Mrs. Savita Bhanot vs Lt.Col.V.D.Bhanot
2010 Latest Caselaw 1576 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+           Crl.M.C. No.3959/2009 & Crl.M.A.13476/2009

%                      Reserved on:      19th March 2010
                       Date of Decision: 22nd March 2010

#     MRS. SAVITA BHANOT                   .....Petitioner
!                  Through: Mr. A.K.Bakshi, Advocate.


                       versus


$     LT.COL.V.D.BHANOT                     .....Respondent
^                  Through: Mr. A.K.Maitri, Advocate.

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN


      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?               Yes

      2.    To be referred to the Reporter or not?            Yes

      3.    Whether the judgment should be
            reported in the Digest?                           Yes


: V.K. JAIN, J.

1. This is a petition under Section 482 of the Code of

Criminal Procedure against the order of the learned Additional

Sessions Judge dated 18.9.2009, whereby he dismissed the

appeal filed by the petitioner against the order of the learned

Metropolitan Magistrate dated 11.5.2009.

2. The marriage between the parties was solemnized on

23.8.1980 and the petitioner was driven out of the matrimonial

home on 4.7.2005. The case of the petitioner is that it was

on account of the conduct of the respondent that she

thereafter could not live with him. On 29.11.2006, the

petitioner filed a petition before the Magistrate under Section

12 of Protection of Women from Domestic Violence Act 2005

(hereinafter referred to as "the Act") seeking various reliefs.

Vide order dated 8.12.2006, the learned Magistrate granted

interim relief of Rs.6,000/- per month to the petitioner. Vide

subsequent order dated 17.2.2007, he passed

protection/residence order and allowed the petitioner to live in

her matrimonial home in Mathura. The order dated 17.2.2007

was challenged by the respondent before this Court but his

application for staying the order was declined. The

respondent, in the meantime, retired from service on

6.12.2007 and on 26.2.2008, he filed an application for

eviction of the petitioner from the Government accommodation

in Mathura Cantt. The learned Magistrate directed him to

locate an alternative accommodation for the petitioner. The

petitioner, who had received an eviction notice requiring her to

vacate the official accommodation occupied by her, filed an

application seeking an urgent relief from the Metropolitan

Magistrate. Vide order dated 11.5.2009, the learned

Magistrate directed the respondent to let her live on the first

floor of House No. D-279, Nirman Vihar which she claimed to

be her permanent matrimonial home. She further directed

that if this was not possible a reasonable accommodation in

the vicinity of Nirman Vihar be made available to her. She

further directed that if second option was also not possible, the

respondent would pay a sum of Rs.10,000/- per month to the

petitioner as rental charges, so that she could find a house of

her choice. Being dissatisfied with the order passed by the

learned Metropolitan Magistrate, the petitioner preferred an

appeal which came to be dismissed vide order dated

18.9.2009. The learned Additional Sessions Judge was of the

view that since the petitioner had left the matrimonial home on

4.7.2005 and the Act came into force on 26.10.2006, the claim

of a woman living in domestic relationship or living together

prior to 26.10.2006, was not maintainable. He was of the

view that since the cause of action arose prior to coming into

force the Act the Court need not adjudicate upon the merits of

her case.

3. The only question which comes up for determination by

this Court is as to whether a petition under the provisions of

the Act is maintainable by a woman, who had stopped living

with the respondent, or by a woman, who alleges to have been

subjected to any act of domestic violence, prior to coming into

force of the Act on 26th October 2006.

