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2019 DIGILAW 195 (HP)

Jai Lal v. Soma Devi

2019-02-27

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. By way of instant petition filed under Section 482 of the Code of Criminal Procedure, petitioner-husband has prayed for quashing and setting aside of order dated 11.7.2018, passed by the learned Sessions Judge, Bilaspur, in Cr.R No. 3/10 of 2017, CNR No. HPB1010000832017, affirming order dated 24.8.2016, passed by the learned CJM Bilaspur, in case No. 129/3 of 2016 (Domestic violence Act Complaint No. 10/2016), titled Soma Devi V. Jai Lal, whereby respondent-wife, came to be held entitled for interim maintenance @ Rs. 10,000/- to be paid by the respondent (petitioner herein) from the date of filing of the application. 2. Facts, as emerge from the pleadings as well as documents adduced on record are that respondent herein, who is a legally wedded wife of the petitioner, filed complaint under Section 12 of the Domestic Violence Act (in short "the Act"), praying therein for grant of maintenance for herself as well as her children under Sections 18, 19, 20 and 22 of the Act. Respondent-wife also prayed that she be provided adequate accommodation to live alongwith her minor children (Annexure P-3). Aforesaid petition having been filed by the respondent- wife came to be resisted on behalf of the petitioner, who specifically took objection of maintainability, jurisdiction and estoppel. Petitioner- husband stated before the court below that application having been filed by the respondent-wife is based upon wrong and fabricated facts. However, fact remains that learned CJM Bilaspur vide interim order dated 24.8.2016 (Annexure P-4) held the respondent-wife entitled for interim maintenance @ Rs. 10,000/- to be paid by the petitioner- husband from the date of filing of the application under Section 12 of the Act. 3. Being aggrieved and dissatisfied with the aforesaid interim order passed by the learned CJM Bilaspur, petitioner-husband preferred criminal revision bearing case No. 3/10 of 2017, in the court of learned Sessions Judge Bilaspur, praying therein to set-aside interim order passed by the learned CJM Bilaspur. Learned Sessions Judge, Bilaspur, vide impugned order dated 11.7.2018 (Annexure P-5) dismissed the revision petition having been filed by the petitioner-husband and as such, he has approached this Court in the instant proceedings. 4. I have heard the learned counsel for the parties and gone through the records of the case. 5. Learned Sessions Judge, Bilaspur, vide impugned order dated 11.7.2018 (Annexure P-5) dismissed the revision petition having been filed by the petitioner-husband and as such, he has approached this Court in the instant proceedings. 4. I have heard the learned counsel for the parties and gone through the records of the case. 5. Having heard learned counsel for the parties and perused material available on record, this Court finds considerable force in the argument of Shri Nand Lal Chauhan, learned counsel for the petitioner- husband that both the courts below failed to appreciate the material produced on record by the petitioner-husband in support of his contention that court of learned CJM Bilaspur has no jurisdiction because at the time of filing of the application under Section 12 of the Act, petitioner-wife was neither permanent nor temporary resident of District Bilaspur. 6. Careful perusal of averments contained in the application also suggests that cause of action, if any, accrued to the respondent- wife at Arki, because allegedly, she was given beatings on 26.7.2016, by the petitioner at Arki District Solan, not at Bilaspur and as such, cause of action, if any, also not accrued in favour of the respondent-wife at Bilaspur, entitling her to maintain application, if any, under Section 12 in the Court of learned CJM Bilaspur. At this stage, it would be profitable to take note of Section 27 of the Protection of Women from Domestic Violence Act. 27. Jurisdiction.- (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which - (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) 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. (2) Any order made this Act shall be enforceable throughout India. Careful perusal of aforesaid provision of law reveals that Judicial Magistrate of the first class or the Metropolitan Magistrate can only take cognizance of the complaint, if any, filed under Section 12 of the Act by the aggrieved person, who resides permanently or temporarily or carries on business in the jurisdiction of that court. Careful perusal of aforesaid provision of law reveals that Judicial Magistrate of the first class or the Metropolitan Magistrate can only take cognizance of the complaint, if any, filed under Section 12 of the Act by the aggrieved person, who resides permanently or temporarily or carries on business in the jurisdiction of that court. The Judicial Magistrate of the first class or the Metropolitan Magistrate can also take cognizance of the complaint filed under Section 12 if cause of action has accrued to the complainant within its jurisdiction. 