Law Web: Whether concept of continuing offence is applicable to Domestic Violence Proceeding?

In the present case, perusal of the contents of the

complaint would show that the wife has not only stated incidents

of physical and emotional abuse but she has also indicated the

economic abuse that she has suffered. The wife has also

specifically prayed for return of articles i.e. Stridhan. In the said

judgment in the case of Krishna Bhattacharjee Vs. Sarathi

Choudhury and another (supra), the Hon’ble Supreme Court has specifically held that the concept of continuing offence gets

attracted from the date of deprivation of Stridhan and that

therefore, an application in that context would have to be

entertained and it cannot be thrown out on the ground of

limitation. This Court is of the opinion that the definition of

domestic violence under Section 3 of the D.V. Act shows that

depriving an aggrieved person of not only Stridhan but also

shared household, maintenance, alienation from assets, banks

lockers etc, prevention from entering place of employment of the

aggrieved person, would all be covered, under the concept of

continuing offences. Therefore, merely because the wife in the

present case was, according to her, driven out on 03.02.2011 and

the complaint was filed after one year i.e. on 17.10.2012, it

cannot be said that the complaint is barred by limitation. The

concepts of continuing cause of actions and continuing offences

would apply and the contention raised on behalf of the husband

relying upon Section 468 Cr.P.C. cannot be accepted. Thus, it is

found that the complaint of the wife cannot be thrown out on the

ground of limitation, despite applicability of the Cr.P.C. as per

Section 28 of the D.V. Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

CRIMINAL WRIT PETITION NO. 372 OF 2019

Sau. Aruna Omprakash Shukla Vs Omprakash S/o. Devanand Shukla,

CORAM : MANISH PITALE, J.

PRONOUNCED ON : 27.07.2021.

1. Hearing was conducted through video conferencing

and the learned counsel agreed that the audio and visual quality

was proper.

2. These three writ petitions arise out of a common

judgment and order dated 04.05.2018 passed by the Sessions

Court at Akola. By the said common judgment and order, the

Sessions Court partly allowed the appeal of the petitioner in Writ

Petition No.372/2019 i.e. Aruna w/o Omprakash Shukla and

dismissed the appeal of the petitioner in Writ Petition Nos.

707/2018 and 718/2018 i.e. Omprakash S/o Devanand Shukla

and others.

3. The said petitioner Aruna w/o Omprakash Shukla

filed an application under the provisions of The Protection of

Women of Domestic Violence Act, 2005 (herein after referred to as

D.V.Act) for various reliefs. The said application bearing

Miscellaneous Criminal Case No.1314/2012 was partly allowed by

the Court of 9th Judicial Magistrate First Class, Akola, directing the

said Omprakash s/o Devanand Shukla to pay an amount of

Rs.3,000/- per month towards maintenance and Rs.2,000/- per

month as house rent to his wife i.e. Aruna w/o Omprakash Shukla.

The prayer of the wife for grant of compensation and return of

Stridhan and household articles was rejected.

4. Both the wife and husband were aggrieved by the said

order of the Magistrate and they filed appeals before the Sessions

Court at Akola. By the impugned judgment and order, the Sessions

Court partly allowed the appeal of the wife by enhancing the

monthly maintenance to Rs.4,000/-, while maintaining the

amount payable towards monthly rent. Additionally, the husband

was directed to pay an amount of Rs.50,000/- to his wife towards

compensation. The appeal filed by the husband was dismissed.

5. Aggrieved by the said common judgment and order

present writ petitions were filed in which this Court issued

notices.

6. Mr. C.A. Joshi, learned counsel appearing for the

petitioner in Writ Petition No.372/2019, who is respondent in the

other two writ petitions, submits that the quantum of maintenance

granted to the wife deserves to be enhanced further and that the

Courts below did not appreciate the evidence on record in the

correct perspective.

7. By inviting attention to the material placed on record

before the courts below, it was submitted that the monthly

maintenance amount ought to have been higher and further that

the quantum of compensation granted should also have been

enhanced to a higher figure.

8. On the other hand, Shri Anand S. Joshi, learned

counsel appearing for petitioners in Writ Petition Nos. 707/2018

and 718/2018, submitted that the Sessions Court erred in

dismissing the appeal of the husband and partly allowing the

appeal of the wife. It was submitted that the petitioner was

constrained to file two writ petitions, in the aforesaid facts and

circumstances. It was further submitted that on facts the courts

below had erred in granting amount towards monthly

maintenance and rent, as also towards compensation, because the

financial status of the husband was not properly appreciated by

the Courts below. It was submitted that when the Sessions Court

itself had found that the husband was earning a meager salary of

about Rs.15,000/-, the amount of monthly maintenance and rent

granted by the Sessions Court was not sustainable. It was further

submitted that the Magistrate had found that the wife had not

placed on record any evidence to support her prayer for grant of

compensation, thereby rejecting the aforesaid prayer, yet, the

Sessions Court granted relief of compensation and fixed the

amount at Rs.50,000/- without any basis. It was submitted that

the wife had never filed any police complaint nor had she

undergone any medical examination to demonstrate injuries

suffered, in order to support her prayer for grant of compensation.

