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.
1. Rule.
2. Rule made returnable forthwith. Heard finally with the consent of
the parties.
3. This Petition under Article 227 of the Constitution of India read
with Section 482 of the Code of Criminal Procedure, assails the order
dated 23rd October, 2021, by which the learned Metropolitan
Magistrate, Bandra Mumbai, refused to entertain an application, under
Section 12 of the Domestic Violence Act, 2005 (‘D.V. Act’ for short) for
want of jurisdiction envisaged under Section 27 of the said Act and in
consequence, directed to return the application to the Petitioner.
4. Background Facts :
Petitioners’ case is that she married to Respondent No.1 in December,
1993 at Hyderabad. Respondent No.2 is her son. Both inflicted mental,
emotional and financial violence on her. Apprehending risk to her life, in
past she fled the Hyderabad house, on two occasions and took
shelter in the hotels nearby. Unable to bear the torture, she came to
Mumbai on 27th September, 2021 and stayed as a guest in one hotel at
Bombay-Kurla Complex. Whereafter she was constantly being stalked
/ watched by unknown person at the instance of Respondents and
therefore she moved to hotel Hyatt. On 6th October, 2021, she filed a
complaint at BKC Police Station and reported that she has reasonable
apprehension and belief of being continuously watched and physically
stalked and followed by some unknown persons at the instance of her
husband and son. She reported that while she was on her way to
town, she was terrified, when she found her family looking person
clicked picture and ran away. She alleged that after reaching the
hotel, when she swiped her debit card to make payment, she realized
that the Respondent had hacked into her net banking account. She
lodged another complaint on 7th October, 2021. Petitioner therefore,
apprehends that she was under constant surveillance at the instance
of her husband and son and therefore extremely scared about the
safety of her life. Therefore, she urged the concerned Police Station to
afford her protection.
5. In facts and circumstances as stated above, the Petitioner filed
an application under Section 12 of the D.V. Act on 20th October, 2021
in the Court of 71st Metropolitan Magistrate, at Bandra and sought the
following reliefs.
Prayers
“(a) To pass a protection order u/s 18 restraining the Respondents
restrain the Respondents and/or any of their friends, aids,
relatives from entering any portion of the shared household in
which the Applicant and/or any other place where the Applicant
resides and frequent and from committing, aiding, abetting acts
against the Applicant and/or her staff i.e., persons who assist
and help the Applicant from Domestic Violence.
(b) Direct the Respondents from alienating and/or disposing and/or
create third party rights on-any/all assets moveable or
immoveable on the Applicant’s sole name, including those
belonging to the Partnership firm, bank lockers, bank accounts
etc. held by them singly or jointly without the leave of this Court.
(c) Residence order u/s 19 and direct the Respondents to remove
themselves from the shared household/ matrimonial house.
(d) In the alternative to prayer (d) the Respondents be retained from
dispossessing or in any other manner disturbing the possession
of the Applicant in the shared household and restrain the
Respondents and anybody through them from entering any
portion of the shared household in which the Applicant resides.
(e) To hand over documents and/or valuables belonging to the
Applicant and in their possession including but not limited to her
G-mail Account, Demat Account, Laptop, Keys, IT Files, Property
Papers etc.
(f) Pass a monetary order u/s 20 and pay the Applicant a sum of Rs.
5,00,000/- per month towards monthly maintenance.
(g) That this Hon’ble Court be pleased to pass a compensation order
u/s 22 directing the Respondents to pay a sum of Rs.
1,00,00,000/- (Rupees One Crore Only) to the Applicant.
(h) That this Hon’ble Court be pleased to pass an order directing the
Respondent to pay an amount of Rs. 50,00,000/- (Rupees fifty
lakh only) towards litigation expenses to the Applicant.
(i) That this Hon’ble Court be pleased to grant an ex-parte order u/s
23(2) of the Act in terms of prayer clause (a) – (g) till the hearing &
final disposal of the present application.
(j) That this Hon’ble Court be pleased to grant interim and ad-interim
reliefs u/s 23 of the DV Act in terms of prayer clause (a) – (g) till
the hearing and final disposal of the present application.
(k) For such other and further reliefs as the nature and
circumstances of the present case may require.”
6. Pending application, she sought ex-parte protection and residence
orders under Section 23(2) of the D.V. Act.
7. The learned Magistrate, after perusing the application, vide order
dated 23rd October, 2021 declined to entertain and proceed with the
application, for want of jurisdiction under Section 27 of the D.V. Act.
Thus, held that, Petitioner is neither permanently nor temporarily
residing or carrying on business within the local limits of jurisdiction
and in consequence, returned the application to her. This order is
assailed in this petition.
