KRISHNA BHATACHARJEEversusSARATHI CHOUDHURY AND ANR.

                   (2015] 14 S.C.R. 65


               KRISHNA BHATACHARJEE                            A
                             v.
           SARATHI CHOUDHURYANDANR.
            (Criminal Appeal No. 1545 of 2015)                 B
                  NOVEMBER 20, 2015
     [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
      Protection of Women from Domestic Violence Act,          c
2005 -ss. 2{a), 3(iv) and 12-Application u/s. 12- By the
wife - Seeking seizure of Stridhan articles in possession of
her husband - Dismissed on the grounds that the application
was not maintainable as the wife has ceased to be an
'aggrieved person' u/s. 2(a) as the parties had been judiciallyo
separated and that the application was barred by limitation -
The order was upheld by Sessions Judge as well as the High
Court-On appeal, held: The Act being a legislation to provide
for more effective protection of the rights of the women
guaranteed under the Constitution, a more sensitive E
approach is expected from the Court - Before dismissing a
petition under the Act, on the ground of its maintainability,
there has to be a thorough deliberation on the issues
raised- In the present case, the applicant-wife has not ceased
to be an 'aggrieved person' uls. 2(a) because even after F
decree of judicial separation marital status between the
parties is not snapped- Retention of Stridhan by the husband
is a continuing offence -As long as the marital status remains
and Stridhan remains in the custody of husband, wife can
always put forth her claim u/s. 12- The application cannot G
be said to be barred by limitation.

      Matrimonial law- 'Divorce' and 'Judicial Separation' -
Distinction between.
                                                               H
                            65
66        SUPREME COURT REPORTS             [2015) 14 S.C.R. .


A         Words and Phrases: 'Stridhan' - Meaning of, in the
     context of matrimonial law.

         Allowing the appeal, the Court
        HELD: 1. The 2005 Act has been legislated to
B 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
C the 2005 Act, 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", has many a facet; [Para 3] [70-E-G]
D       2. Regard being had to the nature of the legislation,
  a more sensitive approach is expected from the courts
  where under the 2005 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,
E there has to be an apposite discussion and thorough
  deliberation on the issues raised. 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
F of the aggrieved person is really legally sound and
  correct. 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 is a beneficial as well as
G 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. [Para 4] [70-H; 71-A-B, B-C, D-E]
         3. There is a distinction between a decree for
H
  KRISHNABHATACHARJEE v. SARATHI CHOUDHURY                  67


divorce and decree of judicial separation; in the former, A
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 relationship continues as it has not bee.n
snapped. Thus understood, the finding recorded by the B
courts below that the parties having been judicial
separated, the appellant wife has ceased to be an
"aggrieved person" is wholly unsustainable. [Para 22]
[84-A·C]
                                                            c
     Hirachand Srinivas Managaonkar v. Sunanda
     (2001) 4 sec 125: 2001 (2) SCR 491 - relied
     on.
     Jeet Singh and Ors. v. State of U.P. and Ors. (1993)
     1 SCC 325: 1992 (3) Suppl. SCR 246; Bai Mani           D
     v. Jayantilal Dahyabhai AIR 1979 Guj 209;
     Soundaram ma! v. Sundara Mahalinga Nadar AIR
     1980 Mad 294 - referred to.
     "Hindu Law of Marriage and Stridhan" by Sir            E
     Gooroodas - referred to.
       4. As long as the status of the aggrieved person
 remains and stridhan remains in the custody of the
 husband, the wife can always put forth her claim under F
 Section 12 of the 2005 Act, because the status between
 the parties is not severed because of the decree of
 dissolution of marriage. The concept of "continuing
 offence" gets attracted from the date of deprivation of ·
 stridhan, for neither the husband nor any other family G
 members can have any right over the stridhan and they
 remain the custodians. For the purpose of the 2005 Act,
 wife 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 H
68        SUPREME COURT REPORTS                  [2015) 14 S.C.R.

