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
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