4. It is a historical reality that the women in our society

have been subjected to discrimination, misbehavior and ill-

treatment, not only outside but, also inside their house, the

main causes for their plight being (i) illiteracy (ii) economic

dependence on men and (iii) insensitivity to their rights and

their dignity. Even a working woman, whether she be a

construction worker who works side by side with her husband

or a well-educated and a suitably employed professional is not

always accorded the dignity and respect, which ought to be

given to her on the home front. Despite concept of equality of

sex in all respects being a hallmark of our Constitution, having

been recognized in Articles 14, 15, 21, 39 and 51(A), it is a

harsh reality that the women in our Country continue to be

subjected to what we generally term as domestic violence. The

legislature has from time to time been making efforts to impart

justice and fair play to the women by means of various

statutory enactments and Protection of Women from Domestic

Violence Act, 2005, is a landmark initiative taken by the

Parliament to confer certain important benefits including right

of residence on a woman and to penalize those, who fail to

provide those benefits to the women despite judicial mandate

in the form of order passed by a Court under the provisions of

the Act. The legislation comprehensively addresses many

issues relating to women, including those in live-in

relationships and extends protection to relationship other than

marital such as mothers and sisters and gives a new

dimension to the expression „abuse‟ by including not only

physical abuse but also threat of abuse whether physical,

mental, sexual, verbal or economical. Verbal abuses such as

name calling, character assassination, insult for not bringing

enough dowry and insult for not giving birth to a male child,

though dowry trivialized quite often have the potential to

seriously impair the self esteem of a woman and has therefore

been rightly addressed. Economic violence such as not

providing food, shelter, clothes and medicines, particularly to

those women who are not economically independent has for

the first time been statutorily recognized as an act of violence."

5. Section 12 of the Act entitles an aggrieved person, or a

Protection Officer, or any other person acting on behalf of the

aggrieved person to apply to the Magistrate for grant of one or

more reliefs under the Act. Section 18 of the Act enumerates

the orders which the Magistrate can pass in favour of the

aggrieved person. These orders include order prohibiting the

respondent from (a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic

violence; (c) entering the place of employment, or school in the

case of the child, of the aggrieved person; (d) attempting to

communicate with the aggrieved person, (e) alienating any

assets or operating bank accounts and bank lockers used or

enjoyed by both the parties, or singly by the respondent and (f)

causing violence to the dependants or other relatives of the

aggrieved person. The list of protection orders mentioned in

Section 18 of the Act is not exhaustive and it is open to the

Magistrate to pass any other appropriate order in consonance

with the objective of the Act. Section 19 of the Act confers

power on the Magistrate to pass a Residence Order on being

satisfied that domestic violence had taken place. Such order

may restrain the respondent from dispossessing the aggrieved

person or disturbing her possession from the shared

household, restrain him or any of his relatives from entering

any portion of the shared household where the aggrieved

person resides, restrain him from alienating or disposing of the

shared household or creating encumbrances on it, restrain

him from renouncing his rights in the shared household, and

may also direct the respondent to remove himself from the

shared household or to secure same level of alternate

accommodation for the aggrieved person as was enjoyed by her

in the shared household or to pay rent for the same. Under

Section 20, the Magistrate while disposing of an application

under Section 12 of the Act can direct the respondent to pay

monetary relief to the aggrieved person in respect of loss of

earnings, medical expenses, loss caused due to destruction,

damage or removal of any property from her control and

maintenance of the aggrieved person as well as her children.

He can also order a lump sum payment or monthly payment of

the maintenance. Under Section 21 of the Act, the Magistrate

may grant temporary custody of the children to the aggrieved

person and may deny visit of the respondent to the children of

the aggrieved person. Under Section 22, the Magistrate can

direct payment of compensation and damages for the injuries,

including mental torture and emotional distress. Under

Section 23, the Magistrate is competent to pass such interim

order as he deems fit in the facts and circumstances of the

case. It would thus be seen that the orders which the

Magistrate can pass under various provisions of the Act are

essentially civil in nature.

6. The Act by itself does not make any act, omission or

conduct constituting violence, punishable with any

imprisonment, fine or other penalty. There can be no

prosecution of a person under the provisions of this Act, for

committing acts of domestic violence, as defined in Section 3

of the Act. No one can be punished under the Act merely

because he subjects a woman to violence or harasses, harms

or injures her or subjects her to any abuse whether physical,

sexual, verbal, emotional or economic. No one can be

punished under the provisions of the Act on account of his

depriving a woman of her right to reside in the shared

household.

7. Section 31 of the Act provides for punishment only if a

person commits breach of protection order passed under

Section 18 or an order of interim protection passed under

Section 23 of the Act. Thus, commission of acts of domestic

violence by themselves do not constitute any offence

punishable under the Act and it is only the breach of the order

passed by the Magistrate either under Section 18 or under

Section 23 of the Act which has been made punishable under

Section 31 of the Act. No criminal liability is thus incurred by

a person under this Act merely on account of his indulging

into acts of domestic violence or depriving a woman from use

of the shared household. It is only the breach of the orders

passed under Sections 18 and 23 of the Act, which has been

made punishable.

