Enforcement, Offences and Appeal

Section 27: jurisdiction

Sub-section (1). The court of the Judicial Magistrate of the first class or the Metropolitan Magistrate within whose local limits:

(a) the aggrieved person permanently or temporarily resides, or carries on business, or is employed; or (b) the respondent resides, or carries on business, or is employed; or (c) the cause of action has arisen,

is the competent court to grant a protection order and other orders and to try offences under the Act.

Sub-section (2). Any order made under the Act shall be enforceable throughout India.

Clause (a) is the important one. A woman who has fled to her parents in another State may apply where she temporarily resides. Compare that with section 19(iiia) of the Hindu Marriage Act, which had to be inserted in 2003 to achieve something similar; this Act had it from the start, and went further by including temporary residence and place of employment.

Sub-section (2) closes the obvious gap: an order obtained where she now lives is enforceable where he lives.

Section 28: procedure

Sub-section (1). Save as otherwise provided, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23, and offences under section 31, shall be governed by the Code of Criminal Procedure 1973.

Sub-section (2). Nothing in sub-section (1) prevents the court from laying down its own procedure for disposal of an application under section 12 or under section 23(2).

The combination is deliberate. The familiar criminal procedure applies, so nothing has to be invented; but the Magistrate may depart from it for the main application and for ex parte orders, which are the two places where the ordinary procedure would be too slow.

Section 29: appeal

There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.

Two details. The appeal goes to the Court of Session, not to a civil court, because the Magistrate is a criminal court. And time runs from service, and from the later of the two services, which is generous to the appellant.

Section 30: public servants

Protection Officers and members of service providers, while acting or purporting to act under the Act, are deemed to be public servants within the meaning of section 21 of the Indian Penal Code. That provision is now carried forward by the Bharatiya Nyaya Sanhita 2023, which replaced the Penal Code with effect from 1 July 2024.

The deeming cuts both ways, and that is the point. It gives them the protection the law gives a public servant, and it exposes them to the offences a public servant can commit.

Section 31: the offence

Sub-section (1). A breach of a protection order, or of an interim protection order, by the respondent shall be an offence under the Act, punishable with imprisonment of either description which may extend to one year, or fine which may extend to twenty thousand rupees, or both.

Sub-section (2). The offence shall as far as practicable be tried by the Magistrate who passed the order whose breach is alleged.

Sub-section (3). While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code, or any other provision of that Code, or the Dowry Prohibition Act 1961, if the facts disclose the commission of an offence under those provisions.

What section 31 does and does not do

It punishes the breach, not the violence. There is no offence under this Act of committing domestic violence. A man who assaults his wife commits offences under the general criminal law, and this Act adds nothing to that. What this Act adds is that once a protection order is made, breaking it is a fresh offence.

That structure is what makes the Act civil in nature. It gives orders first and criminal consequences only for disobedience.

Sub-section (2) keeps it before the same Magistrate, who already knows the case and made the order.

Sub-section (3) is the bridge to the criminal law. The Magistrate framing a charge for breach may at the same time frame charges for cruelty to a married woman, or under the Dowry Prohibition Act, if the facts show them. So a single proceeding can carry both.

Section 32: cognizance and proof

Sub-section (1). Notwithstanding the Code of Criminal Procedure, the offence under section 31(1) shall be cognizable and non-bailable.

Sub-section (2). Upon the sole testimony of the aggrieved person, the court may conclude that an offence under section 31(1) has been committed by the accused.

Sub-section (2) is the provision to quote in an essay, and it should be stated precisely. It does not say the court shall convict on her word; it says the court may conclude. It removes any rule requiring corroboration, and it recognises that a breach of a protection order will usually happen where there is nobody else to see it.

Together the two sub-sections mean that a breach can be acted on immediately by the police, without a warrant, and proved without a witness.

Sections 33 to 35: the Protection Officer

Section 33. If a Protection Officer fails or refuses to discharge his duties as directed by the Magistrate in the protection order without sufficient cause, he shall be punished with imprisonment of either description up to one year, or fine up to twenty thousand rupees, or both.

Note the symmetry with section 31: the same maximum sentence and the same maximum fine for the officer who does not do his job as for the respondent who breaks the order.

Section 34. No prosecution or other legal proceeding lies against a Protection Officer unless a complaint is filed with the previous sanction of the State Government or an officer authorised by it.

Section 35. No suit, prosecution or other legal proceeding lies against a Protection Officer for any damage caused or likely to be caused by anything done or intended to be done in good faith under the Act or any rule or order made under it.

Sections 33, 34 and 35 have to be read together, and the balance is the answer to a question about whether the officer is accountable. He is punishable for not doing his duty; he is protected for what he does in good faith; and he cannot be prosecuted without sanction, which stops a respondent using a complaint against the officer as a tactic.

Sections 36 and 37: savings and rules

Section 36. The provisions of the Act are in addition to, and not in derogation of, the provisions of any other law for the time being in force.

This is the section that answers the standard problem question. A woman may proceed under this Act and under the Hindu Marriage Act, and under the criminal law, and for maintenance. Nothing here takes away any other remedy. Read it with section 26, which lets her seek this Act's reliefs inside those other proceedings, and with section 12(2), which preserves her civil suit for damages subject to a set-off.

