The appellate Court has referred different decisions cited by the respondent herein, therefore, they are now not reproduced here though the respondent is relying upon them. However, reference to following cases would be relevant to decide the issue on hand.
"[1] In V.D. Bhanot [supra] the Hon'ble Supreme Court, while dealing with the provisions of the DV Act, held that even if wife who had shared household in past, but no longer continued to do so when the Act came into force, would still be entitled to the protection of the DV Act. Thereby, the Hon'ble Supreme Court has directed the husband to give back his house to the wife though complaint was filed beyond the period of one year inasmuch as they were living separately from 4/7/2005, whereas complaint was filed on 29/11/2006. The Hon'ble Supreme Court has also confirmed other orders of maintenance, etc., and thereby the Hon'ble Supreme Court has confirmed that the provisions of DV Act can be applicable retrospectively irrespective of limitation. Therefore, though there is no discussion with reference to the issue of limitation directly in such judgment, the ultimate decision of the Hon'ble Supreme Court makes it clear that practically there is no question of limitation while claiming reliefs under sections 18 to 22 by filing an application under section 12 of the DV Act.
[2] In Krishna Bhatacharjee v. Sarathi Choudhary reported in MANU/SC/1330/2015 : 2015 AIR SCW 6386 the Hon'ble Supreme Court has categorically confirmed that the claim for Stridhan by wife is not liable to be dismissed on the ground of limitation. It is clear and obvious that an application under section 12 of the DV Act was preferred by the wife and while dealing with the issue of limitation, the Hon'ble Supreme Court has considered that bar of limitation would not be applicable to the application filed under section 12 of the DV Act because the concept of continuing offence gets attracted in such cases if at all an application for maintenance is to be treated as an offence because of criminal proceedings.
[3] In Shalini v. Kishore reported in MANU/SC/0688/2015 : AIR 2015 SC 2605 also the Hon'ble Supreme Court has, while dealing with the issue of limitation for the proceedings against domestic violence, held that complaint even made after 15 years from the date of separate living by the couple, is not liable to be dismissed if cause of action survives. The Hon'ble Court has reason to say so because for all these 15 years maternal uncle of the wife was allowing her to stay in matrimonial house though the couple was separated and, therefore, when wife was being harassed since the year 2000, the Hon'ble Supreme Court has held that protection order and residence order under sections 18 and 19 of the DV Act along with the maintenance is permissible. It is quite obvious that such orders are not penal in nature, but it is because of the reason that the legislation has made personal and social obligation of a husband as a legal obligation to maintain his wife and to provide other benefits as indicated under sections 18 to 22 of the DV Act, for which cause of action is certainly a continuous one and, therefore, there cannot be restriction of limitation in seeking basic requirement.
[4] Though above decisions by the Hon'ble Supreme Court are quite clear on the subject, it would be appropriate to recollect the observations made in paras 14 to 37 in the decision rendered in the case of Smt. Sabana alias Chand Bai v. Mohd. Talib Ali reported in MANU/RH/1336/2013 : 2014 Cri.L.J. 866 by the Division Bench [Coram : Justice Amitava Roy, as he then was and Sangeeta Lodha, JJ]. However, since those paragraphs are available in law journal, I do not want to make this judgment lengthy by reproducing the same. However, the outcome of such discussion by Division Bench is in confirmation of the decision in the case of V.D. Bhanot [supra] that remedy available under sections 18 to 22 of the DV Act by filing an application under section 12 of the DV Act is applicable even if the offence of domestic violence was committed prior to coming into force of the DV Act. Therefore, if the aggrieved person has been in a domestic relationship at any point of time even prior to coming into force of the DV Act and was subjected to domestic violence even before commencement of the DV Act, he is entitled to invoke remedial measures provided under the DV Act."
11. In view of such discussion, it becomes clear that provisions of the limitation as emphasized by the petitioners, are not applicable and thereby there is no substance in the revision application.
12. Therefore, any other decision, even if it is dealing with the issue of limitation with reference to DV Act it is to be clarified that it may be applicable only in case of proceedings under section 31 of the DV Act since sub-section [1] of section 31 contemplates punishment in the event of breach of the order under such Act. Therefore, provisions of section 31 of the DV Act do not come into play till an order in an application under section 12 is passed and till the same is breached. Therefore, when the respondent is simply seeking various reliefs contemplated by the DV Act, unless those reliefs are granted and only if such order is violated, the respondent may not have to invoke provisions of section 31 of the DV Act and at that stage only question of limitation would arise and thereby respondent may not be entitled to invoke provisions of section 31 of the DV Act seeking punishment by way of sentencing the otherside for breach of any such order after a period of one year from the date of violation of any such order. Practically the provisions of section 31 [1] of the DV Act is similar to the provisions of section 125 [3] of the Code and, therefore, like an application for maintenance under section 125 of the Code, it cannot be barred by limitation and an application under section 12 of the DV Act is not subject to limitation as contemplated by the petitioners.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Criminal Revision Application No. 611 of 2015
Decided On: 29.07.2016
Yogesh Anantrai Bhatt and Ors.
