Not Providing Maintenance is a Continuous Offence

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(CRL) 2325/2017 and Crl. M.A. No.13146/2017 (stay)

Decided on: 5th December, 2018

BENCH:

HON'BLE MS. JUSTICE MUKTA GUPTA

The present matter was decided by Single Bench comprising of Mukta Gupta, J. In this matter the criminal writ petition filed by the husband praying quashing of FIR under Section 498-A IPC and complaint under Section 12 of Protection of Women from Domestic Violence Act, 2005 (DV Act was dismissed  by the  High Court of Delhi.

FACTS OF THE CASE

1. In the present matter Anthony Jose (petitioner) and his wife (respondent no. 2 in this matter) admittedly resided together till August, 2014 where after they parted away.

• In 2015 the respondent No. 2 filed a complaint before CAW Cell where a settlement was arrived at between the parties in the pre-litigation mediation on 7th April, 2016.

• The said settlement was not fully acted upon and the parties drifted away from the settlement.Where after the wife filed an application for revival of the earlier complaint which was not revived as had been closed, thus she filed a fresh complaint on 28.07.2017 which was registered at CAW Cell ,Nanak Pura ,Delhi for offence under Section 498 A, 406 and 34 of IPC.

• Taking the ground that the FIR was registered to wreak vengeance and that it was beyond the period of limitation as the parties separated from each other in the year 2014, the husband filed the writ petition before the High Court of Delhi .He prayed before the High Court to:

1. Quash and set aside the FIR.
2. Quash and set aside the proceedings under Section 12 of the Protection of Domestic Violence Act, 2005 .

OBSERVATION OF THE COURT

While observing this matter the issues before the Hon’ble Court were as such:

1. What is the object of section 468 of the Criminal Procedure Code and whether its application can be extended to matrimonial offenses?

•  Whether non-providing of maintenance is a continuous cause of action and would the wife be debarred  from seeking maintenance under the Domestic Violence Act, 2005?

The Hon’ble Court observed that the object of Section 468 of CrPC is to put a bar of limitation on prosecutions and to prevent the parties from filing cases after a long time, such consideration cannot be extended to matrimonial offenses, where the allegations are of cruelty, torture and assault by the husband or other members of the family to the complainant.While considering the question of limitation for an offense under Section 498-A , the Court should judge that question, in the light of Section 473 of the Code.

 The Court also observed that even though the wife didn’t claim for maintenance for her and the minor child for three years would not debar her from seeking maintenance, also non -providing of maintenance itself is a continuous cause of action.

JUDGMENT/RULING

The Court dismissed the petition and the application and while doing so considered the following merits:

1. The Court relied on the view of the Supreme Court in the case of  Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4, the Court held that Section 468 CrPC which deals with “bar to taking cognizance after lapse of period of limitation” is to be read with Section 473 which provides for “extension of period of limitation in certain cases”.
2. The application of section 468 can not be extended to matrimonial offenses. It is a matter of common experience that victim is subjected to such cruelty repeatedly and it is more or less like a continuing offence. As such, courts while considering the question of limitation for an offence under Section 498-A i.e. subjecting a woman to cruelty by her husband or the relative of her husband, should judge that question, in the light of Section 473 of the Code, which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether “it is necessary to do so in the interests of justice.
3. Further,  Court relied on Arun Vyas Vs. Anita Vyas (1999) 4 SCC 690 where it was held that the essence of the offense in Section 498-A is cruelty as defined in the explanation appended to the said section and is a continuing offense and on each occasion on which the respondent was subjected to cruelty a new starting point of limitation arises.
4. As far as a complaint under Section 12 DV Act is concerned, it was noted that it related to the grant of maintenance for the wife and minor child. It was held that “not providing maintenance is a continuous cause of action and even if for three years the wife did not claim maintenance for herself or for the child, the same would not debar her from seeking maintenance under Section 12 DV Act and the complaint thereon cannot be dismissed being barred by limitation”.

CONCLUSION

On basis of the ruling of the High Court it can be concluded that offense under Section 498-A is a Continuing Offense  and each occasion of “cruelty” is a new starting point of limitation.While considering the limitation of offense under section 498-A the Court must consider the application of Section 473 of the Criminal Procedure Code which provides for “extension of period of limitation in certain cases”. Hence in such matters the Section 468 must be read with Section 473 of the CrPC. Also it can be concluded that non providing of maintenance is a continuous cause of action and even if there is a situation where she claims it few years later would not debar her from seeking it under the Domestic Violence Act,2005. 

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