Bangalore District Court
In Amrut A Kulkarni vs In Aged About 35 Years on 17 June, 2021
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 17 th day of June, 2021
PRESENT
Smt. K.KATHYAYANI, B.Com, L.L.M .
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
Crl.Appeal Nos.84/2020 & 205/2020
Appellant in Amrut A Kulkarni,
Crl.Appeal Aged about 39 years,
No.84/2020 and
S/o Anand N Kulkarni,
R/at No.127, BHEL Layout,
Kenchenahalli,
Rajarajeshwari Nagara,
Bengaluru - 560 098.
(By Sri.Manohar MRC., Advocate .)
/VS/
Rashmi Hongunti,
Respondent in Aged about 35 years,
Crl.Appeal W/o Amrut A Kulkarni,
No.84/2020 and R/at No.H-103, Mantri Alpyne,
Uttaralli Main Road,
Banashankari 5th Stage,
Bengaluru 560 061.
(By Smt.T.R.Rajeshwari, Advocate.)
/Vs/
Appellant in Rashmi Hongunti,
Crl.Appeal Aged about 35 years,
No.205/2020
W/o Amrut A Kulkarni,
R/at No.H-103, Mantri Alpyne,
Uttaralli Main Road,
Banashankari 5th Stage,
Bengaluru 560 061.
(By Smt.T.R.Rajeshwari, Advocate.)
Crl.A.No.84/2020 & 205/2020
2
Respondents in /VS/
Crl.Appeal 1. Amrut A Kulkarni,
No.84/2020
S/o Anand N Kulkarni,
Aged 38 years.
2. Sharadha,
W/o Anand Rao,
Aged 65 years.
3. Anand N Kulkarni,
S/o Narayan Rao,
Aged 69 years.
4. Aditya Kulkarni,
S/o Anand Kulkarni,
Aged 34 years.
All are residing at No.127,
BHEL Layout, Kenchenahalli,
Rajarajeshwari Nagar,
Bengaluru 560 098.
(By Sri.Manohar MRC., Advocate .)
COMMON JUDGMENT
Both the above appeals are filed by the respective
appellant/appellants under Section 29 of the Protection of
Women from Domestic Violence Act, 2005 (for short, "the
Act") being aggrieved by the order passed on I.A.No.I in
Crl.Misc.104/2019 (for short, "the present case") dated
20.12.2019 by the learned MMTC-III, Bengaluru.
2. For the sake of convenience, the ranks of the
parties are retained as they are before the learned
Magistrate Court.
Crl.A.No.84/2020 & 205/2020
3
3. The record reveals that the petitioner has come up
with the present case under Section 12 of the Act for an
order to take cognizance of domestic violence and direct
her husband/the 1st respondent,
a) to pay the EMI regularly to the State Bank of India,
PBB, Jayanagar Branch, in respect of house loan availed
for purchase of the Flat No.H103, Mantri Alpine,
Uttarahalli, Bengaluru under Section 19;
b) direct him to pay monetary relief for her and her
child under Section 20;
c) to pay educational expenses of the child; and
d) to grant compensation or damages under Section
22 of the Act.
4. On 05.08.2019, the petitioner filed IA.No.1 under
Section 19 read with Section 23 of the Act to direct her
husband to clear the EMI that has fallen in arrears since
August-2019 and to direct to keep paying EMIs regularly.
5. The grounds urged by the petitioner in the affidavit
in support of IA.No.1 are that;
a) She and the 1st respondent/her husband both
jointly decided to purchase a Flat for their separate
Crl.A.No.84/2020 & 205/2020
4
residence considering the harassment at the hand of the
2nd respondent/her mother in law.
b) She and 1st respondent decided to purchase a 3
bed room Flat in Mantri Alpyne at Vishnuvardhana Road,
Banashankari 5th Stage.
c) The project was just started and was about to
complete by 2014.
d) In May 2012, she and the 1 st respondent jointly
paid down payment of Rs.6 lakhs. She contributed Rs.3
lakhs and the 1st respondent initially paid Rs.2 lakhs and
later, they arranged for the remaining Rs.1 lakh.
e) The EMI started around from August-2012.
Initially, the loan account was in Axis Bank in the name of
the 1st respondent. However, she used to transfer 50% of
the EMI amount to the account of the 1st respondent.
f) Later, the 1st respondent insisted to have joint
account and since then, 50% of EMI amount was directly
transferred from her salary account.
g) She has been paying her 50% of EMI at the rate of
Rs.24,500/- per month and the 1 st respondent was also
contributing the same amount towards the EMI.
Crl.A.No.84/2020 & 205/2020
5
h) Since, there was a need to pay Rs.10 lakhs at the
time of taking possession to the builder and to meet the
other expenditures such as interiors and furnitures, the 1 st
respondent opened a RD account in ICICI Bank in his
name and directed her to transfer Rs.15,000/- every
month to that account.
i) The interior and other necessary things were done
by November-2016. They did a house warming ceremony
by doing homa and other poojas.
j) Thereafter, they were visiting the Flat to make the
house livable for by making TV cabinets, lighting
accessories etc.
k) At the end of March-2017, when it was decided to
move to the apartment, the 1st respondent not only started
behaving oddly and avoiding joining, but also started
picking up the quarrel with her for no reasons.
l) Later, he came with a demand to sell the Flat for
which she was totally shocked and when she refused for
the proposal to sell the Flat, the 1 st respondent started her
to pressurize to transfer her share of right to him so that
he would sell the property.
Crl.A.No.84/2020 & 205/2020
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m) The 1st respondent got issued a legal notice to her
giving a wrong address and by stating incorrect statements
seeking restitution of conjugal rights and stopped paying
the EMI from March-2018 and on confronting with the
reply notice, he started paying the EMI.
n) The 1st respondent deliberately stopped paying the
EMI since February-2019. She is unable to save any
amount after spending the EMI and maintaining 2 houses
and also the child. Due to threat of disconnection of water
supply, she was forced to pay Rs.16,183/- on 27.08.2019
towards the part of arrears of Rs.38,000/-.
o) That apart, she paid Rs.1,25,000/- apart from
Rs.70,000/- paid by the 1st respondent towards the
admission of the child to the school.
p) Due to the financial crunch, she was unable to pay
her part of EMI for the months of April , May and July-
2019. She has taken hand loan from friends to meet the
school expenditure of the child and also pay the arrears of
maintenance charge of the Flat.
q) The 1st respondent is drawing a salary double to
the amount of her, is liable to pay the EMI of the Flat. The
Crl.A.No.84/2020 & 205/2020
7
1st respondent is not paying his part of EMI to the bank
with an ulterior motive to throw her and the child on the
road and instigating the bank to take necessary action.
r) The 1st respondent is working in Cisco Systems
India Pvt. Ltd. and he is earning sum of Rs.3 lakhs per
month. Apart from payment of Rs.25,000/- of EMI, he has
no other liability as such.
s) The 3rd respondent is a retired employee and is
getting pension of Rs.25,000/- per month and he owns
properties in Hubli and Bengaluru. Hence, the 2 nd and 3rd
respondents are not depending on the 1st respondent.
t) She has been receiving phone call from the bank
demanding to pay the EMI although, she has paid her part
of EMI. The bank has threatened her that they would
initiate action under SARFACIA Act.
u) She is under constant threat and mental torture
due to the 1st respondent not paying the EMI in spite of his
financial capability.
6. On the other hand, admitting purchase of the Flat
jointly, the defence raised by the 1st respondent in his
objections to IA.No.1 is that;
Crl.A.No.84/2020 & 205/2020
8
a) The petition, itself is not maintainable, as they are
not living together as on the date of filing the above petition
and in fact, they are living separately for the last more than
3½ years.
b) He never tortured the petitioner at any point of
time and on the other hand, the petitioner herself tortured
him and his family members without any valid reasons.
c) He incurred heavy financial losses for paying
installment and interest on the borrowed loan and has not
received any returns right from 2012 till date. Added to
this, his mother is a canner patient and he has to incur
heavy medical expenses and hence, he is not in a position
to pay the EMI.
d) The petitioner has deserted him and the
matrimonial home since December-2015. She is gainfully
employed. He sent a legal notice to her to join him back at
the matrimonial home, but instead of joining the
matrimonial home, she made false allegations in the reply
notice and refused to join him in her matrimonial home.
e) The income stated by the petitioner i.e.,
Rs.76,000/- per month itself is sufficient to lead a
Crl.A.No.84/2020 & 205/2020
9
comfortable life, wherein her actual income is more than
her above stated income.
f) The Flat occupied by the petitioner has never been
a shared household with any of the respondent at any
point of time.
7. On hearing the above application and the
objections thereto, the learned Magistrate was pleased to
allow the said application vide order dated 20.12.2019 and
directed her husband to pay EMI regularly towards
housing loan as he was paying earlier from the date of
petition till further orders.
8. Being aggrieved by the said order, the 1 st
respondent has come up with the above Crl.Appeal
No.84/2020 reiterating his above noted case and on the
grounds that;
a) The application under Section 19 read with Section
23 of the Act filed by the petitioner is frivolous, vexatious
and not maintainable either in law or on facts and the
same is liable to be set aside.
b) The allegations of the petitioner of domestic
violence are false and far from truth.
Crl.A.No.84/2020 & 205/2020
10
c) The main petition itself is not maintainable since
they were residing separately for more than 3½ years.
d) He has issued a legal notice to the petitioner on
03.04.2018 calling upon her to come and join him. She
instead of joining him has given vague reply on 17.04.2018
making false allegations and has stated that she has
shifted to her parent's house in December-2015.
e) She has admitted that she is residing in the said
apartment since March-2018 which clearly indicates that
she was not staying with him since December-2015. As per
the decision of the Hon'ble High Court of Karnataka when
the parties are not lived in a shared household, they
cannot make an application under Section 12 of the Act.
f) Admittedly, the petitioner is residing separately for
the last 3½ years and in terms of Section 468 of Cr.P.C. the
petition is barred by limitation, she would have filed the
petition within one year from the separation and hence, on
this score itself, the petition is liable to be dismissed.
g) He has never tortured the petitioner, but she has
subjected him and his family members to torture.
