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2015 DIGILAW 679 (ORI)

Nihar Ranjan Parida v. Soochna Dhal

2015-12-03

S.K.MISHRA

body2015
ORDER 03.12.20151. Heard learned counsel for the petitioner. 2. Perused the records. The petitioner, who is the husband and father of the aggrieved persons who have been arrayed as opposite party nos. 1 and 2 in this application, has filed this application under Section 482 of the Cr.P.C. challenging the order dated 14.09.2015 passed by learned S.D.J.M., Panposh at Rourkela on a petition filed by him for dismissal of the petition filed by the opposite party nos. 1 and 2 as aggrieved party under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the “Act” for brevity) on the ground that the order suffers from non-application of judicial mind and the learned Judge has not dealt with law governing the field and misread the purpose of such enactment. 3.Learned counsel for the petitioner very emphatically submitted that in the petition under Section 12 of the Act, aggrieved persons have stated that on 6.5.2011 the respondent and his family members forced the father of the aggrieved person, i.e., opposite party no. 1, to take her back and finding no other way, the aggrieved person returned to her parents house in Rourkela. It is an admitted fact that the aggrieved persons and the respondent are living separately since 6.5.2011. It is also the admitted fact that there was domestic relationship between them prior to 6.5.2011. The aggrieved persons, in the mean time, initiated a criminal case for the alleged commission of offence under Section 498-A of the I.P.C. and Section 4 of the D.P. Act in G.R. Case No. 978/2011 of the Court of learned S.D.J.M., Panposh at Rourkela. The said matter is still pending. The aggrieved persons also filed a case being C.P. No. 216/2015 and I.A. No. 85/2011 under Sections 18 and 20 of Hindu Maintenance and Adoption Act before the learned Judge, Family Court, Rourkela, the same is still pending. The main contention of the learned counsel for the petitioner is that the cause of action arose in the year 2011, but after lapse of more than three years, the aggrieved persons have filed C.M.C. No. 122/2015, which is barred by limitation. It is contended that as per Sections 28 and 32 of the Act read with Section 15(6) of the Rules, the provisions of Cr.P.C. is applicable. It is contended that as per Sections 28 and 32 of the Act read with Section 15(6) of the Rules, the provisions of Cr.P.C. is applicable. It is, therefore, contended that as such Section 468 of the Cr.P.C. is applicable to filing of the cases under the Act. Thus, it is argued that the limitation of filing of cases under the Act is one year from the date when the cause of action arose. Since the proceeding before the learned Magistrate has been initiated after lapse of more than three years from the date of cause of action, the case is not maintainable and the same should be dismissed. 4. Section 12 of the Act provides that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to seek redressal from the Magistrate having jurisdiction regarding reliefs referred under the Act. 5.Section 2(a) of the Act defines that an aggrieved person means any women 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. 6.Section 2(f) of the Act defines that “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. 7.Thus, a simple reading of the aforesaid provisions show that the Parliament in its wisdom thought it proper to give protection to women who was in addition to live together in the present or in the past, in a shared hold house when they are related (i) by consanguinity or (ii) by marriage or (iii) by relationship in nature of marriage or (iv) on account of relationship of adoption or (v) they are related to each other as family members living together as joint family. 8.The objects and reasons leading to the legislation of the Act make its abundantly clear that it was enacted to “provide a remedy in the civil law” in as much as the then existing civil law would not address the phenomenon of domestic violence in its entirety. 8.The objects and reasons leading to the legislation of the Act make its abundantly clear that it was enacted to “provide a remedy in the civil law” in as much as the then existing civil law would not address the phenomenon of domestic violence in its entirety. Thus, the Act has been enacted to give relief to certain aggrieved person who has been subjected to domestic violence by person with whom she has domestic relationship. It does not define any offence nor does it give punishment for any offence of domestic violence. In Section 31 of the Act, if a person who has been directed to pay compensation etc. as envisaged under the provisions of the Act does not comply the same then a criminal case can be initiated against him. For better appreciation of the said provision, it is quoted below:- “31. Penalty for breach of protection order by respondent .- (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. (2) The offence under sub-Section (1) shall as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-Section (1), the Magistrate may also frame charges under Section 498-A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.” 9.A careful examination of the aforesaid provision makes it clear that it provides penalty for breach of protection order by the respondent. It provide punishment to the respondent for a breach of protection order or interim protection order and the same has been defined under the Act. Such offender shall be punishable with imprisonment of either description which may extend to one year or with fine which may extend to twenty thousand rupees or with both. 10.Section 468 of the Cr.P.C. provides for the Bar to taking cognizance after lapse of the period of limitation. It reads as follows:- “ 468. Such offender shall be punishable with imprisonment of either description which may extend to one year or with fine which may extend to twenty thousand rupees or with both. 10.Section 468 of the Cr.P.C. provides for the Bar to taking cognizance after lapse of the period of limitation. It reads as follows:- “ 468. Bar to taking cognizance after lapse of the period of limitation. –(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-Section (2), after the expiry of the period of limitation. (2) The period of limitation shall be – (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purpose of this Section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.” 