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Thursday, December 17, 2015

whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realization of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the 2005 Act came into force. In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. “Economic abuse” as it has been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which have been reproduced hereinbefore, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal (supra) that Section 498 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act. In the present case, the wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010. In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January 2010 and, therefore, she had been compelled to file the application for stridhan. Regard being had to the said concept of “continuing offence” and the demands made, we are disposed to think that the application was not barred by limitation and the courts below as well as the High Court had fallen into a grave error by dismissing the application being barred by limitation. Consequently, the appeal is allowed and the orders passed by the High Court and the courts below are set aside. The matter is remitted to the learned Magistrate to proceed with the application under Section 12 of the 2005 Act on merits.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO.    1545       OF 2015
                       (@ SLP(Crl) No. 10223 OF 2014)


Krishna Bhatacharjee                   ...   Appellant

                                Versus

Sarathi Choudhury and Anr.             ...   Respondents



                               J U D G M E N T


Dipak Misra, J.


      Leave granted.

2.    The appellant having lost the battle for  getting  her  Stridhan  back
from  her  husband,  the  first  respondent  herein,  before   the   learned
Magistrate on the ground that the claim preferred under Section  12  of  the
Protection of Women from Domestic Violence Act, 2005 (for short,  ‘the  2005
Act’) was not entertainable as she had ceased to be  an  “aggrieved  person”
under Section 2(a) of the 2005 Act and further that the claim as  put  forth
was barred by limitation; preferred an appeal before the learned  Additional
Sessions Judge  who  concurred  with  the  view  expressed  by  the  learned
Magistrate, and being determined to get her lawful claim, she,  despite  the
repeated non-success, approached the High  Court  of  Tripura,  Agartala  in
Criminal Revision No. 19 of 2014 with the hope that she will  be  victorious
in the war to get her own property, but the High Court, as  is  perceivable,
without much analysis, declined  to  interfere  by  passing  an  order  with
Spartan austerity possibly thinking lack of reasoning  is  equivalent  to  a
magnificent virtue and that had led  the  agonised  and  perturbed  wife  to
prefer the present appeal, by special leave.

3.    Prior to the narration of facts which are essential  for  adjudication
of this appeal, we may state that the 2005 Act has been legislated,  as  its
Preamble would reflect, to provide for  more  effective  protection  of  the
rights of the women guaranteed under the Constitution  who  are  victims  of
violence of any kind occurring within the family and for  matters  connected
therewith or incidental thereto.  The  2005  Act  is  a  detailed  Act.  The
dictionary clause of the 2005 Act, which we shall advert to  slightly  at  a
later  stage,  is  in  a  broader  spectrum.  The  definition  of  “domestic
violence” covers a range of violence which takes within its sweep  “economic
abuse” and the words “economic abuse”, as  the  provision  would  show,  has
many a facet.

4.    Regard being had to the nature of the legislation,  a  more  sensitive
approach is expected from the courts where under the 2005 Act no relief  can
be granted, it should never be conceived of but, before throwing a  petition
at the threshold on the ground  of  maintainability,  there  has  to  be  an
apposite discussion and thorough deliberation  on  the  issues  raised.   It
should be borne in mind that helpless and hapless “aggrieved  person”  under
the 2005 Act approaches the court under the compelling circumstances. It  is
the duty of the court to scrutinise the facts  from  all  angles  whether  a
plea advanced by the respondent to nullify the grievance  of  the  aggrieved
person is really legally sound and correct.  The principle “justice  to  the
cause is equivalent to the salt of ocean” should be kept in mind. The  court
of law is bound to uphold the truth which sparkles  when  justice  is  done.
Before throwing a petition at the threshold, it is obligatory  to  see  that
the person aggrieved under such a legislation is not faced with a  situation
of non-adjudication, for the 2005 Act as we have stated is a  beneficial  as
well as  assertively  affirmative  enactment  for  the  realisation  of  the
constitutional rights of women  and  to  ensure  that  they  do  not  become
victims of any kind of domestic violence.

