Research › Search › Judgment

Kerala High Court · body

2022 DIGILAW 67 (KER)

Arafath Aboobacker v. Arafeena Arafath

2022-01-18

KAUSER EDAPPAGATH

body2022
JUDGMENT : Ext.P5 order passed by the Judicial First Class Magistrate Court II, Kannur (for short 'the court below') deciding the question of maintainability as a preliminary issue is under challenge in this Original Petition. 2. The petitioner is the husband. The 1st respondent is the wife. The 1st respondent filed Ext.P1 petition under Section 12 of the Protection of Women from Domestic Violence Act, (for short 'the DV Act') as M.C.No.132/2019 at the Judicial First Class Magistrate Court II, Kannur. The petitioner herein filed a petition C.M.P.No.1765/2021 to consider the question of maintainability as a preliminary issue. The petitioner has also filed Ext.P2 counter statement. In Ext.P2 counter statement, the petitioner challenged the maintainability of the petition on the ground that the court below lacks territorial jurisdiction to entertain and try the petition. The court below after hearing both sides dismissed the petition holding that it has territorial jurisdiction to entertain and try the petition. Challenging the said order, the petitioner has approached this Court invoking Section 227 of the Constitution of India. 3. I have heard Sri.Rajesh Sukumaran.K, the learned counsel for the petitioner, Sri.T.P.Sajid, the learned counsel for the 1st respondent and Smt.T.V.Neema, the learned Senior Public Prosecutor. 4. As per Section 27 of the DV Act the court has jurisdiction to try the case if any of the three conditions mentioned therein are satisfied. As per the first condition, the court, where the person aggrieved permanently or temporarily resides or carries on business or is employed get jurisdiction to entertain and try the petition. 5. The pleadings in para 4 of the Ext.P1 petition would show that the petitioner has clearly pleaded that after the marriage, the petitioner and the 1st respondent temporarily resided at Delhi and thereafter both of them shifted to their residence at Kannur and thereafter the petitioner took the first respondent and her child to Bangalore and resided there. According to the petitioner, since they were residing together at Bangalore, immediately before the presentation of the petition, the Bangalore court alone has jurisdiction. But in para 4 of the petition, the 1st respondent has clearly pleaded that while she was residing at Bangalore at the residence of the petitioner, on 26.11.2019 she and her child left Bangalore for Kannur city and since then she has been residing at the residence of her sister namely Fathima at Kannur. But in para 4 of the petition, the 1st respondent has clearly pleaded that while she was residing at Bangalore at the residence of the petitioner, on 26.11.2019 she and her child left Bangalore for Kannur city and since then she has been residing at the residence of her sister namely Fathima at Kannur. So the definite case of the 1st respondent is that at the time of presentation of the petition she was residing at Kannur, at the residence of her sister. In Ext.P2 counter statement, the petitioner did not dispute at all that the 1st respondent was residing at the residence of her sister at Kannur at the time of presentation of the petition. On the other hand, her case is that both of them together resided at Bangalore and not at Kannur. In as much as the petitioner was residing even temporarily at Kannur, at the residence of the sister at the time of presentation of the petition, the court below has got jurisdiction to entertain and try the petition. I see no reason to interfere with the impugned order passed by the court below. Accordingly, the Original Petition is dismissed.