Patna High Court
Madhuri Kumari vs The State Of Bihar on 30 January, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.1544 of 2019
Arising Out of PS. Case No.-21 Year-2018 Thana- DOMESTIC VIOLENACE District- Patna
======================================================
Madhuri Kumari, Wife of Sri Anurag @ Anurag Prasad Singh, Resident of
Mohallah - 5-B, Noorani Bagh Colony, P.S. - Alamganj, District - Patna
(Bihar).
... ... Petitioner
Versus
1. The State Of Bihar
2. Sri Anurag @ Anurag Prasad Singh Son of Late Janardan Prasad Singh
Resident of Mohallah - Mazar Gali, Patel Path, Behind Ram Vilash
Apartment, P.S. - Shastri Nagar, District - Patna (Bihar), Presently Residing
at Mohallah - Cavery Hill Road, Near P.T.C. Chowk, P.S. and District -
Hazaribagh (Jharkhand).
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner/s : Mr.Dhanendra Chaubey, Advocate
For the State : Mr. Md. Fahimuddin, APP
For the O.P.No.2 : Mr. Vijay Kumar Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date : 30-01-2024
Heard learned counsel for the petitioner, the opposite
party no.2 and the State.
2. Petitioner in the present case is seeking setting
aside of the judgment dated 21.10.2019 passed by learned
Additional Sessions Judge, XIV, Patna in Criminal Appeal
No.37 of 2019 by which the learned Sessions Judge has been
pleased to allow the appeal and set aside the order dated
08.01.2019
passed by learned Additional Chief Judicial
Magistrate-cum-Sub Judge- IVth, Patna in Domestic Violence
Case No.21 of 2018.
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
Brief facts of the case
3. It appears from the records that the petitioner in the
present case filed a Domestic Violence Case No.21 of 2018
against her husband who is opposite party no.2 in the present
revision application. It is the case of the petitioner that she was
married with opposite party no.2 on 30.01.2013 in accordance
with the Hindu Rites and Customs at Noorani Bagh, Alamganj,
Patna. Her parents had given Rs.5 lacs by cheque in the name of
the petitioner and had spent a sum of Rs.6 lacs in the said
marriage. They had also given some gold ornaments and
household utensils and other items of daily use for a prosperous
martial life of the petitioner.
4. It is alleged that when the petitioner went to her
matrimonial house, her mother-in-law kept the entire gold
ornaments with her and the opposite party (husband) on
provocation of his mother started asking her to bring a Scorpio
jeep from her parents. She alleged abuse and torture in the hands
of the O.P. She claimed that being an educated lady, she was
facing all ill-behaviours under a hope that the things would
become normal over the period. It is alleged that the O.P. in the
name of visiting her maike, took her on his bike and left her in
the way and returned back. The petitioner alleges that when
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
these facts were brought to the notice of her father and brother,
they went to the house of the husband where they requested
him, his mother and brother to keep the petitioner with honour
and dignity but they abused her parents and ousted them in a
shameful manner and demand of Scorpio jeep was reiterated.
The petitioner has filed a complaint case no.1670(C)/2013
against the O.P., his mother and other family members who had
been allegedly involved in committing mental and physical
torture upon the petitioner. In the said case, cognizance has been
taken by learned S.D.J.M., Patna and during hearing of the bail
petition in the High Court, the O.P. has been directed to pay a
sum of Rs.2,000/- per month for maintenance of complainant-
petitioner. She submits that this meager amount is not sufficient
to maintain her.
5. It is further stated that the O.P. has also filed a
Complaint Case No.1334(C)/2013 before the court of learned
C.J.M., Patna against the father and the brother of the
complainant with all sorts of false and flimsy allegations. He
filed a Matrimonial Case No.355 of 2013 against the
complainant under Section 9 of the Hindu Marriage Act, but
subsequently abandoned the said case as a result whereof the
application has been dismissed in default.
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6. It is stated that the O.P. has filed a Matrimonial
Case No.1271 of 2016 seeking dissolution of the marriage by
decree of divorce against the complainant and the same is
pending before the learned Principal Judge, Family Court,
Patna. The petitioner has filed an application seeking interim
order directing the O.P. to pay Rs.2,000/- more per month to the
complainant besides cost of litigation. Accordingly, the learned
Principal Judge, Family Court allowed the application, issued a
direction as prayed for on 30.11.2017 but the O.P. has neither
paid the amount of cost of litigation nor has been paying
Rs.2,000/- per month.