5.    Presently to the narration of the  facts.  The  marriage  between  the
appellant and the respondent No. 1 was solemnised  on  27.11.2005  and  they
lived as husband and wife. As the allegations proceed, there was  demand  of
dowry by  the  husband  including  his  relatives  and,  demands  not  being
satisfied, the appellant was driven out from the matrimonial home.  However,
due to intervention of the elderly people of the locality,  there  was  some
kind of conciliation as a consequence of which  both  the  husband  and  the
wife stayed in a rented house for two months. With the efflux of  time,  the
husband filed a petition  seeking  judicial  separation  before  the  Family
Court and eventually the said prayer  was  granted  by  the  learned  Judge,
Family Court. After the judicial  separation,  on  22.5.2010  the  appellant
filed an application under Section 12 of  the  2005  Act  before  the  Child
Development Protection  Officer (CDPO), O/O the District  Inspector,  Social
Welfare & Social Education,  A.D.  Nagar,  Agartala,  Tripura  West  seeking
necessary help as per the provisions contained in the 2005 Act.  She  sought
seizure of Stridhan  articles  from  the  possession  of  the  husband.  The
application which was made  before  the  CDPO  was  forwarded  by  the  said
authority to the learned Chief Judicial  Magistrate,  Agartala  Sadar,  West
Tripura by letter dated 1.6.2010.  The learned Magistrate issued  notice  to
the respondent who filed his written objections on 14.2.2011.

6.    Before the learned Magistrate it was contended by the respondent  that
the application preferred by the wife was barred by limitation and that  she
could not have  raised  claim  as  regards  Stridhan  after  the  decree  of
judicial separation passed by the competent court.  The  learned  Magistrate
taking  into  consideration  the  admitted  fact  that  respondent  and  the
appellant had entered into wedlock treated her  as  an  “aggrieved  person”,
but opined that no “domestic relationship” as defined under Section 2(f)  of
the 2005 Act existed between  the  parties  and,  therefore,  wife  was  not
entitled to file the application under Section 12  of  the  2005  Act.   The
learned Magistrate came to  hold  that  though  the  parties  had  not  been
divorced but the decree of judicial separation would be  an  impediment  for
entertaining the application and being of  this  view,  he  opined  that  no
domestic relationship subsisted under the 2005  Act  and  hence,  no  relief
could be granted.  Be it stated here that  before  the  learned  Magistrate,
apart from herself, the appellant examined three witnesses and  the  husband
had examined himself as DW-1.  The learned  Magistrate  while  dealing  with
the maintainability of  the  petition  had  noted  the  contentions  of  the
parties as regards merits, but has really not recorded any finding  thereon.

7.    The aggrieved wife preferred criminal appeal No. 6(1)  of  2014  which
has  been  decided  by  the  learned  Additional  Sessions  Judge,  Agartala
holding, inter alia, that the object of the 2005 Act is  primarily  to  give
immediate relief to the victims; that as per the decision of this  Court  in
Inderjit Singh Grewal v. State of Punjab[1] that Section 468 of the Code  of
Criminal Procedure applies to  the  proceedings  under  the  2005  Act  and,
therefore, her application was barred by time.   Being  of  this  view,  the
appellate court dismissed the appeal.
8.    On a revision being preferred, the  High  Court,  as  is  demonstrable
from the impugned order, after referring to the decision in  Inderjit  Singh
Grewal (supra), has stated that the wife had filed  a  criminal  case  under
Section 498(A) IPC in the year 2006 and the husband had  obtained  a  decree
of judicial separation in 2008, and hence, the proceedings  under  the  2005
Act was barred by limitation.  That apart, it has also in  a  way  expressed
the view that the proceedings under the 2005 Act was not maintainable.
9.    In our prefatory note, we have stated  about  the  need  of  sensitive
approach to these kinds of cases. There can be erroneous perception of  law,
but as we find, neither the learned Magistrate nor the appellate  court  nor
the High Court has made any effort to understand and  appreciate  the  stand
of the appellant. Such type of cases and at such stage should not travel  to
this Court. We are compelled to say so as we are of the  considered  opinion
that had the appellate court and the High Court been more vigilant,  in  all
possibility, there could have been adjudication on merits.  Be  that  as  it
may.
10.   The facts that we have  enumerated  as  regards  the  “status  of  the
parties”, “judicial separation” and “the claim  for  Stridhan”  are  not  in
dispute.  Regard being had to the  undisputed  facts,  it  is  necessary  to
appreciate the scheme of the 2005  Act.   Section  2(a)  defines  “aggrieved
person”  which  means  any  woman  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.   Section  2(f)  defines
“domestic relationship” which 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.  Section 2(g) defines the term “domestic violence”  which
has been assigned and given the  same  meaning  as  in  Section  3.     Sub-
section (iv) of Section 3 deals with “economic abuse”.  As in the  facts  at
hand, we are concerned with  the  “economic  abuse”,  we  reproduce  Section
3(iv) which reads as follows:-
“Section 3. Definition of domestic violence.
(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 person 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 an 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.

Explanation II.-For the purpose of determining whether  any  act,  omission,
commission or conduct of  the  respondent  constitutes  "domestic  violence"
under this section, the overall facts and circumstances of  the  case  shall
be taken into consideration.”

