Karnataka High Court
Sri A C Deepak Kumar vs Smt P Priyanka on 16 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1645, 2019 (4) AKR 646, (2020) 1 ALLCRILR 433, (2020) 1 ICC 181
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL REVISION PETITION No.704/2017
BETWEEN:
Sri A.C.Deepak Kumar
S/o Cheluvaraju
Aged about 31 years
Residing at No.6/76,
M. Block, K.R.Nagar
Mysuru District-571 602.
...Petitioner
(By Sri N.Srinivas, Advocate)
AND:
Smt. P.Priyanka
W/o A.C.Deepak Kumar
D/o Puttaswamy
Aged about 25 years
Residing at Kumbarahalli Village,
Aldur Post, Chikkamagaluru Taluk,
Chikkamgaluru-577 111.
...Respondent
(By Sri Prakash M.H., Advocate)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the order dated
13.04.2017 passed by the Prl. District and Sessions Judge,
Chikkamagaluru, in Criminal Appeal No.185/2016 by the
Hon'ble Sessions Court who was pleased to dismiss the
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appeal by confirming the order passed by the Hon'ble
Court of 1st Addl. Senior Civil Judge and JMFC,
Chikkamagaluru in Crl.Misc.No.47/2014, who has allowed
petition in part by directing the petitioner to pay
Rs.6,000/- to the respondent as maintenance from the
date of petition i.e., 21.08.2014 vide order dated
04.11.2016.
This Criminal Revision Petition coming on for
Admission, this day the Court made the following:-
ORDER
Petitioner/husband is before this Court challenging the legality and correctness of the order passed by Principal District and Sessions Judge, Chickkamagaluru, in Criminal Appeal No.185/2016 dated 13.4.2017 whereunder the appeal was dismissed by confirming the order passed by 1st Additional Senior Civil Judge and JMFC, Chikkamagaluru, in Criminal Misc. No.47/2014 dated 4.11.2016.
2. I have heard the learned counsel for the petitioner/husband and the learned counsel for the respondent/wife.
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3. The case of the respondent in brief is that, she has filed a petition before the Protection Officer contending that she has married the petitioner on 26.04.2012 at the time of marriage an amount of Rs.50,000/- has been paid in cash along with 55 grams of gold as dowry. During the time of marriage, she was studying in B.com, 2nd semester. The petitioner/husband agreed to continue the 3rd semester of the respondent/wife. Thereafter, the respondent/wife joined the petitioner/husband and subsequently petitioner and his parents subjected the respondent/wife to harassment in order to bring dowry. It is further alleged that the petitioner/husband used to assault and confined the respondent/wife in a room. It is further alleged that at the time of marriage petitioner/husband stated that he had got a permanent job in RTO and subsequently respondent/wife came to know that he is working in the RTO on contract. Thereafter, the petitioner started making derogatory comments with the friends of the respondent/wife. Once in the petitioner's sister's house at -4- Mysuru, the petitioner has beaten the respondent till she looses consciousness in a room, thereafter she has been treated in a private hospital and at the intervention of the parents, conciliation took place and arrangement has been made in this behalf to stay at Mudigere town. It is further stated that the petitioner has given a bond before Mudigere town police station and he has undertaken that he will not continue his illegal acts. It is further contended that the husband has got a habit of attaching the photograph of the respondent with strangers and posting the same in the face book and thereby subjected the respondent for mental harassment. As such, the respondent/wife filed a complaint before the Aldur police station, the same has not been received and as such she filed the complaint before the Protection Officer.
4. The petitioner husband appeared and filed his objection, he admitted the marriage and denied all other allegations. It is further contended that he has agreed to continue her studies and she used to visit her native and -5- stay there for weeks together without any intimation to the petitioner/husband and it is further alleged that she used to receive frequent phone calls and messages to her cell phone even during mid night. When petitioner enquired the respondent about the said fact, the respondent stated that the petitioner is not at all social and modern like her and such social contacts are common. It is further contended that the respondent never bothered about the domestic works at the matrimonial home and every work at home has been done by petitioner's mother, who is aged and ailing. The respondent insulted the petitioner stating that he belongs to 3rd class family and he is like a slum dweller, often targeting his temporary job and meager income. It is further submitted that in order to change the atmosphere and also to lead a peaceful marital life with the consent of respondent, changed his matrimonial home to Mysuru and started residing there from 1.1.2013 in the house of his sister Smt.Jayalakshmi and respondent became pregnant and she unilaterally decided to undergo abortion on the -6- guise of continuing her education. When the petitioner did not agree for abortion, she threatened that if he is not going to agree for abortion she would commit suicide leaving a suicide note making him responsible for the same. By such threat and blackmailing techniques, the respondent had underwent abortion during the 4th week of January, 2013. It is further submitted that the petitioner/husband filed a petition for restitution of conjugal rights against the respondent and she went and started residing along with her parents and after filing of the said petition, the respondent's parents and relatives aggravated the issue, started threatening the petitioner over telephone. The respondent started appearing before the Family Court at Mysuru in the said case along with rowdy elements and they have given threat to the petitioner. Subsequently, the respondent filed a civil petition before the High Court in C.P.No.75/2014 praying to transfer the said petition and accordingly the case was transferred to Family Court, Chikkamagaluru and the said -7- petition came to be withdrawn. On these grounds he prayed to dismiss the petition.
