# Trilochan Kaur v. Manpreet Kaur & Anr

- **Citation:** (2021) 10 ILRA 939
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-23
- **Case number:** Misc. Single No. 4177 of 2012
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/trilochan-kaur-v-manpreet-kaur-anr-46433
- **Pages:** 28

## Headnote

A. Criminal Law - Protection of Women
From
Domestic
Violence
Act,2005
-
Section
12
-
Limitation
for
moving
940 INDIAN LAW REPORTS ALLAHABAD SERIES
application u/s 12 - Limitation Act, 1963 -
legislature in its wisdom has provided no
limitation for moving application u/s 12 -
rigour of provisions of the Limitation Act,
1963 shall not apply and the application
so moved cannot be turned down in limine
on the ground of limitation alone - best
approach would be to apply the criteria of
within 'reasonable period' and what will
be the 'reasonable period', will be decided
on the basis of 'factual matrix' of each
case, keeping in mind the principle of
'equity, justice and good conscience"
(Para 90)

B. Criminal Law - Criminal Procedure
Code, 1973 - Section 468 - Complaint -
Applicability of limitation under S.468 of
Criminal Procedure Code - Held - Section
468 Cr.P.C. has no applicability for filing
complaint under Section 12 of the D.V.Act.
(Par 56)

Reference Answered. (E-5)

List of Cases cited:-

## Text

_Characters 0–39,990 of 87,254. This is a partial read: ask again with offset=39990 for what follows._

10 All. Trilochan Kaur Vs. Manpreet Kaur & Anr.
939
Investments (P) Ltd. v. Gujrat Industrial
Investment Corporation Ltd. [2006 (39)
AIC 102 (SC) : 2006 (2) SCC 619.] .

16. Here in this case it cannot be
disputed that for appearing in the Court of
law on behalf of a party proper written
authorisation is necessary but under
certain circumstances Counsel can put in
appearance on oral instructions also
provided he is authorised for the said
purpose and at later stage bring on record
a signed authorization i.e., vakalatnama
executed in his/her favour.

17. Learned Counsel for the
respondent
may
be
right
in
his
submissions that no one should be
heard for a party unless he is duly
authorised through signed vakalatnama
to appear before the Court. However in
this
case
although
the
Counsel
appeared but on oral instruction of the
applicant
and
not
through
signed
vakalatnama,
now
the
signed
vakalatname has been executed in
favour of Vivek Kumar Singh and filed
in the Court therefore in my view the
defect if any stood cured."

6.

Learned
counsel
for
the
respondents has strongly relied upon the
case laws referred to by the revisional
court and has opposed this petition.

7.

I
have
considered
the
submissions made by learned counsel
for the parties and perused the record.

8. The Supreme Court as well as
this Court by its judgment passed in the
year 2006 and 2010 have specifically
held that mere defect in filing of power
by not signing the same by counsel is
not a defect which cannot be cured.

9. In view of the law settled by the
Supreme Court in the case of Uday
Shankar Triyar (supra) and this Court in
the case of Gauri Shanker (supra), the
view taken by the revisional court is no
more sustainable in law.

10. In view thereof, the judgment and
order dated 13.11.1992 passed by the
revisional court is set aside. The order of
the court below dated 8.5.1987, by which
restoration in Misc Case No.12 of 1985
was allowed, is maintained. Since it might
be one of the oldest suits before the court
concerned, it shall proceed with the same
expeditiously,
without
granting
any
unnecessary adjournments including on the
ground of strike of lawyers.

11. With the aforesaid, present writ
petition stands allowed.
----------
(2021)10ILR A939
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.10.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Misc. Single No. 4177 of 2012

Trilochan Kaur ...Petitioner
Versus
Manpreet Kaur & Anr. ...Respondents

Counsel for the Petitioner:
Shri Niteesh Kumar

Counsel for the Respondents:
Shri SN. Tilhari, Additional Government
Advocate, Sri Sumit K. Srivastava

A. Criminal Law - Protection of Women
From
Domestic
Violence
Act,2005
-
Section
12
-
Limitation
for
moving
940 INDIAN LAW REPORTS ALLAHABAD SERIES
application u/s 12 - Limitation Act, 1963 -
legislature in its wisdom has provided no
limitation for moving application u/s 12 -
rigour of provisions of the Limitation Act,
1963 shall not apply and the application
so moved cannot be turned down in limine
on the ground of limitation alone - best
approach would be to apply the criteria of
within 'reasonable period' and what will
be the 'reasonable period', will be decided
on the basis of 'factual matrix' of each
case, keeping in mind the principle of
'equity, justice and good conscience"
(Para 90)

B. Criminal Law - Criminal Procedure
Code, 1973 - Section 468 - Complaint -
Applicability of limitation under S.468 of
Criminal Procedure Code - Held - Section
468 Cr.P.C. has no applicability for filing
complaint under Section 12 of the D.V.Act.
(Par 56)

Reference Answered. (E-5)

