Thus, averments in application suggest, that Applicant is well educated person; she is financially sound; her parents are in business. In consideration of her background it is difficult to accept her contention or that she could not seek protection order at Hyderabad. In other words, application in no way suggest or implies that she was forced to leave the Hyderabad and or she was intending to reside in Mumbai. On the contrary the chronology of the events do suggest, that the Applicant engineered the cause of action with an intention to file case and confer jurisdiction upon the Magistrate. In the case of, Advocate Ramesh Mohanlal Bhutada Vs. State of Mahrashtra & Ors.,2011 CRI. L.J. 4074, the learned Judge of this Court has made distinction between temporary residence and casual visit. In Paragraph No. 5 it was held that;
“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 of 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.
Yet in the case of Prashant s/o Manmohanjhi Laddha Vs. Sau Madhuri w/o Prashant Laddha; 2018 ALL MR (Cri) 2971. It was held that; “Temporary residence requires residence at a place on continuing basis in pursuit of some activity or want or need which may be economic, educational, financial, cultural, social and the like which comes to an end when the goal or purpose is achieved. The period or such residence would vary depending upon the purpose for which it is taken. But, such residence cannot be a residence created just to confer territorial jurisdiction upon a Magistrate of a place or otherwise, it would be easy for a woman well equipped with resources to go to a far away place, set up a temporary residence there just to file a case and file a case to get the pleasure of seeing husband or person in domestic relationship being put to travails of long travels and high expenses. So, to my mind, in the context of Section 27 of the D.V. Act, temporary residence means a residence set up or acquired in the ordinary course of human affairs and is not a residence set up with an intention to file a case and confer jurisdiction upon the magistrate. This is the meaning, plainly and naturally, conveyed by combined reading of key words used in Section 27 of the D.V. Act, which are “resides or carries on business or is employed.” {Para 14}
15. Thus, in consideration of the facts of the case, I hold that the Applicant was not “temporarily” residing within the jurisdiction of the Court of learned Magistrate and no cause of action arose in Mumbai. The facts pleaded in the application and the documents produced in support of her case only belief, leads to indicate that Applicants’ visit to Mumbai was ‘casual visit’ and does not imply definite intention to stay at a particular place. Therefore, order passed by the Magistrate cannot be faulted with, either for wrong or non-exercise of jurisdiction. In fact if liberal construction is placed upon the provision, made under Section 27 of the Act, as sought by the Applicants, it may lead to abuse of legal process of law, as aggrieved person may choose, any place, where she may be a casual visitor.
16. In the result, the impugned order declining to entertain, Petitioner’s application under Section 12 for want of jurisdiction cannot be faulted with. There is no error committed by the learned Magistrate in exercise of her jurisdiction. Petition therefore fails, it is dismissed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Writ Petition No. 4184 / 2021
Mrs. Afia Rasheed Khan Vs Mr. Dr. Mazharuddin Ali Khan
CORAM : SANDEEP K. SHINDE J.
PRONOUNCED ON : 03rd DECEMBER, 2021.
Citation: 2022 ALLMR (Cri) 3125
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