Karnataka High Court
Shivakumar S/O Iranna Kambar vs Parvati W/O Shivakumar Kambar on 30 November, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
TH
R
DATED THIS THE 30 DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRL.RP.No.200004/2015
BETWEEN:
1. SHIVAKUMAR S/O IRANNA KAMBAR
AGE: 36 YEARS, OCC: PVT. WORK
2. IRANNA S/O BASAPPA KAMBAR
AGE: 70 YEARS, OCC: AGRICULTURE
3. BASAVARAJ S/O IRANNA KABAR
AGE: 43 YEARS, OCC: DRIVER
4. RAMACHANDRA @ RAMANNA
S/O IRANNA KAMBAR
AGE: 21 YEARS, OCC: B.COM STUDENT
ALL ARE R/O YELSANGI VILLAGE
TQ.ALAND, DIST: GULBARGA
... PETITIONERS
(BY SRI SHARANABASAPPA M.PATIL, ADVOCATE)
AND:
PARVATI W/O SHIVAKUMAR KAMBAR
AGE: 31 YEARS, OCC: ASHA WORKER
R/O YELSANGI TQ.ALAND
DIST. GULBARGA NOW RESIDING AT
C/O HANAMANTH BHIMANNA KAMBAR
KUMBAR GALLI, INDI, TQ.INDI
DIST. BIJAPUR
... RESPONDENT
(BY SRI GANESH NAIK, ADVOCATE)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CRIMINAL PROCEDURE CODE,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF THE
COURT OF 1ST ADDL. SESSIONS JUDGE AT GULBARGA PASSED
IN CRL.APPEAL NO.22/2014 DATED 02.12.2014 AND ALSO SET
ASIDE THE ORDER OF THE PRL. CIVIL JUDGE AND JMFC AT
ALAND PASSED IN CRL.MISC.NO. 138/2013 DATED 27.05.2014.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed under sections 397 read with section 401 of Cr.P.C., praying this Court to set aside the judgment and order of the trial Court and also order of the I Additional Sessions Judge at Kalaburagi granting Rs.3,000/-per month to the petitioner as maintenance and medical expenses and also ordered to provide separate residential house to the petitioner at Yelsangi village for her residence, out of three houses, which is situated near Gram Panchayat, Yelsangi as per Domestic Incident Report and also directed to pay arrears of maintenance within one month and further direction was given to the concerned jurisdictional police to carry out the order of the Court. 3
2. The petitioners in this petition have contended that the respondent-wife has filed Criminal Misc. No.15/2011 against the petitioner No.1 before the JMFC Court at Indi, and also Criminal Misc. No. 11/2010 to produce the custody of the children and petitioner No.1 was living separately and the same has not been considered by both the courts and ordered to pay maintenance of Rs.3,000/- is illegal and the same is required to be set aside. The petitioner No.2 is the father- in-law and petitioner No.3 is the elder brother-in-law and petitioner No.4 is the younger brother-in-law of the respondent and the Court has not looked into the facts of the case. It is also contended that petition is barred by limitation under section 468 of Cr.P.C. Hence, it requires interference by this Court.
3. The learned counsel for the petitioners in support of his argument, relied upon the judgment of the Hon'ble Apex Court in the case of Inderjit Singh Grewal vs. State of Punjab and another reported in 2012 4 Crl.L.J. 309 wherein in similar set of facts of the case, when the application is filed under section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as the 'DV Act' for short), the Court held that petition is barred by limitation. The learned counsel brought to the notice of this Court, paragraph Nos.24 and 25 wherein the Hon'ble Apex Court has observed that in view of provisions of section 468 of Cr.P.C., 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 read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006 (hereinafter referred as the 'DV Rules') which make the provisions of Cr.P.C., applicable and stand fortified by the judgments of this Court in Japani Sahoo vs. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association vs. Noida and others(2011) 6 SCC 508. It is further observed that undoubtedly, for quashing a complaint, the Court has to take its contents on its face value and in case the same 5 discloses an offence, the Court in generally does not interfere with the same. However, in the backdrop of the factual matrix of the case permitting the court to proceed with the complaint would be travesty of justice and warrants quashing of the same.
