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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.       1545            OF 2015   (@ SLP(Crl) No. 10223 OF 2014)

Krishna Bhatacharjee ... Appellant

                               Versus

Sarathi Choudhury and Anr. ... Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The appellant having lost the battle for getting her Stridhan back  

from her  husband,  the  first  respondent  herein,  before  the  learned  

Magistrate on the ground that the claim preferred under Section 12 of  

the Protection of Women from Domestic Violence Act, 2005 (for short,  

‘the  2005 Act’)  was  not  entertainable  as  she  had ceased  to  be  an  

“aggrieved person” under Section 2(a) of the 2005 Act and further that  

the claim as put forth was barred by limitation; preferred an appeal  

before the learned Additional Sessions Judge who concurred with the

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view expressed by the learned Magistrate, and being determined to get  

her lawful claim, she, despite the repeated non-success, approached  

the High Court of  Tripura,  Agartala in Criminal  Revision No.  19 of  

2014 with the hope that she will be victorious in the war to get her  

own property,  but the High Court,  as is perceivable,  without much  

analysis,  declined  to  interfere  by  passing  an  order  with  Spartan  

austerity  possibly  thinking  lack  of  reasoning  is  equivalent  to  a  

magnificent virtue and that had led the agonised and perturbed wife to  

prefer the present appeal, by special leave.

3. Prior to the narration of facts which are essential for adjudication  

of this appeal, we may state that the 2005 Act has been legislated, as  

its Preamble would reflect, to provide for more effective protection of  

the rights of the women guaranteed under the Constitution who are  

victims of  violence of  any kind occurring within the family  and for  

matters connected therewith or incidental thereto.  The 2005 Act is a  

detailed Act. The dictionary clause of  the 2005 Act, which we shall  

advert  to  slightly  at  a  later  stage,  is  in  a  broader  spectrum.  The  

definition of “domestic violence” covers a range of violence which takes  

within its sweep “economic abuse” and the words “economic abuse”,  

as the provision would show, has many a facet.   

4. Regard  being  had  to  the  nature  of  the  legislation,  a  more  

sensitive approach is expected from the courts where under the 2005

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Act  no  relief  can be  granted,  it  should  never  be  conceived  of  but,  

before  throwing  a  petition  at  the  threshold  on  the  ground  of  

maintainability, there has to be an apposite discussion and thorough  

deliberation on the issues raised.  It should be borne in mind that  

helpless  and  hapless  “aggrieved  person”  under  the  2005  Act  

approaches the court under the compelling circumstances. It is the  

duty of the court to scrutinise the facts from all angles whether a plea  

advanced by the respondent to nullify the grievance of the aggrieved  

person is really legally sound and correct.  The principle “justice to the  

cause is equivalent to the salt of ocean” should be kept in mind. The  

court of law is bound to uphold the truth which sparkles when justice  

is done.  Before throwing a petition at the threshold, it is obligatory to  

see that the person aggrieved under such a legislation is not faced  

with  a  situation of  non-adjudication,  for  the  2005 Act  as  we have  

stated is a beneficial as well as assertively affirmative enactment for  

the realisation of  the constitutional  rights  of  women and to ensure  

that they do not become victims of any kind of domestic violence.   

5. Presently to the narration of the facts. The marriage between the  

appellant and the respondent No. 1 was solemnised on 27.11.2005  

and they lived as husband and wife. As the allegations proceed, there  

was demand of  dowry  by the  husband including  his  relatives  and,  

demands not being satisfied, the appellant was driven out from the

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matrimonial home. However, due to intervention of the elderly people  

of the locality, there was some kind of conciliation as a consequence of  

which both the husband and the wife stayed in a rented house for two  

months. With the efflux of time, the husband filed a petition seeking  

judicial  separation before the Family Court and eventually the said  

prayer  was  granted  by  the  learned  Judge,  Family  Court.  After  the  

judicial  separation,  on 22.5.2010 the  appellant  filed an application  

under  Section  12  of  the  2005  Act  before  the  Child  Development  

Protection  Officer (CDPO), O/O the District Inspector, Social Welfare  

&  Social  Education,  A.D.  Nagar,  Agartala,  Tripura  West  seeking  

necessary help as per the provisions contained in the 2005 Act. She  

sought  seizure  of  Stridhan articles  from  the  possession  of  the  

husband.  The  application  which  was  made  before  the  CDPO  was  

forwarded  by  the  said  authority  to  the  learned  Chief  Judicial  

Magistrate,  Agartala  Sadar,  West  Tripura  by  letter  dated  1.6.2010.  