Vs.
State of Gujarat and Ors.
Vs.
State of Gujarat and Ors.
Coram:S.G. Shah, J.
Citation: 2017 CRLJ 615
1. The petitioners herein are original accused, whereas respondent No. 1 is State and respondent No. 2 is original complainant and wife of petitioner No. 2. The petitioner Nos. 1 and 3 are father-in-law and mother-in-law respectively of the complainant wife, whereas petitioner Nos. 4 and 5 are brother-in-law of the complainant and his wife. The respondent No. 2 - complainant has filed a complaint under section 12 of the Protection of Women From Domestic Violence Act, 2005 [hereinafter referred to as 'the DV Act'] before the Chief Judicial Magistrate of Navsari at Navsari on 20/2/2013. Initially the Court has issued notice to the petitioners being respondents-accused in such complaint being Domestic Violence Application No. 106/2013, but ultimately such complaint was dismissed by an order dated 22/4/2015. While rejecting such complaint, the trial Court has allowed an application at exh. 8 preferred by the present petitioners contending that when the complainant is admitting that she has left their house on 17/6/2007 and when the complaint is filed in the year 2013, it is barred by limitation as provided under section 468 of the Criminal Procedure Code [hereinafter referred to as 'the Code']. Therefore, relying upon the decision in the case of Inderjit Singh Grewal v. State of Punjab reported in MANU/SC/0988/2011 : [2011] 12 SCC 588, it is submitted that the Court should decide such issue of limitation as a preliminary issue so as to dismiss the complaint. While dismissing the complaint by allowing application at exh. 8, the trial Court has observed that when the Hon'ble Supreme Court has in the case of Inderjit Singh Grewal [supra] dismissed the complaint observing that it is filed after a period of one year, in the present case also when complaint is filed in the year 2013 for the alleged offences that may be committed before the year 2007, considering that such complaint is beyond the period of limitation and thereby dismissed the complaint. The order of dismissing complaint is cryptic in nature and does not disclose the relevant facts or proper discussion on the subject except the disclosure that the decision is taken pursuant to judgment in the case of Inderjit Singh Grewal [supra].
2. When such judgment was challenged by the complainant wife in Criminal Appeal No. 43/2015, the Sessions Judge of Navsari, has by his impugned judgment dated 11/9/2015, while allowing the appeal, quashed and set aside the order dated 22/4/2015 below exhs. 1 and 8 in Domestic Violence Application No. 106/2013 passed by the trial Court and ordered to restore the complaint and to decide it in accordance with law. Such order is under challenge in this revision application. Therefore, though there are two different decisions and thereby though revision is to be decided on its own merits, the fact remains that practically impugned orders are interlocutory orders and though it is not deciding the fate of either of party i.e. complainant or petitioners -accused under the DV Act finally, so far as impugned order of appeal is concerned, when complaint is restored to its file for deciding it in accordance with law, practically such order cannot be interfered with in revisional jurisdiction, unless and until there is absolute irregularity or illegality on face of the record and proceedings in which impugned orders are passed. For the purpose, if we scrutinize the impugned judgment of Sessions Court as an appellate Court, it transpires that while deciding the appeal, the Sessions Court has considered rival submissions and discussed the relevant issues raised before it and determined the appeal after framing relevant issues and answering them with detailed discussion and, therefore, prima-facie there is no irregularity or illegality in such proceedings so as to interfere with in revisional jurisdiction. The Sessions Court has considered that when application under section 12 of DV Act is preferred, practically amongst all other issue and relief that is relevant in such application, the penal provision is only in one provision viz. Section 31 of the DV Act, wherein there is provision for imprisonment. Whereas in rest of the enabling sections, there is no provision for punishment in the form of imprisonment and, therefore, though provisions of the Code are applicable to the proceedings under the DV Act, the provision regarding limitation to file complaint can be made applicable to the extent of penal provision and not for the other provisions which are practically related to remedies because of disturbance in personal relationship between the parties. Thereby, practically provisions under the DV Act are to resolve the personal dispute between the parties and, therefore, practically it is a continuous issue till parties are in relation and thereby there cannot be a restriction in the form of limitation to initiate or agitate particular issue in accordance with law before the Court of law, more particularly when entire enactment is for the benefits of deserted women and thereby even the title of the DV Act is specific containing that it is for the protection of women from domestic violence. The relevant section of the DV Act regarding procedure to be followed is section 28, which provides that save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offence under section 31 shall be governed by the provisions of the Code. Sub-section [2] of section 28, however, reads as under:
"[2] Nothing in sub-section [1] shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section [2] of section 23."
