Read Judgment: KAMATCHI Vs. LAXAMI NARAYAN
New Delhi, April 14, 2022: The Supreme Court has held that it is only the breach of order passed u/s 12 of the Protection of Women from Domestic Violence Act, 2005, which constitutes an offence u/s 31. Thus, if there is any offence committed in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence.
The Division Bench of Justice Uday Umesh Lalit and Justice Pamidighantam Sri Narasimha held that by the time an application is preferred under Section 12 of the Act, there is no offence committed in terms of the provisions of the Act and as such there would never be a starting point for limitation from the date of application under Section 12 of the Act.
The present appeal was preferred against the final judgment and order of the Madras High Court dated March 16, 2020. The application in the present case was preferred by the appellant-wife instituted under Section 12 of the Protection of Women from Domestic Violence Act, 2005. It was filed for seeking protection from her father-in law, sister-in-law and from the respondent-husband as well under Sections 17 and 18 of the Act.
Brief facts of the case relevant for perusal of the present appeal were that the father-in and the sister-in law of the apellant in pursuant to the application of the appellant moved under Section 12 of the Act filed a criminal original petition under Section 482 of CrPC seeking quashing of proceedings and an identical relief was sought by the respondent himself under Section 482 of CrPC.
The High Court by its judgement and order dated March 16, 2020 allowed the petition of the father-in law and sister-in law and accordingly the proceedings were quashed. However, with respect to the petition instituted by the respondent, the Court was of the view that the application moved by the appellant was barred by limitation and should have been filed within one year of the incident. It was further observed that since the appellant left the matrimonial home of the respondent in the year 2008, the application vividly depicted the abuse of process of court. Aggrieved by the same, the appellant assailed the impugned order of the High Court , allowing the petition of the respondent.
The Counsel for the appellant contended that there is no limitation period under the Code or under the Act for filing an Application, thus the High Court had erred in its reasoning by observing that the proceedings were barred by limitation.
The Counsel for the respondents on other side contended that the chart prepared by the Protection Officer depicted that after September 16, 2008, for almost 10 years nothing was alleged against the respondent or the father-in law and sister-in-law. It was further added that parties havd been living separately for several years and the application was nothing but a sheer abuse of process of court .
The Top Court was of the view that as per Section 468 of the Code, the cognizance of offences mentioned under sub-section 2 cannot be entertained after the expiry of the period specified therein. The Court then cited its judgment Japani Sahoo v. Chandra Sekhar Mohanty, wherein a complaint was filed within a period of three years from the date of alleged offence. The complaint, therein was held to be filed within the period of limitation even though cognizance was taken by the Magistrate after a period of one year. Since the criminal proceedings had been quashed by the High Court, the order was accordingly set aside by directing the Magistrate to proceed with the case and pass an appropriate order in accordance with law, as expeditiously as possible.
The Apex Court stated that the provisions of the Act contemplate filing of an application under Section 12 to initiate the proceedings before the concerned Magistrate.
The Division Bench then explained,” After hearing both sides and after taking into account the material on record, the Magistrate may pass an appropriate order under Section 12 of the Act. It is only the breach of such order which constitutes an offence as is clear from Section 31 of the Act. Thus, if there be any offence committed in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence. By the time an application is preferred under Section 12 of the Act, there is no offence committed in terms of the provisions of the Act and as such there would never be a starting point for limitation from the date of application under Section 12 of the Act. Such a starting point for limitation would arise only and only after there is a breach of an order passed under Section 12 of the Act.”
The Bench referred to its judgment in Krishna Bhattacharjee v. Sarathi Choudhary wherein a decree of judicial separation was passed by a competent Court. Thereafter a plea was filed by the wife under Section 12 of the Act seeking return of Sridhan and allied reliefs. A plea was taken by the husband that the plea of the wife is barred by limitation. The Apex Court in this case set aside and quashed the rulings of the lower Court and High Court and held that the plea of limitation cannot be entertained as the offence was found to be continuing one and as such there was no terminal point from which the date of limitation can be reckoned. Thus , this Court was of the view that none of cases relied on by the High Court are relevant to the subject matter of the present case.
The Division Bench observed that the High Court wrongly equated filing of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution and the High Court was also in error in observing that the application under Section 12 of the Act ought to have been filed within a period of one year of the alleged acts of domestic violence.
The Apex Court further observed that The scope of notice under Section 12 of the Act is to call for a response from the respondent in terms of the Statute so that after considering rival submissions, appropriate order can be issued. It was also stated that the contention of the respondents that nothing was alleged by the appellant against the respondent for almost 10 years was a matter to be considered by the Magistrate after a response is submitted by the respondent and rival contentions are considered.
Accordingly, the judgment and order dated of the High Court was dismissed and the appeal was allowed. Further clarification was made that the limitation period in the instant case was determined in the context that the application moved under Section 12 of the Act.