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Neglected person is only entitled for maintenance

BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)

DATED: This the 25 th day of August, 2020

PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M .,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.

Criminal Appeal No.1178 of 2016

Appellants: Venkatesh Shetty,
S/o late Krishnaiah Shetty,
Aged about 56 years,
ACP, VVIP Security,
off/at Commissioner of Police,
Infantry Road,
Bengaluru 560 001.
(By Sri.K.Giri., Adv .)

/Vs/

Respondent : Smt.D.A.Veena,
W/o K.Venkatesh Shetty,
Aged about 55 years,
R/at No.45/1, Sampige Road,
Malleshwaram,
Bengaluru 560 003.
(By Sri.VMS, Adv.)

JUDGMENT
The appellant/respondent has preferred this appeal against the respondent/petitioner under Section 29 of Protection of Women from Domestic Violence Act of 2005 being aggrieved by the judgment and award passed in Crl.Misc.165/2012 dated 04.08.2016 by the learned MMTC III, Bengaluru.

2. For the sake of convenience, the ranks of the parties are retained as they are before the learned Magistrate Court.

3. The brief facts of the case averred in the appeal are that;

a) The respondent was married to the petitioner on 26.09.1990 and after the marriage, the petitioner stayed in the matrimonial house for 3 months. During the said stay, she used to act indifferently and pin prick petty quarrel with him. It went to an extent of uttering to break up the marital relationship and she left the matrimonial house and did not return to reunite him.

b) After lapse of three years of her leaving matrimonial home, the petitioner has filed a criminal complaint against him in 1994 in CC.No.14789/1994.

c) In 1994, he was selected for the post of Police Sub Inspector which came to be canceled since the petitioner had filed complaint under Section 498-A and also had written a letter to the head of the department.

d) In this regard, he approached Katakana Administrative Tribunal seeking directions to join the service, but could not succeed. He was also kept in suspension from the earlier services as FDA, in the office of DG & IGP for a period of 27 months.

e) Later, the case for the offence under Section 498-A was ended in his acquittal. He was allowed to go to Mysore for his police Sub Inspector training as per the order of Hon’ble High Court of Karnataka and after completion of training, he was posted to several places.

f) He, as agreed, made arrangements to transfer the house No.29, 5th Main Road, Ganganagar, Bengaluru in favour of petitioner which was in the name of his brother. The petitioner without getting transfer of title deeds in her favour, impeachably occupied the house by taking over the physical possession and without using for herself has leased out the same to the third party and continued staying in her paternal house.

g) In spite of fulfilling her desire to have a house, the petitioner went on troubling him by writing frivolous letters to the superior head of department and did not stop her adamant attitude of troubling him.

h) In 2001, when he was posted at Bengaluru, since the petitioner had written a letter to the jurisdictional DCP, the then DCP Sri.Sunil Kumar had called her and advised. Upon such advise, she started persistently to call him and harass him only for money.

i) In order to put an end to the matrimonial affairs which were never enjoyed by him, he has filed a divorce petition in MC.No.265/2002 before the Family Court seeking divorce. The same came to be dismissed for non prosecution since he was not able to follow the case due to hectic schedule of his official duty.

j) The petitioner is owing properties in Bengaluru and has sufficient source. She is leading a luxurious life from the rental proceeds and also owning jewelry shop. Hence, she who is habitually claiming compensation by harassing him is not a neglected person and is not entitled to claim compensation.

k) The petitioner having failed in her attempts to harass and illegally gain money had filed Crl.Misc.No.165/2012 before MMTC III at Bengaluru without being any cause of action for filing the same.

l) He has appeared before the trial Court and filed detailed statement of objections and after trial and on hearing both parties, the trial Court has allowed the above petition on 04.08.2016 directing him to pay an amount of Rs.1,50,000/- towards compensation and to pay maintenance of Rs.12,000/- per month through the impugned judgment.

4. Being aggrieved by the said judgment, he has preferred this appeal on the following grounds.

a) The impugned judgment is contrary to law, facts and material as well as contrary to established principles of criminal jurisprudence.

b) The petition filed by the petitioner is not maintainable as the complete analysis of the petition reveals that the petitioner is trying to make mockery of the provisions of Domestic Violence Act.

c) The petitioner in the whole petition has never shown her intent towards family as to know whether she wants to live with her husband or she intends to divorce him. But, only for the purpose of some unlawful gain, the present petition is brought and the trial Court has lost sight of the said fact.

d) The allegations in the petition does not show as to specific averments of the stay of the petitioner in the matrimonial house and specific harassment meted out by him upon her.

e) The petition is liable to be dismissed for want of complete and correct state of affairs as to alleged violence said to have committed by him and not considering the same, the order of the trial Court is bad in law.

f) The petitioner being left the matrimonial home in the year 1991, alleging to bring about a petition after a lapse of more than 20 years is a clear bar under Section 468 of Cr.P.C. and hence, the petition requires to be dismissed.

g) Filing of MC.No.265/2002 by him clearly exemplify that the petitioner was not residing with him and taking  into consideration that he started harassing the petitioner, even then the petition is barred by limitation prescribed under Section 468 of Cr.P.C.

h) The Law is well settled by the Hon’ble Supreme Court in various decisions as to the cause of action and the period of limitation for bringing an action before the appropriate Court of law in the case of Japani Sahoo Vs Chandra Sekhar Mohanty reported in AIR 2007 SC 2762 for the purpose of computing the period of limitation. The relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. Therefore, the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/Court and not of filing of complaint or initiation of criminal proceedings.

i) The proper analysis of provisions of Section 28 and the judgment reported in AIR 2007 SC 2762 in Japani Sahoo Vs Chandra Sekhar Mohanty, it becomes crystal clear that an action should be brought before a Magistrate within a period of one year from the date of alleged  incident. Hence, the case is clearly barred by limitation as contemplated under Section 468 of Cr.P.C.

j) The trial Court relies upon the Judgment of Supreme Court reported in Krishna Bhatacharjee Vs Sarathi Choudhury reported in III (2015) DMC 823 (SC) and held that the parties residing separately without decree of divorce. Thus, the marriage subsists and the cause of action is recurring one. Hence, the question of limitation does not arise.

k) But, the principle rendered in the above judgment is in respect of the concept of Stridhana and not otherwise. The Supreme Court has never adverted nor had said to the applicability of its earlier judgment reported in Japani Sahoo case and Inderjit’s case is for the subsisting marriages or the divorced marriages. But states, only when person comes under the purview of aggrieved person, then it enables her to prefer an application under Section 12 of the Act and not otherwise.