List of Cases cited:-

1. Akhilesh Kumar Singh & anr. Vs St. of U.P. &
anr. Criminal Revision No.885 of 2015

2. Santosh Kumar Yadav & 5 ors. Vs St. of U.P.
& anr. : 2015 (9 ) ADJ 400

3. Inderjit Singh Grewal Vs St. of Pun. & anr.
(2011) 12 SCC 588

4. Krishna Bhattacharjee Vs Sarathi Choudhury
& anr. (2016) 2 SCC 705

5. Manish Kumar Soni and others Vs St. of Bihar
& anr. 2016 SCC Online Pat 8220

6. Rajendran Vs Meenakshi R.C.No.333 of 2011
dt 27.6.2018 Madras HC

7. Kunapareddy VsKunapareddy Swarna Kumari
& anr. (2016) 11 SCC 774.

8. V.D. Bhanot Vs Savita Bhanot (2012) 3 SCC 183

9. Preetam Singh & anr. Vs St. of U.P. & anr.
2013 (1) Crimes 393 (All)
10. Santosh Kumar Yadav and others Vs State
of U.P. & anr. 2015 (9) ADJ 400

11. Yogesh Anantrai Bhatt & ors. Vs St. of
Gujarat & ors. 2016 SCC Online Guj 2398

12 Athish Rakesh Agarwaal Vs Pallavi Rakesh
Agarwaal & anr. 2020 SCC Online Bom 5743

13. Shaikh Ishaq Budhanbhai Vs Shayeen Ishaq
Shaikh and 2012 SCC Online Bom 1150

14 Sau Aruna Vs Omprakash Devanand Shukla
& ors. 2021 SCC Online Bom 1292

15 Alok Vs Sunita Crm. M No.29008 of 2014 dt
17.1.2020 P& H HC

16. Suraj Subash Tendulkar Vs Mrs. Sangeeta
S.Tendulkar, LD-VCCRI No.40 of 2020 dt
12.10.2020 Bom HC

17. Sri Puttaraju Vs Smt. Shivakumari, Crl.
Revision Petition No.730 of 2019 (Kar) dt
1.4.2021

18. Vikas & ors. Vs Smt. Usha Rani & anr.
Criminal Revision No.3084 (O&M) of 2016 P&H
HC dt 17.4.2018
19. Nandkishor Prahlad Vyawhare Vs Mangala :
2018 Crl. L.J. 2992

20. Huntington Vs Attrill 146 US 657, 673-74
(1892) the Supreme Court of United States

21. Allahabad Bank Vs All India Allahabad Bank
Retired Employees Association (2010) 2 SCC 44

22. Indra Sarma Vs V.K.V.Sarma (2013) 15 SCC
755

23. Hiral P. Harsora and others Vs Kusum
Narottam Das Harsora and Others AIR 2016 SC
4774

24
S.Vanitha
Vs
Deputy
Commissioner,
Bengaluru Urban District & others 2020 SCC
Online SC 1023

25. Suraj Subash Tendulkar Vs Mrs. Sangeeta
S.Tendulkar & anr. dt 12.10.2020 Bom HC at
Goa
10 All. Trilochan Kaur Vs. Manpreet Kaur & Anr.
941
26. Noida Entrepreneurs Association Vs Noida
And Others (2011) 6 SCC 508

