• DV & 498a after 5 years of separation

Me and my wife had been staying apart since 5 years. She is living with her parents. Still she can file DV or 498a case against us. I already have filed a divorce case against her. If she can file 498a whether such FIR can be quashed.
Asked 12 months ago in Family Law from Haridwar, Uttarakhand
Religion: Hindu
1) Wife can file DV case against you as it is a continuing offence 

2) as long as she is yiur wife she can claim right to stay in matrimonial home or alternative accommodation , maintenance and other reliefs 

3) as far as 498A is concerned there had to be continuous acts of cruelty 

4) yiu can move HC for quashing but it all depends upon allegations made in FIR 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
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Merely because she has fled case after 5 years the FIR would not be quashed. For quashing the case apparently will have to be seen false.
In FIR the court hardly invoked jurisdiction under section 482 crpc and hence it is better to wait till submission of charge sheet.
Devajyoti Barman
Advocate, Kolkata
5131 Answers
54 Consultations
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1. Complain against 498A of IPC is a criminal case which has no limitation period,

2. So, she can file 498A and DV case any time but more she delays in filing the said cases/complaints, more she looses the authenticity/credibility in her complaint/allegations,

3. In your case you are separated for 5 years which will make her complaint u/s498A and DV case toothless.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
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ombay High Court
Shri. Maroti vs Sau. Gangubai on 9 August, 2011
Bench: A.P. Bhangale
                                                            1
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR.




                                                                                                       
                              Criminal Writ Petition No. 542/2010




                                                                           
     Shri. Maroti s/o. Dewaji Lande,
     Age 47 years, Occupation : Service,
     R/o. Peth Ward No. 2, Near Old Bus Stand,
     Rajura, Tahsil - Rajura, District : Chandrapur.                              ....Petitioner




                                                                          
     Versus

     1) Sau. Gangubai w/o. Maroti Lande,
        Age 40 years, Occupation : Nil,




                                                        
     2) Shri. Prashant s/o. Maroti Lande,
        Age 18 years, Occupation : Student,


          District : Chandrapur.
                                
          Both R/o. Sonapur, Tahsil : Pombhurna,
                                                                                ...RESPONDENTS

     -----------------------------------------------------------------------------------------------------------------
Mr. Rajnish Vyas, Counsel for Petitioner Mr. S. V. Sirpurkar with Mr. Nazbile, Counsel for Respondent No.1

-----------------------------------------------------------------------------------------------------------------

                                                             Coram:            A.P. Bhangale, J
      

                                                             Dated :         9th August 2011

     ORAL JUDGMENT:
   



1. Heard Mr. Rajnish Vyas, learned Advocate for the Petitioner and Mr. S. V. Sirpurkar, learned Advocate for the Respondent No.1.

2. Rule, made returnable forthwith. Heard by consent of the parties.

3. The petitioner questioned the order dated 07/10/2009 passed by learned Judicial Magistrate, First Class, Pombhurna in Misc.

Criminal Application No. 17/2008, as also order dated 09/08/2010 passed by the learned Additional Sessions Judge, Chandrapur in Criminal Appeal No. 132/2009.

4. It is the case of the petitioner that he had married with respondent no. 1 namely Gangubai about 19 years back, she resided with him for 3 years at Rajura, District Chandrapur and, then left matrimonial home and started residing with her parents. Respondent No. 2 is son of the petitioner, who according to the petitioner, has already attained the age of majority i.e. 18 years and is not entitled for the maintenance. The petitioner is facing proceedings initiated under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005), which was registered as Criminal Application No. 17/2008, in the Court of Judicial Magistrate, First Class, Pombhurna, District Chandrapur. Sau. Gangubai and her son Prashant, had claimed maintenance at the rate of Rs. 5,000/- per month to the applicant no. 1 - Gangubai and Rs. 5,000/- per month to the applicant no. 2 - Prashant i.e. son of the petitioner, who was aged about 16 years when the application was filed. It is further prayed that petitioner shall provide rented house to his wife and son and, to pay costs of litigation.

5. The petitioner had objected grant of relief by filing a reply to the application disputing the allegations made against him regarding the alleged addiction of liquor, cruel treatment, late night coming, assault etc. He also denied that he drove her out of the matrimonial home as alleged in the year 1994 or about.

6. It appears case of the respondent Gangubai that she had sent notice dated 11/07/2008, by R.P.A.D., demanding amount of maintenance to which reply dated 29/07/2008 was sent by the petitioner (as claimed by him). Under these circumstances, the respondent had claimed maintenance by alleging that they were ill-

treated, petitioner had assaulted his wife under the influence of the liquor and driven her out of the house with warning not to return. It is also contention of the respondent that the applicant had married with one Shobha 26-27 years ago, out of that wedlock, he had two daughters namely Vaishali and Vanmala. According to the petitioner, respondent no. 1 is also married with one Shamrao Tajne.

