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2021 DIGILAW 957 (KAR)

V. Muralidhar v. Sandhya

2021-11-23

SREENIVAS HARISH KUMAR

body2021
JUDGMENT : 1. The question involved in this petition filed under Sec. 482 Cr.P.C. is whether limitation as prescribed under Sec. 468 Cr.P.C is applicable to an application made under Sec. 12 of Protection of Women from Domestic Violence Act ('Act' for short). The factual background necessary for disposal of this petition is as follows: 2. The petitioner is the husband of the first respondent and their marriage was solemnized on 25/9/2017. The second respondent is their daughter, she was born on 17/9/2018. On certain allegations that the petitioner and his family members subjected the first respondent to physical and mental harassment, the latter left her matrimonial home one month before the second respondent was born. The first respondent took recourse to legal proceedings to claim maintenance from the petitioner under Sec. 125 Cr.P.C., besides lodging an FIR against him in Cr.No.106/2019 for the offences punishable under Sec. 498-A of IPC and Ss. 3 and 4 of Dowry Prohibition Act read with Sec. 34 IPC. She also made an application under Sec. 12 of the Protection of Women from Domestic Violence Act (for short 'the Act') claiming various reliefs. The learned Magistrate before whom the application under Sec. 12 of the Act is pending passed an order on 15/2/2021 granting interim maintenance of Rs.10,000.00 to the respondents. The petitioner has challenged this order and has also sought quashing of the proceedings in Crl.Misc.No.24/2021 initiated under Sec. 12 of the Act. 3. I have heard the arguments of Sri. H.P. Leeladhar, learned counsel for the petitioner and Sri. L.V. Muralidhara, learned counsel for the respondents. 4. It is the argument of Sri. H.P. Leeladhar that the learned Magistrate ought not to have taken cognizance of the complaint under Sec. 12 of the Act because the first respondent left the matrimonial home one month before she gave birth to a female baby on 17/9/2018. The complaint, having been filed on 9/2/2021, after lapse of two years five months and twenty one days, is highly time barred. Referring to Sec. 468 of Cr.P.C., he argues that the maximum punishment of imprisonment that can be imposed being up to one year, the complaint made after a lapse of one year is barred by limitation and in this view the learned Magistrate ought not to have entertained the complaint. Referring to Sec. 468 of Cr.P.C., he argues that the maximum punishment of imprisonment that can be imposed being up to one year, the complaint made after a lapse of one year is barred by limitation and in this view the learned Magistrate ought not to have entertained the complaint. He also refers to Sec. 28 of the Act to argue further that since the proceedings under Ss. 12, 18, 19, 20, 21, 22 and 23 are governed by the provisions of Cr.P.C., Sec. 468 of Cr.P.C. is very much applicable. In support of his argument, he has placed reliance on many judgments which I will refer to little later. 5. Sri. L.V.Muralidhara, learned counsel for the respondents meets the argument of Sri. H.P.Leeladhar by submitting that the complaint made under Sec. 12 of the Act does not attract limitation period since the said sec. only enables an aggrieved person or a protection officer or any other person on behalf of the aggrieved person to seek one or more reliefs under the Act. Here the respondents being the aggrieved persons have sought various reliefs that they are entitled to on account of domestic violence that they suffered at the hands of the petitioner. If a complaint is made under Sec. 12 of the Act, it does not mean that an offence is committed. Sec. 12 of the Act provides a remedy to the aggrieved person and the relief granted by the court can be enforced. Therefore it was his argument that the petition made under Sec. 482 Cr.P.C. is devoid of merits and it is to be dismissed. 6. I have considered the arguments. Sri. H.P. Leeladhar has raised an important question of law. To answer this, analysis of some Sec. of the Act is necessary. 7. Sec. 2 (g) states that 'domestic violence' means the meaning assigned to it under Sec. 3. If sec. 3 is read, it is found that any act, omission or commission of the respondent constitutes domestic violence in case it - 3. To answer this, analysis of some Sec. of the Act is necessary. 7. Sec. 2 (g) states that 'domestic violence' means the meaning assigned to it under Sec. 3. If sec. 3 is read, it is found that any act, omission or commission of the respondent constitutes domestic violence in case it - 3. (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. 