l) In the present case, the petitioner does not come within the meaning of aggrieved person for which she has to be in domestic relationship which in present case is  absent as since 1991, for more than 25 years, the petitioner is not residing with him. This question never attributed to by the trial Court.

m) The trial Court holds that when there is subsistence of marriage, no domestic relationship is required. This was not intended nor adverted to, by the Supreme Court in the case of Krishna Bhatacharjee. Failing to answer the same, which is the core issue, makes the present judgment under challenge is unsustainable and liable to be set aside.

n) The trial Court relies upon Ex.P-9 and 10 addressed to the petitioner which bears his address. But, the very fact that whether it was at the inception of the petitioner, the said endorsement was issued is not considered by the trial Court, as it is a hand delivered acknowledgment from the police station, which could have been through post.

o) Therefore, only on the basis of the documents at Ex.P-9 and 10 and without considering the cross of PW-1 in its entirety wherein she has admitted that the summons were served on her from the Court in the year 2002 is her  parental address where she was actually staying, is not sustainable.

p) Therefore, the act of the trial Court brushing aside the vital aspect which proved through service of summons through Court and findings based on the documents which got prepared at the behest of the petitioner by the police, is without application of mind which requires dismissal in limine.

q) The trial Court held in Para 33 that in our opinion a relationship in the nature of marriage is akin to a common law marriage. Common law marriages require that although not being formally married;

i) The couple must hold themselves out to society as being akin to spouse.

ii) They must be of legal age to marry.

iii) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

iv) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

r) Therefore, the vital aspect is that they should have lived together being akin to spouses for a significant period of time and not as like the present case where they have  not lived together for more than a period of 20 years. As such, Section 468 Cr.P.C applies to these kind of cases.

s) The judgment referred to by the trial Court is distinguishable as the said judgment should be looked into the facts of its own case as the same does not overrule the judgment in Japani Sahoo’s case and Inderjit’s case.

t) The petitioner who had denied during the course of cross examination in above case the occupation, house handed over by him for amicable settlement not to interfere with him in future, now has occupied the said house by herself which requires her to be prosecuted for perjury.

u) As per the Act, the person who is not having sufficient means to maintain herself and the neglected person is only entitled for maintenance. But, the petitioner is owning property in Bengaluru and has sufficient source and is leading a luxurious life from the rental proceeds and owing jewelry shop.

v) Hence, the petitioner who is habitually claiming compensation by harassing the other is not a neglected person. Therefore, she is not entitled to claim compensation and also the maintenace. Hence, the petition  is liable to be dismissed in limine and the said aspect is not considered by the trial Court.

w) He is ready to pay the reasonable amount for leading a projectable happy life to the petitioner as alimony subject to the condition that she hands over the property received by her from him detailed above. Hence, prayed to allow the appeal in the interest of justice and equity.

5. In response to the due service of notice by this Court, the petitioner/respondent put her appearance through her counsel.

6. Received the trial Court record.

7. The trial Court record demonstrates that the petitioner has come up with the petition under Section 12 of the Act on the aversions that;

a) Her marriage was performed with the respondent on 26.09.1990 at Vasavi Mahal, East Park Road, 8 th Cross, Malleshwaram, Bengaluru as per the Hindu rites and customs. The marriage was consummated and she accompanied the respondent to his house at No.153/5, 5 th Cross, Aswini Clinic, II Floor, Yeshwanthpur, Bengaluru.

b) The marriage was performed at the costs of her parents in a grand manner by meeting all the demands and requirements of the respondent.

c) After the marriage, they lived together only for about a year and thereafter the respondent started to harass and ill treat her and demanded her to bring additional dowry. When she did not agree for the same, he had assaulted her and thrown out of the house.

d) There were several panchayaths convened before the elders with regard to the respondent’s harassment and humiliation to her. But, the respondent did not change his adamant attitude. As such, she has filed a complaint with Ulsoor Gate Women Police Station which was registered in CC.No.14789/1994.

e) The respondent requested her to withdraw the complaint as he is ready to take her home and accordingly, made her to disprove all her contentions in her cross examination. The respondent took back her to his home i.e., quarters provided by the department in Block No.10, House No.5, Anandarao Circle Police Qqurters, Bengaluru

– 560 009 and was quite for some years.

f) Thereafter, again he started to harass and humiliate her for one or the other reasons even no fault of her and used to abuse and assault her for trivial issues and finally in the year, 2002, he filed a divorce petition against her in MC.No.265/2002 with untenable contentions and on false frivolous story which came to be dismissed on contest.

g) Such being the factual position, the respondent approached her and requested her to sign some papers as he is willing to divorce her and when she refused, he had beaten her heavily, kicked her with his police boots on her head and ears. Due to which, she sustained bleeding injuries and due to his boot kick, her one ear has become deaf and she got severe headache very oftenly.

h) The respondent now and then uses unparliamentary and filthy languages, being unable to bear the torture. When things stood thus, she came to know that the respondent is having illicit relationship with a woman, as such, he is making hectic attempt to get divorce from her and in this connection, he is harassing and humiliating her.

i) Recently, in the year 2009, the respondent got transferred to Kolar. As such, he went to Kolar without even taking her along with him and with an ill motive avoided to pay the rents, electricity and water bill in respect of the police quarters in which she was residing. As such on 09.01.2010, the police department sent a reminder intimating to pay all the outstanding or else to vacate the quarters.

j) Immediately, on 03.02.2010, she approached the Vanitha Sahayavani, Shivajinagar, Bengaluru seeking for intervention in the issue and to settle the matter amicably as she is ready for reconciliation or maintenance and residence. Thereafter on 26.02.2010, she wrote a letter to the police department requesting to grant sometime to vacate the quarters as her case is bend before the Vanitha Sahayavani.

k) Since, there was serious pressure to vacate and handover vacant possession of the quarters, she having left with no other alternative and not in a position to loose respect and dignity in the locality, sincerely vacated the police quarters

l) By virtue of the act of the respondent, she has been left in lurch and by virtue of his illegal act, the owner of the premises has been demanding her to vacate the premises and if it is done, she will have no shelter apart from having deprived from basic amenities and in a very critical, she is cutting her hard days. She has no source to maintain herself and is in need of fund to make a decent living in the society. Accordingly, prayed to allow the petition as sought for.

8. The statement of objections of the respondent to the main petition demonstrate that his defence is nothing but the facts of the case he has stated in this appeal memo and the grounds urged in support of this appeal observed above.

9. Heard the learned counsels for both parties on merits.

a) In support of his arguments, the learned counsel for petitioner/respondent has filed memo along with the on line printouts of the decisions reported in;

1) 2012 AIR SCW 1515 and
2) 2017(2) KLR 352.

