Delhi District Court
Sara Carriere Dubey vs Ashish Dubey S/O Late Mr. Vishwajeet ... on 12 April, 2023
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 39 of 2023
CNR No. : DLST01-001460-2023
1. SARA CARRIERE DUBEY
W/O MR. ASHISH DUBEY
2. ANANYA DUBEY D/O MR. ASHISH DUBEY
3. NATHAN KARTIKEYA DUBEY
S/O MR. ASHISH DUBEY
ALL RESIDENTS OF
HOUSE NO.299, ASIAD VILLAGE,
NEW DELHI-110049 .......APPELLANTS
VERSUS
ASHISH DUBEY S/O LATE MR. VISHWAJEET DUBEY
R/O : FLAT NO.708, MAHABIR PRASAD BLOCK,
HOUSE NO.299, ASIAD GAMES VILLAGE COMPLEX,
NEW DELHI-110049 ...... RESPONDENT
DATE OF INSTITUTION : 13.02.2023
JUDGMENT RESERVED ON : 15.03.2023
DATE OF JUDGMENT : 12.04.2023
JUDGMENT
1. The most challenging task for any successful litigant is to get the favoured order implemented on the ground. The loosing side always tries to somehow create obstruction in such implementation. Matrimonial litigations are not within the exceptions but rather should be treated as pioneer of the field after the cases of property litigations. One of the branches of matrimonial litigations is referred as cases under DV Act. Mostly, cases are fought between husband and wife for maintenance. Normally, the wife is able to obtain an interim order wherein some amount of monthly maintenance is awarded by a Magistrate by invoking Section-20 r/w 23 of DV Act. But it hardly happens that the husband complies with such order or continuously pays the monthly maintenance to the wife.
RAKESH 2. What such a wife can do is the real issue here. She ought to invite KUMAR SINGH the Magistrate to take action under Section-20(6) which reads "Upon the Digitally signed by RAKESH CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 1 of 13 KUMAR SINGH Date: 2023.04.12 17:16:42 +0530 failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent".
2.1. Clearly, if the husband is a salaried person or is a creditor in any sense, the provisions of Section-20(6) can be invoked. There is no requirement that for invoking the aforesaid provision, a separate application has to be filed. It is sufficient if the wife orally or in writing invites the attention of the Magistrate to the fact that the respondent husband has not made the payment in terms of the order. It is then the responsibility of the Magistrate to act under the said provision.
2.2. I am of the opinion that the Magistrates, instead of waiting for any execution application to be filed, should definitively list the file to a date immediately after the expiration of date fixed for the payment and also obliges the husband to clearly file an affidavit indicating the payment. If she finds that the payment is not made or affidavit has not been filed to ascertain the making of payment, the Magistrate should suo moto issue a direction under Section-20(6) of the DV Act. This is one of the modes for enforcing the maintenance orders (though necessarily only in respect of particular kinds of respondents).
RAKESH 3. The other mode for enforcing the maintenance order is given in DV KUMAR Rules, 2006. Rule-6(5) reads as "The applications under section 12 shall be SINGH dealt with and the orders enforced in the same manner laid down under Digitally signed section 125 of the Code of Criminal Procedure, 1973 (2 of 1974)". by RAKESH KUMAR SINGH Date:
17:16:51 +0530 3.1. Clearly, order of maintenance can be enforced in the same way as is 2023.04.12 being adopted for enforcing an order passed under Section-125 CrPC. Sub- Section-(3) is of particular relevance which to the necessary extent reads as "If any person so ordered fails without sufficient cause to comply with the CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 2 of 13 order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,) remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made".
3.2. The first requirement to invoke the powers is that the person must have failed to comply with the order without any sufficient cause. Section- 20(5) of DV Act says "The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub- section (1)". If this is so, the Magistrate has to invariably specify a period within which the respondent husband has to pay the amount and it is obligatory on the part of the respondent to pay the amount in such time period. If the event of making the payment does not take place, it has to be assumed that the respondent has failed to pay the amount without justification as unless a court order is set aside, no one can claim that he cannot comply with the same. It is then for the respondent husband to say that the non-compliance was for some justification. It is he who has to make a justification for failure to pay the amount and not vice versa. In such a situation, I am unable to comprehend any reason as to why the Magistrate will require an execution petition to be filed by the wife for enforcing the maintenance order.
