(Prayer: This Crl.R.P filed u/S.397 r/w 401 of cr.P.C praying to set aside the order dated 19.06.2010 passed in Crl.Mis.No.1915/09 on the file of the 8th Addl.CMM, Bangalore and further be pleased to set aside the order dated 4.6.11 by the Fast Track (Sessions) Judge, Bangalore, in Crl.A.No.574/10 and etc.)
1. Whether Sub-section (3) of Section 29 of the Limitation Act, 1963 operates as a bar for filing the application under Section 5 of the said Act before the lower appellate court in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005, (‘Domestic Violence Act, 2005’ for short) is the question that has arisen in this petition.
2. Brief facts are that, the respondent herein being the wife of the petitioner, filed Crl.Misc.No. 1915/09 before the trial court under Section 12 of the Domestic Violence Act, 2005 seeking certain reliefs. The petitioner herein being the husband contested the said application and ultimately, the trial court by its order dated 19.06.2010, directed the petitioner herein to provide residence to the 1st respondent and in the event of the petitioner giving up his rights in the government quarters, he will have to provide alternative accommodation to his wife and the court further directed the petitioner to settle the home loan to the extent of this liability and the respondent-wife shall not be made liable towards the settlement of home loan. The court also directed the petitioner to give the benefits to his wife in the event of the petitioner resigning from his job. The trial court also passed an order subsequently on 22.06.10 following the additional affidavit filed by the complainant-wife and ordered that the order of maintenance passed earlier shall become absolute and gave direction to the drawing officer of the petitioner to directly remit the maintenance amount to the court.
3. The petitioner being aggrieved by the order dated 19.06.10, preferred an appeal before the lower appellate court under Section 29 of the Domestic Violence Act, 2005 and also filed an application seeking condonation of delay in preferring the appeal by contending that the delay of 7 days in preferring the appeal was for bonafide reasons and therefore, the application filed under Section 5 of the Limitation Act be allowed.
4. Learned Judge of the lower appellate court dismissed the I.A. filed seeking condonation of delay in preferring the appeal as not maintainable and consequently, the appeal Ws also dismissed. It is this order of the lower appellate court that is called in question by the husband in this revision petition.
5. Sr.S.S.Koti, learned Counsel for the revision petitioner submitted that the lower appellate court committed error in holding that Section 5 of the Limitation Act has no application to the Domestic Violence Act, 2005 and it has observed that Section 29 of the Limitation Act is a bar to present an application under Section 5 of the said Act. The lower appellate court though has observed in the course of its order that there is only six or seven days delay, the reasons given by the lower appellate court for dismissing the I.A. filed therefore cannot be sustained in law, particularly having regard to the provisions contained in the Limitation Act as well as in the Domestic Violence Act, 2005. In support of the said contentions, reliance is placed on the following decisions:-
1976(2) SCR S.C.260,ILR 2010 KAR 249, ILR 1987 KAR 2844, J.T.2000 (5) S.C. 389, AIR 2008 SCW 5692 and 2010 (2) KCCR 1114.
6. On the other hand, submission of Sri.G.R.Gurumath, learned Counsel for the respondent is that the lower appellate court committed no error in holding that the application under Section 5 of the Limitation Act is not maintainable and learned Counsel drew my attention in this regard to Sub-section (3) of Section 29 of the Limitation Act to contend that save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in the Limitation Act shall apply to any suit or other proceeding under any such law. Therefore, it is argued that by virtue of Sub-section (3), Sub-section (2) of Section 29 also will have to be ruled out and the view taken by the lower appellate court therefore is the correct view. In this connection, learned Counsel also pointed out that the provision for preferring the appeal against an order passed by the Magistrate under the Domestic Violence Act, 2005 is contained in Section 29 of the said Act which provides that appeal shall lie to the Court of Sessions within 30 days from the date on which the order made by the Magistrate is served on the aggrieved person.
7. Therefore, it is submitted that a combined reading of Section 29 of the Domestic Violence Act, 2005 and Sub-section (3) of the Limitation Act would give raise to take the view that Section 5 of the Limitation Act has no application to the proceedings arising out of the Domestic Violence Act insofar as the appeal is concerned.
8. Learned Counsel for the respondent also submitted that the petitioner had suppressed certain facts before the trial court and though there was no order of stay granted by this Court, the trial court was informed that there was stay of the order passed by the trial court in Crl.Mis.No.1915/09. As such, the petitioner by his own conduct, has deprived himself of any relief at the hands of this Court in this revision petition. It is also submitted that the petitioner has been charge sheeted in respect of certain offence i.e., 498-A of IPC and apart from that he has committed perjury, and as such, for this reason also the revision petition is liable to be dismissed.
