Karnataka High Court
Sri K M Revanasiddeshwara vs Smt K M Shylaja on 25 January, 2012
Equivalent citations: 2012 CRI. L. J. 2142, (2012) 116 ALLINDCAS 806 (KAR), 2012 (2) AIR KAR R 522, (2013) 4 RECCRIR 79, (2013) 1 ALLCRILR 609, (2013) 4 RECCIVR 506, (2013) 1 HINDULR 140, (2013) 2 CIVLJ 133, (2013) 2 MARRILJ 251, (2013) 2 CURCC 44, (2013) 2 CRIMES 59, 2012 (116) ALLINDCAS 806, (2012) 2 KCCR 1149, (2012) 2 KANT LJ 634, (2012) 3 DMC 599, (2012) 3 CURCC 571, (2012) 4 CIVILCOURTC 492, (2012) 3 CRIMES 725
Author: V.Jagannathan
Bench: V.Jagannathan
nee 2 Fad na e" OURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR * KARNATAKA HIGH COUR IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 25t DAY OF JANUARY 2012 BEFORE | & : kK THE HON'BLE MR.JUSTICE VJAGANNATHAN > CRIMINAL REVISION PETITION NO.836/2011 BETWEEN: Se Sri.K.M.Revanasiddeshwara, -- S/o Sri.K.M.Mahantaswamy, Aged about 41 yeare, _ Lecturer in Economics, -. Government Arts College, . Opp. Bangalore University, _ Central college campus, es a Bangalore-560 OL. oo BETITIONER (By Sri.S.S. Koti & Sri Vinayaka S, Koti, Advs.) AND: | Smt.K. M.Shylaja, Wo SriK.M. Revanasiddeshwara, Aged #4 years, -. Rfet No. B7-A, 1# floor, 5% cross, Vasanthnagar, o, Bangalore, we . .RESPONDENT (By Sri.G.R ; Gurumath, Adv.) This CrLR.P filed u/S.397 r/w 401 of Cr.P.C 7 - praying to set aside the order dated 19.06.2010 passed in Cri.Mis.No.1915/09 on the file of the 8 Addl.CMM, _.. Bangalore and further be pleased to set aside the order em" IRT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT 8 dated 4.6.11 passed by the Fast Track (Sessions) Judge, Bangalore, in Crl A.No.574/ 10 & etc., This Cri. R.P. coming on for orders this doy, the Court made the following:- ; ORDER ---- | _ Whether Sub-section a of" Section, 29 of the | Limitation Act, 1963 operates AaB a bar for fling the application under Section 5 of the said Act . before the lower appellate court in respect tof the proceedings under the Protection | of Women from Domestic Violence Act, 2005, (Domestic Violence Act, 2005" for short) im the question, that, has 6 arisen. if thie petition, 2. mt ion are ok the respondent herein being the wife. of. 'the: petitioner, filed Cri.Misc.No.1915/09 ; before the trial court under Section 12 of the Domestic Violence Act, 2005 seeking certain reliefs. The petitioner "herein being the husband contested the said application and ultimately, the trial court by its order dated -- ; 19.06.2010, directed the petitioner herein to provide os residence to the 1* respondent and in the event of the & 4 COURT C" KARNATAKA HIGH COURT.OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR petitioner giving up his rights in the government quarters, he will have to provide alternative accommodation to his wife and the court further directed the petitioner to settle the home loan to the extent af his = liability and the res pondent-wife shall not be e made cable oa towards the settlement of home loan, The court also o directed the petitioner to give the benvefite te. his wife in the event of the petitioner resigning from his job. The trial court also passed. arn order "subsequently on 22.06.10 following the, additional affidavit filed by the complainantwife cand. "orders 'that the order of maintenance passed, corlier shall. become absolute and gave direction to the drawing officer of the petitioner to directly remit the maintenance amount to the court. dated 19.06, 10, preferred an appeal before the lower appellate court under Section 29 of the Domestic oS ~ Violence Act, 2005 and also filed an application seeking : condionation of delay in preferring the appeal by . 7 contending that the delay of 7 days in preferring the a appeal was for bonafide reasons and therefore, the as -OURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT application filed under Section 5 of the Limitation Act be allowed. 4. Learned Judge of the lower appellate court, dismissed the IA. filed seeking condonation of eelay in preferring the appeal as not - maintainabie end consequently, the appeal was also dismissed. It is thi order of the lower appellate court that Ee called in | question by the husband § in this revision petition, 3. Sr.8.8.Koti, learned Counsel for the revision petitioner submitted thet. the 'ower 'appellate court committed | error an holding 'that Section 5 of the Limitation Act has no application to the Domestic Violence Act, 2008 and | it has observed that Section 29 of the Limitation Act.is a bar to present an application "under Section 5 of the said Act. The lower appellate court though has observed in the course of its order that there is only six or seven days delay, the reasons | given by the lower appellate court for dismissing the LA. oo : filed therefore cannot be sustained in law, particularly oS having regard to the provisions contained in the be TEMUURT Fo KRARNALAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUF Limitation Act as well as in the Domestic Violence Act, 2005. In support of the said contentions, reliance is placed on the following decisions:- . : . 