7. Close scrutiny of application filed by the respondent-wife itself reveals that prior to the alleged incident, she had been residing at Arki, District Solan, alongwith her husband. As per own case of the complainant/respondent-wife, she was given beatings by the petitioner- husband on 26.7.2016 at Arki, as a consequence of which, she was compelled to leave Arki. Respondent-wife in her complaint has claimed that though she is permanent resident of Village Kalharan, P.O. Ghanagughat, Tehsil Arki, District Solan, H.P., but at present, she is residing at Bilaspur because of maltreatment being meted to her by her husband (petitioner herein), but material available on record nowhere suggests that at the time of filing complaint on 16.8.2016, respondent- wife was even temporarily residing at Bilaspur. Documents placed on record by the petitioner-husband clearly reveal that at the time of filing of application/complaint under Section 12 of the Act, respondent-wife was not residing at Bilaspur and as such application filed by her under Section 12 could not be entertained by the CJM at Bilaspur. Perusal of order dated 24.8.2016 (Annexure P-4) nowhere suggests that issue of jurisdiction raised by the petitioner-husband came to be taken note of or adjudicated by the learned CJM before holding the respondent entitled for interim maintenance, rather order itself reveals that CJM in most casual and cavalier manner without calling any reply of petitioner-husband, proceeded to pass interim order directing the petitioner-husband to pay maintenance @ Rs. 10,000/- to the respondent-wife that too on the basis of report submitted by the Protection Officer. 8. Interestingly, learned Sessions Judge, Bilaspur, though took note of plea of jurisdiction raised by the petitioner-husband, but failed to appreciate the material before him in its right perspective, as a result of which, illegal order dated 24.8.2016, passed by the learned CJM Bilaspur, came to be upheld. 8. Interestingly, learned Sessions Judge, Bilaspur, though took note of plea of jurisdiction raised by the petitioner-husband, but failed to appreciate the material before him in its right perspective, as a result of which, illegal order dated 24.8.2016, passed by the learned CJM Bilaspur, came to be upheld. Learned Sessions Judge, though in para-3 of the impugned order dated 11.7.2018, has recorded factum with regard to filing of reply to the application under Section 12 by the petitioner-husband, wherein he resisted the claim of the respondent- wife on the ground of maintainability, jurisdiction and estoppel, but he has failed to appreciate the claim of the petitioner-husband in its right perspective. In para-13 of the impugned order, learned Sessions Judge has recorded that Smt. Soma Devi respondent-wife has placed on record one attested copy of agreement dated 27.2.2018, wherein it is mentioned that she is living in a rented accommodation w.e.f. 1.11.2016 to 31.10.2018 as tenant, meaning thereby, the respondent-wife started residing in the rented accommodation w.e.f. 1.11.2016, whereas application under Section 12 (Annexure P-3) came to be filed on 16.8.2016. Though there was no occasion for the learned Sessions Judge to take note of copy of agreement dated 27.2.2018, which apparently was prepared subsequently by the respondent-wife with a view to have jurisdiction at Bilaspur, but even if such agreement is taken into consideration for the purpose of determining the territorial jurisdiction, it itself suggests that respondent-wife was not residing at the address given in the memo of application filed by her under Section 12 on 16.8.2016, rather she started living in a rented accommodation w.e.f. 1.11.2016. 9. Having carefully perused material available on record vis-a-vis finding returned by the learned Sessions Judge qua the issue of jurisdiction, this Court has no hesitation to conclude that learned court below dealt with the issue of jurisdiction in most cursory manner without bothering to look into the material adduced on record by the petitioner-husband in support of his contention. Interestingly, respondent-wife in the present case, came to be served on the address, which is of Village Kalharan, P.O. Ghanagughat, Tehsil Arki, District Solan, H.P., meaning thereby even as of today, respondent-wife is residing in aforesaid Village Kalharan, P.O. Ghanagughat, Tehsil Arki, District Solan, H.P. 10. Interestingly, respondent-wife in the present case, came to be served on the address, which is of Village Kalharan, P.O. Ghanagughat, Tehsil Arki, District Solan, H.P., meaning thereby even as of today, respondent-wife is residing in aforesaid Village Kalharan, P.O. Ghanagughat, Tehsil Arki, District Solan, H.P. 10. Petitioner by way of rejoinder has also placed on record certain documents, perusal whereof also compels this Court to arrive at a conclusion that at the time of filing of petition under Section 12 of the Act, respondent-wife was not residing at Biliaspur, but in totality of facts and circumstances of the case, this Court deems it not proper to return finding, if any, at this stage qua the jurisdiction, especially, when main matter is pending before the court below and as such, deems it fit to remand the matter back to the learned CJM Bilaspur to decide the issue of jurisdiction afresh. 11. Consequently in view of the above, present petition is allowed and impugned orders dated 24.8.2016 as well as 11.7.2018, passed by the courts below, are quashed and set-aside and the matter is remanded back to the learned CJM Bilaspur, with a direction to decide the question of jurisdiction at the first instance after affording opportunity of hearing to the parties concerned. Learned counsel for the parties undertake to cause presence of their respective clients before the learned CJM Bilaspur on 12.3.2019, enabling it to do the needful in terms of instant judgment. Needless to say, any observations made hereinabove shall not be construed to be a reflection on the merits of the main matter before the court below and shall remain confined to the disposal of this case alone. Pending applications, if any, also stands disposed of.