8. Explanation 1 describes the meaning of the terms physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. Sec. 12 of the Act enables an aggrieved person to apply to the court of Magistrate seeking one or more reliefs. Not only the aggrieved person, but a protection officer or any other person on behalf of the aggrieved person may also apply for the reliefs. Sec. 18 provides for seeking protection orders. Under sec. 19, residence orders may be passed. Ss. 20, 21 and 22 deal with granting monetary reliefs, custody orders and compensation orders respectively. There is no doubt that under all these Sec., the aggrieved person may seek one or more reliefs, if she has been subjected to domestic violence. Those Sec. direct the respondent in a compliant under sec. 12 to provide the reliefs to the aggrieved person. Ss. 12, 18, 19, 20, 21 and 22 do not speak of an offence. Sec. 40 of IPC states that offence means a thing made punishable. In this background a further analysis takes me to state further that none of the Sec. providing for various reliefs to an aggrieved person constitutes an offence. Ss. 12, 18, 19, 20, 21 and 22 do not speak of an offence. Sec. 40 of IPC states that offence means a thing made punishable. In this background a further analysis takes me to state further that none of the Sec. providing for various reliefs to an aggrieved person constitutes an offence. No offence is prescribed for violating the order of the Magistrate; and the only provision dealing with imposing penalty is Sec. 31 which says that if a protection order or an interim protection order passed by the Magistrate is breached, it amounts to an offence under the Act and the respondent shall be punishable with imprisonment of either description of a term which may extend to one year or with fine extending upto Rs.20,000.00 or with both. It is clear that no offence is prescribed if there is breach of the orders passed under Ss. 19, 20, 21 and 22. To understand more clearly the nature of the reliefs granted on an application under sec. 12, two judgments of the Supreme Court can be usefully referred here. In Rupali Devi Vs. State of Uttar Pradesh and others [ AIR 2019 SC 1790 ], it is held, "15. The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in Criminal law which is what is provided under Sec. 498A of the Indian Penal Code. The definition of the Domestic Violence in the Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or wellbeing, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanation A and B to Sec. 498-A, Indian Penal Code which defines cruelty. The provisions contained in Sec. 498-A of the Indian Penal Code, undoubtedly, encompasses both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony............" (emphasis supplied) 9. In another decision of the Supreme Court, in case of Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari and Another, [2016 AIR (SCW) 2519], it is held,- "14. Even the silence of the wife may have an underlying element of an emotional distress and mental agony............" (emphasis supplied) 9. In another decision of the Supreme Court, in case of Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari and Another, [2016 AIR (SCW) 2519], it is held,- "14. Procedure for obtaining order of reliefs is stipulated in Chapter IV of the DV Act which comprises Ss. 12 to 29. Under Sec. 12 an application can be made to the Magistrate by the aggrieved person or Protection Officer or any other person on behalf of the aggrieved person. The Magistrate is empowered, under Sec. 18, to pass protection order. Sec. 19 of the DV Act authorizes the Magistrate to pass residence order which may include restraining the respondent from dispossessing or disturbing the possession of the aggrieved person or directing the respondent to remove himself from the shared household or even restraining the respondent or his relatives from entering the portion of the shared household in which the aggrieved person resides etc. Monetary reliefs which can be granted by the Magistrate under Sec. 20 of the DV Act include giving of the relief in respect of the loss of earnings, the medical expenses, the loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved person as well as her children, if any. Custody can be decided by the Magistrate which was granted under Sec. 21 of the DV Act. Sec. 22 empowers the Magistrate to grant compensation and damages for the injuries, including mental torture and emotional distress, caused by the domestic violence committed by the appellant. All the aforesaid reliefs that can be granted by the Magistrate are of civil nature. Sec. 23 vests the Magistrate with the power to grant interim ex-parte orders. It is, thus, clear that various kinds of reliefs which can be obtained by the aggrieved person are of civil nature. At the same time, when there is a breach of such orders passed by the Magistrate, Sec. 31 terms such a breach to be a punishable offence". (emphasis supplied) 10. Therefore it becomes very clear now that except the breach of protection order that can be passed under sec. 18, the breach of other orders does not amount to an offence. (emphasis supplied) 10. Therefore it becomes very clear now that except the breach of protection order that can be passed under sec. 18, the breach of other orders does not amount to an offence. This being the deducible legal position, it is necessary to refer to some of the judgments that Sri.H.P.Leeladhar has cited in order to examine whether those judgments really lend support to his argument. 