The learned Magistrate issued notice to the respondent who filed his  

written objections on 14.2.2011.

6. Before the learned Magistrate it was contended by the respondent  

that the application preferred by the wife was barred by limitation and  

that she could not have raised claim as regards Stridhan after the de-

cree of judicial separation passed by the competent court.  The learned  

Magistrate taking into consideration the admitted fact that respondent

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and the appellant had entered into wedlock treated her as an “ag-

grieved person”, but opined that no “domestic relationship” as defined  

under Section 2(f)  of the 2005 Act existed between the parties and,  

therefore, wife was not entitled to file the application under Section 12  

of the 2005 Act.  The learned Magistrate came to hold that though the  

parties had not been divorced but the decree of  judicial  separation  

would be an impediment for entertaining the application and being of  

this view, he opined that no domestic relationship subsisted under the  

2005 Act and hence, no relief could be granted.  Be it stated here that  

before the learned Magistrate, apart from herself, the appellant exam-

ined three witnesses and the husband had examined himself as DW-1.  

The learned Magistrate while dealing with the maintainability of the  

petition had noted the contentions of the parties as regards merits,  

but has really not recorded any finding thereon.  

7. The  aggrieved  wife  preferred  criminal  appeal  No.  6(1)  of  2014  

which has been decided by the  learned Additional  Sessions Judge,  

Agartala holding, inter alia, that the object of the 2005 Act is primarily  

to give immediate relief to the victims; that as per the decision of this  

Court in Inderjit Singh Grewal v. State of Punjab1 that Section 468  

of the Code of Criminal Procedure applies to the proceedings under the  

2005 Act and, therefore, her application was barred by time.  Being of  

this view, the appellate court dismissed the appeal.

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8. On a revision being preferred, the High Court, as is demonstrable  

from the impugned order, after referring to the decision in  Inderjit  

Singh Grewal (supra), has stated that the wife had filed a criminal  

case under Section 498(A) IPC in the year 2006 and the husband had  

obtained a decree of judicial separation in 2008, and hence, the pro-

ceedings under the 2005 Act was barred by limitation.  That apart, it  

has also in a way expressed the view that the proceedings under the  

2005 Act was not maintainable.

9. In our prefatory note, we have stated about the need of sensitive  

approach to these kinds of cases. There can be erroneous perception  

of law, but as we find, neither the learned Magistrate nor the appellate  

court nor the High Court has made any effort to understand and ap-

preciate the stand of the appellant. Such type of cases and at such  

stage should not travel to this Court. We are compelled to say so as we  

are of  the considered opinion that had the appellate court and the  

High Court been more vigilant, in all possibility, there could have been  

adjudication on merits. Be that as it may.

10. The facts that we have enumerated as regards the “status of the  

parties”, “judicial separation” and “the claim for  Stridhan” are not in  

dispute.  Regard being had to the undisputed facts, it is necessary to  

appreciate the scheme of the 2005 Act.  Section 2(a) defines “aggrieved  

person” which means any woman who is, or has been, in a domestic

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relationship with the respondent and who alleges to have been sub-

jected to any act of domestic violence by the respondent.  Section 2(f)  

defines “domestic relationship” which means a relationship between  

two persons who live or have, at any point of time, lived together in a  

shared household, when they are related by consanguinity, marriage,  

or through a relationship in the nature of marriage, adoption or are  

family members living together as a joint family.  Section 2(g) defines  

the term “domestic violence” which has been assigned and given the  

same meaning as in Section 3.    Sub-section (iv) of Section 3 deals  

with “economic abuse”.  As in the facts at hand, we are concerned with  

the “economic abuse”, we reproduce Section 3(iv) which reads as fol-

lows:-

“Section 3. Definition of domestic violence. (iv) "economic abuse" includes-  

(a) deprivation of all or any economic or financial resources  to which the aggrieved person is entitled under any law or  custom whether payable under an order of a court or other- wise or which the aggrieved person requires out of necessity  including, but not limited to, household necessities for the  aggrieved person and her children, if any, stridhan, prop- erty, jointly or separately owned by the aggrieved person,  payment  of  rental  related  to  the  shared  household  and  maintenance;  

(b)  disposal  of  household effects,  any alienation of assets  whether movable or immovable, valuables, shares, securi- ties, bonds and the like or other property in which the ag- grieved person has an interest or is entitled to use by virtue  of the domestic relationship or which may be reasonably re- quired by the aggrieved person or her children or her strid-

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han or any other property jointly or separately held by the  aggrieved person; and  

(c)  prohibition  or  restriction  to  continued  access  to  re- sources or facilities which the aggrieved person is entitled  to use or enjoy by virtue of the domestic relationship in- cluding access to the shared household.  