9. Apart from this, the learned counsel appearing for the

husband raised a question of law on the aspect of limitation, in

order to claim that the Magistrate ought to have thrown out the

complaint as being barred by limitation. The learned counsel for

the husband relied upon the provisions of D.V. Act, particularly

Sections 28 and 31 thereof, read with Section 468 of the Cr.P.C to

claim that the complaint was barred by limitation. By placing

reliance on Section 468(2)(b) of the Cr.P.C., it was submitted that

when the wife (complainant) herself admitted that the complaint

was filed after one year of the separation of the couple, the

complaint was beyond the period of limitation of one year and

therefore, it ought to have been dismissed, as such. The learned

counsel for the husband relied upon judgment of Hon’ble Supreme

Court in the case of Inderjit Singh Grewal Vs. State of Punjab

(2011) 12 SCC 588.

10. Before dealing with the contentions raised on behalf

of the rival parties as regards the quantum of maintenance, house

rent and compensation payable to the wife, it would be

appropriate to first deal with the question of law raised on behalf

of the husband, pertaining to limitation for filing complaint under

the D.V. Act, 2005.

11. According to the learned counsel appearing for the

husband, since Sections 28 and 31 of the D.V. Act, referred to

applicability of the provisions of the Cr.P.C., Section 468 thereof

assumes significance. By inviting attention to provisions of the D.V.

Act, it was stated that for an offence under the said provisions

punishment of imprisonment extending up to one year is

provided. On this basis, it was submitted that Section 468 (2)(b)

of the Cr.P.C. specifically lays down limitation period of one year

for taking cognizance of an offence which is punishable with

imprisonment for a term not exceeding one year. Since Section 31

of the D.V. Act pertains to breach of a protection order or an

interim protection order, necessarily relating to applications filed

under the provisions of the D.V. Act by the aggrieved person, it is

contended that the limitation period of one year would apply.

12. It is specifically stated that the wife herself in the

complaint claimed that on 03.02.2011, she last resided with the

husband and thereafter, she was forced to live separately. It was

then stated that the complaint under the provisions of the D.V. Act

was filed on 17.10.2012, which was beyond the period of one year

from 03.02.2011. On this basis it was claimed that the complaint

was hit by limitation and that therefore, the orders of the

Magistrate as well as the Sessions Court were unsustainable.

13. Learned counsel placed specific reliance on the

judgment of the Supreme Court in the case of Inderjit Singh

Grewal Vs. State of Punjab (supra). In the said judgment, the

Hon’ble Supreme Court had observed that a contention raised on

behalf of the appellant before the Hon’ble Supreme Court to the

effect that in view of Section 468 of the Cr.P.C. the complaint

under the D.V. Act could be filed only within a period of one year

from the date of the incident appeared to be preponderous, in

view of the provisions of Sections 28 and 32 of the D.V. Act read

with Rule 15 (6) of the Rules framed under the said Act. A

perusal of Sections 28 and 31 of the D.V. Act would show that the

proceedings under Sections 12, 18 to 23 and Section 31 of the D.V.

Act are governed by the provisions of the Cr.P.C. There can be no

dispute about the fact that for an offence under Section 31 of the

D.V. Act, the accused can be punished with imprisonment which

may extend to one year.

14. Rule 15(6) of the aforesaid Rules pertains to

applicability of Cr.P.C. when charges are framed under Section 31

of the D.V. Act. The question for consideration is, as to whether the

complaint in the present case filed by the wife can be said to be hit

by limitation as provided under Section 468 of the Cr.P.C.

15. In the case of Inderjit Singh Grewal Vs. State of

Punjab (supra), the Hon’ble Supreme Court was dealing with a

case where the husband and wife were already divorced in

pursuance of a decree of divorce by mutual consent passed by the

competent Court. The complainant in that case claimed that the

decree of divorce by mutual consent was obtained by fraud by the

husband, in respect of which she had approached the police for

registration of an offence, but the police had refused to register

any criminal case. The complainant further claimed that she had

been living together with the husband even after divorce and in

such a factual backdrop she had made allegations of harassment

and abuse against the husband. The Hon’ble Supreme Court

found that in the facts of the said case, initiation of proceedings by

the wife under the D.V. Act amounted to abuse of the process of

law and accordingly, allowed the appeal of the husband and

dismissed the complaint. It is in this backdrop that the Hon’ble

Supreme Court recorded one of the contentions raised of behalf of

the husband pertaining to limitation and made an observation that

such a contention appeared to be preponderous, in view of

Sections 28 and 32 of the D.V. Act read with rule 15 (6) of the

aforesaid Rules.

