Whether Law Of Limitation Applies To The DV Act?

In addition to the above, the Act has some peculiar features including power of Magistrate to revise his/ her previous order under section 25 of the Act, power to lay down its own procedure, etc.

Though section 28(1) of the Act specifically lays down that almost all effective proceedings and offences shall be governed by the provisions of the Code of Criminal Procedure (for brevity “the CrPC”). However, sub section 2 of the same very section empowers the Magistrate to lay down his own procedure to dispose of an application under sections 12 or/ and 23 of the Act.

The literal meaning of section 28 can be said that though the court can formulate its own procedure, but the same must be in accordance with the rules of the CrPC.

However, the Act doesn’t specifically stipulate the aspect of the limitation. Thus, the moot question before us is whether law of limitation as per the Limitation Act, 1963 or/ and CrPC are applicable to the proceedings governed by the DV Act.

This brief of writing is a humble attempt to throw some light on the recent development in the legal arena on this very issue.

Limitation As Per The CrPc

Chapter 36 of the CrPC deals with the limitation for taking cognizance of certain offences. Section 468 of the CrPC is fundamental provision, and the same is depicted hereinafter: -

468. Bar to taking cognizance after lapse of the period of limitation. —

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be—

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years…

It is apposite to mention that section 31 of the Act stipulates that punishment for breach of order passes under the Act may extend to one year, or with fine of up to Rs 20,000/- (Rupees Twenty Thousand Only) or with both.

Thus, the holistic reading of sections 28 and 31 of the Act r/w section 468 of the CrPC, the complaint under section 12 shall be filed within one year from the date of offence else the concerned court/ magistrate won’t be able to take cognizance of the matter as per the law.

At this juncture, it would be pertinent to refer the judicial interpretation of the law of limitation qua the proceedings governed by the Act.

Relevant Case Laws: -

The Supreme Court in the case of “Inder Singh Grewal vs. State of Punjab & Ors.^[1] has observed that the complaint under the Act is to be filed within one year from the date of the incident as per sections 28, 32 of the Act r/w section 428 of the CrPC. It is pertinent to note that the moot question in the said case wasn’t the limitation period, however, the court has duly given its view on the limitation point in brief.

The Inder Singh case (supra) has thereafter been referred by various courts from time to time while dealing with the issue of limitation qua proceedings under the DV Act including the following notable cases.

The Madras High Court in the case of “V. Nagarajan and Ors. vs. B.P. Thangaveni”^[2] while placing reliance on the Inder Singh case (Supra) held that the complainant left the matrimonial home in 2014, therefore her application under section 12 of the Act which was filed in 2017 is bared by law as the same wasn’t filed within one year from the date of the incident.

The Patna High Court in the case of “Santosh Kumar vs. State of Bihar & Anr.”^[3] held that a magistrate can’t take cognizance of the complaints filed after the expiry of one year in light of the Inder Singh case (Supra).

Thus, from the perusal of the aforesaid case laws, it won’t be incorrect to state that the proceedings including section 12 applications under the Act are to be filed within one year from the date of the incident, else the court may refuse to take cognizance of the same.

However, recently the Apex Court in the case of Kamatchi vs. Laxmi^[4] in 2022 has given the altogether a different and new interpretation to the law of limitation qua the proceedings governed by the Act. the same are briefly discussed below.

Kamatchi Vs. Laxmi Narayan Case, 2022

The Supreme Court in the case of Kamatchi vs. Laxmi Narayan (Supra) has held that an application filed under section 12 of the Act is not a complaint as per section 2 of the CrPC. Ergo, the application of section 468 of the CrPC over section 12 of the Act is not permissible, and hence the rule/ law of limitation of one year is not applicable to the applications filed under section 12 of the Act.

Interestingly, the Supreme Court has referred the case of Inder Singh (Supra) and distinguished the same with the following reasoning: -

“Rather than the issue of limitation, what really weighed with this Court in Inderjit Singh Grewal was the fact that the domestic violence was alleged after the decree for divorce, when any relationship between the parties had ceased to exist. It is true that the plea based on Section 468 of the Code was noted in paragraph 32 of said decision but the effect and interplay of Sections 12 and 31 of the Act was not noticed.”

Thus, the Apex Court without overruling the Indersingh case (Supra) has practically overruled the previous established law, and now has solidified the point that the restrictions imposed by and under section 468 of the CrPC shall not be applicable to the applications filed under the Act.

Though, the Kamatchi case (Supra) has clearly settled the dust on this aspect by reversing the erstwhile law. On one hand, the Supreme Court has provided huge reliefs to women at large as they are not now strictly bound to file the application under section 12 of the Act within one year from the date of the incidents. However, the Court has not laid down any guideline as to what could be the last point till when such applications can be filed. Resultantly, such relaxation may hurt the innocent respondents in the long run. Lastly, the need of the hour is that the Apex Court must set up some guidelines to regulate or/and restrict the filing of applications under section 12 and other provisions of the Act after undue and unjustified delay in order to protect the innocent respondents as well as save the time from vexatious cases.

The author is an Advocate practicing in Delhi/ NCR . Views are personal.