3.3. Here also, I am of the opinion that the Magistrates, instead of waiting for any execution application to be filed, should definitively list the file to a date immediately after the expiration of date fixed for the payment and also obliges the husband to clearly file an affidavit indicating the payment. If she finds that the payment is not made or affidavit has not been filed to ascertain the making of payment, the Magistrate should suo moto RAKESH KUMAR issue proceed under Section-125(3) CrPC.
SINGH Digitally signed by RAKESH KUMAR SINGH Date: 2023.04.12 17:17:10 +0530 CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 3 of 13 3.4. Section-125(3) in turn empowers the Magistrate to issue a warrant for levying the amount due in the manner provided for levying fines. It clearly lays down as to how the amount of maintenance, final or interim, is to be recovered. The manner of levying the fines is provided in Section-421 which provides for attachment of property. The Magistrate has to first follow the mechanism of attachment warrants available in Section-421 and then if the amount still remains, she could sentence the husband for the whole or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which might extend to one month or until payment if sooner made.
4. Another mode for enforcing the orders may have to be innovatively considered by the Magistracy. This is about invoking Section-31 of DV Act. To the relevant extent it reads as "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".
4.1. A bare perusal of the aforesaid shows that it punishes a person who acts in breach of protection. The term 'protection order' is defined in Section-2(o) of the Act as "Section-2.-In this Act, unless the context otherwise requires,-(o) "protection order" means an order made in terms of section 18". Meaning thereby that if there is an order which is made in terms of Section-18, the breach thereof shall be punishable under Section-31.
4.2. Section-18 in turn provides for the making of protection order and to the relevant extent reads as "Section-18. Protection orders.-The Magistrate RAKESH may, after giving the aggrieved person and the respondent an opportunity of KUMAR SINGH being heard and on being prima facie satisfied that domestic violence has Digitally signed taken place or is likely to take place, pass a protection order in favour of the by RAKESH KUMAR SINGH Date: 2023.04.12 17:17:19 +0530 CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 4 of 13 aggrieved person and prohibit the respondent from- (a) committing any act of domestic violence".
4.3. It is clear that a protection order is nothing but a prohibitory direction of the Magistrate requiring the respondents to refrain from doing some specific acts one of which is committing domestic violence. The Magistrate can say this either directly or indirectly. When she passes an order titling the same as "protection order" and asks the respondents to refrain from committing domestic violence on aggrieved person, she can be said to have passed the protection order directly. For example, the Magistrate may say that the respondent shall not deprive the aggrieved of any economic resources, she would be clearly prohibiting them from causing domestic violence in terms of definition given in Section-3. On the other hand, if the Magistrate requires the respondents to pay some amount to the aggrieved so that she is not deprived of economic resources, the Magistrate can be said to have prohibited the respondents indirectly in committing domestic violence.
4.4. In either of the aforesaid situations, the order of Magistrate in reality is prohibitory in nature and requires the respondents to refrain from committing domestic violence. Such prohibition is covered under Section- 18 and therefore, such an order shall have to be treated as an order in terms of Section-18 which in turn will be credited as "protection order" as defined in Section-2(o). Since the definition clause applies subject to a situation where the context otherwise requires, I am of the view that in a given situation, the direction of Magistrate requiring the respondents to pay the amount with a view to protect the aggrieved from economic deprivation, shall have to be treated as falling under Section-18. If the respondents commit breach of such an order by not paying the amount thereby depriving the aggrieved person of economic resources, such a breach would be definitely punishable under Section-31.
RAKESH KUMAR 4.5. There are judgments from different Hon'ble High Courts taking SINGH either of the views. In Rajasthan, Kerala, Karnataka, Bombay, the view is Digitally signed by RAKESH KUMAR SINGH Date: CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 5 of 13 2023.04.12 17:17:26 +0530 that in respect of maintenance orders, Section-31 cannot be invoked. In Allahabad and Madras, different benches have taken different views meaning thereby that one bench applied Section-31 whereas another bench declined. On the other hand, in Madhya Pradesh, Sikkim, Chhattisgarh, Section-31 has been invoked even for the maintenance orders. These all are judgments passed by Hon'ble Single Benches.
4.6. However, it is the division bench of Hon'ble Madhya Pradesh High Court which authoritatively settled that maintenance orders will also fall within the ambit of Section-31. In Surya Prakash vs Smt. Rachna dated 10.10.2017, the division bench made following observation:
"We have heard the learned counsel for the parties and find that the orders passed by the Single Benches of different High Courts do not lay down correct law. In as much as, the definition of "domestic violence" including economic abuse has not been considered.
