Aabid Khan And Ors. vs Smt. Rizwana

The husband is aggrieved by dismissal of his application that the petition preferred by his wife/respondent under Section 12 of the Protection of women from Domestic Violence Act, 2005 (for short DV Act) is barred by limitation. Admittedly, respondent wife has left the house of her husband on 10/09/2013 and since then she is residing with her parents and the petition u/Section 12 of the DV Act is preferred by her on 16/03/2017 i.e. after almost 3 ½ years.

The application of the petitioner was dismissed by the Judicial Magistrate observing that after taking cognizance, it has no authority to dismiss the complaint. The appellate Court was of the view that the domestic violence is a continuing offence, therefore, limitation does not apply in such cases.

Learned counsel for the respondent has submitted that she has preferred the application under Section 12 of the DV Act to seek the reliefs provided under Section 18 to 22 of the Act and there is no limitation prescribed for such reliefs.

In the case of Yogesh Anantrai Bhatt & others versus State of Gujarat & other 2016 SCC OnLine Guj 2398 the Gujarat High Court has held that the provisions of limitation as provided under Section 468 Cr.P.C. would not be applicable in case of an application under Section 12 of the Act. Para 13 of the aforesaid judgment reads as under:-

"13. Therefore, any other decision, even if it is 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. Therefore, when the respondent is simply seeking various reliefs contemplated by the DV Act, unless those reliefs are granted and only if such order is violated, the respondent may not have to invoke provisions of section 31 of the DV Act and at that stage only question of limitation would arise and thereby respondent may not be entitled to invoke provisions of section 31 of the DV Act seeking punishment by way of sentencing the otherside for breach of any such order after a period of one year from the date of violation of any such order. 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."

Allahabad High Court has taken the similar view in the case of Santosh Kumar Yadav and five others vs. State of U.P. and another : 2015 (5) ALJ 466. It has been held that an application under Section 12 of the Act is not a complaint of an offence for filing of which a limitation is provided under Section 468 Cr.P.C. read with Section 28 of the DV Act. Relevant para 8 of this judgement reads thus:-

"8. It would be worthwhile to observe that Section 468 of the Code of Criminal Procedure provides that except as otherwise provided elsewhere in the Code, no Court shall take cognizance of an offence after the expiry of the period of limitation. Clause (b) of sub section (2) of section 468 of the Code provides that the period of limitation shall be one year, if the offence is punishable with imprisonment for a term not exceeding one year. Section 31 of the D.V. Act provides that a breach of protection order or of an interim protection order by the respondents shall be an offence under the Act punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs. 25,000/- or with both. Since an offence punishable under section 31 of the D.V. Act, 2005 is punishable with a maximum sentence of one year, the limitation to file a complaint seeking prosecution for an offence punishable under section 31 of the D.V. Act would be one year."

Thus it is clear that the D.V. Act is a social welfare legislation and proceedings under the Act are civil in nature. In statement of Objects and Reasons of D.V. Act itself, it has been stated that this enactment is to provide for a remedy under civil law with intent to protect the women from being victimize of domestic violence and to prevent the recurrence of domestic violence in the society. D.V. Act does not provide any limitation for filing an application or complaint under Section 12 of Domestic Violence Act. There is no penal provision in the DV Act except the punishment provided under Section 31 of the Act, but it comes into play only when the relief order is disobeyed. Section 31 provides 1 year imprisonment for breach of order passed under the DV Act,2005. Here only Section 468 comes into operation and makes the petition barred by limitation as the limitation provided for such offences is one year. In the case in hand; the petition is preferred under Sections 18-22 of the DV Act and not under Section 31 of the DV Act, therefore, it cannot be treated as barred by limitation.

The contentions raised by the petitioner have no substance. No case is made out to interfere in the impugned order. The petition being sans merits, stands dismissed and disposed off.