A 22.05.2010 and the said authority 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 compelled to file the application for
B stridhan. Regard being had to the said concept of
  "continuing offence" and the demands made, 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
C limitation. [Para 31] [90-A-E]
         State of Bihar v. Deokaran Nenshi (1972) 2 SCC
         890: 1973 (3) SCR 1004- relied on.
         lnderjit Singh Grewal v. State of Punjab (2011) 12
D
         SCC 588 : 2011 (10) SCR 557; V.D. Bhanot v.
         Savita Bhanot(2012) 3SCC183: 2012 (1) SCR
         867; Saraswathy v. Babu (2014) 3 SCC 712 :
         2013 (12) SCR 914; 0. Velusamy v. D.
E        Patchaiammal (2010) 10 SCC 469: 2010 (13)
          SCR 706; Savitaben Somabhai Bhatiya v. State
         of Gujarat (2005) 3 SCC 636 : 2005 (2) SCR 638;
         Pratibha Rani v. Suraj Kumar and Anr. (1983) 2
         SCC 370 : 1985 (3) SCR 191 : Rashmi kumar
F        (Smt) v. Mahesh Kumar Bhada (1997) 2 SCC 397
         : 1996 (10) Suppl. SCR 347 ; Raja Bhadur Singh
         v. Provident Fund Inspector and Ors. (1984) 4
         SCC 222 : 1985 (1) SCR 626 - referred to.
         "Hindu Law" by N.R. Raghavachariar and Maine's
G
         "Treatise on Hindu Law." - referred to.

                 Case Law Reference

     2011 (10) SCR 557             referred to         Para 1
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 KRISHNA BHATACHARJEE v. SARATHI CHOUDHURY                     69


2012 (1) SCA 867              referred to         Para 13      A

2013 {12) SCA 914             referred to         Para 14

2010 {13) SCA 706             referred to         Para 15

2005 (2) SCA 638              referred to         Para 15      B
1992 (3) Suppl. SCA 246       referred to         Para 17

2001 (2) SCA 491              relied on           Para 19

AIR 1979 Guj 209               referred to        Para 21      c
AIR 1980 Mad 294               referred to        Para 21

1985 (3) SCA 191               referred to        Para 24

1996 (10) Suppl. SCA 347       referred to        Para 26
                                                               D
1985 (1) SCA 626               relied on          Para 28

1973 (3) SCA 1004              relied on          Para 28

    CRIMINAL APPELLATE JURISDICTION: Criminal
                                                               E
Appeal No. 1545 of 2015 .

    . From the Judgment and Order dated 26.08.2014 of the
High Court of Tripura, at Agartala in CRL. REV. P. No. 19 of
2014.
                                                               F
    Mr. Pijush K. Roy,· Ms. Kakali Roy (For Rajan K.
Chourasia) for the Appellant.

     Manoj, Ms. Aparna Sinha (For Abhijat P. Medh),
Ms. N. S. Neeppinai, Rituraj Biswas (For Gopal Singh) for the G
Respondents.

     The Judgment of the Court was delivered by

     DIPAK MISRA, J. 1. Leave granted.
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70        SUPREME COURT REPORTS                   (2015] 14 S.C.R.


A       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
  preferr.ed under Section 12 of the Protection of Women from
  Domestic Violence Act, 2005 (for short, 'the 2005 Act') was
B 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 view expressed by the learned Magistrate, and being
C 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
D
  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.
E        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
F 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
G 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
H
  KRISHNABHATACHARJEE v. SARATHI CHOUDHURY                            71
               [DIPAK MISRA, J.]

more sensitive approach is expected from the courts where             A
under the 2005 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          B
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       C
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-
                                                                      0
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.
                                                                      E
       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 F
satisfied, the appellant was driven out from the 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 G
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 22.5.201 Othe appellant filed an application under Section H
72         SUPREME COURT REPORTS                  (2015] 14 S.C.R.


