Shivakumar S/O Iranna Kambar vs Parvati W/O Shivakumar Kambar
2021 Latest Caselaw 5046 Kant

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        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH
                       TH
                                                       R
   DATED THIS THE 30        DAY OF NOVEMBER 2021

                      BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

              CRL.RP.No.200004/2015

BETWEEN:

1. SHIVAKUMAR S/O IRANNA KAMBAR
   AGE: 36 YEARS, OCC: PVT. WORK

2. IRANNA S/O BASAPPA KAMBAR
   AGE: 70 YEARS, OCC: AGRICULTURE

3. BASAVARAJ S/O IRANNA KABAR
   AGE: 43 YEARS, OCC: DRIVER

4. RAMACHANDRA @ RAMANNA
   S/O IRANNA KAMBAR
   AGE: 21 YEARS, OCC: B.COM STUDENT
   ALL ARE R/O YELSANGI VILLAGE
   TQ.ALAND, DIST: GULBARGA
                                       ... PETITIONERS

(BY SRI SHARANABASAPPA M.PATIL, ADVOCATE)

AND:

PARVATI W/O SHIVAKUMAR KAMBAR
AGE: 31 YEARS, OCC: ASHA WORKER
R/O YELSANGI TQ.ALAND
DIST. GULBARGA NOW RESIDING AT
C/O HANAMANTH BHIMANNA KAMBAR
KUMBAR GALLI, INDI, TQ.INDI
DIST. BIJAPUR
                                       ... RESPONDENT
(BY SRI GANESH NAIK, ADVOCATE)
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     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CRIMINAL PROCEDURE CODE,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF THE
COURT OF 1ST ADDL. SESSIONS JUDGE AT GULBARGA PASSED
IN CRL.APPEAL NO.22/2014 DATED 02.12.2014 AND ALSO SET
ASIDE THE ORDER OF THE PRL. CIVIL JUDGE AND JMFC AT
ALAND PASSED IN CRL.MISC.NO. 138/2013 DATED 27.05.2014.

      THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:

                         ORDER

This revision petition is filed under sections 397 read

with section 401 of Cr.P.C., praying this Court to set aside

the judgment and order of the trial Court and also order of

the I Additional Sessions Judge at Kalaburagi granting

Rs.3,000/-per month to the petitioner as maintenance and

medical expenses and also ordered to provide separate

residential house to the petitioner at Yelsangi village for

her residence, out of three houses, which is situated near

Gram Panchayat, Yelsangi as per Domestic Incident Report

and also directed to pay arrears of maintenance within one

month and further direction was given to the concerned

jurisdictional police to carry out the order of the Court.

2. The petitioners in this petition have contended

that the respondent-wife has filed Criminal Misc.

No.15/2011 against the petitioner No.1 before the JMFC

Court at Indi, and also Criminal Misc. No. 11/2010 to

produce the custody of the children and petitioner No.1

was living separately and the same has not been

considered by both the courts and ordered to pay

maintenance of Rs.3,000/- is illegal and the same is

required to be set aside. The petitioner No.2 is the father-

in-law and petitioner No.3 is the elder brother-in-law and

petitioner No.4 is the younger brother-in-law of the

respondent and the Court has not looked into the facts of

the case. It is also contended that petition is barred by

limitation under section 468 of Cr.P.C. Hence, it requires

interference by this Court.

3. The learned counsel for the petitioners in

support of his argument, relied upon the judgment of the

Hon'ble Apex Court in the case of Inderjit Singh Grewal

vs. State of Punjab and another reported in 2012

Crl.L.J. 309 wherein in similar set of facts of the case,

when the application is filed under section 12 of Protection

of Women from Domestic Violence Act, 2005 (hereinafter

referred as the 'DV Act' for short), the Court held that

petition is barred by limitation. The learned counsel

brought to the notice of this Court, paragraph Nos.24 and

25 wherein the Hon'ble Apex Court has observed that in

view of provisions of section 468 of Cr.P.C., 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 read with

Rule 15(6) of the Protection of Women from Domestic

Violence Rules, 2006 (hereinafter referred as the 'DV

Rules') which make the provisions of Cr.P.C., applicable

and stand fortified by the judgments of this Court in Japani

Sahoo vs. Chandra Sekhar Mohanty, AIR 2007 SC 2762;

and Noida Entrepreneurs Association vs. Noida and

others(2011) 6 SCC 508. It is further observed that

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 in generally does not

interfere with the same. However, in the backdrop of the

factual matrix of the case permitting the court to proceed

with the complaint would be travesty of justice and

warrants quashing of the same.

