• DV act 2005 and 498a

Sir Am the husband filed Divorce petition (against wife who is elder to me) in District court and it is dismissed on 10.06.2017
Date of marriage 12.05.2013 
Date of separation 18.08.2013 (admitted by her in Divorce case)
Divorce petition Dismissed on 10.06.2017 (period of desertion less than 2 years, and cruelty not proved)

Appeal also dismissed at High Court. 

My two questions are as below based on Cases filed by her,
1.	She has filed maintenance under DV act 2005 on 09.08.2016. The case has been filed after more than 3 years of last date of cohabitation (admitted by her). But trail court allowed the petition and proceeded, case posted to judgement ON 16.11.2019. Section 468 of CRPC states that no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation. In my case after expiry of limitation period case was instituted and admitted by the trail court. Do court have power to go against the LIMITATION PERIOD of 468 and how can I come out of this and is there any way to fight against the case based on limitation period.

2.	Meanwhile she has also filed a PCR in same trail court under IPC 498A, 323, 324, 504, 506 TW149 and Crpc 200. The case been registered in the trail court on 17.10.2017 ie after 4 years 2 months of last cohabitation. Section 468 of CRPC states that no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation. In this case court has directed the Police to register FIR, as on date FIR is not yet registered by Police. Police have not contacted me. Do court have power to go against the LIMITATION PERIOD of 468 and how can I come out of this and is there any way to fight against the case based on limitation period.
Asked 6 years ago in Family Law
Religion: Hindu

3 answers received in 2 hours.

Lawyers are available now to answer your questions.

9 Answers

DV is continuing offence and case of DV can be filed against you 

 

2) it would not be barred by limitation 

 

3) dowry harassment case 

As per Section 468 CrPC, a complaint alleging commission of an offence under Section 498-A can be filed within 3 years of the alleged  incident. However, Section 473 CrPC enables the Court to take cognizance of an offence after the period of limitation if it is satisfied that it is necessary so to do in the interest of justice.

The essence of the offence in Section 498-A is cruelty. It is a continuing offence and on each occasion on which the woman was subjected to cruelty, she would have a new starting point of limitation, Arun Vyas v. Anita Vyas, (1999) 4 SCC 690.

Ajay Sethi
Advocate, Mumbai
99856 Answers
8148 Consultations

Petition of domestic violence dose not cover under CrPC neither DV petition is taking cognizance of offense.

Can be file anytime. Barred to take cognizance is for offenses punishable up to three years.

IPC 498A, 323, 324, 504, 506 TW149 punishment is more than 3 years. 

Check the allegations in FIR properly, she may have imputed fresh incidents of DV and not of before 3 years only.

Yogendra Singh Rajawat
Advocate, Jaipur
23083 Answers
31 Consultations

Dear Sir,

For the first question you can win if not in trial court at least in higher courts as per settled law. Bur section prescribes no limitation for the offence under section 498A read with 506 which is punishable with 7 years.

=====================================================================

506. Punishment for criminal intimidation.—Whoever commits, the offence of criminal intimidation shall be punished with imprison­ment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison­ment of either description for a term which may extend to seven years, or with fine, or with both.

=====================================================================================

Kishan Dutt Kalaskar
Advocate, Bangalore
6230 Answers
499 Consultations

You are absolutely right about the limitation bar in both cases mentioned under para 1 and 2 in your question. 

In case of para 2 , check whether  complaint under section 506 is made   for threat be to cause death or grievous hurt,  then punishment is 7 years imprisonment . In such cases  , the period of limitation, in relation to the offences which may be tried together,  shall be determined to the offence which is punishable with the more severe punishment  or as the case may be, the most severe punishment .

Raise objection in court. 

If trial do not accept,  move to high court for appropriate order. 

 

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

1. Your opinion is wholly misconceived. The proceedings under DV Act are not criminal in nature, hence Section 468 Cr.P.C does not apply to it. DV case can be filed at anytime during marriage or even after dissolution of marriage.

2. Similarly there is no limitation period for the court to take cognizance of offence under Section 498A as it is a continuing offence. Once police registers FIR, which it is bound to do if court has passed an order to this effect, apply for anticipatory bail or quashing of FIR.

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

As commented by you, the same is not barred by limitation, it is continuous offence.

She can file DV case against you, you need to cheque the FIR the same will given more information as to dates of offences, it will most likely give some scope.

Offences referred under Sec.473 have limitation of three years, but offences under Sec.473 is a provision which is continuous in nature.

You need to cheque the FIR / charge sheet and attack the same on merits.

 

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

Court has power to condone the delay if you want to challenge you can go in appeal and challenge the said order. 

You can challenge the IPC matter also in discharge petition before trial court or quash the same in HC. 

Prashant Nayak
Advocate, Mumbai
34572 Answers
249 Consultations

1. See if there is adverse order against you then you can file appeal before the high court as limitation period is one year and the lower court has made mistake and illegally granted maintenance.

2. For same file quashing petition before the high court on grounds of limitation and further the FIR is false and filed as after thought after you filed the divorce case.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

1.  Since your marriage has been proved, she can file maintenance case under DV act or under cr.p.c. anytime. 

Moreover the DV is considered as a continuous offence , there is no limitation for that, you may challenge the same in trial proceedings and get it dismissed based on your conception about it.

 

2. The court has taken cognizance of the offence based on the complaint she has made  which has convinced the court.

Moreover it is also considered as a continuous offence, it cannot be barred by limitation.

You challenge the same in trial proceedings based on the limitation point of view, you can even file a discharge petition citing the limitation as a reason for the discharge petition.

 

T Kalaiselvan
Advocate, Vellore
90058 Answers
2499 Consultations

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer