to take up an alternate accommodation outside of her shared household and respondent was directed to pay rent thereof. In addition, an observation was also made that by taking up alternate accommodation outside of her shared household by the complainant, all the issues regarding water supply, dilapidated condition of her portion as well as issue of domestic violence would come to an end. It is undisputed that complainant did not comply with those orders and is seeking execution of orders passed previously. Therefore, in view of the order passed on 08.06.2023, this court is of the view that the present complaint has become infructuous and is liable to be dismissed."
6. Appellant aggrieved with the said order has filed the instant appeal assailing the impugned order on various grounds which can be summarized as under:-
i. that the impugned order passed by the Ld. Trial Court is prima facie illegal, unjustified and has been passed in a mechanical manner, without considering the entire facts of the case and is therefore, liable to be set-aside.
ii. that the Ld. MM gravely ignored the fact that the breach of a protection order once committed becomes an offence, and the same cannot be condoned by the subsequent order, more so when the operation of the subsequent order dated 08.06.2023 has been stayed by the Hon'ble High Court of Delhi.
iii. that the Ld. Trial court did not consider the fact that the complaint under Section 31 of PWDVPURSHOTTAM PATHAK Act was filed by the appellant on 20.03.2023 against Digitally signed by PURSHOTTAM PATHAK Date: 2025.01.24 CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 4 of 12 16:46:15 +0530 the breach of protection order dated 06.02.2020, whereas the Ld. MM had passed the order of alternate accommodation on 08.06.2023 therefore, the Ld. MM after recording the pre-summoning evidence of the appellant could not have resiled from her position and passed the impugned order.
iv. that the Ld. Trial Court erred in passing the order as an offence once committed which had been brought to the notice of the Ld. MM on 20.03.2023 by filing the said complaint cannot be condoned by a subsequent order of the court without the consent of the complainant.
v. that the Ld. Trial Court has erred in dismissing the complaint after recording the pre- summoning evidence of the appellant on 19.01.2024 without going into the merits of the case.
vi. that the Ld. Trial Court after being informed on 20.03.2023 of an continuous offense being committed by the respondent since 06.02.2020 was required to apply her judicial mind on the evidence provided by the appellant, rather than to dismiss the same on non-existing grounds.
7. Ld. Counsel for appellant argued on the similar line of grounds as taken in the instant appeal. It was forcefully argued that the impugned order is not sustainable in the Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.01.24 16:46:19 +0530 eyes of law as Ld. Trial Court without considering the CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 5 of 12 evidence on record dismissed the complaint. On the strength of these arguments, appellant seeks setting aside of impugned order and to remand back the matter. To corroborate his arguments, Ld. Counsel for the appellant has relied upon following judgments:- Devarapalli L Reddy & Ors. Vs. V Narayana Reddy & Ors. AIR 1976 SC 1672, H S. Bains Vs. The State (UT of Chandirgarh) AIR 1980 SC 1883, K. S. Thimmappa Rai Vs. A. R. Sadananda 1LR 1997 KRR 3447. Chandra Deo Singh Vs. P C. Bose AIR 1963 SC 1247, Prabhakaran Nair Vs. Joseph Chacko 1973 Cri LJ 874, Ashok Kumar Vs. Mariappan 1993 Cri LJ 2780, Laxmikant V. Pande Vs. G P Sindhi & Anr 1976 Cri LJ 381.
8. Per contra, respondents have denied and controverted the averments of appeal. Ld. counsel for the respondents refuted the said contentions of Ld. counsel for appellant arguing that the impugned order does not suffer from any illegality, infirmity or incorrectness.
9. I have heard the Ld. counsel for the appellant as well the Ld. counsel for the respondents and perused the records of this case.
10. In view of the rival contention of both the parties now this court has to consider about the attracting of Section 31 and 32 of the DV Act and whether the order passed by the learned Magistrate is in accordance with law will have to be considered.
PURSHOTTAM PATHAK CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 6 of 12 Digitally signed by PURSHOTTAM PATHAK Date: 2025.01.24 16:46:24 +0530
11. The complainant had filed a petition u/s 31 of DV Act for the prosecution of accused/ husband on the ground that he had committed breach of protection order dated 06.02.2020, vide which the Ld. MM Mahila Court, South District had restrained the respondents from disturbing the water supply of appellant.
12. Section 31 of the Protection of Women from Domestic Violence Act, 2005 reads as follows:
"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."
