Sri Puttaraju Vs Smt. Shivakumari

DATE OF THE ORDER:
18th May,2020

JUDGES:
Justice K.S. Mudagal

PARTIES:
Sri Puttaraju (Petitioner)
Shivakumari (Respondent)

SUBJECT

The Criminal Revision Petition was filed under section 397 of Cr.P.C to release Rs 4,32,000/- deposited before the trial court in the criminal appeal no. 19/2016. The court in the following case tried to answer two questions raised before them, which were:

• whether Section 468 of Cr.P.C. applicable for an application under Section 12 of the DV Act?
• whether the actions alleged in the application under Section 12 of the Domestic Violence Act itself constitutes an offense by the respondent?

OVERVIEW

• The respondent filed a case in the trial court against her husband under Section 12 of the Protection of Women from Domestic Violence Act, 2005, requesting monetary compensation and custody on the grounds that she had been subjected to domestic violence at the hands of the petitioner.
• By order dated April 11, 2016, the trial court partially granted the petition, awarding Rs. 8,000/- per month in maintenance and house rent to the respondent and her children. The petitioner was also barred from separating the children from her care or committing domestic abuse against her.
• Before the Additional District & Sessions Judge, the petitioner challenged the trial court's order. The First Appellate Court granted an interim stay in exchange for the appellant depositing Rs.4,32,000/- in maintenance arrears with the First Appellate Court. As a result, the petitioner made a deposit with the First Appellate Court.
• The First Appellate Court rejected the appeal and upheld the trial court's decision in the impugned order. The First Appellate Court also ordered that the sum in deposit be transmitted to the trial court, with the trial court being instructed to release the said amount to the respondent wife.
• As a result, the said amount was sent to the trial court and was pending in the Court deposit. The respondent had filed the above application to have the money released.
• The petitioner's advocate, Sri L.Rajanna, challenged the application on the grounds that the petition was submitted 10 years after the alleged domestic incident occurred, and thus the petition was not maintainable.
• Sri G.S.Pateel, learned Counsel for the respondent, refused the claim of limitation, claiming that Section 468 of the Cr.P.C. only applies to petitions filed under Section 31 of the Domestic Violence Act, not to applications filed under Section 12 of the Act for reliefs under Sections 20 and 21 of the Domestic Violence Act.

LEGAL PROVISIONS

• Section 468 of Cr.P.c - Bar to taking cognizance after lapse of the period of limitation.
• Section 12 of Domestic Violence Act- Application to Magistrate.
• Section 20(d) of Domestic Violence - Maintenance
• Section 21 of Domestic Violence - Custody
• Section 2(38) of General Claus Act - Definition of Offence

ANALYSIS OF THE ORDER

• The question before the court for consideration was, for an application under Section 12 of the Domestic Violence Act whether Section 468 of Cr.P.C. which prescribes the limitation is applicable? Section 28(1) of the Domestic Violence Act relied upon by learned Counsel for the petitioner made it clear that for the proceedings under Sections 12, 18, 19, 20, 21, 22, 23, and 31 of the Domestic Violence Act, the Code of Criminal Procedure is applicable. Counsel of the petitioner relied upon section 468 (1) and 468(2)(b) of Cr.P.C. itself showed that the bar of limitation for taking cognizance is intertwined with an offense. Section 468 of Cr.P.C. comes into the picture only if there is an offense. If there is no offense, then there is no limitation.
• This gave rise to the question of whether the actions alleged in the application under Section 12 of the Domestic Violence Act itself constitute an offense by the respondent. According to section 12 of the Domestic Violence Act, if domestic violence is not called or treated as an offense, it speaks of the Court granting relief and not of conviction and sentence. In this case, sections 20(d) and 21 are very essential. Section 20(d) is about maintenance whereas section 21 talks about custody and these two sections do not treat domestic violence as an offense. To apply section 468 of Cr.P.C , the act committed must be an offense. Section 2(38) of the general clauses act makes it clear that to call an act an offense, the act or omission must be made punishable under law. Section 468 of the Cr.P.C. is inapplicable when the application under Section 12 of the Domestic Violence Act is not covered by the word "offense." As a result, applying Section 468 of the Cr.P.C. to an application made under Section 12 of the DV Act is absolutely incorrect.
• The court took the reference of Krishna Bhattacharjee's case in which the Supreme Court held that the aggrieved individual and domestic relationship definitions remain unchanged and that domestic abuse is a "continuing offense" that is not time-barred. The argument that the petition was time-barred was found to be without substance by the Court. The respondent is entitled to a waiver of the funds under the circumstances. The application was approved.
• Subject to the outcome of this appeal, the trial court would release Rs.4,32,000/- to the respondent. At this point, learned Counsel for the petitioner asserts that the trial court granted Rs.4,32,000/- in maintenance to the respondent, which includes her minor children. As a result, he proposed that only her share be released to her.
• The petitioner/husband did not claim that the children and mother had any competing interests, nor did he examine any children in front of the trial court to support his argument. As a result, this Court considered the said submission to be vexatious and rejected it.

CONCLUSION

It's important to remember that the DV Act's proceedings are neither entirely criminal nor entirely civil. The purpose of the Domestic Violence Act, as stated in the preamble, is to protect women from all forms of domestic violence. If the Act was meant to make any act of domestic abuse a crime, Parliament would not have passed separate legislation, such as the IPC, dealing with crimes against women such as 498A, 306, 304B, or crimes against the body in Chapter XVI of the IPC. The DV Act was enacted to protect and save families.

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