7. It is stated that the mother and brother of the O.P.
are living at Hazaribagh. The brother runs a readymade garment
shop and his mother has been doing job on compassionate
ground after death of her husband. The O.P. is a practicing
lawyer and resides at Hazaribagh. He has two bighas of land at
village and other properties. The O.P. has four storied building
at Mohalla-Sheikhpura, Shastri Nagar, Patna standing on 1 ½
kathas of land and the complainant was residing in the said
house in one of the flats after her marriage with the O.P. This is
under lock for the present and the remaining flats are given on
rent fetching monthly rent of about Rs.50,000/- on account of it.
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The complainant claimed that she has no source of independent
income and the O.P. is residing at Hazaribagh having good
earning from advocacy.
8. On the strength of the aforesaid statements, the
complainant-petitioner prayed for a protection order in terms of
Section 17 of the Domestic Violence Act, 2005 (hereinafter
referred to as the 'Act of 2005').
Interim order dated 01.08.2019
9. The learned Additional Chief Judicial Magistrate-
IV, Patna took up the application filed by the complainant-
petitioner on 15.03.2018 for consideration. The learned court
went through the pleadings available on the record which
included the objection petition filed on behalf of the O.P. on
08.10.2018. One of the objections raised on behalf of the O.P. is
that the petition seeking protection order is liable to be
dismissed on the ground of limitation. The O.P. submitted that
the petition seeking protection order has been filed after lapse of
four years and eleven months of the alleged incident and
separation. According to him, Section 468 of the Code of
Criminal Procedure (hereinafter referred to as the Cr.P.C.)
provides for period of limitation of one year. It was pleaded that
in the present case, there was no domestic relationship between
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the parties since 15.04.2013 and alleging cruelty and desertion
on the part of the petitioner, O.P. had filed a divorce case before
the learned Principal Judge, Family Court, Patna. The O.P. took
a plea that the petition under the Act of 2005 is nothing but a
counter blast of Complaint Case No. 1334C/2013 and Divorce
Case No. 1471/2016. Reliance was placed on the judgment of
the Hon'ble Supreme Court in the case of Indrajit Singh
Grewal Vs. The State of Punjab & Ors. reported in (2011) 12
SCC 588 to submit that the provisions of the Cr.P.C. would be
applicable and this case would be governed by Section 468 of
the Cr.P.C., hence, it is liable to be dismissed on the ground of
limitation.
10. The O.P. also relied upon a judgment of the
Hon'ble Supreme Court in the case of S.P. Batra & Anr. Vs.
Smt. Taruna Batra reported in AIR 2007 SC 1118 to submit
that the property at Patna in this case belongs to the mother-in-
law of the petitioner, hence, the petitioner cannot claim it her
house within the meaning of Section 2(s) of the Act of 2005.
11. Learned A.C.J.M.-IV having considered the
pleadings of the parties directed the O.P. to co-operate with
hearing and further directed to make arrangement for a room
with attached latrine, bathroom in matrimonial house as
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submitted by the learned lawyer for the petitioner, in the house
situated within the Shashtri Nagar Police Station. This order was
made subject to final order in the Domestic Violence Case.
Appeal against the order dated 08.01.2019
12. Being aggrieved by and dissatisfied with the order
dated 08.01.2019 passed by the learned A.C.J.M.-IV, Patna, the
husband who is O.P. No. 2 in the present application moved in
appeal provided under the statute. The appeal preferred by the
husband being Cr. Appeal No. 37 of 2019 has been heard and
disposed of vide order dated 21.10.2019 which is impugned
herein. The learned Appellate Court has been pleased to set
aside the order passed by the learned A.C.J.M.- IV, Patna on the
ground that domestic violence case would be hit by the
provisions of Section 468 Cr.P.C. The learned Appellate Court
has taken a view that since the complainant herself has stated
that she had been living at her naiyhar since 13.04.2013 and the
present petition has been filed after almost four years of the
incident, therefore, in view of the law laid down by the Hon'ble
Supreme Court in the case of Indrajit Singh Grewal (Supra),
the complaint would be barred by limitation. The learned court
has further held that because the complainant-petitioner is living
away from her husband/appellant since 13.04.2013, no domestic
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relationship between the complainant and her husband/appellant
would exist. Therefore, a view has been taken that the petition
under the Act of 2005 would not come within the purview of
Section 2(f) of the Act of 2005.
13. The learned Appellate Court has further opined
that because the property at Shashtri Nagar, Patna is an
exclusive property of the appellant's mother, it cannot be said to
be a shared house and no right to residence may be sought for in
the said case.