10. I have carefully gone through the above noted decisions and perused the record.

11. On the basis of the grounds made out, following points are arisen for my determination.

1) Whether the respondent/appellant proves the grounds urged by him in support of this appeal?

2) Whether the impugned judgment requires interference by this Court?

3) What Order?
12. My findings to the above points are:
1) Points Nos.1 and 2 : Negative.
2) Point No.3 : As per final order for the following reasons. REASONS
13. POINTS Nos.1 AND 2:- Since the findings on point No.2 is consequential to the findings on point No.1, these points are taken together for consideration.
14. At this stage itself, it is pertinent to note that the petitioner has sought for;

a) protection order under Section 18 of the Act;
b) residence order under Section 19 of the Act;
c) monetary reliefs under Section 20 of the Act i.e., Rs.3,000/- each per month towards medical expenses and towards mental and physical injury as well as;
i) Rs.8,000/- towards food, clothe, medication and other basic necessities;
ii) Rs.5,000/- towards household expenses (rent); and
iii) other expenses of Rs.2,000/- totally Rs.15,000/-; and

d) compensation of Rs.2,50,000/- under Section 22 of the Act.

15. The learned Magistrate, through the impugned judgment, allowed her above prayers in part i.e., rejected her prayers under Sections 18 and 19 of the Act i.e, the protection and residence orders and granted the reliefs partially under Sections 20 and 22 of the Act i.e.,

a) Rs.3,000/- per month towards the medical expenses; and

b) Rs.12,000/- per month as maintenance towards her basic necessities;

both till her marriage subsists with the respondent; and

c) compensation of Rs.1,50,000/-.

16. As per the documents on record, the petitioner has not challenged the impugned judgment.

17. Even the respondent has preferred this appeal challenging the impugned judgment on various grounds observed above, he has also pleaded that he is ready to pay the reasonable amount for leading a projectable happy life to the petitioner as alimony subject to the condition that she hands over the property received by her from him.

18. Admittedly as noted above, the only remedies granted vide the impugned judgment is the monetary reliefs i.e., the medical expenses and the maintenance and the respondent is ready to pay reasonable amount as alimony subject to the petitioner hands over the property i.e., the house in the name of his brother she alleged to be received from him.

READ  Whether court can rely on confession recorded by magistrate if he is not examined as witness?

19. The above noted pleadings of the parties demonstrate that there is no dispute with regard to the fact that the petitioner is the legally wedded wife of the respondent and their marriage subsists till date.

20. In the above background, if the grounds urged by the respondent in support of his present appeal are taken note off, the main ground urged by the respondent is that the petition filed by the petitioner under Section 12 of the Act is hit by limitation and there is no cause of action.

21. The trial Court record demonstrates that with regard to the proposition of law in support of his present defence of limitation, he has relied on the decisions reported in;

a) 2011 AIR SCW 6259 (between Inderjit Singh Grewal v. State of Punjab and Anr. in Criminal Appeal No.1635 of 2011 arising out of SLP (Cri.) No.7787 of 2010 decided on 23.08.2011 before their Lordships P.Sathasivam and Dr.B.S.Chauhan JJ.) wherein he has drawn my attention to the observations of the Hon’ble Apex Court that;

“(B) Protection of Women From Domestic Violence Act (43 of 2005), S.28, S.32 – Criminal P.C. (2 of 1974), S.468 – Complainant under Act – Limitation – Provisions of Criminal P.C. are applicable.

……….

24. 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 : (2007 AIR SCW 4998) and Noida Entrepreneurs Association v. Noida and Ors. (2011) 6 SCC 508.

25. 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 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”.

b) AIR 2007 SUPREME COURT 2762 (between Japani Sahoo v. Chandra Sekhar Mohanty in Criminal Appeal No.942 of 2007 arising out of SLP (Cri.) No.4174 of 2006 decided on 27.07.2007 before their Lordships C.K.Thakker and Tarun Chatterjee JJ.) wherein he has drawn my attention to the observations of the Hon’ble Apex Court that;

“(B) Criminal P.C. (2 of 1974, S.468 – Bar to taking cognizance of offence – Period of limitation – Computation – Relevant date is date of filing of complaint or initiating criminal proceedings – Not the date of taking cognizance by Magistrate or issuance of process by Court.

For the purpose of computing the period of limitation regarding bar as to taking of cognizance of offence by Magistrate, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. ….”

22. The plain reading of the principles laid down in the above decisions clearly demonstrate that the limitation prescribed in Section 468 of Cr.P.C. is applicable to the provisions of the Act and the limitation to file the compliant/petition under Section 12 of the Act is one year and the relevant date must be the date of filing the petition or initiating the criminal proceedings and not the date of taking cognizance or issuance of process by a Court.

23. The trial Court demonstrates that the petitioner has not relied on any decision over ruling the principles laid down in the above decisions and it also reflects that the petitioner has not opposed this defence i.e., applicability of the limitation provided under Section 468 of Cr.P.C. to the present petition under Section 12 of the Act; the limitation to file the petition under Section 12 of the Act is one year from the date of incident and relevant date to be considered.

24. But, on fact, this defence is opposed by contending that it is the further case of the petitioner that she was residing with the respondent in the year 2008 and 2009, thus, the provision of Section 468 of the Cr.P.C. is not applicable to the case on hand and in the meanwhile, the Act came into force as such, the same is applicable to both the parties since the marriage between them is subsisting, there is no question of limitation.

25. The impugned judgment demonstrates that the learned Magistrate relying on the dictum laid down in the decision reported in III (2015) DMC 823 (SC) between Krishna Bhatacharjee V/s Sarathi Choudhury decided on 20.11.2015 has held that Inderjit Singh’s case on which the counsel for respondent has relied on is distinguished in the above Krishna Bhatacharjee’s case wherein the position of the parties residing separately without a decree of divorce is clarified and it is held that if there is no decree of divorce and where the marriage subsists, the cause of action is recurring one and the question of limitation does not arise and accordingly, he did not accept the present defence of the respondent.

26. In this appeal, to meet the above observations of the trial Court, the respondent has contended that;

a) The observations of the Hon’ble Apex Court in Krishna Bhatacharjee’s case on which the trial Court has relied on is in the concept of Stridhana and not otherwise.

b) The Supreme Court has never adverted nor had said about the applicability of its earlier judgments in Japani Sahoo’s case and Inderjit’s case are for subsisting marriages or divorced marriages. But states only when person comes under the purview of aggrieved person, is enable to prefer an application under Section 12 of Act and not otherwise.

27. So, for better appreciation of the contention of the respondent, it is necessary to go through the Krishna Bhatacharjee’s case. None of the parties have produced the copy of the above decision. However, it was taken through net and the relevant paras are extracted here below;

” ………….

