[Read Part 1 for understanding of this subject]

How would a Court, without conducting a trial on the face of a Petition filed by the aggrieved Wife, has just come to conclusion that she does not deserve the relief and remedy because she lost her case to Limitation? And that’s against the spirit of the Legislative intent.

Even otherwise, for a reason that the Wife has filed a Police Complaint under Section 498-A and 406 of IPC against the Husband and other members of her in-law immediately after her desertion from the matrimonial house. But, why did she never file a DV case immediately, took 3 years to file it and claim now residential, compensation and protection order from a Magistrate Court – seemingly this was the question the Judge had in his mind but he took shelter under limitation and quashed the case of the Wife.

The High Court appeared to have confined its scope of inquiry only to the Quash Prayer of the Husband in the case that we are discussing here.  However, what does the law says is, as long as the Husband gets a Decree of Divorce from the Court or for that matter the Wife gets it, it is the Husband who is liable to maintain his Wife. Even otherwise, until the Wife re-marries, the liability of the Husband maintaining his Wife is absolute. Only on special circumstances like the Wife leads an infamous life [adultery] or she neglected her Husband for no bonafide reasons then the Court would terminates her rights over maintenance.      

Even in such case, the Appellate Court’s interference under its inherent powers to prevent abuse of the process of the trial Court or secure the ends of justice under Section 482 of Cr.P.C. is squarely misused in this case, because, the trial Court has not passed any Orders favouring the Wife. In such case, except admission of a [DV] case by the Magistrate Court, the interference of the Appellate Court in quashing it in itself the High Court has committed gross injustice to the Wife.

Even if we consider the Wife’s prayer of seeking Protection Order against the Husband and co-Respondents, Section 32 of the DV Act could only be implemented by the Appellate Court upon breach of Section 31 of the Act. Even otherwise, the limitation act applies to the first instance court to cure the infirmity but not by the Appellate Court – how would an Appellate Court knew that the limitation was not cured by the Magistrate Court?

Had the High Court assumed that the Petitioner Husband would have had done such inquiry over limitation rule not followed by the Magistrate Court before approaching it? Anyhow, my perception is that the Appellate Court allowing Husband’s Quash Petition is beyond the ambit of the inherent powers derives by the Superior Court under Section 482 of Cr.P.C.

As far as Law, it is very clear that if at all any Court has to look into a bar of limitation it is the first instance Trial Court. Had the High Court subjected the Petitioner’s Quash Prayer into scrutiny by perusal of the DV case bundle and quashed it for such reason that the Magistrate had not cured the Complaint for limitation it is understandable. However, no such thing has happened.

Otherwise, Section 32 of the DV Act is a general provision, it only says that for any procedures while handling of DV Complaints the Magistrate can refer Cr.P.C. However, at the same time, the same DV Act under Section 28[2] gives inherent powers to the Magistrate that he can lay his own procedure so to dispose of miscellaneous petitions under Section 23[2] of the Act.

Now the question before us is, should the High Court disqualify a DV case by interpreting Section 31 of the DV Act [which says that for breach of protection order 1 year punishment be given to the Offender] versus Section 468[2][b] of Cr.P.C. which imposes bar of limitation on the Complainant raising any Complaint after 1 year?

If one go by the multiple prayers prayed by the Wife in her DV Complaint such as Accommodation, Compensation and Protection, the Appellate Court should have quashed only Protection Order Prayer because that is punishable upon breach. And that is only upon Breach [under Section 31 of the DV Act]. Which means the Petitioner should have approached the High Court based only on Order of the Magistrate Court, it was not followed in this case.

Even otherwise, the High Court should not have kept its hand on other reliefs prayed by the Wife such as residential rights and compensation and both are beyond the purview of punishment and can never tried under Section 468 of Cr.P.C. then why it did quash the DV Complaint under Section 482 of Cr.P.C. when there was no literally abusement of power by the Magistrate Court or any need to prevent from protecting ends of justice.

Such an act of the High Court relates to another question,

Is it justifiable for the Superior Court to quash a case which has multiple prayers and one such prayer it found to have been barred by limitation?

The answer is NO. The High Court at the max could have allowed the Husband’s Prayer partly by negating Protection Order Prayer and allowed other two Prayers [residential rights and compensation] of the Wife.

Interestingly another question of law would arise while we discussing on this quash issue. Does the High Court under its inherent powers can question limitation provision? The answer is NO. Section 468 of Cr.P.C. is a matter between the first instance Court i.e., the Magistrate Court and the Respondent Husband in the DV case and only the Trial Court command rights to cure such infirmity inflicted by it. But then the question arise is how a Husband can do it? Yes, the Husband instead approaching the High Court should have filed a Memo of Objection in the Magistrate Court…. [Part 3] https://faqsonlaw.in/2020/07/22/how-dv-act-differspart3/