1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2102 OF 2008 Dr. Prakash Vinayak Joshi, Age 60 Years, ] Occupation - Diplomat, R/at. External ] Affairs Hostel, B-33, Kasturba Gandhi Marg ] New Delhi 110 001. ] Petitioner Vs 1. The State of Maharashtra ] 2. Mrs. Anuradha Prakash Joshi, ] Age 58 Years, Occ : household, ] Residing at Plot No. 5, Shanta Society, ] Kusalkar Road, Pune 411 016. ] WITH CRIMINAL WRIT PETITION NO. 2101 OF 2008 Dr. Prakash Vinayak Joshi .. Petitioner Vs The State of Maharashtra & Another .. Respondents WITH CRIMINAL WRIT PETITION NO. 2073 OF 2008 Mrs. Anuradha Prakash Joshi .. Petitioner Vs Dr.Prakash Vinayak Joshi .. Respondent Shri. Nitin Deshpande for the Applicant in WP 2101/08, 2102/08 and for respondent in WP 2073/08 Shri. J. Shekhar for the respondent in WP 2101/08 and petitioner in WP 2073/08 Shri. Y.M. Nakhawa, APP for State Rma wp2101-08.sxw 2 WITH CRIMINAL REVISION APPLICATION NO. 41 OF 2009 Jaiprakash Bapurao Ogle ] Age 52, Occ : Service, ] R/o. Row House no. 6, Siddhivinayak ] Angan, Sasane Nagar, Hadapsar, Pune ] Petitioner Vs 1. Pushpa Jaiprakash Ogle ] Age : 42 Yrs, Occ. : Housewife, ] R/o. Naregaon Road, Gokul Nagar, ] Bhatkute Building, 2nd Floor, ] Dhayri, Pune. ] 2. State of Maharashtra. ] Respondents WITH CRIMINAL WRIT PETITION NO. 494 OF 2009 Mrs. Pushpa Jaiprakash Ogle .. Petitioner Vs State of Maharashtra and Another .. Respondents S.R. Page for the petitioner Shri. Y.M. Nakhawa, APP for State CORAM : A.S. OKA, J DATE : 18th JULY, 2009 ORAL JUDGMENT : Rma wp2101-08.sxw 3 1. As far as criminal writ petition nos. 2101 of 2008, 2102 of 2008 and 2073 of 2008 are concerned, they arise out of the same proceedings. Criminal writ petition No.2101 of 2008 has been filed by the husband. The 2nd respondent in the said petition is his wife. The marriage was solemnized in December, 1973. The petitioner and the 2nd respondent were blessed with two sons. From December, 2001, husband and the wife are residing separately. In the year 2003, the wife filed a petition for divorce in the Family Court at Pune seeking a decree of divorce on the ground of cruelty. There is another petition filed by her seeking divorce on the ground of adultery. An application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as the 'said Act') was filed by the wife claiming reliefs under Sections 18 , 19, 20 and 22 of the said Act. The said proceedings are being contested by the husband. An application for interim reliefs was filed by the wife in the said proceeding invoking Section 23 of the said Act of 2005. The main contention raised by the husband is that the proceedings were not maintainable in law as the said Act of 2005 has been brought into force with effect from 26th October,2006. It must be said here that on an application at Ex. 3 Rma wp2101-08.sxw 4 filed by the wife, the learned magistrate passed an order dated 18th August, 2008 directing that the wife is entitled to reside in the flat no. 6, more particularly described in the said order. The learned magistrate directed the husband to pay maintenance @ Rs. 2000/- per month to the wife. By order dated 6th September, 2008, passed on the appeal preferred by the husband, the learned Additional Sessions Judge directed the wife to vacate the said flat on or before 30th September, 2008 and to handover vacant possession thereof to the husband. By the said order, the husband was directed either to secure a flat consisting of two bed rooms, hall and kitchen in or around Kothrud area, Pune on rent, on or before 1st October 2008, for the benefit of wife and sons or to pay rent @ Rs. 7000/- per month to the wife towards the accommodation in the form of a rented flat. The learned Sessions Judge directed that the main application under Section 12 has to be heard expeditiously. This order is the subject matter of challenge in Criminal Writ Petition No.2101 of 2008. 2. Criminal Writ Petition No. 2102 of 2008 has been filed by the petitioner - husband. His challenge in the said petition is again to the Rma wp2101-08.sxw 5 order of learned magistrate as well as the order of Sessions Court. An order was passed by the learned magistrate on exhibit 19 which was an application made by the husband challenging maintainability of the application under Section 12 of the said Act of 2005. The said application was rejected. The appeal preferred by the husband against the said order has been dismissed by the Sessions Court which the order impugned in the said Criminal Writ Petition No. 2102 of 2008. 3. Criminal writ petition no.2073 of 2008 has been filed by the wife. The challenge in the said petition is to the same order of the Sessions Court which is the subject matter of criminal writ petition no. 2101 of 2008. As pointed out earlier, by the order dated 6th September, 2008, the Sessions court directed the wife to vacate the flat in question on or before 30th September 2008 and to handover possession thereof to the husband. 