11.   Section 8(1) empowers the State Government to appoint such  number  of
Protection Officers in each district as it may consider necessary  and  also
to notify the  area  or  areas  within  which  a  Protection  Officer  shall
exercise the powers and perform the duties conferred on him by or under  the
2005 Act. The  provision,  as  is  manifest,  is  mandatory  and  the  State
Government  is  under  the  legal  obligation  to  appoint  such  Protection
Officers.  Section 12 deals with application  to  Magistrate.   Sub-sections
(1) and (2) being relevant are reproduced below:-
“Section 12.  Application  to  Magistrate.-(1)  An  aggrieved  person  or  a
Protection Officer or any other person on behalf  of  the  aggrieved  person
may present an application to the Magistrate seeking  one  or  more  reliefs
under this Act: Provided that before passing any order on such  application,
the Magistrate shall take into consideration any  domestic  incident  report
received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may  include  a  relief  for
issuance of  an  order  for  payment  of  compensation  or  damages  without
prejudice to the right of such person to institute a suit  for  compensation
or damages for  the  injuries  caused  by  the  acts  of  domestic  violence
committed by the respondent: Provided that where a decree for any amount  as
compensation or damages has been passed  by  any  court  in  favour  of  the
aggrieved person, the amount, if any, paid or payable in  pursuance  of  the
order made by the Magistrate under this Act shall be  set  off  against  the
amount payable under such  decree  and  the  decree  shall,  notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or  any
other law for the time  being  in  force,  be  executable  for  the  balance
amount, if any, left after such set off.”

12.   Section 18 deals with passing of protection orders by the  Magistrate.
Section 19 deals with  the  residence  orders  and  Section  20  deals  with
monetary reliefs.  Section 28 deals with procedure and stipulates  that  all
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences  under
Section 31 shall be governed by the  provisions  of  the  Code  of  Criminal
Procedure, 1973. Section 36 lays down that the provisions of  the  2005  Act
shall be in addition to, and not in derogation  of  the  provisions  of  any
other law, for the time being in force.
13.   Having scanned the anatomy of the 2005 Act, we may now refer to a  few
decisions of this Courts that have dealt with the  provisions  of  the  2005
Act. In V.D. Bhanot  v. Savita Bhanot[2]  the  question  arose  whether  the
provisions of the 2005  Act  can  be  made  applicable  in  relation  to  an
incident that had occurred prior to the coming into force of the  said  Act.
Be it noted, the High  Court  had  rejected  the  stand  of  the  respondent
therein that the provisions of  the  2005  Act  cannot  be  invoked  if  the
occurrence had taken place prior to the coming into force of the  2005  Act.
This Court while dealing with the same referred to the decision rendered  in
the High Court which after considering the constitutional  safeguards  under
Article 21 of the Constitution vis-à-vis the provisions of Sections  31  and
33 of the 2005 Act and after examining the Statement of Objects and  Reasons
for the enactment of the 2005 Act, had held that it was  with  the  view  of
protecting the rights  of  women  under  Articles  14,  15  and  21  of  the
Constitution that Parliament enacted the 2005 Act in order  to  provide  for
some effective protection of rights guaranteed  under  the  Constitution  to
women, who are victims of any kind of violence occurring within  the  family
and matters connected therewith and incidental thereto, and  to  provide  an
efficient and expeditious civil remedy to them and further that  a  petition
under the provisions of the 2005 Act is maintainable even  if  the  acts  of
domestic violence had been committed prior to the coming into force  of  the
said Act, notwithstanding the fact that in the past she had  lived  together
with her husband in a shared household, but was no more living with him,  at
the time when the Act came into force. After analyzing the  verdict  of  the
High Court, the Court concurred with the view expressed by  the  High  Court
by stating thus:-
“We agree with the view expressed by the High Court that in looking  into  a
complaint under Section 12 of the PWD Act, 2005, the conduct of the  parties
even prior to the coming into force of the PWD  Act,  could  be  taken  into
consideration while passing an order under Sections 18, 19 and  20  thereof.
In our view, the Delhi High Court has also  rightly  held  that  even  if  a
wife, who had shared a household in the past, but was  no  longer  doing  so
when the Act came into force, would still be entitled to the  protection  of
the PWD Act, 2005.”

