The only basis for filing the proceeding at Khamgaon is the provision of Section 27(1) (a) of the Protection of Women from Domestic Violence Act, 2005. The word used in the Act is "temporarily resides". Temporarily residing cannot be equated with casual visits or casual stay at a place with no intention to "reside" there as such . There has to be some material to show that person is residing there and not merely visiting a relative for some days. If the facts of the present matter are appreciated, the FIR under Section 498A was admittedly filed at Jamner on 15.09.2012. Copy of the order under Section 125 of the Criminal procedure Code which has been tendered is taken on record and marked 'Y' for identification. This order under section 125 shows that the proceedings under Section 125 of the Criminal Procedure Code were filed at Khamgaon on 02.01.2012. Thus, in January, 2012, the respondent filed case under Section 125 of the Criminal Procedure Code at Khamgaon, then she filed FIR at under section 498A at Jamner in September, 2012 (where it is submitted she was staying when she filed FIR) and now she has filed proceedings under Domestic Violence Act at Khamgaon on 8th October, 2013. Looking to this, I do not find that the element of even "temporarily resides" is satisfied. Only because the respondent has uncle residing at Khamgaon, she appears to have gone there and filed the proceedings under the Protection of Women from Domestic Violence Act, 2005. Her address shown is the address of her uncle as "C/o". Such "C/o" address cannot be taken as temporarily residing.
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Bombay High Court
Vijay Sudhakar Patil vs Sau. Asha Vijay Patil on 8 May, 2014
Bench: A.I.S. Cheema
2. The present petitioner has filed these proceedings under Section 407 and 482 of the Criminal Procedure Code requesting for transfer of Misc.
Criminal Case No. 158 of 2013 pending before the Judicial Magistrate, First Class (Court No. 3) Khamgaon, Dist. Buldhana to Jamner, District Jalgaon.
3. The petitioner claims that the respondent is wife of the petitioner.
Both are residents of Neri Digar, Taluka Jamner District Jalgaon and had 2 appln851-14.odt resided there as a couple. There has been matrimonial discord and parties are now living separate. The respondent prosecuted the petitioner for offence punishable under section 498-A of the Indian Penal Code on the basis of FIR registered at Jamner. The petitioner filed a petition under section 9 and 13(B) (4) of the Hindu Marriage Act for dissolution of Marriage and the same is pending before the learned Civil Judge, Senior Division, Jalgaon. According to the petitioner, the respondent, with a view to harass the petitioner and his old age parents, has filed Misc. Criminal Case No. 158 of 2013 at Khamgaon under the Protection of Women from Domestic Violence Act, 2005. The said petition has been filed at Khamgaon with an intention to harass and humiliate the petitioner and his parents although no cause of action has arisen at Khamgaon or within the jurisdiction of Court at Khamgaon. The respondent is resident of Neri Digar, Taluka Jamner District Jalgaon. After marriage, the parties resided at Neri Digar, marriage had also taken place at Neri Digar and whatever discord took place was also at Neri Digar Taluka Jamner. The distance between Jamner and Khamgaon is more than 200 kms. It is argued that earlier section 125 Cr.P.C. proceeding filed by the respondent at Khamgaon, the petitioner was unable to defend and was decided in his absence. Thus, the petitioner claims transfer of the criminal case to Jamner.
4. Counsel for the petitioner submitted, in support of the petition as above, that the respondent is resident of Neri Digar and no cause of action 3 appln851-14.odt has arisen at Khamgaon. The counsel referred to the contents of the criminal complaint filed before JMFC ( Court No.3) Khamgaon wherein, in the cause title, after the name of the complainant, address is shown as "C/o Prabhakar Devrao Patil". It is submitted that the said person Prabhakar Devrao Patil is maternal uncle of the respondent.
5. The counsel relied on the decision of this Court in the case of Bayabai alias Vijubai Vinayak Sarve & ors. Vs. Pushpabai Hiralal Sarve & another reported in 2003 Bom.C.R. (Cri.) 1597. The counsel submitted that in that matter, the case to be transferred was filed at Bhusawal. Petition was filed at Nagpur Bench of this High Court to transfer the same to Tiroda. It was held that High Court, Bench at Nagpur had the jurisdiction to transfer the case from Bhusawal to Tiroda. The counsel also referred to the facts of that matter to show that the High Court had considered that when the cause of action was not spelt out at Bhusawal, transfer to Tiroda was justified. Reliance was also placed on the decision of Supreme Court in the case of Eluri Raji Reddy & ors. Vs. State of Delhi and another, reported in (2004) 3 Supreme Court Cases 479, where the Hon'ble Supreme Court noticed that husband had filed proceedings for divorce at Andhra Pradesh and the wife filed maintenance proceedings at New Delhi. The parents of wife were residing at Andhra Pradesh where she also had a house. The Hon'ble Supreme Court found it appropriate that the matter be transferred from New Delhi to Andhra Pradesh.
