Prashant Pandurang Hingane And … vs Manisha Prashant Hingane And … on 20 December, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.1355 OF 2017

1. Prashant Pandurang Hingane, Age 36 years,
R/o.LAxminagar Township, Gullewadi,
Tal.Sangamner, Dist. Ahmednagar.

2. Pandurang Sakharam Hingane,

3. Alka Pandurang Hingane,
Both R/o.Sai Vihar Colony, Behind Hotel Prasad,
Sangamner, Tal.Sangamner.

4. Harsha Balasaheb Arote,

5. Balasaheb Raghunath Arote,
Both R/o.Dwarka Colony, Maldad Road,
Post Ghulewadi, Tal.Sangamner,
Dist.Ahmednagar. Applicants

versus

1. Manisha Prashant Hingane,

2. Aditya Prashant Hingane,
Both R/o.C/o.Deoram Maruti More,
Golden City, Near Takeshwar Mandir,
Om Sai Colony, At Gunjal Wadi,
Tal.Sangamner, Dist.Ahmednagar.

3. The State of Maharashtra. Respondents

Mr.Vinod Y. Bhide for Applicants

Mr.K.S.Patil, APP, for Respondent no.3.

Mr.K.N.Shermale for Respondent nos.1 and 2.

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CORAM : PRAKASH D. NAIK, J.

Date of reserving the judgment : 27th November 2017
Date of pronouncing the judgment : 20th December 2017

JUDGMENT :

1. The applicants have challenged the proceedings initiated by
respondent no.1 under the provisions of Protection of Women from
Domestic Violence Act, 2005 (`D.V.Act’). The proceedings are
pending on the file of learned Judicial Magistrate, First Class,
Sangamner.

2. Respondent nos.1 and 2 are the wife and son of applicant no.1.
The applicant nos.2 and 3 are the parents of applicant no.1.
Applicant no.4 is the younger married sister of the applicant no.1
and applicant no.5 is the husband of applicant no.4. The marriage
between applicant no.1 and respondent no.1 was solemnized on 20 th
May 2003.

3. The respondent no.1 filed an application before the Court of
Judicial Magistrate, First Class, Sangamner, which was numbered as
Criminal Miscellaneous Application No.808 of 2016 under the
provisions of D.V.Act against the applicants. In the said application it
was stated that the opponents had caused harassment to the
applicant therein. The respondent no.1 was employed as a school
teacher and for the convenience she sought transfer to the nearest
school. Since 7th May 2007 the respondent no.1 was residing with
the opponent nos.1 to 3 at Sangamner. The husband was addicted to
liquor. It was also revealed that the husband was having illicit

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relationship with another school teacher. The respondent no.1
ascertained the said fact. Considering the view of respondent no.2,
the respondent no.1 continued to bear the mental agony. The
opponents also demanded Rs.1,00,000/- to be brought by her. It was
also stated that respondent no.1 was abused, assaulted and was even
thrown out of house. An application was, therefore, filed under
Section 12 of D.V.Act and reliefs were sought under Sections 18 and
19 of the said Act. The application was filed on 10 th November 2016.
The Court took cognizance of the same and issued notices to the
opponents therein.

4. The applicants have challenged the said proceedings on several
grounds. It is submitted on behalf of the applicants that the
allegations made in the said proceedings do not make out the case
for taking cognizance of the application under D.V.Act. There are no
specific allegations against applicant nos.2 to 5. The applicant no.1
and respondent no.1 were residing in rental house and other
applicants were residing at different locations. The fact of separate
residences is admitted by respondent in other proceedings. The
applicant no.4 is married with applicant no.5 on 13 th May 2003 i.e.
prior to the marriage of complainant with applicant no.1. The
applicant nos.4 and 5 were resident of Jawhar, District Thane for
some years and then transferred to Vandarwadi, Taluka Akole. Due
to transfer of applicant no.5, the applicant nos.4 and 5 shifted to
Ghulewadi. Thus, the allegations made by respondent no.1 that they
are residing with applicants from 2008 are false. The applicant nos.2
and 3 were also residing separately. It is submitted that at no point
of time the applicant nos.4 and 5 were residing with the
complainant. The applicants have relied upon the documents in

