still the wife of the petitioner since she has not been divorced by her
husband. Though the complainant/ respondent No. 1 has filed separate
cases for maintenance under Section 125 CrPCand for her torture under
Section 498(A) IPC the reliefs claimed in the application under Section
12 of the PWDV Act do not cover the reliefs prayed for in other cases.
In fact, vide order dated 17.5.2008, the learned Magistrate has only
ordered returned of „stridhan‟ as well as handing over the custody of
the minor child to the complainant and these reliefs cannot be granted
by the Judicial Magistrate , either in Section 125 Cr.P.Cor u/s 498(A)
of the IPC. However, if the application for custody of the child is
pending for consideration before the learned District Judge, it would be
just and proper for the learned Magistrate to refrain himself from
pursuing implementation of his order with regard to the custody of the
minor child. It is also necessary to avoid passing of conflicting orders
by two different courts, having parallel jurisdiction. Though the
Judicial Magistrate is competent to pass custody order of any child or
children u/s 21, Section 26 makes it clear that the same relief can also
be sought for in other legal proceeding before a Civil Court etc. Since,
the husband/respondent has approached the Court of District Judge,
seeking custody of their minor daughter, propriety demands that
superior court should be allowed to take a decision in the matter,
unless, the superior court i.e. the District Judge directs the respondent
to contest the issue before the Magistrate.
With the aforesaid clarification of the order of the Judicial
Magistrate regarding custody order, the Criminal Petition stands
dismissed.
IN THE GAUHATI HIGH COURT
CRIMINAL PETITION No. 434 of 10
Md. Abdul Haque,
-Versus-
SrimatiJesmina Begum Choudhury,
HON’BLE MR. JUSTICE B. D. AGARWAL
Date of judgment
25.04.2012
The proceeding under Section 12 of the Protection of Women
from Domestic Violence Act, 2005 ( Briefly, „PWDV Act‟ ), pending
in the Court of learned Additional Chief Judicial Magistrate,
Hailakandi, Assam in MR Case No. 34 of 2008 is under challenge in
this criminal petition.
2.
This application under Section 482 of the Code of Criminal
Proceeding, 1973, read with Section 20(1) of the Constitution of India
has been filed by the husband praying for quashing the aforesaid
criminal proceeding against him.
3.
Heard the arguments of Dr. B Ahmed, learned counsel for the
petitioner and that of Mr. MH Rajbarbhuiyan, learnedcounsel
appearing for the respondent No.1/complainant. The State was
represented by Mr. K Munir, learned Additional P.P. for the State.
4.
Whether the PWDV Actis retrospective or prospective and
whether, the criminal proceeding is hit by Article 20(1) of the
Constitution is the moot question for consideration before this court. In
my view, before answering the question it would be just and
appropriate to have an insight view of the facts of the case, which are
briefly narrated below:
4.1.
The marriage between the parties took place in the year 1996.
The couple were blessed with a female child on 28.6.1998, who is
presently in the custody of her mother. It was followed by giving birth
of two stillborn children successively in the year 2000 and 2006.
Thereafter, the matrimonial relation between the parties became
strained and the complainant left her matrimonial home in the month of
May, 2006 and returned to her parents‟ house.
4.2
It is the further case of the complainant that after few days, she
was taken back by her husband in the matrimonial home at Karimganj.
After two to three days of their union, the husband had allegedly
indicated to his wife about his intention to marry her elder sister‟s
daughter. It is the allegation of the wife that having not agreed to the
aforesaid proposal, she was subjected to mental and physical torture
and having learnt about the torture, she was again taken back to her
parents‟ home by her younger brother.
4.3
It is the further case of the complainant that after about 15 days,
her husband married another woman, namely, Musstt. SubetunNessa
against their personal law. Even thereafter, complainant‟s father
reconciled the matrimonial relation with the help of mediators and a re-
conciliation agreement was executed. It is the further case of the
complainant that she apprehended that her husband may mis-
appropriate her „stridhan‟ and the upbringing of their 9 year old
daughter may also hamper. The wife has further alleged that her
husband was also not providing proper medical treatment to her as well
as adequate food and money for her medical treatment and as a result,
she was suffering from economic, mental and physical torture. With
these allegations, M.R. case No. 34 of 2008 was filed in the Court of
learned Chief Judicial Magistrate, Hailakandi on 26.3.2008.