Therefore, there are three different sets of procedure or at least proposition for procedure to be followed viz. [1] procedure as per the Criminal Procedure Code is to be followed for sections 18, 19, 20, 21, 22 and sub-section [1] of section 23, [2] for offence under section 31 also, the procedure of the Criminal Procedure Code is to be followed and [3] whereas for applications under section 12 or under Sub-section [2] of section 23, the Court is free to lay down its own procedure for disposal of an application and thereby provision of sub-section [1] of section 28 shall not prevent the Court from laying down its own procedure.
3. In view of above discussion, if we scrutinize the different provisions of different sections under which some reliefs can be claimed, it becomes clear that as per section 12 of the Act, an aggrieved person is permitted to present an application to the Magistrate seeking one or more reliefs under this Act and the Magistrate shall take into consideration any domestic incident reported and received by him from the Protection Officer also. Further provision of section 12 deals with jurisdiction of the Court in passing appropriate orders for compensation, etc. whereas sub-section [3] makes it clear that every application under sub-section [1] is to be filed in a prescribed form. So practically section 12 is enabling provision to file an application, whereas sections 18 to 22 are providing for rights of the aggrieved person to seek different reliefs like protection, residence, monetary relief, custody of minor and compensation. For all such reliefs, when provisions of the Code are to be followed, then practically there is no limitation prescribed under the Code for any of such reliefs viz. protection, residence, monetary relief, custody of minor and compensation. However, when section 28 says that procedure is to be followed as per the provisions of the Criminal Procedure Code, then it amounts to dealing with an application under section 12 as an application for all such orders and nothing more than that, more particularly when section 468 of the Code is not providing limitation for any such proceedings either under the Code itself where provision for maintenance is there under section 125, if we peruse the provision of section 468 of the Code, which specifically talks about bar to take cognizance after lapse of the period of limitation. Therefore, it is quite clear and certain that cognizance of offence is to be taken and thereby when there is no incident of commission of any offence while applying under section 12 for any of the orders under sections 18 to 22 which are referred hereinabove, since there are no offences, there is no reason for taking cognizance and, therefore, there is no reason to rely upon the provisions of section 468 of the Code in case of an application under section 12 of the DV Act. To be more precise, if we peruse the provisions of section 468, then also it becomes clear that the period of limitation is referred with the period of punishment i.e. limitation would be six months, if the offence punishable with fine only; one year for the offence punishable with imprisonment for a term not exceeding one year and three years for the offence punishable with imprisonment for a term exceeding one year but not exceeding three years. Therefore, when penal provision is only under section 31 of the DV Act, the provisions of section 468 of the Code would be applicable only when there is an application under section 31 of the DV Act and not otherwise. It is clear position that section 31 of the DV Act provides for imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs. 20,000/- or with both for breach of protection order or of an interim protection order by the respondent and, therefore, limitation would be applicable only after breach of an order in an application under section 12 and, therefore, such limitation cannot be applicable at the stage of an application under section 12 for reliefs under sections 18 to 22. Thereby, it is certain that if there is a breach of an order in an application under section 12 or any of the reliefs under sections 18 to 22 then and then only the application under section 31 is to be filed within one year from the date of such breach and not thereafter, and thereby it cannot be said that an applications under section 12 for reliefs under sections 18 to 22 are also required to be filed within a period of 12 months because in that case, when there is no penal provision, there is no reason to consider limitation at all.
4. Therefore, when there is no penal provision in the form of section 12 or sections 18 to 22 of the DV Act, there is no reason to restrict the aggrieved person from filing such application with reference to period of limitation prescribed under section 468 of the Code.
