COURTS can entertain applications filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 [DV Act] even if it surpasses the limitation period prescribed under Section 468 of the Code of Criminal Procedure [CrPC], held the Supreme Court in its judgment in Kamatchi vs. Lakshmi Narayanan on April 13.
Section 12 of the Act empowers an aggrieved woman to file an application before the Magistrate seeking various reliefs under the DV Act— such as orders directing protection of the complainant, restraint or payment of compensation, against alleged acts of domestic violence committed by her husband or in-laws.
Section 468 of the CrPC envisages the period of limitation for taking cognizance of various offences based on the nature, and specifies one year for offences pertaining to domestic violence.
Reiterating the principle mentioned by a five-judge Constitution bench of the Supreme Court in Sarah Mathew vs. The Institute of Cardio Vascular Diseases & Ors. (2013), a bench of Justices U.U. Lalit and P.S. Narasimha observed that courts would be entitled to take cognizance of a complaint or initiation of proceedings even after the prescribed period of limitation lapses.
“It is … clear that though Section 468 of the Code mandates that ‘cognizance’ ought to be taken within the specified period from the commission of offence, by invoking the principles of purposive construction, this Court ruled that a complainant should not be put to prejudice, if for reasons beyond the control of the prosecuting agency or the complainant, the cognizance was taken after the period of limitation. It was observed by the Constitution Bench that if the filing of the complaint or initiation of proceedings was within the prescribed period from the date of commission of an offence, the Court would be entitled to take cognizance even after the prescribed period was over.”
The court was mainly dealing with whether an application preferred under Section 12 of the Act was rightly considered by the Madras High Court for reckoning the period of limitation.
In the instant case, the wife, the appellant, had moved an application under Section 12 of the DV Act in 2018, eleven years after she was married. The application sought appropriate action against husband and her in-laws under Sections 17 and 18 of the DV Act. The husband and in-laws, thereafter, moved the High Court under Section 482 of the CrPC seeking to quash the complaints and related proceedings. The High Court allowed the plea, quashed the charges and dismissed the wife’s application, holding that the application ought to have been filed within one year of the incident. This order came to be challenged before the Supreme Court.
On behalf of the appellant, it was argued that as per Section 31 of the Act, any breach of an order passed inter alia under Section 12 of the DV Act is punishable with imprisonment up to one year, or with fine, or with both. So, the offence under Section 31 of the Act will be said to have been committed only after the breach of an order passed under Section 12 of the Act, occurs. Moreover, there is no limitation under the Code or under the provisions of the DV Act for filing of such applications and therefore, the High Court was not right in observing that the proceedings were barred by limitation.
Rebutting these submissions, the respondent claimed that for almost ten years, nothing was alleged against the respondent or her father-in-law or sister-in-law by the appellant.
The parties had been living separately for last several years, and the application was nothing but a desperate attempt to file something against the respondent in a court of law and was clearly an abuse of process of court, it was argued.
What the court held
After going through the rival arguments, the court went against the High Court’s approach by opining that an application filed under section 12 of the DV Act cannot be treated as an application in respect of an “offence”.
The starting point for limitation for an offence committed under the DV Act would arise only after there is a breach of an order passed under Section 12 of the Act, the bench explained.
“The provisions of the Act contemplate filing of an application under Section 12 to initiate the proceedings before the concerned Magistrate. After hearing both sides and after taking into account the material on record, the Magistrate may pass an appropriate order under Section 12 of the Act. It is only the breach of such order which constitutes an offence as is clear from Section 31 of the Act. Thus, if there be any offence committed in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence. By the time an application is preferred under Section 12 of the Act, there is no offence committed in terms of the provisions of the Act and as such there would never be a starting point for limitation from the date of application under Section 12 of the Act. Such a starting point for limitation would arise only and only after there is a breach of an order passed under Section 12 of the Act.”
The scope of notice under Section 12 of the Act is to call for a response from the respondent in terms of the statute so that after considering rival submissions, the appropriate order can be issued, the Supreme Court said.
On the basis of these observations, the Supreme Court proceeded to allow the appeal and set aside the decision of the high court.
“It is thus clear that the High Court wrongly equated filing of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our considered view, the High Court was in error in observing that the application under Section 12 of the Act ought to have been filed within a period of one year of the alleged acts of domestic violence.”
The court directed the husband to file his response before the Magistrate within two weeks, and asked the Magistrate to consider the matter under the provisions of the Act.
While concluding the judgment, the court clarified that it had not made any opinion regarding the merits of the matter before it.