8. Submissions :
Mr. Merchant learned Counsel for the petitioner contended that the
learned Magistrate misconstrued the provisions of Section 27 of the
D.V. Act and further failed to appreciate that two police complaints
filed in Mumbai, would disclose and constitute “Domestic Violence”
within the meaning of Act, caused within the local limits of the said
Court and therefore compliant was maintainable. Mr. Merchant
submitted though Petitioner is permanent resident of Hyderabad, in
compelling circumstances, she was forced to leave her shared
household and take shelter in the hotel. Submission is that Applicant’s
visit to Mumbai was neither casual or flying visit. He submitted that
jurisdiction under Section 27 of the D.V. Act, cannot be construed
narrowly, Act being a beneficial piece of legislation. Mr. Merchant
submitted the learned Magistrate ought to have appreciated the
pleadings in the application and two police complaints, which
according to him reveals that Petitioner was subjected to domestic
violence by the Respondents even, within the jurisdiction of Court of
Metropolitan Magistrate at Bandra. His next submission, is that on the
plain reading of complaint, Applicant’s intention to reside in Mumbai
was clearly borne out and therefore simply because, she was residing
in a hotel and abandoned her shared household at Hyderabad.
Learned Magistrate could not have non-suited her. Mr. Merchant
submitted that expression ‘temporarily resides’ includes a temporary
shelter made in the hotel or such other place. He submitted that
Applicant was apprehending danger to her life at the hands of
Respondents and this fact was clearly discernible from the pleadings.
Thus, argued that the learned Magistrate ought to have passed exparte
interim protection order in exercise of jurisdiction under Section
23(2) read with 19 of the D.V. Act. Mr. Merchant therefore submitted
the learned Magistrate by declining to exercise jurisdiction defeated
object of the Act. It is therefore urged that the order impugned be
quashed and set aside and the learned Magistrate be directed to
entertain the application and pass appropriate order in accordance
with law.
9. Mr. Shrawan, learned Counsel appearing for Respondent No.1
and 2 opposed the application and contended that Applicant has
engineered cause of action. He submitted that expression ‘temporarily
reside’ cannot be equated with casual visit or casual stay at a place
with no intention to reside there as such. He argued that there has to
be some material to show that the person is residing there and not
merely visiting for some days. He argued that simply, because she is
temporarily residing at hotel, within the local limits of 71st Metropolitan
Magistrate, that itself was not good, to hold and infer that she had
intention to reside in the local limits of the said Court.
. Learned Counsel in support of his contention, has relied on the
following judgments;
(i) Sharad Kumar Pandey Vs. Mamta Pandey
2010 (118) DRJ 625 High Court of Delhi.
(ii) Darshan Kumari Vs. Surinder Kumar
1995 Supp (4) Supreme Court Cases 137
(iii) Shyamlal Devda and Others Vs. Parimala
(2020) 3 Supreme Court Cases 14
(iv) Divya J. Nair Vs. S.K. Sreekanth
2018 SCC OnLine Ker 3375
(v) Rabindra Nath Sahu & Another Vs. Smt. Susila Sahu
2016 SCC OnLine Ori 592
(vi) MST Jagir Kaur and Another Vs. Jaswant Singh
AIR 1963 Sc 1521
10. Before adverting to the arguments of the learned Counsel for the
parties and the authorities cited, in support of their contentions, let me
reproduced Section 27 of the Domestic Violence Act, which is about
jurisdiction. It reads as under;
“27. Jurisdiction : —
(1) The court of Judicial Magistrate of the first class or the Metropolitan
Magistrate, as the case may be, within the local limits of which—
(a) the person aggrieved permanently or temporarily resides or carries
on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to
grant a protection order and other orders under this Act and to try
offences under this Act.
(2) Any order made this Act shall be enforceable throughout India.”
11. It may be stated every statute has to be interpreted keeping in
mind the purpose for which it has been enacted and the interpretation
must be such, so as to advance the purpose of the act and should not
be such as to defeat, the intention of the legislature. In the case of
Sharad Kumar Pandey (supra) in Paragraph No.8; learned Judge of
High Court of Delhi has observed; thus,
“the scheme of the Act provides that protection officer, and the police
to help the aggrieved person in not only approaching the Court for
redressal but to ensure that the domestic violence is not further
prepetuated and an aggrieved person gets shelter either in the shelter
home or after the residence order in the shared household. Thus, the
place of domestic violence and the place of respondent are two places
which are the places of actions under the Act which the Magistrate can
take and give directions to other bodies created under the Act. Yet,
legislature provided that the jurisdiction can be invoked by an aggrieved
person on the basis of temporary residence. This provision has been
made for such such aggrieved person who has lost her family residence
and is compelled to take residence, though temporarily, either with one
of her relatives or with one of her friends at a place where the domestic
violence was not committed.”
