BHUPATBHAI MANJIBHAI AMIPARA & ORS. vs JYOTIBEN MAHENDRABHAI AMIPARA & ANR.

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.

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.

On the application being so filed, the present

petitioners preferred an application Exh?50 before the

learned Judicial Magistrate, Vanthali. It was the

contention of the present applicants?petitioners

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

17.08.2006, the Court has granted her maintenance.

According to the petitioners?applicants 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 petitioners?applicants, 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.

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

held to be time barred.

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.

This application, therefore, has been so filed

challenging this order.

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 wife?respondent 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

Criminal Procedure.

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.

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.

The views that the Courts below have taken in the

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.