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2019 Supreme(Kar) 1583
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
JOHN MICHAEL CUNHA, J.
K.L. Jayalakshmi W/o Vijaya Bhanu Prasad – Petitioner
Versus
M. Vijaya Bhanu Prasad S/o M. Ravi Prasad – Respondent
Criminal Petition No. 2563 of 2014
Decided On : 03-01-2019
Advocate Appeared:
For the Petitioner: Smt. Hemalatha Mahishi.
For the Respondent: Sri. S.P. Kulkarni.
Headnote:
Protection of Women from Domestic Violence Act, 2005 - Section 12 - Hindu Marriage Act - Section 12 – Criminal Procedure Code - Section 482 – Claim of compensation - Jurisdiction of trial Court - Whether eligibility criterion of being resident of District has to be construed to be a permanent or de facto residence or temporary or de jure residence - Petitioner herein presented a petition under Section 12 of Protection of Women from Domestic Violence Act, 2005 seeking protection order as well as compensation and maintenance - On entering appearance respondent disputed jurisdiction of trial Court on ground that petitioner is ordinarily residing and not within jurisdiction of Court - Petitioner examined herself as PW-1 and filed her affidavit in lieu of examination in chief wherein she asserted that after her marriage she resided with respondent in Bellary - Thereafter he asked her to leave matrimonial home and accordingly she started residing in her grandparents house - She has also stated that prior to her marriage she was staying in her grandfather’s house i.e. at palace cross road and she was studying in Mount Carmel College for B.A. Degree and M.A. Degree in University and has produced her degree certificates – Held, Petition was filed under Section 12 of Hindu Marriage Act alleging that parties were residents of Village while in fact at all material times both were found residing at Delhi - In that context by interpreting word resides as found in Section 19 of Hindu Marriage Act - Word residence is a flexible one and has many shades of meaning but it must take its color and content from context in which it appears and cannot be read in isolation - It is capable of being understood in its ordinary sense of having one’s own dwelling permanently as well as in its extended sense - In its ordinary sense residence is more or less of permanent character - Expression resides means to make an abode for a considerable time to dwell permanently or for a length of time - In the instant case Section 27 of Act in unambiguous terms provides that petition under provisions of Act can be maintained by aggrieved person either at place where he is permanently or temporarily residing - Abundant material has been placed by petitioner to show that as on date of presentation of petition petitioner was residing - First Appellate Court has misconstrued and misapplied Section 27 of Act in holding that petition under Section 29 could be maintained only if petitioner is able to establish a permanent residence within limits of Court of Magistrate - View taken by First Appellate Court is contrary to Section 27 of Act - Petition is allowed
ORDER :
1. This petition is filed under Section 482 of Cr.P.C. seeking to set-aside the judgment dated 19.04.2014 in Crl. A. No. 463/2013 on the file of the City Fast Track (Sessions) Judge, Bengaluru City confirming the order dated 17.08.2013 passed by the IV Metropolitan Magistrate Traffic Court at Bengaluru in C. Misc. No. 68/2012.
2. Heard the learned counsel for the petitioner. Learned counsel for the respondent is absent. Perused the records.
3. The petitioner herein presented a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘Act’ for short) seeking protection order as well as compensation and maintenance. On entering appearance, the respondent disputed the jurisdiction of the trial Court on the ground that the petitioner is ordinarily residing in Challakere and not within the jurisdiction of Bengaluru Court.
4. The petitioner examined herself as PW-1 and filed her affidavit in lieu of examination in chief wherein, she asserted that after her marriage on 15.12.2005, she resided with the respondent in Bellary till 2010. Thereafter, he asked her to leave the matrimonial home and accordingly, she started residing in her grand parents house in Bengaluru. She has also stated that prior to her marriage, she was staying in her grand father’s house at Mr. T. Ajjappa Reddy’s Home i.e. at palace cross road, Vasanthanagar, Bengaluru and she was studying in Mount Carmel College, Bengaluru, Vasanthanagar for B.A. Degree and M.A. Degree in Bengaluru University and has produced her degree certificates.
5. To counter the said evidence, the respondent examined himself as RW-1 and filed his affidavit, wherein he has asserted that after the marriage, he and the petitioner used to stay with his aged parents at Bellary. Frequently, the petitioner used to visit her parental house at Challakere. She is the permanent resident of Challakere, wherein she is running her business. On these grounds, the respondent sought to dismiss the petition for want of jurisdiction with the trial Court.
6. Considering the above evidence, by order dated 17.08.2013 the learned MMTC-IV, Bengaluru in C. Misc. No. 68/12 has ruled that the petitioner was temporarily residing in Bengaluru as on the date of submission of the petition and accordingly, rejected the objection raised by the respondent regarding jurisdiction.
7. Being aggrieved by the said order, the respondent herein preferred an appeal before the City Fast Track (Sessions) Judge, Bengaluru City (F.T.C. No. VI) and by order dated 19.04.2014, the learned Sessions Judge has allowed the appeal and has set-aside the order passed by the learned MMTC dated 17.08.2013 and consequently, the petition filed by the petitioner is held not maintainable.
8. I have heard the learned counsel for the petitioner and considered the grounds urged in the petition.
9. It is not in dispute that the marriage of the petitioner and the respondent was performed on 15.12.2005 at Basava Bhavana, Bellary.
10. Section 27 of the ‘Act’ deals with the jurisdiction of the Magistrate to try the offences under this Act. The Section 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.
(b) the respondent resides or carries on business or is employed.
(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 under this Act shall be enforceable throughout India.”
A plain reading of the above provision makes it clear that a person in order to maintain a petition under the provision of the Act should be residing either permanently or temporarily within the territorial limits of the Court, whose jurisdiction is invoked.
11. The First Appellate Court has placed reliance on the decision of