Crl.A.No.84/2020 & 205/2020
11
h) The Flat was purchased for the purpose of
investment only and not to reside separately due to
harassment at the hands of his parents as alleged by the
petitioner.
i) He has incurred heavy financial loss for paying
installment and interest on borrowed loan and has not
received any returns right from 2012 till date. His mother
is a cancer patient and he has been incurring heavy
medical and dietary expenses.
j) The petitioner has deserted him since December-
2015 and also she is gainfully employed.
k) The petitioner has stated that her take home salary
is Rs.76,000/- which is sufficient to live a comfortable life.
But, she has concealed her actual income and deliberately
not produced her salary slip and she is getting take home
salary of more than Rs.76,000/- and she also gets half
yearly bonus from her employer CISCO.
l) The Flat occupied by the petitioner was never been
a shared household with him at any point of time and his
salary was never Rs.3 laksh as stated by her and she with
mala fide intention has stated a blown up figure.
Crl.A.No.84/2020 & 205/2020
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m) The trial Court erred in passing the impugned
order under Section 19 read with Section 23 of the Act as
Section 19 of the Act mandates that (1) while disposing of
an application under sub section (1) of Section 12, the
Magistrate on being satisfied that domestic violence has
taken place, pass a residence order.
n) Though the requirement under Section 12 of the
Act was not proved still the evidence is not led and the
documents were not placed before the Court. The Court
erred in passing an order of residence under Section 19
read with Section 23 of the Act before the petitioner proves
that there was a domestic violence.
9. The petitioner appeared through counsel and filed
objections in Crl.Appeal No.84/2020 reiterating her
aversions in support of IA.No.1 noted above and in
addition, contending that since the 1st respondent did not
comply the order and obtained an order of stay, she has
paid a sum of Rs.1,05,000/- in addition to her part of EMI
payable at Rs.25,000/- per month in January-2020 by
taking hand loans towards the part of the EMIs payable by
him.
Crl.A.No.84/2020 & 205/2020
13
10. The petitioner has come up with the above
Crl.Appeal No.205/2020 on the grounds that;
a) The order passed by the trail Court is without
appreciation of the material on record and without
considering the facts of the case.
b) She has specifically contended in the application
that the 1st respondent has deliberately stopped paying the
EMI towards the Flat since February-2019 and for the past
12 months, the EMI has not been paid and hence, the
order suffers from infirmity on the said ground.
c) The trial Court ought to have allowed the
application in toto instead of allowing in part since the
Court has taken into consideration the admitted fact by the
1st respondent in the statement of objections that the Flat
was purchased jointly by him along with her and both of
them were paying the installment amount.
d) The trial Court has not assigned any reason while
allowing the said application partly as to why the order is
made from the date of petition and not from the day of the
1st respondent has fallen in arrears.
Crl.A.No.84/2020 & 205/2020
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e) The 1st respondent is working in Cisco Systems
India Pvt. Ltd. and he is earning a sum of Rs.3 lakh per
month. Apart from Rs.25,000/- of EMI, the 1 st respondent
has to pay maintenance and other charges. He has no
other liability as such.
f) The bald statement that the 1 st respondent is not
financially in a position to pay the EMI is not sustainable.
That apart, the 1st respondent justifies his action on the
convention that the Flat does not fetch any rent. The
moment the 1st respondent admitted to the said contention,
he has committed economic offence so as to put her and
the child in a threat of dispossession from the property at
the hands of the Bank.
g) She in her pleadings has substantiated the
domestic violence committed by the respondents at length
and also the police complaint lodged by her before the RR
Nagar police when the 1st respondent and his brother
assaulted her on 20.04.2018.
h) The 1st respondent had committed default of EMI
at that time and after the police admonished him, he paid
the EMI from May-2018 to February-2019.
Crl.A.No.84/2020 & 205/2020
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i) The 2nd to 4th respondents are not dependents on
the 1st respondent. The 3rd respondent is a retired employee
and is getting pension of Rs.25,000/- per month. Apart
from that, he owns the properties in Hubli and Bengaluru.
The 4th respondent is also gainfully employed.
j) The trial Court has not assigned any reasons for
not directing her to pay EMI from February 2019 to August
2019. The same will be financial burden on her for which
she is not in a position to pay the EMI for those months.
k) The bank has issued possession notice on
20.11.2019 and sale notice on 27.11.2019 to her and the
1st respondent. At any point of time, the bank may initiate
proceedings in public auction of the house and if it is so,
then her life along with her child will be in jeopardy.
Hence, the impugned order deserves to be modified.
11. In this appeal of the petitioner, the 1 st respondent
filed his statement of objections contending that;
a) He has filed the appeal challenging the impugned
order directing him to pay the EMI from the month of
February-2019 which amounted to Rs.1,50,000/- as on
date of filing of the petition and also for issuance of
Crl.A.No.84/2020 & 205/2020
16
direction to keep paying the EMI regularly towards the
housing loan and if he succeeds in his appeal, this appeal
will not survive.
b) The petitioner left the matrimonial home during
December-2015. From that day onwards, she is residing
separately and hence, she is not in the shared household
and as such, she is not entitled to claim any reliefs under
Sections 12, 19, 21 and 23 of the Act.
c) The petitioner is working as a IT Engineer in
CISCO an American MNC and gainfully employed drawing
a monthly take home salary of Rs.1,25,000/- and able to
maintain herself and the child comfortably. As such, she is
not entitled for any interim relief as claimed by her.
d) He is sharing expenses towards the welfare of the
child and the same is admitted by the petitioner in the
present case filed under Section 12 of the Act.
12. Secured the trial Court record.
13. During the trial, the counsel for the 1 st
respondent retired from the case and the 1 st respondent in
person contested the matter.
Crl.A.No.84/2020 & 205/2020
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14. Heard both the sides on merits of the case. In
addition, the 1st respondent has also filed his written
arguments.
a) In support of his oral arguments, the counsel for
the petitioner has produced the online printout of the
decisions/judgments in;
1) Criminal Revision Petition No.730/2019 on the file
of the Hon'ble High Court of Karnataka, Bengaluru.
2) CRM-M-37116 of 2012 (O&M) and
3) CRM-M-No.29008 of 2014, both on the file of the
Hon'ble High Court of Punjab and Haryana at
Chhattisgarh.
4) Criminal Revision Application No.611/2015 on file
of the the Hon'ble High Court of Gujarat at Ahmedabad.
5) (2016) 2 Supreme Court Cases 705.
b) On the other hand, the 1st respondent has
produced the online printouts of the decisions/judgments
in;
1) Crl.M.C.No.3878/2009 on the file of the Hon'ble
High Court of Delhi.
2) CRR.No.3104/2014 with CRAN No.559/2015 on
the file of the Hon'ble High Court of Calcutta.
3) S.B.Criminal Revision Petition No.364/2012 on the
file of the Hon'ble High Court of Rajasthan.
Crl.A.No.84/2020 & 205/2020
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4) No.34053/2019 on the file of the Hon'ble Supreme
Court of India.
5) Criminal Application No.160/2011 on the file of
the Hon'ble High Court of Bombay.
6) Criminal Petition No.2419/2009 and
7) Criminal Revision Petition No.1146/2019 both on
the file of the Hon'ble High Court of Karnataka.
8) CRL.O.P.No.29476 of 2017 and Crl.MP.Nos.16653-
16654 of 2017 on the file of the Hon'ble High Court of
Madras.
9) FAM.No.97 of 2014 on the file of the Hon'ble High
Court of Chhattishgarh.
10) Cr.C.No.19979/2019 on the file of the Hon'ble
High Court of Madhya Pradesh.
11) FAO(OS)341/2007 on the file of the Hon'ble High
Court of Delhi.
12) Civil Appeal No.4666 of 2008 (Special Leave
Petition (Civil No.17260 of 2007);
13) Civil Appeal No.2500/2017;
14) Criminal Appeal No.1635 of 2011; and
15) Criminal Appeal No.1545 of 2015 all on the file of
the Hon'ble Supreme Court of India.
c) This Court has carefully gone through the written
arguments filed by the 1st respondent in person and also
the above noted decisions/judgments relied on by the
respective parties and perused the record.
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15. On the basis of the grounds made out, following
points are arisen for the due determination of this Court in
both the appeals.
1) Whether the respective appellants
prove the grounds urged by them in
support of their respective appeals?
2) Whether the impugned order
requires interference by this Court?
3) What Order?
16. The findings of this Court on the above points
are;
1) Points Nos.1 & 2 : In Affirmative in respect of
Crl.A.No.205/2020 and in
Negative in respect of
Crl.A.No.84/2020.
2) Point No.3 : As per the final order for
the following reasons.
REASONS
17. POINTS Nos.1 AND 2:- As the findings on point
No.2 is consequential to the findings on point No.1, they
are taken together for consideration.
18. The above noted pleadings clearly demonstrate
that there is no dispute between the parties with regard to
the facts that;
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a) The petitioner is the wife of the 1st respondent; the
2nd and 3rd respondents are the parents and the 4 th
respondent is the brother of the 1st respondent.
b) Both the petitioner and the 1st respondent are
working in CISCO, an American MNC Company.
b) Both the petitioner and the 1st respondent
purchased the Flat in question jointly and were paying
50% of EMI each and the 1st respondent did not pay his
50% share of the EMI from February 2019.
c) The petitioner and the 1st respondent had
performed the house warming ceremony of the Flat with
the customary homas and poojas and the petitioner has
been residing with their daughter in the Flat since March
2018.
d) The 3rd respondent is a retired employee and
getting pension and the 4th respondent is also employed.
e) The 2nd respondent is a house wife and is a cancer
patient.
f) The petitioner and the 1 st respondent begotten a
daughter and the 1st respondent paid Rs.70,000/- for the
school admission of their daughter.
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19. The facts in dispute between the parties are;
a) It is the case of the petitioner that the Flat was
purchased for their separate residence due to the
harassment of the 2nd respondent and on the other hand, it
is the contention of the 1st respondent that the Flat was
purchased as an investment.
b) The 1st respondent apart from making the payment
of EMI and the maintenance charges of the Flat has had no
other responsibilities as the rest of the respondents are not
depending on him. On the other hand, it is the contention
of the 1st respondent that he has incurred heavy loss due
to payment of EMI and the interest on the loan borrowed
without any returns from the Flat since 2012, that apart
he has to incur heavy expenses towards the medicine and
diet for his mother who is a cancer patient.
c) The allegations and counter allegations of the
parties with regard to the alleged harassment and the
quantum of income they have had.
20. All the above disputed facts require a full pledged
trial.
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21. So far the present appeals, the above noted rival
contentions of the parties clearly demonstrate that main
grounds urged by the 1st respondent in support of his
appeal are;
a) Since the petitioner has deserted him and has been
residing separately since December-2015, she cannot
maintain the present case under Section 12 of the Act.
b) The present case ought to have filed within one
year under Section 468 of Cr.P.C. and thus, it is hit by
limitation.
c) The Flat was purchased for the investment purpose
and not for self occupation. He has incurred heavy loss for
payment of EMI and interest accrued on the loan without
returns for 7 years.
d) The petitioner is gainfully employed and has salary
of Rs.1,25,000/- apart from the other incentives and
bonus.
e) He has no income of Rs.3 lakhs per month as
stated by the petitioner. He has to incur heavy medical
expenditure for his mother/the 2nd respondent who is a
cancer patient.
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23
22. On the other hand, the ground urged by the
petitioner in support of her appeal is that the trial Court
has erred in directing the 1st respondent to pay the EMI
from the date of petition instead from the date of due.
23. As rightly contended by the 1st respondent that if
he succeeds in his appeal, the appeal of the petitioner has
to fail. Hence, let this Court to take the grounds urged by
the 1st respondent first one after another and thereafter the
ground urged by the petitioner in support of her appeal.
24. As noted above, the first and foremost ground
urged by the 1st respondent is that the petitioner cannot
maintain an application under Section 12 of the Act as she
is residing separately from last 3½ years.
25. So before venturing on the merits of this ground,
let this Court to go through the relevant provisions of law
in this regard i.e., first Section 12 of the Act which is
extracted here below;
"12. Application to
Magistrate.- (1) An aggrieved person
or a Protection Officer or any other
person on behalf of the aggrieved
person may present an application to
the Magistrate seeking one or more
reliefs under this Act:
Crl.A.No.84/2020 & 205/2020
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Provided that before passing any
order on such application, the
Magistrate shall take into
consideration any domestic incident
report received by him from the
Protection Officer of the service
provider.
(2) The relief sought for under
sub-section (1) may include a relief for
issuance of an order for any payment
of compensation or damages without
prejudice to the right of such person to
institute a suit for compensation or
damages for the injuries caused by the
acts of domestic violence committed
by the respondent:
Provided that where a decree for
any amount as compensation or
damages has been passed by any
Court in favour of the aggrieved
person, the amount, if any, paid or
payable in pursuance of the order
made by the Magistrate under this Act
shall be set off against the amount
payable under such decree and the
decree shall, notwithstanding anything
contained in the Code of Civil
Procedure, 1908 (5 of 1908 ), or any
other law for the time being in force,
be executable for the blance amount, if
any, left after such set off.
(3) Every application under sub-
section (1) shall be in such form and
contain such particulars as may be
prescribed or as nearly as possible
thereto.
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(4) The Magistrate shall fix the
first date of hearing, which shall not
ordinarily be beyond three days from
the date of receipt of the application by
the Court.
(5) The Magistrate shall
endeavour to dispose of every
application made under sub-section (1)
within a period of sixty days from the
date of its first hearing.
26. For the better understanding of the above
provision, let this Court to have a look at the definitions of
"aggrieved person", "respondent" and "domestic violence"
i.e., Sections 2(a), (q) and (g) of the Act which are extracted
here below.
"2. Definitions.- In this Act,
unless the context otherwise require,-
(a) "aggrieved person" means
any woman who is, or has been, in a
domestic relation with the respondent
and who alleges to have been
subjected to any act of domestic
violence by the respondent;
(q) "respondent" means any
adult male person who is, or has been,
in a domestic relationship with the
aggrieved person and against whom
the aggrieved person has sought any
relief under this Act;
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(g) "domestic violence" has the
same meaning as assigned to it in
section 3:"
27. So, now it is necessary to go through the
definition of "domestic relation" i.e., Section 2(f) and the
provision of Section 3 of the Act to understand "domestic
violence" and it is extracted here below;
"(f) "domestic relationship"
means a relationship between two
persons who live or have, at any point
of time, lived together in a shared
household, when they are related by
consanguinity, marriage, or through a
relationship in the nature of marriage,
adoption or are family members living
together as a joint family;
"3. Definition of domestic
violence.- For the purposes of this Act,
any act, omission or commission of
conduct of the respondent shall
constitute domestic violence in case it-
(a) harms or injures or endangers
the health, safety, life, limb or well-
being, whether mental or physical, of
the aggrieved person or attends to do
so and includes causing physical
abuse, sexual abuse verbal and
emotional abuse and economic abuse;
or
(b) harasses, harms, injures or
endangers the aggrieved person with a
view to coerce her or any other person
related to her to meet any unlawful
Crl.A.No.84/2020 & 205/2020
27
demand for any dowry or other
property or valuable security; or
(c) has the effect of threatening
the aggrieved person or any person
related to her by any conduct
mentioned in clause (a) or clause (b);
or
(d) otherwise injures or causes
harm, whether physical or mental, to
the aggrieved person.
Explanation- For the purposes of
this section,-
(i) "physical abuse" means any
act or conduct which is of such a
nature as to cause bodily pain, harm,
or danger to life, limb or health of
impair the health or development of
the aggrieved person and includes
assault, criminal intimidation and
criminal force;
(ii) "sexual abuse" includes any
conduct of a sexual nature that
abuses, humiliates, degrades or
otherwise violates the dignity of
woman;
(iii) "verbal and emotional abuse"
includes-
(a) insults, ridicule, humiliation,
name calling and insults or ridicule
specially with regard to not having a
child or a male child; and
Crl.A.No.84/2020 & 205/2020
28
(b) repeated threats to cause
physical pain to any person in whom
the aggrieved person is interested.
(iv) "economic abuse" includes-
(a) deprivation of all or any
economic or financial resources to
which the aggrieved person is entitled
under any law or custom whether
payable under an order of a court or
otherwise or which the aggrieved
person requires out of necessity
including, but not limited to,
household necessities for the aggrieved
person and her children, if any
stridhan, property, jointly or
separately owned by the aggrieved
person, payment of rental related to
the shared household and
maintenance;
(b) disposal of household effects,
any alienation of assets whether
movable or immovable, valuables,
shares, securities, bonds and the like
or other property in which the
aggrieved person has an interest or is
entitled to use by virtue of the
domestic relationship or which may be
reasonably required by the aggrieved
person or her children or her stridhan
or any other property jointly or
separately held by the aggrieved
person; and
(c) prohibition or restriction to
continued access to resources or
facilities which the aggrieved person is
entitled to use or enjoy by virtue of the
Crl.A.No.84/2020 & 205/2020
29
domestic relationship including access
to the shared household.
Explanation II.- For the purpose
of determining whether any act,
omission, commission or conduct of
the respondent constitutes "domestic
violence" under this section, the
overall facts and circumstances of the
case shall be taken into consideration.
28. In the background of the above provisions, in
view of the admitted relationship between the 1 st petitioner
and the respondents and the admitted fact that after the
marriage, the petitioner lived in her matrimonial home with
the respondents, there is no dispute with regard to the fact
that the 1st petitioner was in domestic relationship with the
respondents.
29. So, if the petitioner is successful in establishing
that she was subjected to any act of domestic violence
stated in Section 3 of the Act noted above, by the
respondents. she is entitled for the reliefs provided under
the Act.
30. So far the economic abuse, in her main petition,
the petitioner has contended that the 1st respondent
pressurized her to sell the Flat and on her refusal, to
Crl.A.No.84/2020 & 205/2020
30
transfer her right in the Flat in his favour, whereby he can
sell the Flat. This allegation, prima facie attract the offence
under Section 3(iv)(b) of the Act noted above.
31. With regard to the above allegations, though the
1st respondent in the statement of objections to the main
petition, admitted the proposal for sale of the Flat, it is his
contention that because of the builder problems, he
suggested to sell the Flat and to come out of the problems,
he has denied the alleged act of pressurizing the petitioner
to sell the Flat.
32. Hence, this allegation of the pressurizing the
petitioner to sell the Flat or to transfer her right in the Flat
in favour of the 1st respondent, whereby he can sell the Flat
the defence raised by the 1st respondent in that regard
need adjudication.
33. However, so far the present appeals on the
impugned orders on IA.No.1, the alleged domestic violence
is the economic abuse i.e., non payment of the EMI i.e.,
50% share of the 1st respondent from February-2019 and
there is no dispute with regard to the said fact i.e., the 1 st
Crl.A.No.84/2020 & 205/2020
31
respondent has not paid his share of 50% of EMI from
February 2019.
34. Of course, the defence raised by the 1 st
respondent is that the Flat was purchased as an
investment and he incurred heavy loss without returns
from 2012 due to payment of EMI, the interest on the loan
borrowed, but all the above are subject to trial.