Submissions on behalf of the Petitioner
14. Mr. Dhanendra Chaubey, learned counsel for the
petitioner has assailed the impugned order on the grounds inter
alia that the learned Appellant Court has failed to consider the
definition of the word "domestic relationship" as defined under
Section 2(f) and "domestic violence" defined under Section 2(g)
of the Act of 2005. Learned counsel submits that in the
circumstances alleged by the complainant-petitioner giving rise
to the matrimonial discord between the parties, it cannot be held
that the complaint filed by the petitioner under the Act of 2005
would be hit by Section 2(f) and 2(s) of the Act of 2005. It is
further submitted that the learned Appellate Court has
committed a gross error in taking a view that Section 468
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Cr.P.C. would be applicable for passing of protection order in
the facts of the present case. It is submitted that the court has
wrongly construed the judgment of the Hon'ble Supreme Court
in the case of Indrajit Singh Grewal (supra). It is also
submitted that the ratio of the judgment rendered in the case of
S.P. Batra (supra) would lead to a conclusion that only after
adducing all the evidences by the parties, the court could have
taken a view that the petitioner had not lived in her mother-in-
law's house after her marriage and only in such circumstance,
the property standing in the mother's name would not be
covered within the meaning of the word "shared household" as
defined under Section 2(s) of the Act of 2005. It is submitted
that the impugned order passed by the learned Appellate Court
is liable to be set aside and no interference is required with the
order passed by the learned A.C.J.M.-IV, Court Patna at this
stage. After setting aside of the appellate court order, the learned
A.C.J.M.-IV, Patna may be directed to pass final order in the
Domestic Violence Case.
Submissions on behalf of Opposite Party
15. Mr. Vijay Kumar Sinha, learned counsel for the
O.P. has defended the impugned order. It is submitted that
learned appellate court has rightly held that the provisions of the
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
Cr.P.C. would be applicable in the cases under the Act of 2005.
Referring to the Section 28 of the Act of 2005, learned counsel
submits that sub-Section (1) of Section 28 specifically states
that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23
and the provisions under Section 31 shall be governed by the
provisions of Cr.P.C. Learned counsel has further relied upon a
judgment of learned Co-ordinate Bench of this Court in the case
of Santosh Kumar vs. The State of Bihar and Anr (Cr. Misc.
No. 41318 of 2016). It is submitted that in this case, the learned
Co-ordinate Bench of this Court has exercised it's power under
Section 482 Cr.P.C. and quashed the complaint case. Similar
view has been taken by the Hon'ble Karnataka High Court in
exercise of power under Section 482 Cr.P.C. It is, thus,
submitted that no infirmity or illegality may be found with the
impugned order.
Consideration
16. Having heard learned counsel for the parties and
on perusal of the records, this Court finds that basically three
issues have arisen for consideration in the present case which
may be enlisted as under:-
(i) Whether the O.P. No.2 is correct in
taking a plea that no domestic relationship
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existed between the complainant and her
husband for the reason that she had been living
away from her husband since 13.04.2013?
(ii) Whether the stand of the O.P. No.2 that
the house situated in Shashtri Nagar at Patna
being registered in the name of his mother and
the same being exclusive property of his mother
cannot be said to be a shared household and the
complainant cannot seek her right to residence
in the said house in the facts of the present
case?
(iii) Whether the complaint filed by the
petitioner seeking protection order would be hit
by Section 468 of Cr.P.C.?
17. In order to consider the aforesaid issues, this
Court would be required to first look into the scheme of the Act
of 2005. The words "domestic relationship", "domestic
violence" and "shared household" which have fallen for
consideration in the present case are defined as under:-
"(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,
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adoption or are family members living together as a
joint family;
(g) "domestic violence" has the same
meaning as assigned to it in section 3;
(s) "shared household" means a household
where the person aggrieved lives or at any stage has
lived in a domestic relationship either singly or along
with the respondent and includes such a household
whether owned or tenanted either jointly by the
aggrieved person and the respondent, or owned or
tenanted by either of them in respect of which either the
aggrieved person or the respondent or both jointly or
singly have any right, title, interest or equity and
includes such a household which may belong to the
joint family of which the respondent is a member,
irrespective of whether the respondent or the aggrieved
person has any right, title or interest in the shared
household"
18. Section 3 of the Act of 2005 contains the
definition of "domestic violence" and the same is being
reproduced hereunder for a ready reference:-
"3. Definition of domestic violence.-For the
purposes of this Act, any act, omission or commission
or 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 tends 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
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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 I.-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 or 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, house hold 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 house hold and
maintenance;
(b) disposal of household effects, any
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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."
19. On a bare reading of Clause (f) of Section 2 it
appears to this Court that where relationship between two
persons has existed at any point of time through a relationship in
the nature of marriage and they have lived together at any point
of time in a shared household, it will be covered within the
meaning of the word domestic relationship. The definition
nowhere suggests that to come within the purview of the
definition of the word "domestic relationship" both the persons
must continue to live together. In the facts of the present case
suffice it to say that the petitioner and the O.P. No. 2 having
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
married to each other and lived together at a point of time in a
shared household would be covered under the definition of
"domestic relationship".
