Delhi District Court
Sh. Ashish Singh vs Smt. Pushpa Singh on 20 November, 2018
Criminal Appeal No.142/2018
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 142/2018
Under Section : 29 Protection of Women from Domestic
Violence Act, 2005
Case No. : 10097/2016 (Old No. V-90/11)
PS : Shakarpur
CNR No. : DLET01-007309-2018
In the matter of :-
SH. ASHISH SINGH
S/o. Sh. Indra Bahadur Singh,
R/o. H.No.27/1101, Gali No.83, Block-B,
Shivkunj, Santnagar, Mazra Burari, Delhi-110084.
............APPELLANT
VERSUS
SMT. PUSHPA SINGH
D/o. Sh. Kalika Prasad,
W/o. Sh. Ashish Singh,
R/o. H.No.18-A, Gali No.4, Krishan Kunj Extn.,
Shakarpur, Delhi-110092.
..........RESPONDENT
Date of Institution : 18.10.2018
Date of reserving order : 14.11.2018
Date of pronouncement : 20.11.2018
Decision : Appeal is dismissed.
JUDGMENT
1. This is an appeal under Section 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) directed against an order dated 28.09.2018, passed by trial court, in a case titled as Pushpa Singh & Ors. v. Ashish Singh & Ors., bearing case no. 10097/2016 (Old no.V-90/11), under Section 12 of the Act. Vide impugned order dated 28.09.2018, trial court dismissed Page 1 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.142/2018 application dated 06.08.2018, which was moved by Sh. Ashish Singh challenging maintainability of the proceedings. BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to appeal in hand are that respondent herein Smt. Pushpa Singh (hereinafter referred to as complainant) filed an application under Section 12 read with 18, 19, 20 and 22 of the Act impleading her husband Sh. Ashish Singh (appellant herein), father-in-law Sh. Indra Bahadur Singh, mother-in- law Smt. Krishan Lata Singh, brother-in-law (nandoi) Sh. Sunil Singh and sisters-in-law Smt. Madhuri Singh and Ms. Shiksha. In her application, complainant made several allegations against them related to domestic violence. She also filed an application under Section 23 of the Act.
3. When the case was at the stage of complainant's evidence, appellant herein moved an application on 06.08.2018 for dismissal of application under Section 12 of the Act, on the grounds that he and his wife i.e. complainant had not been staying together since 2009. Appellant took plea that application under DV Act could be filed only within a period of one year from the date of separation and not thereafter. He alleged that complainant had filed this application after lapse of more than one year. Therefore, it is barred by limitation. He referred to certain case laws i.e. Japani Sahoo v. Chandra Sekhar, AIR 2007 SC 2762 and Noida Entrepreneurs Association v. Noida & Ors., 2011 (6) SCC 508, to support his contentions.
4. Ld. MM dismissed the application observing that there had been a constructive desertion on the part of appellant herein, which continued till date. Therefore, it could not be said that domestic Page 2 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.142/2018 harassment ended in 2009 itself. Therefore, application was dismissed.
GROUNDS : -
5. Being aggrieved of impugned order dated 09.07.2018, appellant has preferred this appeal mainly on the following relevant grounds :-
● That trial court did not appreciate submissions made by appellant in complaint dated 06.08.2018 and dismissed the same. (Ref. Inderjit Singh Grewal v. State of Punjab & Anr. Criminal Appeal No.1635/2011 decided on 23.08.2011).
● That trial court did not appreciate that family members of appellant were living separately and they had been involved deliberately by complainant Smt. Pushpa in the present case.
● That trial court did not consider the fact that after marriage complainant hardly lived with appellant for staggered 10-11 months only in total during the year 2004 to 2018. Complainant wanted that appellant might live with her at her parental home. On 31.05.2007 when appellant tried to live with complainant at parental house of complainant, then appellant was kept bolted in a room and was given merciless beatings. Somehow, appellant managed to free himself from that room and reached PS Shakarpur, Delhi to lodge complaint against respondent and others. However, police did not take any action against them as father of complainant being active politician of Congress Party and was also involved in various anti national activities.
