20 April 2023 7:23 AM GMT
The Bombay High Court recently held that judicial magistrate in India can take cognizance of domestic violence committed in foreign soil under the Protection of Women From Domestic Violence Act, 2005 (DV Act).Justice GA Sanap of the Nagpur bench observed that the Act is a social beneficial legislation and the lawmakers worded section 27 of the Act keeping in mind possible domestic...
The Bombay High Court recently held that judicial magistrate in India can take cognizance of domestic violence committed in foreign soil under the Protection of Women From Domestic Violence Act, 2005 (DV Act).
Justice GA Sanap of the Nagpur bench observed that the Act is a social beneficial legislation and the lawmakers worded section 27 of the Act keeping in mind possible domestic violence outside India.
“...the law makers were mindful of such a situation and therefore, Section 27 have been worded in this form. It therefore goes without saying that though the Domestic Violence Act extend to the whole of India as provided under Section 1 of the D.V. Act, the domestic violence caused on the foreign soil could also be taken cognizance by invoking Section 27 (1) (a) and (b)”.
The court rejected a man's application seeking dismissal of proceedings against him in Nagpur, where his wife is residing with her parents, for alleged domestic violence committed in Germany.
The couple got married in 2020 and the husband left for Germany at the end of the year. The wife alleged that during her stay with her in-laws in Mumbai, they humiliated and insulted her, and made nasty comments about her and her parents.
She later joined her husband in Germany. She alleged that her husband behaved properly with her for a few days in Germany but later on subjected her to mental and physical torture. She was not allowed to talk to her parents and was forced to do extra household work, she claimed. She also accused her husband of forcing her to get an abortion.
The wife left Germany and started living with her parents in Nagpur where she filed a domestic violence complaint against her husband. The husband filed an application for dismissal of the complaint.
The Additional Chief Judicial Magistrate rejected the husband’s application. Thus, the husband approached the High Court.
The husband submitted that the DV Act extends to the whole of India except Jammu and Kashmir under section 1. Indian courts do not have jurisdiction over alleged domestic violence committed on German soil as the Act does not extend to Indian subjects residing abroad, he argued.
Under section 27(2) of the DV Act, an order is enforceable throughout India. Thus, the husband argued that even if an order is passed, it would be meaningless since it cannot be executed outside India.
Section 27(1)(a) of the Act provides that the magistrate has jurisdiction if the aggrieved person is a temporary or permanent resident or carries on business or is employed within its local limits.
According to section 27(1)(b), the magistrate has jurisdiction if the respondent resides or carries on business or is employed within its local limits.
The court noted that sections 27(1)(a) and (b) are applicable irrespective of the place of cause of action. Therefore, they have no relation with the place where the domestic violence actually occurred, the court said.
The court opined that a harmonious construction of these two clauses with section 27(1) would show that the lawmakers worded the section keeping in mind such a situation.
The court relied on Rupali Devi v. State of Uttar Pradesh in which the Apex Court held that the wife’s suffering at her parental home due to cruelty in her matrimonial home would amount to distinct offences committed at parental home.
Therefore, the court held that the trauma, suffering, and distress of the complainant carried to her parental home is sufficient to reject the husbands arguments on applicability of DV Act.
“apart from the express provisions of Section 27, in my view, the consequence of trauma, suffering and distress carried by the complainant to her parental home would be sufficient to reject the submissions advanced by relying upon Section 1 of the D.V. Act.”
The court further held that husband’s reliance of Section 27(2) is misplaced as the question of execution would arise depending upon the nature of the order passed by the magistrate.
Thus, the court upheld magistrate’s order rejecting the husband's application for dismissal of complaint.
Case no. – Criminal Application (Apl) No. 1576 of 2022
Case Title – S v. H
Citation: 2023 LiveLaw (Bom) 207
Click Here To Read/Download Judgment