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Reasonable time to file DVA, Which as per under section 468 Cr.P.C is one year

In the Court of Sh. Rajeev K. Beri, Addl. Sessions Judge, Ludhiana

Crl. Appeal No.36 of 28.9.2016
C.Gen. No. CRA/597/2016
Date of decision: 09.11.2016

1- Manpreet Singh, aged about 35 years, son of S. Narinder Singh,
resident of 114, Mayur Vihar, Sector 48-A, Chandigarh.
2- Narinder Singh, aged about 72 years, son of late S. Bhagat Singh,
3- Devinder Pal Kaur, aged about 63 years, wife of S. Narinder Singh
both residents of House No. 1089, Phase 3B-II, S.A.S.Nagar,Mohali, Punjab….Appellants

Versus

Tinveer Kaur daughter of S. Joginder Singh Kohli and resident of House
No. B-36-30, Vikas Nagar, Pakhowal Road, Ludhiana, Punjab.…..Respondent

Appeal against Order dated 22.5.2014 passed by the Court of Ms. Supreet Kaur, the then Ld. JMIC, Ludhiana whereby the application of appellants, filed under section 468 Cr.P.C, in a petition u/s 18 and 20 of Protection of Women from Domestic Violence Act, 2005 bearing No. 38 of 11.4.2012 titled Tinveer Kaur Vs. Manpreet Singh and others, was dismissed.

Present: S/Sh. J.S.Johal and Shamsher Singh Lohat, Advocates, for appellants

Sh Jaswinder Singh, Advocate for respondent.

J U D G M E N T:

1- This appeal has been preferred by original respondents challenging the order dated 22.5.2014 of the court of Ms. Supreet Kaur, the then Ld. JMIC, Ludhiana, whereby, their application filed under section 468 Cr.P.C, seeking dismissal of main application u/s 18 and 20 of Protection of Women from Domestic Violence Act, 2005 for being time barred, was dismissed.

2- Facts leading to filing of this appeal, when put in brief, are that original applicant/current respondent (hereinafter referred to ‘applicant’) Tinvir Kaur is wife of original respondent No.1 Manpreet Singh (current appellant No.1 ) and remaining original respondents No.2 and 3 are her parents-in-law. Marriage of applicant with respondent No.1 took place on 2.9.2010 allegedly with great pomp and show where the family of applicant spent huge amount. Soon the relationship between the parties turned sour. Applicant alleged suffering of domestic violence at the hands of respondents. Applicant ultimately separated on 28.3.2011. She filed the current proceedings u/s 18 and 20 of Protection of Women from Domestic Violence Act, 2005 on 7.4.2012 with which she did not file any application for condonation of delay.

3- On notice the respondents (current appellants) appeared and filed application u/s 468 Cr.P.C. seeking dismissal of main application being time barred. In reply the main applicant opposed the prayer.

4- Ld. Trial court perused the record, considered submissions of both the sides and dismissed abovesaid application under section 468 Cr.P.C. vide impugned order dated 14.7.2014. 5- Feeling aggrieved by this order the original respondents have challenged the same by way of this appeal.

6- On notice the main applicant Tinveer Kaur (current respondent) appeared through counsel. Trial Court record was summoned.

7- I have heard both the Ld. Counsel for parties, and have perused the record.

8- It is argued by Ld. Counsel for appellants that impugned order is totally erroneous and illegal. The same was passed without appreciating the legal position. There is no explanation on file on behalf of main applicant/current respondent for delay in filing of these proceedings. The limitation to file it is one year. Admittedly the parties cohabited last on 28.3.2011 on which day allegedly the last incident of domestic violence took place. Thereafter, there has been no domestic relationship between the parties. She filed the current proceedings on 7.4.2012. In view of settled legal position the cognizance of this application by the Ld. Trial Court was barred. To support his arguments Ld. Counsel referred to judgments inter alia as Inderjit Singh Grewal Vs. State of Punjab and another 2011 (4)R.C.R (Criminal) 1 decided by the Hon’ble Apex Court and Sejal Dharmesh Ved Vs. The State of Maharashtra & Ors 2013 (13) R.C.R (Cri)439. In the latter case the similar application under Protection of Women from Domestic Violence Act, 2005 filed after 11 months of separation was found barred by time since it was not filed within the reasonable time as at that time there was no domestic relationship between the parties. Ld. Counsel prayed that in the light of these circumstances, the application of appellants moved under section 468 of Cr.P.C. may be allowed, appeal be accepted and main application u/s 18 and 20 of Protection of Women from Domestic Violence Act,2005 , filed by current respondent, be dismissed.