2. The appellant having lost the battle for getting her Stridhan back from her husband, the first respondent herein, before the learned Magistrate on the ground that the claim preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, ‘the 2005 Act’) was not entertainable as she had ceased to be an “aggrieved person” under Section 2(a) of the 2005 Act and further that the claim as put forth was barred by limitation; preferred an appeal before the learned Additional Sessions Judge who concurred with the view expressed by the learned Magistrate, and being determined to get her lawful claim, she despite of the repeated non- success, approached the High Court of Tripura, Agartala in Criminal Revision No.19 of 2014 with the hope that she will be victorious in war to get her own property, but the High Court, ……, declined to interfere by passing …… and that had led the agonized and perturbed wife to prefer this present appeal, by special leave.

………..

5. Presently to the narration of the facts. The marriage between the appellant and their respondent No.1 was solemnized on 27.11.2005 and they lived as husband and wife. As the allegations proceeded, there was demand of dowry by the husband including his relative and demands not being satisfied the appellant was driven out from the matrimonial home. However, due to intervention of the elderly people of the locality, there was some kind of conciliation as a consequence of which both the husband and the wife stayed in a rented house for two months. With the efflux of time, the husband filed a petition seeking judicial separation before the Family Court and eventually the said prayer was granted by the learned Judge, family Court. After the judicial separation, on 22.05.2010 the appellant filed an application under Section 12 of the 2005 Act before the Child Development Protection Officer (CDPO), O/O the District Inspector, Social Welfare & Social Education, A.D. Nagar, Agartala, Tripura West seeking necessary help as per the provisions contained in the 2005 Act. She sought seizure of Stridhan articles from the possession of the husband. The application which was made before the CDPO was forwarded by the said authority to the learned Chief Judicial Magistrate, Agartala Sadar, West Tripura by letter dated 01.06.2010. The learned Magistrate issued notice to the respondent who filed his written objections on 14.02.2011.

6. Before the learned Magistrate, it was contended by the respondent that the application preferred by the wife was barred by limitation and that she could not have raised claim as regard Stridhan after the decree of judicial separation passed by the competent Court. The learned Magistrate taking into to consideration the admitted fact that respondent and the appellant had entered into wedlock treated her as an “aggrieved person”, but opined that no “domestic relationship” as defined under Section 2(f) of the 2005 Act extend between the parties and therefore, wife was not entitled to file the application under Section 12 of 2005 Act. The learned Magistrate came to hold that though the parties had not been divorced but the decree of judicial separation would be an impediment for entertaining the application and being of this view, he opined that no domestic relation subsists under the 2005 Act and hence, no relief could be granted. ….

7. The aggrieved wife preferred criminal appeal No.6(1) of 2014 …. immediate relief to the victims; that as per the decision of this Court in Inderjith Singh Grewal v. State of Punjab that Section 468 of the Code of Criminal Procedure applies to the proceedings under the 2005 Act and, therefore her application was barred by time. Being of this view, the appellate Court dismissed the appeal.

8. On a revision being preferred, the High Court, as is demonstrable from the impugned order, after referring to the decision in Inderjit Sing Grewal (supra),has stated that the wife had filed a criminal case under Section 498(A) IPC in the year 2006 and the husband had obtained a decree of judicial separation in 2008, and hence, the proceedings under the 2005 Act was barred by limitation. That apart, it has also in a way expressed the view that the proceeding under the 2005 Act was not maintainable.

9. In our prefatory note, we have stated about the need of sensitive approach to these kinds of cases There can be erroneous perception of law, but as we find, neither the learned Magistrate nor the appellate Court nor the High Court has made any effort to understand and appreciate the stand of the appellant. Such type of cases and ….

………..

15. In the instant case, as has been indicated earlier, the Courts below as well as the High Court have referred to the decision in Inderjit Sing Grewal (supra). The said case has to be understood regard being had to the factual expose therein. The Court had referred to the decision in D.Velusamy v. D.Patchaiammal wherein this Court had considered the expression “domestic relations” under Section 2(f) of the Act and judgment in Savitaben Somabhai Bhatiya v. State of Gujarath and distinguished the said judgment as those cases related to live-in relationship without marriage. The Court analyzing the earlier judgments opined that the couple must hold themselves out to society as being akin to spouses in addition to fulfilling all other requisite condition for a valid marriage. The said judgments were distinguished on facts as those cases related to live-in relationship without marriage. The Court opined that the parties therein had got married and the decree of the civil Court for divorce subsisted and that apart a suit to declare the said judgment and decree as a nullity was still pending consideration before the competent Court. In that back ground, the Court ruled that; “In the facts and circumstances of the case the submission made on behalf of the Respondent 2 that the judgment and decree of a civil Court granting divorce is null and void and they continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by Respondent 2 to declare the said judgment and decree dated 20.03.2008 is decided in her favour. In view thereof, the evidence adduced by her particular the record of the telephone calls photographs attending a wedding together and her signatures in school diary of the child cannot be taken into consideration so long as the judgment and decree of the Civil Court subsists. On a similar footing, the contention advanced by her counsel that even after the decree of divorce, they continued to live together as husband and wife and therefore, the complaint under the 2005 Act is maintainable is not worth acceptance at this stage…”

16. It may be noted that a submission was advanced by the wife with regard to the applicability of Section 468 Cr.PC., while dealing with the submission on the issue of limitation, the Court opined:-

“……. In view of the provisions of Section 468 CrPC., 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 provision of Sections 28 and 32 of the 2005 Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.PC. applicable and stand fortified by the judgments of this Court in Japani Sahoo v. Candra Sekhar Mohanty, (2007) 7 SCC 394 and NOIDA Enterpreneurs Assn V. NOIDA, (2001) 6 SCC 508”

……….

22. In view of the aforesaid pronouncement, it is quite clear that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped. Thus, understood, the finding recorded by the Courts below which have been concurred by the High Court that parties having been judicial separated, the appellant wife has ceased to be an “aggrieved person” is wholly unsustainable.

23. The next issue that arise for consideration is the issue of limitation. In the application preferred by the wife, she was claiming to get back her stridhan. ……

……….

28. Having appreciated the concept of Stridhan, we shall now proceed to deal with the meaning of “continuing cause of action”. In Raja Bhahadur Singh V. Provident Fund Inspector and Others 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 V. Deokaran Nenshi and reproduced a passage from the same which is to the following effect:

“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 omission which constitutes an offence once and far 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.”

29. The Court further observed:

“This passage shows that apart from saying that a continuing offence is one which continues and a 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.”

30. Thereafter, the Court referred to the authorities and adverted to Deokaran Nenshi (supra) and eventually held:

“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….”

31. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by 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 if has been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which have been reproduced herein before, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal (supra) 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. In the present case, the wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010. 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 the High Court had fallen into a grave error by dismissing the application being barred by limitation.”

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28. For better appreciation of the the principles laid down in the above case to the facts of the case on hand and the contentions raised by the respondent with regard to the applicability of the principles laid down in the above decision, it is necessary to go through the meaning and definition of “aggrieved person” stated in the Act.

29. Section 2 of the Act deals with definitions of the words used in the Act. Clause (a) of Section 2 of the Act deals with the definition of the word “aggrieved person” which is extracted here below;

“2. Definitions.- In this Act, unless the context otherwise require,-

(a) “aggrieved person” means any woman who is, or has been, in a domestic relation with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

30. So, now it is necessary to go through the meaning and definition of the words “domestic relationship”, “respondent” and “domestic violence” stated in the Act. Clause (f), (q) and (g) of Section 2 of the Act deal with the definition of the words “domestic relationship” “respondent” and “domestic violence” respectively which are extracted here below;

“2. Definitions.- In this Act, ….

(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act;

(g) “domestic violence” has the same meaning as assigned to it in section 3:”

31. So, now it is necessary to go through the provision of Section 3 of the Act to understand “domestic violence” and it is extracted here below;

“3. Definition of domestic violence.- For the purposes of this Act, any act, omission or commission of conduct of the respondent shall constitute domestic violence in case it-

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or attends to do so and includes causing physical abuse, sexual abuse verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation- For the purposes of this section,-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb or health of impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.- For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

32. In the present case on hand, as noted above, it is an admitted fact and evident on record that the petitioner is the legally wedded wife of the respondent; after the marriage, she lived together with the respondent in his house and their marriage subsists till date.

33. Of course, the respondent has contended that after the marriage, the petitioner lived with him only for 3 months. Even for the sake of arguments, the same is accepted, then also, as noted above, Section 2(f) of the Act which defines the “domestic relationship” specifically says that the domestic relationship is a relationship between two persons who live or have, at any point of time, lived together in a shared household.

34. Thus, in view of the plain reading of the relevant definitions of the Act noted above and the interpretation of the same by the Hon’ble Apex Court in the above noted Krishna Bhatacharjee’s case, the petitioner is an aggrieved person in domestic relationship with the respondent and her allegations prima facie attract the definition of “domestic violence” and they are continuous offence i.e., having recurring nature.

35. For example, allegations of the petitioner that the respondent thrown her out of the matrimonial home; did not pay the rent; not taking care of her; not paying the maintenance, etc., which are the bounden duty of a husband i.e., marital responsibilities of the the respondent which also the penal acts. Of course, the marital responsibilities are subject to certain conditions and they are subject evidence.

36. Hence, prima facie there is nothing wrong found in the trial Court relying on the Krishna Bhatacharjee’s case not to accept the defence of the respondent that the petition filed by the petitioner under Section 12 of the Act is hit by limitation and there is no cause of action to file the same. Accordingly, this ground holds no water.

37. The other ground urged by the respondent is that the trial Court held at Para 33 that in our opinion a relationship in the nature of marriage is akin to a common law marriage. But, the vital aspect is that they should have lived together being akin to spouses for a significant period of time and not as like in the present case where they have not lived together for more than a period of 20 years. As such, Section 468 Cr.P.C. applies to these kind of cases.

38. The impugned judgment does not demonstrates any such observations with regard to the alleged akin to a common law marriage. However, in the present case on hand, as noted above, the facts that the petitioner is the legally wedded wife of the respondent; after the marriage resided with him and even now, their marriage subsists are not in dispute.

39. So far the vital aspect the respondent stress i.e., living together being akin to spouses for a significant period of time, which is specifically observed in Krishna Bhatacharjee’s case noted above that the above observations made in a case involving live-in relationship and the case wherein the plea is that even after the decree of divorce and during the pendency of the case for declaration that the decree of divorce is null and void. Hence, the above observations are not applicable to the case on hand and thus, this ground of the respondent also fails.

40. The other connected grounds urged by the respondent in support of his present appeal are that;

a) The petition filed by the petitioner is not maintainable as the complete analysis of the petition reveals that the petitioner is trying to make mockery of the provisions of Domestic Violence Act.

b) The allegations in the petition do not show as to specific averments of the stay of the petitioner in the matrimonial house and specific harassment meted out by him upon her.

c) The petition is liable to be dismissed for want of complete and correct state of affairs as to alleged violence said to have committed by him.

d) The petitioner in the whole petition has never shown her intent towards family as to know whether she wants to live with her husband or she intends to divorce him. But, only for the purpose of some unlawful gain, the present petition is brought and the trial Court has lost sight of the above facts.

41. But, as noted above, the petition averments demonstrate that it is the case of the petitioner that after the marriage, they lived together only for about a year and thereafter, the respondent started to harass and ill treat her and demanded her to bring additional dowry. When she did not agree for the same, he thrown her out.

a) There were several panchayaths convened before the elders with regard to the respondent’s harassment and humiliation to her. But, the respondent did not change his adamant attitude. As such, she has filed a complaint with Ulsoor Gate Women Police Station which was registered in CC.No.14789/1994.

b) The respondent requested her to withdraw the complaint as he is ready to take her home and accordingly, made her to disprove all her contentions in her cross examination. The respondent took back her to his home i.e., the police quarters at Anand Rao Circle and was quite for some years.

c) Thereafter, again he started to harass and humiliate her for one or the other reasons even no fault of her and used to abuse and assault her for trivial issues and finally in the year, 2002, he filed a divorce petition against her in MC.No.265/2002 with untenable contentions and on false frivolous story which came to be dismissed on contest.

d) Such being the factual position, the respondent approached her and requested her to sign some papers as he is willing to divorce her and when she refused, he had beaten her heavily, kicked her with his police boots on her head and ears i.e., subjected bo physical harassment.

e) The respondent now and then uses unparliamentary and filthy languages, being unable to bear the torture. When things stood thus, she came to know that the respondent is having illicit relationship with a woman, as such, he is making hectic attempt to get divorce from the petitioner and in this connection, he is harassing and humiliating her i.e., mental and sexual harassment.

f) Recently, in the year 2009, the respondent got transferred to Kolar and went to Kolar without even taking her along with him and with an ill motive avoided to pay the rents, electricity and water bill in respect of the police quarters in which she was residing. As such on 09.01.2010, the police department sent a reminder intimating to pay all the outstanding or else to vacate the quarters i.e., neglecting to maintain her and also emotional harassment.