5.
Prior to filing of the complaint under Section 12 of the PWDV
Act, the wife had also filed a case under Section 125 of the CrPC;
being M.R case No. 214 of 2006 as well as a case under Section 498 A
of the IPC being CR Case No. 638 of 2006. In this way, the present
case under PWDV Act was filed nearly after two years of their
separation.
5.1
By filing the aforesaid complaint u/s 12 of the PWDV Act , the
wife prayed for return of „stridhan‟, custody of the minor child,
residence order and compensation under various Sections of the Act.
6.
On receipt of a Report from the Protection Officer, the learned
Magistrate passed an interim order on 17.5.2008, directing the husband
to return the „stridhan‟ and also hand over the custody of the minor
child to the complainant.
7.
On receipt of the notice, the husband filed two petitions on
2.5.2009. In the first application, the husband/petitioner prayed for
closing the case, pleading that the alleged tortures were committed in
the month of January, February and May, 2006, whereas, the Act came
into force on and from 26.10.2006. In the second application, the
petitioner prayed for calling the records of maintenance case under
Section 125 of the CrPC wherein a different date of incident was
mentioned. Both these petitions were rejected on 13.5.2009. The
learned Additional Chief Judicial Magistrate held that the law is
retrospective in view of Section 26 of the Act. Similarly, the prayer for
calling the records of maintenance case was rejected on the ground that
the complaint under Section 12 of the PWDV Act would be examined
on the basis of the materials and evidence that may be given in the case
and the contradictory statement in the maintenance application would
have no bearing.
8.
The aforesaid order was again challenged by the husband by
filing a petition under Section 25 of the Act. This application for
modification of the order dated 17.5.2008 was filed on the ground that
in between this period, the matter was referred for counselling and the
Counsellor‟s report is in favour of the husband. Besides this, the issue
with regard to the custody of the child was being examined by the
District Judge on an application by the father. However, this
application was also rejected vide order dated 24.7.2009. The aforesaid
orders were then challenged by the husband in the Court of learned
Sessions Judge, Hailakandi in Criminal Appeal No. 33 of 2009. The
appeal was also dismissed on 3.8.2010, holding that in view of the
provisions under Section 26 of the Act, the learned Magistrate has
rightly taken cognizance of the complaint. However, the learned
Magistrate was directed to re-consider the modification of the order
dated 24.7.2009 with regard to the maintenance and custody of the
child.
9.
The petitioner is basically challenging the order dated 13.5.2009
passed by the learned trial Magistrate and the judgment dated 3.8.2010,
passed by the learned Sessions Judge, wherein, it has been held that
panel provisions of PWDV Act are retrospective in operation.
10.
Dr. B Ahmed, learned counsel for the petitioner submitted that
admittedly, PWDV Act came into operation with effect from
26.10.2006, whereas, the alleged offences were committed prior to
May, 2006 and, as such, the learned Additional Chief Judicial
Magistrate committed wrong in taking cognizance of the alleged
offence. Referring to Article 20(1) of the Constitution, the learned
counsel contended that the petitioner cannot be convicted for the
alleged offences, which were allegedly committed prior to May, 2006
when the PWDV Act was neither published nor was in force. In
support of these submissions, the learned counsel relied upon the
judgments of Hon‟ble Supreme Court rendered in the case of West
Ramnad Electric Distribution Co. Ltd.-versus- State of Madras(AIR
1962 SC 1753); Rattan Lal –Vs- State of Punjab ( AIR 1965 SC 444);
Punjab Tin Supply Company –Vs- Central Government &Ors. : AIR
1984 SC 87 ( 1); Dayal Sing –vs- State of Rajashthan: (2004) 5 SCC
721 and the Judgment of Rajasthan High Court, rendered in the case of
Hema –vs- Jitendra : ( 2010) CriLJ 1744.
11.