14.   In Saraswathy  v.  Babu[3]  a two-Judge Bench, after referring to  the
decision in V.D. Bhanot   (supra), reiterated the  principle.  It  has  been
held therein:-
“We are of the view that the act of the respondent  husband  squarely  comes
within the ambit of Section 3 of the  DVA,  2005,  which  defines  “domestic
violence” in wide terms. The High Court made an apparent  error  in  holding
that the conduct of the parties prior to the coming into force of  the  DVA,
2005 cannot be taken into consideration while passing an order.  This  is  a
case where the respondent husband  has  not  complied  with  the  order  and
direction passed by the  trial  court  and  the  appellate  court.  He  also
misleads the Court by giving wrong statement before the High  Court  in  the
contempt petition filed by the appellant wife.  The  appellant  wife  having
being harassed since 2000 is entitled for  protection  order  and  residence
order under Sections 18 and 19 of the DVA, 2005 along with  the  maintenance
as allowed by the trial court under  Section  20(1)(d)  of  the  DVA,  2005.
Apart from these reliefs, she is also entitled for compensation and  damages
for the injuries, including mental torture and  emotional  distress,  caused
by the acts of  domestic  violence  committed  by  the  respondent  husband.
Therefore, in addition to the reliefs granted by the courts  below,  we  are
of the view that the appellant wife should be compensated by the  respondent
husband. Hence, the respondent is hereby directed to  pay  compensation  and
damages to the extent of Rs 5,00,000 in favour of the appellant wife.”

15.   In the instant case, as has been indicated earlier, the  courts  below
as well as the High Court have referred to the decision  in  Inderjit  Singh
Grewal (supra).  The said case has to be understood regard being had to  the
factual exposè therein.  The Court  had  referred  to  the  decision  in  D.
Velusamy v.  D.  Patchaiammal[4]  wherein  this  Court  had  considered  the
expression “domestic  relationship”  under  Section  2(f)  of  the  Act  and
judgment  in  Savitaben  Somabhai  Bhatiya  v.  State  of   Gujarat[5]   and
distinguished  the  said  judgments  as  those  cases  related  to   live-in
relationship without marriage.  The Court analyzing  the  earlier  judgments
opined that the couple must hold themselves out to society as being akin  to
spouses in addition to fulfilling  all  other  requisite  conditions  for  a
valid marriage. The said judgments were  distinguished  on  facts  as  those
cases related to live-in relationship without marriage.   The  Court  opined
that the parties therein had got married and the decree of the  civil  court
for divorce  subsisted and that apart a suit to declare  the  said  judgment
and  decree  as  a  nullity  was  still  pending  consideration  before  the
competent court.  In that background, the Court ruled that:-
“In the facts and circumstances of the case, the submission made  on  behalf
of Respondent 2 that the judgment and  decree  of  a  civil  court  granting
divorce is null and void and they continued to  be  the  husband  and  wife,
cannot be taken note of at this stage unless the suit filed by Respondent  2
to declare the said judgment and decree dated 20-3-2008 is  decided  in  her
favour. In view thereof,  the  evidence  adduced  by  her  particularly  the
record of the telephone calls, photographs attending a wedding together  and
her  signatures  in  school  diary  of  the  child  cannot  be  taken   into
consideration so long  as  the  judgment  and  decree  of  the  civil  court
subsists. On a similar footing, the contention advanced by her counsel  that
even after the decree  of  divorce,  they  continued  to  live  together  as
husband and  wife  and  therefore  the  complaint  under  the  2005  Act  is
maintainable, is not worth acceptance at this stage.”
                                                         [Emphasis supplied]

16.   It may be noted that a  submission  was  advanced  by  the  wife  with
regard to the applicability of Section 468 CrPC.   While  dealing  with  the
submission on the issue of limitation, the Court opined:-

“...... in view of the provisions of Section 468 CrPC,  that  the  complaint
could be filed only within a period  of  one  year  from  the  date  of  the
incident seem to be preponderous in view of the provisions  of  Sections  28
and 32 of the 2005 Act read with Rule 15(6) of the Protection of Women  from
Domestic Violence Rules, 2006 which make the provisions of  CrPC  applicable
and stand fortified by the judgments  of  this  Court  in  Japani  Sahoo  v.
Chandra Sekhar Mohanty, (2007) 7 SCC 394,  and NOIDA Entrepreneurs Assn.  v.
NOIDA,  (2011) 6 SCC 508.”