Section 18 of the Act empowers the Magistrate to pass a protection order in affirmative in favour of an aggrieved person when he is satisfied that domestic violence has taken place or is likely to take place. The Magistrate is also competent to prohibit the respondent from committing any act of domestic violence or such other acts as mentioned in the said section. The domestic violence has been defined in Section 3 of the Act which includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. The "economic abuse" has been explained in clause (iv) of Explanation I of Section 3 of the Act wherein deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity is an expression of "domestic violence".
The amount of maintenance awarded by the Magistrate is an amount which an aggrieved person requires to meet necessities of life and for survival. Such amount is not limited to household necessities but also includes payment of rental related to the shared household. It includes RAKESH maintenance as well. Therefore, the order passed by the Magistrate KUMAR granting maintenance is an affirmative order of protection in relation to SINGH domestic violence as defined in Section 3 of the Act. For such violation, Digitally signed by RAKESH KUMAR SINGH the penalty is provided in Section 31 of the Act.
Date: 2023.04.12 17:17:35 +0530 CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 6 of 13Section 20 of the Act deals with grant of monetary relief to meet the expenses incurred and the losses suffered by aggrieved person and any child of the aggrieved person as a result of domestic violence. Such provision enlarges the scope of domestic violence as defined in Section 3 of the Act. In terms of Section 3 of the Act, the "economic abuse" includes deprivation of all or any economic or financial resources, payment of rental related to shared household and maintenance. Whereas Section 20 includes a loss of earnings, medical expenses, loss caused due to destruction, damage or removal of any property as also the maintenance. The grant of monetary relief under Section 20 does not exclude the amount of maintenance which can be M.Cr.C. No.16718/2015 awarded in terms of Section 18 of the Act as part of affirmative order in respect of the domestic violence as defined in Section 3 of the Act. Therefore, we find that non-payment of maintenance is a breach of protection order; therefore, Section 31 of the Act can be invoked. Therefore, in respect of first question, it is held that non-payment of maintenance allowance is a breach of protection order for which proceedings under Section 31 of the Act can be invoked.
xxxx We find that the purposive interpretation is to be given to the provisions of the Act, in view of the intent of the Act to provide support to the victims of domestic violence. Thus we hold that in view of the definition of domestic violence, proceedings under Section 31 of the Act would be maintainable".
4.7. In view of such an authoritative pronouncement, I consider that there would be no difficulty in invoking Section-31, of course, until the Hon'ble Delhi High Court or Hon'ble Supreme Court choses to express itself to the contrary.
5. This issue may be looked into from a different angle also. DV Rules, 2006 vide Rule-15 talks about breach of protection orders and creates an additional avenue in the form of a "deemed breach of protection order". Rule-15(7) reads as "Any resistance to the enforcement of the orders of the RAKESH KUMAR Court under the Act by the respondent or any other person purportedly SINGH acting on his behalf shall be deemed to be a breach of protection order or an Digitally signed by RAKESH interim protection order covered under the Act".
KUMAR SINGH Date: 2023.04.12 17:17:44 +0530 CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 7 of 135.1. It immediately becomes clear that this Rule nowhere confines itself to any particular kind of Orders. It simply refers to "the orders of the Court under the Act". Court can pass different kind of orders under the DV Act. Once those orders are being enforced and any resistance is offered, the said resistance creates a deeming fiction i.e. deemed to be a breach of protection order covered under the Act. If the Rule making authority was intended to confine the applicability to only Protection Orders, there was hardly any necessity to enact this Rule or to specifically mention the expressions "deemed" and "covered under the Act".
5.2. How this situation will happen can become clear once we read the DV Rules, 2006. Rule-10 reads as "Certain other duties of the Protection Officers.- (1) The Protection Officer, if directed to do so in writing, by the Magistrate shall- (e) assist the court in enforcement of orders in the proceedings, Under the Act in the manner directed by the Magistrate, including orders under Section-12; Section-18, Section-19, Section-20, Section-21 or Section-23 in such manner as may be directed by the court".
5.3. There may be resistance in enforcing the orders. Such a situation has been brought within the ambit of a "breach of protection order" which is "covered under the Act" and this has been done by way of a deeming fiction through Rule making power. In terms of Section-37 of the Act, the Government was empowered to make Rules not only for the purposes of carrying out the provisions of the Act but also for any other matter which has to be, or may be, prescribed. The Government thought it fit to prescribe a deemining fiction that any resistance to enforcement of any order which has been passed under the Act, can be treated as a deemed "breach of protection order". Till this Rule is in the field, we cannot say that the same is unreasonable or should not be implemented.
