Jurisdiction of court in case of Domestic Violence Act
Trial court ought to have given opportunity to the party to lead evidence on point of jurisdiction of trial court. The word resident means both a permanent dwelling as well as temporary living in a place.
Bombay Hight Court
Ramesh Bhutada Vs. State Of Maharashtra
Date : 13/6/2011
Coram: A.P. Bhangale
JUDGMENT :
Heard Mr. Anand Parchure, learned counsel for the
petitioners; Mr D.B. Yengal, learned APP for respondent No.1 and Mr.
N.S.Bhattad for respondent No.2.
2. Rule, returnable forthwith. With the consent of respective
learned counsel, the matter is taken up for final disposal
3. By means of this petition, the petitioners seek to quash and
set aside the impugned order dated 18.7.2010 passed by learned
Additional Sessions Judge, Akot arising from the order dated
15.2.2010 passed by learned Judicial Magistrate, First Class, Akot. It
appears that the learned JMFC by order dated 15.2.2010 in respect of
an application challenging the authority/jurisdiction of the Court to
entertain Misc. Application No.155/2009 considered the application
filed and the say from the other side, with reference to Section 27 of the
Protection of Women from Domestic Violence Act, 2005 (43 of 2005)
(hereinafter to be referred to as “the Act of 2005”) and held that the
learned JMFC has jurisdiction to entertain, try and decide the
application of the aggrieved person under the Act of 2005.
It is not
disputed that the said application was decided without recording the
statement of the parties with reference to documents which were relied3
upon by either of the parties. It is also not disputed that the aggrieved
person Arti Harshad Bhutada had married Harshad Ramesh Bhutada
on 11.7.2008 at Akola. After their marriage, they resided at Nasik.
Father of the aggrieved person is carrying on business and is residing
at Chembur (Mumbai). However, on the ground that the applicant is
temporarily resident of Akot along with maternal brother of her father, it
appears that the application challenging the jurisdiction of the Court to
entertain, try and decide the application of the aggrieved person was
rejected by order dated 15.2.2010 in Misc. Application No.155/2009.
The order was subjectmatter of challenge by means of an Appeal before
the learned Addl. Sessions Judge, Akot who too dismissed the appeal
confirming the finding by the learned trial Magistrate that the trial
Court has jurisdiction to entertain and try the proceedings under the
Act of 2005 which came into being from 26.10.2006.
4. I have heard submissions at the Bar, at length. A cursory
glance at the provisions of Section 27 of the Act of 2005 would reveal
that the Judicial Magistrate of the First Class within whose local limits
the person aggrieved permanently or temporarily resides or carries on
business or employed; or the respondent resides or carries on
business or is employed; or the cause of action has arisen, shall be the4
competent Court to grant a protection order and other orders under
this Act and to try offences under this Act. Subsection (2) states that
the order made under this Act shall be enforceable throughout India.
The order passed under the Act of 2005 by the Magistrate is appealable
in view of section 29 of the said Act.
5. In support of the petition, it is submitted on behalf of the
petitioners that there is distinction between temporary residence and
casual visit. The expression “reside” implied something more than
“stay” and implied some intention to remain at a place and not
merely to pay it a casual visit. The question of residence is required to
be decided as to whether the party claiming residence, permanent or
temporary, has an intention to stay at a particular place then alone it
could be said that the party is residing at that particular place, either
permanently or even temporarily. The question as to whether aggrieved
person has made a particular place an abode, permanent or temporary,
is a question to be decided with reference to facts of each case. It is
apprehended that if liberal construction is placed upon the provisions
made under section 27 of the Act to allow even casual visit of the
place to claim that the place is his or her temporary residence within
the meaning of Section 27 of the Act 2005, then it may lead to abuse of5
the legal process as the aggrieved person may choose to harass the other
party by choosing any place where he or she may be a casual visitor.
Reference is made to the ruling in Mst. Jagirkaur and another vs.
Jaswant Singh : AIR 1963 SC 1541. The Apex Court was dealing
with the question relating to the term “resides” in respect of petition by
a wife against her husband for maintenance. Considering the dictionary
meaning of the word “resident” the Apex Court has observed that the
word means both a permanent dwelling as well as temporary living in
a place. It is capable of different meanings including domicile in the
strictest and the most technical sense and a temporary residence.
Whichever meaning is given to it one thing is obvious that it does not
include casual stay or a flying visit to a particular place. In short, the
meaning of the the word would, in the ultimate analysis, depend upon
the context and the purpose of a particular statute. The expression
“reside” implies something more than a casual stay and implies some
concrete intention to remain at a particular place but not merely to pay
a casual or flying visit. In other words, it is always something more
than a casual visit or casual stay at a particular place to assign status to
the person as “temporary resident” of a particular place is
contemplated under the law.
6. In the present case although the vital question as to the6
jurisdiction of the Court to entertain and try the proceedings was
raised, the parties were not called upon to tender evidence in support
of their rival contentions and were merely heard on the basis of
application and say ( copy of the say is not tendered before this Court),
before the application (Exh.27) was rejected by the learned trial
Magistrate. Considering the observations made therein by the Apex
Court in Mst. Jagirkaur (supra), I think when the question is raised as
to the authority or the jurisdiction of the Court to entertain and try the
proceedings, the decision may terminate the proceedings; hence the
parties ought to have been given fair and full opportunity to tender
their evidence oral and/ or documentary, in support of their rival
contentions, as the case may be before deciding the vital question as to
jurisdiction or authority of the Court to entertain and try the
proceedings. Principles of natural justice also require it. For this reason
there appears to be clear error of law in the impugned orders. Therefore,
the petition deserves to be allowed in terms of following directions:
7. The impugned order passed by the learned JMFC, Akot
dated 15.2.2010 in Misc. Application No.155/2009 and order dated
17.8.2010 passed by the learned Addl. District Judge, Akot in Criminal
Appeal No. 7/2010 are hereby quashed and set aside. The learned7
JMFC Akot is directed to consider Misc. Application No.155/2009
afresh by giving full opportunity to the parties concerned to put
forward their respective contentions along with oral and/or
documentary evidence in support of their rival contentions and to
decide the application challenging the jurisdiction of the Court to
entertain and try the proceedings. The parties to appear before the
learned trial Magistrate on 30
th
June,2011 at 11.00 a.m.. The learned
JMFC to hear and decide the application as early as possible.
Rule made absolute accordingly.
JUDGE
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