• Wife has filed dv sec 12 case 2 yrs after seperation. Will crpc 468 limit apply, How to fight this?

Delay reason is claimed as being busy and being under social influence. MC case is ongoing. I know i can file objections and fight it in the usual way.
 What i want is for the judge to dismiss her case, and at least at the bare min, examine wife and her reasons before grant of any money. So i am exploring the 1 year limitation of crpc 468 hoping that even if the case isnt dismissed i may get benefit of her getting examined first. Or is there any other section that i can consider? 
Giving precedence would be the most helpfull, i wont be able to understand the depth of the answer if precedence isnt there. Additionally I am not averse to offering a lucrative advisor role, as i am looking for one. Kindly make this q&a as a win win.
Asked 2 months ago in Family Law
Religion: Hindu

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5 Answers

The Supreme Court has held that the limitation period prescribed under Section 468 of the Code of Criminal Procedure is not applicable for the filing of an application by an aggrieved woman under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

 

2) 

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.”

Ajay Sethi
Advocate, Mumbai
93506 Answers
7253 Consultations

5.0 on 5.0

No there is no limitation in dv case as it is considered recurring in nature

Prashant Nayak
Advocate, Mumbai
31071 Answers
162 Consultations

4.1 on 5.0

There is no specific time limit for filing a complaint against domestic violence, but she must be able to prove that you were in a domestic relationship with the harasser at the time the violence took place.

Courts can entertain applications filed under Section 12 of the Protection of Women from Domestic Violence Act even beyond limitation period: Supreme Court.

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.

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.”

 

T Kalaiselvan
Advocate, Vellore
83702 Answers
2057 Consultations

5.0 on 5.0

 

- Section 468 oF CrPC states that , when the imprisonment “for the offence” does not exceed one year, the period “of limitation” is one year; and when the minimum sentence “for the offence” is one year and the maximum is three years then the period of limitation will be three years.

- Further, it states that the court can not take cognizance after the limitation period is over.

- However, the limitation period prescribed under Section 468 of the Code of Criminal Procedure is not applicable for the filing of an application under Section 12 of the Domestic Violence Act,

 

Mohammed Shahzad
Advocate, Delhi
12521 Answers
172 Consultations

5.0 on 5.0

  • The limitation period prescribed under Section 468 of the Code of Criminal Procedure is not applicable for the filing of an application by an aggrieved woman under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Supreme Court held as erroneous a judgment of the Madras High Court which held that the Section 12 application ought to be filed within 1 year of the act(s) of domestic violence, failing which, such application is not maintainable.
  • The Supreme Court observed that an application under Section 12 of the DV Act cannot be treated as an application with respect to an offence. An offence under the DV Act arises only after the order passed under Section 12 is violated under Section 31 of the Act. A notice issued under Section 12 of the Act cannot be regarded as taking cognizance of the offence. Therefore, the provisions of CrPC relating to limitation are not applicable to such applications.
  • Based on this information, it seems that you cannot rely on Section 468 of CrPC to dismiss your wife’s case on the ground of delay. However, you can still challenge her case on other grounds, such as lack of evidence, false allegations, mala fide intention, etc. You can also try to prove that there was no domestic violence committed by you and that your wife is not entitled to any relief under the DV Act.

 

Muraleedharan R
Advocate, Trivandrum
373 Answers
2 Consultations

5.0 on 5.0

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