Back
In the High Court of Bombay at Nagpur
A.P. BHANGALE
Karimkhan s/o. Sailanikhan
Versus
State of Maharashtra, through P.S.O. & Another
CRIMINAL WRIT PETITION NO.252 OF 2011
Decided on : 05-08-2011
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 the case of Vanka Radhamanohari v. Vanka Venkata Reddy, 1993 (3) SCC 4. Taking into consideration the submission of the counsel appearing for the parties and keeping in view the ratio laid down by the Apex Court in Vanka Radhamanohari’s case (supra) the Court is not the considered view that there is a continuing cause of action for filing the said case i.e. criminal case 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, the 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 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, 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.
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').
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 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, 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, undoub
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