4. Criminal revision application no. 41 of 2009 and Criminal Writ Petition no. 494 of 2009 also arise out of the proceedings under Section 12 of the said Act of 2005. Criminal Revision application no. Rma wp2101-08.sxw 6 41 of 2009 is filed by the husband. The prayer is for quashing order dated 16th June,2008 passed by the learned magistrate on an interim application filed by the wife and confirmation of the said order by the Sessions Court. The learned magistrate passed an order directing the husband to pay monthly maintenance of Rs. 1500/- to the wife and to provide a residential accommodation to her in Hadapsar area of Pune within a period of 15 days from the date of the order. The said order was challenged both by the husband and the wife by preferring appeals. By common judgment and order, both the appeals have been dismissed by the learned Sessions judge. The petition being Criminal Writ Petition No. 494 of 2009 is filed by the wife for challenging the same order. 5. It must be stated here that the main submissions have been made in criminal writ petition no.2101 of 2008, 2102 of 2008 and 2073 of 2008 only on one issue, i.e the issue of maintainability of the application under Section 12 of the said Act of 2005. The main challenge is on the ground that the alleged incidents on the basis of which the application under Section 12 has been filed by the wife Rma wp2101-08.sxw 7 relate to the period prior to 26th October 2006, i.e, the date on which the said Act of 2005 came into force. The contention is that the said Act of 2005 provides for penal consequences and therefore, the provisions of the said Act of 2005 apply prospectively. It must be made clear that by this order, this court is deciding the issue of maintainability of the application of the said Act of 2005. 6. The detailed submissions have been made by the learned counsel appearing for the parties in writ petition nos. 2101 of 2009 and other two connected petitions. The learned counsel appearing for the husband had invited my attention to the definition of "domestic violence" in Section 3 of the said Act of 2005. He pointed out that from the language used by the legislature, it is very clear that the Act intended to have only a prospective operation. A submission was made that the said Act of 2005 is not in the nature of a declaratory statute. In the written submissions filed by the learned counsel for the petitioner, it is submitted that that even looking at the statements of object and reasons of the said Act of 2005, it is apparent that the Act has been enacted for creating new rights and liabilities. He submitted Rma wp2101-08.sxw 8 that the said Act of 2005 affects substantive rights and therefore, the Act will have only a prospective operation. He pointed out that the penal consequences are provided in the said Act of 2005 and if the provisions of the said Act of 2005 are applied retrospectively, a person will be penalized for an act which was not illegal when it was done. He submitted that as far as penal statutes are concerned, the law is very well settled. He submitted that in view of the settled law, the courts below have committed a gross error by rejecting the application made by the petitioner husband challenging the maintainability of the application. He has placed reliance on the decision of the Apex court in the case of Keshavan Madhava Menon Vs State of Bombay (AIR 1951 SC 128). He has also placed reliance on the decision of the Apex court in the case of M/s. Punjab Tin Supply Co, Chandigarh Vs Central Government and others [(1984) 1 SCC 206)]. He invited my attention to the decision of the Apex court in the case of S.L. Srinivasa Jute Twine Mills P. Ltd Vs Union of India and Another [(2006)2 SCC 740]. He also invited my attention to the decision of the Apex Court in the case of Kamla Devi Vs Kushal Kanwar and Another [(2006)13 SCC 295]. Reliance has been placed by him on the case of Hitendra Vishnu Rma wp2101-08.sxw 9 Thakur and others etc Vs State of Maharashtra and others (AIR 1994 SC 2623). 7. The learned counsel appearing for the wife has also made detailed submissions. He invited my attention to the various provisions of the said Act of 2005. He submitted that the Act does not create any new rights or liabilities. He submitted that in substance the said Act of 2005 is a procedural statute. He submitted that if the interpretation put by the learned counsel for the husband is accepted, it will completely defeat the object of enacting the said Act of 2005. He has also placed reliance on several decisions including certain decisions of the Apex Court. He submitted that the courts below were right in holding that the application under the said Act of 2005 was maintainable. 