High Court of Gujarat At Ahmedabad
BENCH- S.G. SHAH J.
Yogesh Anantrai Bhatt & Ors. Vs. State of Gujarat Ors
Criminal Revision Application (Against Order Passed by Subordinate Court) No. 611 of 2015 Decided On: 29 July 2016
This case law is about the period of limitation for filing complaint under Section 12 of the Domestic Violence Act, 2005 and seeking relief under sections (18-22) of the same act.
FACTS OF THE CASE
- In the present matter the wife (respondent no.2 ) had filed a complaint against the husband (Petitioner no.2, also the original accused in the complaint) and his family members (Petitioner no. 1,3,4 & 5) under section 12 of the Protection of Women From Domestic Violence Act, 2005 before the Chief Judicial Magistrate of Navsari at Navsari on 20/2/2013.
- Initially the Court has issued notice to the petitioners (being respondents-accused) in such complaint which was dismissed by an order dated 22/4/2015.
- While rejecting the complaint the trial court has allowed the an application preferred by the present petitioners contending that when the complainant is admitting that she has left their house on 17/6/2007 and when the complaint is filed in the year 2013, it is barred by limitation as provided under section 468 of the Criminal Procedure Code .
- The judgment was challenged by the wife in Criminal Appeal No. 43/2015, the Sessions Judge of Navsari, has by his impugned judgment dated 11/9/2015, while allowing the appeal, quashed and set aside the order dated 22/4/2015 and ordered to restore the complaint and to decide it in accordance with law.
- This order was further challenged and revision application was filed. Eventually the matter came before the High Court of Gujarat.
OBSERVATION OF THE COURT
While observing the matter the Court identified some issues. The issues before the Court are as such:
- Since ,the wife filed the complaint after 6 years ,whether the provisions of Section 468 of the Criminal Procedure Code would be applicable here?
- Whether the relief under Sections (18-22) of the DV Act, 2005 are also subject to the limitation provided under Section 468 of the Criminal Procedure Code?
- Whether the provision of section 31 can be invoked while dealing with the issue of limitation with reference to section 12 and sections 18-22 of the DV Act?
After going through various judgments the Court observed that :
The court took reference of Shalini v. Kishore reported AIR 2015 SC 2605 where the apex court while dealing with the issue of limitation for the proceedings against domestic violence, held that complaint even made after 15 years from the date of separate living by the couple, is not liable to be dismissed if cause of action survives.Hence in the present matter the provision of section 468 of the CrPC are not applicable.
Further the Court observed that the legislation has made personal and social obligation of a husband as a legal obligation to maintain his wife and to provide other benefits as indicated under sections 18 to 22 of the DV Act, for which cause of action is certainly a continuous one and, therefore, there cannot be restriction of limitation in seeking basic requirement.
The Court also observed that it is certain that if there is a breach of an order in an application under section 12 or any of the reliefs under sections 18 to 22 then and then only the provision of Section 31 can be invoked and an application under section 31 is to be filed within one year from the date of such breach and not thereafter, and thereby it cannot be said that an applications under section 12 for reliefs under sections 18 to 22 are also required to be filed within a period of 12 months because in that case, when there is no penal provision, there is no reason to consider limitation at all.
JUDGMENT /RULING
The Hon’ble Court dismissed the Revision Application by stating that there was no substance in the Revision Application . The court while dismissing the application considered the following:
- The Court relied on the V.D. Bhanot vs. Savita Bhanot the Hon’ble Supreme Court, while dealing with the provisions of the DV Act, held that even if wife who had shared household in past, but no longer continued to do so when the Act came into force, would still be entitled to the protection of the DV Act. Thereby, the Hon’ble Supreme Court has directed the husband to give back his house to the wife though complaint was filed beyond the period of one year in as much as they were living separately from 4/7/2005, whereas complaint was filed on 29/11/2006. The Hon’ble Supreme Court has also confirmed other orders of maintenance, etc., and thereby the Hon’ble Supreme Court has confirmed that the provisions of DV Act can be applicable retrospectively irrespective of limitation.
- The Court further relied on Krishna Bhatacharjee v. Sarathi Choudhary 2015 AIR SCW 6386 the Hon’ble Supreme Court said that It is clear and obvious that an application under section 12 of the DV Act was preferred by the wife and while dealing with the issue of limitation, the Hon’ble Supreme Court has considered that bar of limitation would not be applicable to the application filed under section 12 of the DV Act because the concept of continuing offencegets attracted in such cases if at all an application for maintenance is to be treated as an offence because of criminal proceedings.
- The Hon’ble Court is of the view that remedy available under sections 18 to 22 of the DV Act by filing an application under section 12 of the DV Act is applicable even if the offence of domestic violence was committed prior to coming into force of the DV Act. Therefore, if the aggrieved person has been in a domestic relationship at any point of time even prior to coming into force of the DV Act and was subjected to domestic violence even before commencement of the DV Act, he is entitled to invoke remedial measures provided under the DV Act.”
- While dealing with the issue of limitation with reference to DV Act it is to be clarified that it may be applicable only in case of proceedings under section 31 of the DV Act since sub-section [1] of section 31 contemplates punishment in the event of breach of the order under such Act. Therefore, provisions of section 31 of the DV Act do not come into play till an order in an application under section 12 is passed and till the same is breached.
- Practically the provisions of section 31 [1] of the DV Act is similar to the provisions of section 125 [3] of the Code and, therefore, like an application for maintenance under section 125 of the Code, it cannot be barred by limitation and an application under section 12 of the DV Act is not subject to limitation as contemplated by the petitioners.
CONCLUSION
On basis of the above judgment it can be concluded that the proceedings under the Section 12 of the Domestic Violence Act are not barred by the limitation period. Also there is no question of limitation while seeking relief order under the sections 18-22 of the DV Act, 2005. The provision of Section 31 of the DV Act can be invoked only when there is breach of order in an application under section 12 of the DV Act. It can also be concluded that the above matter is a relevant matter while deciding the issue of limitation under the Domestic Violence proceedings.
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