5. In order to prove the case of the prosecution, respondent got herself examined as PW1 and got marked 6 documents. The petitioner has not led any oral or documentary evidence. After hearing the learned counsels appearing for the parties, the trial Court partly allowed the petition and directed the petitioner to pay a sum of Rs.6,000/- as a monthly maintenance from the date of petition. Challenging the same petitioner/husband filed Criminal Appeal before the Principal District and Sessions Judge, Chikkamagaluru in Criminal Appeal No.185/2016. The same was heard and decided on 13.4.2017 dismissing the appeal by confirming the order of the trial Court. Challenging the same, the petitioner/husband is before this Court.
6. It is the submission of the learned counsel for the petitioner that the petition filed by the respondent under Section 12 of the Protection of Women from Domestic -8- Violence Act ('DV' Act for short) is barred by time under Section 468 of Cr.P.C. It is his further submission that the respondent/wife was not in domestic relationship with the petitioner and she herself has deserted the petitioner. About 1½ years' prior to the date of filing present the petition, the Courts below noticing the said fact being relevant, have come to the conclusion that there exists domestic relationship and has awarded the monthly maintenance. It is his further submission that if a petition has been barred by time under Section 468 of Cr.P.C. the petition has to be dismissed. He draw my attention to the order of this Court in Criminal Petition No.11476/2013 dated 8.1.2014 in the case of Gurudev and Anthor Vs. Jayashree and in another case in the case of J.Srinivas Vs. G.Dhanalakshmi in Criminal Petition No.2419/2009 dated 5.4.2013 and contended that if the petition is barred by time, then under such circumstances the petition has to be dismissed.
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7. In order to substantiate his contention he also relied upon the decision in the case of Inderjit Singh Grewal Vs. State of Punjab and Another reported in (2011) 12 SCC 588. It is his further submission that the complaint to be filed only within a period of one year from the date of incident and if it exists within the provisions of DV Act. It is his further submission that admittedly the relationship between the petitioner and respondent was seized by virtue of divorce and the divorced wife is not entitled for any maintenance. It is his further submission that provisions of Section 12 of the DV Act invoked only when there exists domestic relationship between the petitioner and respondent. By referring to Section 2A of the DV Act he further submitted that the word used is aggrieved person. In the present case, the respondent/wife is not an aggrieved person as defined in the case of the petitioner. He further submitted that the Courts below without looking into the material have come to a wrong conclusion and have wrongly allowed the petition. On these grounds he
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prayed to allow the petition and to set aside the impugned orders.
8. Per contra, the learned counsel appearing on behalf of the respondent/wife vehemently argued and submitted that the provisions of the DV Act are the special provisions and the object and intent of the said Act has to be kept into view at the time of passing the order. It is his further submission that the decision in the case of Inderjit Singh Grewal cited supra is not applicable to the present facts of the case and no ratio has been laid down by the said decision whether the provisions of Section 468 of Cr.P.C. is applicable or not. It is his further submission that the provisions of DV Act except Section 31 does not say anything with regard to penalty. The penalty comes into picture only when there is a breach of protection order by the respondent. That aspect comes into picture only when an execution petition has been filed but not in the original petition. It is his further submission that Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006
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is applicable and if that particular rule is made applicable, there exists a domestic relationship and the clear inspection can be made with regard to abuse of the rights. It is further submitted that the Courts below after considering all the facts and circumstances have rightly awarded the maintenance. He further by relying upon the decisions in the case of Japani Sahoo Vs. Chandra Sekhar Mohanty reported in AIR 2007 SC 2762, Kasturi Vs.Subhas reported in (2017) 5 Kar.LJ 453, Yogesh Anantrai Bhatt and Ors. Vs. State of Gujarat and Another reported in 2017 Crl.L.J. 615 and V.D.Bhanot Vs. Savita Bhanot reported in AIR 2012 SC 965 submitted that for the purpose of computing the period of limitation regarding bar as to taking of cognizance of offence by Magistrate, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court and offence under DV Act is an continuing offence, as such bar under Section 468 of Cr.P.C cannot be
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invoked. On these grounds he prayed to dismiss the petition.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties.