13. Ld. MM in the impugned order has observed that the order dated 06.02.2020 became ineffective in light of the orders passed on 08.06.2023, vide which the complainant was directed to take up an alternate accommodation and that by taking up alternate accommodation, all the issues regarding water supply, dilapidated condition of her portion as well as issue of domestic violence would come to an end. The grievance of appellant is that the Ld. Trial court has passed the impugned order without considering the Digitally evidence led by appellant , only on the ground that after the signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.01.24 16:46:27 +0530 CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 7 of 12 passing of order dated 08.06.2023, petition u/s 31 PWDV Act has become infructous. Ld. Trial court has failed to appreciate that the proceedings in case bearing CT No. 391/2023 titled as 'Niharika Ghosh @ Niharika Kundu Vs. Shankar Ghosh and Anr was initiated in view of the violation of order which was to be dealt in accordance with section 31 and 32 of DV Act. Section 31 provides that if any breach of protection order is made, the Magistrate has to hold an enquiry and if it is satisfied that the protection order has been breached by the respondent then the punishment can also be given. Further, under Section 32 of the DV Act, any such petition is filed for violation of condition, the Magistrate has power to take cognizance of the offence and thereafter holding an enquiry, the order has to be passed. Now where as in this case the aggrieved person namely the petitioner has filed the petition for non compliance of the order passed by the learned Magistrate. In such circumstances, when there is allegation with respect to the non compliance of the order passed by the learned Magistrate it was the duty of the learned Magistrate to consider the Section 31 and 32 of the DV Act. But the learned Magistrate has rejected the petition. The learned Magistrate ought to have considered the contention of the petitioner with regard to those aspects and based on the enquiry with respect to the non compliance of the order and there upon give a specific findings with regard to the breach by the respondent. According to the well established PURSHOTTAM PATHAK principle of law and under Section 31 of the DV Act if the Digitally signed by PURSHOTTAM PATHAK Date: 2025.01.24 16:46:31 +0530 CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 8 of 12 petition is filed for breach of protection order, then court must consider that petition and it must give a specific finding with regard to the breach of protection order and it must give a specific finding whether there was any breach of protection order or not. Without considering that aspect the petition cannot be disposed. The non compliance of the protection order should have been considered before coming to the conclusion. But where as in this case the learned Magistrate has passed an order without applying provisions of law.
14. Further, when an order passed by the learned Magistrate has not been complied, the petition u/s 31 DV Act ought to have been decided after considering the evidence already recorded with respect to the non compliance of the order. Without considering all these facts, the petition has been dismissed. Hence, it is the violation of the protection of law and the learned Magistrate has erred in passing such order.
15. Now in this case the specific contention has been taken in the appeal that the order passed on 06.02.2020 was not complied and same resulted into breach of protection order. Under Section 31 of the DV Act, the action has to be taken when there is a breach of protection order or when there is a breach of interim protection order then only the question of holding the enquiry with respect to the breach of protection order will arise.
Digitally signed by PURSHOTTAM
16. But it is to be specifically noted under Section 31 of PURSHOTTAM PATHAK PATHAK Date:
2025.01.24 16:46:35 +0530 CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 9 of 12 the DV Act, it specifically states as follows; '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'.
17. In that section it is specifically stated that if any allegation made with respect to the breach of protection order then after holding an enquiry charge has to be framed with respect to the offence and under Section 32 of DV Act and it is specifically stated that -'Cognizance can be taken on the sole testimony of the aggrieved person'.
18. But where as in this case, though this petition has been filed for breach of order dated 06.02.2020, wherein there was no direction as to supply of water or for restoring the supply, the only direction was of restraining the respondents from not disturbing the water supply to the appellant. A restrainment order by itself is not considered a breach under Section 31 DV Act as this section specifically refers to a " protection order" .Meaning that only violating a protection order issued under the DV Act constitutes a punishable offence u/s 31 DV Act. Section 31(1) of PWDV Act is attracted only in case of breach of protection order or interim protection order by respondent and since it entails penal consequences against the respondent, therefore, Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.01.24 16:46:39 +0530 specific protection orders have to be shown to have been CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 10 of 12 breached by the respondent, so as to attract section 31 PWDV Act against respondent.
19. A simple restrainment order from another legal proceedings would not fall under this category. There is nothing in order dated 06.02.2020 or in the pre summoning evidence led by appellant to suggest that Ld. trial Court had passed any specific protection order against respondent in terms of mandate of section 18 of PWDV Act. In these circumstance, order dated 06.02.2020 of Ld. Trial Court cannot be deemed as protection order as envisaged u/s 18 of PWDV Act.
20. Since no specific protection order was passed against the respondents on 06.02.2020, in these circumstances, there was no question of breach of protection order. In such a circumstances, when there is no breach, the question of attracting Section 31 and 32 of the DV Act in this case as contended by the appellant in the appeal as well as in the argument also does not arise. Hence, the question of continuing the petition by the learned Magistrate also does not arise at all. Accordingly, in view of foregoing discussions, application/complaint u/s 31 (1) of Protection of Women From Domestic Violence Act (PWDV Act) filed by the applicant also stands dismissed as not maintainable.
21. There is no dispute with the legal proposition which the appellant had sought out on the basis of judgment cited. However, they do not deal with the issue as raised in the present case. Therefore, they do not come to the aid of Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.01.24 16:46:43 +0530 CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 11 of 12 appellant.
22. With these observations, appeal filed by appellant /husband stands dismissed being devoid of any merit.
23. TCR be sent back to Ld Trial Court along with copy of this judgment.
24. A copy of this judgment be supplied to Ld. Counsels forthwith.
25. Appeal file be consigned to record room after due compliance. Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2025.01.24 16:46:48 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 24th DAY OF JANUARY, 2025 SAKET COURTS: N.D (This judgment contains total 12 signed pages) CA/201/2024 NIHARIKA GHOSH@NIHARIKA KUNDU Vs. SHANKAR GHOSH AND ANR Page no. 12 of 12