35. However, at this pre trial stage, the admitted fact
of the 1st respondent remaining in arrears of his 50% share
of EMI, prima facie say that it definitely attracts the
ingredients of economic abuse under Section 3(iv)(a) of the
Act noted above.
36. The impugned order is admittedly, passed on the
application under Section 19 read with Section 23 of the
Act. For better appreciation of the case, the above
provisions are extracted here below;
"19. Residence orders.- (1)
While disposing of an application
under sub-section (1) of Section 12,
the Magistrate may, on being satisfied
that domestic violence has taken
place, pass a residence order-
(a) restraining the respondent
from dispossessing or in any other
Crl.A.No.84/2020 & 205/2020
32
manner disturbing the possession of
the aggrieved person from the shared
household, whether or not the
respondent has a legal or equitable
interest in the shared household;
(b) directing the respondent to
remove himself from the shared
household;
(c) restraining the respondent or
any of his relatives from entering any
portion of the shared household in
which the aggrieved person resides;
(d) restraining the respondent
from alienating or disposing off the
shared household or entering the
same;
(e) restraining the respondent
from renouncing his right in the
shared household except with the
leave of the Magistrate; or
(f) directing the respondent to
secure same level or alternate
accommodation or the aggrieved
person as enjoyed by her in the shared
household or to pay rent for the same,
if the circumstances so required:
Provided that no order under
clause (b) shall be passed against any
person who is a woman.
(2) The Magistrate may impose
any additional conditions or pass any
other direction which he may deems
reasonably necessary to protect or to
provide for the safety of the aggrieved
Crl.A.No.84/2020 & 205/2020
33
person or any child of such aggrieved
person.
(3) The Magistrate may required
from the respondent to execute a
bond, with or without sureties, for
preventing the commission of domestic
violence.
(4) An order under sub-section
(3) shall be deemed to be an order
under Chapter VII of the Code of
Criminal Procedure, 1973 (2 of 1974)
and shall dealt with accordingly.
(5) While passing an order under
sub-section (1), sub-section (2) or sub-
section (3), the Court may also pass an
order directing the officer-in-charge of
the nearest police station to give
protection to the aggrieved person or to
assist her or the person making an
application on her behalf in the
implementation of the order.
(6) While making an order under
sub-section (1), the Magistrate may
impose on the respondent obligations
relating to the discharge of rent and
other payments, having regard to the
financial needs and resources of the
parties.
(7) The Magistrate may direct the
officer-in-charge of the police station
in whose jurisdiction the Magistrate
has been approached to assist in the
implementation of the protection order.
(8) The Magistrate may direct the
respondent to return to the possession
Crl.A.No.84/2020 & 205/2020
34
of the aggrieved person her stridhan or
any other property or valuable security
to which she is entitled to.
23. Power to grant interim and
ex parte orders.- (1) In any
proceeding before him under this Act,
the Magistrate may pass such interim
order as he deems just and proper.
(2) If the Magistrate is satisfied
that an application prima facie
discloses that the respondent is
committing, or has committed an
act of domestic violence or that
there is likelihood that the
respondent may commit an act of
domestic violence, he may grant an
ex parte order or the basis of the
affidavit in such form, as may be
prescribed, or the aggrieved person
under Section 18, Section 19, Section
20, Section 21 or, as the case may be,
Section 22 against the respondent".
37. So, the plain reading of the above provisions
clearly demonstrate that the trial Court is empowered to
pass the impugned order.
38. As noted above, it is the ground urged by the 1 st
respondent that since the petitioner residing separately
since December-2015, she cannot maintain an application
under Section 12 of the Act.
Crl.A.No.84/2020 & 205/2020
35
39. In support of his contention that the petitioner is
residing separately since December-2015 and in the Flat
since March-2018, he has relied on the contents of her
reply dated 17.04.2018. The relevant portions of the said
reply notice read;
".....
The notice sent to my client by
mail ..... Secondly, the address to
which the notice issued is incorrect
and your client is very much aware
that my client is residing at No.H-103,
Mantri Alpyne, Vishnuvardhan Road,
BSK V Stage, Bangalore - 560 061. .....
.....
It is true that my client was
confirmed of having conceived in the
month of October 2015. Due to the
unbearable torture, humiliation, .....
she shifted to her parents' house in
December-2015. Your client himself
had at that time sent my client taking
all these facts into concern. In the
month of February, your client
requested my client to make
arrangement, for her parents to come
down to Bangalore and reside nearby
the apartment, that they had booked
(which I would state in further para) so
as to take care of their child after
delivery. It was very clear that, your
client's parents were not prepared to
take care of the child. Hence my client
set up a house near by the apartment
and brought her parents and started
living there. Please note that your
client has never contributed for setting
Crl.A.No.84/2020 & 205/2020
36
up a house although, it was at his
instance that the house was set up.
.....
In 2012, your client and my
client jointly decided to purchase a flat
and accordingly, ..... The apartment
was ready by November 2016 and both
of them have also done the house
warming ceremony by doing the gruha
pravesha. ..... After gruha pravesha,
they had been visiting to the
apartment to setup and make
arrangements till the month of March
2017. Whenever he visited or my client
visited in laws' house, she observed
that ..... Later on when it was time for
moving to the apartment, ..... started
pressurizing my client to transfer her
share of right to himself or to sell the
property. My client was totally aghast
at the proposal and when she denied
to heed to the demands of your client,
he started abusing and threatening
her of dispossessing her from the
property. It is relevant to state here
that, my client is residing in the
apartment since March-2018.
....."
40. So, the plain reading of the above contents of the
reply notice clearly in support of the contention of the 1 st
respondent that the petitioner has been residing separately
since December-2015 and has been residing in the Flat
since March-2018, but whether it is on her own or the
Crl.A.No.84/2020 & 205/2020
37
circumstances warrant her to do so as averred by her are
all subject to trial.
41. In support of this ground, the 1 st respondent has
relied on the decisions reported in;
a) Crl.M.C.No.3878/2009 between Vijay Verma
versus State NCT of Delhi & Anr decided on 13.08.2010
before his Lordship Hon'ble Justice Shiv Narayan Dingra
wherein he has drawn the attention of this Court to the
observations of the Hon'ble High Court of Delhi that;
".....
7. This meaning of domestic
relation has sense when to definition
of domestic violence and purpose of
the Act. The purpose of the Act is to
give remedy to the aggrieved person
against domestic violence. The
domestic violence can take place only
when one is living in shared household
with the respondents. The act of
abuses, emotional or economic,
physical or sexual, verbal or
nonverbal if committed when one is
living in the same shared household
constitutes domestic violence.
However, such acts of violence can be
committed even otherwise also when
one is living separate. When such acts
of violence take place when one is
living separate, these may be
punishable under different provisions
of IPC or other penal laws, but, they
cannot be covered under Domestic
Crl.A.No.84/2020 & 205/2020
38
Violence Act. One has to make
distinction between violence
committed on a person living
separate in a separate house and
the violence committed on a person
living in a shared household. Only
violence committed by a person while
living in the shared household can
constitute domestic violence. A person
may be threatening another person
100 miles away on telephone or by
message etc. This may amount to
an offence under IPC, but, this
cannot amount to domestic
violence. Similarly, emotional
blackmail, economic abuse and
physical abuse can take place even
when persons are living miles away.
Such abuses are not covered under
domestic Violence Act but they are
liable to be punished under Penal
laws. Domestic Violence is violence
which is committed when parties are
in domestic relationship, sharing same
household and sharing all the
household goods with an opportunity
to commit violence.
...."
b) S.B.Cr.Revision Petition No.364/2012 between
Nishant Hussain Vs. Seema Saddique & Anr. Decided on
21.09.2012 before her Ladyship Honb'le Mrs. Nisha
Gupata, J., wherein he has drawn the attention of this
Court to the observations of the Hon'ble High Court of
Rajasthan at Jodhpur that;
Crl.A.No.84/2020 & 205/2020
39
".....
It is not in dispute that ..... the
only incident of August, 2007 has been
alleged which is apparently seems to
be designed for this petition. Taken to
be true that the incident of August,
2007 has occurred between the
parties, still it does not constitute
the act of domestic violence. .....
.....
This clearly suggests that for
constituting domestic violence, overall
facts and circumstances of the case
shall be taken into consideration.
Here in the present case, the incident
of August, 2007 cannot be termed as
domestic violence as the parties were
living separately since 2002. .....
In view of the above, this revision
petition is allowed and the impugned
orders of the Courts below are hereby
quashed and set aside".
c) Criminal Application No.160 of 2011 between
Sejal Dharmesh Ved Vs. The State of Maharashtra & Ors
decided on 7th March, 2013 before her Ladyship
Mrs.Roshan Dalvi, J., wherein he has drawn the attention
of this Court to the observations of the Hon'ble High Court
of Judicature at Bombay that;
".....
6. A wife who has returned from
the USA and consequently from the
domestic relationship and lived in
India for one year cannot file an
Crl.A.No.84/2020 & 205/2020
40
application with regard to the
relationship after such time. Such
wife cannot be taken to be in any
domestic relationship. The order of
the learned Judge is, therefore,
correct. The writ petition is completely
devoid of merits and accordingly,
dismissed".
d) Criminal Revision Petition No.1146/2019
between Smt.N.S.Leelavathi and Another Vs.
Smt.Dr.R.Shilpa Brunda decided on 11 th December, 2019
before his Lordship Hon'ble Mr.Justice B.A.Patil, wherein
he has drawn the attention of this Court to the
observations of the Hon'ble High Court of Karnataka at
Bengaluru that;
".....
19. Keeping in view the ..... As
observed by the decision in the case of
Vijay Verma quoted supra where the
family member leaves the shared
household to establish her own
household she cannot claim to have a
right to move an application under
Section 12 of the DV Act. .....