A    12 of the 2005 Act before the Child Development Protection
     Officer (CDPO), 0/0 the District Inspector, Social Welfare &
     Social Education, A.O. 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
B    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.
c
        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 decree of judicial separation
D passed by the competent court. The learned Magistrate taking
  into consideration the admitted fact that respondent and the
  appellant had entered into wedlock treated her as an
  "aggrieved person", but opined that no "domestic relationship"
  as defined under Section 2(f) of the 2005 Act existed between
E 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
F 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 examined three witnesses and the husband had
G 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)
H
 KRISHNA BHATACHARJEE v. SARATHI CHOUDHURY                       73
               [DIPAK MISRA, J.]

of 2014 which has been decided by the learned Additional A
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 tnderjit Singh Grewal
v. State of Punjab' that Section 468 of the Code of Criminal
Procedure applies to the proceedings under the 2005 Act a~d, B
therefore, her application was barred by time. Being of this
view, the appellate court dismissed the appeal.
      8. On a revision being preferred, the High Court, as is
demonstrable from the impugned order, after referring to the c
decision in tnderjit Singh Grewa/(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 proceedings under the
2005 Act was barred by limitation. That apart, it has also in a D ·
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 sensit.ive approach to these kinds of cases. There can be E
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 appreciate 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 F
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 G
"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
1
  (2011) 12 sec 588                                               H



                                                                      ,
 74        SUPREME COURT REPORTS                   [2015] 14 S.C.R.


 A means any woman who is, or has been, in a domestic
   relationship with the respondent and who alleges to have been
   subjected 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
 B 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
 C 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 follows:-
. D        "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
 E          under any law or custom whether payable under an order
            of a court or otherwise 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, property, jointly or separately
  F         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,
 G          shares, securities, bonds and the like or other property
            in which the aggrieved person has an interest or is
            entitled to use by virtue of the domestic relationship or
            which may be reasonably required by the aggrieved
            person or her children or her stridhan or any other
  H
  KRISHNABHATACHARJEE v. SARATHI CHOUDHURY                     75
               [DIPAK MISRA; J.)

       property jointly or separately held by the aggrieved A
       person; and
       (c) prohibition or restriction to continued access to
       resources or facilities which the aggrieved person is
       entitled to use or enjoy by virtue of the domestic B
       relationship including access to the shared household.
       Explanation //.-For the purpose of determining whether
       any act, omission, commission or conduct of the
       respondent constitutes "domestic violence" under this C
       section, the overall 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.necessary and also to notify the area or areas D
 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 E
 Magistrate. Sub-sections (1) and (2) being relevant are
 reproduced below:-
       "Section 12. Application to Magistrate.-(1) An
       aggrieved person or a Protection Officer or any other F
       person on behalf of the aggrieved person may present
       an application to the Magistrate seeking one or more
       reliefs under this Act: Provided that before passing any
       order on such application, the Magistrate shall take into
       consideration any domestic incident report received by G
       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 or damages without prejudice to the right H
 76        SUPREME COURT REPORTS                  [2015] 14S.C.R.


, A        of such person to institute a suit for compensation or
           damages for the injuries 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
 B         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
 c         (5of1908), 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
 D by the Magistrate. 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
 E Criminal Procedure, 1973. Section 36 lays down that the
   provisions 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.
  F      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
   Bhanot 2 the question arose whether the provisions of the 2005
   Act can be made applicable in relation to an incident that had
 G 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 2005Act cannot be invoked if
   the occurrence had taken place prior to the coming into force
   of the 2005 Act. This Court while dealing with the same referred
 H ' (2012) 3 sec 1a3
 KRISHNA BHATACHARJEE v. SARATHI CHOUDHURY                      77
               [DIPAK MISRA, J.]

to the decision rendered in the High Court which after A
considering the constitutional safeguards under Article 21 of
the Constitution vis-a-vis the provisions of Sections 31 and 33
of the 2005 Act and after examining 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 B
Articles 14, 15 and 21 of the Constitution that Parliament
enacted the 2005 Act in order to provide for some effective
protection 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 C
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 domestic violence
had been committed prior to the coming into force of the said
 Act, notwithstanding the fact that in the past she had lived
                                                                  D .
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 analyzing the verdict of the. High Court, the Court
 concurred with the view expressed by the High Court by stating .E
 thus:-
       "We agreewith 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 into force of the PWD Act, could be taken F
       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 G
       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
' (2014) 3 sec 712                                              H
78         SUPREME COURT REPORTS                   [2015].14 S.C.R.


