IN THE COURT OF HON’BLE JUDICIAL MAGISTRATE FIRST CLASS, GURUGRAM
Application u/s 468 of Cr.P.C. for dismissal of present petition filed by the complainant under Domestic Violence act, 2005.
- That the above noted application/ complaint is pending in this Hon’ble court and fixed for today i.e.
- That the present petition under Domestic Violence act 2005, filed by the complainant against the respondent is gross abuse of process of law. The present petition is filed to squeeze out money which she has done before as well and harass the already distressed and exhausted respondent and making him to contest the false cases filed by the complainant to fulfil her ulterior motives.
- It is pertinent to apprise the Hon’ble court that as per complaint filed by the applicant the last alleged harassment to the applicant taken place in March 2015. After this there is no specific instance of Domestic Violence meted out to the applicant. That the present petition is filed after two years (24 Months), she left her matrimonial home on 22nd Mar 2015 along with her father and all her belongings. Complainant and Respondents are not living together after 22 March 2015 and there is no occasion of any incident of domestic violence reported after this in this petition. The present complaint has been filed on 22.03.2017.Hence time bared and no cognizance can be taken in the case.
- That the present petition is not maintainable as per the provisions of section 468 of Cr.P.C. as the mentioned section bars any complaint filed beyond its limit. As the mentioned section puts limit of only 1 year to file the present petition under Domestic Violence act 2005, whereas the present petition is filed beyond its limit i.e. after more than 1 year by abusing the process of law and to harass and put financial and mental pressure on the respondent by tangling him in various false cases.
- That Section 468 Cr.P.C. reads as follows :
The Code of Criminal Procedure, 1973 (CrPc)
- Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided elsewhere in this Code, no court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) Six months, if the offence is punishable with fine only;
(b) One year, if the offence is punishable with imprisonment for a term not exceeding one year.
(c) Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]
- That Section 28(1) – Procedure of The Protection of Women From Domestic Violence Act, 2005 reads as follows:
- Procedure.-(1) Save as otherwise provided in this Act, all proceedings under sections 12,18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
- Reliance is placed on double bench judgement of Supreme Court of India
Inderjit Singh Grewal vs State Of Punjab & Anr on 23 August, 2011
Author: . B Chauhan
Bench: P. Sathasivam, B.S. Chauhan
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1635 of 2011
(Arising out of SLP(Crl.) No. 7787 of 2010)
“Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.” ANNEX-1
- In order of DELHI HC, Dtd: 29th July, 2010, Crl. Rev. P. No. 252/2010, 253/2010 & 338/2010 ; BENCH: JUSTICE SHIV NARAYAN DHINGRA ; in the case of Nagesh Malik vs Payal Malik, his Lordship held that “It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and 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. The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there.”
- That the present petition under Domestic Violence act 2005 has been filed with an unreasonable delay and also beyond the period of limitation and is thus liable to be dismissed.
- Supreme Court of India, in a latest judgement dated 10th September, 2013, in the case of Londhe Prakash Bhagwan vs Dattatraya Eknath Mane And Ors, CIVIL APPEAL NO. 7921 OF 2013 (Arising out of Special Leave Petition [C] No.2991/2011) has clearly outlined that “Even if we assume that no limitation is prescribed in any statute to file an application before the court in that case, can an aggrieved person come before the court at his sweet will at any point of time ? The answer must be in the negative. If no time-limit has been prescribed in a statute to apply before the appropriate forum, in that case, he has to come before the court within a reasonable time. This Court on a number of occasions, while dealing with the matter of similar nature held that where even no limitation has been prescribed, the petition must be filed within a reasonable time.” ANNEX-3
- The precedent of “reasonable time” has already been set in the recent ruling on 7th March 2013 by Bombay High Court in the case of Sejal Dharmesh Ved Vs The State of Maharashtra & Ors., CRIMINAL APPLICATION NO. 160 OF 2011, CORAM : MRS. ROSHAN DALVI, J., where application under the D.V Act, 2005 was filed after 11 months of separation. While dismissing the application, the Hon’ble court held that “A wife who lived in a domestic relationship earlier, but which ceases only because of any domestic violence can certainly file an application for such domestic violence that took place whilst she lived in that relationship. Such application is required to be filed within a reasonable time to show that relationship would give her the cause of action to sue under the D.V. Act for the reliefs under the Act. A wife who has returned from the USA and consequently from the domestic relationship and lived in India for one year cannot file an application with regard to that relationship after such time. Such wife cannot be taken to be in any domestic relationship.” ANNEX-4
The present application under the D.V Act, 2005 has been filed by the complainant with an unreasonable delay i.e. after (two years) more than 1 year of separation and hence should be dismissed.
