Karnataka High Court
N Prakash vs Smt Supriya M @ Shashikala M on 5 November, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.24497/2015(GM-FC)
BETWEEN:
1. N PRAKASH
S/O SRI M NANJUNDE GOWDA
AGED ABOUT 39 YEARS
NO. 22/38, 11TH CROSS
MAHALAKSHMIPURAM
BANGALORE-560086
2. SRI M NANJUNDE GOWDA
S/O LATE NINGEGOWDA
AGED ABOUT 79 YEARS
3. SMT GOVINDAMMA
W/O SRI M NANJUNDEGOWDA
AGED ABOUT 65 YEARS
4. SMT N BHARATHI
W/O SHRI M MAHADEV
AGED ABOUT 43 YEARS
PETITIONER'S NO.2 TO 4 ARE
R/AT 14TH MAIN ROAD
BASAVESHWARANAGAR
BANGALORE-560079
5. SMT N BHAGYA
W/O H V JAYARAMAIAH
AGED ABOUT 41 YAERS
R/O BEL LAYOUT
BHARATHNAGAR
BANGALORE-560091
2
6. SMT N YASHODHA
W/O K N MALLESH
AGED ABOUT 37 YEARS
R/AT BRAHMAPUTRA NADI ROAD
SRINAGAR
BANGALORE
... PETITIONERS
(BY SRI. SHAHUL HAMEED REHEMAN, ADVOCATE)
AND:
1. SMT SUPRIYA M @ SHASHIKALA M
W/O SRI N PRAKASH
AGED ABOUT 36 YEARS
2. KUM HARSHITHA
D/O SRI N PRAKASH
SINCE MINOR REP BY HER MOTHER & NATURAL
GUARDIAAN
SMT SUPRIYA @ SHASHIKALA
RESIDING AT "NANDAGOKULA NILAYA"
NO.2596, 11TH MAIN ROAD,
E BLOCK, 2ND STAGE
RAJAJINAGAR
BANGALORE-560010
PRESENTLY WORKING AT:
SMT SUPRIYA M @ SHASHIKALA
FINANCIAL ASSISTANT/ACCOUNTANT
THE KARNATAKA STATE AIDS PREVENTION
SOCIETY
NO. 4/13-1, CRESCENT ROAD
HIGH GROUNDS BANGALORE-560001
... RESPONDENTS
(BY SRI/SMT. N K SIDDESWARA FOR R1;
R-2 MINOR REP. BY R-1)
THIS WRIT PETITION FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 04.05.2015 IN
3
C.MISC.NO.9/2014 PENDING ON THE FILE OF
METROPOLITAN MAGISTRATE TRAFFIC -VI COURT,
BANGALORE VIDE ANN-A AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY
HEARING - B GROUP PHYSICAL HEARING / VIDEO
CONFERENCING HEARING (OPTIONAL), THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
On 21.10.2020, none appeared for the petitioners. Today, also none appears for the petitioners.
2. Petitioners have assailed the order dated 04.05.2015 passed by the Metropolitan Magistrate Traffic Court-VI, Bengaluru City on application filed under Section 468 of Cr.P.C. in Crl.
Misc.No.09/2014. First petitioner married first respondent on 24.09.2007. Allegations are that first respondent left to the parental house for delivery in the month of June, 2009 and did not return for about six years. In other words, she is alleged to have deserted her husband even though panchayats was conducted in the presence of elders and will-wishers, 4 which was not materialized. In this back drop, the first petitioner filed a petition for Restitution of Conjugal Rights on 15.11.2012, first respondent did not contest the petition and she is stated to have not appeared before the Mediation. On 07.10.2013, first petitioner withdrew the petition filed for Restitution of Conjugal Rights and thereafter, filed a petition for divorce before the I Additional Family Court, Bengaluru in M.C.No.4296/2013. In this back drop, first respondent filed Crl.Misc.No.9/2014 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'DV Act, 2005'). The petitioners filed application under Section 468 of Cr.P.C. to dismiss the first respondent's petition as not maintainable. The application filed under Section 468 of Cr.P.C. decided on 04.05.2015 in Crl.Misc.No.9/2014 on the file of the Metropolitan Magistrate Traffic Court-VI, Bengaluru City was rejected. Limitation would be hurdle for the first respondent as cause of action is as on 28.07.2010 5 and petition under Section 12 of DV Act, 2005 is 09.01.2014. Thus, the present petition.
3. Crux of the matter in the present petition is "Whether petitioners' application filed under Section 468 of Cr.P.C is maintainable in a petition filed under Section 12 of DV Act, 2005 or not ?"
The first respondent has filed petition under Section 12 of DV Act, 2005. Section 28(1) of D.V.Act, 2005 excludes Section 468 of Cr.P.C. In other words, there is no time limit for filing petition under Section 12 of D.V.Act, 2005. In fact relief sought on behalf of first respondent would be continuing cause of action.
The same is taken note by the trial Court while rejecting the petitioners' application under Section 468 of Cr.P.C. Section 468 of Cr.P.C and Section 28(1) of D.V.Act, 2005 are re-produced here under:-
"Section 468 of Cr.Pc.-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 6 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 a term exceeding one year but not exceeding three years.
1[(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.]"
"Section 28(1) of D.V.Act, 2005-Procedure(1) Save as otherwise provided in this Act, 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 (2 of 1974).
4. Perusal of Section 28(1) of D.V.Act, 2005, it is evident that Section 468 of Cr.P.C. has been excluded. That part, Apex Court in the case of 7 Krishna Bhattacharjee Vs. Sarathi Choudhury and another reported in (2016) 2 SCC 705 in paragraph 33 held as under:-
"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."
In view of the aforesaid statutory provision read with the Apex Court decision, there is no infirmity in the impugned order dated 04.05.2015 passed by the Metropolitan Magistrate Traffic Court-VI, Bengaluru City in Crl.Misc.No.9/2014 on application filed under Section 468 of Cr.P.C. Thus, petitioners have not made out case so as to interfere with the trial Court's 8 order dated 04.05.2015. Hence, writ petition stands dismissed.
Sd/-
JUDGE KPS