RAKESH KUMAR 5.4. Hon'ble Madras High Court in Maria Ravi Sahaya Raj vs SINGH Sawariammal Crl.O.P(MD) No.12942 of 2015 dated 13.11.2019, applied Digitally signed the Rule-15(7) to arrive at a conclusion that maintenance orders can also by RAKESH KUMAR SINGH Date: come within the ambit of Section-31 and the respondent can be punished. 2023.04.12 17:17:53 +0530 CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 8 of 13
6. It is clear that by purposive interpretations, maintenance orders in some circumstances can be brought within the ambit of Section-31 and also resistance in enforcement can be treated as deemed breach of protection order inviting Section-31. However, any final view is not required to be taken in the present case as I am inclined to dismiss the appeal on a short ground that the same is not maintainable. Therefore, leaving the Magistracy to deduce on its own after reading the law and different judgment, I proceed to deal with the circumstances in which the present appeal was filed.
7. We have seen in the aforesaid discussion that there are multiple modes available with the Magistrate to enforce her orders of maintenance (under DV Act) and that there is hardly any requirement for filing of an execution petition. What is however happing in Delhi is that the Magistrates are waiting for applications to be filed by the aggrieved wife and then they institute the same as execution petitions and thereafter, they start acting as if they are dealing with a formal execution petition filed under the CPC. It is this thinking which has resulted in creating a separate category of cases which furthers increases the overall pendency figure. Delay is an obvious result of the said thinking and the affected party would naturally be the wife (having already suffered the incident of domestic violence) but still waiting for some solace in the form of money. If such aggrieved wife expects a very short date from the Magistrate, she cannot be said to be at fault. If instead of acting suo moto to enforce her order of maintenance, a Magistrate starts waiting for an execution petition and even then, she puts long dates inviting objections, the aggrieved wife will hardly be able to get any justice. Even if the Magistrate institutes such application as execution petition, she needs to take such steps which can enforce the order at the earliest possible time.
8. It so happened that in a given case, a Ld. Magistrate listed an RAKESH KUMAR application of wife as execution petition and invited objections from the SINGH husband who sought for date. The Magistrate put a long date on the Digitally signed execution petition. Wife was not satisfied. The counsel for the wife made his by RAKESH KUMAR SINGH efforts and find that there is a judgment of Hon'ble Supreme Court in Rahul Date:
2023.04.12 S Shah vs Jinendrakumar Gandhi 2021 6 SCC 418, which mandates that 17:18:03 +0530 CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 9 of 13 every execution petition should be disposed of within six months. He invited the attention of the Magistrate towards the same but the Magistrate did not act. The counsel was not satisfied as his efforts in research was rendered fruitless. He then found Section-29 in the DV Act and thought that an appeal would lie against any order of the Magistrate. It is how the order of the Magistrate fixing a date was put to a challenge by way of filing an appeal and the said appeal was listed before this court for disposal. By way of the present judgment, the appeal shall be disposed of.
8.1. A bare perusal of the Rahul Shah case goes to show that it emanated form a civil case filed within the ambit of CPC. In Paragraph-42, it said "All Courts dealing with suits and execution proceedings shall mandatorily follow the below-mentioned directions:...... The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay".
8.2. Quite literally, the aforesaid directions are given to the court dealing with suits and execution proceedings. This is not a universally enacted law.
Powers invoked and purpose of directions are given in paragraph-41 which reads "Having regard to the above background, wherein there is urgent need to reduce delays in the execution proceedings we deem it appropriate to issue few directions to do complete justice. These directions are in exercise of our jurisdiction under Article 142 read with Article 141 and Article 144 of the Constitution of India in larger public interest to subserve the process of justice so as to bring to an end the unnecessary ordeal of litigation faced by parties awaiting fruits of decree and in larger perspective affecting the faith of the litigants in the process of law".
8.3. Provisions mentioned aforesaid do not go beyond the lis which was RAKESH KUMAR before the Hon'ble Supreme Court. Even the purpose is clearly indicated i.e. SINGH in larger public interest to sub-serve the process of justice so as to bring to an end the unnecessary ordeal of litigation faced by parties awaiting fruits of Digitally signed by RAKESH KUMAR SINGH decree. Even paragraph-43 has directed updation of rules related to Date: 2023.04.12 17:18:16 +0530 CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 10 of 13 execution of decree and has referred particularly to Section-122 CPC which is rule making power. In contrast, the rule making power in DV Act (to which a maintenance order under Section-20 relates) lies in Section-37 and in CrPC (to which a maintenance order under Section-125 relates) it lies in Section-477. Expressions "suits", "decree" and "execution proceedings"
have been used by the Hon'ble Supreme Court which clearly indicates the spectrum in which the matter was being considered.