- Karnataka High Court, in the case of Srinivas vs G. Dhanalakshmi on 5 Apr, 2013 while deciding CRIMINAL PETITION NO. 2419 OF 2009 under section 482 quashed the proceedings of D.V Act, 2005 stating that Though the allegations re spread over a period of time. It does appear that the complaint was not filed within one year from the date of alleged cause of action. Therefore the proceedings could not have entertained by the court.
- Bombay High Court, in the case of Jayantilal Kamji Nagdau vs State Of Maharashtra and anr. on 8 May, 2015 while deciding CRIMINAL WRIT PETITION NO. 1865 OF 2010 also took cognizance of the separation of 34 years and clearly stated that after such a long separation, there cannot be domestic violence.
- Supreme Court of India, in the case of Sundar Babu & Ors. vs State Of Tamil Nadu on 19 February, 2009 while deciding CRIMINAL APPEAL NO. 773 OF 2003 also took cognizance of the delay of 7 months in lodging the complaint. “The marriage took place on 25/11/1998. The appellant No.1 left for USA on 1/7/1999. The complaint was filed on 6/2/2000 alleging commission of offence punishable under Sec.498A of the Indian Penal Code, 1860 (in short the `IPC’) and Sec.4 of the Dowry Prohibition Act, 1961 (in short `D.P. Act’)… The appellant No.1 had left for USA after about six months of the marriage. Long thereafter on 6/2/2000, the complaint was filed. No explanation for the delayed lodging of the complaint was offered. In essence, it was submitted that the continuance of the proceedings will be an abuse of the process of law” and allowed the appeal. ANNEX-7
- The Orissa High Court, in the case of Manmatha Kumar Jena And Ors. vs Smt. Sanjukta Jena on 18/6/2003 held that, “Filing of a complaint petition, and that oo without informing the police, alleging commission of offences by the petitioners under Sections 498-A/506/34, I. P. C. and Section 4 of the Dowry Prohibition Act at a belated stage, e. almost after one year, appears to be afterthought and an attempt to coerce or put the petitioners to harassment to satisfy the vengeance of the opposite party… I am inclined to hold that continuance of the proceedings in ICC No. 26 of 2001 in the Court of the S. D. J. M., Nilgiri would be an abuse of the process of law and accordingly I quash the said proceeding.” ANNEX-8
- In the case of Shantaram S/O Appa Zunjarkar vs Rambhau S/O Narhari Udawant And Ors. on 25 September, 1981 , Bombay High Court held that “The learned Additional Sessions Judge has observed that the complainant has not given satisfactory explanation for having filed the complaint after more than 8 or 9 months. The delay has not been properly explained. If the delay is not explained, such a complaint suffers from a number of infirmities. It is observed by the Supreme Court in Thulia Kali v. The State of Tamil Nadu, as follows: “Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.” In the present case, the complainant has miserably failed to give a satisfactory explanation and it is on that count the appeal deserves to be dismissed.”
- Karnataka High Court, in the case of Gurudev vs Jayashree on 8 January, 2014 while deciding CRIMINAL PETITION NO. 11476 OF 2014 under section 482 quashed the proceedings of D.V Act, 2005 stating that With these observations, I am of the opinion that this petition under Domestic Violence Act is liable to be quashed which was filed after lapse of 8 years.
It is humbly prayed that the present petition which has been lodged with an inordinate delay may be dismissed being barred by Limitation as per the provisions of law, with heavy costs and taking necessary action against the complainant for misusing the law by filing false cases and concealing the true facts from court to fulfil her ulterior motives and for mentally and financially harassing the innocent respondent.