Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Counsel for the Parties:
For the Petitioner:A.K. Bakshi, Advocate.
For the Respondent:A.K. Maitri, Advocate.

IMPORTANT POINT
A petition under the provisions of the Protection of Women from Domestic Violence Act, 2005 is maintainable even if the acts of domestic violence have been committed prior to coming into force of the Act or despite her having in the past lived together with the respondent a shared household woman is no more living with him, at the time of coming into force of the Act.

Headnote:Protection of Woman from Domestic Violence Act, 2005—Sections 12 and 31—Maintainability of petition by a Woman who had stopped living with to act of domestic violence prior to subjected into force of the Act on 26.10.2006—Petitioner-applicant driven out of matrimonial home on 4.7.2005 filed petition for reliefs under the Act on 29.11.2006—Sessions court in appeal held that application was not maintainable since applicant had left matrimonial home on 4.7.2005 and Act came into force on 28.10.2006—Revision—Act provided civil remedies to victims and punishment could be given only if there was breach of order passed under the Act—Petition under the Act is maintainable even if acts of domestic violence had been committed prior to coming into force of the Act—Impugned order was liable to be set aside and matter remanded.
       Held: The Act by itself does not make any act, omission or conduct constituting violence, punishable with any imprisonment, fine or other penalty. There can be no prosecution of a person under the provisions of this Act, for committing acts of domestic violence, as defined in Section 3 of the Act. No one can be punished under the Act merely because he subjects a woman to violence or harasses, harms or injures her or subjects her to any abuse whether physical, sexual, verbal, emotional or economic. No one can be punished under the provisions of the Act on account of his depriving a woman of her right to reside in the shared household.
       Section 31 of the Act provides for punishment only if a person commits breach of protection order passed under Section 18 or an order of interim protection passed under Section 23 of the Act. Thus, commission of acts of domestic violence by themselves do not constitute any offence punishable under the Act and it is only the breach of the order passed by the Magistrate either under Section 18 or under Section 23 of the Act which has been made punishable under Section 31 of the Act. No criminal liability is thus incurred by a person under this Act merely on account of his indulging into acts of domestic violence or depriving a woman from use of the shared household. It is only the breach of the orders passed under Sections 18 and 23 of the Act, which has been made punishable.
       Article 20(1) of the Constitution provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. No provision of the Act makes any act committed prior to coming into force of the Act punishable with any imprisonment, fine or penalty. Since the order, as envisaged in Section 18 or Section 23, as the case may be, can be passed only after coming into force of the Act, it cannot be said that if a person is convicted under Section 31 of the Act, he is convicted for violation of a law which was not in force at the time of commission of the act charged as an offence. It has to be appreciated that the act charged as an offence under Section 31 of the Act is not the act of domestic violence committed by a person. It is the breach of the protection order passed under Section 18 or Section 23 of the Act which has been made punishable under the Act. Therefore, it cannot be said that Article 20(1) of the Constitution is contravened if a person is convicted under Section 31 or 33 of the Act. (Paras 6 to 8)
       If the Court takes the interpretation that a petition under the provisions of the Protection of Women from Domestic Violence Act, 2005 cannot be filed by a woman unless she was living with the respondent, in the shared household, on the date this Act came into force, or a date subsequent thereto or that a petition under the provisions of the Act cannot be filed by a person who has been subjected to domestic violence before coming into force of the Act, that would amount to giving a discriminatory treatment to the woman who despite living with the respondent and having a domestic relationship with him before coming into force of the Act, is later compelled to live separately from him on account of the acts attributable to the respondent and to the woman who was, prior to coming into force of the Act, subjected to domestic violence, vis-a-vis, the women who are living with the respondent or women in respect of whom acts of domestic violence are committed after coming into force of the act. There can be no reasonable classification based upon an intelligible differentia between the women who are living with the respondent on the date of coming into force of the Act or who are subjected to domestic violence after coming into force of the Act on one hand and the women who were living with the respondent or who were subjected to domestic violence prior to coming into force of the Act, on the other hand. Therefore, any discriminatory treatment to women in either category would be violative of their constitutional right guaranteed under Article 14 of the Constitution. The court needs to eschew from taking an interpretation which would not only be violative of the rights conferred upon the citizens under Article 14 of the Constitution but would also result in denying the benefit of the beneficial provisions of the Act to the women who have been subjected to domestic violence and are compelled to live separately from the respondent on account of his own acts of omission or commission. Such an interpretation would at least partly defeat the legislative intent behind enactment of the Protection of Women from Domestic Violence Act, 2005, which was to provide an efficient and expeditious civil remedy to them, in order either to protect them against occurrence of domestic violence, or to give them compensation and other suitable reliefs, in respect of the violence to which they have been subjected.
       For the reasons given in the preceding paragraphs, lam of the considered view that a petition under the provisions of the Protection of Women from Domestic Violence Act, 2005 is maintainable even if the acts of domestic violence have been committed prior to coming into force of the Act or despite her having in the past lived together with the respondent a shared household woman is no more living with him, at the time of coming into force of the Act. It is be open for the Magistrate to pass appropriate order under the provisions of Sections 12, 18, 19, 20, 21, 22 or 23 of the Act on a petition filed by such a woman and the person who commits breach of the protection order or interim protection order passed on an application filed by such a woman will be liable to punishment under Section 31 of the Act. (Paras 17 & 18)
       Result: Petition allowed.