Santosh Kumar vs State Of Bihar & Anr on 6 October, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.41318 of 2016
Arising Out of PS.Case No. -110 Year- 2015 Thana -DOMESTIC VIOLENACE District- PATNA

Santosh Kumar, son of Sri Siyaram Mandal, resident of House No.241/2/5
Govindpur Housing Colony Chota Govindpur (Jamshedpur), P.S.-Chota
Goovindpur, District-East Singhbhum (Jharkhand) at present residing at BHEL RC
Puram Lingampally Hyderabad, P.S.-Lingampally, District-Hyderabad, State of
Telangana (at present).

…. …. Petitioner
Versus
1. The State of Bihar

2. Neha Kumari, Daughter of Sri Rameshwar Prasad, resident of Purnendu Nagar,
Plot No. E/3/3, Near Shiv Mandir, Adjacent house of Baby Niwas,
P.S.-Phulwarisharif, District-Patna.

…. …. Opposite Parties

Appearance :

For the Petitioner/s : Mr. Dinu Kumar, Advocate
Mr. Swapnil Kumar, Advocate
For the Opposite Party no.2 : Mr. Baijnath Thakur, Advocate

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
C.A.V. JUDGMENT
Date: 06-10-2017

This application under Section 482 of the Code of

Criminal Procedure (for short „Cr.P.C.‟) has been filed by the

petitioner for quashing the entire proceeding of Domestic Violence

Case No. 110 of 2015 including the order dated 22.07.2016 passed

by the learned Judicial Magistrate, Patna by which ad interim relief
Patna High Court Cr.Misc. No.41318 of 2016 dt.-06-10-2017
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has been granted to the opposite party no.2 whereby the petitioner

has been directed to pay Rs.15,000/- per month to the opposite party

no.2 for her day-to-day maintenance and to continue her studies.

2. Three important issues, which arise for

determination in this case are:-

(i) Whether an ex-wife can file a complaint under

the Protection of Women from Domestic Violence

Act, 2005 (for short the „D.V. Act‟) when the

relationship has come to an end with a decree of

divorce?

(ii) Whether an application under Section 482 of the

Cr.P.C. would be maintainable for quashing a

proceeding under the provisions of the D.V. Act?

(iii) Whether the provisions of Section 468 of the

Cr.P.C. would be applicable in case of a proceeding

under the D.V. Act?

3. Before, I proceed ahead to discuss and decide the

aforesaid questions, it would be essential to briefly narrate the

factual issues.

4. A complaint under Sections 18, 19, 20 and 27 of

the D.V. Act was filed by the opposite party no.2 against the

petitioner and three others in the court of Chief Judicial Magistrate,
Patna High Court Cr.Misc. No.41318 of 2016 dt.-06-10-2017
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Patna alleging therein that she was married to the petitioner on

14.02.2013 at Barauni, Begusarai. Her parents had spent Rs.18

Lakhs over her marriage. After the marriage, she was taken to her

sasural at Jamshedpur. In sasural, she was subjected to harassment

by her husband and in-laws for demand of Rs. 10 lakhs. They used

to utter that the petitioner being a class-II officer in B.H.E.L., whose

monthly salary is Rs.1.25 lakhs, was being offered Rs.25 lakhs as

dowry by several persons. They asked her to demand Rs.10 Lakhs

from her parents failing which she was threatened to be driven out of

her matrimonial house. She has alleged that after sometimes, she

was taken to Lingampally, Hyderabad (Andhra Pradesh) where her

husband was posted. Even there, she was being subjected to cruelty

by her husband and in-laws for non-fulfilment of demand of Rs.10

lakhs and a luxury car. She has alleged that her husband and in-laws

also attempted to kill her, but somehow she could save her life and,

ultimately, on 23.04.2013, she was ousted from the house by her

husband and in-laws at Hyderabad. An information, in this regard,

was given to the Hyderabad Police, but no action was taken on her

complaint. Thereafter, she came back to Patna at her parents‟ house.

Even in Patna, she was threatened to bring dowry as demanded.