20. The allegation in the present case is that of
commission of domestic violence. It is alleged that the O.P. had
been demanding dowry and due to non-fulfillment of the said
demand, he indulged in causing physical as well as mental
torture to the petitioner. On a careful reading of Section 3 of the
Act of 2005 coupled with the explanation, this Court would
have no iota of doubt that the nature of allegations made in the
complaint would be covered under Section 3 of the Act of 2005.
21. Under the scheme of the Act of 2005, Chapter IV
contains Section 12 to 29. Under Section 12(1), an aggrieved
person or a Protection Officer or any other person on behalf of
the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under the Act. By virtue
of proviso to sub-Section(1) to Section 12, before passing any
order on such application, the Magistrate shall take into
consideration any domestic incident report received by him
from the Protection Officer or the service provider. Under sub-
Section (2) of Section 12, the relief sought for under sub-
Section (1) may include a relief for issuance of an order for
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payment of compensation or damages without prejudice to the
right of such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic violence
committed by the respondent. Section 14 talks of counseling
between the parties. Section 17 which is important in the present
case provides for a right to reside in a shared house property.
Section 17 reads as under:-
"17. Right to reside in a shared household.-
(1) Notwithstanding anything contained in any other
law for the time being in force, every woman in a
domestic relationship shall have the right to reside in the
shared household, whether or not she has any right, title
or beneficial interest in the same."
22. According to Section 18, a Magistrate may, after
giving the aggrieved person and the respondent an opportunity
of being heard and on being prima-facie satisfied that domestic
violence has taken place or is likely to take place, pass a
protection order in favour of the aggrieved person and prohibit
the respondent from committing inter-alia any act of domestic
violence. Section '18' envisages the kind of orders which may
be passed by the Magistrate by way of protection order.
23. Section '19' provides that while disposing of an
application under sub-Section (1) of Section 12, the Magistrate
may, on being satisfied that domestic violence has taken place,
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pass a residence order as under:-
"19. Residence orders.--(1) While
disposing of an application under sub-section (1) of
section12, the Magistrate may, on being satisfied that
domestic violence has taken place, pass a residence
order--
(a) restraining the respondent from
dispossessing or in any other manner disturbing the
possession of the aggrieved person from the shared
household, whether or not the respondent has a legal or
equitable interest in the shared household;
(b) directing the respondent to remove
himself from the shared household;
(c) restraining the respondent or any of his
relatives from entering any portion of the shared
household in which the aggrieved person resides;
(d) restraining the respondent from
alienating or disposing off the shared household or
encumbering the same;
(e) restraining the respondent from
renouncing his rights in the shared household except
with the leave of the Magistrate; or
(f) directing the respondent to secure same
level of alternate accommodation for the aggrieved
person as enjoyed by her in the shared household or to
pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall
be passed against any person who is a woman.
(2) The Magistrate may impose any
additional conditions or pass any other direction which
he may deem reasonably necessary to protect or to
provide for the safety of the aggrieved person or any
child of such aggrieved person.
(3) The Magistrate may require from the
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respondent to execute a bond, with or without sureties,
for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be
deemed to be an order under Chapter VIII of the Code
of Criminal Procedure, 1973 (2 of 1974) and shall be
dealt with accordingly.
(5) While passing an order under sub-
section (1), sub-section (2) or sub-section (3), the court
may also pass an order directing the officer in charge of
the nearest police station to give protection to the
aggrieved person or to assist her or the person making
an application on her behalf in the implementation of
the order.
(6) While making an order under sub-
section (1), the Magistrate may impose on the
respondent obligations relating to the discharge of rent
and other payments, having regard to the financial needs
and resources of the parties.
(7) The Magistrate may direct the officer in-
charge of the police station in whose jurisdiction the
Magistrate has been approached to assist in the
implementation of the protection order.
(8) The Magistrate may direct the
respondent to return to the possession of the aggrieved
person her stridhan or any other property or valuable
security to which she is entitled to."
24. Section '20' talks of monetary reliefs which may
also be granted while disposing of an application under sub-
Section (1) of Section 12. Under this provision, the Magistrate
may direct the respondent to pay monetary relief to meet the
expenses incurred and losses suffered by the aggrieved person
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
and any child of the aggrieved person as a result of the domestic
violence and such relief may include, but not limited to.-
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or
removal of any property from the control of the aggrieved
person; and
(d) the maintenance for the aggrieved person as well
as her children, if any, including an order under or in addition to
an order of maintenance under section 125 of the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the
time being in force.
25. Section '21' talks of custody orders. Section 22
provides for compensation orders and Section 23 confers
powers upon the Magistrate to grant interim and ex parte orders.