8. Article 20(1) of the Constitution provides that no person

shall be convicted of any offence except for violation of law in

force at the time of commission of the act charged as an

offence. No provision of the Act makes any act committed

prior to coming into force of the Act punishable with any

imprisonment, fine or penalty. Since the order, as envisaged

in Section 18 or Section 23, as the case may be, can be passed

only after coming into force of the Act, it cannot be said that if

a person is convicted under Section 31 of the Act, he is

convicted for violation of a law which was not in force at the

time of commission of the act charged as an offence. It has to

be appreciated that the act charged as an offence under

Section 31 of the Act is not the act of domestic violence

committed by a person. It is the breach of the protection order

passed under Section 18 or Section 23 of the Act which has

been made punishable under the Act. Therefore, it cannot be

said that Article 20(1) of the Constitution is contravened if a

person is convicted under Section 31 or 33 of the Act.

9. The Statement of Objects and Reasons for enacting

Prevention of Women from Domestic Violence Act, 2005 would

show that since subjecting of a woman to cruelty by her

husband or his relative was only a criminal offence and civil

law did not address the phenomenon of domestic violence in

its entirety, the Parliament proposed to enact a law keeping in

view the rights guaranteed under Articles 14,15 and 21 of the

Constitution of India so as to provide for a remedy under the

civil law, in order to protect the women from being victims of

domestic violence and to prevent the occurrence of domestic

violence. Thus, the Act provides civil remedies to the victims

so as to give them relief against domestic violence and the

punishment can be given only if there is breach of order

passed under the Act.

10. In "Rajathi & Another Vs. State", 2002 (108)

Company Cases 22, Tamil Nadu Protection of Interest of

Depositors in Financial Establishments Act, 1997 came into

force on 7th August, 1997. The Act provided for punishment in

case of default by a Financial Establishment, in return of the

deposits or interest on the deposit. The petitioners before the

High Court were prosecuted for committing default in return of

deposits taken prior to coming into force of the Act. The

prosecution was challenged on the ground that a penal law

cannot be given retrospective effect and, therefore, the Tamil

Nadu Protection of Interest of Depositors in Financial

Establishments Act, 1997 was not applicable to the case of the

petitioner. Noticing that deposit of a particular amount with a

financial institution was not an offence and the criminal

liability was attracted only if the deposited amount was not

returned on the maturity date and if interest was not paid on

due date, the High Court held that since the petitioners had

failed to make repayment after coming into force of the Act,

they were liable to be prosecuted under the Act. The High

Court while dismissing their petition emphasized that the

cause of action for the commission of the offence would

commence only when the default was made on non-payment of

the matured deposit and non-payment of interest towards the

deposits. It was held that the period of deposit had no

relevance to consider the applicability of the Act. In the

present case also, since the acts of violence by themselves do

not constitute an offence punishable under the Act and it is

only the breach of the order passed by the Magistrate under

Section 18 or Section 23 of the Act which has been made

punishable, the dates on which the acts of domestic violence

were committed has absolutely no bearing on the matter.

Similarly, it is absolutely immaterial whether the „aggrieved

person‟ was living with the respondent, on the date of the

commission of the offence, or not. Once the Magistrate is

satisfied that the petitioner is an „aggrieved person‟ within the

meaning of Section 2(a) of the Act, and that domestic violence

had taken place or is likely to take place, he is competent to

pass a protection order in terms of Section 18 of an interim

order in terms of Section 23 of the Act. Use of the words „is or

has been in a domestic relationship‟ leaves no doubt that it is

not necessary that the aggrieved person needs to be living with

the respondent on the date of coming into force of the Act or a

date subsequent thereto, before she can invoke jurisdiction of

the Magistrate under the provisions of the Act. Section 2(f) of

the Act, which defines „domestic relationship‟ reads as under:-

""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;"

11. The use of words „should live or have at any point of time

lived together‟ in the Section is an indicator of the legislative

intent and makes it quite explicit that a person will be deemed

to be in domestic relationship even if he had lived together

with the respondent at a point of time prior to coming into

force of the Act. Had that not been the legislative intent, the

words „or have at any point of time lived‟ would not have found

place in Section 2(f) of the Act and it would have been

sufficient to say that domestic relationship means a

relationship between two persons who live together in a shared

household.