197&2} SCR S.C.260, ILR 2010 KAR 249, LR 1987 KAR 2844, J.T.2000 (5) 8.C. 389, AIR 2008 sow ; 5692 & 2010 (2) KCCR 1114. - | G On the other hand, "submission | of | Sri.G.R.Gurumath, learned Course! for the respondent ig that the lower appellate ceurt comineitted no error in helding that the application: under | Section 5 of the Limitation Act § is not maintainable and learned Counsel drew nly / attention i in this regard to Sub-section (3) of Section 29 ef the Limitation Act. to contend that save ae otherwise provided in eny law for the time being in force with: respect, to marriage and divorce, nothing in the Limitation. Act 'shall apply to any suit or other oe proceeding under any such law. Therefore, it is argued thet by virtue of Subsection (3}, Sub-section (2) of | Section 29 also will have to be ruled out and the view ; 7 taken by the lower appellate court therefore is the - correct view. In this connection, learned Counsel also ee t pointed out that the provision for preferring the appeal against an order passed by the Magistrate under the Domestic Violence Act, 2008 is contained in Section 29 of the said Act which provides that appeal shall te wo the Court of Sessions within 30 days from the date eon - which the order made by the Mogistrta is 'served ¢ on the aggrieved person. 7. Therefore, it i. submitted that 'a combined reading of Section 29° of 'the Domestic Violence Act, 2005 and Sub-section (3) of the 'Limitation Act would give raise to take the view that Section S of the Limitation Act has. no 'pplication to the proceedings arising out of the Domestic Violence Act insofar ae the appeal in concerned. --_ B.. Learned Counsel for the respondent also submitted thet the petitioner had suppressed certain tacts before the trial court and though there was no | "order of stay granted by this Court, the trial court was oo : informed that there was stay of the order passed by the OURT OF KARNATAKAHIGH COURT GE KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT ~ wt "trial court in Cri.Mia.No.1915/09.- As such, the he MUU EY RARNAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COU! petitioner by his own conduct, has deprived himself of any relef at the hands of this Court in this revision petition. It is also submitted that the petitioner has been charge sheeted in respect of certain offence: ies, os 498-A of IPC and apart from that he bas committed 7 perjury, and as such, for this reason else the revisiois oe petition is liable to be dismissed. -- Oe 9. The decisions referred to by learned Counsel for the respondent with regard to the, non-epplication of Section 5 of the Limitation Act' to the proceedings before the lower appeliate court under the Domestic Violence Act are the following:- ae | 1996 Orbit. 24 18, AIR 1989 SC 1477, AIR 1975 sc 1039, AIR 1962 sc 247, AIR 1962 SC 1716, AIR 2001 sc 4010, 1996 CrbLJ. 2418, CrLP.No.4707/11 ac a. 21. 10. 2011, 20091) Marriage Law Journal page 290 oe and 20 nC) Marriage Law Journal page 306. 10. In the light of the conteritions put forward and os 4 the decisions cited by both sides, I now proceed to ke COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT answer the question raised at the beginning of this order. 11, Since, the learned Counsel for the respondent, mainly referred to Sub-section (3) of Section 23 of the Lumitation Act, the provisions cortairied. i in Section 29 of : the Limitation Act therefore will have to be referred te, . at this juncture for proper appreciation of the contentions put forward, The suid Section reads ad under:- 239.. Savings - 41) Nothing in this Act shall attect Section. a5. of the Indian Contract Act, 1872 (9 of 1879). | (2) 'Where any apecial or local law preacribes for any suit, appeal or application a period of: limitation different from the period preecribed by the Schedule, the a provisions of section 3 shall apply as if auch oo period were the period prescribed by the - - Schedule and for the purpose of determining "eny. period of limitation prescribed for any Suit, appeal or application by any special or focal law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they be are not expressly excluded by auch special or local law. (3) Save aa otherwise provided in any . | law for the time being in force with reapect to - . | marriage and divorce, nothing in this Act | | shall apply to any suit or other proceeding - a under any euch law. . . (4) Sections 25 and 26 end 'the we definition of "easement" in section | 2 shell not apply to cases. arising ; in the territories to which the Indian Easercen's Act, "4882 {5 of 1882}, may for the time being extend. 12. It 3 is clear from Sub-eeotion (2) of Section 29 of the above that the provisions contained in sections 4 to 24 of the Limitation Act shall apply in so far as to the extent to which they ave not expressly excluded by such ms epecial oF - oa law. Therefore, in the absence of any specific 5 provision in the Domestic Violence Act, 2005, the application of Sub-section (2) of Section 29 therefore - "cannot I be prevented. In other worde, the provisions to os Sections 4 to 24 will aleo apply, as the said provisions we ~ heal 1 COURT ¢ = KARNATAKA HIGH COURT-OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR 'OURT OF KARNATAKAHIGH COURT GF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT wees ue ms -10- have not been expressly excluded by the Domestic Violence Act, 2005. 