The Madras High Court has ruled that the police can register an FIR for non -payment of maintenance as it is a breach of protection order under the Domestic Violence Act.

The Husband filed a quashing petition under section 482 Cr PC asking for the quashing of criminal proceedings emanating from an FIR registered at the behest of the wife for non-payment of monthly maintenance. The wife had filed a complaint under section 31 of the Domestic Violence Act, pursuant to which the police registered an FIR and a subsequent complaint proceeding was initiated by the trial court.

The Court however found that the petitioner had been regularly paying the maintenance, for which he also produced relevant documents, the same was not disputed by the learned counsel for the second respondent, wife. In such circumstances, registering a case without conducting proper enquiry was not correct. Thus, the court quashed the proceedings before the Judicial Magistrate and allowed the petition.

The Court has however observed that:
 
“To prevent women from facing needless distress, destitution and starvation, the DV Act was enacted by transforming the existing preventive provision into punitive provision to meet the society’s changing needs. ”
“So, in order to provide immediate relief to the queue of women waiting to get a determined maintenance amount, the legislature brought the penal provision under Section 31 of the DV Act as a life saving medicine by treating the failure of remittance of maintenance as an offence and crime.”
 
The transformation of the process of execution of maintenance order into penal statute is a measure of social justice and specially enacted to protect women and children and would fall within the constitutional sweep of Article 15(3) and reinforced under Article 39. So, Sections 31 and 18 of the DV Act calling for construction by the Courts are not petrified, but vibrant words with social function to fulfil.
 
“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.”

Amalraj v State and Another