12. Section 2(a) of the Act defines „aggrieved person‟ as

under:-

""aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;"

13. If the legislative intent was to keep a person, not living

with the respondent at the time of coming into force of the Act,

out of the purview of the Act, there was no necessity of using

the words „or has been‟ in Section 2(a) of the Act and it would

have been sufficient to say that aggrieved person means any

woman who is in a domestic relationship with the respondent.

14. In "S. Prithviraj Kukkillaya Vs. Mathew Koshy &

Another", 1991 Cri.L.J. 1771, which was a case of prosecution

under Section 138 of Negotiable Instruments Act, the cheque

in question was drawn before coming into force of the Act. It

was contended before the Division Bench of the High Court

that in view of the provisions contained in Article 20 (1) of the

Constitution, prosecution of the respondent No.1 was not

permissible in respect of the cheque drawn prior to coming

into force of Section138 of the Act. Holding that the offence is

committed only if drawer of the cheque fails to make payment

within 15 days of the receipt of the notice, it was held that

dishonour of cheque by itself does not give rise to the cause of

action, because payment can be made on receipt of notice of

demand and in that event, there is no offence and that it is

only the failure to pay the amount within 15 days of receipt of

notice, which alone constitute cause of action, it was held that

since the omission to pay the amount occurred after coming

into force of Section 138, the bar contained in Article 20(1) of

the Constitution did not apply. In the present case also, there

would be no cause of action for initiating proceedings under

Section 31 of the Act unless there was a breach of the order

passed under Sections 18 or 23 of the Act, as the case may be.

It, therefore, cannot be said that entertaining a petition in

respect of acts of domestic violence, committed prior to coming

into force of the Act, or at the behest of a person who is not

living in the shared household at the time of coming into force

of the Act, would amount to breach of Article 20 (1) of the

Constitution.

In Crl.P.No.3714/2007 decided on 2nd August, 2007,

titled "U.U.Thimmanna & Others Vs. Smt.U.U.Sandhya &

Others", Andhra Pradesh High Court noticing that domestic

incidents did not disclose acts of violence reported by the

complainant after 26th October, 2006, when the Act came into

force, quashed the proceedings under the Protection of Women

from Domestic Violence Act, 2005.

In "Shyamlal & Others Vs. Kantabai", II (2009) DMC

787, it has been recorded in para 4 of the judgment that the

petitioners were prosecuted by the respondent for an offence

punishable under Section 23 of the Protection of Women from

Domestic Violence Act, 2005. It was contended before the

High Court that the petitioners cannot be prosecuted for any

offence which took place prior to 26th October, 2006. The

proceedings under the Act were quashed holding that the

provisions of the Act had not been given retrospective effect.

Section 23 of the Act „as noted earlier by me‟ does not provide

for punishment of any person on account of committing acts of

domestic violence. It only empowers the Magistrate to pass

such interim order as he may deem just and proper. It is only

the breach of the order, if any, passed by the Magistrate,

which has been made punishable under Section 31 of the Act.

Since the order under Section 18 or Section 23 of the Act, as

the case may be, can be passed only after coming into force of

the Act, therefore, it cannot be said that there would be

violation of the Constitutional protection under Article 20(1) of

the Constitution, by entertaining petitions in respect of acts of

domestic violence committed prior to coming into force of the

Act.

In Crl.M.(M).No.47145/2007 decided on November, 26,

2008 titled "Smt.Gita Vs. Smt.Raj Bala & Others", Punjab

High Court recorded that the petitioners were summoned for

offences under Sections 12 and 19 to 23 of the Act and the

Magistrate had summoned the petitioners on19th July, 2006,

though the Act came into force on 26th October, 2006. It was

held that since the petitioner was alleged to have committed

the offence under various Sections of the Act, which were not

in force on the date of such acts, the charge framed against

him would not be maintainable in view of the provisions

contained in Article 20 (1) of the Constitution. In the present

case, neither any order against the respondent was passed

before coming into force of the Act on 26 th October, 2006 nor

has he been summoned for committing any offence under the

provisions of the Act. Therefore, this judgment has no

applicability.