17.   As it appears, the High Court has referred to the same  but  the  same
has really not been adverted.  In fact, it is not  necessary  to  advert  to
the said aspect in the present case.
18.   The core issue that is  requisite  to  be  addressed  is  whether  the
appellant has ceased to be an “aggrieved person” because of  the  decree  of
judicial separation.  Once the decree of divorce is passed,  the  status  of
the parties becomes different, but that is not so when  there  is  a  decree
for judicial separation. A three-Judge Bench in Jeet Singh  and  Others  Vs.
State of U.P. and Others[6] though in a different context, adverted  to  the
concept of judicial  separation  and  ruled  that  the  judicial  separation
creates  rights  and  obligations.  A  decree  or  an  order  for   judicial
separation permits the parties to live apart. There would be  no  obligation
for either party to cohabit with the other. Mutual  rights  and  obligations
arising out of a marriage are suspended. The decree however, does not  sever
or dissolve the marriage. It affords an opportunity for  reconciliation  and
adjustment. Though judicial separation after a certain period may  become  a
ground for divorce, it is not necessary and the parties  are  not  bound  to
have recourse to that remedy and the parties can live keeping  their  status
as wife and husband till their lifetime.
19.   In this regard, we may fruitfully refer to the authority in  Hirachand
Srinivas Managaonkar  v.   Sunanda[7]  wherein  the  issue  that  arose  for
determination was whether the husband  who  had  filed  a  petition  seeking
dissolution of the marriage by a decree of divorce under Section  13(1-A)(i)
of the Hindu  Marriage Act, 1955 can be declined relief on the  ground  that
he had failed to pay maintenance for his wife and daughter despite an  order
of the court. The husband was appellant before this Court and had  filed  an
application under Section 10 of the Hindu Marriage  Act,  1955  for  seeking
judicial separation on the ground of adultery on the part of the  appellant.
Thereafter,  the  appellant  presented  the  petition  for  dissolution   of
marriage by decree  of  divorce  on  the  ground  that  there  has  been  no
resumption of cohabitation as between the parties  to  the  marriage  for  a
period of more than one year  after  passing  of  the  decree  for  judicial
separation. The stand of the wife was that the appellant  having  failed  to
pay the maintenance as ordered by the court, the petition for divorce  filed
by the husband was liable to be rejected  inasmuch  he  was  trying  to  get
advantage of his  own  wrong  for  getting  the  relief.    The  High  Court
accepted the plea of the wife  and  refused  to  grant  the  prayer  of  the
appellant seeking divorce. It was contended before this Court that the  only
condition  for  getting  divorce  under  Section  13(1-A)(i)  of  the  Hindu
Marriage Act, 1955 is that there has  been  no  resumption  of  cohabitation
between the parties to the marriage for a period  of  one  year  or  upwards
after the passing of the decree for judicial separation in a  proceeding  to
which both the  spouses  are  parties.   It  was  urged  that  if  the  said
condition is satisfied the court is required to pass a  decree  of  divorce.
On behalf of the wife, the said submissions were resisted on the score  that
the husband had been living in continuous adultery  even  after  passing  of
the decree of judicial separation and had reasonably failed to maintain  the
wife and daughter.  The Court proceeded to analyse Section             13(1-
A)(i) of the Hindu Marriage Act, 1955. Analysing the  provisions  at  length
and speaking about judicial separation, it expressed that after  the  decree
for judicial separation was passed on the petition filed by the wife it  was
the duty of both the spouses to do their part for cohabitation. The  husband
was expected to act as a dutiful husband towards the wife and the  wife  was
to act as a devoted wife towards the husband. If this concept  of  both  the
spouses  making  sincere  contribution  for  the   purpose   of   successful
cohabitation after a judicial separation is ordered then it  can  reasonably
be said that in the facts and circumstances  of  the  case  the  husband  in
refusing to pay maintenance to the wife failed to act as a husband.  Thereby
he committed a “wrong”  within  the  meaning  of  Section  23  of  the  Act.
Therefore, the High Court was justified in declining to allow the prayer  of
the husband for dissolution of the marriage by divorce under  Section  13(1-
A) of the Act.
20.   And, the Court further stated thus:-
“... The effect of the decree is that certain mutual rights and  obligations
arising from the marriage are as  it  were  suspended  and  the  rights  and
duties prescribed in the decree are substituted  therefor.  The  decree  for
judicial separation does not  sever  or  dissolve  the  marriage  tie  which
continues  to  subsist.  It  affords  an  opportunity  to  the  spouse   for
reconciliation and readjustment. The decree may fall by  a  conciliation  of
the parties in which case the rights of the respective parties  which  float
from the marriage and were suspended are restored. Therefore the  impression
that Section 10(2) vests a right in the petitioner  to  get  the  decree  of
divorce notwithstanding the fact that  he  has  not  made  any  attempt  for
cohabitation with the respondent and has even acted in a  manner  to  thwart
any move for cohabitation does not flow from a reasonable interpretation  of
the statutory provisions. At the cost of repetition it may  be  stated  here
that the  object  and  purpose  of  the  Act  is  to  maintain  the  marital
relationship between the spouses and  not  to  encourage  snapping  of  such
relationship.”

