Bangalore District Court
Thiyagarajan vs Smt. Soundraya Gayathri. P on 25 September, 2019
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE; BANGALORE CITY
PRESENT:-
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 25th day of September, 2019
CRL.A.No.732/2019
PETITIONER/S :- THIYAGARAJAN
MARUTHAVANAN @
THIYAGARAJAN. M
s/o Maruthavanan Rathinasabapathy,
Aged about 36 years,
R/at No.101-A,
'Aratt Royal Citadel',
Near Manipal County,
Singasandra,
Bengaluru - 560 068.
(By Sri. VR, Advocate)
V/s.
RESPONDENT/S:- SMT. SOUNDRAYA GAYATHRI. P,
d/o Pingapany,
Aged about 30 years,
R/at No.231-D Block,
Mahaveer Ridge Apartments,
Yelanahalli, Begur Main Road,
Bengaluru - 560 068.
(By .Sri. CVS, Advocate)
2 Crl.A.No.732/2019
JUDGMENT
This is an appeal filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 seeking to set aside the order dated 04.02.2019 passed by the Metropolitan Magistrate Traffic Court-V, Bengaluru in Crl.Misc.No.57/2017.
2. The brief facts of the case are as follows:-
The respondent herein has filed a petition before the trial court seeking for an appropriate relief under Sections 12, 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act in Crl.Misc.No.57/2018 against the petitioner herein. In response to the notice, the petitioner herein has appeared and filed a memo praying to dismiss the petition filed by the respondent as time barred. The ground on which the petitioner herein has filed the memo is that the petitioner has filed a petition on 03.05.2017 and as it is stated in the petition that parties are residing separately from November 2012, there is no relation between the petitioner herein and the respondent and there are no instances of domestic violence, the petition has been filed after lapse of period of limitation, the petition is not maintainable since the same is filed beyond time of limitation, the trial court has 3 Crl.A.No.732/2019 erroneously dismissed the memo by order dated 04.02.2019.
Aggrieved by which the present appeal is filed.
3. After presentation of the appeal, this court ordered for issuance of notice. In response to the notice the respondent entered appearance through her counsel. The counsel for the respondent has filed objection and contested the case.
4. I have heard both the sides. Now, the points that arise for my consideration are:-
1. Whether the impugned order dated 04.02.2019 passed by the Metropolitan Magistrate Traffic Court-V, Bangalore, in Crl.Misc.No.57/2017 needs interference by this court.
2. Whether the appeal filed by the appellant under Section 29 of the Protection of Women from Domestic Violence Act, deserves to be allowed?
3. What order
5. My findings on the above points are:-
Point No.1 :- In the Negative
Point No.2 :- In the Negative
Point No.3 : As per the final order
for the following :-
4 Crl.A.No.732/2019
REASONS
6. Points No.1 & 2:- That the present appeal is filed by the appellant under Section 29 of the Protection of Women from Domestic Violence Act, seeking to set aside the order dated 04.02.2019 passed by the Metropolitan Magistrate Traffic Court- V, Bangalore, in Crl.Misc.No.57/2017.
7. The grounds on which the present appeal is filed are:
1) the impugned order is opposed to the settled position of law the same is barred by limitation,
2) the respondent is guilty of acquiescence besides guilty of sleeping over her rights. Therefore, the respondent cannot be allowed to complain after more than three years of separation, thus the impugned order is unsustainable in law.
3) the maximum punishment prescribed under the domestic violence act for any violation is one year, therefore having regard to Chapter XXXVI of Cr.P.C., the petition is hopelessly barred by time as such the impugned order is unsustainable.
8. In order to substantiate his grounds, the learned advocate for appellant has relied on the judgment passed by the 5 Crl.A.No.732/2019 Hon'ble Supreme Court in Inderjit Singh Grewal vs. State of Punjab, reported in (2011) 12 SCC 588. The advocate for appellant has relied upon the relevant portion of the observation made by the Hon'ble Supreme Court which reads as follows;
Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 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 make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Assn v. Noida.. In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the 6 Crl.A.No.732/2019 court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same.
9. He has further vehemently submitted that the respondent and appellant never residing in one roof and there is no instances of domestic violence against the respondent by the appellant and the respondent has approached the court beyond period of limitation. With these submissions he sought for allowing the appeal.