A    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 OVA, 2005, which defines "domestic violence" in
            wide terms. The High Court made an apparent error in
B
            holding that the conduct of the parties prior to the coming
            into force of the OVA, 2005 cannot be taken into
            consideration while passing an order. This is a case
            where the respondent husband has not complied with
c           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 contempt
            petition filed by the appellant wife. The appellant wife
            having being harassed since 2000 is entitled for
0           protection order and residence order under Sections
            18 and 19 of the OVA, 2005 along with the maintenance
            as allowed by the trial court under Section 20(1 )(d) of
            the OVA, 2005. Apart from these reliefs, she is also
            entitled for compensation and damages for the injuries,
E           including mental torture and emotional distress, caused
            by the acts of domestic violence committed 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
F           respondent husband. Hence, the respondent is hereby
            directed 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
G courts below as well as the High Court have referred to the
  decision in lnderjit Singh Grewaf(supra). The said case
  has to be understood regard being had to the factual expose
  therein. The Court had referred to the decision in D. Velusamy
  v. D. Patchaiammal 4 wherein this Court had considered the
H • (2010) 10 sec 469
 KRISHNABHATACHARJEE v. SARATHI CHOUDHURY                         79
              [DIPAK MISRA, J.]

expression "domestic relationship" under Section 2(f) of the A
Act and judgment in Savitaben Somabhai Bhatiya v. State
of Gujarat 5 and distinguished the said jtidgments 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 B
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 Hie parties therein had got married and
the decree of the civil court for divorce subsisted and that C
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 D
       submission made on behalf of Respondent 2 that the
       judgment and decree 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 Respondent 2 to declare the said judgment E
       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 F
       as the judgment and decree of the civil court subsists.
       On a similar footing. the contention advanced by her
       counsel that even after the decree of divorce. they
       continued to live together as husband and wife and G
       therefore the complaint under the .2005 Act is
       maintainable, is not worth acceptance at this stage."

                                          [Emphasis supplied]

s (2005) 3 sec 636
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80         SUPREME COURT REPORTS                  [2015] 14 S.C.R.


A          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:-

B          "...... 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
c          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 NO/DA Entrepreneurs Assn. v. NO/DA,
o          (2011) 6 sec 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.
E       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
F 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 OtherS3 though in a different context,
  adverted to the concept of judicial separation and ruled that
  the judicial separation creates rights and obligations. A decree
G 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
H ' (1993) 1 sec 325
               /
 KRISHNABHATACHARJEE v. SARATHI CHOUDHURY                             81
              [DIPAK MISRA, J.]

reconciliation and adjustment. Though judicial separation after A
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.
                                                                        B
       19. In this regard, we may fruitfully refer to the authority in.
Hirachand 5rinivas Managaonkar v. 5unanda' wherein the
issue that arose for determination was whether the husband
who had filed a petition seeking dissolution of the marriage by
a decree of divorce under Section 13(1-A)(i) of the Hindu c
Marriage Act, 1955 can be declined relief on the ground that
he had failed to pay maintenance for his wife and daughter
despite an order of the court. The husband was appellant
before this Court and had filed an application under Section
 10 of the Hindu Marriage Act, 1955 for seeking judicial D
 separation on the ground of adultery on the part of the appellant.
 Thereafter, the appellant presented the petition for dissolution
 of marriage by decree of divorce on the ground that there has
 been no resumption of cohabitation as between the parties to
 the marriage for a period of more than one year after passing E
 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 F
 High Court accepted the plea of the wife and refused to grant
 the prayer of the appellant seeking divorce. 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 G
 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
 1 (2001) 4 sec 125
                                                                        H
82         SUPREME COURT REPORTS'\                 [2015] 14 S.C.R.


A that if the said condition 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
B maintain the wife and daughter. The Court proceeded to
  analyse Section 13(1-A)(i) of the Hindu Mp.rriage 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 the wife it was
C the duty of both the spouses to do their part for cohabitation.
  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
  husband. If this concept of both the spouses making sincere
  contribution for the purpose of successful cohabitation after a
0
  judicial separation is ordered then it can reasonably be .said
  that in the facts and circumstances of the case the husband in
  refusing to pay maintenance to the wife failed to act as a
  nusband. Thereby he committed a "wrong" within the meaning
E of Section 23 of the Act. Therefore, the High Court was justified
  in declining to allow the prayer of the husband for dissolution
  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
F
            and obligations arising from the marriage are as it were
            suspended 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
G           which continues to subsist. It affords an opportunity to
            the spouse for reconciliation and readjustment. The
            decree may fall by a conciliation of the parties in which
       •    case the rights of the respective parties which float from
            the marriage and were suspended are restored.
H           Therefore the impression that Section 10(2) vests a right
 KRISHNABHATACHARJEE v. SARATHI CHOUDHURY                         83
              [DIPAK MISRA, J.]

       in the petitioner to get the decree of divorce A
       notwithstanding the fact that he has not made any
       attempt 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 B
       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 encourage snapping
       of such relationship."
                                                                  c
      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        D
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. Jayantllal
Dahyabhai 8 • This .court did not accept the contention by
holding that living in adultery on the part of the husband is a   E
continuing matrimonial offence, and it does not get frozen or
wiped out merely on passing of a decree for judicial separation
which merely suspends certain duties and obligations of the
spouses in connection with their marriage and does not snap
the matrimonial tie. The Court ruled that the decision of the     F
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 Soundaramma/ v. Sundara
Mahalinga Nadar 9 in which a Single Judge had taken the
view that the husband who continued to live in adultery even      G
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.
8 AIR 1979 Guj 209

' AIR 1980 Mad 294                                                H
84            SUPREME COURT REPORTS                    [2015] 14S.C.R.


A       22. In view of the aforesaid pronouncement, it is quite
  clear that there is a distinction between a decree for divorce
  and decree of judicial 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
B husband and wife continues and the legal relationship
  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 appellant wife has ceased to be an
C "aggrieved person" is wholly unsustainable.
       23. The next issue that arises for consideration is the
  issue of limitation. In the application preferred by the wife, she
  was claiming to get back her stridhan. Stridhan has been
D 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 affectionate kindred, which are known by the name
E              of saudayika stridhan, constitute awoman'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."
F      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 and Maine's "Treatise
G 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
H    10
          (1985) 2 sec 370
KRISHNA BHATACHARJEE v. SARATHI CHOUDHURY                      85
              [DIPAK MISRA, J.]

     absolutely clear and unambiguous; she is the absolute A
     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 husband. Ordinarily, the husband has
     no right or interest in it with the sole exception that in B
     times of extreme distress, as in famine, illness or the
     like, the husband can utilise it bµt 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 C
     marriage cannot be proceeded against even in
     execution of a decree for debt."
25. In the said case, the Court ruled:-
                                                                D
     "... a pure and simple entrustment of stridhan without
     creating any rights in the husband excepting putting the
     articles in his possession does not entitle him to use
     the same to the detriment of his wife without her com;ent.
     The husband has no justification for not returning the E
     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 F
     a pure and simple custodian acting on behalf of his wife
     and if he diverts the entrusted property elsewhere or for
     different purposes he ta~es a clear risk of prosecution
     under Section 406 of the IPC. On a parity of reasoning,
     it is manifest that the husband, being only a custodian G
     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 H
86        SUPREME COURT REPORTS                  (2015) 14 S.C.R.


A    a fresh look by a three-Judge Bench. The three-Judge Bench
     Rashmi Kumar (Smt) v. Mahesh Kumar Bhada" while
     considering the issue in the said case, ruled that:-

           "9. A woman's power of disposal, independent of her
B          husband's control, is not confined to saudayika but
           extends to other properties as well. Devala says: "A
           woman's maintenance (vritt1), ornaments, perquisites
           (sulka), gains (labha), are her stridhana. She herself
           has the exclusive right to enjoy it. Her husband has no
c          right to use it except in distress .... " In N.R.
           Raghavachariar's. Hindu Law - Principles and
           Precedents, (8th Edn.) edited by Prof. S.
           Venkataraman, one of the renowned Professors of
           Hindu Law para 468 deals with "Definition of Stridhana".
D          In para 469 dealing with "Sources of acquisition" it is
           stated that the sources of acquisition of property in a
           woman's possession are: gifts before marriage,
         • wedding gifts, gifts subsequent to marriage etc. Para
           470 deals with "Gifts to a maiden". Para 471 deals with
E          "Wedding gifts" and it is stated therein that properties
           gifted at the time of marriage to the bride, whether by
           relations or strangers, either Adhiyagni or
           Adhyavahanika, are the bride's stridhana. In para 481
           at page 426, it is stated that ornaments presented to
F          the bride by her husband or father constitute her
           Stridhana property. In para 487 dealing with "powers
           during coverture" it is stated that saudayika meaning
           the gift of affectionate kindred, includes both Yautaka
           or gifts received at the time of marriage as well as its
G
           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 pleasure.
H " (1997) 2 sec 397
 KRISHNA BHATACHARJEE v. SARATHI CHOUDHURY                          87
               [DIPAK MISRA, J.]

