IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.41318 of 2016
Arising Out of PS.Case No. -110 Year- 2015 Thana -DOMESTIC VIOLENACE District- PATNA
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Santosh Kumar, son of Sri Siyaram Mandal, resident of House No.241/2/5
Govindpur Housing Colony Chota Govindpur (Jamshedpur), P.S.-Chota
Goovindpur, District-East Singhbhum (Jharkhand) at present residing at BHEL RC
Puram Lingampally Hyderabad, P.S.-Lingampally, District-Hyderabad, State of
Telangana (at present).
.... .... Petitioner
Versus
1. The State of Bihar
2. Neha Kumari, Daughter of Sri Rameshwar Prasad, resident of Purnendu Nagar,
Plot No. E/3/3, Near Shiv Mandir, Adjacent house of Baby Niwas,
P.S.-Phulwarisharif, District-Patna.
.... .... Opposite Parties
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Appearance :
For the Petitioner/s : Mr. Dinu Kumar, Advocate
Mr. Swapnil Kumar, Advocate
For the Opposite Party no.2 : Mr. Baijnath Thakur, Advocate
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
C.A.V. JUDGMENT
Date: 06-10-2017
This application under Section 482 of the Code of
Criminal Procedure (for short „Cr.P.C.‟) has been filed by the
petitioner for quashing the entire proceeding of Domestic Violence
Case No. 110 of 2015 including the order dated 22.07.2016 passed
by the learned Judicial Magistrate, Patna by which ad interim relief
Patna High Court Cr.Misc. No.41318 of 2016 dt.-06-10-2017
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has been granted to the opposite party no.2 whereby the petitioner
has been directed to pay Rs.15,000/- per month to the opposite party
no.2 for her day-to-day maintenance and to continue her studies.
2. Three important issues, which arise for
determination in this case are:-
(i) Whether an ex-wife can file a complaint under
the Protection of Women from Domestic Violence
Act, 2005 (for short the „D.V. Act‟) when the
relationship has come to an end with a decree of
divorce?
(ii) Whether an application under Section 482 of the
Cr.P.C. would be maintainable for quashing a
proceeding under the provisions of the D.V. Act?
(iii) Whether the provisions of Section 468 of the
Cr.P.C. would be applicable in case of a proceeding
under the D.V. Act?
3. Before, I proceed ahead to discuss and decide the
aforesaid questions, it would be essential to briefly narrate the
factual issues.
4. A complaint under Sections 18, 19, 20 and 27 of
the D.V. Act was filed by the opposite party no.2 against the
petitioner and three others in the court of Chief Judicial Magistrate,
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Patna alleging therein that she was married to the petitioner on
14.02.2013 at Barauni, Begusarai. Her parents had spent Rs.18
Lakhs over her marriage. After the marriage, she was taken to her
sasural at Jamshedpur. In sasural, she was subjected to harassment
by her husband and in-laws for demand of Rs. 10 lakhs. They used
to utter that the petitioner being a class-II officer in B.H.E.L., whose
monthly salary is Rs.1.25 lakhs, was being offered Rs.25 lakhs as
dowry by several persons. They asked her to demand Rs.10 Lakhs
from her parents failing which she was threatened to be driven out of
her matrimonial house. She has alleged that after sometimes, she
was taken to Lingampally, Hyderabad (Andhra Pradesh) where her
husband was posted. Even there, she was being subjected to cruelty
by her husband and in-laws for non-fulfilment of demand of Rs.10
lakhs and a luxury car. She has alleged that her husband and in-laws
also attempted to kill her, but somehow she could save her life and,
ultimately, on 23.04.2013, she was ousted from the house by her
husband and in-laws at Hyderabad. An information, in this regard,
was given to the Hyderabad Police, but no action was taken on her
complaint. Thereafter, she came back to Patna at her parents‟ house.
Even in Patna, she was threatened to bring dowry as demanded.
5. On the basis of these allegations, the complainant
prayed for the following reliefs from the court under the D.V. Act
Patna High Court Cr.Misc. No.41318 of 2016 dt.-06-10-2017
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from the husband:-
(i) Rs. 10 lakhs as compensation for physical and
mental sufferings;
(ii) Rs. 15 lakhs for loss of education;
(iii) Rs. 25 thousand per month for maintenance;
(iv) Rs. 20 thousand per month for residential
accommodation or a direction to allow the petitioner
to reside in the flat of her husband at Hyderabad; and
(v) Rs. 25 lakhs for cumulative suffering and loss.
