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2009 DIGILAW 555 (GAU)

Bulu Das v. Ratan Das

2009-08-11

T.NANDAKUMAR SINGH

body2009
JUDGMENT T. Nandakumar Singh, J. 1. This revision petition under Section 401 read with Section 397 of Cr PC is directed against the judgment and order dated 6.5.2008 passed by the learned Sessions Judge, Dibrugarh in Criminal Appeal No. 2(1)/2008, whereby and whereunder, the learned Sessions Judge set aside the order dated 26.12.2007 passed by the learned SDJM(S), Dibrugarh only on the score that the provision of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act, 2005') is not applicable to the Case No. 81M/2006 filed by the present petitioner in the Court of the learned SDJM(S), Dibrugarh under Section 12, 18, 19, 20, 22 and 23 of the Act, 2005, inasmuch as the Act, 2005 came into force on 26.10.2006. 2. Heard Mr. P.J. Saikia, learned Counsel appearing for the petitioner as well as Mr. G. Bhowmik, learned Counsel for the respondent. 3. For deciding the present revision petition, a short fact leading to the filing of the said case i.e., Case No. 81M/2006 under the provision of the Act, 2005 in the Court of the learned SDJM(S) Dibrugarh, is recapitulated. Admittedly, the present petitioner-Smt. Bulu Das is the legally married wife of the respondent-Sri Ratan Das and their marriage was solemnized on 11.11.1985 following the Hindu rites and customs. It is also the admitted fact that the daughter of the petitioner-wife is the legitimate daughter of the respondent-Ratan Das. 4. In para No. 3 of the petition filed by the present petitioner-wife in the said case i.e., Case No. 81M/2006, it has been mentioned categorically that on 8.10.2006 the respondent-husband assaulted her severely on her head and other vital parts of the body just to commit her murder. Under such situation, on 9.10.2006 the brother of the petitioner-wife brought her in the Assam Medical College & Hospital, Dibrugarh and treated her medically. On 2.11.2006 the petitioner-wife issued a legal notice through her Lawyer to the respondent-husband with a demand for coming to Dibrugarh immediately for providing her adequate medical treatment by the competent Doctors and also taking her back to the respondent-husband's house and to keep her with honour and respect there. On 2.11.2006 the petitioner-wife issued a legal notice through her Lawyer to the respondent-husband with a demand for coming to Dibrugarh immediately for providing her adequate medical treatment by the competent Doctors and also taking her back to the respondent-husband's house and to keep her with honour and respect there. The said notice dated 2.11.2006 was duly received by the respondent-husband and on 5.11.2006 at about 9.00 p.m. the respondent-husband threatened the petitioner-wife over telephone with dare consequences and also that he (respondent-husband) would neither take the petitioner-wife and her daughter back to his house nor provide them any maintenance. On such allegation, the petitioner-wife filed the said case i.e., Case No. 81M/2006. 5. Mr. P.J. Saikia, learned Counsel appearing for the petitioner-wife, by drawing the attention of this Court to the definition of domestic violence as provided in Section 3 of the Act, 2005, strenuously contended that the domestic violence not only include the mental harassment through verbal or emotional abuse but also include the economic abuse. For easy reference, Section 3 of the Act, 2005 is quoted hereunder: 3. Definition of domestic violence.-For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it,- (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) harasses harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in Clause (a) or Clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. 