Case Note & Summary
The dispute arose from a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 filed by the respondent (wife) before the Judicial Magistrate, First Class, Nagpur. The applicants (husband and mother-in-law) raised a preliminary objection that the Nagpur court lacked territorial jurisdiction because the respondent was actually residing at Saunsar, Madhya Pradesh, not Nagpur. The respondent had earlier filed a maintenance application under Section 125 CrPC and a criminal complaint at Saunsar, admitting in those proceedings that she had been residing at her parental home in Saunsar since August 2014. In her DV petition, she claimed temporary residence at her brother’s house in Nagpur, but she did not file her brother’s affidavit or any corroborative material to support this claim. The Judicial Magistrate, after considering these admissions, dismissed the petition for want of territorial jurisdiction on 28 October 2014. On appeal, the Principal District Judge, Nagpur, reversed the Magistrate’s order on 27 October 2016, holding that pursuing cases at Nagpur itself amounted to temporary residence and that the Magistrate ought to have allowed the parties to lead evidence before deciding the jurisdictional issue. The husband and mother-in-law then filed a criminal revision before the Bombay High Court, Nagpur Bench. Before the High Court, the applicants contended that the Sessions Court’s order was perverse and illegal, while the respondents argued that the order was proper and that the Magistrate could not have dismissed the petition without giving an opportunity to lead evidence. The High Court examined the meaning of “temporary residence” under Section 27 of the DV Act. It held that temporary residence requires a continuing residence for a substantive purpose such as economic, educational, or social need, and cannot be a residence created merely to confer jurisdiction. Pursuing court cases does not constitute temporary residence. The court noted that the respondent’s admissions in her Section 125 CrPC application and FIR at Saunsar clearly established her permanent residence at Saunsar, and she had failed to explain how she came to reside temporarily at Nagpur. The High Court further held that the principle requiring parties to lead evidence before deciding a preliminary objection does not apply when the facts are already proved by admissions on record. The respondent had the opportunity to file an affidavit of her brother but did not, which indicated that the opportunity available was wasted. Accordingly, the High Court found the Sessions Court’s order to be manifestly illegal and perverse. The revision application was allowed, the impugned appellate order was quashed, and the Magistrate’s order dismissing the DV petition for lack of territorial jurisdiction was confirmed. Liberty was granted to the respondent to file a fresh petition before the proper forum.
Headnote
A) Domestic Violence Act - Territorial Jurisdiction - Interpretation of 'Temporary Residence' - Section 27, Protection of Women from Domestic Violence Act, 2005 - Temporary residence requires residence on a continuing basis for a substantive purpose such as economic, educational, or social need; it cannot be a residence created solely to confer territorial jurisdiction upon a magistrate - Held that pursuing court cases at a place does not constitute temporary residence, and the non-applicant's admissions in other proceedings established her residence at Saunsar, not Nagpur, thus the petition at Nagpur lacked jurisdiction (Paras 6-7). B) Evidence - Admissions as Proof - Section 27, Protection of Women from Domestic Violence Act, 2005 - A preliminary objection regarding territorial jurisdiction can be decided on the basis of admissions made by the applicant in other proceedings, without the necessity of oral evidence, if such admissions clearly prove the facts of residence - The non-applicant had the opportunity to file an affidavit of her brother to support her claim but failed to do so; therefore, the Magistrate's dismissal of the petition based on admissions was legal and correct (Paras 4-5, 8). C) Criminal Revision - Perversity of Appellate Order - Section 397/401, Code of Criminal Procedure, 1973 - A revisional court can set aside an appellate order that ignores uncontroverted admissions and relevant reasons given by the trial court, especially when such admissions clearly establish lack of territorial jurisdiction - Held, the Sessions Court's order was manifestly illegal and perverse; the Magistrate's order is restored, and liberty is granted to file a fresh application before the proper forum (Paras 7, 9-10).
Issue of Consideration
Whether the learned Principal District Judge was correct in holding that the Judicial Magistrate at Nagpur had territorial jurisdiction under Section 27 of the Protection of Women from Domestic Violence Act, 2005 based on the respondent's claim of temporary residence, and whether the Magistrate could decide jurisdiction based on admissions without oral evidence.
Final Decision
The criminal revision application is allowed. The impugned order dated 27.10.2016 passed by the learned Principal District Judge, Nagpur in Criminal Appeal No. 297 of 2015 is quashed and set aside. The order of the learned Magistrate dated 28.10.2014 dismissing Misc. Criminal Application No. 3538 of 2014 for lack of territorial jurisdiction is confirmed. Liberty is granted to the non-applicants to file a fresh application under Section 12 of the DV Act before the proper forum.
Law Points
- temporary residence under Section 27 DV Act must be in ordinary course and not for conferring jurisdiction
- admissions constitute proof of facts regarding residence
- pursuing cases does not amount to temporary residence