6. Mr. Dinu Kumar, learned counsel for the
petitioner submitted that as the case was transferred to the court of
learned Judicial Magistrate and notice was served to the petitioner
and another accused persons, he appeared and filed show cause on
31.05.2016 denying the allegations levelled by the opposite party
no.2. A specific stand was taken before the learned Magistrate that
the D.V. case is malicious and has been filed with oblique motive
and is not maintainable. It was also pleaded that the provisions of
Sections 18, 19, 20 and 21 of the Act, 2005 are not made out. It was
also pleaded that the opposite party no.2 had hardly stayed for 5-6
days at Jamshedpur after marriage and she stayed for about two
months at Hyderabad. The marriage was performed without any
dowry and the allegation of demand of dowry and torture as
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mentioned in the complaint is concocted and false. As a matter of
fact, due to cruelty meted out by the opposite party no.2, the
petitioner had gone in depression and, for that, he underwent
treatment in hospital. Since the steps taken for settlement of the
issue could not deliver any fruitful result, a divorce case being
H.M.O.P. No.54 of 2014 under Section 13(i)(a) of the Hindu
Marriage Act, 1955 was filed for dissolution of the marriage
between the petitioner and the opposite party no.2 in the court of
Senior Civil Judge at Sangareddy, Andhra Pradesh. The opposite
party no.2 knowingly did not appear in the divorce case filed by the
petitioner even, after valid service of notice. A decree of divorce
dated 27.02.2015 was passed by the learned Senior Civil Judge,
Sangareddy. Learned counsel for the petitioner further submitted
that once the domestic relationship came to an end after the decree
of divorce, the complaint under the D.V. Act could not have been
filed. In support of his submission, he has placed reliance on a
judgment passed by the High Court of Punjab and Haryana in the
matter of Amit Agarwal and Ors. Vs. Sanjay Aggarwal [III
(2016) DMC 97 (P & H). He submitted that the complaint under the
D.V. Act is also barred by law of limitation in view of the provisions
of Section 468 of the Cr.P.C.. In this regard, he has placed reliance
on the decision of the Supreme Court in the matter of Inderjit Singh
Patna High Court Cr.Misc. No.41318 of 2016 dt.-06-10-2017
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Grewal vs. State of Punjab & Anr. [(2011) 12 SCC 588].
7. Per contra, learned counsel for the opposite party
no.2 submitted that the instant application under Section 482 of the
Cr. P.C. is not maintainable, as the impugned order of maintenance
passed under Section 20 of the D.V. Act is appelable under Section
29 thereof. He contended that when there is statutory remedy
available, the inherent power under Section 482 of the Cr.P.C.
cannot be exercised. He contended that the decree of divorce dated
27.02.2015 passed by the Senior Civil Judge, Andhra Pradesh is an
ex parte decree for which the opposite party no.2 came to know only
after she appeared in Cr. Misc. No.36243 of 2015 filed by the
petitioner before this court against the order of cognizance passed in
Complaint Case No.56 C of 2015 instituted under Section 498A of
the Indian Penal Code against the petitioner and others. After
coming to know about the said decree of divorce, the opposite party
no.2 filed a petition in H.M.O.P. No.54 of 2014 on 30.09.2015 under
Order IX Rule 13 read with Section 151 of the Cr.P.C. for setting
aside the decree. He contended that the said petition is still pending
before the court of Senior Civil Judge, Sangareddy. He contended
that even otherwise the complainant-opposite party no.2 is entitled
to receive maintenance under Section 20(1)(d) of the D.V. Act, as
the allegation of domestic violence in Domestic Violence Case
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No.110 of 2015 relate back to the date prior to the institution of the
said divorce case.
8. I have heard learned counsel for the parties and
carefully perused the record.
