JAMMU AND KASHMIR HIGH COURT
Sanjay Kumar Gupta, J.
Ajay Kaul and Ors. —Petitioners
versus
State of J&K and Ors. —Respondents
CRMC No.274/2016, IA Nos.01/2017 and 01/2016
Decided on 1.2.2019

IMPORTANT POINTS
(i) So it is not mandatory for a Magistrate to obtain a domestic incident report before the Magistrate passes any order provided under various section of Act; so receipt of domestic incident report is not a pre-requisite for issuing a notice to the respondent.
(ii) The argument of counsel for petitioner that residence order cannot be passed with regard to property which is situated outside State, is not tenable. As in D.V. Act, there is nothing which debars the magistrate to pass such order with regard to property situated outside State.

Headnote:(i) J&K Protection of Women from Domestic Violence Act, 2010—Section 12—Cognizance of complaint—Challenged on plea that there was no report of Protection Officer—It is not mandatory for Magistrate to obtain a domestic incident report before Magistrate passes any order under the Act.

       Held: On a conjoint reading of Sections 9 and 12 of the DV Act, it is manifestly clear that it is duty of the Protection Officer to work under the control and supervision of the Magistrate and to perform duties imposed upon him by the Magistrate and in case, he has received a complaint on domestic violence. then to make a domestic incident report and submit it to the Magistrate, as well as to forward copies of the complaint to the Police Officer in charge of the police station within local limits of whose jurisdiction, domestic violence is alleged to have been committed. The proviso added to Section 12(1) of the DV Act is only to the effect that in case a domestic incident report has been received by the Magistrate, the same shall be considered before passing any order on an application received. Section 12 of the DV Act per se does not hold that a Magistrate on receipt of complaint is obligated to call for a domestic incident report, before passing any order on an application. So it is not mandatory for a Magistrate to obtain a domestic incident report before the Magistrate passes any order provided under various section of Act; so receipt of domestic incident report is not a pre-requisite for issuing a notice to the respondent. Magistrate, on the basis of an application supported by affidavit, on being satisfied can even grant ex parte orders in favour of the aggrieved person under Sections 18, 19, 20, 21 or 22 of the DV Act.

       As already discussed above, proviso to Section 12(1) only stipulates that the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. Section 12(1) does not directly stipulate that a report ‘shall’ be called for, before any relief can be granted. (Para 13 & 14)

       (ii) J&K Protection of Women From Domestic Violence Act, 2010—Section 27—Jurisdiction—Complaint filed in Court within whose jurisdiction she was residing with her parents—Acts of domestic violence even if were alleged to have been committed in other different States, Court at the place where aggrieved person was residing temporarily had jurisdiction to entertain complaint.

       Held: From bare reading of the said Section would show that only such courts are competent to entertain a complaint where the aggrieved person/respondent permanently or temporarily resides or carries on business or is employed, or where cause of action arises. It is argued that merely on account of the fact that the respondent No.4 herein is temporarily residing with her parents at Udhampur, the court at Udhampur would not have jurisdiction to entertain the petition.

       The expression “temporary resides” in Section 27 implies something more than a causal stay and implies some concrete intention to stay at a particular place. The temporary residence means where an aggrieved person is compelled to take shelter or to take job or do some business, in view of domestic violence within her matrimonial home. Temporary residence so includes a place where an aggrieved person was compelled to reside in view of commission of domestic violence. Section 27 of the DV Act permits a Court to entertain a complaint of a person residing temporarily within its jurisdiction. Needless to say that after being subjected to domestic violence, it may not be possible for a woman to reside within the same jurisdiction as where the incident of domestic violence occurred and would shift and relocate to a place where she can reside/pick up a job or has some support, be it with her parents or near kith and kin.

       In the instant case, the respondent No.4 is residing with her parents at Udhampur, which is natural residence of victim after she was thrown out of her matrimonial house. So in terms of section 27 of Act, CJM has jurisdiction to entertain the petition under section 12 of Act. (Paras 17 to 19)

       (iii) J&K Protection of Women from Domestic Violence Act, 2010—Section 23—Interim order of Rs. 20,000/- p.m. and sharing of accommodation at flat situated in NOIDA in favour of aggrieved person passed by Court at Udhampur, J&K—Whether Court could pass order in report of shared household situated outside its jurisdiction? Yes.

       Result: Petition dismissed.