Per
contra,Mr.Rajbharbhuiyan,
learned
counsel
for
the
respondent No. 1 submitted that till date, the matrimonial relation
between the parties has not been legally snapped and the parties are
continued to be husband and wife and, as such, even if the offences are
committed prior to the enactment of the law, complaint under Section
12 of the Act is still maintainable. The learned counsel further
submitted that the reliefs claimed in the complaint are nothing but
continuing obligations and responsibilities of the husband and on this
ground also, the complaint is maintainable. With regard to the
application of Article 20 of the Constitution, the learned Counsel
submitted that it is also in-applicable in the case inasmuch as the
complainant is not seeking any conviction of the husband. According
to the learned counsel, provisions of PWDV Act are basically remedial
in nature and are not penal provisions. The learned counsel also
referred to Section 36 of the Act which provides that the provisions of
the Act are in addition to and not in derogation of the provisions of
other laws, which are in force. In support of his submissions, the
learned counsel relied upon the judgments of the Apex Court rendered
in the case of State of Bombay –Vs- Vishnu Ramachandra : AIR 1961
SC 307, Hitendra Vishnu Thakur – vs- State of Maharashtra : (1994)
4 SCC 602 and Chanmuniya –Vs- Virendra Kumar Singh
Kushwaha: (2011) 1 SCC 141.
12.
In the case of West Ramnad Electric Distribution Co. Ltd(
supra), the Apex Court was examining the acquisition of the
petitioner‟s Undertaking by way of an Act, enacted in the year 1954
validating the acquisition that took place under 1949 Act.
Differentiating the phraseology “a law in force at the time” and the
“authority of law” referred in Articles 20(1) and 31(1) of the
Constitution, their Lordships observed as below:
“14. Mr Nambiar then contends that the impugned
notification is invalid and inoperative because it
contravenes Article 31(1) of the Constitution. Article 31(1)
provides that no person shall be deprived of his property
save by authority of law. It is urged that this provision
postulates the existence of an antecedent law before a
citizen is deprived of his property. The notification was
issued on the assumption that there was an antecedent law
viz. the earlier Act of 1949; but since the said Act was non
est, the notification is not supported by the authority of any
pre-existing law and so, it must be held to be invalid and
ineffective. In our opinion, this argument is not well
founded. If the Act is retrospective in operation and
Section 24 has been enacted for the purpose of
retrospectively validating actions taken under the
provisions of the earlier Act, it must follow by the very
retrospective operation of the relevant provisions that at the
time when the impugned notification was issued, these
provisions were in existence. That is the plain and obvious
effect of the retrospective operation of the statute.
Therefore, in considering whether Article 31(1) has been
complied with or not, we must assume that before the
notification was issued, the relevant provisions of the Act
were in existence and so, Article 31(1) must be held to have
been complied with in that sense.”
13.
In the case of Rattan Lal (supra), their Lordships were
confronted to examine as to whether an appellate court could exercise
Section 6 of the Probation of Offenders Act, 1958, which did not exist
when the accused was convicted by the trial Court. In that context, their
Lordships made the following observations:
“6. The first question is whether the High Court, acting
under Section 11 of the Act, can exercise the power
conferred on a court under Section 6 of the Act. It is said
that the jurisdiction of the High Court under Section 11(3)
of the Act is confined only to a case that has been brought
to its file by appeal or revision and, therefore, it can only
exercise such jurisdiction as the trial court had, and in the
present case the trial court could not have made any order
under Section 6 of the Act, as at the time it made the order
the Act had not been extended to Gurgaon district. On this
assumption, the argument proceeds, the Act should not be
given retrospective operation, as, if so given, it would affect
the criminal liability of a person for an act committed by
him before the Act came into operation. In support of this
contention a number of decisions bearing on the question
of retroactivity of a statute in the context of vested rights
have been cited. Every law that takes away or impairs a
vested right is retrospective. Every ex post facto law is
necessarily retrospective. Under Article 20 of the
Constitution, no person shall be convicted of any offence
except for violation of a law in force at the time of the
commission of that act charged as an offence, nor be
subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the
commission of the offence. But an ex post facto law which
only mollifies the rigour of a criminal law does not fall
within the said prohibition. If a particular law makes a
provision to that effect, though retrospective in operation, it
will be valid. The question whether such a law is
