IMPORTANT POINT
The jurisdiction to file a petition under the MWPRD Act is strictly limited to the area where the divorced woman resides, which must be interpreted in the context of her actual and permanent residence.

ORDER :

1. The petitioner herein is the respondent in M.C. No. 46/2019 on the files of the Judicial First Class Magistrate Court, Kunnamkulam. This petition has been filed to quash Annexure A petition/complaint pending as M.C. No. 46/2019 on the files of Judicial First Class Magistrate Court, Kunnamkulam.

2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the respondent/original complainant in detail.

3. The parties herein will be referred to as petitioner and respondent with reference to their status in the original complaint.

4. The learned counsel for the respondent/petitioner herein mainly impugns the maintainability of the petition filed by the petitioner before the Judicial First Class Magistrate Court, Kunnamkulam stating that the petitioner is a Malaysian citizen with Malaysian Passport No. A52467022 and is permanently settled in Malaysia as per the address shown in the M.C. According to the learned counsel for the respondent, the marriage took place in Malaysia and divorce also effected in Malaysia. According to the learned counsel for the respondent, a petition under Section 3 of the Muslim Women (Protection Of Rights On Divorce) Act, 1986 ('MWPRD Act' for short hereinafter) can be filed only before a Magistrate where the divorced women resides. Since the petitioner in the M.C. is not a resident within the jurisdiction of the Magistrate Court, Kunnamkulam, the M.C. is not at all maintainable and the same deserves quashment.

5. Opposing the quashment sought for, the learned counsel for the petitioner/complainant submitted that the residence shown in the complaint is within the jurisdiction of Kunnamkulam Police Station and therefore, the petitioner is to be treated as a resident within the jurisdiction of the Magistrate Court, Kunnamkulam, for maintaining a complaint under Section 3 of the MWPRD Act.

6. On perusal of Section 2(c) of the Muslim Women (Protection Of Rights On Divorce) Act, the term ‘Magistrate’ means a “Magistrate of the First class exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the divorced woman resides.”

7. Now the short questions that fall for consideration in the present case are:

(1) Who is competent to file a complaint/petition under Section 3 (2) of the MWPRD Act?

(2) What is meant by the term “resides” within the sweep of Section 2(c) of MWPRD Act?

(3) Whether the petitioner herein is to be treated as 'divorced wife residing' within the jurisdiction of the Magistrate Court, Kunnamkulam under Section 2(c) of the MWPRD Act to claim relief under Section 3 of the MWPRD Act?

8. In this connection, the learned counsel for the respondent placed a decision of the Apex Court in Bhagwan Dass and another v. Kamal Abrol and others, AIR 2005 SC 2583 with reference to paragraph Nos.9, 11 and 12. In paragraph Nos.9 and 12 of the said decision, the Apex Court observed as under:

“9. The decision of the Privy Council was quoted with approval and followed by the Supreme Court in the case of Sri Sri Sri Kishore Chandra Singh v. Babu Ganesh Prasad Bhagat and Others, AIR 1954 SC 316. The Supreme Court later on in the decision Mst. Jagir Kaur and another v. Jaswant Singh, AIR 1963 SC 150, has defined the word 'resides' in the following manner:

"a person resides in a place if through choice make it his abode permanently or even temporarily."

In the same decision the Supreme Court pointed out that the question of residence is a mixed question of law and fact. Hence this being the mixed question of law and fact has to be decided keeping in mind the facts and circumstances of each case. The meaning of the word 'residence' would in ultimate analysis depend upon the context and the purpose of a particular statute. In another, decision of the Supreme Court in the case of Jeewanti Pandey v. Kishan Chandra Pandey, AIR 1982 SC 3 while construing Section 19(ii) of the Hindu Marriage Act, 1955 the Supreme Court said (Para 12):

"I