5. The Sessions Judge has, may be in different and minimum words, expressed the same proposition.
6. However, Ld. Advocate Mr. Mehta for the petitioners is mainly relying upon the decision in the case of Inderjit Singh Grewal [supra] and, therefore, that judgment needs to be scrutinized properly to realize that whether it is applicable in the background of above discussion or not. The perusal of the judgment of the Hon'ble Supreme Court makes it clear that the factual details in such reported case are almost different inasmuch as wife therein filed a criminal complaint before the competent Court to initiate criminal proceedings against her husband alleging that they had obtained decree of divorce by playing fraud upon the Court and the appeal raises a substantial question of law which is altogether different as recorded in para 2 of the judgment itself that whether judgment and decree of the competent Civil Court can be declared null and void in collateral proceedings, that too criminal proceedings. Therefore, the head note E in such reported case is to some extent misleading when it states that limitation under section 468 of the Code is applicable to complaint under section 12 of the DV Act. However, it cannot be ignored that the editor of the journal has specifically endorsed its note immediately after such phrase that a conclusive view on this issue, does not seem to have been expressed, probably because complaint under section 12 was found to be not maintainable on other grounds and, therefore, it becomes clear that practically the Hon'ble Supreme Court has not decided the issue of limitation for proceedings under section 12 of the DV Act. With due respect, it is to be considered that practically the words "complaint under section 12 " are unwarranted because the DV Act itself is confirming that it should be application under section 12 , which for practical purpose is to be registered as Criminal Misc. Application and not as a criminal complaint or irrespective of nomenclature of such litigation, it is mainly an application to the Magistrate by aggrieved person seeking relief for protection and/or residence and/or monetary relief and/or custody of minor and/or compensation for domestic violence and not for awarding sentence of imprisonment to the respondent, which would be applicable only after non-compliance or breach of an order of any nature referred hereinabove and, therefore, reference of complaint under section 12 even in such reported judgment is not relevant, because in the same judgment and in the same paragraph, the Hon'ble Supreme Court has referred only sections 28 and 32 and, therefore, if we peruse section 32, there is a reference of cognizance and proof and there is also provision to take cognizance of offence under sub-section [1] of section 31 only and thereby when application under section 12 is preferred, Magistrate has not to take cognizance of the offence, but he has to simply pass appropriate orders for any of the reliefs claimed with reference to sections 18 to 22 of the DV Act. In general, penal provision comes in picture only after breach of orders of protection, maintenance, custody, etc., under the DV Act and not before any such orders.
7. If we further peruse and scrutinize the factual details of the impugned judgment, it becomes clear that practically the Hon'ble Supreme Court has held that when wife herself is party to the fraud committed by her husband upon Civil Court for getting decree of divorce and when statements and allegations made by the wife involve her own alleged fraud, it dis-entitles her from any equitable relief and, therefore, in the backdrop of the factual matrix of the case only the Hon'ble Supreme Court has held that permitting the Court to proceed with the complaint would be travesty of justice and thereby complaint was quashed.
8. The other issue was with reference to the difference between Court's power in criminal and civil jurisprudence separately, observing that subordinate Civil Court cannot sit in appeal against judgment and order of superior Civil Court having different territorial jurisdiction. Therefore, when a complaint was filed under DV Act before the Superintendent of Police alleging that the decree of divorce was a sham transaction, the Hon'ble Supreme Court has quashed such complaint, but thereby the Hon'ble Supreme Court has nowhere confirmed that the provisions of section 468 of the Code are applicable to all the proceedings including application under section 12 for reliefs under sections 18 to 22 of the DV Act or that such reliefs are barred by limitation.
9. Therefore, the judgment of Inderjit Singh Grewal [supra] would not help the petitioners in any manner whatsoever, more so after the decision in the case of V.D. Bhanot v. Savita Bhanot reported in MANU/SC/0115/2012 : AIR 2012 SC 965.
10. The appellate Court has referred different decisions cited by the respondent herein, therefore, they are now not reproduced here though the respondent is relying upon them. However, reference to following cases would be relevant to decide the issue on hand.
"[1] In V.D. Bhanot [supra] the Hon'ble Supreme Court, while dealing with the provisions of the DV Act, held that even if wife who had shared household in past, but no longer continued to do so when the Act came into force, would still be entitled to the protection of the DV Act. Thereby, the Hon'ble Supreme Court has directed the husband to give back his house to the wife though complaint was filed beyond the period of one year inasmuch as they were living separately from 4/7/2005, whereas complaint was filed on 29/11/2006. The Hon'ble Supreme Court has also confirmed other orders of maintenance, etc., and thereby the Hon'ble Supreme Court has confirmed that the provisions of DV Act can be applicable retrospectively irrespective of limitation. Therefore, though there is no discussion with reference to the issue of limitation directly in such judgment, the ultimate decision of the Hon'ble Supreme Court makes it clear that practically there is no question of limitation while claiming reliefs under sections 18 to 22 by filing an application under section 12 of the DV Act.