27. S. Khushboo Vs Kanniammal & anr. (2010) 5
SCC 600

28. Santosh Kumar Yadav & anr. Vs State of
Uttar Pradesh :2015 (9) ADJ 400

29. A.C. Deepak Kumar Vs P. Priyanka Manu/
Ka/7005/2019

30. State of Gujrat Vs Patel Raghav Nath AIR
1969 SC 1297

31.
Govt.
of
India
Vs
Citedal
Fine
Pharmaceuticals, Madras and others (1989) 3
SCC 483

32. Dehri Rohtas Light Railway Co. Ltd. Vs
District Board Bhojpur, 16 (1992) 2 SCC 598

33. Balwant Singh (Dead) Vs Jagdish Singh
(2010) 8 SCC 685

34. Joint Collector Ranga Reddy District &
anr. Vs D. Rarsing Rao and others (2015) 3
SCC 695

35. Chedi Lal Yadav and others Vs Hari Kishore
Yadav and others reported in (2018) 12 SCC
527

36. Thakur Raghuraj Singh Vs Rai Bahadur Lala
Hari Kishan Das & anr., AIR 1944 PC 35

37. Workmen of Indian Standards Institutions
Vs The Management of Indian Standards
Institution (1975) 2 SCC 847

38. B. Shah Vs Presiding Officer, Labour Court,
Coimbatore and others (1977) 4 SCC 384

39. Bharat Singh Vs Management of New Delhi
Tuberculosis Centre New Delhi, (1986) 2 SCC
614

40.
Lucknow
Development
Authority
Vs
M.K.Gupta (1994) 1 SCC 243

41. Shashi Gupta Vs L.I.C. 1995 Supp (1) SCC
754

42. Union of India Vs Pradeep Kumari (1995) 2
SCC 736

43. Ghantesher Ghosh Vs Madan Mohan Ghosh
and others (1996) 11 SCC 446

44. Bombay Anand Bhawan Restaurant Vs
E.S.I.C. (2009) 9 SCC 61

45. R.P.F.C. Vs Hooghly Mills Company Ltd.
(2012) 2 SCC 489

46. Om Prakash Vs Reliance General Insurance
(2017) 9 SCC 724

47. Page Vs United States, 729 F.2d 818, 821-
22 (D.C.Cir.1984)

48. Bustamente Vs Tucker, 607So. 2d 532 (La.
1992)

49. Shalini Vs Kishore and others (2015) 11 SCC
718

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This reference before us arises out
of a situation where the learned Single
Judge found himself skeptical to accept the
view taken by the two learned Single
Judges of this court in Akhilesh Kumar
Singh and another Vs. State of U.P. and
another in Criminal Revision No.885 of
2015 and Santosh Kumar Yadav and five
others Vs. State of U.P. and another :
2015 (9 ) ADJ 400 wherein it was held that
in absence of specific limitation being
provided for filing complaint under Section
12 of The Protection of Women from
Domestic Violence Act, 2005 ( in short
'D.V. Act'), a complaint can be filed at any
point of time.

2. What prompted learned Single
Judge to feel unconvinced with the
principle of law laid down by two learned
Single Judges of this court is that the
learned Single Judge felt that the views
942 INDIAN LAW REPORTS ALLAHABAD SERIES
expressed by the two learned Single Judges
of this court are not in consoance with the
views expressed by the Hon'ble Apex Court
in the two judgements i.e. (i) Inderjit Singh
Grewal Vs. State of Punjab and another :
(2011) 12 SCC 588 ; and (ii) Krishna
Bhattacharjee Vs. Sarathi Choudhury and
another : (2016) 2 SCC 705.

3. The questions referred by learned
Single Judge are as under :-

"(i). Whether the provisions of
Section 468 of the 'Cr.P.C.' are applicable
for filing complaint under Section 12 of
the Act as seems to have been held by the
Supreme
Court
in
the
aforesaid-
mentioned two cases ?

(ii). Whether a complaint filed
under Section 12 of the Act having civil
consequences and, therefore, in absence
of specific period of limitation being
provided, the complaint should be filed
within a period of three years from the
date of cause of action or whether it can
be filed at any point in time?"

4. Heard Shri Niteesh Kumar, learned
counsel for the petitioner, Shri Sumit K.
Srivastava, assisted with Shri Prashant
Kumar
Singh,
learned
counsel
for
respondent no.1 and Shri Shiv Nath Tilhari,
learned A.G.A. for the respondent no.2.

5. Shri Niteesh Kumar, learned counsel
for the petitioner argued that Section 28 of
the D.V. Act provides that all proceedings
under Sections 12, 18, 19, 20, 21, 22 and 23
shall be governed by the provisions of Code
of Criminal Procedure, 1973 (in short
'Cr.P.C.'), hence it is clear that Cr.P.C. is
applicable. He also argued that Rule 12 of
'The Protection of Women from Domestic
Violence Rules, 2006' ( in short 'D.V. Rules')
provides for service of notice adopting the
procedure either provided in Order V of the
Code of Civil Procedure, 1908 ( in short
'C.P.C.') or provided under Chapter VI of
Cr.P.C., hence it denotes that this legislation
is quasi civil and quasi criminal, in nature.
Section 29 provides limitation of 30 days for
filing of appeal against order passed under
the Act, whereas no limitation has been
prescribed for filing of 'application' under
Section 12 of the D.V.Act. So in such a
situation, limitation shall take effect in
accordance with Article 137 provided in the
Schedule of the Limitation Act. He also
argued that where the act of domestic
violence is in the nature of offence, Section
468 Cr.P.C. shall apply.

6. Learned counsel for the petitioner has
relied on the following case laws :-

(a). Manish Kumar Soni and
others Vs. State of Bihar and another : 2016
SCC Online Pat 8220.

(b). Rajendran Vs. Meenakshi

Order dated 27.6.2018 passed in
R.C.No.333 of 2011 by Madras High Court.

7. On the other hand, Shri Shiv Nath
Tilhari, learned A.G.A. and Shri Sumit
Kumar
Srivastava,
assisted
by
Shri
Prashant Kumar Singh, learned counsel for
respondent no.1 argued that Section 28 (1)
of the D.V.Act provides that provisions of
Cr.P.C. shall apply and section 28(2) says
that the court may develop its own
procedure for disposal of an application
moved under sub Section 12, and sub
section (2) of Section 23 of the D.V. Act,
hence the Limitation Act shall not apply.

