Case Note & Summary
The Bombay High Court dismissed a husband's writ petition challenging an interim maintenance order awarded to his wife and children under the Protection of Women from Domestic Violence Act, 2005. The wife and minor children filed an application under Sections 12, 17, 18, 19, 20, 22, and 23 of the Act before the Judicial Magistrate, Ahmednagar, alleging that they were driven out of the matrimonial home without provision for maintenance. The magistrate ordered an inquiry and subsequently granted interim maintenance of Rs. 3,000 per month to the wife and Rs. 2,000 each to the two children. The husband appealed to the Sessions Court, which dismissed the appeal with costs. The husband then filed the writ petition, contending that the proceedings were barred by limitation under Section 468 of the Code of Criminal Procedure, 1973, as they were initiated three years after the alleged desertion. He also argued that the application was a counterblast to his custody petition. The High Court examined Section 28 of the Domestic Violence Act, which provides that proceedings under the specified sections are governed by the CrPC, but also permits the court to lay down its own procedure for applications under Section 12 or Section 23(2). The court held that an application for a protection order is not a complaint of an offence under Section 31 of the Act, as an offence under Section 31 only arises upon breach of a protection order. Thus, the bar under Section 468 CrPC applies only when taking cognizance of an offence, and since no breach had occurred, the limitation plea was untenable. The court further observed that interim maintenance is not an offence, and the need for sustenance can arise any time, justifying the relief. Relying on the Madhya Pradesh High Court decision in Ajay Kant v. Alka Sharma, the court concluded that the proceedings were not hit by limitation. The writ petition was rejected, and the rule was discharged.
Headnote
A) Criminal Procedure - Limitation - Sections 12, 31 of Protection of Women from Domestic Violence Act, 2005 - Section 468 of Criminal Procedure Code, 1973 - An application under Section 12 of the Domestic Violence Act seeking protection orders does not constitute a complaint of an offence under Section 31 of the Act; the bar under Section 468 CrPC only applies at the time of taking cognizance of an offence, and no offence under Section 31 arises until a protection order is breached - Held that the proceeding is not barred by limitation (Paras 7-9) B) Domestic Violence - Interim Maintenance - Section 23 of Protection of Women from Domestic Violence Act, 2005 - Interim maintenance order does not by itself constitute an offence under the Act; it is a protective measure distinct from the offence of breach of a protection order - Held that the need for sustenance can arise at any time, justifying the grant of interim relief without being subjected to limitation period applicable to offences (Para 10) C) Procedure - Domestic Violence Act - Section 28 of Protection of Women from Domestic Violence Act, 2005 - The court dealing with applications under Section 12 or sub-section (2) of Section 23 possesses the discretion to lay down its own procedure for disposal, and the provisions of the Code of Criminal Procedure apply only insofar as they are applicable - Held that the trial court correctly exercised its procedural powers (Paras 7-8)
Issue of Consideration
Whether the application filed under the Protection of Women from Domestic Violence Act, 2005 seeking protection orders and interim maintenance is barred by limitation under Section 468 of the Code of Criminal Procedure, 1973 when filed three years after the alleged act of desertion
Final Decision
Criminal Writ Petition No. 310 of 2012 is rejected. Rule is discharged.
Law Points
- Application under Section 12 of DV Act is not a complaint
- Section 468 CrPC only applies to offences under Section 31 of DV Act
- interim maintenance order does not constitute an offence
- court may lay down its own procedure for applications under Section 12 and 23(2) of DV Act
- need for sustenance can arise at any time