....."
e) CIVIL APPEAL No.2500 of 2017 between
Manmohan Attavar Versus Neelam Manmohan Attavar
with CIVIL APPEAL No.2502 of 2017 decided on 14th
July, 2017 before their Lordships Rohinton Fali Nariman
Crl.A.No.84/2020 & 205/2020
41
and Sanjay Kishan kaul JJ., wherein he has drawn the
attention of this Court to the observations of the Hon'ble
Apex Court that;
".....
17. The facts of the present case
are that the respondent has never
stayed with the appellant in the
premises in which she has been
directed to be inducted. This is an
admitted position even in answer to a
Court query by the respondent during
the course of hearing. The domestic
relationship as defined under
Section 2 of the D.V. Act refers to
two persons who have lived together
in a shared household. A shared
household has been defined under
Section 2(s) of the D.V. Act. In order
for the respondent to succeed, it
was necessary that two parties had
lived in a domestic relationship on
the household. However, the parties
have never lived together in the
property in question. It is not as if
the respondent has been
subsequently excluded from the
enjoyment of the property or thrown
out by the appellant in an alleged
relationship which goes back 20
years. .....
....."
42. Since in the present case also, the petitioner has
been residing separately since December 2015 and in the
Flat since March 2018, prima facie the dictum laid down in
Crl.A.No.84/2020 & 205/2020
42
the first four decisions noted above are in support of the
present ground of the 1st respondent.
43. So for the fifth one i.e., Manmohan Attavar's case
supra, the circumstances of the case on hand and in the
above case are different as in this case, it is neither the
case of the petitioner that she was thrown out of the Flat or
they resided together in the Flat, but it is her case that the
1st respondent intentionally, though capable to pay the EMI
of his 50% share of the Flat purchased jointly, intentionally
not paying the same and on the other hand, instigating the
bank authority to initiate necessary action whereby she
along with her daughter thrown out on street and thus, the
fact involved in this case is not that the Flat is shared
house hold. On the other hand, the 1st respondent being
the husband and decided to purchase the Flat jointly for
their residence, now stepped back by not paying his 50%
share of EMI and thus, caused economic abuse on the
petitioner.
44. To meet this ground, the counsel for the
petitioner has relied on the decision reported in (2016) 2
Supreme Court Cases 705 (between Krishna
Crl.A.No.84/2020 & 205/2020
43
Bhattachargee Versus Sarathi Choudary and Another in
Criminal Appeal No.1545 of 2015 arising out of SLP
(Crl.)No.10223 of 2014 from the judgment and order dated
26.08.2014 of the High Court of Tripura at Agartala in
Crl.Rev.P.No.19 of 2014 decided on November 20, 2015
before their Lordships Dipak Misra and Prafulla C.Pant JJ.)
wherein he has drawn the attention of this Court to the
observations of the Hon'ble Apex Court that;
".....
C. Crimes Against Women and
Children - Protection of Women from
Domestic Violence Act, 2005 - Ss. 12,
28 & 32 and S.3(iv) - domestic violence
- "economic abuse" - When amounts
to "continuing offence" - Applicability
of Ss.468 and 472 Cr.PC - Retention of
stridhan by husband or his family -
Held, regard being had to concept of
"continuing offence" and demands
made by wife, application made by
appellant wife under S.12, 2005 Act
after about 2 years of judicial
separation, not barred by limitation -
Criminal Procedure Code, 1973,
Ss.472 and 468
.....
F. Crimes against Women and
Children - Protection of Women from
Domestic Violence Act, 2005 - S. 12,
28 32, 2(a), (f),& (g) and 3 - Scheme of
2005 Act - Duty and approach of
Courts while dealing with issues of
Crl.A.No.84/2020 & 205/2020
44
maintainability, discussed and
clarified.
- Scheme of 2005 Act - 2005 Act
is a beneficial and assertive legislation
for more effective protection of
constitutional rights of women and to
ensure that they do not become
victims of any kind of domestic
violence - Ambit of definition of
"domestic violence' takes within its
sweep "economic abuse" under S.3 -
Economic abuse has many facets.
- Duty and approach of Courts -
Before nullifying grievance of aggrieved
person on ground of maintainability,
Court should find out whether
allegations and demands are really
and legally sound and correct. Court
should scrutinize facts from all angles
on merits and discuss and deliberate
on issues raised - Court should
adopt a sensitive approach towards
the rights of women under 2005 Act
- Constitution of India - Arts. 14, 15
and 21 - Rights of Women under -
Effective protection of right of women
against domestic violence under DV
Act,2005
G. Criminal Procedure Code,
1973 - S.472 - Expression
"continuing offence" does not have a
fixed connotation or a static import.
.....
2 Prior to the narration of facts
..... who are victims of violence of any
kind occurring within the family and
for matters connected therewith or
incidental thereto. The 2005 Act is a
Crl.A.No.84/2020 & 205/2020
45
detailed Act. The dictionary clause of
the 2005 Act, which we shall advert to
slightly at the later stage, is in a
broader spectrum. The definition of
"domestic violence" covers a range of
violence which takes within its sweep
"economic abuse" and the words
"economic abuse", as the provision
would show, has many a facet.
.....
10. As in the facts at hand, .....
"3. Definition of domestic
violence.-
.....
(iv) 'economic abuse' includes-
(a) deprivation of all or any
economic or financial resources to
which the aggrieved person is entitled
under any law or custom whether
payable under an order of a court or
otherwise or which the aggrieved
person requires out of necessity
including, but not limited to,
household necessities for the aggrieved
person and her children, if any
stridhan, property, jointly or
separately owned by the aggrieved
person, payment of rental related to
the shared household and
maintenance;
(b) disposal of household effects,
any alienation of assets whether
movable or immovable, valuables,
shares, securities, bonds and the like
or other property in which the
aggrieved person has an interest or is
entitled to use by virtue of the
domestic relationship or which may be
reasonably required by the aggrieved
person or her children or her stridhan
Crl.A.No.84/2020 & 205/2020
46
or any other property jointly or
separately held by the aggrieved
person; and
(c) prohibition or restriction to
continued access to resources or
facilities which the aggrieved person is
entitled to use or enjoy by virtue of the
domestic relationship including access
to the shared household.
.....
32. Regard being had to .....
"Economic abuse" ..... large canvass.
..... 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 2005 Act.
33. In the present case, .....
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 was
well as the High Court had fallen into
a grave error by dismissing he
application being barred by limitation.
.....
....."
Crl.A.No.84/2020 & 205/2020
47
45. In the present case on hand also, it is an
admitted fact that the relationship between the petitioner
and the 1st respondent as wife and husband is not severed
because of a decree of dissolution of marriage and in view
of the dictum laid down in the above decision, the Court is
bound to sensitively see all the allegations on the merits of
the case and the protection of the right of the women under
the Act.
46. As noted above, the aversions of the petitioner
with regard to the domestic violence need full pledged trial.
Though from her reply notice, it can be safely concluded
that the petitioner has been residing separately since
December 2015 and in the Flat since March 2018, it is an
admitted fact that after marriage, she lived in her
matrimonial home with the respondents and thus, she was
lived in the shared house hold with the respondents i.e.,
she was in the domestic relationship with the respondents
as defined under Section 2(f) of the Act.
47. So, the above noted decision i.e., Krishna
Bhatacharjee's case supra is in support of the petitioner in
Crl.A.No.84/2020 & 205/2020
48
respect of her right to move an application under Section
12 of the Act and it prevails over the decisions of Vijay
Verma's case, Nishanth Hussain's case and Sejal
Dharmesh Ved's case supra on which the 1st respondent
has relied on, as they are all the old decisions of Single
Bench of the Hon'ble High Courts of Delhi, Rajasthan and
Bombay respectively.
48. Though Leelavathi's case supra of the Hon'ble
High Court of Karnataka on which the 1st respondent has
relied on is recent one, it is of Single Bench relied on the
decision of Vijay Verma's case supra. On the other hand,
Krishna Bhatacharjee's case supra on which the petitioner
relied on is the decision of the Division Bench of the
Hon'ble Apex Court and therefore, it prevails over not only
Leelavathi's case supra, but also all the above decisions on
which the 1st respondent has relied on.
49. Relying on the following observations of the
Hon'ble Apex Court in Krishna Bhatacharjee's case supra
that;
"......
31. It has been held in Inderjit
Singh Gerewal (supra) that Section
Crl.A.No.84/2020 & 205/2020
49
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 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. ...."
it is the arguments of the 1st respondent that Krishna
Bhatacharjee's case supra is on Stridan and thus, the
above decision is not applicable to the case on hand.
50. But as noted above, Krishna Bhatacharjee's case
supra is with regard to economic abuse and the duties of
the Court to see the allegations as whole on merits before
nullifying the reliefs sought by the aggrieved person under
the Act. Hence, the arguments of the 1st respondent that
Crl.A.No.84/2020 & 205/2020
50
Krishna Bhatacharjee's case supra is not applicable to the
case on hand is not sustainable. Thus, the 1 st respondent
has failed to establish this ground in support of his appeal.
51. The next ground of the 1 st respondent in support
of his appeal is that the present case ought to have filed
within one year under Section 468 of Cr.P.C. and thus, it is
hit by limitation. In support of his arguments on this ground,
the 1st respondent has relied on the decisions reported in;
a) CRL.O.P.No.29476 of 2017 and
Crl.MP.Nos.16653 & 16654 of 2017 between N.Prasad
Vs. Harithalakshmi decided on 20.07.2020 before his
Lordship Hon'ble Mr.Justice G.K.Ilanthiraiyan, wherein he
has drawn the attention of this Court to the observations of
the Hon'ble High Court of Judicature at Madras that;
".....
6. In this regard, ..... follows:-
"6. In this regard ..... of the
same"
The Hon'ble Supreme Court of
India held that under Sections 28
and 32 of the Act 2005 r/w Rule
15(6) of the Protection of Women
from Domestic Violence Rules, 2006
which make the provisions of the
Code of Criminal Procedure
applicable. Accordingly, the
respondent ought to have been lodged
Crl.A.No.84/2020 & 205/2020
51
complaint within a period of one year
from the date of incident.