5. On the basis of these allegations, the complainant

prayed for the following reliefs from the court under the D.V. Act
Patna High Court Cr.Misc. No.41318 of 2016 dt.-06-10-2017
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from the husband:-

(i) Rs. 10 lakhs as compensation for physical and

mental sufferings;

(ii) Rs. 15 lakhs for loss of education;

(iii) Rs. 25 thousand per month for maintenance;

(iv) Rs. 20 thousand per month for residential

accommodation or a direction to allow the petitioner

to reside in the flat of her husband at Hyderabad; and

(v) Rs. 25 lakhs for cumulative suffering and loss.

6. Mr. Dinu Kumar, learned counsel for the

petitioner submitted that as the case was transferred to the court of

learned Judicial Magistrate and notice was served to the petitioner

and another accused persons, he appeared and filed show cause on

31.05.2016 denying the allegations levelled by the opposite party

no.2. A specific stand was taken before the learned Magistrate that

the D.V. case is malicious and has been filed with oblique motive

and is not maintainable. It was also pleaded that the provisions of

Sections 18, 19, 20 and 21 of the Act, 2005 are not made out. It was

also pleaded that the opposite party no.2 had hardly stayed for 5-6

days at Jamshedpur after marriage and she stayed for about two

months at Hyderabad. The marriage was performed without any

dowry and the allegation of demand of dowry and torture as
Patna High Court Cr.Misc. No.41318 of 2016 dt.-06-10-2017
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mentioned in the complaint is concocted and false. As a matter of

fact, due to cruelty meted out by the opposite party no.2, the

petitioner had gone in depression and, for that, he underwent

treatment in hospital. Since the steps taken for settlement of the

issue could not deliver any fruitful result, a divorce case being

H.M.O.P. No.54 of 2014 under Section 13(i)(a) of the Hindu

Marriage Act, 1955 was filed for dissolution of the marriage

between the petitioner and the opposite party no.2 in the court of

Senior Civil Judge at Sangareddy, Andhra Pradesh. The opposite

party no.2 knowingly did not appear in the divorce case filed by the

petitioner even, after valid service of notice. A decree of divorce

dated 27.02.2015 was passed by the learned Senior Civil Judge,

Sangareddy. Learned counsel for the petitioner further submitted

that once the domestic relationship came to an end after the decree

of divorce, the complaint under the D.V. Act could not have been

filed. In support of his submission, he has placed reliance on a

judgment passed by the High Court of Punjab and Haryana in the

matter of Amit Agarwal and Ors. Vs. Sanjay Aggarwal [III

(2016) DMC 97 (P H). He submitted that the complaint under the

D.V. Act is also barred by law of limitation in view of the provisions

of Section 468 of the Cr.P.C.. In this regard, he has placed reliance

on the decision of the Supreme Court in the matter of Inderjit Singh
Patna High Court Cr.Misc. No.41318 of 2016 dt.-06-10-2017
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Grewal vs. State of Punjab Anr. [(2011) 12 SCC 588].

7. Per contra, learned counsel for the opposite party

no.2 submitted that the instant application under Section 482 of the

Cr. P.C. is not maintainable, as the impugned order of maintenance

passed under Section 20 of the D.V. Act is appelable under Section

29 thereof. He contended that when there is statutory remedy

available, the inherent power under Section 482 of the Cr.P.C.

cannot be exercised. He contended that the decree of divorce dated

27.02.2015 passed by the Senior Civil Judge, Andhra Pradesh is an

ex parte decree for which the opposite party no.2 came to know only

after she appeared in Cr. Misc. No.36243 of 2015 filed by the

petitioner before this court against the order of cognizance passed in

Complaint Case No.56 C of 2015 instituted under Section 498A of

the Indian Penal Code against the petitioner and others. After

coming to know about the said decree of divorce, the opposite party

no.2 filed a petition in H.M.O.P. No.54 of 2014 on 30.09.2015 under

Order IX Rule 13 read with Section 151 of the Cr.P.C. for setting

aside the decree. He contended that the said petition is still pending

before the court of Senior Civil Judge, Sangareddy. He contended

that even otherwise the complainant-opposite party no.2 is entitled

to receive maintenance under Section 20(1)(d) of the D.V. Act, as

the allegation of domestic violence in Domestic Violence Case
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No.110 of 2015 relate back to the date prior to the institution of the

said divorce case.

8. I have heard learned counsel for the parties and

carefully perused the record.