11. Japani Sahoo Vs. Chandra Sekhar Mohanty [ (2007) 7 SCC 394 ] deals with applicability of sec. 468 Cr.P.C. The primary question that arose in this case is about the date from which cognizance has to be taken when a complaint is filed under sec. 200 Cr.P.C. in relation to offences punishable under Sec. 294 and 323 of IPC. The Hon'ble Supreme Court has held that whenever a complaint is filed, the relevant date for taking cognizance is the date of complaint or the date of initiating criminal proceeding for the purpose of computing the period of limitation. Therefore, it is clear that in this case, the question whether the limitation prescribed under Sec. 468 of Cr.P.C. can be applied even to a complaint under Sec. 12 of the Act did not arise. 12. But in Inderjit Singh Grewal Vs. State of Punjab and Another [ AIR 2007 SC 2762 ], the facts show that the wife who initiated proceeding under the provisions of the Act, filed a suit against her husband seeking a declaration that the judgment and decree of granting divorce was null and void and also lodged an FIR against her husband and others alleging commission of offences punishable under Ss. 406, 498A, 376 and 120B of IPC. Though the Hon'ble Supreme Court has opined in Para 24 of the judgment that there is preponderance in the argument of learned advocate for the appellant that the complaint under the Act could be filed only within a period of one year from the date of incident in view of provisions under Ss. 28 and 32 of the Act, it is to be noted here that in Para 25 of the judgment, the actual reasons for quashing the proceeding under the provision of the Act are given, and those reasons are based on facts. 28 and 32 of the Act, it is to be noted here that in Para 25 of the judgment, the actual reasons for quashing the proceeding under the provision of the Act are given, and those reasons are based on facts. What is held is that the Magistrate cannot be permitted to proceed further with the complaint in view of the decree of divorce passed by the civil court. 13. Subsequently two co-ordinate benches of this court had an occasion to deal with the same issue. In the case of J.Srinivas Vs. G.Dhanalakshmi, (Crl.P.2419/2009), it is held that the complaint made by the wife against the husband under Sec. 12 of the Act was barred by limitation in view of Sec. 468. But it is to be mentioned here that probably the co-ordinate bench arrived at this conclusion based on a submission made by the counsel for the husband that even if the case against the petitioner is established, the maximum punishment that can be imposed is one year imprisonment. Therefore probably keeping in mind the punishment that can be imposed, the co-ordinate bench might have applied Sec. 468 Cr.P.C. 14. Another co-ordinate bench of this court in the case of Gurudev and Another Vs. Jayashree (Crl.P.11476/2013), has referred to the earlier order in the case of J.Srinivas, but given a meticulous reading to this order, it appears that the reason for quashing the proceeding under the Act was not that it was time barred, but the bonafides in the application of the wife was doubted as she filed it after a lapse of eight years from the date of separation from the husband. Therefore it is clear that the order in Gurudev's case does not disclose whether J.Srinivas' case has been followed or not. 15. However, there are two judgments of the High Court of Judicature at Madras in the case of V. Nagarajan and Others Vs. B.P.Thangaveni (Crl.O.P.No.11087/2017 and Crl.MP.Nos.7326 and 7327 of 2017) and V. Rajesh and Others Vs. S. Anu Priya (Crl.O.P.No.28034/2019 and Crl.MP. No.14962/2019) where following the judgment of the Supreme Court in the case of Inderjit Singh Grewal, it is held that limitation for initiating proceeding under sec. 12 is one year. 16. The High Court of Bombay at Goa in the case of Smt. Vijaya Vasant Sawant Vs. Ms. S. Anu Priya (Crl.O.P.No.28034/2019 and Crl.MP. No.14962/2019) where following the judgment of the Supreme Court in the case of Inderjit Singh Grewal, it is held that