. In Paragraph No.10, it was observed that temporary residence
does not include residence in a lodge or hostel or residence at a place
only for the purpose of filing a domestic violence case and further
observed that this temporary residence must be also be a continuing
residence from the date of acquiring residence till the application
under Section 12 is disposed of. The Paragraph No.10 reads as
under;
“10. I, therefore, consider that the temporary residence, as envisaged
under the Act is such residence where an aggrieved person is
compelled to take shelter or compelled to take job or do some business,
in view of domestic violence perpetuated on her or she either been
turned out of the matrimonial home or has to leave the matrimonial
home. This temporary residence does not include residence in a lodge
or hostel or an inn or residence at a place only for the purpose of filing a
domestic violence case. This temporary residence must also be a
continuing residence from the date of acquiring residence till the
application under Section 12 is disposed of and it must not be a fleeing
residence where a woman comes only for the purpose of contesting the
case and otherwise does not reside there.”
12. In the case, of Rabindra Nath Sahu & Another (supra), the
learned Judge of Orissa High Court has held that, the temporarily
resides is a temporary dwelling place of the aggrieved person, who
has for the time being decided to make that place as a home. Thus, a
place, where aggrieved person has gone on a casual visit, a lodge or
hostel or a guest house or an inn where she stays for a short period
or a residence at a place simply for the purpose of filing a case
against another person cannot be a place which would satisfy the
term ‘temporarily resides’ as appears in Section 27.
13. In the case in hand, since after Applicants’ marriage in 1993,
she was continuously residing at Hyderabad till 26th -27th September,
2021. It appears she was subjected to domestic violence at
Hyderabad, whereupon she has filed a complaint at Banjara Hills Police
Station, Hyderabad on 4th September, 2021. She came to Mumbai on
27th September, 2021 and resided in hotel situated within the local
limits of 71st Metropolitan Magistrate, Bandra. Soon thereafter, on 6th
and 7th October, she filed two non-cognizable complaints and reported
that she was forced to flee to Mumbai, to protect herself and she
believes and apprehends being under constant surveillance at the
instance of her husband and son in their attempt to keep a watch on
her actions, whereby she was frightened and harassed by them.
Whereafter, on 28th October, she filed an application under Section 12
of the D.V. Act, that is within 23 days, after her arrival in Mumbai from
Hyderabad. What appears from the complaint, and argument is that
Respondents being highly influential persons in Hyderabad and
although Applicant has ventured to lodge a complaint against them,
she wont be able to secure any relief from police or such other agency
under the D.V. Act. However, it is to be stated that since her date of
marriage i.e. December, 1993 till September, 2021, though she was
subjected to domestic violence, she had not taken any measure to
protect her life, property or to prevent the Respondents from causing
or inflicting domestic violence to her. In the backdrop of these facts, it
is to be ascertained, whether application under Section 12 filed by the
Petitioner discloses or implies her intention to reside at a place in
Mumbai or was it just casual or flying visit to acquire jurisdiction. As
such to ascertain her intention I have perused the application.
Paragraph No. 1 to 6 of the application are introductory in nature like
particulars of parties. Paragraph No.7 says, marriage expenses were
borne by Petitioner’s father. Paragraph No.8 says, post marriage
education and related expenses of her husband overseas were borne
by Petitioner’s father. Paragraph No.9 says that she was not
permitted to pursue MBA course, although she was qualified, Chemical
Engineer. Paragraph No.10 says about the attitude of Respondent
No.1; whereas Paragraph No.11 describes that Petitioner, was
neglected during her pregnancy. Paragraph No. 12 and 13 are about
the partnership of Respondent No.1 and investments. Paragraph
No.14 speaks about the domestic violence and emotional distress she
had suffered. Paragraph No.15 describes her illness i.e. breast
cancer, she had suffered at the age of 44 year. Paragraph No. 16 and
17 describe as to how her parents were rudely and forcibly removed
from Applicant’s house. Paragraph No. 18 says about the abuses and
harassment at the hands of the Respondent and that she fled the
house and sought protection in hotel on 4th September, 2021.
Paragraph No. 19 to 24 describe the incident of domestic violence.
Paragraph No. 25 speaks about decision to leave the Hyderabad
house and reached out to her brother (who resides in USA) and to
meet him in Mumbai. Paragraph No. 26 to 28 describes Police
Complaints filed at Mumbai. The Paragraphs No. 33 onwards, speak
of her life style and amount of maintenance. In Paragraph No. 42,
Applicant pleaded jurisdiction;
“The Applicant states that she is presently residing at the address
mentioned in the caption, which comes within the jurisdiction of this
Court and this Hon’ble Court has jurisdiction to entertain and decide the
present application.”
14. 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.
Reference is made to the ruling in Mst. Jagirkaur and another v. 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 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 1 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.”
. 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.”
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.
Rule is discharged.
( SANDEEP K. SHINDE, J. )
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