10. Though several contentions have been urged by the learned counsel appearing for the parties, actual aspects which have been led during the course of evidence have not been seriously disputed by the petitioner- husband. The first contention raised by the learned counsel for the petitioner-husband is that there is a bar under Section 468 of Cr.P.C. which imposes the limitation but the complaint has been filed under the DV Act one year eight months after the respondent-wife left the house. Whether the provisions of Sections 468 and 472 of Cr.P.C. are applicable to the DV Act is an issue before this Court. In the case of Krishna Bhattacharjee Vs. Sarathi Choudhury and Another, reported in (2016) 2 SCC 705, the said issue came up before the Court and in the said
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decision it has been observed by the Hon'ble Apex Court that the DV Act has been legislated, as its Preamble would reflect, to provide for more effective protection of the rights of the women guaranteed under the Constitution of India, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The DV Act is a detailed Act and the 'domestic violence' covers a range of violence which takes within its weep 'economic abuse' and the words 'economic abuse' as the provision would show, has many a facet. This principle has been laid down in the aforesaid decision. At paragraphs-32 and 33, it has also been observed as under:-
"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
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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 [Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588 :
(2012) 2 SCC (Civ) 742 : (2012) 2 SCC (Cri) 614] 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
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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."
11. On going through the aforesaid paragraph the said offence under the DV Act is considered to be a
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'continuing offence' and if the said context has been read along with Section 472 of Cr.P.C, so also Sections 28 and 32 of the DV Act, it makes clear that the offence is considered to be a continuing offence and demands are made and the applications which are going to be filed are not barred by limitation and the Court can grant the maintenance. Learned counsel for the petitioner-husband has relied upon the decision in the case of Inderjit Singh Grewal Vs. State of Punjab and Another (cited supra) wherein at paragraph-32 it has been observed as under:-
"32. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 CrPC, 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 2005 Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of CrPC applicable and stand fortified by the judgments of this Court in Japani Sahoo v. Chandra Sekhar
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Mohanty [(2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388 : AIR 2007 SC 2762] and NOIDA Entrepreneurs Assn. v. NOIDA [(2011) 6 SCC 508 : (2011) 2 SCC (Cri) 1015] ."
12. As could be seen from the aforesaid paragraph, the said observations have been made while making submissions made by the learned counsel no ratio laid down by the Hon'ble Apex Court. In the case of Krishna Bhattacharjee Vs. Sarathi Choudhury and Another, (cited supra) the issue was one and the same and while dealing with the said matter, a ratio has been laid down that if it is continuing offence, then under such circumstances, the Court cannot hold that Section 468 of Cr.P.C. is a bar to disclaim the respondent-wife. Under the said facts and circumstances of the case and in view of the ratio laid down by the Hon'ble Apex Court, I am of the considered opinion that the contention taken up by the learned counsel for the petitioner that there is a bar under Section 468 of Cr.P.C. is not having any force, and the same is liable to be rejected.
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13. The second contention of the learned counsel for the petitioner is that the respondent is divorced wife and therefore she is not entitled to claim the maintenance. I am surprised in respect of the said submission made by the learned counsel for the petitioner-husband. Though the respondent is divorced, it is not a judicial separation. She would remain as the wife of the petitioner through out and when the said relationship is existing, a duty is cast upon the husband to maintain her though she is a divorcee. This proposition of law has been laid down in catena of decisions of the Hon'ble Apex Court as well as by this Court. Under such circumstances, I feel that the said contention also does not have any force and the same is liable to be rejected.
14. I have gone through the judgment of the trial Court as well as the first appellate Court. Though several contentions have been taken up by the petitioner-husband, he has not stepped into the witness box and he has not
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been cross-examined. Deliberately he has kept himself away from the proceedings. The said conduct of the petitioner itself clearly goes to show that if he stepped into the witness box, truth would have come before the Court and he would be held liable in this regard for payment of the maintenance. Taking into consideration of the facts and circumstances of the case, I am of the considered opinion that the petitioner-husband has not made out any good ground so as to interfere with the orders passed by the Courts below.
The appeal being devoid of merits is liable to be dismissed and accordingly, the same is dismissed.
Consequently, I.A.No..1/209 is disposed of as it does not survive for consideration.
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JUDGE *Ap - Pages 1 to 11 ck - Pages 12 to 17