4. The learned counsel also relied upon the

unreported judgment of this Court in J.Srinivas vs

G.Dhanalakshmi disposed of on 05.04.2013 in Criminal

Petition No.2419/2009, wherein also this Court held

that the complaint ought to have been filed within a period

of one year in terms of section 468 of Cr.P.C., and

admittedly, the case having been registered in the year

2009 in respect of the offence alleged of the year 2004,

the complaint was hopelessly barred by time and could not

have been entertained.

5. Per contra, learned counsel for the respondent

would submit that section 468 of Cr.P.C., is not applicable

to the facts of case on hand. The learned counsel in

support of his argument, he relied upon the order of this

court in the case of Sri Puttaraju vs. Smt.Shivakumari

in Criminal Revision Petition No.730/2019 disposed of

on 01.04.2021. The learned counsel brought to the notice

of this Court that this Court has also taken note of the

judgment of Inderjit Singh Grewal's case and also

discussed the case in Krishna Bhattacharjee vs. Sarathi

Choudhury and Others reported in (2016)2 SCC 705

and also discussed section 28 of the DV Act and

distinguished non applicability of section 468 of Cr.P.C., by

coming to the conclusion that sections 20 and 21 of the DV

Act do not treat the domestic violence as offence and also

relied upon the judgment of the Hon'ble Apex Court in

Krishna Bhattacharjee's case referred supra.

Distinguishing judgment in Inderjit Singh Grewal's case,

the Hon'ble Apex Court in subsequent judgment in

Krishna Bhattacharjee's case referred to supra held that

the observation regarding domestic relationship in

Inderjit Singh Grewal's case referred supra were based

on the facts and circumstances of the said case and they

are not of general application. This Court also referred

paragraph No.32 of the judgment in Krishna

Bhattacharjee's case referred supra, the Hon'ble Apex

Court held that the definition of the aggrieved person and

domestic relationship remains and the act of domestic

violence attracts continuing offences therefore, does not

get time barred. Hence, the contention with regard to

limitation is concerned is not entertained.

6. The learned counsel also relied upon the

judgment in the case of Krishna Bhattacharjee's case

referred supra wherein the Hon'ble Apex Court discussed

in detail in paragraph No.31 regarding application of

section 468 of Cr.P.C., and also sections 28 and 32 of DV

Act read with Rule 15(6) of the Rules, and it is also

observed that "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 custodians. For the purpose of 2005 Act,

she can submit an application to the Protection Officer for

one or more of the reliefs under the 2005 Act. It is

observed that 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 to the Protection

Officer for stridhan. Regard being had to the 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 High Court had

fallen into a grave error by dismissing the application being

barred by limitation.

7. Having heard the learned counsel for the

petitioners and also the learned counsel appearing for the

respondent, the points that would arise for the

consideration of this Court are:

1. Whether the wife can invoke Section 12 of the D.V. Act within the time prescribed under Section 468 of Cr.P.C?

           2. Whether    the      Courts     below        have
             committed      an       error   in   awarding
             maintenance against the father-in-law
             and the brother-in-laws?


           3. What order?


Point No.1:

8. The argument of the learned counsel for the

petitioners is that the petition is not filed within one year

as envisaged under Section 468 of Cr.P.C. The counsel

would submit that the respondent was residing separately

from 2010 and the petition was filed in the year 2013, that

is, almost after three years of her separation from the

husband and hence, the very filing of the petition seeking

maintenance as well as other reliefs under Section 12 of

the DV Act is not maintainable.

9. In support of his argument, he relied upon the

decision of the Apex Court in the case of Inderjit Singh

Grewal and unreported judgment of this Court in the case

of J.Srinivas. No doubt, the Apex Court in the case of

Inderjit Singh Grewal held that the petition ought to

have been filed within one year from the date of the

incident as per Section 468 of Cr.P.C. But this judgment

has been distinguished in the case of Krishna

Bhatacharjee, wherein the Apex Court held that the

complainant was residing separately and judicial

separation order was also passed in 2008. Wife had filed a

suit and case registered under Section 498A of IPC in the

year 2006 and the husband had obtained a decree of

judicial separation in the year 2008 and hence, the Trial

Court, Sessions Court and the High Court comes to the

conclusion that the proceedings under the 2005 Act was

barred by limitation. That apart, it has also in a way

expressed the view that the proceedings under 2005 Act

was not maintainable. Hence, the respondent approached

the Apex Court wherein the Apex Court distinguished the

judgment of Inderjit Singh Grewal's case and held that

the Trial Court, Sessions Court and the High Court have

committed an error in deciding the case. And it is held that

an application was filed before the Protection Officer on

22.05.2010 and the same was forwarded on 01.06.2010.

