Introduction
The question of limitation for initiating proceedings under the Protection of Women from Domestic Violence Act, 2005[^1] (hereinafter referred to as “the DV Act”) is no longer res integra, having been settled by the Hon’ble Supreme Court in Kamatchi v. Lakshmi Narayanan[^2]. The Apex Court held that the period of limitation prescribed under Section 468 of the Code of Criminal Procedure, 1973[^3] (Cr.P.C.) does not apply to an application filed under Section 12 of the DV Act. The Hon’ble Supreme Court further clarified that an application under Section 12 cannot be equated to a private complaint under Section 200 Cr.P.C. or a police report.
However, the question of limitation has re-emerged following a recent Reference Order passed by a Division Bench of the Hon’ble High Court of Judicature at Madras in D. Balu & Ors. v. P. Jothilakshmi[^4].
The Reference and the Observations
The specific Question of Law referred to the Division Bench was:
“Whether a divorced woman can maintain a complaint under the Protection of Women from Domestic Violence Act, 2005?”
While the Division Bench answered the referred question in the affirmative, it went further to observe the issue of limitation—a point that was neither referred to it nor directly in question before the Bench.
The Hon’ble Division Bench observed:
“The divorced woman can maintain the complaint under the provisions of the Protection of Women from Domestic Violence Act, 2005 for the domestic violence that took place during the domestic relationship.
Provided the application must be filed within the limitation period, as stipulated under Section 468 of Cr.P.C.”
With due deference to the Hon’ble High Court, while there is no dispute regarding the proposition that a divorced woman can maintain an application under Section 12 of the DV Act, the observation applying Section 468 Cr.P.C. raises significant concern.
It is humbly submitted that this observation appears to have been made obiter and, with due respect, runs counter to the binding ratio laid down by the Apex Court in Kamatchi v. Lakshmi Narayanan[^2].
The Mis-reliance on Inderjit Singh Grewal
Regrettably, it appears that the binding ratio in Kamatchi v. Lakshmi Narayanan[^2] was not brought to the notice of the Hon’ble Bench. Instead, the Division Bench arrived at its conclusion on limitation by relying upon the earlier decision in Inderjit Singh Grewal v. State of Punjab[^5].
With the utmost respect, this reliance is misplaced. In Kamatchi[^2], the Apex Court specifically examined and distinguished Inderjit Singh Grewal[^5], clarifying its scope as follows:
“Inderjit Singh Grewal was decided before the decision of this Court in Sarah Mathew. Rather than the issue of limitation, what really weighed with this Court in Inderjit Singh Grewal was the fact that the domestic violence was alleged after the decree for divorce, when any relationship between the parties had ceased to exist. It is true that the plea based on Section 468 of the Code was noted in paragraph 32 of said decision but the effect and interplay of Sections 12 and 31 of the DV Act was not noticed. In Krishna Bhattacharjee, as is evident from paragraph 33 of the said decision, the plea of limitation was rejected as the offence was found to be a continuing one and as such there was no terminal point from which date the limitation could be reckoned.”
A closer examination reveals that in Inderjit Singh Grewal[^5], after obtaining a decree of divorce by mutual consent along with permanent alimony, the ex-wife initiated DV proceedings alleging that the divorce decree was obtained by fraud. The actual basis for quashing the proceedings in that case was that initiating DV complaints post-divorce under such circumstances constituted a clear abuse of the process of law.
Constitutional Aspect and Scope of Reference Jurisdiction
Even assuming arguendo that a distinction was intended between divorced women and other aggrieved persons under the DV Act, no specific reasoning for such a differentiation was articulated. In my humble submission, creating an unreasoned classification that imposes a strict bar of limitation solely on divorced women may run counter to the principles of equality enshrined under Article 14[^6] and Article 15[^7] of the Constitution of India.
Furthermore, well-established principles of judicial discipline dictate that a Bench answering a Reference must strictly confine itself to the specific question referred to it.
In Kerala State Science & Technology Museum v. Rambal & Co. & Ors.[^8], the Hon’ble Supreme Court elucidated the scope of reference jurisdiction:
“8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to.”
This principle has been consistently affirmed by the Apex Court in T.A. Hameed v. M. Viswanathan[^9], State of Punjab v. Salil Sabhlok[^10], and Aneesh Kumar V.S. & Ors. v. State of Kerala & Ors.[^11].
Conclusion
Under Section 468 Cr.P.C., the period of limitation is intrinsically linked to the quantum of punishment prescribed for an “offence.” Under the scheme of the DV Act, an application under Section 12 does not allege an “offence” per se; penal consequences arise under Section 31[^12] only upon the breach of a protection order. Where there is no protection order, there is no penal offence, and consequently, no terminal point from which limitation under Section 468 Cr.P.C. can be computed.
Therefore, the law laid down by the Hon’ble Supreme Court in Kamatchi v. Lakshmi Narayanan[^2] remains the correct and binding position. Beneficial social welfare legislation like the DV Act cannot be given a narrow, restrictive interpretation that curtails the remedies available to aggrieved women.
With due respect, I am humbly of the view that:
“The observations regarding Section 468 Cr.P.C. in D. Balu, being both per incuriam and beyond the scope of the Reference, warrant clarification or reconsideration by a Larger Bench to preserve certainty and consistency in the law.”
Views are Personal.
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FOOTNOTES:-
[1]: Protection of Women from Domestic Violence Act, 2005 (Act No. 43 of 2005).
[2]: Kamatchi v. Lakshmi Narayanan, (2022) 15 SCC 50 : 2022 INSC 414.
[3]: Code of Criminal Procedure, 1973 (Act No. 2 of 1974), § 468.
[4]: D. Balu & Ors. v. P. Jothilakshmi, 2026 (4) CTC 507 (Mad).
[5]: Inderjit Singh Grewal v. State of Punjab, (2011) 12 SCC 588 : 2011 INSC 601.
[6]: The Constitution of India, Art. 14.
[7]: The Constitution of India, Art. 15.
[8]: Kerala State Science & Technology Museum v. Rambal & Co. & Ors., (2006) 6 SCC 258.
[9]: T.A. Hameed v. M. Viswanathan, (2008) 3 SCC 243.
[10]: State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1.
[11]: Aneesh Kumar V.S. & Ors. v. State of Kerala & Ors., (2020) 9 SCC 511.
[12]: Protection of Women from Domestic Violence Act, 2005, Sec. 31.