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relation to marriage of respondent nos.4 and 5. One of the main
contention of the applicants is that the cause of action as stated in
the application filed by respondent no.1 had occurred on 15 th August
2008, however, the application was filed on 10 th November 2016
which is beyond the law of limitation. It is further submitted that the
complaint is filed after eight years and the same is barred by Law of
Limitation in accordance with
Section 468 of Code of Criminal
Procedure, 1973 and
Sections 28, 32 and Rule 15(6) of D.V.Act. The
complaint ought to have been filed lwithin one year from the date of
cause of action. The respondents had availed of other possible
remedies including the complaint for an offence punishable under
Section 498A of the Indian Penal Code as well as application under
Section 125 of Cr.P.C claiming maintenance. It is further submitted
that the Court has granted maintenance under
Section 125 of Cr.P.C
to the respondent no.2 and the prayer for maintenance to respondent
no.1 has been refused. It is submitted that the prosecution under
Section 498A and other offences is pending. The evidence is being
recorded and on realising that the complainant would not succeed in
the said prosecution, the present proceedings were initiated. It is,
therefore, submitted that in exercise of power under
Section 482, the
proceedings may be quashed. The applicant no.1 has also initiated
the proceedings for divorce which were numbered as Hindu Marriage
Petition No.96 of 2010, which were contested by respondent no.1 by
examining herself on oath. The evidence of respondent no.1 in all
the proceedings shows that she is exaggerating the facts.

5. Learned advocate for the respondent nos.1 and 2 opposed the
relief prayed by the applicants. It is submitted that the proceedings
are pending before the Trial Court. The respondent nos.1 and 2 may

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be allowed to adduce the evidence and prove their case. This is not
the stage to accept the contentions of the applicants and quash the
proceedings. It is further submitted that the nature of harassment
caused to the respondents, which has resulted in domestic violence,
is a continuous offence and, therefore, the application is not filed
beyond the limitation prescribed under
Section 468 of Code of
Criminal Procedure, 1972. It is submitted that merely because the
proceedings under
Section 498A of Indian Penal Code were initiated
and/or the maintenance proceedings under
Section 125 of Cr.P.C
were filed by respondent no.1, the present proceedings cannot be set
aside.

6. Learned advocate for the applicant placed reliance on
following decisions :

(i) Ashish Dixit and others Vs. State of Uttar Pradesh and another
AIR-2013-SC-1077;

(ii) Smt.Meenakshi Jatav and others Vs. Dr.Seema Sehar Others
2013-Cri.L.J.-3164;

(iii) Durgesh Yuvraj Rahangdale Vs. Rajni Krushnadatta Ukey and
another (2013{3}-Mh.L.J. {Cri.}-456);

(iv) Mrs.Dimple Jatin Khanna @ Dimple Rajesh Khanna @ Mrs.
Dimple Khanna and another Vs. Anita Advani and another
2016-All.MR (Cri).-3748;

(v) Inderjit Singh Grewal Vs. State of Punjab and another
2011-AIR-SCW-6259.

7. The learned counsel for respondent nos.1 and 2 relied upon
following decisions :

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(i) Krishna Bhattacharjee Vs. Sarathi Choudhury and another
(2016)2-SCC-705;

(ii) Bhaskar Lal Sharma and another Vs. Monica and others
(2014)3-SCC-383;

(iii) Prashant Pandit Salve and others Vs. Suvarna Prashant Salve
and others – (2016{5}-Mh.L.J. (Cri)-737):

(iv) Maroti Dewaji Lande Vs. Sau Gangubai Maroti Lande anr.