10. Per contra, the learned advocate for respondent has argued that the observation made by the Hon'ble Supreme Court in Inderjit Singh Grewal vs. State of Punjab, reported in (2011) 12 SCC 588, is not applicable to the present case. The learned counsel for respondent has taken to this court to the facts of the case in Inderjit Singh Grewal vs. State of Punjab and he has submitted that in the said case there was a consent divorce between the husband and the wife. Even after consent divorce parties are started residing in the same house and having regard to these facts the Hon'ble Supreme Court has 7 Crl.A.No.732/2019 stated that the petition was filed by limitation. He has further argued that the grounds urged in the appeal memo and the argument of the advocate for appellant are not tenable one, and there was a continuous domestic violence by the appellant against the respondent, and it is not possible to ascertain causing domestic violence by the appellant against the respondent at this stage, and the same requires detail trial.
11. The learned counsel for the respondent has further argued that the limitation point does not applicable to the case in hand. In order to substantiate his ground he has relied on the judgment of Hon'ble Supreme Court in Vanka Radhamanohari (Smt) vs. Vanka Venkata Reddy and others, reported in (1993) 3 SCC 4 and he relied on the observation made in para No.7 of the judgment which reads as follows;
It is true that the object of introducing Section 468 was to put a bar of limitation on prosecutions and to prevent the parties from filing cases after a long time, as it was though proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence may disappear. This aspect has been mentioned in the statement and object, for introducing a period of 8 Crl.A.No.732/2019 limitation, as well as by this Court in the case of State of Punjab v. Sarwan Singh. But, that consideration cannot be extended to matrimonial offences, where the allegations are of cruelty, torture and assault by the husband or other members of the family to the complainant. It is a matter of common experience that victim is subjected to such cruelty repeatedly and it is more or less like a continuing offence. It is only as a last resort that a wife openly comes before a Court to unfold and relate the day-to-day torture and cruelty faced by her, inside the house, which many of such victims do not like to be made public. As such, Courts while considering the question of limitation for an offence under Section 498A i.e. subjecting a woman to cruelty by her husband or the relative of her husband, should judge that question, in the light of Section 473 of the Code, which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether "it is necessary to do so in the interest of justice".
12. Relying on the judgment he has submitted that the law of limitation as it is contended by the advocate for appellant does not applicable to the matrimonial cases. The case in hand 9 Crl.A.No.732/2019 arise out of the matrimonial disputes. With these submissions he sought for dismissal of the appeal.
13. After going through the entire materials available on record and keeping in view the oral and arguments of the respective counsels, I proceed to answer the points for consideration.
14. That it is the prime contention of the appellant that the application filed by the respondent wife cannot be entertained as the same is filed beyond the period of limitation as a counter. It is the argument of the advocate for respondent that the law of limitation i.e. Section 468 Cr.P.C., which puts a bar of limitation on prosecution and to prevent the parties from filing cases after a long time cannot be extended to matrimonial offences, where the allegation are of cruelty, torture and assault by the husband or other members of the family or continue one. At the outset, I would like to mention here that it is true that the respondent has left the matrimonial house prior to the three years from the date of filing of the revision petition. However the same has to be looked into, having taken into consideration the other factual aspects of the case as it is observed by the Hon'ble Supreme Court in 10 Crl.A.No.732/2019 Vanka Radhamanohari (Smt) vs. Vanka Venkata Reddy and others. One cannot say that this is the date on which the cruelty is caused which includes mental and physical torture and which date the domestic violence has been caused, and it is subject of the mental torture and mental agony caused to the aggrieved person. Here in the present case, the petition has been filed after lapse of three years and husband and wife were not residing together in one roof, there cannot be instances of domestic violence, will not come in the way to proceed against the appellant herein. Because when the petition is filed by the wife the same needs an enquiry. Without conducting any enquiry on the actual domestic violence alleged to have been caused by the appellant husband to the respondent wife it would be in appropriate to say that the petition has been filed beyond the limitation and to reject the appellant filed by the respondent wife. In my view, the trial court has rightly passed the impugned order dismissing the memo filed on behalf of the appellant. Hence, I do not find any reasons to interfere with the impugned order passed by the trial court. Accordingly, I answer points No.1 and 2 in the 'Negative'.
11 Crl.A.No.732/2019
15. Point No.3:- In view of my findings on points No.1 and 2, I proceed to pass the following:-
ORDER The appeal filed by appellant under Section 29 of Protection of Women from Domestic Violence Act, 2005, is hereby dismissed.
The impugned order passed by the Metropolitan Magistrate Traffic Court-V, Bangalore, in Crl.Misc.No.57/2017 dated 04.02.2019 is hereby confirmed.
Send a copy of this judgment to the lower Court.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 25th day of September, 2019) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.