8. They further argued that even
Section 468 of Cr.P.C. also, shall not apply
10 All. Trilochan Kaur Vs. Manpreet Kaur & Anr.
943
because that relates to taking of cognizance
of offences and no act of domestic violence
for which relief is provided under Sections
18, 19, 20, 21 and 22 of the D.V.Act has been
made punishable as an offence under the
D.V.Act. The applications are dealt with to
provide remedies of civil nature, hence the
act is remedial in nature. They also argued
that as far as the case law of Inderjit Singh
Grewal (supra) is concerned, in that case,
Hon'ble Apex Court has not considered and
discussed the point of limitation and it was
allowed on the basis of factual matrix of the
case i.e. the decree of divorce already granted
on the basis of mutual consent was
challenged as fraudulent act of the parties.

9. They further submitted that in
Krishna Bhattachrjee's case (supra) also the
Hon'ble Apex Court did not consider the
application of Section 468 Cr.P.C. or
application
of
Limitation Act
to
the
proceedings. The Hon'ble Apex Court treated
the offence as 'continuing offence' (for return
of stridhan) and dismissed the petition of the
husband petitioner who challenged the same
taking the plea that claim is time barred.

10. Learned A.G.A. further argued that
the D.V. Act is a beneficial legislation,
applications filed under this Act cannot be
flouted on technical ground or to say on the
point of limitation.

11. Learned counsel for the opposite
parties and learned A.G.A. relied upon the
following case laws :-

(1).
Kunapareddy
Vs.Kunapareddy Swarna Kumari and
another

reported in (2016) 11 SCC 774.

(2). V.D. Bhanot Vs. Savita
Bhanot

reported in (2012) 3 SCC 183.

(3). Preetam Singh and another
Vs. State

of U.P. and another

reported in 2013 (1) Crimes 393 (All).

(4). Santosh Kumar Yadav and
others Vs. State of U.P. and another

reported in 2015 (9) ADJ 400.

(5). Yogesh Anantrai Bhatt and
others Vs. State of Gujarat and others

(6). Athish Rakesh Agarwaal Vs.
Pallavi Rakesh Agarwaal and another

reported in 2020 SCC Online
Bom 5743.

(7). Shaikh Ishaq Budhanbhai
Vs. Shayeen Ishaq Shaikh and others

reported in 2012 SCC Online
Bom 1150.

(8). Sau Aruna Vs. Omprakash
Devanand Shukla and others

reported in 2021 SCC Online
Bom 1292.

(9). Alok Vs. Sunita

judgement
and
order
dated
17.1.2020 decided by Punjab and Haryana
High Court decided on 17.1.2020 passed in
Crm. M No.29008 of 2014.

(10). Suraj Subash Tendulkar
Vs. Mrs. Sangeeta S.Tendulkar,

judgement
and
order
dated
12.10.2020 passed by High court of
Bombay in LD-VC- CRI No.40 of 2020.

(11). Sri Puttaraju Vs. Smt.
Shivakumari,
944 INDIAN LAW REPORTS ALLAHABAD SERIES

Judgement dated 1.4.2021 passed
by Karnataka High Court in Crl. Revision
Petition No.730 of 2019.

(12).Vikas and others Vs. Smt.
Usha Rani

and another decided on 17.4.2018
by Punjab and Haryana High Court passed
in Criminal Revision No.3084 (O&M) of
2016.

(13).
Nandkishor
Prahlad
Vyawhare Vs.

Mangala : 2018 Crl. L.J. 2992.

12. Considered the rival submissions
and gone through the cited case laws as
well as the provisions of D.V.Act and
Chapter XXXVI of of Cr.P.C. (Section 467
to 473 ) and Limitation Act, 1963.

Nature of D.V.Act

13. First of all, we have to consider
the object of legislation for which D.V. Act
has been enacted.

14. The main objective of the D.V.
Act is to bestow effective protection of the
rights of women guaranteed under the
Constitution of India, who are the victims
of violence of any kind, happening within
the family and the incidental thereto. The
'Statement of objects and reasons of the
D.V. Act' is as under :-

"Domestic
violence
is
undoubtedly a human rights issue and
serious deterrent to development. The
Vienna Accord of 1994 and the Beijing
Declaration and the Platform for Action
(1995) have acknowledged this. 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 State parties should act
to protect women against violence of any
kind especially that occurring within the
family.

2. The phenomenon of domestic
violence is widely prevalent but has
remained largely invisible in the public
domain. Presently, where a woman is
subjected to cruelty by her husband or his
relatives, it is an offence under Section
498-A of the Indian Penal Code. The civil
law does not however address this
phenomenon in its entirety.
3. It is, therefore, proposed to enact a law
keeping in view the rights guaranteed
under Article 14, 15 and 21 of the
Constitution to provide for a remedy under
the civil law which is intended to protect
the woman from being victims of domestic
violence and to prevent the occurrence of
domestic violence in the society"

14. In the case of Huntington Vs.
Attrill 146 US 657, 673-74 (1892) the
Supreme Court of United States observed
that whether a statute is remedial or penal
"depends upon the question whether its
purpose is to punish the offense against the
public justice of the State or to afford a
private remedy to a person injured by the
wrongful act."0

16. According to 'Corpus Juris
Secundum' (Encyclopedia of United States
Law), a beneficial/ remedial statute "is
designed to correct an existing law, redress
an
existing
grievance,
or
introduce
regulations conducive to the public good."

