This is simple restoration of a petition which was dismissed in default because of non appearance of the lawyer before the court. It may be restored by the session court. You have to fight the case on the merits if the said is restored.
You have a very good grounds for dismissal of petition as the said petition is filed after a period of one year. There are numerous cases on these grounds, have given reference of some of them. Please tell your lawyer, in case the dv petition is restored to file an application for dismissal of dv petition on the grounds of limitation under section 464 of Criminal procedure Code.
5. Further, in a similar petition before Ld. A.S.J. Anju Bajaj Chandna held that.
“As long as the couple is married to each other, the wife cannot be denied protection and other rights under the Domestic Violence Act. "It is not essential that on the date of filing of the complaint, the parties should have been living together and it is sufficient that they have lived together as husband and wife in the past," said the court, underlining the legal condition under the Act for filing the complaint. "In the present case, the marriage between the parties is still subsisting," said the court, setting aside an April 2011 order of a magisterial court, which had dismissed a complaint under the DV Act by an estranged wife against her husband on the grounds that she was no longer residing with him. The court order came on an appeal filed by the woman against the magisterial court's order. The woman got married in March 1993, but had been living separately from her husband since January 1996. She had first moved the court under Domestic Violence Act in March 2008, seeking monetary relief and compensation from her husband besides protection from domestic violence. "It is the duty of the magistrate to see that in view of subsistence of status of husband and wife between the parties whether the relief sought by the petitioner can be granted within the provisions of the Act," the court added. The court directed the magistrate to "reconsider the facts of the case and proceed in accordance with law".
6. Further in CRIMINAL WRIT PETITION NO.37/2008 in order dated 30.03.2010, Hon’ble High Court at Judicature at Bombay, Nagpur Bench held that
“It is true as argued by learned Counsel for the respondents that the Act of 2005 is beneficial piece of legislation, but then the provisions of the Act of 2005 and in particular Explanation II thereof clearly show that domestic violence cannot readily be inferred but will have to be found out on the facts and circumstances of each case. In the instant case according to me domestic violence having been alleged only after 15 years by the respondents would constitute an abuse of process of law. Certainly this beneficial piece of legislation would be available to those who are entitled to the benefits thereof and in the instant case, I have found that the respondents are not entitled to at least under the Act of 2005 though they may be entitled to the reliefs sought by them in the proceedings in some other Law.”
7. In another case, wherein HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR in S.B.Cr. Revision Petition No. 364/2012 vide order dated 21.09.2012 held that:-
“The contention of the respondent is that there is no infirmity in the impugned order but looking to the facts that no allegation of domestic violence are lodged in the petition, isolated incident of August, 2007 cannot be termed as domestic violence. Explanation Ii of Section 3 of the Act of 2005 reads as under:-“Explanation II.- For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.” This clearly suggests that for constituting domestic violence, overall facts and circumstances of the case shall be taken into consideration. Here in the present case, the incident of August, 2007 cannot be termed as domestic violence as the parties were living separately since 2002. Petition for divorce was also pending between them and subsequently the divorce has been granted. Reliance has been placed on V.D. Bhanot v. Savita Bhanot (AIR 2012 SC 965) where residence order has been passed in view of the facts of the case. Further more, reliance has been placed on Gajendra Singh v. Smt. Minakshi Yadav (2022(1) Cr.L.R.(Raj.) 839) where threat to respondent and his family was continued after the year 2006 and looking to the facts, maintenance has been allowed as the wife was facing domestic violence including threat and economic abuse but here nothing has been alleged by the respondent except the incident of 2007. Reliance has also been placed on Rajesh Kurre v. Safurabai & ors. (2009 Cri.L.K.(NOC) 446(Chh.) where the requirements of Section 125, Cr.P.C. and the provisions of Section 20 of the Act of 2005 have been explained. Hence looking at the above that no case is made out by the respondent regarding act of domestic violence. The parties are residing separately since 2002 and hence the petition under Section 12 of the Act of 2005 is not maintainable in view of the facts of the case and the impugned orders of the courts below are liable to be quashed”.
8. That in a recent case, wherein Hon’ble High Court of Judicature at Bombay in CRIMINAL APPLICATION NO. 160 OF 2011, Sejal Dharmesh Ved Vs.The State of Maharashtra & Ors, held that
“A wife who has returned from the USA and consequently from the domestic relationship and lived in India for one year cannot file an application with regard to that relationship after such time. Such wife cannot be taken to be in any domestic relationship. The order of the learned Judge is, therefore, correct. The writ petition is completely devoid of merits and accordingly dismissed.”
9. That in the case of Mrs. Sarah Mathew versus The Institute of Cardio Vascular Diseases, in CRIMINAL APPEAL NO.829 OF 2005, the Hon’ble Supreme Court of India observed that for filing a criminal complaint the limitation period as defined under Criminal Procedure Code is one year and further held that:-
“28. We are inclined to take this view also because there has to be some amount of certainty or definiteness in matters of limitation relating to criminal offences. If, as stated by this Court, taking cognizance is application of mind by the Magistrate to the suspected offence, the subjective element comes in. Whether a Magistrate has taken cognizance or not will depend on facts and circumstances of each case. A diligent complainant or the prosecuting agency which promptly files the complaint or initiates prosecution would be severely prejudiced if it is held that the relevant point for computing limitation would be the date on which the Magistrate takes cognizance. The complainant or the prosecuting agency would be entirely left at the mercy of the Magistrate, who may take cognizance after the limitation period because of several reasons; systemic or otherwise. It cannot be the intention of the legislature to throw a diligent complainant out of the court in this manner. Besides it must be noted that the complainant approaches the court for redressal of his grievance. He wants action to be taken against the perpetrators of crime. The courts functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view that delay caused by the court in taking cognizance of a case would deny justice to a diligent complainant. Such an interpretation of Section 468 of the Cr. P. C. would be unsustainable and would render it unconstitutional. It is well settled that a court of law would interpret a provision, which would help sustaining the validity of the law by applying the doctrine of reasonable construction rather than applying a doctrine which would make the provision unsustainable and ultra vires the Constitution. (U.P. Power Corporation Ltd. v. Ayodhaya Prasad Mishra). 41. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 of the Cr.P.C. the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 of the Cr. P. C.
jai bansal, advocate
new delhi, supreme court of email@example.com