Advocate Ramesh & Anr. Vs. State Of Maharashtra & Ors.

Court: BOMBAY HIGH COURT

Bench: JUSTICE A.P. Bhangale

ADVOCATE RAMESH & ANR. Vs. STATE OF MAHARASHTRA & ORS. On 13 June 2011

Law Point:

“Reside” — Meaning of expression — It implies something more than a casual stay and concrete intention to remain at particular place but not merely to pay casual or flying visit according to Sections 27, 27(2) of DV Act.

JUDGEMENT

1. Heard Mr. Anand Parchure, learned Counsel for the petitioners; Mr. D.B. Yengal, learned APP for respondent No. 1 and Mr. N.S. Bhattad for respondent No. 2.

2. Rule, returnable forthwith. With the consent of respective learned Counsel, the matter is taken up for final disposal.

3. By means of this petition, the petitioners seek to quash and set aside the impugned order dated 18.7.2010 passed by learned Additional Sessions Judge, Akot arising from the order dated 15.2.2010 passed by learned Judicial Magistrate, First Class, Akot. It appeals that the learned JMFC by order dated 15.2.2010 in respect of an application challenging the authority/jurisdiction of the Court to entertain Misc. Application No. 155/ 2009 considered the application filed and the say from the other side, with reference to Section 27 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005) (hereinafter to be referred to as “the Act of 2005”) and held that the learned JMFC has jurisdiction to entertain, try and decide the application of the aggrieved person under the Act of 2005. It is not disputed that the said application was decided without recording the statement of the parties with reference to documents which were relied upon by either of the parties. It is also not disputed that the aggrieved person Arti Harshad Bhutada had married Harshad Ramesh Bhutada on 11.7.2008 at Akola. After their marriage, they resided at Nasik. Father of the aggrieved person is carrying on business and is residing at Chembur (Mumbai). However, on the ground that the applicant is temporarily resident of Akot along with maternal brother of her father, it appears that the application challenging the jurisdiction of the Court to entertain, try and decide the application of the aggrieved person was rejected by order dated 15.2.2010 in Misc. Application No. 155/2009. The order was subject matter of challenge by means of an Appeal before the learned Addl. Sessions Judge, Akot who too dismissed the appeal confirming the finding by the learned trial Magistrate that the Trial Court has jurisdiction to entertain and try the proceedings under the Act of 2005 which came into being from 26.10.2006.

4. I have heard submissions at the Bar, at length. A cursory glance at the provisions of Section 27 of the Act of 2005 would reveal that the Judicial Magistrate of the First Class within whose local limits the person aggrieved permanently or temporarily resides or carries on business or employed; or the respondent resides or carries on business or is employed; or 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. Sub-section (2) states that the order made under this Act shall be enforceable throughout India. The order passed under the Act of 2005 by the Magistrate is applicable in view of Section 29 of the said Act.

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 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.

6. In the present case although the vital question as to the jurisdiction of the Court to entertain and try the proceedings was raised, the parties were not called upon to tender evidence in support of their rival contentions and were merely heard on the basis of application and say (copy of the say is not tendered before this Court), before the application (Exh. 27) was rejected by the learned trial Magistrate. Considering the observations made therein by the Apex Court in Mst. Jagirkaur (supra), I think when the question is raised as to the authority or the jurisdiction of the Court to entertain and try the proceedings, the decision may terminate the proceedings: hence the parties ought to have been given fair and full opportunity to tender their evidence oral and/or documentary, in support of their rival contentions, as the case may be before deciding the vital question as to jurisdiction or authority of the Court to entertain and try the proceedings. Principles of natural justice also require it. For this reason there appears to be clear error of law in the impugned orders. Therefore, the petition deserves to be allowed in terms of following directions:

7. The impugned order passed by the learned JMFC, Akot dated 15.2.2010 in Misc. Application No. 155/2009 and order dated 17.8.2010 passed by the learned Addl. District Judge, Akot in Criminal Appeal No. 7/2010 are hereby quashed and set aside. The learned JMFC Akot is directed to consider Misc. Application No. 155/2009 afresh by giving full opportunity to the parties concerned to put forward their respective contentions along with oral and/or documentary evidence in support of their rival contentions and to decide the application challenging the jurisdiction of the Court to entertain and try the proceedings. The parties to appear before the learned trial Magistrate on 30th June, 2011 at 11.00 a.m. The learned JMFC to hear and decide the application as early as possible.

Rule made absolute accordingly.

Petition allowed.