17. In SINGH 2016:629 (6 Singh
G.P.,
"Principle
of
Statutory
Interpretation" (2016), the observation of
Justice G.P.Singh is : "........ there are
10 All. Trilochan Kaur Vs. Manpreet Kaur & Anr.
945
legislations which are directed to cure some
immediate mischief and bring into effect
some
type
of
social
reforms
by
ameliorating the conditions of certain class
of persons who according to present day
notions may not have been fairly treated in
the past. Such legislations prohibit certain
acts by declaring them invalid and provide
for redress or compensation to the persons
aggrieved. If a statute of this nature does
not make the offender liable to any penalty
in favour of the State, the legislation will be
classified as remedial. Remedial statutes
are also known as welfare, beneficent or
social justice oriented legislations".

18. Hon'ble Apex Court in the case of
Allahabad Bank Vs. All India Allahabad
Bank
Retired
Employees
Association
(2010) 2 SCC 44 has highlighted the
distinction between 'Beneficial'/ 'Remedial'
statute and Penal Statute as under :-

"16. ........... Remedial statutes, in
conrtradistinction to penal statutes, are
known as welfare, beneficent or social
justice oriented legislations. Such welfare
statutes
always
receive
a
liberal
construction. They are required to be so
construed so as to secure the relief
contemplated by the statute................."

Thus, 'Beneficial legislations' are
reformative in character and 'Penal Statutes'
are punishment centric legislation.

19. In Indra Sarma Vs. V.K.V.Sarma
: (2013) 15 SCC 755, the Hon'ble Apex
Court has observed that the D.V. Act has
been enacted to provide a remedy in civil
law for protection of women from being
victims of domestic violence and to prevent
occurrence of domestic violence in the
society. The D.V. Act has been enacted
also to provide an effective protection of
the rights of the women guaranteed under
the Constitution, who are the victims of
violence of any kind occurring within the
family.

20. In the case of Manish Kumar Soni
Vs. State of Bihar and another (supra)
(Cited
by
learned
counsel
for
the
petitioner), Patna High Court has held as
under :-

"All
the
above
remedies
envisaged in Sections 17 to 22 are basically
civil reliefs. There are only two penal
provisions in the Act i.e. Section 31 which
stipulates penalty for breach of protection
order by respondent and Section 33 which
stipulates penalty for not discharging duty
by Protection Officer.

Hence, a Magistrate is not
required to proceed which an application is
filed under Section 12 of the Act like a
regular complaint under Section 200 or
202 of the Cr.P.C. though in the present
case, the Magistrate has proceeded on the
application under Section 12 of the Act like
a regular complaint but the same has in no
way, prejudiced the petitioners.

Hence, though the provision
under Section 28(1), the Act stipulates that
the proceeding under Section 12 of the Act
shall be governed by the provisions of the
Code of Criminal Procedure, but the same
is directory in nature and any departure
from the provisions of Code of Criminal
Procedure will not vitiate the proceeding
initiated under Section 12 of the Act."

21. In Hiral P. Harsora and others
Vs. Kusum Narottam Das Harsora and
Others : AIR 2016 SC 4774, the Hon'ble
Apex Court has discussed the object of
D.V.Act and observed as under :-
946 INDIAN LAW REPORTS ALLAHABAD SERIES

"16. A cursory reading of the
statement of objects and reasons makes it
clear that the phenomenon of domestic
violence against women is widely prevalent
and needs redressal. Whereas criminal law
does offer some redressal, civil law does
not address this phenomenon in its entirety.
The idea therefore is to provide various
innovative remedies in favour of women
who suffer from domestic violence, against
the perpetrators of such violence.

17. The preamble of the statute is
again significant. It states : Preamble "An
Act to provide for more effective protection
of the rights of women guaranteed under
the constitution who are victims of violence
of any kind occurring within the family and
for
matters
connected
therewith
or
incidental thereto".

18. What is of great significance
is that the 2005 Act is to provide for
effective protection of the rights of women
who are victims of violence of any kind
occurring within the family. The preamble
also makes it clear that the reach of the Act
is that violence, whether physical, sexual,
verbal, emotional or economic, are all to
be redressed by the statute. That the
perpetrators and abettors of such violence
can, in given situations, be women
themselves, is obvious. With this object in
mind, let us now examine the provisions of
the statute itself."

22. The Hon'ble Apex Court in
S.Vanitha Vs. Deputy Commissioner,
Bengaluru Urban District & others : 2020
SCC Online SC 1023, elucidating the
nature of D.V.Act has observed as under :-

"...................The PWDV Act 2005
was intended to deal with the problems of
domestic violence which, as the Statements
of Objects and Reasons set out, "is widely
prevalent
but
has
remained
largely
invisible in the public domain". The
Statements
of
Objects
and
Reasons
indicates that while Section 498A of the
Indian Penal Code created a penal offence
out of a woman's subjection to cruelty by
her husband or relative, the civil law did
not address its phenomenon in its entirety.
Hence, consistent with the provisions of
Articles 14, 15 and 21 of the Constitution,
Parliament enacted a legislation which
would "provide for a remedy under the civil
law which is intended to protect the woman
from being victims of domestic violence
and to prevent the occurrence of domestic
violence in the society"........"