8. The question to be decided is whether an application under Section 12 of the said Act of 2005 was maintainable, as the same is based on acts and omissions prior to the date of coming into force of the said Act of 2005. The settled principles which emerge from Rma wp2101-08.sxw 10 various decisions of the Apex Court have been laid down by the Apex court in the case of Hitendra Vishnu Thakur (Supra). In paragraph 25, the Apex Court has observed thus: " From the law settled by this Court in various cases, the illustrative though not exhaustive, principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows: (i) A statute which affects substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible is presumed to be retrospective in its application, should not be given an extended meaning, and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature. (iii) Every litigant has a vested right in substantive law, but no such rights exists in procedural law. (iv) A procedural Statute should not generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished. (v) A Statute which not only changes the procedure but also creates new rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication" Rma wp2101-08.sxw 11 9. In the light of the settled principles of law governing the interpretation of the statutes, it will be necessary to refer to the provisions of the said Act of 2005. The preamble of the said Act provides that the object of the Act is to provide for more effective protection of the rights of 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. In the introduction before the statement of objects and reasons , it is stated that in order to provide a remedy in civil law for the protection of woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society, the Bill of the said Act was introduced. It is stated in the introduction that though there was a provision of Section 498A of the Indian Penal Code, civil law does not address the phenomenon of domestic violence in its entirety. 10. What is important is Clause 3 of objects and reasons which reads thus : "It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the Civil law Rma wp2101-08.sxw 12 which is intended to protect the woman from being victims of domestic violence and to prevent the occurrences of domestic violence in the society" [Emphasis Added] 11. Thus, what is stated by the legislature is that the proposal was to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect a woman from being victimized of domestic violence and to prevent occurrence of domestic violence in the society. 12. The Act gives a very wide definition of domestic relationship which is found in clause (f) of Section 2 of the said Act of 2005. Clause (f) of Section 2 thus reads as under: "'domestic relationship' 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 joint family;" 13. It will also be necessary to refer to the definition of shared household which is found in clause (s) of Section 2 of the said Act of 2005 which reads thus: Rma wp2101-08.sxw 13 "'shared household' means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household." On plain reading of the said definition, the concept of shared household under the said Act of 2005 is certainly wider than existing concept of the matrimonial home. In view of the definition of "domestic relationship", in case of a woman living with a male partner having a relationship in the nature of marriage, the house owned by the male partner in which they are residing together will become a shared household. Section 2(g) defines a "respondent" against whom a relief can be granted on an application under Section 12 of the said Act of 2005. 14. Section 3 defines "domestic violence". The first part of Section 3 is relevant which reads thus: "Definition of domestic violence - For the purposes of this Act, Rma wp2101-08.sxw 14 any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it - (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse ; or (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person." Chapter III of the said Act of 2005 deals with powers and duties of protection officers, service providers etc. with which we are not concerned for the purposes of deciding the issue involved. Chapter IV of the said Act incorporates the procedure for grant of reliefs and nature of reliefs which may be granted under the said Act. The proceedings under the said Act of 2005 are required to be initiated on the basis of an application contemplated by Section 12. The application can be filed by the aggrieved person or a protection officer or any