Criminal Writ Petition No.542 of 2010, decided on 9-8-2011;

8. On perusal of the material on record and after hearing both
the sides, it is apparent that the marriage between applicant no.1
and respondent no.1 was solemnized on 20 th May 2013. The
complaint refers to the harassment caused to respondent no.1 by the
opponents therein. The respondents have referred to incidents of
harassment. The applicant nos.4 and 5 are residing separately. The
applicant no.4 is the sister of applicant no.1. The marriage of
applicant no.4 is solemnized with applicant no.5 on 13 th March 2003
which is prior to the marriage of applicant no.1 and respondent no.1.
It was pointed out that the applicant nos.4 and 5 were residents of
Jawhar, District Thane for some years and then transferred to
Wanderwadi, Taluka Akole. On 31st May 2013 due to transfer of
applicant no.5, they shifted to Ghulewadi. The respondents,
however, have alleged in paragraph no.6 of the applicant that the
applicant nos.4 and 5 were residing with other applicants from the
year 2008. Apparently the allegation appears to be devoid of
substance. The marriage card is also placed on record which shows
that the applicant nos.4 and 5 were married prior to the marriage of
applicant no.1 and respondent no.1. The allegations against the
applicant nos.4 and 5 also appear to be vague in nature. The
primary grievance is against applicant nos. 1 to 3 who were residing

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together with respondent no.1. It is true that respondent no.1 has
initiated proceedings under
Section 498A as well Section 125 of
Cr.P.C. The prosecution under
Section 498A appears to be pending
and maintenance was not granted to respondent no.1 in the
proceedings under
Section 125 of Cr.P.C. The harassment which
meted out to the respondent no.1 and which appears to be part of
the application filed by respondent no.1 under
Section 12 of D.V.Act,
will be decided in evidence before the Court. However, as far as
applicant nos.4 and 5 are concerned, they need not be subjected to
the exercise of facing the said proceedings. Prima facie there is
material against applicant nos.1 to 3. The mental agony, reflected on
account of domestic violence, is a continuous process and it cannot
be said that the cause of action had arisen only on 15 th August 2008
as contended by the applicants, cannot be accepted. The
complainant has stated in the application that there was a demand of
Rs.1,00,000/- by the opponents. The proceedings cannot be
considered only by looking into the incident dated 15 th August 2008.
The broad allegations in the complaint will have to be seen. In the
application under
Section 12 of D.V.Act, it is also stated that even
after 15th August 2008 the respondent no.1 and her relations tried to
resolve the dispute and at that point of time applicant no.1 has
stated that he is residing with Smt.Shital Gaikwad and their
relationship is in the nature of husband and wife. He has solemnized
the marriage with respondent no.1 against his wishes and that he
would not cohabit with respondent no.1. It was further stated that
the husband did not make any arrangement for the maintenance and
shelter for the respondent nos.1 and 2. It was also stated that on 14 th
August 2016 the applicant no.1 gave a dash to respondent no.1 while
driving the motorcycle and also abused and assaulted her. He was

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accompanied by Smt.Sheetal Gaikwad and a written complaint in
that regard was lodged with the police station. It is also noted that
the respondent no.1 has been invoking various proceedings and it is
not that she was silent for several years and filed proceedings under
D.V.Act belatedly. The application under
Section 125 of Cr.P.C was
filed on 4th September 2010 vide Criminal Miscellaneous Application
No.371 of 2010. Her evidence was recorded on 8 th April 2011. She
was cross examined on 1st December 2012. The hindu marriage
petition proceedings were initiated by the applicant no.1. The
evidence of respondent no.1 was recorded on 18 th October 2012.
She was cross-examined on 9th November 2012. From the averments
in the petition it appears that the said petition is dismissed. The FIR
for offence under
Section 498A and other offences was registered on
25th October 2012. The evidence of respondent no.1 was recorded
and she has been cross-examined on 20 th August 2016. The
submission of the advocate for the applicants is that the averments in
various proceedings are exaggerated or that the application under
D.V.Act was filed after realizing that respondent no.1 would not
succeed in her complaint cannot be accepted.