21.   It is interesting to note that  an  issue  arose  whether  matrimonial
offence of adultery had  exhausted  itself  when  the  decree  for  judicial
separation was granted and, therefore, it cannot be said that it  is  a  new
fact or circumstance amounting to wrong which will stand as an  obstacle  in
the way of the husband to obtain the relief which he claims in  the  divorce
proceedings.  Be it stated that reliance  was  placed  on  the  decision  of
Gujarat High Court in Bai Mani v. Jayantilal Dahyabhai[8].  This  Court  did
not accept the contention by holding that living in adultery on the part  of
the husband is a continuing matrimonial offence, and it does not get  frozen
or wiped out merely on passing of a decree  for  judicial  separation  which
merely suspends certain duties and obligations of the spouses in  connection
with their marriage and does not snap the matrimonial tie. The  Court  ruled
that the decision of the Gujarat High Court does not lay  down  the  correct
position of law. The Court approved the principle stated by the Madras  High
Court in the case of Soundarammal v. Sundara Mahalinga Nadar[9] in  which  a
Single Judge had taken the view that the husband who continued  to  live  in
adultery even after decree at the instance of the wife could not succeed  in
a petition seeking decree for divorce and that Section 23(1)(a)  barred  the
relief.
22.   In view of the aforesaid pronouncement, it is quite clear  that  there
is a distinction between  a  decree  for  divorce  and  decree  of  judicial
separation; in the former, there is a severance of status  and  the  parties
do not remain as husband and wife, whereas in the latter,  the  relationship
between husband and wife continues and the legal relationship  continues  as
it has not been snapped.  Thus  understood,  the  finding  recorded  by  the
courts below which have been concurred by the High Court  that  the  parties
having been judicial separated, the appellant  wife  has  ceased  to  be  an
“aggrieved person” is wholly unsustainable.
23.   The  next  issue  that  arises  for  consideration  is  the  issue  of
limitation. In the application preferred by the wife, she  was  claiming  to
get back her stridhan.  Stridhan has been  described  as  saudayika  by  Sir
Gooroodas Banerjee in “Hindu Law of  Marriage  and  Stridhan”  which  is  as
follows:-
“First, take the case of property obtained by gift.  Gifts  of  affectionate
kindred, which are known by the name of  saudayika  stridhan,  constitute  a
woman’s absolute property, which she has at all times independent  power  to
alienate, and over which her husband has only  a  qualified  right,  namely,
the right of use in times of distress.”

24.   The said passage, be it noted, has been quoted Pratibha Rani v.  Suraj
Kumar and Another[10]. In the  said  case,  the  majority  referred  to  the
stridhan as described in “Hindu Law” by   N.R.  Raghavachariar  and  Maine’s
“Treatise on Hindu Law”. The  Court  after  analyzing  the  classical  texts
opined that:-
”It is, therefore, manifest  that  the  position  of  stridhan  of  a  Hindu
married  woman’s  property  during  coverture  is   absolutely   clear   and
unambiguous; she is the absolute owner of such property and  can  deal  with
it in any manner she likes — she may spend the whole of it or give  it  away
at her own pleasure by gift or will without any reference  to  her  husband.
Ordinarily, the husband has no  right  or  interest  in  it  with  the  sole
exception that in times of extreme distress, as in famine,  illness  or  the
like, the husband can utilise it but he is morally bound to  restore  it  or
its value when he is able to do so. It may be further noted that this  right
is purely personal to the husband and the property so  received  by  him  in
marriage cannot be proceeded against even  in  execution  of  a  decree  for
debt.”

25.   In the said case, the Court ruled:-
“... a pure and simple entrustment of stridhan without creating  any  rights
in the husband excepting putting the articles in  his  possession  does  not
entitle him to use the same  to  the  detriment  of  his  wife  without  her
consent. The husband  has  no  justification  for  not  returning  the  said
articles as and when demanded by the wife nor can he burden her with  losses
of business by using the said property  which  was  never  intended  by  her
while  entrusting  possession  of  stridhan.  On  the  allegations  in   the
complaint, the husband is no more  and  no  less  than  a  pure  and  simple
custodian acting on behalf of his wife  and  if  he  diverts  the  entrusted
property elsewhere or for different  purposes  he  takes  a  clear  risk  of
prosecution under Section 406 of the IPC. On a parity of  reasoning,  it  is
manifest that the husband, being only a custodian of  the  stridhan  of  his
wife, cannot be said to be in joint possession thereof and  thus  acquire  a
joint interest in the property.”