23. In Suraj Subash Tendulkar Vs.
Mrs. Sangeeta S.Tendulkar and another
decided on 12.10.2020 by the Bombay
HIgh Court at Goa has concluded as
follows :-

"49. From the above, we can
safely conclude that the Magistrate under
the DV Act enjoys procedural freedom. He
may adopt the procedure under the CPC or
Cr.PC or any other procedure "with a view
to expediting the proceedings".

Conclusion :

(a). The D.V.Act is a civil remedy
for the victims of domestic violence. Only
the forum is under criminal law.

(b). The forum has abundant
procedural freedom ; it can follow its own
procedure for disposing applications under
section 12 or under sub-section (2) of
section 23.

(c). Once, the court decides to
follow its own procedure under section 12,
10 All. Trilochan Kaur Vs. Manpreet Kaur & Anr.
947
any
discussion
on
the
procedural
limitations under CrPC becomes otiose.

(d). The DV Act is in addition to
and not in derogation of other enactments.

(e). The concepts of issuing
process, taking cognisance, treating the
respondents as accused or suspects do not
apply.

(f). Nor should the courts insist
on the respondents' presence for every
adjournment as if they were accused.

(g). Section 12, until it reaches
sub-section (4), focuses on the reliefs
sought and the orders that may be passed
granting those reliefs.

(h). The proviso to sub-section (1)
of section 12 governs only that sub-section,
not the rest of the provision.

(h). If a summoned respondent
demonstrates before the court that he has
nothing to do with the allegations in the
application, the Magistrate may close the
proceedings against him.

(i). The concepts of discharge,
acquittal, conviction do not apply to the
proceedings under section 12. Nor does the
idea of recalling the process.

(j) Fixing a date for the first
hearing cannot be equated with issuing of
process. So relying on the domestic
incident relief or rendering a detailed
'order' under section 12(4) is not a
condition precedent for the Magistrate to
fix the date of first hearing."

24. It is discernible from the
'Statement of Objects and Reasons' of
D.V.Act, that the 'Act' was enacted to
provide remedies of civil nature to the
women who are victims of domestic
violence. In other words, to redress the
grievances
of
the
women-victims
of
domestic violence through civil remedies as
opposed
to
penal
remedies,
already
available under the existing laws.
25. The reliefs provided under the D.V. Act
are as under :

(a) Protection order - Section 18
readwith 2 (O)

(b) Residence Order - Section 19
readwith 2 (P)

(c) Monetary reliefs -Section 20
readwith 2(K)

(d) Custody order - Section 21
readwith 2 (D)

(e) Compensation Order-Section
22 readwith 2(C )

26. From a plain reading of these
provisions related to claims/reliefs provided
in the D.V. Act, it is clear that none of them
can be treated or construed as an 'offence'
punishable under the D.V .Act. In other
words, no act of violence has been made
punishable under the D.V. Act except the non
compliance under Sections 31 and 'Penalty
for not discharging duty by Protection
Officer' under Section 33 of the D.V. Act.
The D.V.Act only provides the remedies to
protect the aggrieved person from domestic
violence. It is evident from the Act that there
is no penal provisions provided in the Act for
the person who committed domestic violence
against the victim/ aggrieved person.

27. What has culled out in nutshell is
that the D.V.Act is a beneficent legislation,
948 INDIAN LAW REPORTS ALLAHABAD SERIES
remedial in nature which provides remedies
of civil nature.

28. Now keeping in mind the above
principles, we proceed to deal with the
questions referred.

Question No.-(i)."Whether the
provisions of Section 468 of the 'Cr.P.C.'
are applicable for filing complaint under
Section 12 of the Act as seems to have
been held by the Supreme Court in the
aforesaid- mentioned two cases ?"

29. It poses a question whether
Section 468 Cr.P.C. shall be applicable for
filing complaint under Section 12 of the
D.V.Act especially in the light of principles
of law laid down by Hon'ble Apex Court in
the cases of Inderjit Singh Grewal (supra)
and Krishna Bhattachrjee (supra).

30. As concluded earlier, the D.V.Act
is a legislation which provides remedies of
civil nature. The D.V.Act was passed "in
order to provide a remedy in the civil law
for the protection of women for being
victims of domestic violence and to prevent
the occurrence of domestic violence in the
society."

31. Section 12 of the D.V.Act is an
enabling Section which provides for
moving an application for the remedies
provided under the Act. Section 12 of the
D.V. Act runs as under :-

"12. Application to Magistrate.--

(1) An aggrieved person or a
Protection Officer or any other person on
behalf of the aggrieved person may present
an application to the Magistrate seeking one
or more reliefs under this Act: Provided 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.