Section 26 provides that any relief available under Sections 18,
19, 20, 21 and 22 may also be sought in any legal proceeding,
before a civil court, family court or a criminal court, affecting
the aggrieved person and the respondent whether such
proceeding was initiated before or after the commencement of
the Act. The jurisdiction of the Judicial Magistrate is provided
under Section 27 and according to this provision the court
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within whose jurisdiction the person aggrieved permanently or
temporarily resides or carries on business or is employed or the
respondent resides or carries on business or is employed or the
cause of action has arisen shall be the competent court to grant a
protection order under the Act and to try offences under the Act.
Therefore, grant of protection order is one thing and the trial for
an offence under the Act would be another thing.
26. Chapter 'V' contains miscellaneous provisions.
Section 31 falling under Chapter V deals with penalty for breach
of protection order by respondent. The said provision reads as
under:-
"31. Penalty for breach of protection order
by respondent.--(1) A breach of protection order, or of
an interim protection order, by the respondent shall be
an offence under this Act and shall be punishable with
imprisonment of either description for a term which
may extend to one year, or with fine which may extend
to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall
as far as practicable be tried by the Magistrate who had
passed the order, the breach of which has been alleged
to have been caused by the accused.
(3) While framing charges under sub-section
(1), the Magistrate may also frame charges under
section 498A of the Indian Penal Code (45 of 1860) or
any other provision of that Code or the Dowry
Prohibition Act, 1961 (28 of 1961), as the case may be,
if the facts disclose the commission of an offence under
those provisions."
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27. Section '32' specifically states that
notwithstanding anything contained in the Code of Criminal
Procedure, the offence under sub-Section (1) of Section 31 shall
be cognizable and non-bailable.
28. In the aforementioned background of the scheme
of the Act of 2005, this Court would look into the judgments of
the Hon'ble Supreme Court and that of the learned coordinate
Bench of this Court hereunder.
29. In the case of Indrajit Singh Grewal (Supra),
the facts of the case would reveal that the Hon'ble Supreme
Court was considering an issue as to whether a wife may file a
criminal complaint before the competent court to initiate
criminal proceedings against her husband alleging that he had
obtained decree of divorce by playing fraud upon the court. The
fact was that the appellant and respondent no.2 were married in
the year 1998 but because of the matrimonial discord and
differences between the parties they decided to go for a divorce
therefore HMA Case No. 168 of 2007 was filed under Section
13B of the Hindu Marriage Act, 1955 before the learned District
Judge, Ludhiana for dissolution of marriage by mutual consent.
The statements of the parties were recorded on 19.09.2007 and
thereafter the proceeding was adjourned for a period of six
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months. On expiry of the said period, the parties appeared
before the court and on second motion again their statements
were recorded and both of them affirmed that it was not possible
for them to live together and, therefore, the learned District
Judge, Ludhiana allowed the said petition and dissolved their
marriage.
30. In the aforementioned background, the respondent
no.2 filed a complaint before the Senior Superintendent of
Police, Ludhiana against the appellant on 04.05.2009 alleging
that the decree of divorce obtained by them was a sham
transaction and even after getting divorce, they were living
together as husband and wife. It was alleged that she had been
forced to leave the matrimonial house. A full-fledged inquiry
was conducted and it was found that both the parties had been
living separately after divorce so no case was made out.
Subsequently respondent no.2 filed a complaint under the Act of
2005 on 12.06.2009 in which the learned Magistrate issued
summons to the appellant on the same date. Aggrieved by the
said summoning, the appellant challenged the order of the
learned Magistrate under Section 482 Cr.P.C. for quashing the
complaint. In the meantime, the respondent no.2 also filed a
civil suit in the court of Civil Judge (Senior Division), Ludhiana
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
seeking declaration that the judgment and decree dated
20.03.2008 was null and void and it had been obtained by fraud.
An application under the Guardians and Wards Act was also
filed for custody and guardianship of the minor child.
Respondent no.2 filed an FIR also against the appellant.
31. The Hon'ble Supreme Court recorded in
paragraph '9' of it's judgment that the case is required to be
considered in the aforesaid factual background. The Hon'ble
Court found that the respondent no.2 was herself a party to the
alleged fraud committed by the appellant upon the Civil Court
in getting the decree of divorce as alleged by her in the
impugned complaint. Thus, it was observed that on her own
admission she herself is an abettor to the crime. The Hon'ble
Supreme Court thereafter examined the case law and referring
to the judgment in the case of Smt. Sureshta Devi , AIR 1992
SC 1304, which was again a case where the parties had taken
divorce by mutual consent held that the expression 'living
separately' connotes to our mind not living like husband and
wife. The Hon'ble Supreme Court observed that what seems to
be necessary is that they had no desire to perform marital
obligations and with that mental attitude they had been living
separately for a period of one year immediately preceding the
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
presentation of the petitioner. In the given factual background,
the Hon'ble Supreme Court opined as under:-
"....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 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..."