[2] In Krishna Bhatacharjee v. Sarathi Choudhary reported in MANU/SC/1330/2015 : 2015 AIR SCW 6386 the Hon'ble Supreme Court has categorically confirmed that the claim for Stridhan by wife is not liable to be dismissed on the ground of limitation. It is clear and obvious that an application under section 12 of the DV Act was preferred by the wife and while dealing with the issue of limitation, the Hon'ble Supreme Court has considered that bar of limitation would not be applicable to the application filed under section 12 of the DV Act because the concept of continuing offence gets attracted in such cases if at all an application for maintenance is to be treated as an offence because of criminal proceedings.
[3] In Shalini v. Kishore reported in MANU/SC/0688/2015 : AIR 2015 SC 2605 also the Hon'ble Supreme Court has, while dealing with the issue of limitation for the proceedings against domestic violence, held that complaint even made after 15 years from the date of separate living by the couple, is not liable to be dismissed if cause of action survives. The Hon'ble Court has reason to say so because for all these 15 years maternal uncle of the wife was allowing her to stay in matrimonial house though the couple was separated and, therefore, when wife was being harassed since the year 2000, the Hon'ble Supreme Court has held that protection order and residence order under sections 18 and 19 of the DV Act along with the maintenance is permissible. It is quite obvious that such orders are not penal in nature, but it is because of the reason that the legislation has made personal and social obligation of a husband as a legal obligation to maintain his wife and to provide other benefits as indicated under sections 18 to 22 of the DV Act, for which cause of action is certainly a continuous one and, therefore, there cannot be restriction of limitation in seeking basic requirement.
[4] Though above decisions by the Hon'ble Supreme Court are quite clear on the subject, it would be appropriate to recollect the observations made in paras 14 to 37 in the decision rendered in the case of Smt. Sabana alias Chand Bai v. Mohd. Talib Ali reported in MANU/RH/1336/2013 : 2014 Cri.L.J. 866 by the Division Bench [Coram : Justice Amitava Roy, as he then was and Sangeeta Lodha, JJ]. However, since those paragraphs are available in law journal, I do not want to make this judgment lengthy by reproducing the same. However, the outcome of such discussion by Division Bench is in confirmation of the decision in the case of V.D. Bhanot [supra] that remedy available under sections 18 to 22 of the DV Act by filing an application under section 12 of the DV Act is applicable even if the offence of domestic violence was committed prior to coming into force of the DV Act. Therefore, if the aggrieved person has been in a domestic relationship at any point of time even prior to coming into force of the DV Act and was subjected to domestic violence even before commencement of the DV Act, he is entitled to invoke remedial measures provided under the DV Act."
11. In view of such discussion, it becomes clear that provisions of the limitation as emphasized by the petitioners, are not applicable and thereby there is no substance in the revision application.
12. Therefore, any other decision, even if it is dealing with the issue of limitation with reference to DV Act it is to be clarified that it may be applicable only in case of proceedings under section 31 of the DV Act since sub-section [1] of section 31 contemplates punishment in the event of breach of the order under such Act. Therefore, provisions of section 31 of the DV Act do not come into play till an order in an application under section 12 is passed and till the same is breached. Therefore, when the respondent is simply seeking various reliefs contemplated by the DV Act, unless those reliefs are granted and only if such order is violated, the respondent may not have to invoke provisions of section 31 of the DV Act and at that stage only question of limitation would arise and thereby respondent may not be entitled to invoke provisions of section 31 of the DV Act seeking punishment by way of sentencing the otherside for breach of any such order after a period of one year from the date of violation of any such order. Practically the provisions of section 31 [1] of the DV Act is similar to the provisions of section 125 [3] of the Code and, therefore, like an application for maintenance under section 125 of the Code, it cannot be barred by limitation and an application under section 12 of the DV Act is not subject to limitation as contemplated by the petitioners.
13. In view of the above, there is no substance in the revision application and hence revision application is dismissed. Rule is discharged.
Further order:
After pronouncement of above order, Ld. Advocate for the petitioners requested to stay this order for six weeks. However, considering the fact that main litigation is regarding maintenance and other ancillary relief of the wife, I do not think it proper to stay such order. Hence, request is rejected.
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