g) Immediately, on 03.02.2010, she approached the Vanitha Sahayavani, Shivajinagar, Bengaluru seeking for intervention in the issue and to settle the matter amicably as she is ready for reconciliation or maintenance and residence i.e., her efforts to join him or to settle the dispute.

h) Thereafter on 26.02.2010, she wrote a letter to the police department requesting to grant sometime to vacate the quarters as her case is bend before the Vanitha Sahayavani. But, since, there was serious pressure to vacate and handover vacant possession of the quarters, she having left with no other alternative and not in a position to loose respect and dignity in the locality, sincerely vacated the police quarters i.e., again neglecting her to maintain, mental, emotional and also social harassments.

i) By virtue of the act of the respondent, she has been left in lurch and by virtue of his illegal act, the owner of the premises has been demanding her to vacate the premises and if it is done, she will have no shelter apart from having deprived from basic amenities and in a very critical, she is cutting her hard days, She has no source to maintain herself and is in need of fund to make a decent living in the society i.e., neglecting her to maintain, mental, emotional, economical and social harassments.

42. So, prima facie the above petition averments demonstrate that the petitioner has specifically pleaded the alleged domestic violence and also her efforts to lead martial life with the respondent or to settle the dispute.

43. The trial Court record demonstrates that to prove her above allegations against the respondent, the petitioner has filed her chief affidavit evidence reiterating her petition averments and in support of the same, she has also produced 22 documents i.e.;

a) Ex.P-1 is the marriage invitation card.

b) Ex.P-2 is the salary certificate of the respondent for the months of April – 2012 and May – 2012. There is no dispute with regard to Ex.P-1 and 2.

c) Ex.P-3 is the certified copy of the order sheet in MC.No.265/2002 which demonstrates that the said petition came to be dismissed for non prosecution on 07.12.2005 and on that date, the petitioner was present before the Family Court.

d) Ex.P-4 is the certified copy of the order sheet in Misc.3/2006 which is filed seeking restoration of the above MC.No.265/2002 also came to be dismissed for want of prosecution on 27.08.2008.

i) Of course, it is the contention of the respondent that due to hectic schedule of his official duty, he could not prosecute his petition for divorce. He did not disclose anything with regard to his petition in Misc.3/2006 seeking restoration of his divorce petition in MC.No.265/2002.

ii) Moreover, it is also important to note that the respondent is not an illiterate and an ordinary man. Admittedly, he is working as an officer in police department which is a responsible post. Despite of that, he did not prosecute his both the petitions i.e., the petition of divorce and its restoration. On the other hand, as noted above, the petitioner contested the above divorce petition of the respondent and was present before the Court.

e) Ex.P-5 is the certified copy of the deposition of the petitioner in CC.No.14789/1994 which demonstrates that the petitioner completely turned hostile to the prosecution.

f) Ex.P-6 is the certified copy of the judgment dated 11.07.1997 passed in the above case which demonstrates that the only witnesses examined are the petitioner and her mother who turned hostile and hence, the above case was ended in acquittal of the respondent and others for the offences punishable under Sections 498(A), 324, 504 and 506 read with Section 149 of IPC.

i) As noted above, it is the case of the petitioner that the respondent requested her to withdraw the complaint as he is ready to take her home and accordingly, made her to disprove all her contentions. The respondent took back her to his home i.e., the police quarters at Anand Rao Circle and was quite for some years.

ii) Thereafter, again he started to harass and humiliate her for one or the other reasons even no fault of her and used to abuse and assault her for trivial issues and finally in the year, 2002, he filed a divorce petition against her in MC.No.265/2002 with untenable contentions and on false frivolous story which came to be dismissed on contest.

iii) Of course, as noted above, the above divorce petition came to be dismissed for non prosecution. However, admittedly, the said petition came to be filed in the year 2002 i.e., after around 8 years from the date of complaint and after around 7 years from the date of judgment in the above criminal case.

g) Ex.P-7 is the copy of the application dated 24.06.1998 by the petitioner to the DG/IGP seeking information with regard to the nominee of the respondent in his SR.

h) Ex.P-8 is the acknowledgment (not dated) issued to the petitioner by the above office i.e., office of DG/IGP about receipt of “a cover contents not known”.

i) Ex.P-9 is the endorsement dated 10.03.2009 issued by the Police Inspector, RT Nagar PS to the petitioner in respect of her petition dated 11.11.2008 intimating to settle the family dispute before the Court concerned.

j) Ex.P-10 is the endorsement dated 13.02.2002 issued by the ASI, Sheshadripuram PS to the petitioner in respect of her petition dated 04.03.2002 intimating to settle the family dispute before the Court concerned.

i) In both Ex.P-9 and 10, her address is shown as No.10, 5th Block, Andarao Circle, Police Quarters, Bengaluru – 560 020.

ii) So, the subsequent documents at Ex.P-7 to 10 support the aversion of the petitioner and probabalizes her aversions that the respondent requested her and made her to turn hostile and took her with him, quite for some years and again started to subject her to the domestic violence.

iii) At this stage, it is also important to note that the respondent did not take any defence and not even cross examined the petitioner denying her above aversions that it is he who made her to turn hostile in the criminal case on the assurance to take back her.

k) Ex.P-11 to 22 are the medical records of the petitioner such as OP slip, lab reports, prescriptions, etc. for the years 2011 to 2016.

44. Of course, the respondent has contended that after the marriage, the petitioner stayed in the matrimonial house for 3 months. During the said stay, she used to act indifferently and pin prick petty quarrel with him and went to an extent of uttering to break up the marital relationship and left the matrimonial house and did not return to reunite him. But, to prove the same, apart from his oral evidence, he did not let in any supportive evidence either oral or documentary.

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45. On the other hand, as noted above, the documents at Ex.P-1 to 22 in particular Ex.P-3 to 22 are in support of the case of the petitioner with regard to her allegations that the respondent subjected her to domestic violence and thrown her out of the matrimonial home and she did her best to join him or to settle the dispute.

46. Hence, viewed from any angle, the respondent has failed to establish the above stated grounds in support of his present appeal.

47. The other connected grounds he has urged in support of his present appeal are that;

a) The trial Court did not consider the evidence of PW-1 wherein in her cross examination, she has admitted that the summons from the Court in the year 2002 were served on her to parental address where she was actually staying.

b) But, only relied on Ex.P-9 and 10 addressed to the petitioner which bears his address. They are hand delivered acknowledgement from the police station. They could have been through post. The trial Court did not consider the very fact that whether it was issued at the inception of the petitioner.

