The High Court has held that an application made under Section 12 of the Domestic Violence Act is not barred by period of limitation under section 468 of CrPC.

The bench said, "When the application under Section 12 of the DV Act is not covered under the term 'offence', section 468 of Cr.P.C is inapplicable. Therefore the application of Section 468 of Cr.P.C. to an application under Section 12 of the DV Act is clearly a misconception."

Facts of the Case

The petitioner and respondent are husband and wife. The respondent filed a case before the trial court under section 12 of Domestic Violence Act, 2005 seeking monetary relief and custody order as contemplated under Sections 20 and 21 of the Domestic Violence Act, 2005. The trial Court awarded Rs.8, 000/- per month to the respondent and her children as maintenance and house rent. The petitioner was also restrained from taking away the children from her custody and committing domestic violence.

The petitioner challenged the order before the Additional District & Sessions Judge; the court directed the petitioner to deposit Rs.4, 32, 000/- towards arrears of maintenance. The Court dismissed the appeal and confirmed the order of the trial Court. The Court directed the trial Court to release the amount deposited to the respondent.

The petitioner has further raised an appeal before the High Court at Bangalore.

Contention of the Parties

Learned Counsel for the petitioner opposed the application on the ground that the petition was filed 10 years from the date of the alleged domestic incident, therefore the petition itself was not maintainable. Relying on Section 28 of the DV Act, learned Counsel for the petitioner submitted that to file application under Section 12 of the DV Act, the Code of Criminal procedure is applicable. Therefore he submitted that Section 468 of Cr.P.C. is applicable.

Learned Counsel for the respondent refuted the contention regarding limitation on the ground that Section 468 of Cr.P.C. applies only to the petition under Section 31 of the DV Act and not to the application under Section 12 of the DV Act filed for the reliefs under Sections 20 and 21 of the DV Act.

Courts Observation &Judgment

The bench noted that Section 468 (1) and 468(2)(b) of Cr.P.C. themselves show that the bar of limitation for taking cognizance is intertwined with an offence. Section 468 of Cr.P.C. comes into picture only if there is an offence. If there is no offence, there is no limitation.

The Court said that under Section 12 of the DV Act, domestic violence is not called or treated as an offence. It speaks of court granting relief and not of conviction and sentence. The judgment said, "To attract Section 468 of Cr.P.C, essentially the Act alleged must be an offence. Under the DV Act, the offence is not defined, as defined in Section 40 of IPC."

The bench opined, "Section 12 of the DV Act is only an enabling provision to initiate enquiry to find out whether such act or omission is committed."

The bench concluded by saying, "Section 31 of the DV Act makes it clear that only breach of the protection order or interim protection order etc. passed under Section 12 of the DV Act constitutes an offence and made punishable. Therefore it is clear that the act or omission contemplated under Section 31 of the DV Act is an offence and the application under Section 12 of the DV Act itself is not an offence."