16. It needs to be appreciated whether the said judgment

lays down the proposition that a complaint under the provisions of

D.V. Act can be filed, subject to limitation of one year, in view of

Section 468 of the Cr.P.C. In this context, another judgment of the

Hon’ble Supreme Court becomes relevant, which is delivered in

the case of Krishna Bhattacharjee Vs. Sarathi Choudhury and

another (2016) 2 SCC 705. In this judgment, the Hon’ble Supreme

Court has taken note of the aforesaid earlier judgment in the case

of Inderjit Singh Grewal Vs. State of Punjab (supra) and thereupon

it is found that while considering complaints under the D.V. Act,

the concept of continuing cause of action needs to be applied. In

the said case, a contention regarding limitation was raised in the

backdrop of prayer of the aggrieved person (wife) for return of

Stridhan. The Hon’ble Supreme Court after relying upon earlier

judgments, held that a continuing offence is one which is

susceptible of continuance and is distinguishable from one which

is committed once and for all. It was found that retention of

Stridhan by the husband and his family members was a continuing

offence, so long as it was covered under the expression of

“economic abuse” as defined under Section 3 of the D.V. Act,

pertaining definition of “Domestic Violence”. On this basis, it was

held that the complaint filed by the wife could not be thrown out

on the ground of limitation, by applying Section 468 of the Cr.P.C.

17. It would be necessary to appreciate as to the offence

to which Section 31 of the D.V. Act applies. The said provision

specifies punishment with imprisonment to the extent of one year,

when there is breach of a protection order or an interim protection

passed under the provisions with the D.V. Act. Thus, the stage of

imposing punishment for a breach of a protection order arises

after a protection order is passed and the breach thereof is proved.

Section 28 of the D.V. Act provides for applicability of the

provisions of the Cr.P.C. in respect of proceedings initiated under

Sections 12, 18 to 23 and 31 of the D.V. Act. The Hon’ble Supreme

Court in the case of Krishna Bhattacharjee Vs. Sarathi Choudhury

and another (supra) took into consideration the objects and

reasons of the D.V. Act and also emphasized on the approach that

courts need to adopt while considering cases under the D.V. Act. It

was stated by the Hon’ble Supreme Court in paragraph 8 of the

said judgment as follows:-

“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.”

18. In the present case, the Court is concerned with the

complaint filed by the wife under Section 12 and other

aforementioned provisions of the D.V. Act. The wife claims that

she was harassed and abused and that she also suffered economic

abuse at the hands of the husband and his relatives. She claims

that she has suffered “domestic violence” as defined in Section 3

of the D.V. Act. She specifically seeks redressal for such abuse and

she has also claimed return of articles gifted to her by her parents

and other relatives, including golden and silver ornaments. In

fact, the wife has claimed compensation to the tune of Rs.10 Lakh

in the said complaint. There is no doubt about the fact that in the

complaint itself she says that she was driven out on 03.02.2011 by

her husband and his relatives from the matrimonial house. The

complaint admittedly is filed on 17.10.2012.

19. It is in this backdrop that the concept of continuing

cause of action and continuing offence needs to be appreciated

from the point of view of the aggrieved person i.e. wife. Certain

grievances for which relief has been specified in the D.V. Act

pertain to the aggrieved person being deprived of maintenance,

residence, or shared household, return of articles, right to reside

in shared household and protection orders in that backdrop. The

definition of Domestic Violence in Section 3 of the D.V. Act is wide

ranging and includes physical abuse, sexual abuse and verbal and

emotional abuse, as also economic abuse. The purpose of

enactment of D.V. Act is to provide remedies to such aggrieved

persons, apart from proceedings that an aggrieved person may

initiate under existing civil and criminal laws.

20. In the present case, perusal of the contents of the

complaint would show that the wife has not only stated incidents

of physical and emotional abuse but she has also indicated the

economic abuse that she has suffered. The wife has also

specifically prayed for return of articles i.e. Stridhan. In the said

judgment in the case of Krishna Bhattacharjee Vs. Sarathi

Choudhury and another (supra), the Hon’ble Supreme Court has

specifically held that the concept of continuing offence gets