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Bhaskar for SOCIAL JUSTICE (Legal & Social Activist)     20 October 2011

Domestic violance act,2005

Dear Experts,

 

What are d instances of Domestic Violance and what is the punishment for each of the ?

 

What is the limitation period for filing case/complaint of Domestic Violance ?

 

What procedure is followed by police to check authenticity of complaint or just complaint is enough to take action against husband ?

 

If husband and wife are seprate for more than 1 yaer then can case be filed ?

 

Please advise.

 

Thanks



Learning

 16 Replies

Tajobsindia (Senior Partner )     21 October 2011

@ Author

1.
What is the limitation period for filing case/complaint of Domestic Violance ?
Take: SC has last month laid Rules that a DV Applciation comes under CrPC limitation i.e. S. 468 CrPC and it cannot be filed after 1 year of limitation (means cause of action).


2. What procedure is followed by police to check authenticity of complaint or just complaint is enough to take action against husband ?
Take: DV Act being unique Act it is prime facie words (statement) of a agrieved person which is converted into (means filed as per) Form(s) as per Rules thereto and the Act itself says very clearly Respondent persons are not required to play their defense during complaint writing / preparing be it before a Social Service org. / Police stattion / before Protection Office and or or a NGO preparing the same as per effective Distrcit / State Rules.  


3. If husband and wife are seprate for more than 1 yaer then can case be filed ?
Take: Repeat que. see take first for the same.

sheela subbarao (Advocate)     21 October 2011

There is no limitation for filing the complaint. If the wife is harassed at any point of time during the marital life, the wife can lodge a complaint before Magistrate in a petition form. The complaint has to be filed before the concerned Magistrate. There is no Protection Officer appointed by the Govt. 

Parth Chandra (none)     21 October 2011

Tajobindia Sir,

1. What is the limitation period for filing case/complaint of Domestic Violance ?
Take: SC has last month laid Rules that a DV Applciation comes under CrPC limitation i.e. S. 468 CrPC and it cannot be filed after 1 year of limitation (means cause of action).

Can you please provide us more details of the source from where we could get this SC Rules which restricts filing of DV after one year of cause of action?

 

Thanks,

PC

Sameer12345 (SSE)     21 October 2011

Is it really true? DV/498 can not be filed after 1 Year of limitation? Correct me please if i am mis-understood...

Tajobsindia (Senior Partner )     21 October 2011

@ PC

Ping me your email ID to send the same with footnotes !

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist)     21 October 2011

Dear Experts,

 

Please provide the copy of judgement which limits 1 year period for filing such cases.

 

Thanks and regards,

Tajobsindia (Senior Partner )     21 October 2011

@ for prudent discussion only


The SC reference  which we are talking here is Inderjit Singh Grewal Vs. State of Punjab & Anr. 6 (2011) SLT 434 it is annexed in PDF file format.


1. CrPC applies in DV Act

"provisions of Section 468 CrPC 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 Section 28 and 32 of the Act 2005 read with Rule 15 (6) of The Protection of Women from Domestic  Violence Rules, 2006 which makes the provisions of CrPC applicable and stand fortefied" [Para 24]

 

2. If CrPC applies in DV Act then various Sections of CrPC also gets used in DV Act

[Para 24]


3. Now let us take a look at S. 468 CrPC which states as follows;


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 a term exceeding one year but not exceeding three years.

1[(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.]

1. Ins. by Act 45 of 1978, Sec. 33 (w.e.f. 18-12-1978).


In DV Act 'fine' provision as well as 'Penal provision' is also there under default. Means if you donot comply with Protection order then you are liable for fine as well as Penal provisions. Now from where Penal provisions get attracted in any Act ? It is under CrPC is it not so ! So This SC citation could also be interpreted in this way that DV Act proceedings are governed by CrPC and as per CrPC limitation applies for filing DV Complaint. Now as far as imprisonment is concerned DV Act clearly says follow S. 125 CrPC. Now what does S. 125 CrPC says as per various views of SC and various State HC’s in imprisonment? All says maximum 1 year imprisonment for default is it not so ! So when 'fine' as well as 'imprisonment' gets attracted in DV Act as well as CrPC "procedure wise" then S. 468 CrPC is very much applicable in DV Act for all those "cause of action" be it divorce happened or not or be it if divorce happened then S. 468 CrPC gets applied etc. as people here are interpreting even in Experts section re.

https://www.lawyersclubindia.com/experts/Is-dv-maintenable--236801.asp

wrongly and or keeping silent in its interpretation.


4. Re. for applicability of CrPC Limitation SC lays laid law in Japani Sahoo Vs. Chandra Sekhar Mohanty, AIR 2007 SC 2762 and Noida Extrepreneurs Association Vs. Noida & Ors., (2011) 6 SCC 508



5.
Thus

"In view of the above, 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 XXXX thus, the process amounts to abuse of he process of the Court." [Para 25]

 

6. Also you should calmly read and understand


https://www.lawyersclubindia.com/forum/Dv-act-interpreted-in-terms-of-rule-6-sub-rule-5-45081.asp

 

which is very important way to interpret one of the DV Act Rules.


I am aware you are intelligent in interpreting Laws which I observed reading your various posts and I am sure if you read calmly above paras and if case is yours and same is explained in above sequence para wise to a Magistrate "Limitation as laid down under CrPC" gets ipso facto applied to all DV Complaint cases which are filed after 1 year from “cause of action”


You must be aware that in Criminal Law we call facts as “cause of action” whereas in Civil case we call same as "Jurisdiction”. But no case can proceed without ‘cause of action” in a Criminal proceedings which is very strict in interpretation.