15. On the other hand in "Dennison Paulraj & Others Vs.

Maya Winola", II (2009) DMC 252, as judgment relied upon

by the learned counsel for the petitioner, Madras High Court

clearly held that since penal consequences under Section 31 of

the Act are attracted only if a protection order is passed and

the respondent violates that order, the penal consequences

mandate from the date of the protection order and not from the

date of acts of domestic violence and, therefore, the court was

competent to take cognizance of the acts of domestic violence

committed even prior to the Act came into force, and pass

necessary protection orders. It was held that the Act could be

applied retrospectively to take cognizance of the acts of

violence, alleged to have been committed even prior to coming

into force of the Act. In a rather recent decision Crl.W.P.

2102/2008 decided on 18th July, 2009, Bombay High Court

noted that the penal provision contained in Section 31 of the

Act will come into picture only if the respondent commits

breach of protection order or interim protection order.

16. Since Andhra Pradesh High Court and Madhya

Pradesh High Court have neither considered that the Act does

not make any act of domestic violence or any other act

punishable and it is only the contravention of an order passed

under the provisions of the Act, which has been made

punishable under Section 31 of Act, nor have they taken note

of the fact that proceedings under the Act are meant to provide

civil remedy to the aggrieved person as noted in the Statement

of Objects and Reasons and, it is only the breach of the orders

passed in those proceedings which has been made punishable

under the Act, I am unable to take the view taken by these

High Courts.

17. If the court takes the interpretation that a petition

under the provisions of the Protection of Women from

Domestic Violence Act, 2005 cannot be filed by a woman

unless she was living with the respondent, in the shared

household, on the date this Act came into force, or a date

subsequent thereto or that a petition under the provisions of

the Act cannot be filed by a person who has been subjected to

domestic violence before coming into force of the Act, that

would amount to giving a discriminatory treatment to the

woman who despite living with the respondent and having a

domestic relationship with him before coming into force of the

Act, is later compelled to live separately from him on account

of the acts attributable to the respondent and to the woman

who was, prior to coming into force of the Act, subjected to

domestic violence, viz a viz, the women who are living with the

respondent or women in respect of whom acts of domestic

violence are committed after coming into force of the act.

There can be no reasonable classification based upon an

intelligible differentia between the women who are living with

the respondent on the date of coming into force of the Act or

who are subjected to domestic violence after coming into force

of the Act on one hand and the women who were living with

the respondent or who were subjected to domestic violence

prior to coming into force of the Act, on the other hand.

Therefore, any discriminatory treatment to women in either

category would be violative of their constitutional right

guaranteed under Article 14 of the Constitution. The court

needs to eschew from taking an interpretation which would not

only be violative of the rights conferred upon the citizens under

Article 14 of the Constitution but would also result in denying

the benefit of the beneficial provisions of the Act to the women

who have been subjected to domestic violence and are

compelled to live separately from the respondent on account of

his own acts of omission or commission. Such an

interpretation would at least partly defeat the legislative intent

behind enactment of the Protection of Women from Domestic

Violence Act, 2005, which was to provide an efficient and

expeditious civil remedy to them, in order either to protect

them against occurrence of domestic violence, or to give them

compensation and other suitable reliefs, in respect of the

violence to which they have been subjected.

18. For the reasons given in the preceding paragraphs, I am

of the considered view that a petition under the provisions of

the Protection of Women from Domestic Violence Act, 2005 is

maintainable even if the acts of domestic violence have been

committed prior to coming into force of the Act or despite her

having in the past lived together with the respondent a shared

household woman is no more living with him, at the time of

coming into force of the Act. It is be open for the Magistrate to

pass appropriate order under the provisions of Sections 12, 18,

19, 20, 21, 22 or 23 of the Act on a petition filed by such a

woman and the person who commits breach of the protection

order or interim protection order passed on an application filed

by such a woman will be liable to punishment under Section

31 of the Act.

18. The order passed by the learned Additional Sessions

Judge is set aside. He is directed to consider the appeal filed

by the petitioner on merits and decide the same within 15 days

of the receipt of a copy of this order. The Registry is directed

to send a copy of this order to the concerned court for

information and compliance.

Crl.M.C.3959/2009 stands disposed of.

(V.K.JAIN) JUDGE MARCH 22, 2010 'sn'/Ag/RS/