7. Considering all these contentions and counter contentions, the application preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was allowed partly with direction against the petitioner requiring him to pay maintenance in the sum of Rs. 1,000/- to Gangubai and sum of Rs. 500/- to his son namely Prashant, with further direction to arrange for rental accommodation for residence of Gangubai and her son Prashant and, Rs. 500/- towards cost of litigation. The aforesaid order dated 07/10/2009, by learned Judicial Magistrate, First Class, Pombhurna was carried in Appeal before the learned Sessions Judge, Chandrapur, which came to be dismissed by reasoned Judgment and Order, which petitioner has impugned herein.

8. The main contention of the petitioner is that the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was inordinately delayed and there was no reasonable explanation for the delay and, secondly, that petitioner is not liable to pay maintenance particularly to the son who is already attained age of majority. According to the learned Advocate for the petitioner, since the alleged desertion by the petitioner, Gangubai and her son have resided separately for more than 12 years and, therefore, they are not entitled to claim amount of maintenance. It is further submitted that the impugned Judgment and Order by the Court be quashed.

9. Learned Advocate for the respondent submitted that there is no question of limitation as submitted by the learned Advocate for the petitioner as there is continuous cause of action for a wife to claim maintenance and avail of residence and protection orders under the Domestic Violence Act. He submitted that the respondent no. 2 was aged about 16 years when application was filed and he being unable to maintain himself, is entitled to maintenance.

10. The contention as to whether the Protection of Women from Domestic Violence Act, 2005 is retrospective needs to be considered in the light of settled legal position in this regard. It is true that Penal Statute which creates new offence or introduce an increased penalty will be prospective by reason of the Constitutional restriction imposed by Article 20 of the Constitution of India. The question as to whether the provisions of Domestic Violence Act has a retrospective effect or not is already answered by reasoned Judgment of this Court, in Criminal Writ Petition No. 252/2011.

11. The Apex Court in the case of Vanka Radhamanohari vs. Vanka Venkata Reddy [1993 (3) SCC 4], while considering bar of limitation for taking cognizance of offence as also prayer for condonation of delay, considered matrimonial offences as exceptional causes wherein the Court would not throw out the complaint solely on the ground of delay. In view of the Section 473 of the Code of Criminal Procedure, the Court can take cognizance of an offence not only when it is satisfied on the facts and circumstances of the case that the delay has been properly explained or but also when that is necessary so to do in the interests of justice. Section 473 has non obstante clause which means that the said section has overriding effect over Section 468 if the Court is satisfied in the facts and circumstances of the particular case that either the delay has been properly explained or that it is necessary so to condone it in the interest of justice. Thus, in respect of matrimonial offences when allegations are of cruelty, torture, assault by the husband or members of the family to the complainant, a Court will consider that it is a matter of common experience that the victim who is subjected to a such acts of cruelty repeatedly is more or less suffering from continuing offence it is only as a last resort that wife would approach the Court to unfold the day-

to-day torture and cruelty forced upon her inside the house, as most of the victims are reluctant to make their grievances public.

12. The protection of Women from Domestic Violence Act, 2005 came into force on 26/10/2006 vide S.O. 1776(E), dated 17/10/2006.

The Act was brought into force to provide for more effective protection to the rights of women guaranteed under the Constitution of India who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Thus, any women who or has been in a Domestic relationship who is subjected to Domestic Violence by the respondent i.e. her husband, she can apply under Section 12 of the Act as an "aggrieved person" complainant of Domestic Violence and seek orders under the Act i.e. maintenance, protection orders etc. Thus, the respondent in such application pursuant to the complaint under the Domestic Violence Act, cannot be allowed to defeat the provisions of Act by continuously depriving his wife or applicant with whom he was in the Domestic relationship from the benefits under the Act i.e. shared household, maintenance, monetary benefits in this regard. There shall be continuing causes of action, therefore, there is no question of putting a stop to the relief sought for on the ground of continuous breach of legal right, since the continued deprivation of economic or Financial resources and continued prohibition or denial of access for the shared household, maintenance etc. to the aggrieved person can come within definition of "Domestic Violence" explained in Chapter II of the Act. Protection under the Act becomes available to the wife/applicant, who was driven out from her husband's shared household prior to coming into effect of the Act of 2005, but if the deprivation continued even after the Act came into force. Thus, as held by this Court in Smt Bharati Naik Vs. Shri Ravi Ramnath Halnarkar reported in 2011 ALL MR (Cri) 224, with reference to the Act of 2005, an interpretation which furthers the purpose of the Act must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Thus, even if the Woman was in the past in relationship, she would be entitled to invoke the provisions of the Act on the basis of continuing cause of action.

13. Perusal of Section 26 of the Domestic Violence Act, indicate that relief under the Act is in addition to the relief which may be available in any legal proceeding before Civil Court, Family Court or Criminal Court affecting the aggrieved person and the respondent.

Section 12 which require application before the Magistrate for obtaining order or reliefs under the Act contains proviso to the effect that before passing any order on such application, the magistrate shall take into consideration any Domestic incident report received by him from the Protection Officer or the service provider. The word 'any' in the proviso would indicate that if such report is received, if any, because before receiving such report it is essential that for the area concerned State Government must have appointed Protection Officer.

In view of the Section 7 of the act and such appointment must be notified in the area for which such Protection Officer shall exercise powers and perform the duties in accordance with the Act, while service provider is required to register himself under Section 10 of the Act. In the absence of notification of a Protection Officer or registered Service Provider, it may not be possible for Magistrate to receive Domestic Incident Report before disposing of application made by the aggrieved person under Section 12 of the Act. This question was dealt with by Karnataka High Court in the ruling of Narayankumar Vs. State of Karnataka & Anr reported in 2010 ALL MR (Cri) Journal 158 wherein it is observed that thus;

"In other words if there is a Domestic Incident Report that is received by the Magistrate either from the Protection Officer or from the Provider, then it becomes obligatory on the part of the Magistrate to take note of the said Domestic Incident Report before passing an order on the application filed by the aggrieved party. Therefore, the Section does not say that in every case an aggrieved person is bound to go before either the Protection Officer or the Provider. On the other hand, the scheme of the act make it clear that it is left to the choice of the aggrieved person to go before the Service Provider or the Protection Officer or to approach to the Magistrate under Section 12 of the Act."
Under these circumstances, it appears that an aggrieved person is not necessarily required to approach the Service Provider or the Protection Officer. It is left to the choice of the aggrieved person to approach the Magistrate with an application under Section 12 of the Act. Therefore, one cannot say the Magistrate must wait for notification for appointment of the Protection Officer for the area or registration of Service Provider before disposing of the application under Section 12 of the Act filed by an aggrieved person. When aggrieved person has chosen to approach the Magistrate directly as observed by the Karnataka High Court that the proviso Section 12 makes it clear that the Magistrate shall have to take in to account any incident report received by him before passing any order of the application filed by the aggrieved person. In other words, if there is a Domestic Incident Report that is received by the Magistrate either from the Protection Officer or from the Service Provider then only it is obligatory for the Magistrate to take note of the same before passing final order of the application made by the aggrieved person.

14. For all these reasons, the orders passed by the Courts below do not require any interference and hence petition is dismissed.

JUDGE Punde
Ajay Sethi
Advocate, Mumbai
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The DV and 498a  offences are continuous in nature hence her complaint may be entertained by the police or court.  However its maintainability is doubtful. It can be challenged on the same ground that it is an after thought complaint to wreak vengeance for the divorce case.  You can even try for quashing the same through high court.
T Kalaiselvan
Advocate, Vellore
13893 Answers
127 Consultations
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There is no time limit to the filing of DV and/or 498A. So the answer to your query is is in affirmative. Filing of divorce against her does not preclude her from filing 498A. The FIR can be quashed only on merits of the case.
Ashish Davessar
Advocate, Jaipur
18049 Answers
444 Consultations
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Hi, in case your wife file a police complaint under section 498/A IPC, then the police will not register the complaint immediately, they have to verify the genuineness of  the complaint and proceed further.

2. If the FIR has been registered against you then you can file a petition under section 4982 Criminal Procedure Code before the Hon'ble High Court for quashing the FIR.
Pradeep Bharathipura
Advocate, Bangalore
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133 Consultations
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She can file the DV case and also lodge the police complaint for 498a offence at her own place where she is residing now.  There is no restriction that she cannot file them at your place also, but on a safer side she may file it in her place itself. 
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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She can file it at her place if she can show that she has been a victim at her place.
Ashish Davessar
Advocate, Jaipur
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1) wife can file DC case wherein she is temporarily residing 

2) 498A case has to be filed wherein acts of cruelty have been committed.  If allegations are such that offence continues to her parents place or its effect ensues at her parents place then jurisdiction at her parent's place is made out under crpc178(c) and crpc179 even if nothing is alleged to be done at parent's place.
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
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1. She shall have to lodge the police complaint u/s498A of IPC where the alleged dowry harassment has been committed on her by you i.e. at your place unless she can prove that you had visited her place and harassed/beaten her at her present residence and in hat case she can lodge the said police complaint at her local police station under the said Act,

2. She can file the DV case at her present place.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0

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