limitation for initiating proceeding under sec. 12 is one year. 16. The High Court of Bombay at Goa in the case of Smt. Vijaya Vasant Sawant Vs. Ms. Shubhangi Shivling Parab (Crl.Revision.App.No.41/2011) confirmed the orders of the Sessions Court and the Judicial Magistrate in a proceeding under Sec. 12 of the Act. The facts disclose that the husband made a petition for divorce in the year 2008 and almost a year thereafter in February, 2009, the wife made a complaint under Sec. 12 of the Act. The wife had left the company of the husband in the year 2004 itself. The Magistrate rejected the complaint and it was challenged in the Sessions Court which also confirmed the order of the Magistrate. In this case the question of limitation did not arise. 17. On over all survey of the decisions referred to above, it may be stated now that though in fact in Inderjit Singh Grewal, it is observed that period of one year limitation is applicable in view of sec. 468 Cr.P.C. to a complaint under the Act, with great respect to the Hon'ble Supreme Court it has to be stated that the question whether a complaint under Sec. 12 of the Act is with regard to an offence or not, did not arise for consideration. Moreover, the reason for quashing the proceeding challenged therein is actually dissolution of the marriage by virtue of the divorce decree granted by the civil court. Even in the case of J.Srinivas, the co-ordinate bench of this court appears to have come to conclusion about applicability of one year limitation thinking that punishment prescribed is one year imprisonment and this observation obviously should be in the light of Sec. 31 of the Act. It is true that the High Court of Madras in its two decisions might have come to conclusion that limitation is one year, but those two decisions also do not show discussion on the question whether a complaint under Sec. 12 of the Act is with regard to an offence or not. Therefore, all the rulings cited by Sri. H.P. Leeladhar do not help to accept his argument. 18. Therefore, all the rulings cited by Sri. H.P. Leeladhar do not help to accept his argument. 18. Harking back to the instant case, it is to be stated that the proceeding initiated by the respondent is for various reliefs that can be granted under several Sec. already referred to. In Rupali Devi and Kunapareddy, the Hon'ble Supreme Court has clearly held that the object behind enacting the Act is to provide a civil remedy to the victims of domestic violence as against the remedy in criminal law. Therefore the complaint made under sec. 12 of the Act cannot be understood as a complaint made in relation to any other offence, though parallely, the aggrieved party may complain of an offence under sec. 498A IPC being committed in relation to domestic violence that she complains of. It is pertinent to mention here that according to sec. 31(3) of the Act, the Magistrate, while framing charge under sub-sec. (1) for violation of protection order or interim protection order, may frame charges for the offence under sec. 498A or any other provisions of IPC or the offence under Dowry Prohibition Act. Therefore sec. 31 has got a greater amplitude. It is true that Sec. 28 of the Act states that the provisions of Cr.P.C. are applicable for the proceedings under Ss. 12, 18, 19, 20, 21, 22 and 23 and offences under Sec. 31. This sec. itself makes it clear that there are two types of proceedings, one relating to Sec. 12, 18, 19, 20, 21, 22 and 23, and the other relating to offence under sec. 31. From this itself it is possible to understand that a complaint made under Sec. 12 is not with regard to an offence to which limitation as prescribed under sec. 468 of Cr.P.C. can be applied. Sec. 468 Cr.P.C. prescribes limitation based on the length of punishment, that means there must be a penal sec. indicating the punishment that can be awarded. Sec. 12 of the Act does not prescribe any punishment. Sec. 31 of the Act is the only penal sec. for which period of limitation can be applied. Just because sec. 28 envisages that the procedure prescribed in Cr.P.C. are applicable to a proceeding under sec. 12, it does not mean that sec. 468 of Cr.P.C. can be applied. The procedure is applicable for other purposes to conduct the proceedings. Sec. 31 of the Act is the only penal sec. for which period of limitation can be applied. Just because sec. 28 envisages that the procedure prescribed in Cr.P.C. are applicable to a proceeding under sec. 12, it does not mean that sec. 468 of Cr.P.C. can be applied. The procedure is applicable for other purposes to conduct the proceedings. Therefore it is to be concluded now that the whole argument of Sri. H.P. Leeladhar cannot be accepted and hence this petition fails. Accordingly petition is dismissed.