Explanation II.-For the purpose of determining whether any  act,  omission,  commission  or  conduct  of  the  respondent  constitutes "domestic violence" under this section, the over- all facts and circumstances of the case shall be taken into  consideration.”   

11. Section  8(1)  empowers  the  State  Government  to  appoint  such  

number of Protection Officers in each district as it may consider nec-

essary and also to notify the area or areas within which a Protection  

Officer shall exercise the powers and perform the duties conferred on  

him  by  or  under  the  2005  Act.  The  provision,  as  is  manifest,  is  

mandatory and the State Government is under the legal obligation to  

appoint such Protection Officers.  Section 12 deals with application to  

Magistrate.  Sub-sections (1) and (2) being relevant are reproduced be-

low:-

“Section 12. Application to Magistrate.-(1) An aggrieved  person or a Protection Officer or any other person on behalf  of the aggrieved person may present an application to the  Magistrate seeking one or more reliefs under this Act: Pro- vided that before passing any order on such application, the  Magistrate shall take into consideration any domestic inci- dent report received by him from the Protection Officer or  the service provider.  

(2) The relief sought for under sub-section (1) may include a  relief for issuance of an order for payment of compensation

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or damages without prejudice to the right of such person to  institute  a  suit  for  compensation or  damages  for  the  in- juries caused by the acts of domestic violence committed by  the  respondent:  Provided  that  where  a  decree  for  any  amount as compensation or damages has been passed by  any court in favour of the aggrieved person, the amount, if  any, paid or payable in pursuance of the order made by the  Magistrate  under  this  Act  shall  be  set  off  against  the  amount payable under such decree and the decree shall,  notwithstanding  anything  contained  in  the  Code  of  Civil  Procedure, 1908 (5 of 1908), or any other law for the time  being in force, be executable for the balance amount, if any,  left after such set off.”

12. Section 18 deals with passing of protection orders by the Magis-

trate. Section 19 deals with the residence orders and Section 20 deals  

with monetary reliefs.  Section 28 deals with procedure and stipulates  

that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and  

offences under Section 31 shall be governed by the provisions of the  

Code of Criminal Procedure, 1973. Section 36 lays down that the pro-

visions of the 2005 Act shall be in addition to, and not in derogation of  

the provisions of any other law, for the time being in force.  

13. Having scanned the anatomy of the 2005 Act, we may now refer  

to a few decisions of this Courts that have dealt with the provisions of  

the 2005 Act. In V.D. Bhanot  v. Savita Bhanot2 the question arose  

whether the provisions of the 2005 Act can be made applicable in rela-

tion to an incident that had occurred prior to the coming into force of  

the said Act.  Be it noted, the High Court had rejected the stand of the  

respondent therein that the provisions of the 2005 Act cannot be in-

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voked if the occurrence had taken place prior to the coming into force  

of the 2005 Act.  This Court while dealing with the same referred to  

the decision rendered in the High Court which after considering the  

constitutional safeguards under Article 21 of the Constitution vis-à-vis  

the provisions of Sections 31 and 33 of the 2005 Act and after examin-

ing the Statement of Objects and Reasons for the enactment of the  

2005 Act, had held that it was with the view of protecting the rights of  

women under Articles 14, 15 and 21 of the Constitution that Parlia-

ment enacted the 2005 Act in order to provide for some effective pro-

tection of rights guaranteed under the Constitution to women, who are  

victims of any kind of violence occurring within the family and matters  

connected therewith and incidental thereto, and to provide an efficient  

and expeditious civil remedy to them and further that a petition under  

the provisions of the 2005 Act is maintainable even if the acts of do-

mestic violence had been committed prior to the coming into force of  

the said Act, notwithstanding the fact that in the past she had lived  

together with her husband in a shared household, but was no more  

living with him, at the time when the Act came into force. After analyz-

ing the verdict of the High Court, the Court concurred with the view  

expressed by the High Court by stating thus:-

“We agree with the view expressed by the High Court that in  looking into a complaint under Section 12 of the PWD Act,  2005, the conduct of the parties even prior to the coming

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into force of the PWD Act, could be taken into consideration  while  passing  an  order  under  Sections  18,  19  and  20  thereof. In our view, the Delhi High Court has also rightly  held that even if a wife, who had shared a household in the  past, but was no longer doing so when the Act came into  force, would still be entitled to the protection of the PWD  Act, 2005.”