9. In the case of Ashish Dixit (Supra), the Hon’ble Supreme Court
has quashed the proceedings on the ground that in the petition filed
by the wife, she has arraigned several persons as respondents. It is,
therefore, observed that in the circumstances the High Court could
have directed that the petition filed by the respondent-complainant
be confined to her husband and also her parents-in-law and should
not have allowed the impleadment of other respondents. The
proceedings were, therefore, quashed against other respondents.
The other decisions relied upon by the petitioners reiterates the same

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principle. In the case of Inderjit Singh Grewal (supra), the Hon’ble
Supreme Court has observed that the parties have obtained decree of
divorce by mutual consent and unless the same is set aside, the
complaint under
Section 12 of D.V.Act is not maintainable. It was
also observed that the law of limitation under Section 468 of Cr.PC
is applicable for such proceedings. The other decisions relied upon
by the applicants also deals with quashing proceedings under the
D.V.
Act under
Section 482 of Cr.P.C.

10. In the case of Bhaskar Lal Sharma and another (supra), the
Hon’ble Supreme Court has observed that the test that has to be
applied before summoning the accused, is that the facts stated
against the accused have to be accepted as they appear on the very
face of it. In the case of Prashant Pandit Salve and others
(supra), this Court has observed that D.V.Act has been introduced to
protect the women against domestic violence which is undoubtedly a
human right and is serious deterrent to the development. The object
of D.V.Act is keeping in view the rights guaranteed under Articles 14,
15 and 21 of the Constitution of India. In the case of Maroti
Dewaji Lande (supra), this Court has considered the objections
raised by the opponents on the ground of inordinate delay in
initiating the proceedings. While dealing with the said objection the
Court has observed that D.V.Act has come into force on 26 th October
2006. It was brought to provide more effective protection to the
rights of women. It was argued by the opponents in the said case
that there is inordinate delay in initiating the proceedings. The wife
contended that there is no question of limitation, as there is
continuous cause of action for a wife to claim maintenance and other
reliefs. It was observed by the Court that there shall be continuous

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causes of action. Therefore, there is no question of putting a stop to
the relief sought for on ground of continuous breach of legal right,
since continuous deprivation of economic or financial resources and
continued prohibition or denial of access for the shared household,
maintenance etc to the aggrieved person can come within the
definition of Domestic Violence explained under the Act. The
Hon’ble Supreme Court in the case of Krishna Bhattacharjee
(supra) has considered the issue relating to limitation for the
proceedings under the D.V.Act, more particularly when the wife is
claiming stridhan. In paragraphs 29, 30, 31, 32 and 33 the Supreme
Court has made the following observations :

“29. Having appreciated the concept of stridhan, we
shall now proceed to deal with the meaning of
“continuing cause of action”. In Raja Bahadur Singh V.
Provident Fund Inspector, the Court while dealing with
the continuous offence opined that the expression
“Continuing offence” is not defined in the Code but that
is because the expressions which do not have a fixed
connotation or a static import are difficult to define.
The Court referred to the earlier decision in State of
Bihar Vs. Deokaran Nenshi and reproduced a passage
from the same which is to the following effect :
(Bhagirath Case, SCC. P.227, para 10) :

“10. … `5. A continuing offence is
one which is susceptible of continuance and
is distinguishable from the one which is
committed once and for all. It is one of those
offences which arises out of a failure to obey
or comply with a rule or its requirement and
which involves a penalty, the liability for
which continues until the rule or its
requirement is obeyed or complied with. On
every occasion that such disobedience or non-
compliance occurs and reoccurs, there is the
offence committed. The distinction between
the two kinds of offences is between an act or

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omission which constitutes an offence once
and for all and an act or omission which
continues, and therefore, constitutes a fresh
offence every time or occasion on which it
continues. In the case of a continuing
offence, there is thus the ingredient of
continuance of the offence which is absent in
the case of an offence which takes place
when an act or omission is committed once
and for all. (Deokaran Nenshi Case, SCC.
p.892, para5)”

30. The Court further observed : (Bhagirath case,
SCC p.227, para 11) :

“11. This passage shows that apart from
saying that a continuing offence is one which
continues and non-continuing offence is one
which is committed once and for all, the
Court found it difficult to explain as to when
an offence can be described as a continuing
offence. Seeing that difficulty, the Court
observed that a few illustrative cases would
help to bring out the distinction between a
continuing offence and a non-continuing
offence. The illustrative cases referred to by
the Court are three from England, two from
Bombay and one from Bihar.”