13. However, a reading of Sub-section (3), gives an 7 impression that nothing in the Act shall apply save ye a8 | otherwise provided im respect of marrige and divorce. . Submission of learned Counsel for the respondent is that, as the Protection of Women from Domestic Violence Act, 2005 has. been 'enacted to "protect the women being the victims of domestic violence, it is therefore contended that he reference to the statement of objects aad « reasons that tise provisions contained in Sub-section (3) of Section 29 will be applicable even to the Domestic Violence Act aid it is not restricted only to the lew ate to marriage and divorce. "4. "Learned Counsel for the reapondent also contended that the provisions contamed in Sub-section (3) of Section 29 will have to be construed in the literal a "sense and the courte have no power to read what is not we ; there in the law. In other words, the legislation alone is ponstrained to make the law and the task of the a VQOUR! LC: KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR -U- judiciary is only to interpret the law as laid down by the legislation. In this connection, learned Counsel referred to several decisions. 15, The aforesaid argument of the respondents 7 Limitation Act bars the application of Section 5 ¢ of the | Limitation Act and the proceedings before the lower appellate court in respect of. the order passed under the Domes tic aera Act carinot' be. "accepted for the following reasorm.. ak | a Sub-s= sction @) of Section: 29 of the Limitation Act takes. it clear that the provisions contained in Sections 4 to 24 shall apply even in 1 respect of epecial law or local law uiiless the said pi provisions are expreasly excluded by - 'the special or local law. The provisions contained in the Protection of Women from Domestic Violence Act, 2005 oe do not expresaly exclude the application of sections 4 to oS 4 af the Limitation Act. This is clear from a reading of Section 36 of the Domestic Violence Act, 2005, which . Section reads as under:- be ~ -12- 36.Act not in derogation of any other law. - The provisions of this Act shall be in addition to, and not in derogation of -_ the provisions of any other law, for the time _ : being in force. we Limitation Act is often referred to as an adjective or procedural law. 16. Now coming to Sub-section @)¢ of Section 29 of the Limitation Act, a. plain' reading of the provisions contained therein, makes it clear 'that it is only in respect of the marriage and divorce that the said sub- section provides that the provisions 'of the limitation Act shall nat erply to. any suit or other proceedings under any such: law. What is 'contemplated therefore ia in respect of the law relating to marriage and law relating ws tod divorce ¢ and there is no scope for reading into sub- ection (3) and the provisions relating to Protection of Women from Domestic Violence Act, 2005. In this - -gGtitspetion, it will be useful to refer to the decision os touching upon Sub-section (3) of Section 29 of the . Limitation Act. While commenting Sub-aection (3) of OURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT ~ ws & TGUURT G > KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COU! -13- Section 29 of the Limitation Act, learned Author BASU in his commentary on Law on Limitation Act, 1963 (7th Edition), has observed thus:- 8. Bub-section (3).- Sub-section (3) of Sec.29, Limitation Act, 1908, makes - a | the Divorce Act, 1869. There are other Acts, -- | like the Parsi Marriage and Divoroe Act and | the Special Marriage "Act, "dealing" with tarriage and divorce. 'The reasons for excluding proceedings © under the Divorce Act, 1969, are equally. applicable to proceeding, under those other 'Actr. Sub- clause 3) of the 'present section amplifies Sec. 2X3} of the. fepealed Act, 80 aa to exclude the application of this law to suite under any law, dealing with marriage or wad divorce, a | *s . Y. w false also can be made to the comments in | respect of Section 29 sub-clause (3) as found in the Law of Limitation and Prescription of the learned Author a "ULN.Mitra at page 612. The comments reads thus:- -- 7. Gection 29, sub-section (3).- Sub- section(3) of Section 29 of the Act of 1908 we x. + -14- provided that "nothing in this Act shall apply to suits under the Indian Divorce Act". According to Section 293) the Act is not applicable to a suit or proceeding under the i . law relating to marriage and divorce. This. a Section 293) is not applicable to time barred . Maintenance application on the allegation of : oe solemnization of marriage "before a commencement of Hindu Marriage Act. | Appeals from decree in such suits. would be thus outside the. purview: of the section; likewise suits and proceedings relating to matrimonis: CALIEES under other enactments. There are a number of auch Acts like the Parai Marriage and. 'Diverce' Act, the an Marriage Act | (formerly) Act Il of 1872), no Act XL of 1954, the Hindu Marriage Act KV of 1955), 'and the Dissolution of Muslim Marriages 'Act (I of 1939), etc. The Lew Commission had observed (see Third a Report, para, 60) : Subsection (3) makes © this | 'Act. inapplicable to suits under the ~ Indian Divorce Act,1869. There are other acts like the Parsi Marriage and the divorce - - "Act and the Special Marriage Act, dealing OURT OF KARNATAKAHIGH COURT GE KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT -
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with marriage and divorce. The reasons for excluding proceedings under the Divorce Act, 1869, are equally applicable to be
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proceedings under those other Acts. We recommend that the sub-section may be amphfied to inchide all Acts relating to...