retrospective and, if so, to what extent depends upon the
interpretation of a particular statute, having regard to the
well-settled rules of construction. Maxwell in his book On
Interpretation of Statutes, 11th Edn., at pp. 274-75,
summarizes the relevant rule of construction thus:
“The tendency of, modern decisions, upon the
whole, is to narrow materially the difference between what
is called a strict and a beneficial construction. All statutes
are now construed with a more attentive regard to the
language, and criminal statutes with a more rational
regard to the aim and intention of the legislature, then
formerly. It is unquestionably right that the distinction
should not be altogether erased from the judicial mind, for
it is required by the spirit of our free institutions that the
interpretation of all statutes should be favourable to
personal liberty, and this tendency is still evinced in a
certain reluctance to supply the defects of language, or to
eke out the meaning of an obscure passage by strained or
doubtful influences. The effect of the rule of strict
construction might almost be summed up in the remark
that, where an equivocal word or ambiguous sentence
leaves a reasonable doubt of its meaning which the canons
of interpretation fail to solve, the benefit of the doubt
should be given to the subject and against the legislature
which has failed to explain itself. But it yields to the
paramount rule that every statute is to be expounded
according to its expressed or manifest intention and that all
cases within the mischiefs aimed at are, if the language
permits, to be held to fall within its remedial influence.”
14.
In the case of Punjab Tin Supply Company (supra), the
following proposition was laid with regard to the retrospective or
prospective application of a law.
“17. All laws which affect substantive rights generally
operate prospectively and there is a presumption against
their retrospectivity if they affect vested rights and
obligations unless the legislative intent is clear and
compulsive. Such retrospective effect may be given where
there are express words giving retrospective effect or where
the
language
used
necessarily
implies
that
such
retrospective operation is intended. Hence the question
whether a statutory provision has retrospective effect or not
depends primarily on the language in which it is couched.
If the language is clear and unambiguous effect will have
to be given to the provision in question in accordance with
its tenor. If the language is not clear then the Court has to
decide
whether
in
the
light
of
the
surrounding
circumstances retrospective effect should be given to it or
not.”
15.
In the case of Dayal Singh(supra), their Lordships of the Apex
Court approved the view taken in the case of Rattan Lal (supra) that ex-
post facto law which only mollify the rigour of a criminal law can be
given retrospective operation. It held that a penal statute which creates
new offence is always prospective. It would be fruitful to extract the
relevant observations, which are as below:
“11. The decision approves of the principle that ex post
facto law which only mollifies the rigour of the criminal
law, though retrospective in operation, will be valid. After
enunciating this principle the Court interpreted Section 11
of the Probation of Offenders Act and came to the
conclusion that on a true interpretation of the provision the
High Court had jurisdiction to exercise the power at the
appellate stage, and this power was not confined to a case
where the trial court could have made that order. The
phraseology of the section was wide enough to enable the
appellate court or the High Court when the case came
before it, to make such an order. We, therefore, do not find
that Rattan Lal made a departure from the well-settled
principle that no person shall be convicted of any offence
except for violation of a law in force at the time of the
commission of that act charged as an offence, nor be
subjected to a penalty greater than with which he might
have been inflicted under the law in force at the time of the
commission of the offence. This Court only laid down the
principle that an ex post facto law which only mollifies the
rigour of a criminal law did not fall within the said
prohibition, and if a particular law made a provision to
that effect, though retrospective in operation, it will be
valid. Rattan Lal was, therefore, decided on an
interpretation of Section 11 of the Probation of Offenders
Act which was not a penal statute in the sense that it did
not create an offence and provide for punishment thereof.
We, therefore, do not find that principles laid down in
Rattan Lal depart from the well-settled principles that a
penal statute which creates new offences is always
prospective and a person can be punished for an offence
committed by him in accordance with law as it existed on
the date on which an offence was committed.”
16.
In the case of Hema –vs- Jitendra (supra), the Hon‟ble Rajasthan
High Court was directly examining the issue whether the provisions of
PWDV Act were retrospective in operation. In this case, His Lordship
has held that there is no provision in the Act giving retrospective effect.
His Lordship quashed the criminal proceeding on the ground that the
marriage between the parties was dissolved in the year 2003, whereas
PWDV Act came into force only on in the month of October, 2006.
17.
In the case of Vishnu Ram Chandra (supra), referred by the
learned counsel for the respondent No.1, the Hon‟ble Supreme Court
was considering a challenge of an order of externment of the petitioner
on the ground that provisions of Bombay Police Act, 1951, as on the
date of petitioner‟s conviction, which was made the basis of his
expatriation was not in force. Section 57 of the Act, empowered the
authorities to remove persons convicted of certain offences within the
local limits of their jurisdiction. In that context, their Lordships
observed that statutes, which create no new punishment but authorise
some action based on past conduct,the principle of prospective
operation is not applied. Their Lordships further observed that if the
law is designed to protect the public against acts of harmful character
may be construed retrospectively.
18.
In the case of Hitendra V Thakur (supra), the Apex Court was
considering amendment of TADA act and not prospective or
retrospective operation of a new law. Even then, the legal principles set
out by their Lordships are relevant to determine the legislative intention
as to whether a law is prospective or retrospective. Hence, the relevant
propositions of law laid down by their Lordships are extract below to
determine the issue :-
“26. The Designated Court has held that the amendment
would operate retrospectively and would apply to the
pending cases in which investigation was not complete on
the date on which the Amendment Act came into force and
the challan had not till then been filed in the court. From
the law settled by this Court in various cases the illustrative
though not exhaustive principles which emerge with regard
to the ambit and scope of an Amending Act and its
retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to
be prospective in operation unless made retrospective,
either expressly or by necessary intendment, whereas a
statute which merely affects procedure, unless such a
construction is textually impossible, is presumed to be
retrospective in its application, should not be given an
extended meaning and should be strictly confined to its
clearly defined limits.
(ii) Law relating to forum and limitation is procedural in
nature, whereas law relating to right of action and right of
appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but
no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be
applied retrospectively where the result would be to create
new disabilities or obligations or to impose new duties in
respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also
creates new rights and liabilities shall be construed to be
prospective in operation, unless otherwise provided, either
expressly or by necessary implication.”
19.
The authority of Chanmuniya(supra) cited by the learned counsel
for the respondent No.1 is not applicable. In the said case, the Apex
court was considering the issue as to whether strict proof of marriage is
essential to get an order of maintenance under Section 125 of the
Cr.P.C. While referring the issue before a larger Bench, their Lordships
made a passing remark that under PWDV Act “ live- in relationship” is
considered to be a marital relationship.
20.
What emerges from the aforesaid authorities is that every new
enactment is presumed to be prospective in operation, unless either
expressly or by necessary intendment is made retrospective.
Prospective operation of law is also presumed, if it creates new rights
and liabilities and this principle has to be applied more rigorously if the
law provides penal provisions inasmuch as Article 20 (1) of the
Constitution,inter-alia,clearly stipulates that no person shall be
convicted of any offence except for violation of „law in force‟ at the
time of commission of the act. Only those enactments which only relax
the existing procedure or mollify the rigour of the criminal law can be
given retrospective operation.
21.
Coming to the PWDV Act, I find that there is no indication in
the law that under certain circumstances the provisions can be given
retrospective effect. Since, the impugned orders have been passed on
the basis of Sections 26 and 36 of the Act, it would be appropriate to
quote the aforesaid provisions, for ready reference:
“26. Relief in other suits and other legal proceedings-( 1)
Any relief available under Sections 18, 19, 20, 21 and 22
may also be sought in any legal proceeding , before a civil
Court, family Court or a criminal Court, affecting the
aggrieved person and the respondent whether such
proceeding was initiated before or after the commencement
of this Act.
(2) Any relief referred to in sub-section (1) may be sought
for in addition to and along with any other relief that the
aggrieved person may seek in such suit or legal proceeding
before a civil or criminal Court.
(3) In case any relief has been obtained by the aggrieved
person in any proceedings other than a proceeding under
this Act, she shall be bound to inform the Magistrate of the
grant of such relief.”