● That trial court did not appreciate the fact that complainant used to go to her parental home without any intimation to appellant. Lastly, on 21.11.2009 complainant again joined company of appellant, who was living separately on rent. However, on 28.11.2009 Page 3 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.142/2018 complainant deserted appellant with the words "tu mere barabar ki hasti nahin hai aur main tere sath nahin rehna chahti". Parents of appellant had already debarred appellant and his legal heirs from all movable and immovable properties.
● That trial court did not consider the fact that respondent no. 1 was abusing the process of law as vide order dated 12.07.18, PE was closed by the trial court. However, respondent no. 1 assisted by her counsel filed an application for recalling the order of closing the PE by adducing false and frivolous grounds. ● That the trial court till date did not give any finding on the application filed u/s 340 Cr.P.C., which is still pending trial, despite moving another application for disposal of the same. (In Ref. T. Dhinakaran (Minor) v. Ranganathan decided by Madras High Court on 05.10.2017 and N. Natrajan v. B.K. Subba Rao, decided by Supreme Court on 03.12.2002).
ARGUMENTS
6. Appellant argued on the lines of grounds taken in the appeal as well as written arguments. Whereas, respondent supported the impugned order.
APPRECIATION OF ARGUMENTS AND FINDINGS AS WELL AS DECISION :-
7. The reliance of appellant over judgment passed in the cases of Japani Sahoo (supra) and Noida Associates (supra), were totally misplaced, because both these cases did not deal with the question of limitation for the purpose of Domestic Violence Act. An application under Section 12 of the Act is not strictly a complaint for any offence. It is Section 31 of the Act, which talks about criminal offence. However, that is not the case herein. In the present case, Page 4 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.142/2018 proceedings were being conducted on the allegations of domestic violence for the purpose of specific relief claimed by complainant.
8. In the case of Inderjit Singh Grewal (supra), Supreme Court dealt with a case, wherein husband and wife had obtained decree of divorce by way of mutual consent on 20.03.2008. Thereafter, wife had filed an application under the Domestic Violence Act on 12.06.2009 alleging that despite getting divorce both of them had been living together as husband and wife. High Court had quashed such application of the wife and thereafter, Supreme Court after dealing with factual aspect of the case, observed that the contention of wife that even after the decree of divorce, they continued to live together as husband and wife, therefore, the complaint under the Act was maintainable, was not worth acceptance at that stage. The court did not come up with any legal proposition in respect of limitation applicable to an application under the Act. The observations quoted by the appellant herein were simply made while dealing with one of the arguments, without much elaboration on that legal issue. Therefore, this case law is also of no help for the case of appellant.
9. Furthermore, appellant has in his written argument disputed the allegations made in the complaint and has tried to demolish the credibility of evidence given by complainant/respondent herein. However, such exercise is to be done by the trial court, only after conclusion of the trial and after hearing both the parties. Appellant had moved the application for dismissal of this complaint merely on the grounds of limitation. Though, the ground was not available on the face of complaint on the record. In the complaint, in para no.15 and 16, complainant did make allegations related to incident of 24.08.2010 and 27.03.2011, thereby illustrating incident of domestic Page 5 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.142/2018 violence. This complaint/application under Section 12 of the Act was filed on 08.04.2011. Therefore, by no stretch of imagination it can be said that the complaint was not maintainable. Therefore, I find this appeal to be merit-less. Hence, same is dismissed.
10.Appellant shall appear before trial court on date already fixed by the trial court.
11.TCR be sent back along with copy of judgment. File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court
PRAMACHALA No.3, Karkardooma
Courts, Delhi
Date: 2018.11.22
13:10:22 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 20.11.2018 Special Judge (PC Act) CBI, East
(This order contains 6 pages) Karkardooma Courts, Delhi
Page 6 of 6 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi