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HC: Domestic violence Act can be applied retrospectively

Karimkhan S/O. Sailanikhan vs 2) Nahid Akhtar W/O. Karimkhan on 5 August, 2011
Bench: A.P. Bhangale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

CRIMINAL WRIT PETITION NO.252 OF 2011

Karimkhan s/o. Sailanikhan,

Aged about 47 yrs., Occ. Labour,

r/o. Ward No.20, Bazarfail, Shegaon,

Tq. Shegaon, Distt. Buldana………. PETITIONER. // Versus //

1) State of Maharashtra,

through P.S.O., Khamgaon,

Shivajinagar, Tq.Khamgaon,

Distt. Buldana.

2) Nahid Akhtar w/o. Karimkhan,

Aged about 45 yrs., Occ. Private

Work, r/o. c/o. Nurullakhan

Amirullakhan, Lohar Galli, Juna

Fail, Khamgaon, Tq. Khamgaon,

Distt. Buldana. ………. RESPONDENTS. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri. A.J.Thakkar, Adv. for Petitioner. Mrs.K.R.Deshpande, A.P.P. for Respondent No. 1/State.

Shri S.S.Shingne, Adv. for Respondent No.2. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- 2

Date of reserving the Judgment : 1.8.2011. Date of pronouncement of the Judgment : 5.8.2011. CORAM : A.P.BHANGALE, J.

JUDGMENT :

 

1. Heard Shri. A.J.Thakkar, Adv. for Petitioner. Mrs.K.R.Deshpande, A.P.P. for Respondent No.1/State and Shri S.S.Shingne, Adv. for Respondent No.2.

2. Rule. Rule is made returnable forthwith. By consent, the matter is taken up for final hearing.

3. This is a Criminal Writ Petition against the judgment and order dated 22.01.2010 passed by the Learned Additional Sessions Judge, Khamgaon in Criminal Appeal No. 35 of 2009 affirming thereby the order dated 05.11.2009 passed by the Learned Judicial Magistrate Court no 3, Khamgaon below Ex. 15 in Criminal Case No. 118 /2009, under Sections 12, 18, 19 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 ((hereinafter referred to as the ‘Act of 2005’). 3

4. The facts, briefly stated, are as under :- The Respondent no.2 /wife/aggrieved person filed afore-mentioned Criminal Case bearing No.118 of 2009 under Sections 12,18,19,20,and 22 of the Act alleging that she was married with the Petitioner on 24.01.1993 as per the custom prevailing in the Muslim community. The Father of the respondent no.2 had spent Rs Two lacs in the marriage of the Respondent no.2 and also gifted cash in the sum of Rs. 40,000/-, valuable articles including the golden ornaments worth Rs 50,000/- to the Respondent no.2. After the marriage, they lived together as husband and wife in the matrimonial home. Out of the wedlock, two daughters namely Ms Bushra and Ms Uzama were born. The Petitioner and his family members used to ill-treat Respondent no.2 physically and mentally. She was driven out from the matrimonial home on 09.06.2001. The Petitioner is selling Clothes and general articles and earns Rs 20,000/- per month from the business. The Petitioner had demanded a sum of Rs. 1,00,000/- for his business. The Respondent no.2 showed her inability and therefore, the Petitioner started giving physical and mental torture to the Respondent no.2 and drove her out of the house 4

compelling her to stay with her parents. The Petitioner had come to the house of Respondent’s parents and demanded the cash of Rs one lac and upon refusal, had beaten the Respondent no.2 mercilessly. The Respondent no.2 had lodged complaint to the Khandwa Police Station. The case is still pending in the Khandwa Court. Financial condition of the parents of the Respondent no.2 is very poor and they can not fulfill the demands of the Petitioner. The Respondent no.2 became psychotic patient due to torture. She is unable to bear the medical expenses as she is living at the mercy of her parents. She has prayed for monthly maintenance @ Rs. 5,000/- per month for herself with two children and a further sum of Rs. 1,00,000/- in lumpsum towards the medical expenses and litigation expenses and Rs.2,00,000/- towards compensation.

5. The Petitioner, on 22.09.2009, by filing an application at Ex .15 in the proceedings pending on the file of the Court of Judicial magistrate, First Class, Court no.3 Khamgaon, had raised an objection as to maintainability of the proceedings filed by the Respondent no.2 on the ground that the Act of 2005 has no retrospective effect, 5

since it came into force on 26.10.2006. It is contended that the respondent no.2 made the allegations of ill treatment, misbehavior by the Petitioner till date, though she left the company of the Petitioner on 09.05.2001. According to the Petitioner, the respondent no.2 had also filed an application under Section 125 of the Code of Criminal Procedure in the court at Khandwa and hence, the Complaint proceedings are filed by the respondent no.2 to harass the Petitioner and is not legally maintainable. The learned Judicial Magistrate, First Class rejected the objection as to maintainability of the proceedings under the Act of 2005 on the ground that the marital relationship between the parties is still subsisting. The Act was enacted pursuant to the Vienna Accord of 1994 and Beijing declaration and the platform for action (1995) which recognized that the domestic violence is, undoubtedly, a Human Right issue and a serious deterrent to development. The United Nations Committee on Convention on elimination of all forms of Discrimination against women (CEDAW) in its General recommendation No. XII (1989) has recommended that the State parties should act to protect women against violence of any kind 6

especially in case of those occurring within the family since the phenomenon of domestic violence, though widely prevalent, remained invisible in public domain.

6. The learned counsel appearing for the petitioner submits that the circumstances of alleged domestic violence, as stated in her complaint by the aggrieved person, occurred prior to the coming into force of the Act of 2005. It is the contention of the learned counsel that the said Act has no retrospective effect and, as such, the circumstances which allegedly occurred prior to the coming into force of the Act of 2005 cannot be taken into consideration for granting any relief under the said Act of 2005. The learned counsel for the petitioner submits that the Respondent/ Wife had previously filed a matrimonial suit for divorce with Darul Quaza – undertaking of all India Muslim Personal law Board, but it was dismissed. The learned counsel for the Petitioner submitted with reference to the rulings in Jayesh Uttamrao Khairnar & Ors. vs. State of Maharsashtra & Ors., 2010 ALL MR (Cri) 2259 and Kishor s/o. Shrirampant vs. Sou. Shalini w/o Kishor Kale & Ors. reported in 2010 ALL MR (Cri) 1386 that the complaint by the respondent/wife ought to be 7

quashed for the reason that the same is filed with mala fide intention and that too, after a long gap to harass the Petitioner.

7. The learned counsel appearing for the Respondent/ wife submits that the acts of torture, cruelty, domestic violence etc. although committed prior to the coming into force of the Act of 2005, are continuous causes of action and, as such, the question of retrospective effect of the Act of 2005 does not arise at all. It is contended on behalf of the Respondent/wife that the Learned Magistrate has jurisdiction to pass an order ex-parte under Section 23 of the Act of 2005 restraining the husband from alienating the property. It is contended that since the marital knot has not yet been dissolved by decree of divorce, the wife has the lawful right in the shared household.

8. It is true that the 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 Act has a retrospective effect or not is not material at all in view of the decision reported in 8

the case of Vanka Radhamanohari vs. Vanka Venkata Reddy, [1993 (3) SCC 4]. Taking into consideration the submission of the learned counsel appearing for the parties and keeping in view the ratio laid down by the Apex Court in Vanka Radhamanohari’s case (supra), this Court is of the considered view that there is a continuing cause of action for filing the said case i.e. Criminal case 118 of 2009 in the Court of Judicial Magistrate, First Class, Khamgaon by the present Respondent/wife. Admittedly, 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. Since there is a continuing cause of action, for the reasons discussed above, this Court is of the firm view that the provisions of the said Act of 2005 are attracted in the present case; and accordingly, the Respondent-wife filed the said case i.e. Criminal Case No. 118 of 2009 under the Act of 2005. The Petitioner can not be allowed to defeat the provisions of the Act continuously by depriving the Respondent/wife, who is legally entitled to a shared household in terms of the provisions of the Act of 2005. The denial of access to shared household to the respondent/wife took place prior to coming into force of 9

the Act of 2005, but such denial continued even thereafter. As the act complained of by the petitioner is a continuing breach of legal right, as envisaged in the Act of 2005, there is no question of putting a stop to the relief sought for. Therefore, giving relief to the Respondent/wife for such continuous breach of the legal right, which has accrued to her, would not amount to giving retrospective effect to the Provisions of the Act of 2005. In view of this discussion, I have no hesitation to hold that continued deprivation of economic or Financial resources and continued prohibition or denial of access for the shared household to the aggrieved person is a domestic violence and the protection under the Act of 2005 will be available to the Respondent/wife who was driven out from her husband’s shared household prior to coming into effect of the Act of 2005, but the deprivation continued even after the Act came into force.

9. In the instant case, it has been alleged in the petition under Sections 12 & 22 of the Act of 2005 that, even after torture upon the aggrieved person in her matrimonial home, the Petitioner/husband visited her parental home, threatened and abused the aggrieved party 10

for which the aggrieved party lodged written complaints with the Khandwa Police Station. It is alleged that, on 22.05.2002, the respondent became violent and aggressive towards the aggrieved party and beaten her mercilessly. The said proceeding is pending in the Khandwa Court.

10. In Paras 3 to 5 of the petition, the Respondent/wife alleged that, in the matrimonial home, she was subjected to mental cruelty, physical torture, abuse and misbehavior. In Para 6 of her application, she stated that she want separate accommodation.

 

11. In view of the ruling in Smt Bharati Naik Vs. Shri Ravi Ramnath Halnarkar reported in 2011 ALL MR (Cri) 224, this Court, with reference to the Act of 2005, held that 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 a relationship, she would be entitled to invoke the provisions of the Act on the basis of continuing cause of action.

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12. The impugned Judgment and order is well reasoned and sound. It does not require any interference as no any infirmity is seen. It is well settled that the Writ Court cannot transpose itself as an Appellate Court unless the decision impugned is wrong, perverse and smacks of mala-fide motive. The Petition, therefore, lacks merits and deserves dismissal. It is dismissed with costs. JUDGE

jaiswal

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Categories: DV Judgements
  1. thabitha
    April 2, 2012 at 4:15 pm

    hi

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