other person on behalf of the aggrieved person. The Act Rma wp2101-08.sxw 15 provides for grant of different kinds of reliefs which are as under: a. Protection orders under Section 18 b. Residence orders under Section 19 c. Monetary reliefs under Section 20 d. Custody orders under Section 21 f. Compensation orders under Section 22 15. Section 23 deals with the powers of learned Magistrate to grant exparte ad interim orders or interim orders in terms of reliefs provided under Sections 18, 19, 20, 21 or as the case may be under Section 22. Section 26 provides that any relief which may be granted under the aforesaid Sections can be also sought in any legal proceedings pending before a Civil Court, Family Court or Criminal Court affecting the aggrieved person and the respondent. Section 26 reads thus : "Relief in other suits and legal proceedings - (1)Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a civil court, family court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act." (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceedings before a civil or criminal Court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief." Rma wp2101-08.sxw 16 16. In sub-section (1) of Section 26, it is specifically provided that reliefs as provided under the said Act can be sought in the proceedings pending before a Civil Court, Family Court or Criminal Court which are initiated even before the commencement of the said Act of 2005. 17. Chapter V is under the title 'miscellaneous'. In the said Chapter and under the said Act of 2005, there is only one penal provision against the respondent in an application under Section 12 which is in the form of Section 31 which reads thus: "Penalty for breach of protection order by respondent - (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. (2) The offence under sub-section (1) shall be as far as practicable be tried by the Magistrate who has passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498-A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions" Rma wp2101-08.sxw 17 18. Thus, what is provided therein is that the breach of protection order or an interim protection order, i.e, the order passed under Section 18 or an interim order or exparte ad interim order passed under Section 18 shall be punishable with imprisonment of either description which may extend to one year or with fine which may extent to twenty thousand rupees or with both. Thus, in short, a breach of the protection order or an interim protection order by a respondent in an application under Section 12 has been made as an offence. Section 33 is the only other penal provision under the said Act of 2005. A Protection Officer who fails or refuses to discharge his duties as directed by the Magistrate in the protection order without any sufficient cause, shall be punished for imprisonment of either description which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. 19. As far as declaration of rights is concerned, there is only one statutory provision, i.e., Section 17 which reads thus : "Right to reside in a shared household - (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to Rma wp2101-08.sxw 18 reside in the shared household, whether or not she has any right, title or beneficial interest in the same. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law." As pointed out earlier, the Act has brought on the statute book, a new concept of a shared household as distinguished from the concept of matrimonial home of a married woman. Thus, Section 17 brings into existence new rights in favour of a woman, who is in a domestic relationship, to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. After conferring the said right, it is provided that the "aggrieved person" as defined under Clause (a) of Section 2 shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. Sub-section (2) of Section 17 thus, protects the woman (aggrieved person) from forcible dispossession or forcible eviction from the shared household. 20. All this will have to be considered in the light of clause 3 of the statements of object and reasons which gives an indication that the Rma wp2101-08.sxw 19 legislature intended to provide a remedy under civil law for protecting women from being a victim of domestic violence and to prevent occurrence of domestic violence. 21. On plain reading of the said Act of 2005, it is crystal clear that any acts or conduct constituting "domestic violence" is not made an offence. To repeat, as far as respondent to application under Section 12 is concerned, the only penal provision is found in Section 31 of the said Act. The said penal provision is attracted when the respondent commits breach of a protection order under Section 18 of the said Act of 2005. The other