32. This Court has reproduced the facts of the case in
the case of Inderjit Singh Grewal (supra) and the opinion of
the Hon'ble Supreme Court which clearly suggests that the said
judgment has been rendered in its own facts and circumstances
of the case. That was a case where the parties had obtained a
decree of divorce with mutual consent. On facts, the present
case is quit different and distinguishable.
33. This Court is reminded of a judgment of the
Hon'ble Supreme Court in the case of Bharat Petroleum
Corporation vs. N.R. Vairamani and Anr. reported in (2004)
8 SCC 579 wherein the Hon'ble Supreme Court has observed
and put a word of caution saying that the judgment of the court
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
should not be applied like an Euclid's Theorem as a slight
change in the facts of the case would make a sea difference in
the opinion of the court.
34. In the present case, on facts, this Court finds that
the marriage between the parties had been solemnized in the
year 2013, there was a demand of dowry as alleged giving rise
to filing of a complaint case by the complainant. The O.P. had
filed a case for decree of divorce in the year 2016 and the case is
being contested by the complainant. In the given facts and
circumstances of the case, it cannot be said like the case of
Inderjit Singh Grewal (supra) that the parties had been living
separately after divorce or that the parties had no desire to
perform marital obligations.
35. The judgment in the case of S.P. Batra & Anr.
(supra) was rendered in a case where the husband had filed a
divorce petition against his wife and it was alleged that the
complaint case was filed as a counter blast to the divorce
petition. The admitted fact in the said case was that Smt. Taruna
Batra had shifted to her parent's residence because of the
dispute with her husband. She alleged that later on when she
tried to enter the house of the appellant no. 2, she found the
main entrance locked and hence, the suit was filed for
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
mandatory injunction to enable her to enter into the house. The
case of the appellants was that before any order could be passed
by the learned trial Judge on the suit filed by their daughter-in-
law, Smt. Taruna Batra along with her parents forcibly broke
open the locks of the house belonging to appellant no. 2, the
mother-in-law of Smt. Taruna Batra. The appellants alleged that
they had been terrorized by their daughter-in-law and for some
time they had to stay in their office.
36. In the said case, the mother-in-law had moved
against the order granted by the learned trial Judge whereunder
an application for temporary injunction filed by the daughter-in-
law has been allowed and it was held that she was in possession
of the second floor of the property so a temporary injunction
was granted in her favour. In the facts of the said case, the
Hon'ble Supreme Court noticed the finding of the learned
Senior Civil Judge that in fact Smt. Taruna Batra was not
residing in the premises in question. This was a finding of fact
which could not have been interfered with either under Article
226 or 227 of the Constitution. Hence, it was observed that Smt.
Taruna Batra cannot claim any injunction restraining the
appellants from dispossessing her from the property in question
for the simple reason that she was not in possession at all of the
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
said property and, hence, the question of dispossession does not
arise. The Court observed that the house in question cannot be
said to be a shared household within the meaning of Section 2(s)
of the Act of 2005. The observations of the Hon'ble Supreme
Court may be usefully quoted hereunder for a ready reference:-
"25. We cannot agree with this submission.
26. If the aforesaid submission is accepted,
then it will mean that wherever the husband and wife lived
together in the past that property becomes a shared
household. It is quite possible that the husband and wife
may have lived together in dozens of places e.g. with the
husband's father, husband's paternal grandparents, his
maternal parents, uncles, aunts, brothers, sisters, nephews,
nieces, etc. If the interpretation canvassed by the learned
counsel for the respondent is accepted, all these houses of
the husband's relatives will be shared households and the
wife can well insist in living in all these houses of her
husband's relatives merely because she had stayed with
her husband for some time in those houses in the past.
Such a view would lead to chaos and would be absurd.
27. It is well settled that any interpretation
which leads to absurdity should not be accepted.
28. Learned counsel for the respondent Smt
Taruna Batra has relied upon Section 19(1)(f) of the Act
and claimed that she should be given an alternative
accommodation. In our opinion, the claim for alternative
accommodation can only be made against the husband and
not against the husband's (sic) in-laws or other relatives.
29. As regards Section 17(1) of the Act, in our
opinion the wife is only entitled to claim a right to
residence in a shared household, and a shared household
would only mean the house belonging to or taken on rent
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
by the husband, or the house which belongs to the joint
family of which the husband is a member. The property in
question in the present case neither belongs to Amit Batra
nor was it taken on rent by him nor is it a joint family
property of which the husband Amit Batra is a member. It
is the exclusive property of Appellant 2, mother of Amit
Batra. Hence it cannot be called a "shared household".
