Document Fragment View
Fragment Information
Showing contexts for: Domestics section 12 in Prabir Kumar Ghosh & Ors vs Jharna Ghosh & Anr on 20 August, 2015Matching Fragments
That apart, section 468 Cr.P.C. in my considered opinion cannot have any manner of application to a proceeding under section 12 of the Act of 2005. Section 468 Cr.P.C. prescribes the period of limitation for a Court to take cognizance of offences punishable with fine only, maximum imprisonment of year or three years respectively. Act of 2005 does not provide for initiation of prosecution for an act of 'domestic violence' at the first instance. The scheme of the Act provides for a two‐ tier system. A victim of domestic violence may take out an application under section 12 of the Act before the learned Magistrate complaining of domestic violence whereupon the learned Magistrate upon due enquiry may pass protection order (section 18), residence order (section 19), monetary relief (section 20), custody order (section 21) or compensation order (section 22), as the case may be in favour of the aggrieved person. Ad‐interim/interim orders of like nature may also be passed under section 23 of the Act. Only when a protection order or an interim protection order is breached by the respondent the penal provision of the Act are attracted and the offenders may be prosecuted and punished under section 31 of the Act for a maximum period of one year. From the aforesaid discussion it is clear that neither is the act of 'domestic violence' is per se an offence punishable under the Act nor can an application under section 12 of the Act be treated as a petition of complaint/prosecution report filed before a learned Magistrate for taking takes cognizance of an offence punishable in law. The reliefs prayed for in an application under section 12 of the Act, e.g., protection order, etc. are all preventive or protective and not punitive in nature. It is only after a protection order passed under the Act, is breached, the penal provision under section 31 of the Act is attracted.
(emphasis supplied) It is accordingly opined that the initial proceeding under section 12 of the Act, although governed by the provisions of the Criminal Procedure Code, is essentially quasi‐civil in nature while the subsequent prosecution contemplated under section 32 thereof for breach of protection order passed therein is penal in character. Initial act or acts of 'domestic violence' per se does not constitute the offence under section 32 of the Act but a breach of protection order passed therein by subsequent acts of 'domestic violence' or otherwise is the ingredient of such offence. Starting point of limitation contemplated under section 468 Cr.P.C. is from date of commission of the offence which in respect of section 32 of the Act is the date of breach of protection order under the Act and not the initial act/acts of domestic violence which is cause of action for a proceeding contemplated under section 12 of the Act.
Hence, the period of the limitation prescribed under section 468 Cr.P.C. for launching prosecution in respect of offences specified therein cannot be applied to an application under section 12 of the Act which neither partakes the character of a prosecution nor the reliefs envisaged therein are penal in nature. The said provision may at best be pressed into service to regulate the initiation of prosecution under section 32 of the Act complaining of breach of protection order but certainly does not prescribe the period of limitation for instituting initial proceeding under section 12 of the Act of 2005 complaining of 'domestic violence' and culminating in a protection order under the said Act. Reference to Inderjit Singh Grewal (supra) is wholly misconceived. In the said report the Apex Court quashed a proceeding under the Act of 2005 as an abuse of process of Court as it was instituted after a decree of mutual consent was passed dissolving the marriage between the parties. In the said decree the issue as to dowry articles and custody were settled. However, alleging that the decree was procured through fraud, the wife filed a proceeding under the Act praying for custody, residence order and return of dowry articles. Simultaneously, she also filed a suit for declaration that the decree is null and void and custody of the child. In the aforesaid factual background, the Apex Court held that the allegation of fraud was patently absurd and an afterthought and the proceeding was quashed. The facts are completely different in the present case. Although herein the matrimonial tie has also been dissolved by a decree of divorce, the claim of alimony/maintenance was not settled therein and the opposite party no. 1 was given leave to seek permanent alimony in accordance with law. The plea of 'economic abuse' of a divorced wife as a species of 'domestic violence' had not fallen for consideration in the aforesaid report and the said authority is accordingly distinguishable on facts from the present case on that score. The said report is also not an authority for the proposition that section 468 Cr.P.C. applied to an application under section 12 of the Act inasmuch as in paragraph 24 of the said report it refers to applicability of section 468 Cr.P.C. to a prosecution under section 32 of the Act in terms of section 28 and Rule 15(6) of the Rules framed thereunder and not to an initial proceeding under section 12 of the said Act seeking reliefs in the nature of protection, orders, etc. It is trite law that a decision is an authority for the proposition it actually decides and not what logically follows therefrom. [State of Orissa Vs. Sudhansu Sekhar Misra, AIR 1968 SC 647 (para 13)] Accordingly, I am of the opinion that the aforesaid decision has no application to the facts of the instant case, where having perused the averments in the application and in the light of the factual background, I am satisfied that a case of economic abuse which is continuing on a day to day basis, has been made out against petitioner no. 1.