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2013 DIGILAW 380 (HP)

Tarun Mahant v. Surbhi Mahant

2013-05-03

SANJAY KAROL

body2013
JUDGMENT Sanjay Karol, Judge(Oral) Petitioners in this petition, filed under the provisions of Section 397 read with Section 482 of the Code of Criminal Procedure, 1973, have assailed the impugned order dated 25.5.2012, passed by the learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, Himachal Pradesh, in Cr.M.A. No.97-iv/2012, titled as Surabhi Mahant versus Tarun Mahant etc. 2. On 19.9.2001, Shri Tarun Mahant (petitioner No.1) was married to Ms Surabhi Mahant (respondent herein). The marriage was solemnized as per the customary rites. On 21.2.2009, a daughter was born out of the wedlock. Allegedly, petitioners herein treated the respondent with cruelty, as a result of which she was forced to leave the matrimonial house. As such, respondent got an FIR registered, under the provisions of Section 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961. After trial, the present petitioners stood acquitted by the trial Court, in relation to the said offences, in terms of judgment dated 31.3.2010, passed by learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, in Criminal Case NO.317-I of 2003/29-II of 2033, titled as State of Himachal Pradesh versus Tarun Mahant and others. The said judgment has attained finality. 3. Thereafter, respondent herein filed a petition under the provisions of Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act), claiming various reliefs under the provisions of Sections 18, 19, 20, 21 and 22 of the Act. This petition was filed in the month of April, 2010. Notice was issued to the present petitioner. 4. Petitioner No.4 herein Shri Gopal Krishan Mahant filed CRMMO No.97/2010, titled as Gopal Krishan Mahant versus Surabhi Mahant and others, challenging the initiation of Such proceedings. Vide judgment dated 16.9.2010, the petition was disposed of by this Court with a direction to file an appropriate application setting out the grounds of challenge with regard to the jurisdiction of the trial Court to take cognizance on the complaint so filed under the provisions of the Act. 5. Consequently, an application was filed by the petitioners herein, seeking dismissal of the complaint, on the ground that the same was barred by limitation and also that the issues stood adjudicated in a criminal trial. Also, on the same cause of action private complaint is barred. 6. The said application stands rejected in terms of impugned order dated 25.5.2012. 7. Consequently, an application was filed by the petitioners herein, seeking dismissal of the complaint, on the ground that the same was barred by limitation and also that the issues stood adjudicated in a criminal trial. Also, on the same cause of action private complaint is barred. 6. The said application stands rejected in terms of impugned order dated 25.5.2012. 7. The Protection of Women from Domestic Violence Act, 2005 is a beneficial legislation, specifically brought in to provide for more effective protection of the rights of women, who are victims of violence of any kind, occurring within the family and for matters connected therewith or incidental thereto. Expression “domestic violence” would include cruelty in all forms, whether it is mental, physical, sexual, verbal, emotional or economic. The Act provides for the right of women to secure housing. The Courts are empowered to pass protection orders as and when deemed necessary, if there is threat to the life or property of the women. Under all circumstances, rights of women need to be protected. 8. Provisions of Section 498-A of the Indian Penal Code as also the Dowry Prohibition Act are penal in nature but the Protection of Women from Domestic Violence Act, 2005 provides remedy, where civil law could not address the phenomenon in its entirety. This socially beneficial legislation was brought in, keeping in view the rights guaranteed under the provisions of Articles 14, 15 and 21 of the Constitution of India to provide remedy to protect the women, who are victims of domestic violence. Repeated occurrence of domestic violence in the society needs to be curbed. 9. In paras-5 to 11 of the application, complainant has alleged various acts of cruelty meted out to her between the period 2002 and 2007. It is true that with respect to these incidents, in the criminal trial, petitioners stood acquitted. However, it is also true that in paras 12 and 13, the complainant has averred that she apprehends danger to her life at the hands of the petitioners and that petitioners being men of means should pay maintenance to her. Facts pertaining thereto need to be adjudicated during trial. 10. Relationship between the parties is not in dispute. Also a child was born out of the wedlock is not in dispute. Respondent has reasonable apprehension of threat and danger to her life at the hands of the petitioners. Facts pertaining thereto need to be adjudicated during trial. 