(2) The relief sought for under subsection (1) may include a relief for issuance
of an order for payment of compensation or
damages without prejudice to the right of
such
person
to
institute
a
suit
for
compensation or damages for the injuries
caused by the acts of domestic violence
committed by the respondent: Provided that
where a decree for any amount as
compensation or damages has been passed
by any court in favour of the aggrieved
person, the amount, if any, paid or payable in
pursuance of the order made by the
Magistrate under this Act shall be set off
against the amount payable under such
decree and the decree shall, notwithstanding
anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), or any other
law for the time being in force, be executable
for the balance amount, if any, left after such
set off.

(3) Every application under subsection (1) shall be in such form and contain
such particulars as may be prescribed or as
nearly as possible thereto.

(4) The Magistrate shall fix the first
date of hearing, which shall not ordinarily be
beyond three days from the date of receipt of
the application by the court.

(5) The
Magistrate
shall
endeavour to dispose of every application
made under sub-section (1) within a period
of sixty days from the date of its first
hearing."

32. The Magistrate on the application
moved under Section 12 may pass order for
10 All. Trilochan Kaur Vs. Manpreet Kaur & Anr.
949
protection, order for residence, order for
monetary reliefs, order for custody of
children and order for compensation. Here
under D.V.Act., the relief provided is of
remedial nature and not in a nature of
conviction or imposition of penalty. No
order is passed on the application moved to
punish the person who committed domestic
violence as there is no such provision under
the Act. In other words, no act of domestic
violence has been declared as an offence
under this Act except as provided under
Sections 31 and 33 of the Act.

33. In NOIDA ENTREPRENEURS
ASSOCIATION
Vs.
NOIDA
AND
OTHERS : (2011) 6 SCC 508, the Hon'ble
Apex Court has held as under ( relevant
paragraphs 19,20 and 21 ) :

"19. So far as the initiation of
criminal proceedings is concerned, it is
governed by the provisions of the Code of
Criminal Procedure, 1973 (hereinafter
referred to as "CrPC"). Section 468 thereof
puts an embargo on the court to take
cognizance of an offence after expiry of
limitation provided therein. However, there
is no limitation prescribed for an offence
punishable with more than 3 years'
imprisonment. Section 469 declares as to
when the period of limitation would start.
Sections 470 and 471 provide for exclusion
of period of limitation in certain cases.
Section 473 enables the court to condone
the delay provided the court is satisfied
with the explanation furnished by the
prosecution or where the interest of justice
demands extension of the period of
limitation.

20. This Court in Japani Sahoo
Vs. Chandra Sekhar Mohanty, dealt with
the issue and observed as under : (SCC
p.401, para 14).

"14. The general rule of criminal
justice is that 'a crime never dies'. The
principle is reflected in the well- known
maxim 'nullum tempus out locus occurrit
regi' (lapse of time is no bar to Crown in
proceeding against offenders)..... It is
settled law that a criminal offence is
considered as a wrong against the State
and the society even though it has been
committed against an individual. Normally,
in serious offences, prosecution is launched
by the State and a court of law has no
power to throw away prosecution solely on
the ground of delay. Mere delay in
approaching a court of law would not by
itself afford a ground for dismissing the
case though it may be a relevant
circumstance in reaching a final verdict.

The aforesaid judgement was
followed by this court in Sajjan Kumar Vs.
CBI.

21. Thus, it is evident that
question of delay in launching criminal
prosecution may be a circumstance to be
taken into consideration in arriving at a
final decision, but it cannot itself be a
ground for dismissing the complaint. More
so, the issue of limitation has to be
examined in the light of the gravity of the
charge."

34. Now, it appears necessary to go
through the provisions contained in Chapter
XXXVI of the Cr.P.C. Sections 467, 468,
469, 471, 472 and 473 of the Cr.P.C. read
as under :-

"467.
Definitions.
For
the
purposes of this Chapter, unless the context
otherwise
requires,
"period
of
limitation" means the period specified in
section 468 for taking cognizance of an
offence.
950 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

(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.

469.
Commencement
of
the
period of limitation.

(1) The period of limitation, in
relation to an offence, shall commence,-

(a) on the date of the offence; or

(b) where the commission of the
offence was not known to the person
aggrieved by the offence or to any police
officer, the first day on which such offence
comes to the knowledge of such person or
to any police officer, whichever is earlier;
or

(c) where it is not known by
whom the offence was committed, the first
day on which the identity of the offender is
known to the person aggrieved by the
offence or to the police officer making
investigation into the offence, whichever is
earlier.

(2) In computing the said period,
the day from which such period is to be
computed shall be excluded.

470. Exclusion of time in certain
cases.

(1) In computing the period of
limitation, the time during which any
person has been prosecuting with due
diligence another prosecution, whether in a
Court of first instance or in a Court of
appeal or revision, against the offender,
shall be excluded:

Provided that no such exclusion
shall be made unless the prosecution
relates to the same facts and is prosecuted
in good faith in a Court which from defect
of jurisdiction or other cause of a like
nature, is unable to entertain it.