7. In the light of the above
discussions, this Court is of the
considered opinion that the complaint
lodged by the respondent under the
Domestic Violence Act cannot be
sustained as against the petitioner.
Accordingly, this Criminal Original
Petition allowed and the entire
proceeding in DV.C.No.186 of 2017 on
the file of the Mahila Court (Magisterial
Level), Allikulam, Chennai, is hereby
quashed. Consequently, connected
miscellaneous petitions are closed".
b) Criminal appeal No.1635 of 2011 arising out of
SLP (Crl.)No.7787 of 2010 between Inderjit Sing Grewal
verus State of Punjab & Anr. August 23, 2011 before their
Lordships P.Sathasivam and Dr.B.S.Chauhan JJ., wherein
he has drawn the attention of this Court to the
observations of the Hon'ble Supreme Court of India that;
".....
24. Submissions made by Shri
Ranjit Kumar on the issue of
limitation, in view of the provisions of
Section 468 of Cr.P.C., 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 Act 2005 read with Rule
15(6) of the Protection of Women from
Domestic Violence Rules, 2006 which
Crl.A.No.84/2020 & 205/2020
52
make the provisions of Cr.P.C.
applicable and stand fortified by the
judgments of this Court in Japani
Sahoo v. Chandra Sekhar Monhanty,
AIR .....
...."
c) Criminal Petition No.2419 of 2009 between
J.Srinivas Vs. G.Dhanalakshmi decided on 5 th April, 2013
before his Lordship Hon'ble Mr.Justice Anand Byrareddy,
wherein he has drawn the attention of this Court to the
observations of the Hon'ble High Court of Karnataka,
Bengaluru that;
".....
Though the allegations are
spread over a period of time, it does
appear that the complaint was not
filed within one year from the date
of alleged cause of action. Therefore,
the proceedings could not have been
entertained by the Court below.
Consequently, the petition is
allowed and the proceedings
Crl.Mis.No.139/2009 on the file of
Metropolitan Magistrate (Traffic Court
- I) Bengaluru, are quashed.
d) He has also relied on the following observations of
the Hon'ble High Court of Judicature at Bombay in Sejal
Dharmesh Ved's case supra that;
Crl.A.No.84/2020 & 205/2020
53
".....
5. A wife who lived in a
domestic relationship earlier , but
which ceases only because of any
domestic violence can certainly file
an application for such domestic
violence that took place whilst she
lived in that relationship such
application is required to be filed
within a reasonable time to show
that relationship would give her the
cause of action to sue under the DV
Act for the reliefs under the Act.
....."
52. So the sum and substance of the above decisions
are in support of the arguments of the 1 st respondent that
the limitation to file the complaint is one year from the date
of alleged incident.
53. So for the applicability of the dictum laid down in
the above decisions to the case on hand with regard to the
impugned order, admittedly, it is the allegation of the
petitioner that the 1st respondent is in due of his 50%
share of EMI from February 2019 and the trial Court
record reveals that the petitioner has come up with the
application under Section 12 of the Act on 05.08.2019 i.e.,
within 7 months from the date of alleged due of EMI by the
1st respondent.
Crl.A.No.84/2020 & 205/2020
54
54. Moreover, the allegations of the petitioner is the
violation by the 1st respondent in payment of the EMI
regularly. Thus, prima facie, the principles rendered in the
above decisions on which the 1 st respondent has relied on
are not applicable to the case on hand.
55. To meet this ground, the counsel for the
petitioner has relied on the decisions reported in;
a) CRIMINAL REVISION PETITION No.730/2019
between Sri.Puttaraju Vs. Smt.Shivakumari decided on 1 st
April, 2021 before his Ladyship Hon'ble Mrs.Justice
K.S.Mudagal wherein he has drawn the attention of this
Court to the observations of the Hon'ble High Court of
Karnataka that;
".....
5. Ultimately on hearing the
parties, the First Appellate Court by
the impugned order dismissed the
appeal and confirmed the order of the
trial Court. .....
.....
7. Sri.L.Rajanna, learned
Counsel for the petitioner opposes the
application on the ground that the
petition was filed 10 years from the
date of the alleged domestic incident,
therefore, the petition itself was not
maintainable. .....
Crl.A.No.84/2020 & 205/2020
55
8. Sri.G.S.Pateel, learned
Counsel for the respondent refutes the
contention regarding limitation on the
ground that Section 468 of Cr.P.C. is
applicable only to the petition under
Section 31 of the DV Act and not to the
application under Section 12 of the DV
Act filed for the reliefs under Sections
20 and 21 of the DV Act. .....
.....
12. Reading of Section 468(1)
and 468(2)(b) of Cr.P.C. itself shows
that the bar or limitation for taking
cognizance is intertwined with an
offence. Section 468 of Cr.P.C. comes
into picture only if there is an offence.
If there is no offence, no limitation.
.....
14. Section 12(1) & 12(2) of the
DV Act which are relevant for our
purpose read as follows:
.....
Thus in Section 12 of the DV Act
if domestic violence is not called or
treated as an offence, it speaks of
Court granting relief and not of
conviction and sentence.
15. So far this petition, Sections
20(d) and 21 of the DV Act are
relevant. They read as follows:
"20. Monetary reliefs.- (1) While
disposing of an application under sub-
section (1) of Section 12, the
Magistrate may direct the
respondent to pay monetary relief to
meet the expenses incurred and loses
suffered by the aggrieved person and
any child of the aggrieved person as a
result of the domestic violence and
Crl.A.No.84/2020 & 205/2020
56
such relief may include but is not
limited to-
.....
Therefore, even Sections 20 and
21 of the DV Act do not treat the
domestic violence as offence.
.....
20. When the application under
Section 12 of the DV Act is not covered
under the term 'offence', Section 468
of Cr.P.C. is inapplicable. Therefore,
the application of Section 468 of
Cr.PC. to an application under Section
12 of the DV Act is clearly a
misconception.
21. One has to bear in mind that
the proceedings under the DV Act
are neither purely criminal not civil
proceedings. The very object of the DV
Act as could be seen from the
preamble is to protect the women
against violence of any kind occurring
within the family. If at all the Act
intended to make each and every
act of domestic violence offences,
then Parliament would not have
legislated separate law i.e., IPC dealing
with offence against Women like 498A,
306, 304B or offence against body in
Chapter VI of IPC. The purpose of the
DV Act is to protect and save the
family.
.....
25. Further in para 32 of the
judgment in Krishna Bhattacharjee's
case referred to supra, the Hon'ble
Supreme Court held that the definition
of the aggrieved person and domestic
relationship remains and the act of
domestic violence attracts the term
Crl.A.No.84/2020 & 205/2020
57
'continuing offence', therefore, does
not time barred.
26. In the judgments of the
Hon'ble Supreme Court referred to
above, the interplay of Section 3(38) of
the General Clause Act, Section 31 of
the DV Act and Section 468 of Cr.P.C.
had not fallen for consideration. In
view of the later judgment of the
Hon'ble Supreme Court in Krishna
Bhattacharjee's case referred to
supra the judgments of this Court in
Srinvas's case and Gurudev's case
cannot be followed. Therefore, this
Court does not find any merit in the
contention of the petitioner was time
barred. .....
....."
i) In view of the dictum laid down in the above
decision which is recent one than to the decisions relied on
by the 1st respondent that the limitation is applicable only
to Section 31 of the Act and not to Section 12 of the Act,
the principles rendered in the above decision are aptly
applicable to the case on hand and in support of the
arguments of the counsel for petitioner that the present
petition is not hit by limitation as in this case also, the
impugned order is not for breach of the order under
Section 31 of the Act, instead it is an order under Section
19 read with Section 23 of the Act.
Crl.A.No.84/2020 & 205/2020
58
b) CRM-M-37116 of 2012 (O & M) between Geeta
Kapoor and anr. Versus State of Haryana and anr. decided
on 09.10.2013 before his Lordship Hon'ble Mr.Justice
Jitendra Chauhan, wherein he has drawn the attention of
this Court to the observations of the Hon'ble High Court of
Punjab and Haryana at Chandigarh that;
"Head Note:
Protection of Women from
Domestic violence Act, 2005; -
Whether limitation in filing the
complaint under the DV Act, 2005 is
one year - Held: In case of subsisting
relationship of husband and wife,
there is no limitation. Meaning
thereby the complaint under the DV
Act can be filed at any time as the
physical and mental harassment
within the family is continuing offence.
LU (Apr 38) 2018 P & H.
.....
Point No(i)
The case law ..... The correct
view is that in case of decree of
divorce, the limitation to file
proceedings is only a year. But in this
case still the relationship of
husband and wife is alive. The object
of the DV Act, is to provide effective
protection of the right of women
guaranteed under the Constitution
who are victims of violence of any kind
occurring within the family. So, it is
held that in case of subsisting
relationship of husband and wife,
Crl.A.No.84/2020 & 205/2020
59
there is no limitation. Meaning
thereby that the complaint and the DV
Act can be filed at any time as the
physical and mental harassment
within the family is a continuing
offence.
....."
i) In the present case on hand also, admittedly the
relationship of husband and wife subsists till date between
the 1st respondent and the petitioner and thus, the dictum
laid down in the above decision is applicable to the case on
hand.
c) Criminal Revision Application No.611 of 2015
between Yogesh Anantrai Bhatt & 4 ... Applicants Versus
State of Gujarat & 1 ... respondents decided on 29.07.2016
before his Lordship Hon'ble Mr.Justice S.G.Sha, wherein
he has drawn the attention of this Court to the
observations of the Hon'ble High Court of Gurajat at
Ahmedabad that;
".....