14. In Saraswathy  v.  Babu3  a two-Judge Bench, after referring to  

the decision in V.D. Bhanot   (supra), reiterated the principle. It has  

been held therein:-

“We are of the view that the act of the respondent husband  squarely comes within the ambit of Section 3 of the DVA,  2005, which defines “domestic violence” in wide terms. The  High Court made an apparent error in holding that the con- duct of the parties prior to the coming into force of the DVA,  2005 cannot be taken into consideration while passing an  order. This is a case where the respondent husband has not  complied with the order and direction passed by the trial  court and the appellate court. He also misleads the Court  by giving wrong statement before the High Court in the con- tempt petition filed by the appellant wife. The appellant wife  having being harassed since 2000 is entitled for protection  order and residence order under Sections 18 and 19 of the  DVA, 2005 along with the maintenance as allowed by the  trial court under Section 20(1)(d) of the DVA, 2005. Apart  from these reliefs, she is also entitled for compensation and  damages for the injuries, including mental torture and emo- tional distress, caused by the acts of domestic violence com- mitted by the respondent husband. Therefore, in addition to  the reliefs granted by the courts below, we are of the view  that the appellant wife should be compensated by the re- spondent  husband.  Hence,  the  respondent  is  hereby  di- rected to pay compensation and damages to the extent of Rs  5,00,000 in favour of the appellant wife.”

15. In  the  instant  case,  as  has  been indicated  earlier,  the  courts  

below  as  well  as  the  High  Court  have  referred  to  the  decision  in

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Inderjit Singh Grewal (supra).  The said case has to be understood  

regard being had to the factual exposè therein.  The Court had referred  

to the decision in  D. Velusamy v. D. Patchaiammal4 wherein this  

Court  had considered the  expression “domestic  relationship”  under  

Section 2(f) of the Act and judgment in Savitaben Somabhai Bhatiya  

v. State of Gujarat5 and distinguished the said judgments as those  

cases  related  to  live-in  relationship  without  marriage.   The  Court  

analyzing  the  earlier  judgments  opined  that  the  couple  must  hold  

themselves  out  to  society  as  being  akin  to  spouses  in  addition  to  

fulfilling all other requisite conditions for a valid marriage. The said  

judgments were distinguished on facts as those cases related to live-in  

relationship  without  marriage.   The  Court  opined  that  the  parties  

therein had got married and the decree of the civil court for divorce  

subsisted  and that  apart  a  suit  to  declare  the  said  judgment  and  

decree  as  a  nullity  was  still  pending  consideration  before  the  

competent court.  In that background, the Court ruled that:-

“In the facts and circumstances of the case, the submission  made on behalf of Respondent 2 that the judgment and de- cree of a civil court granting divorce is null and void and  they  continued  to  be  the  husband  and  wife,  cannot  be  taken note of at this stage unless the suit filed by Respon- dent 2 to declare the said judgment and decree dated 20-3- 2008 is decided in her favour. In view thereof, the evidence  adduced  by  her  particularly  the  record  of  the  telephone  calls,  photographs attending  a  wedding together  and her  signatures in school diary of the child cannot be taken into  consideration so long as the judgment and decree of  the

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civil court subsists. On a similar footing, the contention ad- vanced by her counsel that even after the decree of divorce,  they continued to live together as husband and wife and  therefore the complaint under the 2005 Act is maintainable,  is not worth acceptance at this stage.”