11.A bare reading of the aforesaid provision leaves no doubt in the mind of the Court that the limitation prescribed under Section 468 of the Cr.P.C. applies only to offences punishable under the provisions of any of the Penal Act. It does not speak about initiation of a proceeding under Section 12 of the Act or instituting a case Section 125 of the Cr.P.C. So the matter should not be confused. There is no limitation prescribed in the Act for instituting a proceeding under Section 12 of the said Act. Once a proceeding is initiated a protection order is given and the respondent violates the protection order, then the offence under Section 31 of the Act would be attracted. 12.Only from the date of breach of protection order, the limitation shall be calculated and if it is beyond one year the Magistrate shall not take cognizance of offence under Section 31 of the Act. That situation has not as yet arisen in this case. N protection order or interim order has been passed. 12.Only from the date of breach of protection order, the limitation shall be calculated and if it is beyond one year the Magistrate shall not take cognizance of offence under Section 31 of the Act. That situation has not as yet arisen in this case. N protection order or interim order has been passed. So there is no question of applying the provisions of Section 468 of the Cr.P.C. to the case as there is no need to take cognizance of any offence at this stage. When a Magistrate accepts a petition filed by the aggrieved person under Section 12 of the Act and direct to issue notice to respondent, it does not take cognizance of any offence. So in that view of the matter, the order of issuance of notice at this stage, the Court is not required to look at any provisions of law guiding limitation. 13.In that view of the matter, the contentions raised by the learned counsel for the petitioner is devoid of any merit and the same is rejected. 14.Learned counsel for the petitioner filed an unauthentic copy of the order purported to have down loaded from the internet in which the District Judge, Saket, New Delhi, has allowed an appeal under Section 29 of the Act. Such judgment has no binding effect. Moreover, the issue therein is whether the interim order of maintenance passed by the learned Magistrate is correct or not. The District Judge himself was not in seisin of the matter where the proceeding was to be quashed for limitation. 15.Another unreported decision of the Bombay High Court has been filed. As per the order dated 7th March, 2013 a single Judge of the Bombay High Court has held that the petition under Section 12 of the Act should be filed within a reasonable time. The learned Judge held that a wife who has returned from the USA and consequently from the domestic relationship and lived in India for one year cannot file an application with regard to that relationship after such time. 16. In that case the domestic relationship existed in USA and she went away from the domestic relationship and then lived in India for one year. Thereafter she filed an application in India, i.e. is not entertain and the learned Single Judge of Bomaby High Court upheld the same. 16. In that case the domestic relationship existed in USA and she went away from the domestic relationship and then lived in India for one year. Thereafter she filed an application in India, i.e. is not entertain and the learned Single Judge of Bomaby High Court upheld the same. This Court is of the opinion that the aforesaid cases are totally different from the present case. 17.The question involved can also be seen through another angle. A reference to the statement of objects and reasons of the aforesaid Act reveal that parliament proposed to enact a law keeping in view the rights guaranteed under Articles 14,15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. Furthermore, domestic violence has been defined to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Economic abuse has been defined at Clause –iv of Section -3 of Chapter-II of the Act. It is appropriate to take note of the exact provisions laid down:- “xxx xxxxxx (iv) “economic abuse” includes – (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved persons requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance; (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.” 18. It is apparent from the aforesaid provision at sub-clause (a) that deprivation of all or any economic of financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved persons requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children shall be included as economic abuse. So a lady who is denied the basic necessity of meeting the household expenses of herself and her children than economic abuse is committed and it comes within the definition of domestic violence. As such this economic abuse is as continuous process and the cause of action occurs whenever there is a continuing neglect by the respondents to share the economic and financial resources with the aggrieved persons. In such cases, there cannot be any limitation and even after three years of cessation of joint residence and application under Section 12 of the Act is maintainable. 19. In that view of the matter, this Court is of the opinion that the CRLMC is devoid of any merit and the same is, accordingly, dismissed in limine. 20. Urgent certified copy of this order be granted on proper application. CRLMC dismissed.