3. In view of above discussion,
..... sub-section (1) is to be filed in a
prescribed form. So practically Section
12 is enabling provision to file an
application whereas Sections 18 to 22
are providing for rights of the
aggrieved persons to seek different
reliefs like protection, residence,
monetary relief, custody of minor and
Crl.A.No.84/2020 & 205/2020
60
compensation. For all such reliefs,
when provisions of the Code are to
be followed, then practically there
is no limitation prescribed under
the code for any of such reliefs viz.
protection, residence, monetary
reliefs, custody of minor and
compensation. However, when section
28 says that procedure is to be
followed as per the provisions of the
Criminal Procedure Code, then it
amount to dealing with an application
under Section 12 as an application for
all such orders and nothing more than
that, ...... therefore, limitation would
be applicable only after breach of
an order in an application under
Section 12 and, therefore such
limitation cannot be applicable at
the stage of an application under
Section 12 for reliefs under
Sections 18 to 22. Thereby, it is
certain that if there is a breach of an
order in an application under Section
12 or any of the reliefs under Sections
18 to 22, then and then only the
application under Section 31 is to be
filed within one year from the date of
such breach and not thereafter, and
thereby it cannot be said that an
application under Section 12 for the
reliefs under Section 18 to 22 are
also required to be filed within a
period of 12 months because on
that case, when there is no penal
provision, there is no reason to
consider limitation at all.
.....
6. However, ..... the Hon'ble
Supreme Court has not decided the
issue of limitation for proceedings
Crl.A.No.84/2020 & 205/2020
61
under Section 12 of the DV Act. With
due respect, it is to be considered that
practically the words "complaint under
Section 12" are unwarranted because
the DV Act itself is confirming that
it should be application under
Section 12, which for practical
purpose is to be registered as
Criminal Misc. Application and not
as a criminal complaint or
irrespective of nomenclature of such
litigation, it is mainly an application to
a Magistrate by aggrieved person
seeking relief for protection and/or
residence and/or monetary reliefs
and/or custody of minor and/or
compensation for domestic violence
and not for awarding sentence of
imprisonment to the respondent,
which would be applicable only after
non-compliance or breach of an order
of any nature referred herein above
and, therefore, .....
.....
10. The appellate Court has .....
(1) In VD Bhanot ...... the
ultimate decision of the Hon'ble
Supreme Court makes it clear that
practically there is no question of
limitation while claiming reliefs under
Sections 18 to 22 by filing an
application under Section 12 of the DV
Act.
(2) In Krishna Bhatacharjee .....
the Hon'ble Supreme Court has
considered that bar of limitation would
not be applicable to the application
filed under Section 12 of the DV Act
because the concept of continuation
Crl.A.No.84/2020 & 205/2020
62
offence gets attracted in such cases if
at all an application for maintenance is
to be treated as an offence because of
criminal proceedings.
(3) In Shalini ..... while dealing
with the issue of limitation for the
proceedings against domestic violence,
held that the complaint even made
after 15 years from the date of
separate living by the couple, is not
liable to be dismissed if cause of action
survives. ......
.....
12. Therefore, any other decision,
even if it is dealing with the issue of
limitation with reference to DV Act, it
is to be clarified that it may be
applicable only in case of proceedings
under Section 31 of the DV Act since
sub-section (1) of Section 31
contemplates punishment in the event
of breach of the order under such Act.
Therefore, provision of Section 31 of
the DV Act does not come into play
till an order in an application under
Section 12 is passed and till the
same is breached. Therefore, when
the respondent is simply seeking
various reliefs contemplated by the DV
Act, unless those relies are granted
and only if such order is violated the
respondent may not have to invoke
provision of Section 31 of the DV Act
and at that stage only question of
limitation would arise and thereby
respondent may not be entitled to
invoke provision of Section 31 of the
DV Act seeking punishment by way of
sentencing the other side for breach of
any such order after a period of one
Crl.A.No.84/2020 & 205/2020
63
year from the date of violation of any
such order. Practically the provision of
Section 31 (1) of the DV Act is similar
to the provision of Section 125(3) of
the Code and, therefore, like
application for maintenance under
Section 125 of the Code, it cannot be
barred by limitation and an
application under Section 12 of the
DV Act is not subject to limitation
as contemplated by the petitioners.
....."
d) CRM-M No.29008 of 2014 between Alok Vs.
Sunita decided on 17.01.2020 before her Ladyship Hon'ble
Ms.Justice Jaishree Thakur, wherein he has drawn the
attention of this Court to the observations of the Hon'ble
High Court of Punjab and Haryana at Chandigarh that;
".....
6. I have heard ..... the factum of
marriage between the parties is not in
dispute, which is stated to have taken
place on 18.05.2008. ..... Counsel for
the petitioner herein also relies upon
Section 28 of the DV Act to contend
that the complaint ought to have been
filed within a period of one year from
the date of occurrence of cause of
action. However, this Court is not
inclined to agree with the argument as
raised by him. ..... this Court came to
the conclusion that there was no
limitation prescribed to institute a
claim seeking relief under Section
12 to 22 of the DV Act. The relevant
portion of the same is reproduced as
under:-
Crl.A.No.84/2020 & 205/2020
64
"15. As already stated, this Court
has to answer the question, whether
the complaint is barred by limitation
based upon the provisions of the
Domestic Violence Act and the law, as
cited. Section 28 of the Domestic
Violence Act mandates all proceedings
under Section 12, 18, 19, 20, 21, 22
and offence under Section 31 shall be
governed by the Code of Criminal
Procedure. Whereas Section 31
provides for penalty of breach of
protection order against the
'respondent' and Rule 15 of the Rules
of 2006 provides for procedure under
Section 31 of the Domestic Violence
Act.
16. An aggrieved person is
permitted to ...... Section 12 of the
Domestic Violence Act is enabling
provision to file an application,
whereas Sections 18 to 22 of the
Domestic Violence Act provide for
rights of the aggrieved person to seek
different reliefs like protection,
residence, monetary relief, custody of
minor and compensation. No
limitation has been prescribed for
seeking any such relief. Penal
provisions under Section 31 of the
Domestic Violence Act would get
attracted on a breach of a protection
order. It is only in a situation when
there is a breach of any protection
order on an application under 4 or 5
Section 12 or on any of the reliefs
under Section 18 to 22 of the Domestic
Violence Act, then and then only, an
application under Section 31 of the
Crl.A.No.84/2020 & 205/2020
65
Domestic Violence Act, is to be filed
within one year from the date of such
breach and not thereafter. Therefore,
the Court is of the opinion that
there is no limitation prescribed to
institute a claim seeking relief
under Sections 17 to 22 of the
Domestic Violence Act.
....."
i) In the present case on hand also, though in view of
the reply notice of the petitioner, it can be safely concluded
that she has been residing separately from December 2015
and in the Flat from March 2018, in view of the
relationship subsists between the petitioner and the 1st
respondent till date and the impugned order is not the
order under Section 31 of the Act for violation of any order
passed under the Act for which only, the limitation applies,
the above decisions are also in support of the petitioner
that her application under Section 12 of the Act is not hit
by the limitation as urged by the 1 st respondent. Thus the
1st respondent has failed to establish this ground as well.
56. The next ground urged by the 1st respondent is
that the Flat was purchased for the investment purpose
and not for self occupation. He has incurred heavy loss for
Crl.A.No.84/2020 & 205/2020
66
payment of EMI and interest accrued on the loan without
returns for 7 years.
57. As noted above, these rival contentions are
subject to trial and at this pre trial stage, these contentions
cannot be concluded in favour of any of the parties.
58. The other connected grounds of the 1st
respondents are that;
a) The petitioner is gainfully employed and has salary
of Rs.1,25,000/- apart from the other incentives and
bonus.
b) He has no income of Rs.3 lakhs per month as
stated by the petitioner. He has to incur heavy medical
expenditure for his mother/the 2nd respondent who is a
cancer patient.
59. The salary slips of the petitioner demonstrate that
her gross salary for the month of June and July 2019 was
Rs.1,39,431/- and the net pay was Rs.76,886/- and
Rs.58,753/- respectively. The 1 st respondent though
produced the medical records of his mother/the 2 nd
respondent, he has not furnished the treatment expenses
documents and his salary slip. However, admittedly, the
Crl.A.No.84/2020 & 205/2020
67
income and expenses/the responsibilities the parties have
in fact are subject to trial.
60. In the course of arguments, the 1 st respondent
has also relied on the decisions reported in;
a) C.R.R.No.3104 of 2014 with CRAN 559 of 2015
between Sri.Abhijit Saha and Ors. Vs. Smt.Sangita Saha
decided on 17.09.2015 before his Lordship Sankar
Acharyya, J., wherein he has drawn the attention of this
Court to the observations of the Hon'ble Supreme Court
that;
".....
Unless it is satisfactorily
established that domestic violence has
taken place neither any protection
order under Section 18 nor any
residence oder under Section 19 nor
any order for monetary relief under
Section 20 nor any compensation
order under Section 22 of the
Protection of Women from Domestic
Violence Act, 2005 should be passed.
....."
b) M.Cr.C.No.19979/2019 between Ramesh
Chandra Sharma and Others Vs. Smt.Meena decided on 7 th
January, 2020 before his Lordship Sunil Kumar Awasthi J,
wherein he has drawn the attention of this Court to the
Crl.A.No.84/2020 & 205/2020
68
observations of the Hon'ble High Court of Madhya Pradesh
that;
".....
It is not disputed that the Pooja
daughter of applicant No.1 and 2 was
married to the son of respondent on
07.12.2015. .....
.....
7. A perusal of this provision .....
as under:
"5. Filing of a petition under
Protection of Women by the petitioner
taking shelter of domestic relationship
and domestic violence needs to be
considered so that this Act is not
misused to settle property disputes.