37. In the present case, though it is stated that the
house situated in Shastri Nagar, Patna is registered in the name
of the mother of O.P. the mother has not challenged the order of
the learned A.C.J.M-IV Court Patna. It is not the case of the O.P.
that the complainant had not resided in the said house after her
marriage with her husband. In the complaint petition, there is an
averment that the O.P. has his four storied building at Mohalla-
Sheikhpura, Shashtri Nagar, Patna whether this property is a
joint family property or had been purchased from the resources
of the joint family would be a matter to be looked into after
allowing the parties to adduce their respective evidences. The
specific case of the complainant is that she had been residing in
one of the flats of the said house with the O.P. which is under
lock for the present and the remaining flats are given on rent.
38. In the opinion of this Court, the learned Appellate
Court has proceeded to record that the house is neither
belonging to the appellant nor to joint family but this Court
finds that there was no material before the learned Appellate
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
Court to record such a finding. The matter was still sub-judice
before the learned A.C.J.M. Court and it should have been left
open to be considered while passing final order on the petition.
39. At this stage, this Court would also look into the
judgment of the learned Co-ordinate Bench of this Court in the
case of Santosh Kumar (supra). In the said case, a complaint
under Sections 18, 19, 20 and 27 of the D.V. Act was filed by
opposite party no. 2 against the petitioner and three others in the
court of learned Chief Judicial Magistrate, Patna. She alleged
demand of dowry and due to non-fulfillment of the same, she
was ousted from the house by her husband and in-laws at
Hyderabad on 23.04.2013. The learned Judicial Magistrate
served notice upon the husband calling upon him to appear and
file a show cause. The husband appeared and filed a show cause
denying the allegations. It was brought to the notice of the
learned Magistrate that an application seeking a decree of
divorce was earlier filed being H.M.O.P. No. 54 of 2014 under
Section 13(i)(a) of the Hindu Marriage Act, 1955. In the said
divorce case, the opposite party no. 2 knowingly did not appear
whereafter a decree of divorce dated 27.02.2015 was passed by
the learned Senior Civil Judge, Sangareddy. It is for this reason
that it was contended that once the domestic relationship came
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
to an end after the decree of divorce, the complaint under the
D.V. Act could not have been filed. One of the contentions
before this Court was that the complaint under the D.V. Act
would be barred by limitation in view of the provisions of
Section 468 Cr.P.C. Reliance was also placed on the judgment
of the Hon'ble Supreme Court in the case of Inderjit Singh
Grewal versus State of Punjab and Anr reported in (2011) 12
SCC 588.
40. This Court formulated a question as to whether an
ex-wife can file a complaint under the D.V. Act when the
relationship has come to an end with a decree of divorce and
this question had also fallen for consideration before the
Hon'ble Punjab and Haryana High Court in Amit Agarwal and
Ors. Vs. Sanjay Aggarwal [III (2016) DMC 97 (P & H). In the
aforementioned facts, the learned Co-ordinate Bench of this
Court observed in paragraph '16' to '23' as under:-
"16. In Inderjit Singh Grewal (supra), the
Supreme Court has answered the said question in the
following words: "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
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
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".
17. The law declared by the Supreme Court has
got binding force and, in that view of the matter, it can
safely be said that the provisions of Section 468 of the
Cr.P.C. would clearly be applicable in cases instituted
under the provisions of the D.V. Act.
18. Coming back to the facts of the present case,
thecomplainant-opposite party no.2 was admittedly
married to the petitioner on 12.04.2013 at Barauni,
Begusarai. Subsequently, she was taken to Lingampally,
Hyderabad where the petitioner was serving as a Class-
II officer in B.H.E.L. She was ousted from her
husband‟s house in Lingampally, Hyderabad on
23.04.2013. An allegation has also been made in the
complaint that on 04.05.2014 at about 7:00 P.M., the
complainant went together with her mother to the house
of the petitioner, but the petitioner refused to return her
ornaments and other utensils.
19. In Section 31 of the D.V. Act penalty has
been provided for breach of protection order. The
penalty provided for such breach is for a term which
may extend to one year or extend to twenty thousand
rupees or both. Apparently, the D.V. Act is not
considered as a criminal law as it is more concerned
with providing relief to the victim. However, if the
offender does not comply with a final or temporary
protection order, he can be (i) sent to jail; (ii) ordered to
pay fine upto Rs.20,000/-; or (iii) sent to jail and
ordered to pay fine. (underline is mine)
20. Section 28 of the D.V. Act clearly stipulates
that save as otherwise expressly provided, all
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
proceedings under Sections 12, 18, 19, 20, 21 and 23
and offences under Section 31 shall be governed by the
provisions of Cr.P.C.
