Gujarat High Court
Bhupatbhai Manjibhai Amipara & 3 vs Jyotiben Mahendrabhai Amipara & on 5 May, 2017
Author: Biren Vaishnav
Bench: Biren Vaishnav
R/SCR.A/3361/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3361 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHUPATBHAI MANJIBHAI AMIPARA & 3....Applicant(s)
Versus
JYOTIBEN MAHENDRABHAI AMIPARA & 1....Respondent(s)
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Appearance:
MR NIRAV C SANGHAVI, ADVOCATE for the Applicant(s) No. 1 - 4
MR HIMANSHU K PATEL, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 05 /05/2017
CAV JUDGMENT
Page 1 of 7
HC-NIC Page 1 of 7 Created On Sat May 06 03:25:38 IST 2017 R/SCR.A/3361/2013 CAV JUDGMENT 1 Being aggrieved by an order dated 23.08.2013, passed by the learned Sessions Judge, Junagadh, in Criminal Revision Application No. 27 of 2012, the present applicant has preferred this Special Criminal Application under Article 227 of the Constitution of India.
2 The respondent No.1 Jyotiben Mahendrabhai Amipara has filed a criminal complaint against the applicants, the present petitioners under the provisions of Section 12 of the Protection of Women from Domestic Violence Act, 2005.
3 On the application being so filed, the present petitioners preferred an application Exh50 before the learned Judicial Magistrate, Vanthali. It was the contention of the present applicantspetitioners herein that, the respondent No.1 after having resided with her husband merely for a period of five days, left the matrimonial home. That, on 09.04.2004, she has filed maintenance application under Section 125 of the Code of Criminal Procedure and by an order dated Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat May 06 03:25:38 IST 2017 R/SCR.A/3361/2013 CAV JUDGMENT 17.08.2006, the Court has granted her maintenance. According to the petitionersapplicants of Exh.50, the applicant once having left the matrimonial home after her marriage which was in the year 2003, it was not appropriate for the respondent No.1 to have filed an application under the Domestic Violence Act. According to the petitionersapplicants, the application filed under the act was time barred, and therefore, as prescribed under Section 468 of the Criminal Procedure Code, the application under the act be dismissed as time barred.
4 The learned magistrate after hearing the respective parties, by an order dated 27.02.2010 dismissed the application of the petitioners. According to the learned Magistrate, the wife had invoked the provisions of the Domestic Violence Act. The provisions of the Domestic Violence Act, primarily provided for protection of the rights of women guaranteed under the Constitution. Looking to the averments of application, particularly para 7 of such application, the applicant once had asked for a shared household, and therefore, the application could not Page 3 of 7 HC-NIC Page 3 of 7 Created On Sat May 06 03:25:38 IST 2017 R/SCR.A/3361/2013 CAV JUDGMENT held to be time barred.
5 Being aggrieved by the order rejecting the preliminary objections of the petitioners to treat the application as time barred, the petitioners preferred a revision before the learned Additional Sessions Judge, Junagadh. The learned Sessions Judge, Junagadh also after hearing the respective parties, held that looking to the application filed by the wife under Section 12 of the Domestic Violence Act and looking to the relief that she had sought under Section 17 with regard to residence, share in the property as well as maintenance from the opponents, it was not a case where the provisions of Section 468 Cr.P.C can be invoked so as to attract the limitation of one year. Relying on the judgement of the Bombay High Court, which had held that the cause of action was continuous, the learned Sessions Judge and even the learned Magistrate has not committed any illegality in rejecting the application.
6 This application, therefore, has been so filed challenging this order.
Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat May 06 03:25:38 IST 2017 R/SCR.A/3361/2013 CAV JUDGMENT 7 Learned advocate Mr Nirav Sanghavi for the applicants contended that the orders of the learned Sessions Judge as well as that of the learned Magistrate were illegal. That the application filed by the wiferespondent No.1 was an application filed at a belated stage and, therefore, be dismissed as time barred. Having given my anxious consideration to the orders passed by the Courts below, what is observed from the orders is that the learned Judge has looked in to the contents of the application filed by the wife, respondent No.1. Though, such a application is not annexed with the petition, from the contents of the order under challenge, what is evident is that the learned Judges of the Courts below have after considering various provisions of the Domestic Violence Act have found on facts that protection orders have been passed in favour of the wife, and that on reading the Statement of Objects and reasons of the Act, protection of women being of paramount importance, and that shared house hold is asked for, it is a continuous wrong, and therefore, not barred under the provisions of Section 468 of the Code of Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat May 06 03:25:38 IST 2017 R/SCR.A/3361/2013 CAV JUDGMENT Criminal Procedure.
8 When Sections 18 to 22 of the Domestic Violence Act are perused, what is evident from the scheme of these provisions is that it is open for a wife to seek monetary relief, protection orders and residence orders in an application filed under Section 12 of the Domestic Violence Act. Reliance placed in judgement of the Bombay High Court by the learned Additional Sessions Judge would indicate that it is a continuous cause of action, and therefore, also a civil dispute. Section 468 of the Cr.P.C would therefore strictly not come into play.
9 Even otherwise, the question on limitation has to be decided, not at the beginning of the case, but after the parties lead evidence. Applicability of the Criminal Procedure Code and the provisions of Section 468 would not, therefore, in the facts of the case debar the applicant / respondent from claiming the reliefs as prayed for in her application. 10 The views that the Courts below have taken in the Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat May 06 03:25:38 IST 2017 R/SCR.A/3361/2013 CAV JUDGMENT facts of the present case cannot be said to be views which are illegal or are contrary to law. In view of this, the present application seeking reversal of the orders passed by the Courts below deserves to be dismissed. Interim relief granted earlier stands vacated. The application is, therefore, stands dismissed. Rule discharged.
(BIREN VAISHNAV, J.) Bimal FURTHER ORDER After the pronouncement of the aforesaid judgment, Mr Nirav Sanghvi, requested for extension of the stay which has been operating till date. Request is accepted and interim relief is accordingly extended upto 31.7.2017.
(BIREN VAISHNAV, J.) Bimal Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat May 06 03:25:38 IST 2017