The application was filed in 2010 itself and held that the

application was not barred by limitation and the Courts

below have fallen into a grave error by dismissing the

application being barred by limitation. And further

observed that in the 2005 Act, the definition of "aggrieved

person" clearly postulates about the status of any woman

who has been subjected to domestic violence as defined

under Section 3 of the said Act. "Economic abuse" as it

has been defined in section 3(iv) of the said Act has a

large canvass. Section 12 provides for procedure for

obtaining orders of reliefs. It has been held in Inderjit

Singh Grewal's case that section 498 of Cr.P.C applies to

the said case under the 2005 Act as envisaged under

Sections 28 and 32 of the 2005 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. Hence, it is clear

that the Court cannot invoke Section 468 of Cr.P.C in a

case of petition filed under Section 12 of the DV Act. This

Court also in the unreported judgment in Criminal Revision

Petition No.730/2019 distinguished the judgment of

Inderjit Singh Grewal's case and also considered the

Krishna Bhattacharjee's case and held that the

observations regarding domestic relationship in Inderjit

Singh Grewal's case were based on the facts and

circumstances of the said case and comes to the

conclusion that in view of the judgment of Krishna

Bhattacharjee's case, the definition of the 'aggrieved

person' and 'domestic relationship' remains and the Act of

domestic violence attracts the term 'continuing offence'

does not get time barred.

10. Having considered the principles laid down in

the judgment of Krishna Bhattacharjee's case and also

in the unreported judgment of this Court in

Crl.R.P.730/2019, the very contention of the petitioners

counsel that the petition is barred by limitation cannot be

accepted. Hence, I answer Point No.1 as Negative.

Point No.2

11. The other contention of the petitioners counsel

before this Court that the petitioners are the father-in-law

and bother-in-laws of the respondent. He would contend

that the Trial Court ought not to have granted the relief

against the father-in-law and brother-in-laws and failed to

take note of the fact that they are living separately. But

the Trial Court while considering the issue with regard to

whether they are living together or not, relied upon the

Domestic Incident Report submitted by the Child

Development Protection Officer (CDPO). In paragraph 18

of the order wherein report is very clear that all of them

are residing together and family is having 9 acres of land

and all of them will get 3 acres each and no partition was

taken place. The counsel for the petitioners brought to the

notice of this Court paragraph 4 of the petition filed under

Section 12 of the DV Act wherein he claims that

respondent No.1 was allotted one open site at village

Yelsangi and the mother and sister of respondent No.1

forced the aggrieved person to bring money and

accordingly she brought the money of Rs.80,000/-

borrowed by her brother and out of that money, two

rooms were constructed in the open space allotted to the

respondent No.1 and in which house, aggrieved person

and her family were residing, while respondent Nos.2 to 4

and his mother and sister were separately residing in the

ancestral house. Having taken note of the said averment,

it is clear that though there is an admission regarding they

are living separately but there is no any admission with

regard that they are not enjoying the joint family

properties and report of this domestic violence, Protection

Officer has not been disputed with regard to that all of

them are enjoying the joint family property and there is no

partition. When such being the facts and circumstances,

the very contention of the petitioners that the father-in-

law and brother-in-laws are not bound by paying the

maintenance amount and not bound to provide separate

residence as ordered by the Trial Court cannot be

accepted. Under Section 2(q) of the DV Act, the word

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 provided that an aggrieved wife or

female living in a relationship in the nature of a marriage

may also file a complaint against a relative of the husband

or the male partner. Having taken note of this, the very

contention of the petitioners herein cannot be accepted.

The counsel appearing for the petitioners would submit

that the suit for partition is also pending but the said suit

has not been adjudicated and decree has been passed for

judicial separation cannot be a ground to reject the

petition. When such being the case, when the father-in-

law and also the brother-in-laws are enjoying the joint

family property, they cannot contend that they are not

bound by obeying the order passed by the Trial Court

which was filed under Section 12 of the DV Act. Hence, I

answer Point No.2 as negative.

Point No.3

12. In view of the discussions made above, I pass

the following

Order

The petition is dismissed.

Office is directed to return the LCR to the Trial

Court.

Sd/-

JUDGE

VNR/SAN