Ravindra Nath Kakkar, J. - (1.) This criminal revision has been preferred against the judgment and order dated 20.2.2015, passed by 3rd Additional Sessions Judge, Court No.6, Varanasi in Criminal Appeal No.146 of 2014 (Akhilesh Kumar Singh and another Vs. Smt. Shriti Singh and another) filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short, the Act 2005) arising out of judgment and order dated 30.8.2014 passed by Additional Chief Judicial Magistrate, Court No.6, Varanasi in Case No.1734 of 2014 (Smt. Shriti Singh Vs. Akhilesh Kumar Singh) filed under Section 12 of Act, 2005 rejecting the applicant's application about maintainability of the case.
(2.) The brief facts, which are relevant for the purpose of this revision, are that opposite party no.2 Smt. Shriti Singh filed a petition under Section 12 of the Act, 2005 against revisionist claiming protection from domestic violence, residence order, monetary reliefs, custody and compensation order alleging that marriage was solemnized between revisionist and opposite party no.2 on 24.11.2007. Illegal demand of dowry resulted strain relation between spouses. A wagan car, cash of Rs.20 lacs, jewellery, colour T.V., home theatre and electronic goods were demanded. Some of the demands were fulfilled by the father of the opposite party no.2 and on the assurance of Rs.14 lacs the marriage was solemnized. After solemnization of the marriage opposite party no.2 went to her in-laws house but she was harassed by the husband and the in-laws. On 1.3.2008 she was physically assaulted and the revisionist ousted the opposite party no.2 from his house. Further allegation is that on 9.7.2008 opposite party no.2 again came to the house of the revisionist with her father but they were not permitted to enter into the matrimonial home. Further it is alleged that on 24.1.2010 opposite party no.2 again came to the house of the revisionist along with her father but revisionist and his other family member caused knife injury to opposite party no.2 and her father. Thereafter an FIR was lodged under Sections 498-A, 323, 324, 325, 504, 506 I.P.C. The medical was conducted by the doctors of the Medical Board and after investigation final report has been submitted. The opposite party no.2 filed a protest petition which was treated as a compliant case and summoning order under Sections 498-A, 323, 324, 504, 506 I.P.C. was passed. It also transpires from the record that the discharge application, moved by the revisionist, was rejected by the High Court. It transpires from the record that preliminary objection was filed by the revisionist on 26.3.2014 alleging that proceeding under Section 12 of the Act, 2005 is not maintainable. Perusal of the preliminary objection reveals that three grounds were raised. Firstly opposite party no.2 had left her husband's house since long i.e. from 1.3.2008. Secondly, opposite party no.2 is getting interim maintenance under Section 24 of the Hindu Marriage Act and further she had already moved an application under Section 27 of the Hindu Marriage Act, 1955 (for short, "the Act, 1955") in a divorce proceeding for returning of the articles which is still pending; and thirdly complaint is barred by limitation provided under Section 468 of Cr.P.C. The court below had rejected the preliminary objection. Thereafter an appeal was preferred against the dismissal of the preliminary objection before the Additional Session Judge, Court No.6, Varanasi which was also dismissed, hence the present revision is preferred against both the orders.
(3.) It is contended on behalf of the learned counsel for the revisionist that opposite party no.2 is living separately at her parental house since 1.3.2008 and an application under Section 12 of the Act, 2005 was filed in February, 2013, i.e. after five years of the alleged incident, so the proceeding is barred under Section 468 of Cr.P.C. in view of the provisions of Section 28 of the Act, 2005. It is next contended that opposite party no.2 had already filed a petition under Section 27 of the Act, 1955 for the return of her articles which was numbered as Misc. Case No.69 of 2014. So she cannot file an application under Section 19 of the Act, 2005. It is further contended that complaint could be filed only within a period of one year from the date of incident so the complaint is time barred. It is next contended that no case of domestic violence can be inferred as the opposite party no.2 had already filed maintenance under Section 24 of the Act, 1955 and a separate proceeding under Section 27 of the Act, 1955 for the return of articles is still pending. It is further submitted that complaint under the Domestic Violence Act can only be filed when the marriage union subsisted. Since the physical relationship came to an end, so she cannot claim to be living in any domestic relationship. Opposite party no.2 is not an aggrieved person, so the application within the definition of "aggrieved person" under the Domestic Violence Act and relief under Section 12 can only be granted if an aggrieved person is in a domestic relationship. The court below has not appreciated the definition between violence committed on a person living in a separate household and the violence committed on a person living in shared household. The word at any point of time mentioned in the definition of Domestic relationship cannot be defined as at any point of time in the past whether the right to live survives or not. Since the opposite party no.2 was living separately since 2008 and the compliant was filed in 2013, as such the application was not maintainable. Lastly, it is contended that the court below had failed to consider the interpretation of the word "aggrieved person" and the word "at any point of time". Therefore, the order passed by the court below is illegal and against the provisions of law and hence not sustainable in the eyes of law.;