[Emphasis supplied]

16. It may be noted that a submission was advanced by the wife with  

regard to the applicability of Section 468 CrPC.  While dealing with the  

submission on the issue of limitation, the Court opined:-

“...... in view of the provisions of Section 468 CrPC, that the  complaint could be filed only within a period of one year from  the date of the incident seem to be preponderous in view of the  provisions of  Sections 28 and 32 of  the 2005 Act read with  Rule 15(6) of the Protection of Women from Domestic Violence  Rules, 2006 which make the provisions of CrPC applicable and  stand fortified by the judgments of this Court in Japani Sahoo  v.  Chandra Sekhar Mohanty,  (2007) 7 SCC 394,   and  NOIDA  Entrepreneurs Assn. v. NOIDA,  (2011) 6 SCC 508.”

17. As it appears, the High Court has referred to the same but the  

same has really  not  been adverted.   In fact,  it  is  not  necessary to  

advert to the said aspect in the present case.   

18. The core issue that is requisite to be addressed is whether the  

appellant has ceased to be an “aggrieved person” because of the decree  

of judicial separation.  Once the decree of divorce is passed, the status  

of the parties becomes different, but that is not so when there is a  

decree  for  judicial  separation.  A three-Judge Bench in  Jeet  Singh  

and Others  Vs.  State  of  U.P.  and Others6 though in  a  different

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context, adverted to the concept of judicial separation and ruled that  

the judicial separation creates rights and obligations. A decree or an  

order for judicial separation permits  the parties to live apart. There  

would  be  no  obligation  for  either  party  to  cohabit  with  the  other.  

Mutual rights and obligations arising out of a marriage are suspended.  

The decree however, does not sever or dissolve the marriage. It affords  

an  opportunity  for  reconciliation  and  adjustment.  Though  judicial  

separation after a certain period may become a ground for divorce, it is  

not necessary and the parties are not bound to have recourse to that  

remedy  and  the  parties  can  live  keeping  their  status  as  wife  and  

husband till their lifetime.

19. In this regard, we may fruitfully refer to the authority in Hirac-

hand Srinivas Managaonkar  v.  Sunanda7 wherein the issue that  

arose for determination was whether the husband who had filed a pe-

tition seeking dissolution of the marriage by a decree of divorce under  

Section 13(1-A)(i) of the Hindu  Marriage Act, 1955 can be declined re-

lief on the ground that he had failed to pay maintenance for his wife  

and daughter despite an order of the court. The husband was appel-

lant before this Court and had filed an application under Section 10 of  

the Hindu Marriage Act, 1955 for seeking judicial separation on the  

ground of adultery on the part of the appellant. Thereafter, the appel-

lant presented the petition for dissolution of marriage by decree of di-

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vorce on the ground that there has been no resumption of cohabita-

tion as between the parties to the marriage for a period of more than  

one year after passing of the decree for judicial separation. The stand  

of the wife was that the appellant having failed to pay the maintenance  

as ordered by the court, the petition for divorce filed by the husband  

was liable to be rejected inasmuch he was trying to get advantage of  

his own wrong for getting the relief.   The High Court accepted the plea  

of the wife and refused to grant the prayer of the appellant seeking di-

vorce. It was contended before this Court that the only condition for  

getting divorce under Section 13(1-A)(i)  of  the Hindu  Marriage Act,  

1955 is that there has been no resumption of cohabitation between  

the parties to the marriage for a period of one year or upwards after  

the passing of  the decree for  judicial  separation in a proceeding to  

which both the spouses are parties.  It was urged that if the said con-

dition is satisfied the court is required to pass a decree of divorce.  On  

behalf of the wife, the said submissions were resisted on the score that  

the husband had been living in continuous adultery even after passing  

of the decree of judicial separation and had reasonably failed to main-

tain the wife and daughter.  The Court proceeded to analyse Section  

13(1-A)(i) of the Hindu Marriage Act, 1955. Analysing the provisions at  

length and speaking about judicial separation, it expressed that after  

the decree for judicial separation was passed on the petition filed by

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the wife it was the duty of both the spouses to do their part for cohabi-

tation. The husband was expected to act as a dutiful husband towards  

the wife and the wife was to act as a devoted wife towards the hus-

band. If this concept of both the spouses making sincere contribution  

for the purpose of successful cohabitation after a judicial separation is  

ordered then it can reasonably be said that in the facts and circum-

stances of the case the husband in refusing to pay maintenance to the  

wife  failed  to  act  as  a  husband.  Thereby  he  committed  a  “wrong”  

within the meaning of Section 23 of the Act. Therefore, the High Court  

was justified in declining to allow the prayer of the husband for disso-

lution of the marriage by divorce under Section 13(1-A) of the Act.