26.   The decision rendered in the said case was referred for a  fresh  look
by a three-Judge Bench. The three-Judge Bench Rashmi Kumar (Smt)  v.  Mahesh
Kumar Bhada[11] while considering the issue in the said case, ruled that :-

“9. A woman’s power of disposal, independent of her  husband’s  control,  is
not confined to saudayika but extends to other properties  as  well.  Devala
says: “A  woman’s  maintenance  (vritti),  ornaments,  perquisites  (sulka),
gains (labha), are her stridhana. She herself has  the  exclusive  right  to
enjoy it. Her husband has no right to use it except in distress….”  In  N.R.
Raghavachariar’s Hindu Law — Principles and Precedents,  (8th  Edn.)  edited
by Prof. S. Venkataraman, one of the renowned Professors of Hindu  Law  para
468 deals with “Definition of Stridhana”. In para 469 dealing with  “Sources
of acquisition” it is stated that the sources of acquisition of property  in
a woman’s possession  are:  gifts  before  marriage,  wedding  gifts,  gifts
subsequent to marriage etc. Para 470 deals with “Gifts to  a  maiden”.  Para
471 deals with “Wedding gifts” and it  is  stated  therein  that  properties
gifted at the time of  marriage  to  the  bride,  whether  by  relations  or
strangers, either Adhiyagni or Adhyavahanika, are the bride’s stridhana.  In
para 481 at page 426, it is stated that ornaments presented to the bride  by
her husband or  father  constitute  her  Stridhana  property.  In  para  487
dealing with “powers during coverture” it is stated that  saudayika  meaning
the gift of affectionate kindred, includes both Yautaka  or  gifts  received
at the time of marriage as well as its  negative  Ayautaka.  In  respect  of
such property, whether given by gift or will she is the absolute  owner  and
can deal with it in any way she likes. She may spend, sell or give  it  away
at her own pleasure.

10. It is thus clear that the properties gifted to her before the  marriage,
at the time of marriage or at the time of giving farewell or thereafter  are
her stridhana properties. It is her absolute property  with  all  rights  to
dispose at her own pleasure. He has no control over her stridhana  property.
Husband may use it during the time of his distress but nonetheless he has  a
moral obligation to restore the same or its value to  his  wife.  Therefore,
stridhana property does not become a joint property  of  the  wife  and  the
husband and the husband has  no  title  or  independent  dominion  over  the
property as owner thereof.”

27.   After so stating the Court proceeded to rule that  stridhana  property
is the exclusive property of the  wife  on  proof  that  she  entrusted  the
property or dominion over the stridhana  property  to  her  husband  or  any
other member of the family, there  is  no  need  to  establish  any  further
special agreement to establish that the property was given  to  the  husband
or other member of the family.  Further,  the  Court  observed  that  it  is
always a question of fact in each case as to how the  property  came  to  be
entrusted to the husband or any other member of the family by the wife  when
she left the matrimonial home or was driven out therefrom.  Thereafter,  the
Court adverted to the concept of entrustment and eventually  concurred  with
the view in the case of Pratibha Rani (supra). It is necessary to note  here
that the question  had  arisen  whether  it  is  a  continuing  offence  and
limitation could begin to run everyday lost its relevance in the said  case,
for the Court on scrutiny came to hold that the complaint preferred  by  the
complainant for the  commission  of  the  criminal  breach  of  trust  under
Section 406 of the Indian Penal Code was within limitation.
28.   Having appreciated the concept of Stridhan, we shall  now  proceed  to
deal with the meaning of “continuing  cause  of  action”.   In  Raja  Bhadur
Singh v. Provident Fund Inspector and Others[12]  the  Court  while  dealing
with the continuous offence opined that the expression “continuing  offence”
is not defined in the Code but that is because the expressions which do  not
have a fixed connotation or a static import are difficult to  define.    The
Court referred to the  earlier  decision  in  State  of  Bihar  v.  Deokaran
Nenshi[13] and reproduced a passage from the same which is to the  following
effect:-
“A continuing offence is one which is  susceptible  of  continuance  and  is
distinguishable from the one which is committed once and for all. It is  one
of those offences which arises out of a failure to obey  or  comply  with  a
rule or its requirement and which involves  a  penalty,  the  liability  for
which continues until the rule or its  requirement  is  obeyed  or  complied
with. On every occasion that such disobedience or non-compliance occurs  and
reoccurs, there is the offence committed. The distinction  between  the  two
kinds of offences is  between  an  act  or  omission  which  constitutes  an
offence once and for all  and  an  act  or  omission  which  continues,  and
therefore, constitutes a fresh offence every time or occasion  on  which  it
continues.  In  the  case  of  a  continuing  offence,  there  is  thus  the
ingredient of continuance of the offence which is absent in the case  of  an
offence which takes place when an act or omission is committed once and  for
all.”