You should also be able to explain to a Magistrate SC golden Rule on “cause of action” in a Criminal Case while explaining / submitting before a Magistrate why DV Act is not applicable in my case when cause of action is not continuous.


People will say this SC reference which I gave is applicable for people in whose cases they are  Divorced but I say it is not only applicable to them but when SC says that DV Act due to reading of its Rules is a “criminal” procedure code applied proceedings then it is for sure that S. 468 CrPC which is “criminal codes Law of Limitation for criminal case” also gets ipso facto applied to DV proceedings as a whole. Though in reference to my quoted SC citation the parties were divorcee which is secondary point of fact while arguing before a Magistrate and yoru facts are different and no two cases facts can ever be the same !. Hence this SC citation which I quoted facts are different than yours but point of Law under para 24 / 25 gets attracted to cases where cause of action is over 1 year old ont he date of filing.


"A agrieved person under criminal jurisprudence does nto take 1 year to wake up and say hey "cause of action is continous andit will remain continous till another 99 years....!!!!"


This is the way citations gets applied is my view and there cannot be ‘exact” citation available as ‘exact facts” differ in every second case. Remove the facts in attached case where divorce happened between parties (so what) but then why did SC took view of S. 498a CrPC and says later in para 25 that "it will amount to abuse of process of court if DV case is run" and there you have the binding Law in hand!


Also tell us....

- can't S. 125 CrPC applies post divorce. ? Yes it can very well.

- does not DV Act says procedure followed in DV is similar to S. 125 CrPC ? yes it does.

- does not DV act says agrieved person lived at any time in a domestic relationship can file DV complaint? yes it does.


So ,now interpret para 24 and para 25 in annexed Judgment and see that SC has not only said limitation applies but in stated case it applies due to divorce between parties but limitation as in CrPC does also apply is also strongly said by SC and they themself referred to two above citations as in para 4. Is it not so clearly reading down it shows?



Tell us what are your counter arguments now if this SC citation affirms Limitation as in under CrPC or not that is first que.?


I am not interested to know if in Oct. she left or in Jan she left ! If she left 1 year ago from the date she is filing a complaint then DV Act is complaint is barred by crPC limitation is my point here (period). Now she divorce or living as married wife or whatever is not continous cause of action.


Attached File : 85555 218167 56 limitation period under dv act inderjit singh grewal.pdf downloaded: 197 times
2 Like

Parth Chandra (none)     21 October 2011

Thanks Tajobindia,

 

I will ponder upon the briefs and citation which you provided. Meanwhile please accept my friend request so that I can ping you when asked.

 

 

Regards,

PC

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist)     21 October 2011

I request Mr Shonee Kapoor to give his opinion also on this issue.

Thanks and regards

1 Like

Tajobsindia (Senior Partner )     21 October 2011

Originally posted by : Zeeshan
" @tajobs

So, how can I or anybody use this ?

Also I think no lawyer take interest in it. Why he want to loose his client ?
"

Before using my way of interpretation DV Act in reference to above large peiece for silver test by all prudent persons here think why cannot you use it and what are your cognigant legal logics? Bring them on table so that I can also get corrected in interpretation of most tricky (Bharat Ratna DV) Act, 2005 that I have ever come across under 41 Family Laws of the country as just a ordinary third generation aam adami like you and he and she here...............???????

Tajobsindia (Senior Partner )     22 October 2011

Originally posted by : Zeeshan
"
@ tajobs

Sir, will you please give us a little hint or performa of application ? I mean What to write in my application for dissmisal of complaint ? My first date is on 3/11/2011. 

I want to give it a try. Either excepted or rejected. I have not engaged any lawyer for DV till now.
"

I remember someone writing on my profile wall "I am a snobbish person' so beware of me in times of such need...: J

PS.: How I am supposed to respond to such wholesale generic writing on my wall :-)
 

 

1 Like

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist)     23 October 2011

Any other view on the limitation period please.

gaury..fight to win (Education)     23 October 2011

helpful

Adv. Chandrasekhar (Advocate)     23 October 2011

In DV Act, for getting the relief of interim maintenance /  maintenance for herself and children, residential orders, protection orders, custody of children, compensation etc. there is no limitation of one year as the acts perpetrated by the husband to give scope to the wife to claim all these reliefs are described in the Act as "acts of domestic violence" and are not described as "offences". Further, para 3 of the objects of the Act clearly indicates that this Act is intended to provide remedy under civil law.  So, DV Act is not criminal law but a civil law, even though it is tried in the court of magistrate.  so, the courts repeatedly held that this Act can be operative retrospectively, even though there is a cardinnal principle in criminal law, that every criminal law must be enforceable prospectively but not retrospectively.  So, there should be no doubts the DV Act is a civil law, even though it is tried by magistrate in the criminal court and some of the provisions of Cr.P.C. is applicable in respect of the proceedings under this Act.

Now Section 28 gives a very interesting reading.  In this Section, it is provided - "all proceedings under Section 12, 18, 19, 20,21, 22 and 23 and offences under Section 31 shall be ......." .  It means that violatin of protection order as described in Section 31 is an Offence, where as other acts of husband are merely acts of domestic violence and are not offences as far as this Act is concerned.  Section 468 of Cr.P.C., which talks of limitation in respect of Offences only, indicates that where punishment is for one year, the limitation of one year is applicable.  By analysis, it can be concluded that that there is no limitation as far as reliefs qua domestic violence acts perpetrated by husband are concerned.  But in these proceedings, either interim or final protection order is issued in favour of the wife and children and the same is violated, then the limitation of one year is applicable and she can move the court for punishment under Section 31 only within one year from the date of violation of protection order.  In respect of other reliefs, there is no limitation and a wife has liberty to approach the court to get redressal of her grievance. 


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