9. The decision referred to by learned Counsel for the respondent with regard to the non-application of Section 5 of the Limitation Act to the proceedings before the lower appellate court under the Domestic Violence Act are the following:-
1996 Crl.L.J.2418, AIR 1989 SC 1477, AIR 1975 SC 1039, AIR 1962 SC 247, AIR 1962 SC 1716, AIR 2001 SC 4010, 1996 Crl.L.J. 2418, Crl.P.No. 4707/11 d.d.21.10.2011, 2009(1) Marriage Law Journal Page 290 and 2011 (1) Marriage Law Journal page 306.
10. In the light of the contentions put forward and the decisions cited by both sides, I now proceed to answer the question raised at the beginning of this order.
11. Since, the learned Counsel for the respondent mainly referred to Sub-section (3) of Section 29 of the Limitation Act, the provisions contained in Section 29 of the Limitation Act therefore will have to be referred to, at the juncture for proper appreciation of the contentions put forward. The said Section reads as under:-
29. Savings –(1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872 (9 of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Section 25 and 26 and the definition of “easement” in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend.
12. It is clear from Sub-section (2) of Section 29 of the above that the provisions contained in sections 4 to 24 of the Limitation Act shall apply in so far as to the extent to which they are not expressly excluded by such special or local law. Therefore, in the absence of any specific provision in the Domestic Violence Act, 2005, the application of Sub-section (2) of Section 29 therefore cannot be prevented. In other words, the provisions to Section 4 to 24 will also apply, as the said provisions have not been expressly excluded by the Domestic Violence Act, 2005.
13. However, a reading of Sub-section (3), gives an impression that nothing in the Act shall apply save as otherwise provided in respect of marriage and divorce. Submission of learned Counsel for the respondent is that, as the protection of Women from Domestic Violence Act, 2005 has been enacted to protect the women being the victims of domestic violence, it is therefore contended that the reference to the statement of objects and reasons that the provisions contained in Sub-section (3) of Section 29 will be applicable even to the Domestic Violence Act and it is not restricted only to the law relating to marriage and divorce.
14. Learned Counsel for the respondent also contended that the provisions contained in Sub-section (3) of Section 29 will have to be construed in the literal sense and the courts have no power to read what is not there in the law. In other words, the legislation alone is constrained to make the law and the task of the judiciary is only to interpret the law as laid down by the legislation. In this connection, learned Counsel referred to several decisions.
15. The aforesaid argument of the respondent’s Counsel that Sub-section (3) of section 29 of the Limitation Act bars the application of Section 5 of the Limitation Act and the proceedings before the lower appellate court in respect of the order passed under the Domestic Violence Act cannot be accepted for the following reasons:
Sub-section (2) of Section 29 of the Limitation Act makes it clear that the provisions contained in Sections 4 to 24 shall apply even in respect of special law or local law unless the said provisions are expressly excluded by the special or local law. The provisions contained in the Protection of Women from Domestic Violence Act, 2005 do not expressly exclude the application of sections 4 to 24 of the Limitation Act. This is clear from a reading of Section 36 of the Domestic Violence Act, 2005, which Section reads as under:-
36. Act not in derogation of any other law. – The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.
Limitation Act is often referred to as an adjective or procedural law.
16. Now coming to Sub-section (3) of Section 29 of the Limitation Act, a plain reading of the provisions contained therein, makes it clear that it is only in respect of the marriage and divorce that the said sub-section provides that the provisions of the limitation Act shall not apply to any suit or other proceedings under any such law. What is contemplated therefore is in respect of the law relating to marriage and law relating to divorce and there is no scope for reading into sub-section (3) and the provisions relating to Protection of Women from Domestic Violence Act, 2005. In this connection, it will be useful to refer to the decision touching upon Sub-section (3) of Section 29 of the Limitation Act. While commenting Sub-section (3) of Section 29 of the Limitation Act, learned Author BASU in his commentary on Law on Limitation Act, 1963 (7th Edition), has observed thus:-
5. Sub-section (3).– Sub-section 3 of Sec.29, Limitation Act, 1908, makes the Limitation Act inapplicable to suits under the Divorce Act, 1869. There are other Acts, like the Parsi Marriage and Divorce Act and the Special Marriage Act, dealing with marriage and divorce. The reasons for excluding proceedings under the Divorce Act, 1969, are equally applicable to proceedings, under those other Acts. Sub clause (3) of the present section amplifies Sec.29(3) of the repealed Act, so as to exclude the application of this law to suits under any law, dealing with marriage or divorce.