29.    The Court further observed :-
“This passage shows that apart from saying that a continuing offence is  one
which continues and a non-continuing offence is one which is committed  once
and for all, the Court found it difficult to explain as to when  an  offence
can be described as a continuing offence. Seeing that difficulty, the  Court
observed that  a  few  illustrative  cases  would  help  to  bring  out  the
distinction between a continuing offence and a non-continuing  offence.  The
illustrative cases referred to by the Court  are  three  from  England,  two
from Bombay and one from Bihar.”

30.    Thereafter, the Court referred to the  authorities  and  adverted  to
Deokaran Nenshi (supra) and eventually held:-
“The question whether a particular offence  is  a  continuing  offence  must
necessarily depend upon the language  of  the  statute  which  creates  that
offence, the nature of the offence and, above  all,  the  purpose  which  is
intended  to  be  achieved  by  constituting  the  particular  act   as   an
offence...”

31.   Regard being had to the aforesaid statement of law,  we  have  to  see
whether retention of stridhan by the husband or any other family members  is
a continuing offence or not.  There can be no dispute that wife can  file  a
suit for realization of the stridhan but it does not debar her  to  lodge  a
criminal complaint for criminal breach of trust.  We  must  state  that  was
the situation before the 2005 Act came into force.  In  the  2005  Act,  the
definition of “aggrieved person” clearly postulates about the status of  any
woman who has been subjected to domestic violence as defined  under  Section
3 of the said Act.  “Economic abuse” as  it  has  been  defined  in  Section
3(iv) of the said Act has a large canvass.  Section 12, relevant portion  of
which  have  been  reproduced  hereinbefore,  provides  for  procedure   for
obtaining orders of reliefs.  It has been  held  in  Inderjit  Singh  Grewal
(supra) that Section 498 of the Code of Criminal Procedure  applies  to  the
said case under the 2005 Act as envisaged under Sections 28 and  32  of  the
said Act read with Rule 15(6) of  the  Protection  of  Women  from  Domestic
Violence Rules, 2006.   We need not advert to the same  as  we  are  of  the
considered opinion that as long  as  the  status  of  the  aggrieved  person
remains and stridhan remains in the custody of the  husband,  the  wife  can
always put forth her claim  under  Section  12  of  the  2005  Act.  We  are
disposed to think so as the  status  between  the  parties  is  not  severed
because  of  the  decree  of  dissolution  of  marriage.  The   concept   of
“continuing  offence”  gets  attracted  from  the  date  of  deprivation  of
stridhan, for neither the husband nor any other family members can have  any
right over the stridhan and they remain the custodians.  For the purpose  of
the 2005 Act, she can submit an application to the  Protection  Officer  for
one or more of the reliefs under the 2005 Act.  In  the  present  case,  the
wife had submitted the application on 22.05.2010 and the said authority  had
forwarded  the  same  on  01.06.2010.  In  the  application,  the  wife  had
mentioned that the husband had stopped payment of monthly  maintenance  from
January 2010 and, therefore, she had been compelled to file the  application
for stridhan. Regard being had to the said concept of  “continuing  offence”
and the demands made, we are disposed to think that the application was  not
barred by limitation and the courts below as well  as  the  High  Court  had
fallen into a grave error by dismissing  the  application  being  barred  by
limitation.
32.   Consequently, the appeal is allowed and the orders passed by the  High
Court and the courts below are set aside.  The matter  is  remitted  to  the
learned Magistrate to proceed with the application under Section 12  of  the
2005 Act on merits.


                                             .............................J.
                                                               [Dipak Misra]



                                             ..........................., J.
                                                          [Prafulla C. Pant]
New Delhi
November 20, 2015

-----------------------
[1]    (2011) 12 SCC 588
[2]    (2012) 3 SCC 183
[3]    (2014) 3 SCC 712
[4]    (2010) 10 SCC 469
[5]     (2005) 3 SCC 636
[6]    (1993) 1 SCC 325
[7]    (2001) 4 SCC 125
[8]    AIR 1979 Guj 209
[9]    AIR 1980 Mad 294
[10]   (1985) 2 SCC 370
[11]   (1997) 2 SCC 397
[12]   (1984) 4 SCC 222
[13]   (1972) 2 SCC 890

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