31. Thereafter, the Court referred to the authorities
and adverted to Deokram Nenshi and eventually held :
(Bhagirath case, SCC p.229, para 19) :

“19. The question whether a particular
offence is a continuing offence must
necessarily depend upon the language of the
statute which creates that offence, the nature
of the offence and, above all, the purpose
which is intended to be achieved by
constituting the particular act as an offence.”

32. Regard being had to the aforesaid statement of
law, we have to see whether retention of stridhan by

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the husband or any other family members is a
continuing offence or not. There can be no dispute that
wife can file a suit for realization of the stridhan but it
does not debar her to lodge a criminal complaint for
criminal breach of trust. We must state that was the
situation before the 2005 Act came into force. 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, relevant portion of which has
been reproduced hereinbefore, provides for procedure
for obtaining orders of reliefs. It has been held in
Inderjit Singh Grewal that
Section 468 of the Code of
Criminal Procedure applies to the said case under the
2005 Act as envisaged under
Sections 28 and 32 of the
said 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. We are disposed to
think so as the status between the parties is not severed
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 the custodians. For the
purpose of the 2005 Act, she can submit an application
to the Protection Officer for one or more of the reliefs
under the 2005 Act.

33. In the present case, the wife had submitted the
application on 22-5-2010 and the said authority had
forwarded the same on 1-6-2010. 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 for stridhan. Regard being had to the said
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

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the High Court had fallen into a grave error by
dismissing the application being barred by limitation.”

In the present case, apart from other reliefs, the respondent no.1 is
also claiming return of her ornaments. Apart from this, in present
case, it is also noted that there were continuous incidents, one of
them has occurred in the year 2016.

11. The Supreme Court, in the case of Vanka Radhamanohari Vs.
Vanka Venkata Reddy (1993)3-SCC-41, while considering bar of
limitation for taking cognizance of offences as also prayer for
condonation of delay, considered matrimonial offences as exceptional
cases wherein the Court would not throw out the complaint solely on
the ground of delay. In view of
Section 473 of the Code of Criminal
Procedure, the Court can take cognizance of an offence not only
when it is satisfied on the facts and circumstances of the case that
the delay has been properly explained or but also when that it is
necessary so to do in the interest of justice. In respect of
matrimonial offences when allegations are of cruelty, torture and
assault by husband or members of family to the complainant, the
Court will consider that victim who is subjected to a such act of
cruelty repeatedly is more or less suffering from continuing offence.

12. Taking into consideration the factual aspects, the proceedings
cannot be quashed on the ground that complaint is barred by law of
limitation. However, considering the factual aspects and the role
attributed to applicant nos.4 and 5, more particularly in the light of
the fact that applicant no.4 is the sister of applicant no.1 who is
married to applicant no.5 and is residing separately, the proceedings
against them will have to be quashed and set aside.

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13. Hence, I pass following order :

ORDER
(i) Criminal Application No.1355 of 2017 is partly allowed;
(ii) The application of applicant nos.1 to 3 is dismissed;
(iii) The proceedings against applicant nos.4 and 5 initiated by

respondent nos.1 and 2 in Criminal Miscellaneous Application
No.808 of 2016 under
Section 12 of Protection of Women from
Domestic Violence Act, 2005, which are pending on the file of
learned Judicial Magistrate, First Class, Sangamner, are quashed and
set aside;

(iv) The Trial Court shall not be influenced by observations made
in this order while adjudicating the proceedings against applicant
nos.1 to 3;

(v) Criminal Application No.1355 of 2017 is disposed off.

(PRAKASH D. NAIK, J.)
MST

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