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2014 DIGILAW 322 (CHH)

Sarita Tamrakar v. Sudhir Tamrakar

2014-08-26

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. The root question falling for consideration in this revision is whether the conduct of the parties even prior to commencement of Protection of Women from Domestic Violence Act, 2005 (for short, PWD Act, 2005) would be taken into consideration while hearing application under Section 12 of the PWD Act, 2005. The applicant - wife preferred an application seeking relief as enumerated under Sections 17, 18 and 19 of the PWD Act, 2005, against the non-applicant Nos. 1 to 3 i.e. Husband, Father-in-law and Mother-in-law respectively, stating inter alia that the marriage of applicant was solemnized with non-applicant No. 1 in the year 1988 and they have two sons out of their Wedlock. It was stated that her Husband i.e. non-applicant No. 1 has maltreated her and forced her to live separately, and as such, she is entitled for the reliefs claimed in the application. 2. The said application was opposed by the present non-applicant stating inter alia that the PWD Act, 2005 came into force w.e.f. 26-10-2006, whereas, the date of occurrence in the instant case is prior to coming into force of the PWD Act, 2005, and therefore, that conduct cannot be taken into consideration under the provisions of PWD Act, 2005. 3. The trial magistrate by its order dated 1-10-2009 entertained the objection and held that applicant is living separately, five years prior to year 1999, and as such, she is not entitled for protection under the provisions of the PWD Act, 2005. On appeal, said finding was accepted and the appeal was dismissed. Against this order, this revision has been preferred. 4. Shri M.K. Bhaduri, learned counsel appearing for the applicant would submit that both the courts below have erred in holding that conduct of the parties prior to the commencement of the PWD Act, 2005, cannot be taken into consideration under the PWD Act, 2005, therefore, impugned order deserves to be set aside. 5. On the other hand, Shri Praveen Dhurandhar, learned counsel appearing for the non-applicants would submit that the PWD Act, 2005 has no retrospective effect, therefore, the provisions of the PWD Act, 2005, cannot be made applicable for the conduct of the parties prior to commencement of the PWD Act, 2005. 6. Admittedly and undisputedly, the PWD Act, 2005 came into force w.e.f. 26-10-2006. 6. Admittedly and undisputedly, the PWD Act, 2005 came into force w.e.f. 26-10-2006. The aforesaid question being raised herein has been considered by their Lordships of Supreme Court in case of V.D. Bhanot v. Savita Bhanot, AIR 2012 SC 965 in which it has been held as under: "12. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that event if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005." 7. Very recently, the Supreme Court has considered and reiterated the principles laid down in Bhanot's case ( AIR 2012 SC 965 ) in Saraswathy v. Babu, 2014 AIR SCW 380 : ( AIR 2014 SC 857 ) and held that the conduct of the parties even prior to commencement of the PWD Act, 2005, can be taken into consideration while passing the order under Sections 18, 19 and 20 of the PWD Act, 2005. 8. In view of above authoritative pronouncement of their Lordships of Supreme Court, it is no longer res-integra that conduct of the parties prior to commencement of the PWD Act, 2005, can be taken into consideration while hearing and for passing an order under the PWD Act, 2005, and therefore, the order impugned passed by both the courts below deserve to be and is hereby set aside. 9. The application filed by the applicant on 7-5-2009 is restored to its original number before the court of Judicial Magistrate First Class, Durg, for hearing and disposal in accordance with law. The application would be decided by the said court as early as possible preferably within a period of three months from the date of this order. Parties are directed to appear before the court below on 22-9-2014. Petition allowed.