“36. Act not in derogation of any other law:- The
provisions of this Act shall be in additional to , and not in
derogation of the provisions of any other law, for the time
being in force.”
22.
A bare reading of Section 26 of the Act shows that the reliefs ,
which are available under Sections 18, 19, 20, 21 and 22 under the Act,
may also be sought by way of legal proceeding in other forums, like the
Civil Court, Family Court or Criminal court. For instance, residence
order, monetary reliefs, protection order,compensation and an order for
custody of minor children can be obtained from a competent Civil
Court and Family Court. Similarly, an order for maintenance allowance
provided under Section 20 of the Act can also be obtained from Court
of aMagistrate, under Section 125 of the Cr.P.C. At the same time, the
offence of mental and physical torture can also be raised before a
Magistrate under Section 498A of the IPC. In other words, Section 26
does not speak about retrospective or prospective operation of the law,
as has been held by the Courts below. This is further clear from Section
36 which clarifies that provisions of PWDV Act are in addition to and
not in derogation of provisions of any other law. To put it differently,
Sections 26 and 36 in no way confers jurisdiction upon a Magistrate to
take cognizance of offence of domestic violence, which, was
committed prior to coming into force of the law, unless the offence is a
continuing one.
23.
As noted above, the PWDV Act is a comprehensive law. It is
basically a civil law, addressing the phenomenon of domestic violence
in different forms like physical abuse, sexual abuse, emotional abuse
and economic abuse etc. Under Chapter – IV, various reliefs can be
granted to the aggrieved person and some of the reliefs that can be
granted under Sections 17 to 22 have already been reflected in this
judgment. Although the orders are not ipso facto punitive, but the
orders become punitive under Section 31 if the orders are breached and
not complied by the respondent(s). In my considered opinion,
protective orders that can be passed under Chapter –IV cannot be
equated with the penal provisions of IPC. The learned counsel for the
respondent No.1 rightly contended that the law is more in the nature of
protecting the aggrieved persons and finding out the remedy of
domestic violence instead of imposing sentences and penalty upon the
respondent (s).
24.
Section 2(a) defines “aggrieved person” and Section 2 (f) defines
“domestic relationship”. These definitions may be of some help to
determine the issue and, as such, the same are reproduced below:
“ (a) “aggrieved person” means any woman who is, or has
been, in a domestic relationship with the respondent and
who alleges to have been subjected to any act of domestic
violence by the respondent;”
“ (f) “domestic relationship” means a relationship between
two persons who live or have, at any point of time, lived
together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the
nature of marriage, adoption or are family members living
together as a joint family.”
25.
The definition of “aggrieved person” is couched in present-
indefinite tense in perfect infinitive sense. Unlike Section 125 of the
CrPC it does not admit a „divorcee‟ within the meaning of “aggrieved
person”. In this way, most of the reliefs that can be granted on the basis
of an application under Section 12 can be granted only if an “aggrieved
person” is in domestic relationship with the respondent (s).Though, the
definition of “domestic relationship” gives an indication that to obtain
certain reliefs under Chapter –IV of the Actthe “aggrieved person”
need not be in continuing relationship with her husband and in-laws it
also does not admit a divorcee. However, a wife or a woman in
“domestic relationship” can seek reliefs provided under Chapter-IV
though she may be living separately at the time of filing of application
under Section 12 of the Act. Keeping in mind, the definition of
“aggrieved person” and domestic relationship”, it can be held that
though the Act is prospective, reliefs can still be granted to the
“aggrieved person” if the domestic relationship between the aggrieved
person and the respondent (s) continue to exist.
26.
In the case of Smti Sujata Mukherjee –Vs- Prasanth Kumar
Mukherjee: (AIR 1997 SC 2465)the Hon‟ble Supreme Court was
considering the prayer of accused persons to transfer a case u/s 498A
IPC from one court to another on the ground that the alleged offence
was not committed in the court of learned CJM, Raipur, where the case
was filed. Their Lordships have held that the offence of maltreatment
and humiliation to avictim of mental and physical torture is a
continuing offence and, as such, restored the jurisdiction of the court,
where the complaint was filed.
27.