17. Reference also can be made to the comments in respect of Section 29 sub-clause (3) as found in the Law of Limitation and Prescription of the learned Author U.N. Mitra at page 612. The comments reads thus:-
7. Section 29, sub-section (3).- Sub-section(3) of Section 29 of the Act of 1908 provided that “nothing in this Act shall apply to suits under the Indian Divorce Act”. According to Section 29(3) the Act is not applicable to suit or proceeding under the law relating to marriage and divorce. This Section 29(3) is not applicable to time barred maintenance application on the allegation of solemnization of marriage before the commencement of Hindu Marriage Act. Appeals from decree in such suits would be thus outside the purview of the section; likewise suits and proceedings relating to matrimonial causes under other enactments. There are a number of such Acts like the Parsi Marriage and Divorce Act, the Special Marriage Act (formerly) Act III of 1872), now Act XLIII of 1954, the Hindu Marriage Act (XXV of 1955), and the Dissolution of Muslim Marriage Act (I of 1939), etc. The Law Commission had observed (see Third Report, para, 60): Sub-section (3) makes this Act inapplicable to suits under the Indian Divorce Act, 1869. There are other acts like the Parsi Marriage Act, dealing with marriage and divorce. The reasons for excluding proceedings under the Divorce Act 1869, are equally applicable to proceedings under those other Acts. We recommend that the sub-section may be amplified to include all Acts relating to matrimonial causes. The Acts to be included may be specified when drafting the amendment to the Section”. Accordingly, as pointed out in the Statements of objects and Reasons, the present sub-section (3) has amplified Section 29(3) of the Act of 1908 so as to exclude the application of this law to suits under any law dealing with marriage and divorce. But the recommendation of the Law Commission that these laws may be specified has not, however, been done.
18. Therefore, it is clear that Sub-section (3) of Section 29 only bars the application of the provisions of the said Act in respect of any law relating to marriage and divorce. Since the matter relating to Protection of Women from Domestic Violence Act, has not been included in Sub-section (3) of the said Act, the question of provision of the Limitation Act not being applicable to the proceedings before the lower appellate court and the question of the application under Section 5 of the Limitation Act also not being maintainable in respect of the appeal preferred under the Domestic Violence Act therefore cannot arise.
19. The lower appellate court committed serious error in rejecting the application filed under Section 5 of the Limitation Act for condonation of delay. It is a different matter, whether the petitioner has made out a case for condonation of delay or not, but i.e., not a ground to hold that the application filed under Section 5 of the Limitation Act itself is not maintainable. Since, a reading of the provisions contained in the Domestic Violence Act does not bar the application of the provisions of the Limitation Act in respect of the appeal, the view taken by the court below cannot be sustained in law.
20. As the lower appellate court did not go into the merits of the appeal, it would be unnecessary for this Court to go into the said aspect of the matter, though learned Counsel for both sides touched upon the merits of the case as well. As far as the decisions cited by both sides are concerned, in view of the aforesaid reasons and Domestic Violence Act itself not preventing the application of any other law, the decision referred to therefore are not considered in detail.
21. Though, Learned Counsel for the parties also referred to the commencement of the period of 30 days in preferring the appeal, by referring to the provisions contained in Section 29 of the Domestic Violence Act, 2005, since in the instant case, the petitioner has already obtained the order from the trial court and had preferred an appeal, the need to consider the contentions urged in this connection therefore may not arise in the present case and in an appropriate case, such aspect could be considered.
22. For the above reasons, the revision petition is allowed and the order of the lower appellate court dismissing the I.A. as well as the appeal is set aside. The lower appellate court to consider the application filed for condonation of delay and it is also open to the respondent to urge the contentions concerning the petitioner having suppressed certain facts and at the same time, the petitioner is also given liberty to put forward before the lower appellate court his contention that this Court has granted stay of the order of the lower appellate court and the lower appellate court therefore was informed of the said position and if the lower appellate court had conceived the stay order differently in respect of both the orders passed by the trial court, it is for the lower appellate court to consider as to whether the petitioner has made any incorrect statement or not. It is needless to say that this Court had only stayed the order of the lower appellate court.