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6. The counsel for the petitioner referred to the documents at Exh.B, which are certificates from Police Patil and Sarpanch of Neri Digar to show that the respondent is resident of Neri Digar. Copy of the election identity card has also been filed, which shows that the respondent was residing at Neri Digar. Copy of the Voters List-2013 relating to Neri Digar has also been filed. The counsel submitted that the Entry No. FCR1224435 shows the maiden name of the present respondent. There is also name of her brother Vikas at Entry No. FCR1224013. Both of them are shown as residents of Neri Digar. The counsel tendered a copy of part of the voters list of 2013 relating to entry of name of father of the respondent. The document is taken on record and marked 'X' for identification. The counsel referred to entry No.FCR2098648 and submitted that the entry shows that the father of the respondent is also resident of Neri Digar. Relying on all these documents, the counsel argued that the respondent is resident of Neri Digar and only with a view to harass the petitioner and his old parents, the proceedings under the Domestic Violence Act are filed at Khamgaon.
7. The counsel for the respondent has opposed the petition. His submission is that ruling relied on in the matter of Bayabai (supra) even if it shows that this Court has jurisdiction to transfer the matter, the facts of that matter were different. The counsel referred to para 14 of that judgment.
He submitted that in that matter the complainant did not say as to where the alleged abuses were given and thus the question of jurisdiction was 5 appln851-14.odt considered in that light. In the present matter, however, according to the learned counsel for the respondent, the facts are different. Here the question of jurisdiction is to be decided on the basis of Section 27 (1)(a) of the Protection of Women from Domestic Violence Act, 2005. As per section 27 (1) (a) the JMFC within the local limits of which the person aggrieved permanently or "temporarily resides" or carries on business or is employed, has jurisdiction. It was submitted that the respondent is temporarily residing at Khamgaon. Thus, even if incidents referred in the complainant did not take place at Khamgaon, still, in view of this provision in favour of women, the respondent is entitled to maintain her complaint at Khamgaon as she is temporarily residing there. It was argued that earlier the respondent had filed Misc. Application No.1/2012 at Khamgaon and order of maintenance has been passed in her favour. It was argued that when that matter was filed, the petitioner had not sought transfer. The counsel submitted that section 498A proceedings were no doubt were filed at Jamner vide FIR dated 15.09.2012 but, according to the counsel, at that time, the respondent was residing at Jamner. So she had filed the FIR at Jamner. It is submitted that now the respondent is staying at Khamgaon and therefore the proceedings may not be transferred.
The counsel argued that the certificates of Police Patil and Sarpanch are not any official record and those cannot be relied on and that the election identity card is of 2008. He submitted that even the voters list 6 appln851-14.odt of 2013 was published on 1.10.2010. According to him, as now the respondent is residing at Khamgaon, the matter may not be transferred.
8. Looking to the arguments, it is clear that the marriage took place at Neri Digar and the parties resided at Neri Digar and cause of action for which the domestic violence case has been filed also arose at Neri Digar.
The only basis for filing the proceeding at Khamgaon is the provision of Section 27(1) (a) of the Protection of Women from Domestic Violence Act, 2005. The word used in the Act is "temporarily resides". Temporarily residing cannot be equated with casual visits or casual stay at a place with no intention to "reside" there as such . There has to be some material to show that person is residing there and not merely visiting a relative for some days. If the facts of the present matter are appreciated, the FIR under Section 498A was admittedly filed at Jamner on 15.09.2012. Copy of the order under Section 125 of the Criminal procedure Code which has been tendered is taken on record and marked 'Y' for identification. This order under section 125 shows that the proceedings under Section 125 of the Criminal Procedure Code were filed at Khamgaon on 02.01.2012. Thus, in January, 2012, the respondent filed case under Section 125 of the Criminal Procedure Code at Khamgaon, then she filed FIR at under section 498A at Jamner in September, 2012 (where it is submitted she was staying when she filed FIR) and now she has filed proceedings under Domestic Violence Act at Khamgaon on 8th October, 2013. Looking to this, I do not find that the 7 appln851-14.odt element of even "temporarily resides" is satisfied. Only because the respondent has uncle residing at Khamgaon, she appears to have gone there and filed the proceedings under the Protection of Women from Domestic Violence Act, 2005. Her address shown is the address of her uncle as "C/o". Such "C/o" address cannot be taken as temporarily residing.
9. Apart from the above, under section 407 of the Criminal Procedure Code, when it appears to the High Court that order of transfer is required, which will tend to general convenience of the parties or witnesses or is expedient for the ends of justice, the matter can be transferred.
10. In the present matter, there is no cause of action which arose at Khamgaon. The only reason for filing the case there is stated to be based on the strength of section 27(1)(a) of the Protection of Women from Domestic Violence Act, 2005. The respondent has her parents and brother living at Neri Digar and as the record itself indicates, she has been residing there and she has filed some cases at Jamner and some at Khamgaon. The parents of the petitioner are old persons as can be seen from the cause title of the complaint itself. It would be expedient for the ends of justice and for convenience of both the sides that the matter should be transferred to Jamner, District Jalgaon.
11. As such the writ petition is allowed.
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A) Criminal Case NO. 158 of 2013 ( Asha Vijay Patil Vs. Vijay
Sudhakar Patil and others) pending before the J.M.F.C. (Court No.3), Khamgaon, District Buldhana is transferred to the Court of JMFC, Jamner District Jalgaon.
B) The J.M.F.C. Court No.3, Khamgaon shall duly forward proceedings urgently to the Court of JMFC, Jamner, District Jalgaon.
C) Parties are directed to appear before the JMFC, Jamner, District Jalgaon on 09.06.2014. No separate notice should be necessary.
( A. I. S. CHEEMA, J. ) JPC
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