20. And, the Court further stated thus:-

“... The effect of the decree is that certain mutual rights and  obligations arising from the marriage are as it  were sus- pended and the rights and duties prescribed in the decree  are substituted therefor. The decree for judicial separation  does not sever or dissolve the marriage tie which continues  to subsist. It affords an opportunity to the spouse for recon- ciliation and readjustment. The decree may fall by a concili- ation of the parties in which case the rights of the respec- tive parties which float from the marriage and were sus- pended are restored. Therefore the impression that Section  10(2) vests a right in the petitioner to get the decree of di- vorce notwithstanding the fact that he has not made any at- tempt for cohabitation with the respondent and has even  acted in a manner to thwart any move for cohabitation does  not flow from a reasonable interpretation of the statutory  provisions. At the cost of repetition it may be stated here  that the object and purpose of the Act is to maintain the  marital  relationship  between the  spouses  and not  to  en- courage snapping of such relationship.”

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21. It is interesting to note that an issue arose whether matrimonial  

offence of adultery had exhausted itself when the decree for judicial  

separation was granted and, therefore, it cannot be said that it is a  

new fact or circumstance amounting to wrong which will stand as an  

obstacle in the way of the husband to obtain the relief which he claims  

in the divorce proceedings.  Be it stated that reliance was placed on  

the  decision  of  Gujarat  High  Court  in  Bai  Mani  v.  Jayantilal  

Dahyabhai8. This Court did not accept the contention by holding that  

living in adultery on the part of the husband is a continuing matrimo-

nial offence, and it does not get frozen or wiped out merely on passing  

of a decree for judicial separation which merely suspends certain du-

ties and obligations of the spouses in connection with their marriage  

and does not snap the matrimonial tie. The Court ruled that the deci-

sion of the Gujarat High Court does not lay down the correct position  

of law. The Court approved the principle stated by the Madras High  

Court in the case of Soundarammal v. Sundara Mahalinga Nadar9  

in which a Single Judge had taken the view that the husband who  

continued to live in adultery even after decree at the instance of the  

wife could not succeed in a petition seeking decree for divorce and that  

Section 23(1)(a) barred the relief.

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22. In view of  the  aforesaid  pronouncement,  it  is  quite  clear  that  

there is a distinction between a decree for divorce and decree of judi-

cial separation; in the former, there is a severance of status and the  

parties do not remain as husband and wife, whereas in the latter, the  

relationship between husband and wife continues and the legal rela-

tionship continues as it has not been snapped.  Thus understood, the  

finding recorded by the courts below which have been concurred by  

the High Court that the parties having been judicial separated, the ap-

pellant wife has ceased to be an “aggrieved person” is wholly unsus-

tainable.

23. The next issue that arises for consideration is the issue of limita-

tion. In the application preferred by the wife, she was claiming to get  

back her stridhan.  Stridhan has been described as saudayika by Sir  

Gooroodas Banerjee in “Hindu Law of Marriage and Stridhan” which is  

as follows:-

“First, take the case of property obtained by gift. Gifts of af- fectionate kindred, which are known by the name of sau- dayika  stridhan,  constitute  a  woman’s  absolute  property,  which she has at all times independent power to alienate,  and  over  which  her  husband  has  only  a  qualified  right,  namely, the right of use in times of distress.”

24. The said passage, be it noted, has been quoted Pratibha Rani v.  

Suraj Kumar and Another10. In the said case, the majority referred  

to the stridhan as described in “Hindu Law” by  N.R. Raghavachariar

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and Maine’s “Treatise on Hindu Law”. The Court after analyzing the  

classical texts opined that:-

”It is, therefore, manifest that the position of stridhan of a  Hindu married woman’s property during coverture is abso- lutely clear and unambiguous; she is the absolute owner of  such property and can deal with it in any manner she likes  — she may spend the whole of it or give it away at her own  pleasure by gift or will without any reference to her hus- band. Ordinarily, the husband has no right or interest in it  with the sole exception that in times of extreme distress, as  in famine, illness or the like, the husband can utilise it but  he is morally bound to restore it or its value when he is able  to do so. It may be further noted that this right is purely  personal to the husband and the property so received by  him in marriage cannot be proceeded against even in execu- tion of a decree for debt.”   