(2) Where the institution of the
prosecution in respect of an offence has
been stayed by an injunction or order, then,
in computing the period of limitation, the
period of the continuance of the injunction
or order, the day on which it was issued or
made, and the day on which it was
withdrawn, shall be excluded.

(3) Where notice of prosecution
for an offence has been given, or where,
under any law for the time being in force,
10 All. Trilochan Kaur Vs. Manpreet Kaur & Anr.
951
the previous consent or sanction of the
Government or any other authority is
required
for
the
institution
of
any
prosecution for an offence, than, in
computing the period of limitation, the
period of such notice or, as the case may
be, the time required for obtaining such
consent or sanction shall be excluded.

Explanation-

In computing the time required
for obtaining the consent or sanction of the
Government or any other authority, the
date on which the application was made for
obtaining the consent or sanction and the
date of receipt of the order of the
Government or other authority shall both
be excluded.

(4) In computing the period of
limitation, the time during which the
offender-

(a) has been absent from the
India or from any territory outside India
which is under the administration of the
Central Government, or

(b) has
avoided
arrest
by
absconding or concealing himself, shall be
excluded.

471. Exclusion of date on which
Court is closed.

Where the period of limitation
expires on a day when the Court is closed,
the Court may take cognizance on the day
on which the Court reopens.

Explanation-

A Court shall be deemed to be
closed on any day within the meaning of this
section, if, during its normal working hours,
it remains closed on that day.

472. Continuing offence.

In the case of a continuing offence,
a fresh period of limitation shall begin to run
at every moment of the time during which the
offence continues.

473.
Extension
of
period
of
limitation in certain cases. Notwithstanding
anything
contained
in
the
foregoing
provisions of this Chapter, any Court may
make cognizance of an offence after the
expiry of the period of limitations, if it is
satisfied on the facts and in the circumstances
of the case that the delay has been properly
explained or that it is necessary so to do in
the interests of justice."

35. Conjoint reading of Sections 467
and 468 Cr.P.C. shows that the limitation is
there for taking cognizance of offences. The
term 'offence' has been defined under Section
40 of the I.P.C., which runs as under :-

"40. "Offence".--Except in the
Chapters and sections mentioned in clauses 2
and 3 of this section, the word "offence"
denotes a thing made punishable by this
Code.

In Chapter IV, Chapter VA and in
the following sections, namely, sections 64,
65, 66, [67, 71], 109, 110, 112, 114, 115, 116,
117,118, 119, 120, 187, 194, 195, 203, 211,
213, 214, 221, 222, 223, 224, 225,327, 328,
329, 330, 331, 347, 348, 388, 389 and 445,
the
word
"offence"
denotes
a
thing
punishable under this Code, or under any
special or local law as hereinafter defined.

And in sections 141, 176, 177,
201, 202, 212, 216 and 441, the word
952 INDIAN LAW REPORTS ALLAHABAD SERIES
"offence" has the same meaning when the
thing punishable under the special or local
law is punishable under such law with
imprisonment for a term of six months or
upwards, whether with or without fine."

36. The term 'offence' has also been
defined under the General Clauses Act,
1897 in Section 3(38) which runs as under
:-

"3(38). "Offence" shall mean
any act or omission made punishable by
any law for the time being in force."

37. A three Judges' Bench of Hon'ble
Apex
Court
in
S.
Khushboo
Vs.
Kanniammal and another (2010) 5 SCC
600, has held as under :-

""Offence" means "an act or
instance of offending": "commit an illegal
act" and "illegal" means, "contrary to or
forbidden by law". "Offence" has to be read
and understood in the context as it has
been prescribed under the provisions of
Sections 40, 41 and 42 IPC which cover the
offences punishable under I.P.C. or under
special or local law or as defined under
Section 2(n) Cr.P.C. or Section 3(38) of the
General
Clauses
Act,
1897
(vide
Proprietary Articles Trade Association Vs.
Attorney General for Canada AIR 1931 PC
94 ; Thomas Dana Vs. State of Punjab AIR
1959 SC 375 ; Jawala Ram and others Vs.
The State of Pepsu (now Punjab) & Ors.
AIR 1962 SC 1246 ; and Standard
Chartered Bank & Ors. Vs. Directorate of
Enforcement & Ors. AIR 2006 SC 1301)."

38. Thus, 'offence' denotes an act or
omission for which punishment is provided
under the law. As we have noted earlier
that no act of domestic violence has been
treated as offence and made punishable
under the D.V.Act (except as provided in
Sections 31 & 33), and Section 468 Cr.P.C.
applies for taking of cognizance of
offences.

39. In Sri Puttaraju Vs. Smt.
Shivakumari (supra), the Karnataka High
Court at Bengaluru has held as under :-

"26. In the judgements of the
Hon'ble Supreme Court referred to above,
the interplay of Section 3(38) of the
General Clauses Act, Section 31 of the DV
Act and Section 468 of Cr.P.C. had not
fallen for consideration.