Section 37. The Central Government may by notification make rules for carrying out the provisions of the Act, including on the qualifications and experience of Protection Officers, their terms and conditions of service, and the form and manner of the domestic incident report.

A worked example

A Magistrate passes a protection order and a residence order in favour of Rekha. Her husband enters the house anyway and threatens her. Rekha has since moved to another district for work. She wants the order enforced and him punished; he wants to appeal.

Does she have to pay for a copy of the order? No. Section 24: copies are given free of cost to the parties, to the police station within whose limits the household is situated, and to any service provider.

Is the protection order still alive? Yes. Section 25(1): it remains in force until the aggrieved person applies for discharge.

She has moved. Where does she go now? Section 27: to the Magistrate within whose limits she resides, temporarily or otherwise, or carries on business or is employed. And the order already made is enforceable throughout India.

What has he committed? Section 31: breach of a protection order by the respondent, punishable with imprisonment up to one year, or a fine up to twenty thousand rupees, or both. It is cognizable and non-bailable.

Who tries it? As far as practicable, the Magistrate who passed the order, and by section 32(2) the court may conclude that the offence has been committed upon the sole testimony of the aggrieved person.

Can the charge be joined with anything? Yes. Section 31(3) allows the charge to be framed together with a charge of cruelty or of a dowry offence.

Where does he appeal? Section 29: to the Court of Session, within thirty days from the date the order was served on whichever of them was served later.

Suppose the Protection Officer had done nothing. Section 33 punishes his failure with the same one year and twenty thousand rupees; but by section 34 no prosecution lies against him without the previous sanction of the State Government, and by section 35 he is protected for anything done in good faith.

What it does NOT mean

Copies are not charged for. Section 24 requires them to be given free of cost to the parties, the police station and the service providers.

A protection order does not expire by lapse of time. It remains in force until the aggrieved person applies for discharge.

The reliefs are not confined to a fresh application. Section 26 allows any of them to be sought in any legal proceeding, before a civil court, family court or criminal court, already pending.

Jurisdiction is not the place of the marriage. She may apply where she resides, temporarily or otherwise, or carries on business or is employed, or where the respondent does, or where the cause of action arose; and the order is enforceable throughout India.

The only offence for the respondent is breach of a protection order. Section 31, punishable with one year, or a fine up to twenty thousand rupees, or both.

A conviction does not need corroboration. Section 32(2): the court may conclude that the offence has been committed upon the sole testimony of the aggrieved person.

The Protection Officer is not above the Act. Section 33 punishes his failure to discharge his duties with the same one year and twenty thousand rupees; section 35 protects him for acts in good faith; and by section 34 he cannot be prosecuted without the previous sanction of the State Government.

Quick revision

• s.24: copies of every order free of cost to the parties, the police station within whose limits the household is situated, and any service provider.
• s.25: a protection order remains in force until the aggrieved person applies for discharge; any order may be altered, modified or revoked on a change of circumstances, for reasons recorded.
• s.26: any relief under ss.18 to 22 may also be sought in any legal proceeding before a civil court, family court or criminal court, whether started before or after the Act.
• s.27: jurisdiction where she resides, temporarily or otherwise, or works, or where the respondent resides or works, or where the cause of action arose; the order is enforceable throughout India.
• s.28: proceedings under ss.12, 18 to 23 and offences under s.31 are governed by the Code of Criminal Procedure, but the court may lay down its own procedure for an application under s.12 or s.23(2).
• s.29: appeal to the Court of Session within thirty days from the date the order is served on whichever of the parties is later served.
• s.30: Protection Officers and members of service providers are public servants. s.31: breach of a protection order by the respondent: one year, or a fine up to twenty thousand rupees, or both; cognizable and non-bailable; the charge may be framed together with an offence of cruelty or a dowry offence.
• s.32(2): conviction may rest on the sole testimony of the aggrieved person. ss.33 to 35: the Protection Officer's liability, the requirement of previous sanction and his good-faith protection. ss.36 and 37: the Act is in addition to other laws, and the Central Government makes rules.

Test yourself

1. How long does a protection order last? It remains in force until the aggrieved person applies for its discharge. Any order under the Act may be altered, modified or revoked on an application showing a change in the circumstances, for reasons to be recorded in writing.

2. Where may an application be made? To the court of Judicial Magistrate of the first class or Metropolitan Magistrate within whose local limits the aggrieved person resides temporarily or otherwise, or carries on business or is employed; or the respondent resides or carries on business or is employed; or the cause of action arose. Any order made under the Act is enforceable throughout India.

3. What is the offence under the Act, and how is it tried? A breach of a protection order, or of an interim protection order, by the respondent, punishable with imprisonment which may extend to one year, or with a fine which may extend to twenty thousand rupees, or with both. It is cognizable and non-bailable, is tried as far as practicable by the Magistrate who made the order, and the charge may be framed together with a charge of cruelty or of a dowry offence.

4. Where does an appeal lie? To the Court of Session, within thirty days from the date on which the order was served on the aggrieved person or the respondent, whichever is later.