9- In reply the Ld counsel for current respondent argued that the latter had met with an accident, she remained hospitalized and soon thereafter she filed this application u/s 18 and 20 of Protection of Women from Domestic Violence Act, 2005 . She had suffered multiple instances of domestic violence. She was not paid any maintenance despite orders of the court. The delay in filing of this application is not substantial and is just of about 10 days and, hence, the impugned order was rightly passed by the Ld. Trial Court. He payed that therefore, the appeal be dismissed being without any substance.

10- It is an admitted fact between the parties that the main applicant resided with main respondents/appellants lastly on 28.3.2011 when the alleged last incident of domestic violence had to be suffered by her. It is also an admitted aspect and part of record that the current application u/s 18 and 20 of Protection of Women from Domestic Violence Act, 2005 was filed by her on 7.4.2012 after the expiry of one year limitation period available for it. Then it is also an admitted aspect on file that there is no application for condonation of delay filed by her by virtue of section 473 Cr.P.C. What came out, therefore, was that this application was filed after expiry of limitation period. There is nothing in specific in this application justifying such delay. It though vaguely is pleaded in para 8 of the application that she met with an accident on 27.1.2012 and remained hospitalized in Dayanand Medical College & Hospital, Ludhiana from that day till 31.1.2012. Even if this period of hospitalization is taken into account, there is no explanation on her part for delaying the filing of this application for another over two months. Prior to it she already had consumed 10 months after her separation from her husband/appellant No.1 on 28.3.2011. In the Judgment Inderjit Singh Grewal( supra), relied upon by the appellants, the Hon’ble Apex Court categorically held that the domestic relationship between the husband and wife when had ended due to domestic violence taken place during their earlier domestic relationship, the wife could file such proceedings about domestic violence but within a reasonable time to show that the relationship would give her the cause of action to sue for reliefs under the provisions of Protection of Women from Domestic Violence Act, 2005. In the referred judgment Sajel Dharmesh Ved ( Supra ), again relied upon by appellants, the Hon’ble Bombay High Court held that such application moved after one year of separation of the couple could not be filed as the wife could not be considered to be in any domestic relationship. The Ld. Trial Court took into account these judgments, appreciated the same and held in the impugned order that these did not apply to the facts and circumstances of current case. The Ld. Trial Court also found that the delay of just 11 days in filing of these proceedings was not substantial and meanwhile the main applicant had also remained hospitalized.

11- The ratio decscendi of these above noted judgments had to be taken into account. The application under the above said Act could be filed within a reasonable time which as per under section 468 Cr.P.C is one year. The parties separated on 28.3.2011. They never cohabited again. The application under abovesaid Act was filed on 7.4.2012 after an unexplained delay of 11 days. The bar of section 468 Cr.P.C, therefore, had arisen barring the trial court from taking cognizance .

12- In the light of above detailed circumstances what I find is that the application under section 468 CrP.C filed by current appellants was liable to be allowed. Same was wrongly dismissed vide impugned order. This order is illegal and perverse. Same is set aside. Appeal is allowed. Main application u/s 18 and 20 of Protection of Women from Domestic Violence Act, 2005, filed by current respondent Tinveer Kaur, is dismissed being time barred. Trial Court record be returned along-with a copy of this judgment. Appeal file be consigned to the Record Room. Pronounced in open court.

9.11.2016 Rajeev K. Beri,
Addl. Sessions Judge,
Ludhiana.
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