6. On bare perusal of Section 3 of the Act, 2005, it is clear that the said act alleged to have been committed by the respondent-husband will be domestic violence. Therefore, it is the submission of Mr. P.J. Saikia, learned Counsel appearing for the petitioner-wife that since the said acts of domestic violence are continuing, there is continuing cause of action for filing the said i.e., Case No. 81M/2006 under the Act, 2005. Therefore, it is the submission of Mr. P.J. Saikia, learned Counsel appearing for the petitioner-wife that since the said acts of domestic violence are continuing, there is continuing cause of action for filing the said i.e., Case No. 81M/2006 under the Act, 2005. In order to support his contention, Mr. P.J. Saikia, learned Counsel appearing for the petitioner has placed heavy reliance on the decision of the Apex Court in Vanka Radhamanohari v. Vanka Venkata Reddy and Ors., (1993) 3 SCC 4 . The Apex Court in Vanka Radhamanohari case (supra) had made observations that cruelty, torture and assault by the husband or other members of the family to the complainant (victim) is a continuing offence. The observations made by Hon'ble Justice N.P. Singh in Vanka Radiiamanohari case (supra) reads as follows: ....The 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 State of Punjab v. Sarwan Singh, (1981) 3 SCC 34 : 1981 SCC (Cri) 625 : AIR 1981 SC 1054 . 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...[para 7 of the SCC in Vanka Radhamanohari case (supra)]. 7. Basing on the decision of the Apex Court in Vanka Radhamanohari case (supra), Mr. P.J. Saikia, learned Counsel appearing for the petitioner-wife also contended that since the act of the respondent-husband is a domestic violence within the meaning of Section 3 of the Act 2005 and also a continuing one, there is continuing cause of action for filing the said case i.e., Case No. 81M/2006. In support of his contention that there is a continuing cause of action in the present case, Mr. P.J. Saikia has also relied on the decision of the Apex Court in State of Bihar v. Deokaran Nenshi and Anr., (1972) 2 SCC 890 . The Apex Court in Deokaran Nenshi case (supra) had distinguished the continuing offence from the one which is committed once and for all and that the continuing offence is the one which constitutes a fresh offence every time or occasion on which it continues. The Apex Court in Deokaran Nenshi case (supra) had distinguished the continuing offence from the one which is committed once and for all and that the continuing offence is the one which constitutes a fresh offence every time or occasion on which it continues. Para 5 of the SCC in Deokaran Nenshi case (supra) reads as follows: 5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all. 8. Taking into consideration the submission of the learned Counsels appearing for the parties and keeping in view the ratio laid down by the Apex Court in Vanka Radhamanohari case (supra) and Deokaran Nenshi case (supra), this Court is of the considered view that there is a continuing cause of action for filing the said case i.e. Case No. 81/2006 before the learned SDJM, Dibrugarh, by the present petitioner-wife. Admittedly, the Protection of Women from Domestic Violence Act, 2005 came into force on 26.10.2006 vide S.O. 1776(E), dated 17.10.2006. Since, there is a continuing cause of action for the reasons discussed above, this Court is of the firm view that the provisions of the said Act, 2005 are attracted to the present case; and accordingly, the petitioner-wife filed the said case i.e., Misc. Case No. 81M/2006 under the Act, 2005. 9. For the foregoing reasons, this Court has no other alternative except to interfere with the impugned judgment and order dated 6.5.2008 passed by the learned Sessions Judge, Dibrugarh in Criminal Appeal No. 2(1)/2008. Case No. 81M/2006 under the Act, 2005. 9. For the foregoing reasons, this Court has no other alternative except to interfere with the impugned judgment and order dated 6.5.2008 passed by the learned Sessions Judge, Dibrugarh in Criminal Appeal No. 2(1)/2008. Accordingly, the impugned judgment and order dated 6.5.2008 is set aside. The records of Criminal Appeal No. 2(1)/2008 is remanded to the learned Sessions Judge, Dibrugarh for deciding the appeal on merit. The learned Sessions Judge, Dibrugarh while deciding the said appeal i.e., Criminal Appeal No. 2(1)/2008 on merit, shall look into the provisions contemplated in Section 14 of the Act, 2005. The parties are also directed to appear before the learned Sessions Judge, Dibrugarh on 14.9.2009. It is also made clear that the respondent-husband shall continue to pay the extent of the maintenance allowance of the petitioner-wife to her. 10. With the aforesaid observations and directions, this revision petition is allowed. The Registry is directed to send down the Lower Court Records forthwith to the learned Sessions Judge, Dibrugarh. Petition allowed