matrimonial causes. The Acts to be inchided - may be specified when drafting - "the - oO amendment to the Section". aon i .
Reasons, the present subeecctin 'a _ amplified Section 29(3: of the hot of 1908 ao. :
as to exclude the application of th vis law to suita under arly law dealing with marriage and divorce. But. the rece mmendation of the Law Comnussion that these laws may be specified | haw nwt, however, been done.
18. imi it is. er that Sub-section (3) of Section 29 only bars the » application of the provisions of the acid Act in respect of any law relating to marriage : ; 'end divorce, 'Since the matter relating to Protection of Women. froin Domestic Violence Act, has not been S. included 'ia: Sub-section (3) of the said Act, the question my of provisions of the Limitation Act not being applicable tn the proceedings before the lower appellate court and . 7 the question of the application under Section 5 of the
- Limitation Act also not being maintainable in respect of be \ re wus | KAKNALAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUF "YURI UP RARNALTARAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT -16- the appeal preferred under the Domestic Violence Act therefore cannot arise.
19. The lower appellate court committed © serous error in rejecting the application filed under Section 5 S of : Ba the Limitation Act for condonation of celay. te isa 7 different matter, whether the petitioner has made out a case for condonation of delay or not; but Le, not a ground to hold that the application filed under Section 5 of the Limitation Act itself is 'not maintainable, Since, a reading of the | Provisions" contained an the Domestic Violence Ast does. not. bax the 'application of the provisions oft the Limitation Act in 1 respect of the appeal, the view taken by che court below cannot be sustained in law.
oe 20. Aa the lower appellate court did not go into the merits of the appeal, it would be unnecessary for this a "Court to go into the said aspect of the matter, though | "earned Counsel for both sides touched upon the merits * > of the case as well. Aa far as the decisions cited by both
- sides are concerned, in view of the aforesaid reasons be Ta Ne UMAIRINATARA PIG COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COU!
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and Domestic Violence Act itself not preventing the application of any other law, the decision referred to therefore are not considered in detail. :
21. Though, learned Counsel for the mF wer | in preferring the appeal, by. refert! ng to the provisione -
contained in Section 29 of the 'Domestic Viblence 4 Act, 2005, since in the inatant case, "the petitioner has already obtained the order from the trial court and had preferred an: Sppeal,, the need. to consider the conteritions urged 3 in this, connection | therefore may not arise in the preset at case and in an appropriate case, guch aspect could ive considered.
22, Por the above reasons, the revision petition is
- . allowed and the order of the lower appellate court diamiasing the LA. as well ae the appeal is set aside.
The lower appellate court to consider the application | filed for condonation of delay and it is also open to the > 7 respondent te urge the contentions concerning the
- petitioner having suppressed certain facts and at the Je
-OURT OF KARNATAKAHIGH COURT CF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT
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same time, the petitioner is also given liberty to put forward before the lower appellate court his contention that this Court had granted stay of the order of the lower appellate court and the lower sori eu = lower appellate court had conceim 'the: stay order ie differently in reapect of both the orders > passed by. the trial court, it is for the lower appellate court to consider as to whether the petitioner hes. made any incorrect statement or not. It in s necdless 1 tos say that this Court had only stays od the onder of the } lower -t appellate court.
Sd/-
JUDGE Sri.