48. Of course, the impugned judgment demonstrates that the trial Court has relied on Ex.P-9 and 10 to accept the case of the petitioner that she was residing with the respondent in the address mentioned therein and it is an admitted fact and evident on record that in most of the documents and in the litigations between the parties, the address of the petitioner shown is of her parental house.

49. But, in her cross examination, she has specifically deposed that since there is frequent possibilities of change of the rented houses, she gave her parental address which prima facie appears probable justification. Moreover, as noted above, the other documents produced by the petitioner are in support of her oral evidence and thereby her case that;

a) the respondent thrown her out of matrimonial home; as the panchayaths in that regard failed, she lodged criminal complaint for the offence under Section 498(A) of IPC;

b) thereafter, the respondent approached her and requested to withdraw the complaint on the assurance that he will take back her; after getting closed the criminal case, she took her to the police quarters at Anand Rao Circle, wherein she lived with him;

c) he kept quite for some years and again started to ill treat her; filed divorce petition which came dismissed and its restoration application also came to be dismissed for non prosecution;

d) in the year 2009, he was transferred to Kolar, he left without taking her neglected her to maintain and she put her best efforts for conciliation, but it went in vain.

50. So, the documents at Ex.P-9 ad 10 are corroborative and supportive documents to the other documents produced by the petitioner in support of her aversions that she resided with the respondent even in the police quarters at Anand Rao circle at the relevant point of time. Hence, these grounds of the respondent also fail.

51. The other connected grounds urged by the respondent are that;

a) As per the Act, the person who is not having sufficient means to maintain herself and the neglected person is only entitled for maintenance. But, the petitioner is owning property in Bengaluru and has sufficient source and is leading a luxurious life from the rental proceeds and owing jewelry shop.

b) Hence, the petitioner who is habitually claiming compensation by harassing him and she is not a neglected person. Therefore, she is not entitled to claim compensation and also for the maintenance.

52. Of course, the respondent has contended that as he agreed, he made arrangements to transfer the house No.29, 5th Main Road, Ganganagar, Bengaluru in favour of petitioner which was in the name of his brother and the petitioner without getting transfer of title deeds in her favour, impeachably occupied the house by taking over the physical possession and without using for herself has leased out the same to the third party and continued staying in her paternal house.

53. But, to substantiate the same, in support of his oral evidence, he did not let in any evidence either oral or documentary. On the other hand, it is in his cross examination that the said house is in the name of his younger brother Pranesh Shetty and on the basis of the sale agreement in his favour, his younger brother executed a sale agreement in favour of the petitioner and the same is not registered one.

54. Even he has stated that he gave the said house to the petitioner in the year 1997 and since then she has been receiving the rents, he has also deposed that he has no document in that regard.

55. It is also in his cross examination that he did not either personally or through the legal notice called the petitioner to join him and he does not remember anything in that regard.

56. He has admitted the suggestion that except the maintenance he has paid before the Court, he did not pay any maintenance to the petitioner after the marriage. At this stage, he has voluntarily deposed that since he gave the house, there was no reason for him to pay the maintenance.

57. But, as noted above, there is no document to substantiate that he gave a house property to the petitioner and he has also not produced any document to show the earnings of the petitioner and her having jewelry shop. Hence, these grounds also hold no water.

58. From the above discussions, the other ground of the respondent that the impugned judgment is contrary to law, facts and material as well as contrary to established principles of criminal jurisprudence also not sustainable.

59. The trial Court record also demonstrates that the respondent in support of his defence has relied on the decisions reported in;

a) 2010 CRI.L.J. 4049 (between Kishor Shrirampant Kale v. Sou. Shalini Kishor Kale and Ors. in Cri.W.P.No.37 of 2008 decided on 30.03.2010 before his Lordship A.B.Schaudhari, J.) wherein he has drawn my attention to the observations of the Hon’ble High Court of Bombay that;
“Protection of Women From Domestic Violence Act (43 of 2005), S.12, S.20 – Complaint Seeking maintenance and accommodation to complainant wife and son – wife and husband admittedly living separately since last 15 years – Wife abruptly after long gap of 15 years alleging domestic violence against husband – Wife and domestic violence against husband – Wife and son already getting maintenance as per orders of Court passed in various proceedings – No averment in complaint that higher amount of maintenance or accommodation in house of husband was demanded and refused by husband – No averment in complaint regarding prohibition or restriction on use of accommodation – No averment regarding domestic violence at any time before filing of complaint – Complaint not maintainable – Complainant would be entitled to remedies under other laws.

Perusal thereof particularly …..sub clause (c) to Section 3 of the Act of 2005 the same shows that there has to be prohibition or restriction to continued access to resources which the aggrieved person is entitled to use and enjoy…. On the contrary, it is an admitted position that for the last 15 years there has been no contact or relationship between them.

14A. Perusal of the …. Explanation-II appears to have been inserted specifically with a view to enable the Court to find out the deserving and undeserving cases…. in particular regarding the total eclipse for the period of 15 long years and in the absence of any complaint regarding domestic violence at any point of time before filing of the complainant in the recent past thereof or within reasonable period this Court is of the opinion that overall facts and circumstances of this case clearly show that even if the averments in the complaint are taken to be true at their face value, no case of domestic violence can even be inferred by the Court. The respondents could have adopted their remedy available under the other laws for enhancement of maintenance or accommodation or rental or as the case may be, but certainly in the light of the above discussion the respondents were not entitled to take recourse to the Act of 2005. Consequently, the Court did not get jurisdiction under Section 27 of the Act of 2005 to entertain the complaint which was not maintainable for the above reasons. Both respondents, however, were entitled to take recourse to remedies under other laws.

15. It is true as argued by learned Counsel for the ….. In the instant case accordingly to me domestic violence having been alleged only after 15 years by the respondents would constitute an abuse of process of law. Certainly this beneficial piece of legislation would be available to those who are entitled to the benefit thereof and in the instance case, I have found that the respondents are not entitled to at least under the Act of 2005 though they may be entitled to the reliefs sought by them in the proceedings in some other law”.

b) 2010 CRI.L.J. 2173 (between K.Narasimhan v. Smt.Rohini Devananthan in Cri.Petn.No.807 of 2009 decided on 24.11.2009 before his Lordship Huluvadi G.Ramesh J.) wherein he has drawn my attention to the observations of the Hon’ble High Court of Karnataka that;

“Protection of Women From Domestic Violence Act (43 of 2005), S.2(s) – “shared household” Complaint against brother-in-law/petitioner – Complainant and petitioner never stayed together in same household – Merely because she was abused by petitioner and certain allegations made against her – Will not amount to domestic violence in absence of ingredients of shared household”.