Domestic relations is defined under
the Act in Section 2(f) as under:
....."
i) In the present case on hand, as noted above, the
allegations in the application under Section 12 of the Act
attract the ingredients of domestic violence including
economic abuse and they could be concluded only after full
pledged trail.
ii) The dispute is with regard to the admitted non
payment of 50% share of EMI of the 1 st respondent and
thus, it cannot be said that it is a property dispute that too
at this pre trial stage.
Crl.A.No.84/2020 & 205/2020
69
iii) Hence, as at this pre-trial stage, it cannot be
concluded that the petitioner has not satisfactorily
established the alleged domestic violence and the dispute
between the parties is a property dispute, these decisions
are not helpful to the 1st respondent to meet the impugned
order.
c) Special Leave Petition (Criminal) Dairy
No(s).34053/2019 arising out of impugned final judgment
and order dated 16.09.2016 in CRLR No.609/2015
between Kamalesh Devi V/s Jaipal & Ors. passed by the
Hon'ble High Court of Punjab & Haryana at Chandigarh
decided on 4 October, 2019 before her Ladyship Honble
Ms.Justice Indira Banerjee and his Lordship Hon'ble
Mr.Justice M.R.Shah, wherein he has drawn the attention
of this Court to the observations of the Hon'ble Supreme
Court that;
".....
The High Court has rightly found
in effect that the ingredients of
domestic violence are wholly absent in
this case. The petitioner and the
respondents are not person living
together in a shared household. There
is a vague allegations that the
respondents are family members.
Crl.A.No.84/2020 & 205/2020
70
There is not a whisper of the
respondents with the petitioner they
appear to be neighbours
....."
i) In the present case on hand, admittedly, the Flat is
not the shared household, but the petitioner, after the
marriage was admittedly, residing in her matrimonial
house with respondents in a shared household. Hence, the
above decision is also not helpful to the 1st respondent.
d) CRL.MC.No.3325/2010 between Kaveri Versus
Neel Sagar & Anr decided on 25.10.2010 before his
Lordship Justice Shiv Narayan Dhingra, wherein he has
drawn the attention of this Court to the observations of the
Hon'ble High Court of Delhi at New Delhi that;
".....
The relevant facts show that the
petitioner had filed an application
under Section 23 of the Protection of
Women from Domestic Violence Act
seeking ..... The respondents in this
case were mother and brothers of the
petitioner. The petitioner is an
employed woman, has been working
with Indian Airlines in store
department and living separately
from her brother and mother
admittedly since 2002; although the
respondents alleged that she was living
separately since 1999. ..... since it was
not the claim of the petitioner that she
Crl.A.No.84/2020 & 205/2020
71
was not able to maintain herself rather
she had claimed that she had spent
Rs.1 lac in construction of first floor of
the house where respondent No.1 & 2
were residing. ...... The facts that the
petitioner is employed and has been
living separate and leading an
independent life are undisputed
facts. I find no ground to interfere
with the orders of the Courts below in
petition under Article 227 of the
Constitution of India. ....."
e) Civil Appeal No.4666 of 2008 arising our of
Special Leave Petition (Civil) No.17260 of 2007 between
Shil Kumar Devi & Anr. Versus Krishan Bhagwan Pathak @
Kishun B. Pathak decided on July 28, 2008 before their
Lordships C.K.Thakker and D.K.Jain, wherein he has
drawn the attention of this Court to the observations of the
Hon'ble Supreme Court that;
".....31. The High Court, .....
"On as consideration of .....
In the aforesaid .....
As laid down in the decision of
this Court such an order may be
necessitated if the party shows the
dire need of money for the purpose
of maintaining herself, for which
she had to raise debts, during the
period when the application had been
pending. There is no such material on
record, rather the opposite party was
getting interim maintenance from
Crl.A.No.84/2020 & 205/2020
72
November, 1998 itself by order dated
.....
32. The above observations
manifestly show that according to the
High Court, there must be justification
on the part of the Court in making the
order of maintenance from the date of
the application rather than from the
date of the order. As there was no such
reasons granting maintenance from
the date of the application, the Family
Court was not justified in doing so. To
that extent, therefore, the order passed
by the Family Court was vulnerable
and accordingly, it was set aside by
granting maintenance from the date of
the order passed by the Family Court.
....."
i) In the present case on hand, by IA.No.1, the
petitioner has not sought for maintenance either to her or
to the child, instead, she sought for direction to the 1 st
respondent to pay the admitted 50% share of his EMI.
Hence, the dictum laid down in the above decision is not
applicable to the facts of the case in particular with regard
to the impugned order.
f) FAO (OS)341/2007 between Shumita Didi
Sandhu Versus Sanjay Sing Sandu & Others decided on
26.10.2010 before his Lordship Badar Durrez Ahmed J and
her Ladyship Veena Birabal, J., wherein he has drawn the
Crl.A.No.84/2020 & 205/2020
73
attention of this Court to the observations of the Hon'ble
High Court of Delhi that;
".....
49. We must emphasize once
again that the right of residence which
a wife undoubtedly has does not mean
the right to reside in a particular
property. It may, of course, mean the
right to reside in a commensurate
property. But it can certainly not
translate into a right to reside in a
particular property......
....."
i) In the present case on hand, as noted above, there
is no dispute with regard to the decision by the parties to
purchase the Flat jointly, but the dispute is that it is for
the self occupation as per the case of the petitioner and the
defence is that it is for the investment purpose, which
needs full pledged trial. Hence, the dictum laid down in the
above decision is not applicable to the case on hand.
g) FAM.No.97 of 2014 between Prabir Kumar Das
Versus Smt.Papiya Das decided on 29.01.2018 before their
Lordships Hon'ble Shri Justice Prashant Kumar Mishra
and Hon'ble Shri Justice Arvind Singh Chandel, wherein
he has drawn the attention of this Court to the
Crl.A.No.84/2020 & 205/2020
74
observations of the Hon'ble High Court of Chhattisgarh,
Bilaspur that;
".....
13. Complete analysis of the .....
Insisting upon the husband to live
separate from his mother, who is aged
about 68 years and is suffering from
cardiac problem is by itself a cruelty,
as held by the Supreme Court in
Narendra (Supra), therefore, the
Appeal deserves to be allowed.
...."
i) The counter allegation of the 1st respondent with
regard to the harassment of the petitioner is also subject to
trail. Hence, this decision is on merits of the case and
thus, not helpful to the 1st respondent to meet the
impugned order on IA.No.1.
61. So far the ground of the petitioner in support of
her appeal in Crl.A.No.205/2020 that the trial Court has
erred in directing the 1 st respondent to pay the EMI from
the date of petition instead from the date of due prima facie
appears correct in the facts and circumstances of the case
as it is not disputed by the 1st respondent that he has not
paid his share of 50% of the EMI since February 2019 and
as noted above this application/petition under Section 12
Crl.A.No.84/2020 & 205/2020
75
of the Act was filed on 05.08.2019 i.e., after around 7
months from the date of due.
62. From the above discussions, as the 1 st
respondent has failed to establish the grounds in support
of his appeal, point Nos.1 and 2 are answered in negative
with regard to his appeal i.e., Crl.A.No.84/2020 and in
affirmative with regard to the appeal of the petitioner in
Crl.No.205/2020.
63. POINT No.3:- In the result, this Court proceeds
to pass the following order.
ORDER
The Criminal Appeal filed by the the 1st respondent/appellant in Crl.A.No.84/2020 under Section 29 of the Protection of Women from Domestic Violence Act 2005 is hereby dismissed.
The Criminal Appeal filed by the the petitioner/appellant in Crl.A.No.205/2020 under Section 29 of the Protection of Women from Domestic Violence Act 2005 is hereby allowed.
Consequently, the impugned
judgment passed in
Crl.Misc.104/2019 on I.A.No.I dated 20.12.2020 by the learned MMTC-III, Crl.A.No.84/2020 & 205/2020 76 Bengaluru is hereby confirmed with the following modification.
"The respondent No.1 is directed to pay EMI regularly towards housing loan availed for purchase of Flat No.H- 103, Mantri Alpyne, Uttarahalli Main Road, Banashankari 5th Stage, Bengaluru as he was paying earlier from the date of due till the disposal of the petition".
Send back the TCR along with the copy of this judgment forthwith to the trial Court.
Keep the original of this judgment in Crl.A.No.84/2020 and the copy thereof in Crl.A.No.205/2020.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 17th day of July, 2020).
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru. Crl.A.No.84/2020 & 205/2020 77 Both the parties and their respective counsels are absent.
As per the notification dated 21.5.2021 the entry of the litigants as well as Advocates to the court premises is strictly prohibited.
The counsel for the appellant is intimated about delivering the judgment over phone No.9986204286.
The respondent representing the case in
person is intimated about delivering the judgment over phone No.9986965929.
The Order is pronounced in the open Court (vide separate Order).
ORDER The Criminal Appeal filed by the the 1st respondent/appellant in Crl.A.No.84/2020 under Section 29 of the Protection of Women from Domestic Crl.A.No.84/2020 & 205/2020 78 Violence Act 2005 is hereby dismissed.
The Criminal Appeal filed by the the petitioner/appellant in Crl.A.No.205/2020 under Section 29 of the Protection of Women from Domestic Violence Act 2005 is hereby allowed.
Consequently, the impugned judgment passed in Crl.Misc.104/2019 on I.A.No.I dated 20.12.2020 by the learned MMTC-III, Bengaluru is hereby confirmed with the following modification.
"The respondent No.1 is directed to pay EMI regularly towards housing loan availed for purchase of Flat No.H-103, Mantri Alpyne, Uttarahalli Main Road, Banashankari 5th Stage, Bengaluru as he was paying earlier from the date of due till the disposal of the petition".
Send back the TCR along with the copy of this judgment forthwith to the trial Court.
Keep the original of this judgment in Crl.A.No.84/2020 and the copy thereof in Crl.A.No.205/2020.
LXVI Addl.CC & SJ, Bengaluru