      10. It is thus clear that the properties gifted to her before A
      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 pleasure. He has no control over·her stridhana
      property. Husband may use it during the time of his B
      distress but nonetheless he has a moral obligation to
      restore the same or its value to his wife. Therefore,
      stridhana property does not become a joint property of
      the wife and the husband and the husband has no title
      or independent dominion over the property as owner C
      thereof."
      27. After so stating the Court proceeded to rule that
stridhana property is the exclusive property of the wife on proof
that she entrusted the property or dominion over the stridhana      D
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 observed that it is
always a question of fact in each case as to how the property       E
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       F
note here that the question had arisen whether it is a continuing
offence and limitation could begin to ruri 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        G
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
                                                                    H
88          SUPREME COURT REPORTS                      [2015] 14S.C.R.


A action". In Raja Bhadur Singh v. Provident Fund Inspector
  and Others 12 the Court 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
B to define. The Court referred to the earlier decision in State
  of Bihar v. Deokaran Nenshi1 3 and reproduced a passage
  from the same which is to the following effect:-
             "A continuing offence is one which is susceptible of
c            continuance and is distinguishable from the one which
             is committed 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 requirement and which involves a penalty, the
             liability for which continues until the rule or its requirement
D            is obeyed or complied with. On every occasion that such
             disobedience or non-compliance occurs arid reoccurs,
             there is the offence committed. The distinction between
             the two kinds of offences is between an act or omission
             which constitutes an offence once and for all and an act
E            or omission which continues, and therefore, constitutes
             a fresh offence every time or occasion on which it
             continues. In the case of a continuing offence, there is
             thus the ingredient of continuance of the offence which
             is absent in the case of an offence which takes place
F            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
             continuing offence is one which continues and a non-
G
             continuing offence is one which is committed once and
             for all, the Court found it difficult to explain as to when
             an offence can be described as a continuing offence.
     12 (1984) 4   sec 222
H " (1972) 2 sec 890
 KRISHNA BHATACHARJEE v. SARATHI CHOUDHURY                       89
               [DIPAK MISRA, J.]

      Seeing that difficulty, the Court observed that a few A
      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."                                                    B
     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 C
      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 ... "                                   D
      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 E
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 violence as defined under Section 3 of the said Act. F
"Economic abuse" as it has been defined in Section 3(iv) of
the said Act has a large canvass. Section 12, relevant portion
of which have been reproduced hereinbefore, provides for
procedure for obtaining orders of reliefs. It has been held in G
lnderjit 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 Womer:i from .
Domestic Violence Rules, 2006. We need not advert to the H
90          SUPREME COURT REPORTS                 (2015] 14 S.C.R.


A same as we are of the considered opinion that as long as the
  status of the· aggrieved person remains and stridhan remains
  in the custody of the husband, the wife can always put forth her
  claim under Section 12 of the 2005 Act. We are disposed to
  think so as the status between the parties is not severed
B because of the decree of dissolution of marriage. The concept
  of "continuing 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
C 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
  authority had forwarded the same on 01.06.2010. In the
  application, the wife had mentioned that the husband had
0
  stopped payment of monthly maintenance from January 2010
  and, therefore, she had been compelled to tile the application
  for stridhan. Regard being had to the said concept of "continuing
  offence" and the demands made, we are disposed to think
E 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.
F    The matter is remitted to the learned Magistrate to proceed
     with the application under Section 12 of the 2005 Act on merits.

     Kalpana K. Tripathy                               Appeal allowed.