60. But, in the present case on hand, as noted above, the petitioner is successful in establishing her domestic relationship with the respondent and the domestic violence at his hands as averred in the petition. Hence, the principles laid down in the above noted decisions are not applicable to the facts and circumstances of the present case and thus, not helpful to the respondent.

61. On the other hand, the counsel for petitioner before the trial Court has relied on the decisions reported in;

a) AIR 2005 SUPREME COURT 1809 (between Savitaben Somabhai Bhatiya, Appellant v. State of Gujarath and others, Resopondents in Criminal Appeal No.399 of 2005 arising out of SLP (Cri.) No.4688 of 2004 decided on 10.03.2005 before their Lordships Arijit Pasayat and S.H.Kapadia JJ.) wherein he has drawn my attention to the observations of the Hon’ble Apex Court that;

“(A) Criminal P.C. (2 of 1974), S.125 –

Maintenance – ‘Wife’ – Scope – Cannot be enlarged to include woman not lawfully married – Plight of woman unwittingly entering into wedlock with married man – can only be undone by Legislature – Principle of estoppel cannot be pressed to defeat S.125.

……….

9. The provision is enacted for social justice and specifically to protect women and children as also old and infirm poor parents and falls withing the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the ‘Constitution’). The provision gives effect to the natural and fundamental duty of a man to maintain his wife children and parents so long as they are unable to maintain themselves. Its provisions are applicable and enforceable whatever may be personal law by which the persons concerned are governed…..”

b) 2012 AIR SCW 1515 (between V.D.Bhanot v. Savita Bhanot in SLP (Criminal) No.3916 of 2010 decided on 07.02.2012 before their Lordships Altamas Kabir J and J.Chelameshwar, J.) wherein he has drawn my attention to the observations of the Hon’ble Apex Court that;

“Protection of Women from Domestic Violence Act (43 of 2005), Ss.12, 18,19 – Protection of Act – Scope – Woman who had shared household in past had left it prior to enforcement of Act – Also entitled to protection of Act – complainant wife childless and old- Residence order directing husband to provide alternative accommodation or pay rental charges – Modified by directing husband to give part of his house considering security of wife.

In looking into a compliant under Section 12 the conduct of the parties even prior to the coming into force of the Act, could be taken into consideration while passing an order under Sections 18, 19 and 20. Thus even a wife, who had shared a household in the past, but was no longer doing so when the act came into force, would still be entitled to the protection of the Act.

c) (1988) 1 Supreme Court Cases 105 (between Shobha Rani Versus Madhukar Reddi in Cvil Appeal No.3013 of 1987 decided on 12.11.1987 before their Lordships B.C.Ray and K.Jagannatha Shetty, JJ.) wherein he has drawn my attention to the observations of the Hon’ble Apex Court that;

“N.G.Dastane v. S. SARbwm (1975) 2 SCC 326 : (1975) 3 SCR 967, relied on.

The word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and decree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it cause reasonable apprehension that it would be harmful or injuries to live with the other. Ultimately, it is matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact of the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case , if by ordinary sense inhuman affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wiful ill-treatment.

The Court in matrimonial cases is not concerned with ideals in family life. The Court has only to understand the spouse concerned as nature made them and consider their particular grievance. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Therefore, Court should not import its own notions of life, nor should it depend such upon the precedents. Each case may be different from the other. In this case cruelty has been established and accordingly, the appellant-wife is entitled to a decree for dissolution of the marriage with the respondent under Section 13(1)(i-a) of the Act.”

62. In this appeal, in support of his oral arguments, the learned counsel for petitioner/respondent has relied on the decisions reported in;

a) 2012 AIR SCW 1515 (between V.D.Bhanot v. Savita Bhanot in SLP (Criminal) No.3916 of 2010 decided on 07.02.2012 before their Lordships Altamas Kabir J and J.Chelameshwar, J.) wherien he has drawn my attention to the observations of the Hon’ble Apex Court that;

“Protection of Women From Domestic Violence Act …..

In looking into a complaint under Section 12 the ……..

Where on a petition for relief of residence by wife, old and childless, who had to vacate her matrimonial home years after her marriage, the husband was directed to provide an alternative accommodation or to pay rental charges to her, the Court considering security and safety of wife who had to live all alone modified the order by directing husband to provide a suitable portion of his residence to the wife for her residence, together with all necessary amenities to make such residential premises properly habitable for her.

b) 2017 (2) Kar.L.R. 352 (between Kasturi Verusus Subhas in Criminal Revision Petition No.539 of 2017 c/w Criminal Revision Petition No.195 of 2017 decided on 03.08.2017 before her Ladyship Mrs.Rathnakala J.) wherein he has drawn my attention to the observations fo the Hon’ble High Court of Karnataka to that;

“(B) Protection of Women From Domestic Violence Act, 2005 – Section 3 – “Domestic violence” under Section 3 of the Act among others takes into its fold “economic abuse” also. ……….. This is another form of domestic violence within the meaning of Section 3(a) of the Act. In that view of the matter, the petitioner is guilty of the offence of domestic violence and limitation cannot be a ground for the husband to escape his liability. Therefore, the wife is entitled for the protection under the Act.”

63. As noted above, admittedly, the respondent is a responsible police officer and the petitioner is his legally wedded wife who is successful in establishing her domestic relationship with the respondent and the alleged domestic violence at his hands. Hence, the principles laid down in the above noted decisions on which the learned counsel for petitioner is relied on are helpful to the petitioner.

64. Hence, from the above discussions, as the respondent has failed to establish his grounds in support of this appeal, point No.1 is answered in negative. Consequently, there is no need to intervene in the impugned judgment. Accordingly, point No.2 is also answered in negative.

65. POINT No.3:- For the reasons discussed above, I proceed to pass following order.

ORDER The present Criminal Appeal filed by the appellant/respondent under Section 29 of the Protection of Women from Domestic Violence Act, 2005 is hereby dismissed.

Consequently, the impugned judgment passed in Crl.Misc.165/2012 dated 04.08.2016 passed by the learned MMTC III, Bengaluru is hereby confirmed.

Send back TCR along with the copy of this judgment forthwith to the trial Court.

(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 25th day of August, 2020).

(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bangalore.

61 Both the parties and their respective counsels are absent.

The Order is pronounced in the open Court (vide separate Order).

ORDER
The present Criminal
Appeal filed by the
appellant/respondent under
Section 29 of the Protection of
Women from Domestic Violence
Act, 2005 is hereby dismissed.
Consequently, the
impugned judgment passed in
Crl.Misc.165/2012 dated
04.08.2016 passed by the
learned MMTC III, Bengaluru is
hereby confirmed.
Send back TCR along with
the copy of this judgment
forthwith to the trial Court.

LXVI Addl.CC & SJ,
Bengaluru

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