9. The first question whether an ex-wife can file a
complaint under the D.V. Act when the relationship has come to an
end with a decree of divorce fell for consideration before the Punjab
and Haryana High Court in Amit Agarwal (supra). In that case, a
challenge was made by the husband to the complaint filed by the
brother of his ex-wife in 2009, after a year of decree of divorce was
passed. The facts of the said case were that the petitioner was
married in 2003, but in 2006 his wife left the matrimonial house. In
the meantime, a complaint under the D.V. Act was also filed by her
against her husband and his family members. The husband filed a
divorce case. Against which, he got an ex parte order in 2008. The
complaint filed by the wife in 2006 was withdrawn in March, 2009,
but a month later, her brother again filed a complaint. The Punjab
and Haryana High Court held that as per provisions of the Act, the
brother of the aggrieved was duly competent to file a complaint, but
in a case where the decree of divorce had already been passed, it was
not maintainable. The court while exercising power under Section
482 of the Cr.P.C. quashed the complaint and observed that “the
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provisions under the D.V. Act can be invoked only when the
domestic relationship is in existence”.
10. Referring to Section 2(a) of the D.V. Act, the
Court observed: “the use of the word is any woman „who is‟ or „has
been‟. Both the expressions are in the present tense. The legislature
has not used the word „who was‟ or „had been‟. This means the
domestic relationship has to be in the present and not in the past.
The definition requires that on the date Act come into force, the
woman should be in domestic relationship”.
11. Referring to Section 2(f) of the D.V. Act, which
defines the domestic relationship, the Court observed: “the
definition clearly speaks of a domestic relationship between two
persons who live or have at any point of time lived together in a
shared household and are related by marriage or through a
relationship in the nature of marriage. This definition also speaks
about the existence of a relationship by marriage or a relationship
in the nature of marriage at the time. The expression used is „are
related‟ by marriage. The expression by the legislature is not „were
related‟. From the bare reading of these two provisions it is
apparent that the intention of the legislature is to protect those
women who are living in a domestic relationship”.
12. While deciding the said question, the Court
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referring to decision of Delhi High Court in Harbans Lal Malik vs.
Payal Malik [(2010) DLT 67], held: “the definition of „wife‟ as
available in Section 125 Cr.PC cannot be merged into Domestic
Violence Act”.
13. While examining the second question in Amit
Agarwal (supra) whether an application under Section 482 of the
Cr.P.C. would be maintainable for quashing a proceeding under the
provisions of the D.V. Act, the Punjab and Haryana High Court
held: “The Apex Court in Ashish Dixit and others Vs. State of U.P.
and another MANU/SC0156/2013 had quashed the proceedings
under the Domestic Violence Act in a petition filed under Section
482 Cr.P.C. This High Court in Jasvir Kaur and another Vs.
Manpreet Kaur in CRM No. M-29792 of 2011 allowed the petition
filed under Section 482 Cr.P.C. seeking quashing of the complaint
filed under the Domestic Violence Act. The Karnataka High Court in
Smt. Nagarathnamma Vs. M.S. Vanithashree in Cr.P.No.5246 of
2010 had allowed the petition filed under Section 482 Cr.P.C. Thus,
a complaint can be quashed in the petition filed under Section 482
Cr.P.C. if it is found that the complaint was an abuse of the process
of the Court or has filed only with a view to harass the others”.
14. On both the above said questions, I fully concur
with the view taken by the Punjab and Haryana High Court in Amit
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Agarwal (supra).
15. So far as the third question whether the
provisions of Section 468 of the Cr.P.C. would be applicable in case
of a proceeding under the Act is concerned, the same is no more res
integra.
16. In Inderjit Singh Grewal (supra), the Supreme
Court has answered the said question in the following words:
“Submissions made by Shri Ranjit Kumar on the issue of limitation,
in view of the provisions of Section 468 Cr.P.C., 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 Act 2005 read with Rule 15(6) of The
Protection of Women from Domestic Violence Rules, 2006 which
make the provisions of Cr.P.C. applicable and stand fortified by the
judgments of this court in Japani Sahoo v. Chandra Sekhar
Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs
Association v. Noida & Ors., (2011) 6 SCC 508”.
17. The law declared by the Supreme Court has got
binding force and, in that view of the matter, it can safely be said
that the provisions of Section 468 of the Cr.P.C. would clearly be
applicable in cases instituted under the provisions of the D.V. Act.