25. In the said case, the Court ruled:-

“... a pure and simple entrustment of stridhan without cre- ating any rights in the husband excepting putting the arti- cles in his possession does not entitle him to use the same  to the detriment of his wife without her consent. The hus- band has no justification for not returning the said articles  as and when demanded by the wife nor can he burden her  with losses of business by using the said property which  was never intended by her while entrusting possession of  stridhan. On the allegations in the complaint, the husband  is no more and no less than a pure and simple custodian  acting on behalf of his wife and if he diverts the entrusted  property elsewhere or for different purposes he takes a clear  risk of prosecution under Section 406 of the IPC. On a par- ity of reasoning, it is manifest that the husband, being only  a custodian of the stridhan of his wife, cannot be said to be  in joint possession thereof and thus acquire a joint interest  in the property.”

26. The decision rendered in the said case was referred for a fresh  

look by a three-Judge Bench. The three-Judge Bench Rashmi Kumar

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(Smt) v. Mahesh Kumar Bhada11 while considering the issue in the  

said case, ruled that :-

“9. A woman’s power of disposal, independent of her hus- band’s control, is not confined to saudayika but extends to  other properties as well. Devala says: “A woman’s mainte- nance (vritti), ornaments, perquisites (sulka), gains (labha),  are her stridhana. She herself has the exclusive right to en- joy  it.  Her  husband  has  no  right  to  use  it  except  in  distress….” In N.R. Raghavachariar’s  Hindu Law — Princi- ples  and  Precedents,  (8th  Edn.)  edited  by  Prof.  S.  Venkataraman,  one of  the renowned Professors of  Hindu  Law para 468 deals with “Definition of Stridhana”. In para  469 dealing with “Sources of acquisition” it is stated that  the sources of acquisition of property in a woman’s posses- sion are: gifts before marriage, wedding gifts, gifts subse- quent  to  marriage  etc.  Para  470  deals  with  “Gifts  to  a  maiden”.  Para  471  deals  with  “Wedding  gifts”  and  it  is  stated therein that properties gifted at the time of marriage  to the bride, whether by relations or strangers, either Ad- hiyagni  or  Adhyavahanika,  are  the  bride’s  stridhana.  In  para 481 at page 426, it is stated that ornaments presented  to the bride by her husband or father constitute her Strid- hana  property.  In  para  487 dealing  with  “powers  during  coverture” it is stated that saudayika meaning the gift of af- fectionate kindred, includes both Yautaka or gifts received  at the time of marriage as well as its negative Ayautaka. In  respect of such property, whether given by gift or will she is  the absolute owner and can deal with it  in any way she  likes. She may spend, sell or give it away at her own plea- sure.

10. It is thus clear that the properties gifted to her before  the marriage, at the time of marriage or at the time of giving  farewell or thereafter are her stridhana properties. It is her  absolute property with all rights to dispose at her own plea- sure. He has no control over her stridhana property. Hus- band may use it during the time of his distress but none- theless he has a moral obligation to restore the same or its  value to his wife. Therefore, stridhana property does not be- come a joint property of the wife and the husband and the

Page 21

husband  has  no  title  or  independent  dominion  over  the  property as owner thereof.”

27. After so stating the Court proceeded to rule that stridhana prop-

erty is the exclusive property of the wife on proof that she entrusted  

the property or dominion over the stridhana property to her husband  

or any other member of the family, there is no need to establish any  

further special agreement to establish that the property was given to  

the husband or other member of the family. Further, the Court ob-

served that it is always a question of fact in each case as to how the  

property came to be entrusted to the husband or any other member of  

the family by the wife when she left  the matrimonial  home or was  

driven out therefrom. Thereafter, the Court adverted to the concept of  

entrustment and eventually concurred with the view in the case of  

Pratibha Rani (supra). It is necessary to note here that the question  

had arisen whether it is a continuing offence and limitation could be-

gin to run everyday lost its relevance in the said case, for the Court on  

scrutiny came to hold that the complaint preferred by the complainant  

for the commission of the criminal breach of trust under Section 406  

of the Indian Penal Code was within limitation.  