4. The learned counsel also relied upon the unreported judgment of this Court in J.Srinivas vs G.Dhanalakshmi disposed of on 05.04.2013 in Criminal Petition No.2419/2009, wherein also this Court held that the complaint ought to have been filed within a period of one year in terms of section 468 of Cr.P.C., and admittedly, the case having been registered in the year 2009 in respect of the offence alleged of the year 2004, the complaint was hopelessly barred by time and could not have been entertained.
5. Per contra, learned counsel for the respondent would submit that section 468 of Cr.P.C., is not applicable to the facts of case on hand. The learned counsel in support of his argument, he relied upon the order of this 6 court in the case of Sri Puttaraju vs. Smt.Shivakumari in Criminal Revision Petition No.730/2019 disposed of on 01.04.2021. The learned counsel brought to the notice of this Court that this Court has also taken note of the judgment of Inderjit Singh Grewal's case and also discussed the case in Krishna Bhattacharjee vs. Sarathi Choudhury and Others reported in (2016)2 SCC 705 and also discussed section 28 of the DV Act and distinguished non applicability of section 468 of Cr.P.C., by coming to the conclusion that sections 20 and 21 of the DV Act do not treat the domestic violence as offence and also relied upon the judgment of the Hon'ble Apex Court in Krishna Bhattacharjee's case referred supra. Distinguishing judgment in Inderjit Singh Grewal's case, the Hon'ble Apex Court in subsequent judgment in Krishna Bhattacharjee's case referred to supra held that the observation regarding domestic relationship in Inderjit Singh Grewal's case referred supra were based on the facts and circumstances of the said case and they are not of general application. This Court also referred 7 paragraph No.32 of the judgment in Krishna Bhattacharjee's case referred supra, the Hon'ble Apex Court held that the definition of the aggrieved person and domestic relationship remains and the act of domestic violence attracts continuing offences therefore, does not get time barred. Hence, the contention with regard to limitation is concerned is not entertained.
6. The learned counsel also relied upon the judgment in the case of Krishna Bhattacharjee's case referred supra wherein the Hon'ble Apex Court discussed in detail in paragraph No.31 regarding application of section 468 of Cr.P.C., and also sections 28 and 32 of DV Act read with Rule 15(6) of the Rules, and it is also observed that "We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed 8 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 custodians. For the purpose of 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act. It is observed that wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010. In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January-2010 and, therefore, she had been compelled to file the application to the Protection Officer for stridhan. Regard being had to the concept of 'continuing offence' and the demands made, we are disposed to think that the application was not barred by limitation and the Courts below as well as High Court had fallen into a grave error by dismissing the application being barred by limitation.
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7. Having heard the learned counsel for the petitioners and also the learned counsel appearing for the respondent, the points that would arise for the consideration of this Court are:
1. Whether the wife can invoke Section 12 of the D.V. Act within the time prescribed under Section 468 of Cr.P.C?
2. Whether the Courts below have committed an error in awarding maintenance against the father-in-law and the brother-in-laws?
3. What order?
Point No.1:
8. The argument of the learned counsel for the petitioners is that the petition is not filed within one year as envisaged under Section 468 of Cr.P.C. The counsel would submit that the respondent was residing separately from 2010 and the petition was filed in the year 2013, that is, almost after three years of her separation from the husband and hence, the very filing of the petition seeking 10 maintenance as well as other reliefs under Section 12 of the DV Act is not maintainable.