9. The first question whether an ex-wife can file a

complaint under the D.V. Act when the relationship has come to an

end with a decree of divorce fell for consideration before the Punjab

and Haryana High Court in Amit Agarwal (supra). In that case, a

challenge was made by the husband to the complaint filed by the

brother of his ex-wife in 2009, after a year of decree of divorce was

passed. The facts of the said case were that the petitioner was

married in 2003, but in 2006 his wife left the matrimonial house. In

the meantime, a complaint under the D.V. Act was also filed by her

against her husband and his family members. The husband filed a

divorce case. Against which, he got an ex parte order in 2008. The

complaint filed by the wife in 2006 was withdrawn in March, 2009,

but a month later, her brother again filed a complaint. The Punjab

and Haryana High Court held that as per provisions of the Act, the

brother of the aggrieved was duly competent to file a complaint, but

in a case where the decree of divorce had already been passed, it was

not maintainable. The court while exercising power under Section

482 of the Cr.P.C. quashed the complaint and observed that “the
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provisions under the D.V. Act can be invoked only when the

domestic relationship is in existence”.

10. Referring to Section 2(a) of the D.V. Act, the

Court observed: “the use of the word is any woman „who is‟ or „has

been‟. Both the expressions are in the present tense. The legislature

has not used the word „who was‟ or „had been‟. This means the

domestic relationship has to be in the present and not in the past.

The definition requires that on the date Act come into force, the

woman should be in domestic relationship”.

11. Referring to Section 2(f) of the D.V. Act, which

defines the domestic relationship, the Court observed: “the

definition clearly speaks of a domestic relationship between two

persons who live or have at any point of time lived together in a

shared household and are related by marriage or through a

relationship in the nature of marriage. This definition also speaks

about the existence of a relationship by marriage or a relationship

in the nature of marriage at the time. The expression used is „are

related‟ by marriage. The expression by the legislature is not „were

related‟. From the bare reading of these two provisions it is

apparent that the intention of the legislature is to protect those

women who are living in a domestic relationship”.

12. While deciding the said question, the Court
Patna High Court Cr.Misc. No.41318 of 2016 dt.-06-10-2017
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referring to decision of Delhi High Court in Harbans Lal Malik vs.

Payal Malik [(2010) DLT 67], held: “the definition of „wife‟ as

available in Section 125 Cr.PC cannot be merged into Domestic

Violence Act”.

13. While examining the second question in Amit

Agarwal (supra) whether an application under Section 482 of the

Cr.P.C. would be maintainable for quashing a proceeding under the

provisions of the D.V. Act, the Punjab and Haryana High Court

held: “The Apex Court in Ashish Dixit and others Vs. State of U.P.

and another MANU/SC0156/2013 had quashed the proceedings

under the Domestic Violence Act in a petition filed under Section

482 Cr.P.C. This High Court in Jasvir Kaur and another Vs.

Manpreet Kaur in CRM No. M-29792 of 2011 allowed the petition

filed under Section 482 Cr.P.C. seeking quashing of the complaint

filed under the Domestic Violence Act. The Karnataka High Court in

Smt. Nagarathnamma Vs. M.S. Vanithashree in Cr.P.No.5246 of

2010 had allowed the petition filed under Section 482 Cr.P.C. Thus,

a complaint can be quashed in the petition filed under Section 482

Cr.P.C. if it is found that the complaint was an abuse of the process

of the Court or has filed only with a view to harass the others”.

14. On both the above said questions, I fully concur

with the view taken by the Punjab and Haryana High Court in Amit
Patna High Court Cr.Misc. No.41318 of 2016 dt.-06-10-2017
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Agarwal (supra).

15. So far as the third question whether the

provisions of Section 468 of the Cr.P.C. would be applicable in case

of a proceeding under the Act is concerned, the same is no more res

integra.

16. In Inderjit Singh Grewal (supra), the Supreme

Court has answered the said question in the following words:

“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

Association v. Noida Ors., (2011) 6 SCC 508”.

17. The law declared by the Supreme Court has got

binding force and, in that view of the matter, it can safely be said

that the provisions of Section 468 of the Cr.P.C. would clearly be

applicable in cases instituted under the provisions of the D.V. Act.

18. Coming back to the facts of the present case, the
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complainant-opposite party no.2 was admittedly married to the

petitioner on 12.04.2013 at Barauni, Begusarai. Subsequently, she

was taken to Lingampally, Hyderabad where the petitioner was

serving as a Class-II officer in B.H.E.L. She was ousted from her

husband‟s house in Lingampally, Hyderabad on 23.04.2013. An

allegation has also been made in the complaint that on 04.05.2014 at

about 7:00 P.M., the complainant went together with her mother to

the house of the petitioner, but the petitioner refused to return her

ornaments and other utensils.

19. In Section 31 of the D.V. Act penalty has been

provided for breach of protection order. The penalty provided for

such breach is for a term which may extend to one year or extend to

twenty thousand rupees or both. Apparently, the D.V. Act is not

considered as a criminal law as it is more concerned with providing

relief to the victim. However, if the offender does not comply with a

final or temporary protection order, he can be (i) sent to jail; (ii)

ordered to pay fine upto Rs.20,000/-; or (iii) sent to jail and ordered

to pay fine.

20. Section 28 of the D.V. Act clearly stipulates

that save as otherwise expressly provided, all proceedings under

Sections 12, 18, 19, 20, 21 and 23 and offences under Section 31

shall be governed by the provisions of Cr.P.C.

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21. Section 32 of the D.V. Act provides that

notwithstanding anything contained in the Cr.P.C., the offence under

Section 31 shall be cognizable and non-bailable.

22. Chapter XXXVI of the Cr.P.C. deals with

limitation for taking cognizance of certain offences. Section 468 of

the Cr.P.C., which bars taking cognizance of the offence after lapse

of one year, reads as under:-

“468. Bar to taking cognizance after lapse of
the period of limitation.-

(1) Except as otherwise provided elsewhere in
this Code, no Court shall take cognizance of an
offence of the category specified in sub- section
(2), after the expiry of the period of limitation.
(2) The period of limitation shall be-

(a) six months, if the offence is punishable with
fine only

(b) one year, if the offence is punishable with
imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with
imprisonment for term exceeding one year but
not exceeding three years.

(3) For the purposes of this section, the period
of limitation in relation to offences which may
be tried together, shall be determined with
reference to the offence which is punishable
with the more severe punishment or, as the case
may be, the most severe punishment.”

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23. A perusal of Section 468 of the Cr. P.C. would

make it evident that the Court would be debarred from taking

cognizance of the offence after expiry of one year if the offence is

punishable with imprisonment not exceeding one year.

24. As seen above, the maximum punishment

provided under the D.V. Act is for a term which may extend to one

year. Hence, the Court would be debarred from taking cognizance

after one year. Evidently, the complaint has been filed in the present

case after the expiry of the period of limitation. In this regard, the

petitioner has rightly placed reliance on the ratio laid down by the

Apex Court in Inderjit Singh Grewal (supra) wherein it has been

held that the complaint under the D.V. Act could be filed only

within a period of one year from the date of incident in view of the

provisions of Sections 28 and 32 of the D.V. Act.

25. Further, the application filed by the petitioner

under Section 13(1)(a) of the Hindu Marriage Act, 1955 for

dissolution of the marriage between him and the opposite party no.2

held on 14.02.2013 was allowed by the learned Senior Civil Judge at

Sangareddy, Andhra Pradesh on 27.02.2015 whereas the complaint

under the D.V. Act was filed after more than four months of passing

of the decree of divorce on 10.07.2015.

26. In view of the discussions made above, as I have
Patna High Court Cr.Misc. No.41318 of 2016 dt.-06-10-2017
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already concurred with the view taken by the Punjab and Haryana

High Court in Amit Agarwal (supra), the complaint under the D.V.

Act by the ex-wife after divorce was not maintainable in law.

27. Thus, I am of the opinion that the entire

proceeding of the D.V. Case No. 110 of 2015 is an abuse of the

process of the Court. Accordingly, the complaint and the entire

proceeding of the aforesaid case including the impugned order dated

22.07.2016 passed by the learned Judicial Magistrate, Patna are

hereby quashed.

28. The application stands allowed.

(Ashwani Kumar Singh, J.)
Sanjeet/-

AFR/NAFR AFR
CAV DATE 08.09.2017
Uploading Date 10.10.2017
Transmission 10.10.2017
Date

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