8.4. However, Ld. Counsel for the appellant has relied upon several judgments to say that DV Act proceedings are civil in nature and therefore the aforesaid judgment should apply. I accept the proposition that the proceedings are civil in nature and therefore, there is no necessity to deal with the judgments filed by the Ld. Counsel. It is however no one's case that only because a proceeding is civil in nature, its resultant order will become a decree or CPC will start applying to it. In terms of Section-28(1), provisions of CrPC are applicable and in respect of of two types of applications (Section-12 and 23) that too only for disposal, the Magistrate can envisage her own procedure. This does nowhere says that even after disposal, the Magistrate can devise her own procedure. Even none of these provisions say that the CPC will apply or that the order of Magistrate will become a decree.
8.5. At this stage, one may argue that orders passed under DV Act can be executed as a decree in terms of Rajnesh vs Neha (2021) 2 SCC 324. At first blush, the said judgment gives such a feeling but a closer reading shows that such an argument would be fallacious.
8.6. Paragraph-132 of the judgment reads "For enforcement/execution of RAKESH orders of maintenance, it is directed that an order or decree of maintenance KUMAR SINGH may be enforced under Section 28A of the Hindu Marriage Act, 1956;
Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be Digitally signed by applicable. The order of maintenance may be enforced as a money decree of RAKESH KUMAR SINGH a civil court as per the provisions of the CPC, more particularly Sections 51, Date:
2023.04.12 17:18:26 55, 58, 60 r.w. Order XXI".
+0530 CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 11 of 13 8.7. Someone may jump to a conclusion that Hon'ble Supreme Court has made a law to the effect that all orders of maintenance are to be enforced as a money decree. However, when we read the discussion portion related to the enforcement of orders, we will find that different provisions were cited and while dealing with the striking of defence, the Hon'ble Supreme Court indicated the mode of execution and said that the striking of defence ought to be a last resort.
8.8. Even otherwise, a judgment cannot be read in a manner which contradict any statutory provision. Though in a different context but a constitution bench of Hon'ble Supreme Court C.B.I vs Keshub Mahindra (2011) 6 SCC 216, has held "No decision by any court, this Court not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code". It is, therefore, clear that even the judgment in Rajnesh (supra) does not make the execution provisions of CPC applicable to the DV Act.
9. An aggrieved person (wife in the present case) cannot bring the judgment (in Rahul Shah case) to threaten the Magistracy that her execution petition must be disposed of within the time frame mandated therein without the ground realities. This is, of course, not to say that the Magistrates should not be guided by the said judgment. It is simply that aggrieved wife cannot claim that since the Magistrate has not disposed the execution petition within 6 months or will not so dispose, she should be taken as violating the mandate of the Hon'ble Supreme Court. With this clarification, I am of the view that rather, the Magistrates, irrespective of anything, must follow that their orders are enforced in a timely manner and at the earliest. They should take a clue from the said judgment and make it a habit to dispose the execution in six months. Additionally, the Magistrates should not even wait RAKESH for an execution petition to be filed and should initiate suo moto actions for KUMAR enforcing their orders.
SINGH Digitally signed 10. Section-29 DV Act though says that an appeal shall lie before the by RAKESH KUMAR SINGH Date: court of sessions against an order passed by the Magistrate, it does not 2023.04.12 17:18:35 +0530 CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 12 of 13 contemplate in its fold procedural orders. There are sufficient authorities in this regard (Vishal Jindal vs Puja Jindal dated 23.07.2014 (CHC) and Abhijit Bhikaseth Auti vs State of Maharashtra 2009 Cri LJ 889). An order fixing a date in the case can by no stretch of imagination be challenged through an appeal. Only because it is a superior court, the Appellate Court cannot run the Court of Magistrate and manage her daily board by fixing or changing the dates. There are sufficient authorities in this regard.
11. In view of the discussion above, the present appeal is held to be meritless and is, therefore, dismissed.
12. A copy of this judgment be sent to the Ld. Trial Court.
13. Appeal file be consigned to the Record Room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 12th DAY OF APRIL, 2023 Digitally signed by RAKESH RAKESH KUMAR KUMAR SINGH Date: 2023.04.12 SINGH 17:18:44 +0530 (RAKESH KUMAR SINGH) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI CA No. 39/2023 Sara Carriere Dubey & Ors. vs. Ashish Dubey Page 13 of 13