10. Relationship between the parties is not in dispute. Also a child was born out of the wedlock is not in dispute. Respondent has reasonable apprehension of threat and danger to her life at the hands of the petitioners. Simply because the petitioners stand acquitted in a criminal trial, that fact by itself would not act as a resjudicata in relation to the incidents prior to registration of the FIR. Petitioners were put to trial in relation to their criminal conduct and not with regard to the provisions of providing protection and maintenance to the respondent under the provisions of the Act. It is seen that respondent filed the complaint in the year 2010. It is also a matter of fact that she stays away from the company of her husband, voluntary or otherwise is a matter of examination during trial. Money would be required by her for her subsistence. Also, the daughter has to be brought up properly. Also, danger to life necessarily requiring protection or need of maintenance can arise at any time. In a criminal trial these issues could not have been adjudicated. Incidents subsequent to the period 2007 need to be adjudicated. 11. Fact of the matter is that post registration of FIR and passing of judgment of acquittal, respondent is not residing at her matrimonial house. She has categorically averred that there is danger to her life. Also, she needs money for maintenance. As such, it cannot be said that the complaint is belated in any manner. When the cause of action arose, it is for the trial Court to see after trial. Complainant is entitled to protection with respect to the reliefs claimed for. She has not concealed any relevant information from the Court. She has disclosed all previous litigations inter se between the parties. 12. Mr. Sunil Mohan Goel, learned counsel for the petitioners, has invited my attention to the provisions of Section 468 of the Code of Criminal Procedure to contend that the complaint is barred by limitation. In this regard, he has referred to the following decisions of the apex Court: Japani Sahoo versus Chandra Sekhar Mahanty, 2007(7) SCC 394 ; and Inderjit Singh Grewal versus State of Punjab and another, (2011) 12 SCC 588 . 13. In this regard, he has referred to the following decisions of the apex Court: Japani Sahoo versus Chandra Sekhar Mahanty, 2007(7) SCC 394 ; and Inderjit Singh Grewal versus State of Punjab and another, (2011) 12 SCC 588 . 13. The contention needs to be rejected for the simple reason that a complaint under the provisions of the Protection of Women from Domestic Violence Act, 2005 has to be decided with respect to the cause of action arising out of bundle of facts and not on the basis of isolated incidents. Cause of action would continue to subsist if the wife is driven out of the matrimonial house; has threat to her life; is not maintained or she has no money for upkeep of her children, which, in my considered view is subsisting even till date. In any event, the Court has the power to extend the period of limitation under the provisions of 473 of the Code of Criminal Procedure 14. In Japani Sahoo (supra), the issue was as to whether the period of limitation would commence from the date of institution of the complaint or the date when cognizance was taken by the concerned Court, which is not an issue in the present case. 15. In Inderjit Singh Grewal (supra), issue before the Court was as to whether the judgment and decree passed by a competent Civil Court could be declared null and void in collateral criminal proceedings. In the said case, parties had obtained a decree for divorce, under the provisions of Section 13-B of the Hindu Marriage Act, 1955. Wife filed a complaint with the police under the provisions of the Protection of Women from Domestic Violence Act, 2005, stating that the said decree was obtained by fraud and the parties continued to live together as husband and wife even thereafter. However, subsequently she was forced to leave the matrimonial home and thus prayed for action under the provisions of the Act. Police after verification found the averments to be not true and consequently did not take any action. Thereafter, wife filed the same complaint before the Magistrate, in which summons were issued. Such action was challenged by the husband before the High Court. Also, wife filed a Civil Suit, seeking declaration to the effect that the decree of divorce, obtained by fraud, be declared as null and void. Thereafter, wife filed the same complaint before the Magistrate, in which summons were issued. Such action was challenged by the husband before the High Court. Also, wife filed a Civil Suit, seeking declaration to the effect that the decree of divorce, obtained by fraud, be declared as null and void. She also lodged an FIR under the provisions of Sections 406, 498-A, 376 and 120-B of the Indian Penal Code. The decree for divorce was passed on 20.3.2008 and the complaint before the Court, under the provisions of the Act, was filed on 12.6.2009. It is in this backdrop that it was held that complaint could have been filed only within the period prescribed period of limitation. Such are not the facts in hand, as the relationship between the parties continues to be that of husband and wife in the instant case. 16. Mr. Raman Prashar, learned counsel for the respondent has referred to and relied upon the decision of the apex Court in V.D. Bhanot verus Savita Bhanot, (2012) 3 SCC 183 . In the said decision, the apex Court has simply held that conduct of parties prior to coming into force of the Protection of Women from Domestic Violence Act, 2005 can be taken into consideration, while passing the order under the said Act. 17. Hence, the present petition, devoid of any merit, is dismissed, so also the pending application, if any. It be also observed, that this Court had undertaken the task of having the matter amicably resolved. Learned counsel fully cooperated, but regretfully the matter could not be resolved.