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P.D. Vinay v/s Conica Shambaya


Company & Directors' Information:- PD CORPORATION PRIVATE LIMITED [Active] CIN = U29253MH2011PTC221370

    Criminal Petition No. 4773 of 2016

    Decided On, 10 September 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B.A. PATIL

    For the Petitioner: M.T. Nanaiah, Senior Counsel, B.N. Balasubramanya, Advocate. For the Respondent: Geetha Menon, Advocate.



Judgment Text


(Prayer: This Criminal Petition is filed under Section 482 of Cr.P.C praying to quash all further proceedings pending on the application file by the respondent under Section 12 of the Protection of Women from Domestic Violence Act now pending on the file of MMTC-I, Mayo Hall, Bengaluru, in Crl.Misc.No.58/2016 and dismiss the same.)

Through Video Conference:

1. This petition is filed by the husband under Section 482 of Cr.P.C. praying this Court to quash all the proceedings pending on the file of the learned Metropolitan Magistrate, Traffic Court - 1 Mayo Hall Unit Bengaluru in Crl.Misc.No.58/2016.

2. I have heard the learned Senior Counsel Sri M.T.Nanaiah, appearing for the petitioner and the learned counsel Smt.Geetha Menon for the respondent virtually.

3. The facts leading to the case are that the marriage of the petitioner and respondent was solemnized on 15.6.2008 by spending some amount. Petitioner was working in Devarashola tea estate in Tamilnadu State. The respondent was working at Bengaluru. With an intention that the petitioner would join the respondent, at weekend he or she used to come and in the night they used to return. It is further alleged that out of the said wedlock on 5.11.2009 a male child was born. From that date the petitioner without there being any reasons used to shout and cause lot of distress. It is further alleged that during May, 2011 the father of the petitioner passed away due to massive heart attach. The respondent stayed back with mother- in-law at Kushalnagar. During the said period, the petitioner used to pressurize her to quit her job at Bengaluru and take up a teaching job at kushalnagar. There were some differences of opinion between the couple. The child was admitted to school. During February, 2012 the respondent paid the fees. The petitioner never used to come home, never used to bother about the welfare of the respondent and her minor child. The petitioner used to make reckless and wild allegations through emails. It is further alleged that petitioner and respondent were living together in various places from 2008 to 2014 and subsequently on 13.4.2016 she filed an application under Section 12 of Protection of Women from Domestic Violence Act, 2005, ('Act for short) seeking protection orders, monetary reliefs etc.,. After issuance of the summons, being aggrieved by the said issuance of summons the petitioner is before this Court.

4. The main grounds urged by the learned Senior Counsel are that the marital relationship between the petitioner and the respondent is not in dispute and as per the contention of the respondent, since 2014 they have not lived together and not joined. After living separately for a period of two years, respondent has filed the petition under Section 12 of the Act on 29.2.2016. It is his further submission that the maximum punishment is one year and from the cause of action complainant ought to have been filed within a period of one year in terms of Section 468 of Cr.P.C. and admittedly the case having been filed on 29.2.2016 is barred by limitation and as such the same is liable to be quashed.

5. In order to substantiate the aforesaid contention he has relied upon the decision in the case of Mrs.Sarah Mathew Vs. The Institute of Cardio Vascular Diseases by its Director Dr.K.M.Cherian and Others. He has also relied upon one more decision of the Hon'ble Apex Court in the case of L.Chandra Kumar Vs. Union of India and Others reported in AIR 1997 SC 1125 and another decision of the Co-ordinate Bench of this Court in the case of Srinivas Vs. G.Dhanalakshmi in Criminal Petition No.2419/2009 disposed of on 5.4.2013. On these grounds he prayed to allow the petition and to quash the proceedings.

6. Per contra, the learned counsel for the respondent vehemently argued by drawing the attention to the copy of the petition filed under Section 12 of the Act contended that till April 2015 the petitioner used to visit the minor son and the respondent used to stay at her matrimonial home at Kushalnagar and she used to go to Bengaluru once a month. When the petitioner visited his son till April 2015 and the petition has been filed by the respondent on 29.2.2016, then under such circumstances the petition is not barred by limitation as contemplated under Section 468 of Cr.P.C. It is her further submission that as per the provisions of Section 12 of the Act there is a continuing offence and when there is continuing offence and so long as the domestic relationship has been existing, the cause of action will continue. In order to substantiate the said contention, she has relied upon the decision in the case of Krishna Bhattacharjee Vs. Sarathi Choudhury and another reported in (2016) 2 SCC 705 and yet another decision in the case of Shalini Vs. Kishor and Others reported in (2015) 11 SCC 718. It is her further contention that when there is a domestic violence and economic abuse, it amounts to nothing but continuing offence and in that light by taking into consideration the factual matrix it is not barred by the limitation. On these grounds she prayed to dismiss the petition.

7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records and I have given my thoughtful consideration to the decisions quoted by the learned counsel appearing for the parties.

8. It is not in dispute that the petitioner and the respondent are husband and wife and out of the said wedlock they have begotten a male child. The only issue which has been raised by the learned Senior Counsel for the petitioner is that the petition which has been filed is barred by limitation. It ought to have been filed within a period of one year in terms of Section 468 of Cr.P.C. In order to consider the said aspect, I want to rely upon the decision in the case of Krishna Bhattacharjee cited supra at paragraph Nos.3, 32 and 33 it has been observed as under:

3. Regard being had to the nature of the legislation, a more sensitive approach is expected from the courts whereunder 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.

32. 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 realisation 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 has been reproduced hereinbefore, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal that Section 468 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.

33. In the present case, the wife had submitted the application on 22-5-2010 and the said authority had forwarded the same on 1-6-2010. 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.

9. In the said decision it has been observed that the status between the parties is not severed and the concept of continuing offence get attracted from the date of deprivation of the Streedhana and in that light it has been observed that it is a continuing offence and the application is not barred by limitation. Even as could be seen from the records the domestic relationship includes access to the shared household and even as could be seen from the pleadings at paragraph Nos.19 and 21 it indicates that in the month of April 2015 the minor child had g

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one with the mother of the aggrieved person to Kushalnagar for summer holidays and even the petitioner and the respondent have tried to ensure a normal life for the sake of the minor child and they used to meet in ancestral home of the petitoner at Kushalnagar and the respondent would visit Bengaluru once in a month. When that being the pleading of the petitioner, the present petition has been filed admittedly on 29.2.2016. 10. Though there is a bar under Section 468 of Cr.P.C. to file the petition under the Act within one year, by taking into consideration the ratio laid down by the decision and the factual matrix of the case on hand it indicates that the petition has been filed within the time of limitation of one year and there is no delay as urged by the learned Senior counsel for the petitioner. I have gone through the decisions quoted by the learned Senior Counsel for the petitioner. They are not applicable to the facts of the case on hand. 11. Taking into consideration the above facts and circumstances, the petition being devoid of merits, is liable to be dismissed. Accordingly, the same stands dismissed.
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