21. Section 32 of the D.V. Act provides that
notwithstanding anything contained in the Cr.P.C., the
offence under Section 31 shall be cognizable and non-
bailable.
22. Chapter XXXVI of the Cr.P.C. deals with
limitation for taking cognizance of certain offences.
Section 468 of the Cr.P.C., which bars taking
cognizance of the offence after lapse of one year, reads
as under:-
"468. 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 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.
23. A perusal of Section 468 of the Cr. P.C.
would make it evident that the Court would be debarred
from taking cognizance of the offence after expiry of
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
one year if the offence is punishable with imprisonment
not exceeding one year."
41. From the judgment of the learned Co-ordinate
Bench of this Court, it is crystal clear that in the said case also
there was a decree of divorce between the parties. The
complaint was presented much after the grant of said decree of
divorce and in respect of the said complaint the inherent power
of the High Court under Section 482 Cr.P.C. was invoked. There
were settled findings of facts and in that background Sections 31
and 32 of the Act of 2005 were examined and it was held that
Section 468 Cr.P.C. would debar taking cognizance of the
offence after expiry of one year if the offence is punishable with
imprisonment not exceeding one year.
Opinion of this Court
42. Here, it is worth mentioning that Section 468
Cr.P.C. bars taking cognizance after lapse of the period of
limitation. Under the scheme of the Act of 2005, it is Section 31
which specifically states that a breach of protection order, or of
an interim protection order, by the respondent shall be an
offence under the Act and shall be punishable with
imprisonment of either description for a term which may extend
to one year or with fine which may extend to Rs.20,000/- or
with both. A careful reading of Section 31 would show that what
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
is made punishable under the Act of 2005 is the breach of the
protection order or of an interim protection order. In other
words, if the competent court has passed a protection order
under either of the provisions of Sections 17, 18, 19, 20, 21 and
22, as the case may be, and/or an interim protection order has
been passed but the respondent violates the said order, it would
become an offence punishable under Section 31. It is with
regard to this offence under Section 31 that the learned
Magistrate can take cognizance under Section 32, therefore, the
bar provided under Section 468 Cr.P.C .in the matter of taking
cognizance may be cited only when the learned Magistrate takes
cognizance of an offence in terms of Section 31 of the Act of
2005 after lapse of the period of limitation. By no stretch of
imagination it may be held that the bar under Section 468
Cr.P.C. may even be cited to deprive a complainant from getting
a protection order. The legislation does not provide any period
of limitation for filing of a complaint seeking protection order
under various provisions of the Act of 2005.
43. This Court disagrees with the submissions of
learned counsel for the Opposite Party No. 2 that no protection
order may be passed by the competent court in the facts of the
present case. The learned Co-ordinate Bench has observed in the
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
case of Santosh Kumar (supra) that "Apparently, the D.V. Act
is not considered as a criminal law as it is more concerned with
providing relief to the victim. ...".
44. To this Court, it is crystal clear that the present case
is not a case of taking cognizance after lapse of the period of
limitation. It is not a case in which Sections 31 and 32 of the Act
of 2005 have come into play. It is still at the stage of passing of a
protection order. Section 31 would came into play only when the
respondent defies the protection order and in such circumstance,
the Court would be required to take cognizance under Section 32
of the Act of 2005. Such cognizance order is to be passed within
the period of limitation under Section 468 Cr.P.C.
45. In view of the discussions made hereinabove, the
three issues which are enlisted in paragraph '16' are answered as
under:-
(I) In the facts of this case, the opposite party no.2 is not
correct in taking a plea that no domestic relationship existed
between the complainant and her husband only because the
complainant is said to be living away from her husband since
13.04.2013.
(II) Whether the house situated in Shastri Nagar at Patna
which is registered in the name of the mother of the petitioner may
be said to be a shared household or not would depend on the
Patna High Court CR. REV. No.1544 of 2019 dt.30-01-2024
evidences which would come before the court.
(III) The complaint filed by the petitioner seeking
protection order would not be hit by Section 468 Cr.P.C.
46. In view of the discussions made hereinabove, this
Court is of the considered opinion that the learned Appellate Court
has completely erred in setting aside the order passed by learned
A.C.J.M-IV Court, Patna. The appellate order is, therefore, set
aside. The appeal preferred by O.P. No.2 is held devoid of merit.
The interim order of learned A.C.J.M.-IV, Patna City is restored.
47. The learned A.C.J.M.-IV, Patna in whose court the
domestic violence case was filed shall proceed to deal with the
complaint and pass an appropriate order in accordance with law.
48. The revision application is allowed to the extent
indicated hereinabove.
(Rajeev Ranjan Prasad, J)
arvind/rishi-
AFR/NAFR AFR
CAV DATE
Uploading Date 02.02.2024
Transmission Date 02.02.2024
