Shailendra & Others vs Smt. Manisha

This application under Section 482 of Criminal Procedure Code 1973 has been filed calling in question the order dated 06.05.2016 passed by Additional

Chief Judicial Magistrate (ACJM), Indore in MJC No.353/2014 by which the application filed the respondent under Section 12 of Protection of

Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'Act of 2005') has been entertained and cognizance has been taken.

It is submitted by counsel for the applicants that the respondent was married to the applicant No.1 on 27.11.2011 at Indore. Thereafter, on 02.04.2012

she left her matrimonial house and filed a complaint under Section 12 of the Act of 2005 sometime in the month of July 2014 against the applicants.

Since the maximum sentence provided under Section 31 of the Act of 2005 is one year and, since the complaint was filed after the expiry of more

than two years from the date when she left her matrimonial house, therefore the complaint/application filed by the respondent under Section 12 of the

Act of 2005 claiming reliefs under different provisions of the Act of 2005, is barred by limitation. Counsel for the applicants submitted that the

provision of Section 468 of Criminal Procedure Code, 1973 would apply and the maximum sentence under Section 31 of the Act of 2005 is only one

year, therefore any complaint filed after one year from the date of the incident of domestic violence under the Act of 2005 would be barred by

limitation. He further submitted that since a person can be held guilty under Section 31 of the Act of 2005 for not obeying any protection order passed

under the provisions of the Act of 2005 and therefore provision of Section 31 should be interpreted that the limitation would apply from the date of last

date of last incident of domestic violence and not from the date of prosecution for offence under Section 31 of the Act of 2005 as the protection order

is the consequence of domestic violence suffered by the aggrieved person.

Heard counsel for the applicants.

Section 31 of the Domestic Violence Act, 2005 reads as under:

Penalty for breach of protection order by respondent.â€

(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 had 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 Magistrates may also frame charges under section 498A 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.

It is submitted by counsel for the applicants that the provisions of Section 468 of Criminal Procedure Code would apply to the proceeding under the

Act of 2005 and to buttress his submission, the counsel has placed reliance on the judgment of Supreme Court passed in the case of Inderjit Singh vs

State of Punjab and Another reported in 2012 Cr.LJ. SC 309.

Heard the learned counsel for the applicants.

Section 31 of the Act of 2005 provides for penalty for the breach of protection order or of an interim protection order by the “respondent†which

is punishable with imprisonment. Therefore, in order to attract the provisions of Section 31 of the Act of 2005, passing of a protection order is the sine

qua non and without there being any protection order under the Act of 2005, Section 31 of Act of 2005 cannot be pressed into service.

The cause of action for prosecution under Section 31 of Act of 2005 would arise only after protection order is breached. The complaint filed by the

respondent/aggrieved person, under Section 12 of Act of 2005 was on the basis of domestic violence, thus it cannot be said that Section 31 of the Act

of 2005 would govern the period of limitation for the purposes of filing the application under Section 12 of the Act of 2005. In the case of VD Bhanot

vs. Savita Bhanot reported in (2012) 3 SCC 183 it has been held by the Supreme Court as under: Para 13 and 14 of the judgment reads as under:

On facts it may be noticed that the couple has no children. Incidentally, the Respondent wife is at present residing with her old parents, after she

had to vacate the matrimonial home, which she had shared with the Petitioner at Mathura, being his official residence, while in service. After more

than 31 years of marriage, the Respondent wife having no children, is faced with the prospect of living alone at the advanced age of 63 years, without

any proper shelter or protection and without any means of sustenance except for a sum of Rs.6,000/- which the Petitioner was directed by the

Magistrate by order dated 8th December, 2006, to give to the Respondent each month. By a subsequent order dated 17th February, 2007, the

Magistrate also passed a protection-cum-residence order under Sections 18 and 19 of the PWD Act, protecting the rights of the Respondent wife to

reside in her matrimonial home in Mathura. Thereafter, on the Petitioner's retirement from service, the Respondent was compelled to vacate the

accommodation in Mathura and a direction was given by the Magistrate to the Petitioner to let the Respondent live on the 1st Floor of House No.D-

279, Nirman Vihar, New Delhi, and if that was not possible, to provide a sum of Rs.10,000/- per month to the Respondent towards rental charges for

acquiring an accommodation of her choice.

14 . In our view, the situation comes squarely within the ambit of Section 3 of the PWD Act, 2005, which defines ""domestic violence"" in wide terms,

and, accordingly, no interference is called for with the impugned order of the High Court.

However, considering the fact that the couple is childless and the Respondent has herself expressed apprehension of her safety if she were to live

alone in a rented accommodation, we are of the view that keeping in mind the object of the Act to provide effective protection of the rights of women

guaranteed under the Constitution, who are victims of violence of any kind occurring within the family, the order of the High Court requires to be

modified.

It is also the case of the respondent that she has been compelled to live separately and thus the action of the applicants would be squarely covered

within the ambit of Section 3 of the Act of 2005. Thus, this Court is of the considered that in absence of any specific provision for limitation for filing

application under Section 12 of the Act of 2005, the provision of Section 31 of Act of 2005 cannot be pressed in service and it cannot be said that

since the penalty under Section 31 of the Act of 2005 would be a consequence of domestic violence committed by the respondent, therefore, it has to

be held that limitation for filing the complaint under Section 12 of the Act of 2005 is one year from the date of last incident of domestic violence

committed against the respondent.

So far as the submissions made by counsel for the applicants with regard to the applicability of Section 468 of Criminal Procedure Code is concerned,

since the question with regard to maintainability of proceedings under Section 31 of the Act of 2005 has not arisen, therefore, there is no need to

consider that whether the provision of Section 468 of Criminal Procedure Code, would be applicable or not in relation to the proceedings under Section

31 of the Domestic Violence Act, 2005.

In the considered opinion of this Court, the provisions of Section 31 of the Act of 2005 cannot be considered for holding the complaint filed by the

respondent under Section 12 of the Act of 2005 and complaint cannot be held to be barred by limitation. Accordingly, the order dated 06.05.2016

passed by Additional Chief Judicial Magistrate (ACJM), Indore, in MJC No.353/2014 by which the preliminary objection filed by the applicants was

dismissed is hereby affirmed.

Accordingly, this application fails and is hereby dismissed.