9. In support of his argument, he relied upon the decision of the Apex Court in the case of Inderjit Singh Grewal and unreported judgment of this Court in the case of J.Srinivas. No doubt, the Apex Court in the case of Inderjit Singh Grewal held that the petition ought to have been filed within one year from the date of the incident as per Section 468 of Cr.P.C. But this judgment has been distinguished in the case of Krishna Bhatacharjee, wherein the Apex Court held that the complainant was residing separately and judicial separation order was also passed in 2008. Wife had filed a suit and case registered under Section 498A of IPC in the year 2006 and the husband had obtained a decree of judicial separation in the year 2008 and hence, the Trial Court, Sessions Court and the High Court comes to the conclusion that the proceedings under the 2005 Act was barred by limitation. That apart, it has also in a way 11 expressed the view that the proceedings under 2005 Act was not maintainable. Hence, the respondent approached the Apex Court wherein the Apex Court distinguished the judgment of Inderjit Singh Grewal's case and held that the Trial Court, Sessions Court and the High Court have committed an error in deciding the case. And it is held that an application was filed before the Protection Officer on 22.05.2010 and the same was forwarded on 01.06.2010. The application was filed in 2010 itself and held that the application was not barred by limitation and the Courts below have fallen into a grave error by dismissing the application being barred by limitation. And further observed that in the 2005 Act, the definition of "aggrieved person" clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. "Economic abuse" as it has been defined in section 3(iv) of the said Act has a large canvass. Section 12 provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal's case that section 498 of Cr.P.C applies to 12 the said case under the 2005 Act as envisaged under Sections 28 and 32 of the 2005 Act read with Rule 15 (6) of the Protection Of Women From Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. Hence, it is clear that the Court cannot invoke Section 468 of Cr.P.C in a case of petition filed under Section 12 of the DV Act. This Court also in the unreported judgment in Criminal Revision Petition No.730/2019 distinguished the judgment of Inderjit Singh Grewal's case and also considered the Krishna Bhattacharjee's case and held that the observations regarding domestic relationship in Inderjit Singh Grewal's case were based on the facts and circumstances of the said case and comes to the conclusion that in view of the judgment of Krishna Bhattacharjee's case, the definition of the 'aggrieved person' and 'domestic relationship' remains and the Act of 13 domestic violence attracts the term 'continuing offence' does not get time barred.
10. Having considered the principles laid down in the judgment of Krishna Bhattacharjee's case and also in the unreported judgment of this Court in Crl.R.P.730/2019, the very contention of the petitioners counsel that the petition is barred by limitation cannot be accepted. Hence, I answer Point No.1 as Negative. Point No.2
11. The other contention of the petitioners counsel before this Court that the petitioners are the father-in-law and bother-in-laws of the respondent. He would contend that the Trial Court ought not to have granted the relief against the father-in-law and brother-in-laws and failed to take note of the fact that they are living separately. But the Trial Court while considering the issue with regard to whether they are living together or not, relied upon the Domestic Incident Report submitted by the Child 14 Development Protection Officer (CDPO). In paragraph 18 of the order wherein report is very clear that all of them are residing together and family is having 9 acres of land and all of them will get 3 acres each and no partition was taken place. The counsel for the petitioners brought to the notice of this Court paragraph 4 of the petition filed under Section 12 of the DV Act wherein he claims that respondent No.1 was allotted one open site at village Yelsangi and the mother and sister of respondent No.1 forced the aggrieved person to bring money and accordingly she brought the money of Rs.80,000/- borrowed by her brother and out of that money, two rooms were constructed in the open space allotted to the respondent No.1 and in which house, aggrieved person and her family were residing, while respondent Nos.2 to 4 and his mother and sister were separately residing in the ancestral house. Having taken note of the said averment, it is clear that though there is an admission regarding they are living separately but there is no any admission with regard that they are not enjoying the joint family 15 properties and report of this domestic violence, Protection Officer has not been disputed with regard to that all of them are enjoying the joint family property and there is no partition. When such being the facts and circumstances, the very contention of the petitioners that the father-in- law and brother-in-laws are not bound by paying the maintenance amount and not bound to provide separate residence as ordered by the Trial Court cannot be accepted. Under Section 2(q) of the DV Act, the word 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 provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. Having taken note of this, the very contention of the petitioners herein cannot be accepted. The counsel appearing for the petitioners would submit that the suit for partition is also pending but the said suit has not been adjudicated and decree has been passed for 16 judicial separation cannot be a ground to reject the petition. When such being the case, when the father-in- law and also the brother-in-laws are enjoying the joint family property, they cannot contend that they are not bound by obeying the order passed by the Trial Court which was filed under Section 12 of the DV Act. Hence, I answer Point No.2 as negative.
Point No.3
12. In view of the discussions made above, I pass the following Order The petition is dismissed.
Office is directed to return the LCR to the Trial Court.
Sd/-
JUDGE VNR/SAN