18. Coming back to the facts of the present case, the
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complainant-opposite party no.2 was admittedly married to the
petitioner on 12.04.2013 at Barauni, Begusarai. Subsequently, she
was taken to Lingampally, Hyderabad where the petitioner was
serving as a Class-II officer in B.H.E.L. She was ousted from her
husband‟s house in Lingampally, Hyderabad on 23.04.2013. An
allegation has also been made in the complaint that on 04.05.2014 at
about 7:00 P.M., the complainant went together with her mother to
the house of the petitioner, but the petitioner refused to return her
ornaments and other utensils.
19. In Section 31 of the D.V. Act penalty has been
provided for breach of protection order. The penalty provided for
such breach is for a term which may extend to one year or extend to
twenty thousand rupees or both. Apparently, the D.V. Act is not
considered as a criminal law as it is more concerned with providing
relief to the victim. However, if the offender does not comply with a
final or temporary protection order, he can be (i) sent to jail; (ii)
ordered to pay fine upto Rs.20,000/-; or (iii) sent to jail and ordered
to pay fine.
20. Section 28 of the D.V. Act clearly stipulates
that save as otherwise expressly provided, all proceedings under
Sections 12, 18, 19, 20, 21 and 23 and offences under Section 31
shall be governed by the provisions of Cr.P.C.
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21. Section 32 of the D.V. Act provides that
notwithstanding anything contained in the Cr.P.C., the offence under
Section 31 shall be cognizable and non-bailable.
22. Chapter XXXVI of the Cr.P.C. deals with
limitation for taking cognizance of certain offences. Section 468 of
the Cr.P.C., which bars taking cognizance of the offence after lapse
of one year, reads as under:-
“468. Bar to taking cognizance after lapse of
the period of limitation.-
(1) Except as otherwise provided elsewhere in
this Code, no Court shall take cognizance of an
offence of the category specified in sub- section
(2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with
fine only
(b) one year, if the offence is punishable with
imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with
imprisonment for term exceeding one year but
not exceeding three years.
(3) For the purposes of this section, the period
of limitation in relation to offences which may
be tried together, shall be determined with
reference to the offence which is punishable
with the more severe punishment or, as the case
may be, the most severe punishment.”
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23. A perusal of Section 468 of the Cr. P.C. would
make it evident that the Court would be debarred from taking
cognizance of the offence after expiry of one year if the offence is
punishable with imprisonment not exceeding one year.
24. As seen above, the maximum punishment
provided under the D.V. Act is for a term which may extend to one
year. Hence, the Court would be debarred from taking cognizance
after one year. Evidently, the complaint has been filed in the present
case after the expiry of the period of limitation. In this regard, the
petitioner has rightly placed reliance on the ratio laid down by the
Apex Court in Inderjit Singh Grewal (supra) wherein it has been
held that the complaint under the D.V. Act could be filed only
within a period of one year from the date of incident in view of the
provisions of Sections 28 and 32 of the D.V. Act.
25. Further, the application filed by the petitioner
under Section 13(1)(a) of the Hindu Marriage Act, 1955 for
dissolution of the marriage between him and the opposite party no.2
held on 14.02.2013 was allowed by the learned Senior Civil Judge at
Sangareddy, Andhra Pradesh on 27.02.2015 whereas the complaint
under the D.V. Act was filed after more than four months of passing
of the decree of divorce on 10.07.2015.
26. In view of the discussions made above, as I have
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already concurred with the view taken by the Punjab and Haryana
High Court in Amit Agarwal (supra), the complaint under the D.V.
Act by the ex-wife after divorce was not maintainable in law.
27. Thus, I am of the opinion that the entire
proceeding of the D.V. Case No. 110 of 2015 is an abuse of the
process of the Court. Accordingly, the complaint and the entire
proceeding of the aforesaid case including the impugned order dated
22.07.2016 passed by the learned Judicial Magistrate, Patna are
hereby quashed.
28. The application stands allowed.
Sanjeet/-
(Ashwani Kumar Singh, J.)
AFR/NAFR AFR
CAV DATE 08.09.2017
Uploading Date 10.10.2017
Transmission
Date
10.10.2017