An
identical
view
has
been
taken
in
the
case
of
SanaparreddyMaheedhar –Vs- State of Andhra Pradesh: (AIR 2008
SC 787).In this case, the Apex Court was examining an issue as to
whether a complaint u/s 498A and 406 IPC r/w Sections 3 and 4 of the
Dowry Act can be entertained by a court even after the statutory period
of limitation. While answering the issue in the affirmative, their
Lordships have held that while considering the applicability of Section
468 CrPC to the complaints made by the victims of matrimonial
offences, the court can invoke Section 473 CrPC and can take
cognizance of an offence even after the period of limitation since the
offence of cruelty is a continuing offence and affects the society at
large. Their Lordships have also approved the view taken by the Apex
Court
in
the
case
of
VenkaRadhamonahari
–Vs-
VankaVenkataReddy:(1993) 3 SCC 4, wherein the following trend-
setting observations were made with regard to matrimonial offences:
“It is true that the object of introducing Section 468 was to
put a bar of limitation on prosecutions and to prevent the
parties from filing cases after a long time, as it was thought
proper that after a long lapse of time, launching of
prosecution may be vexatious, because by that time event
the evidence may disappear. This aspect has been
mentioned in the statement and object, for introducing a
period of limitation, as well as by this Court in the case of
Sarwan Singh (supra). But that consideration cannot be
extended to matrimonial offences, where the allegations
are of cruelty, torture and assault by the husband or other
members of the family to the complainant. It is a matter of
common experience that victim is subjected to such cruelty
repeatedly and it is more or less like a continuing offence.
It is only as a last resort that a wife openly comes before a
court to unfold and relate the day-to-day torture and
cruelty faced by her, inside the house, which many of such
victims do not like to be made public. As such, courts while
considering the question of limitation for an offence under
Section 498A i.e. subjecting a woman to cruelty by her
husband or the relative of her husband, should judge that
question, in the light of Section 473 of the Code, which
requires the Court, not only to examine as to whether the
delay has been property explained, but as to whether it is
necessary to do so in the interests of justice”
28.
In view of the aforesaid authorities and keeping in mind the
benevolent provisions of PWDV Act I hold that course of justice
would be defeated if a complaint u/s 12 of Act is thrown out rightly on
the technical ground that the law is prospective in operation. In other
words, though the Act is prospective, a court of Judicial Magistrate
would still be competent to take cognizance of the offences and grant
relief (s) to the aggrieved person, provided it is found that the offences
are continuous in nature and subsists at the time of filing the complaint.
29.
In the case at hand, the admitted fact is that respondent No.1 is
still the wife of the petitioner since she has not been divorced by her
husband. Though the complainant/ respondent No. 1 has filed separate
cases for maintenance under Section 125 CrPCand for her torture under
Section 498(A) IPC the reliefs claimed in the application under Section
12 of the PWDV Act do not cover the reliefs prayed for in other cases.
In fact, vide order dated 17.5.2008, the learned Magistrate has only
ordered returned of „stridhan‟ as well as handing over the custody of
the minor child to the complainant and these reliefs cannot be granted
by the Judicial Magistrate , either in Section 125 Cr.P.Cor u/s 498(A)
of the IPC. However, if the application for custody of the child is
pending for consideration before the learned District Judge, it would be
just and proper for the learned Magistrate to refrain himself from
pursuing implementation of his order with regard to the custody of the
minor child. It is also necessary to avoid passing of conflicting orders
by two different courts, having parallel jurisdiction. Though the
Judicial Magistrate is competent to pass custody order of any child or
children u/s 21, Section 26 makes it clear that the same relief can also
be sought for in other legal proceeding before a Civil Court etc. Since,
the husband/respondent has approached the Court of District Judge,
seeking custody of their minor daughter, propriety demands that
superior court should be allowed to take a decision in the matter,
unless, the superior court i.e. the District Judge directs the respondent
to contest the issue before the Magistrate.
30.
With the aforesaid clarification of the order of the Judicial
Magistrate regarding custody order, the Criminal Petition stands
dismissed.
31. Both the parties are directed to appear in the trial court on
21.5.2012.
32. The Registry is directed to return the LCR with a copy of this
Judgment.
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