Evan (0) 20 July 2012

498a/125crpc - dv - 13 1 (ia)

We were married in Januray'1996.

In March 2004,My wife filed a 498A /406 case along with 125Crpc case.After 6 months I filed Divorce case under 13 (1(ia) of HMA.So we are seperated from March'04.The main allegation in the FIR was of "Illicit affair",which has not been proved at all in the I.O's chargesheet(there is not even mention of it in the chargesheet).the allegations of Torture is very vague and pertains to 1996 with no specific incidence/injury etc.Between 1996 and 2004,we stayed at Raipur,Indore,Mumbai and Pune.

She is contesting the Divorce case and the case filed by her U/S.24 of HMA ,she has lost it as it was Dismisssed and was uphled by Hon'bl Kolkata H.C also.

I have been chargesheeted in the 498A case and the trial has just started.My father was dischrged by the I.O ,then by the Ld.Magistrate and then by the Hon'bl H.C in 498A/406 cases.

In March'10,I brought her back after signing MOU but after 2 months she again filed fresh Police Complaint u/s.498A with Pune Police and went back,which Complaint was Dismissed by the Hon'bl Session court ,Pune with No crime being registered after Police filed Report with Court and thus chapter closed.

In November'11 she files DV case u/s.12 of DV act and under provisions 18,19(1)(f),20,21,22,23.

We have filed Objections to the DV case on the following grounds and are challenging the very applicabilty of the DV act in my case scenario..

1)Limitations of time-1 yrs(the case has been filed almost 8 yrs after 2004 date of seperation.)Inderjit Singh Grewal case citation.

2)Prospective application of the DV act as we are seperated from March'04 and the DV act came into force wef.26-10-2006 only.

3)Supression of fact-The Incidents of 2010 and repeat complaint u/s.498A has been completely suppressed by her in her DV petition.

I request for valuable input from the Legal Hawks in the forum to guide if that is OK or I have any other ground to ask for DV case quashing.

NB:She has remained absent from the Main u/s.125 crpc petitions for last 5 consecutive dates and the Ld.Judge has not show caused her why not her u/s.125 petition be dismissed for non persuing.

Can I file discharge application in u/s.498 case...for..

1)Issue on Limitations of Territorial Jurisdiction?or it will be construed as continuing offence?

2)Limitations of time?..3 yrs ???

3)Allegations very vague and no specific incidence mentioned.

4)Delay in lodging of FIR ? FIR mentions date of occurrence of offence as August'96 and FIR filed in April'04..delay by more than 7.5 yrs.No application for condonation or delay or reason for delay has been filed.

Please oblige.

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1 Replies

Guest (Guest) 20 July 2012

Kindly note that there is no limitation for filing the DV case. In Grewal's case, the SC made a very casual remark on DV being filed within a year, and the same cannot by any stretch of the imagination be said to have laid down a law. No court can read into a statue a period of limitation when the Legislature itself has chosen not to do so. Therefore, this objection must certainly fail .

The DV Act is a remedial statue inasmuch as it confers on the women suffering domestic violence a remedial course under the legal system by seeking a right to protection, residence, etc from the court. The penal liability under the Act accrues for the husband only if an order of protection is violated by him. It is a settled principle of interpretation that remedial statues have to be construed liberally in favour of the victim. Hence, in my considered opinion it should be given a retrospective effect.

Delay by itself in lodging the FIR is not sufficient to quash the FIR. No application for condonation of delay is required. The delay has to be satisfactorily explained though. The offence u/s 498A is a continuing offence. If the last date of harassment, as mentioned in the FIR, does not date back to 3 years immediately preceding the date of FIR, it is a ground on which you can move for quashing.