6 Dec 2021 5:49 AM GMT
A domestic violence complaint cannot be filed at a place a woman is only casually visiting and proceedings must be instituted at her temporary or permanent residence under section 27 of the Domestic Violence Act, the Bombay High Court said. The court interpreted 'temporary residence' to mean the place an aggrieved person has temporarily decided to make their home and not a lodge or...
A domestic violence complaint cannot be filed at a place a woman is only casually visiting and proceedings must be instituted at her temporary or permanent residence under section 27 of the Domestic Violence Act, the Bombay High Court said.
The court interpreted 'temporary residence' to mean the place an aggrieved person has temporarily decided to make their home and not a lodge or a guest house, meant for short visits.
Justice SK Shinde thus upheld a magistrate's order declining to entertain a woman's application under section 12 of the Domestic Violence Act for want of jurisdiction under section 27 as both parties were permanent residents of Hyderabad.
The court rejected the woman's argument that she was forced to 'flee' Hyderabad in September and since she had filed two non-cognizable complaints with the police in Mumbai, in October, 2021, the DV complaint was rightly filed in Mumbai.
It held that the woman was not "temporarily" residing in Mumbai and no cause of action arose here. And the facts in the application and documents leads to indicate that Applicants' visit to Mumbai was 'casual visit' and does not imply definite intention to stay at a particular place.
"Therefore, order passed by the Magistrate cannot be faulted with, either for wrong or non-exercise of jurisdiction. In fact, if liberal construction is placed upon the provision, made under Section 27 of the Act, as sought by the Applicants, it may lead to abuse of legal process of law, as aggrieved person may choose, any place, where she may be a casual visitor."
The court relied heavily on the Delhi High Court judgements of Sharad Kumar Pandey Vs. Mamta Pandey and another judgement of Rabindra Nath Sahu & Another Vs. Smt. Susila Sahu 2016 in which the court held that temporary residence does not include residence in a lodge or hostel or residence at a place only for the purpose of filing a domestic violence case and further observed that this temporary residence must be also be a continuing residence from the date of acquiring residence till the application under Section 12 is disposed of.
He also relied on Ramesh Mohanlal Bhutada Vs. State of Mahrashtra & Ors. 2011 regarding the interpretation of casual visit versus temporary visit.
Facts of the Case
According to the woman's complaint, the couple married in 1993 at Hyderabad. Unable to bear the torture meted out to her by her husband and son she came to Mumbai on 27th September, 2021 and stayed as a guest in one of the hotels at Bombay-Kurla Complex and later shifted to hotel Grand Hyatt.
She filed an NC with the BKC police station on October 6 and 7, alleging she was constantly being watched and physically stalked. On October 12 she approached the Magistrate's court at Bandra seeking restraining orders against the husband and son in connection with their shared house hold, invoking sections 18 and 19 of the DV Act.
In a separate application she further sought ex-parte protection and residence orders under section 23 (2) of the DV Act. The magistrate refused relief on October 23. She approached the High Court under Article 226 and section 482 for quashing the magistrate's order.
The petitioner's lawyer argued that the magistrate failed to consider that the two police complaints filed in Mumbai would constitute DV within the local limits of the court and were maintainable. The woman was forced to leave her shared household in compelling circumstances. Moreover, she was unlikely to get relief in Hyderabad as her husband in an influential person.
Conversely the husband argued that there has to be compelling material to show the wife is residing in Mumbai and that she was not just visiting for a couple of days.
The court held that prima facie the woman is well educated and financially sound. And considering her background it would be difficult to accept that she could not seek protection orders at Hyderabad or that she was forced to leave the Hyderabad and or she was intending to reside in Mumbai.
"On the contrary the chronology of the events do suggest, that the Applicant engineered the cause of action with an intention to file case and confer jurisdiction upon the Magistrate."
The woman was continuously residing in Hyderabad since her marriage in 1993 till September 26-27 and had failed to take steps against the domestic violence caused to her till September, this year, it added while dismissing her plea.
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