28. Having appreciated the concept of Stridhan, we shall now proceed  

to deal  with the meaning of “continuing cause of  action”.   In  Raja  

Bhadur Singh v. Provident Fund Inspector and Others12 the Court

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while dealing with the continuous offence opined that the expression  

“continuing offence” is not defined in the Code but that is because the  

expressions which do not have a fixed connotation or a static import  

are difficult to define.   The Court referred to the earlier decision in  

State of Bihar v. Deokaran Nenshi13 and reproduced a passage from  

the same which is to the following effect:-

“A continuing offence is one which is susceptible of continu- ance and is distinguishable from the one which is commit- ted once and for all. It is one of those offences which arises  out of a failure to obey or comply with a rule or its require- ment and which involves a penalty, the liability for which  continues  until  the  rule  or  its  requirement  is  obeyed  or  complied with. On every occasion that such disobedience or  non-compliance occurs and reoccurs, there is the offence  committed.  The  distinction  between  the  two  kinds  of  of- fences is between an act or omission which constitutes an  offence once and for all and an act or omission which con- tinues, and therefore, constitutes a fresh offence every time  or occasion on which it continues. In the case of a continu- ing offence, there is thus the ingredient of continuance of  the offence which is absent in the case of an offence which  takes place when an act or omission is committed once and  for all.”

29.  The Court further observed :-

“This passage shows that apart from saying that a continu- ing offence is one which continues and a non-continuing of- fence is one which is committed once and for all, the Court  found it difficult to explain as to when an offence can be de- scribed as a continuing offence. Seeing that difficulty, the  Court observed that a few illustrative cases would help to  bring out the distinction between a continuing offence and  a non-continuing offence. The illustrative cases referred to  by the Court are three from England, two from Bombay and  one from Bihar.”

Page 23

30. Thereafter, the Court referred to the authorities and adverted to  

Deokaran Nenshi (supra) and eventually held:-

“The question whether a particular offence is a continuing  offence must necessarily depend upon the language of the  statute which creates that offence, the nature of the offence  and,  above  all,  the  purpose  which  is  intended  to  be  achieved by constituting the particular act as an offence...”   

31. Regard being had to the aforesaid statement of law, we have to  

see whether retention of stridhan by the husband or any other family  

members is a continuing offence or not.  There can be no dispute that  

wife can file a suit for realization of the stridhan but it does not debar  

her to lodge a criminal  complaint  for  criminal  breach of  trust.   We  

must state that was the situation before the 2005 Act came into force.  

In the 2005 Act, the definition of “aggrieved person” clearly postulates  

about the status of any woman who has been subjected to domestic vi-

olence as defined under Section 3 of the said Act.  “Economic abuse”  

as it has been defined in Section 3(iv) of the said Act has a large can-

vass.   Section 12,  relevant  portion of  which  have  been  reproduced  

hereinbefore, provides for procedure for obtaining orders of reliefs.  It  

has been held in  Inderjit Singh Grewal (supra) that Section 498 of  

the  Code of  Criminal  Procedure applies  to  the  said  case under  the  

2005 Act as envisaged under Sections 28 and 32 of the said Act read  

with Rule 15(6) of  the Protection of Women from Domestic Violence

Page 24

Rules, 2006.   We need not advert to the same as we are of the consid-

ered opinion that as long as the status of the aggrieved person remains  

and stridhan remains in the custody of the husband, the wife can al-

ways put forth her claim under Section 12 of the 2005 Act. We are dis-

posed to think so as the status between the parties is not severed be-

cause of the decree of dissolution of marriage. The concept of “continu-

ing offence” gets attracted from the date of deprivation of stridhan, for  

neither the husband nor any other family members can have any right  

over the stridhan and they remain the custodians.  For the purpose of  

the 2005 Act, she can submit an application to the Protection Officer  

for one or more of the reliefs under the 2005 Act. In the present case,  

the wife had submitted the application on 22.05.2010 and the said au-

thority had forwarded the same on 01.06.2010. In the application, the  

wife had mentioned that the husband had stopped payment of monthly  

maintenance from January 2010 and, therefore, she had been com-

pelled to file the application for stridhan. Regard being had to the said  

concept of  “continuing offence” and the demands made, we are dis-

posed to think that the application was not barred by limitation and  

the courts below as well as the High Court had fallen into a grave error  

by dismissing the application being barred by limitation.

32. Consequently, the appeal is allowed and the orders passed by the  

High Court and the courts below are set aside.  The matter is remitted

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to the learned Magistrate to proceed with the application under Section  

12 of the 2005 Act on merits.    

.............................J. [Dipak Misra]

..........................., J. [Prafulla C. Pant]

New Delhi November 20, 2015